Taking DNA sample intrudes on an individual’s privacy

今年4月份,警方指控Charles Xu先生伤害他的女婴后,将其逮捕。他于五月份被保释。

Accused of assaulting his baby-daughter in April this year, Mr. Charles Xu was arrested by Toronto Police and later bailed out in May.


Attached with the bail order, Xu has obtained a copy of application from his lawyer for taking his DNA sample, filed by a police officer to the court.


In the application, the officer notes that Police and Children’s Aid were called in two separate occasions when Xu’s wife was concerned over the way that Xu was caring for the four-month old daughter. The application further noted that, according to his wife, on April 27th, Xu put the baby girl into hot tub water after he became angry, and later pulled her out and slapped her sharply. The application indicates that the baby girl was not injured.


Under Section 487.04 of the Criminal Code of Canada, more serious crimes, such as “murder”, “sexual assault”, and ” manslaughter” are primary designated offences, and offences such as “assault”, with which Xu was charged, falls under secondary designated offences. 

Xu, who has no criminal record and has not been convicted, denied the accusation, maintaining that he has never harmed his daughter.

于2000年6月起生效的DNA确认法(DNA Identification Act)旨在为警方提供一项称为DNA样本的破案工具。根据国家DNA数据库提供(National DNA Data Bank)的信息,从被定罪的一类罪犯和二类罪犯身上提取的DNA样本制成的电子数据指数,通过识别和排除嫌疑人,及确定是否是惯犯等方式协助警方破案。

The DNA Identification Act, which came into force in June, 2000, was passed to provide police with a crime fighting tool -- the DNA sample. According to National DNA Data Bank, electronic indexes,developed from DNA profiles collected from offenders convicted of designated primary and secondary offences,assist law enforcement agencies in solving crimes by helping to identify and eliminate suspects, and determine whether a serial offender is involved.

在不对任何具体案件评论的前提下,布雷克律师行(Blake,Cassels & Graydon LLP)经验丰富的诉讼合伙律师Tony Wong向大中报介绍说,根据刑事犯罪条例第487.051(1) (b)节,当犯有伤害等二类刑事罪犯被定罪后,法庭在认定为维护司法的最高利益的前提下,可能,但非必须,下令提取该罪犯的DNA样本。

Not commenting on any specific case, Mr. Tony Wong, an experienced litigation lawyer with Blakes (Blake, Cassels & Graydon LLP), informed Chinese News readers that pursuant to s. 487.051(1) (b) of the Criminal Code, when a person is convicted of secondary designated offence such as assault, the court may, but not must, make an order authorizing the taking of DNA samples if the court is satisfied that it is in the best interests of the administration of justice to do so.

Tony Wong律师指出,当法庭在决定下达该命令是否为维护司法的最高利益时,要考虑的因素包括被定罪的罪犯的犯罪史,其犯罪性质,犯罪时的环境,及下达该命令对其个人的隐私及安全所造成影响等。Tony Wong律师说:“法官必须在其命令中注名下达该命令的原因。”

Wong further indicates that in determining whether such an order is in the best interests of the administration of justice, the court considers factors such as the criminal record of the person who has been convicted, the nature of the offence, the circumstances surrounding the commission of the offence and the impact of the order on the person's privacy and security of person. “Note that a judge who makes such an order is required to give reasons for his/her order,”according to Wong.

在于2002年11月29日向Alberta省法庭递交的一份申请中,检控官要求法庭下令提取一名犯有企图非法入室及非法入室罪的年轻罪犯的DNA样本。Jerry N.LeGrandeur驳回了检控官的申请。他在判决中表示,预防犯罪,破案和将罪犯邢之以法对整个社会而言都是非常重要的,但我们不能将这些因素凌驾于个人自由和权利之上。

In an application filed to the Alberta Provincial Court on Nov. 29, 2002, where the Crown has applied for an order to take the DNA samples of a young offender, who was convicted of house breaking and attempted house breaking, Justice Jerry N. LeGrandeur who dismissed the application, noted in the judgement that crime prevention, the solving of crimes and the bringing of criminals to justice are matters of great significance for society, but that the facts alone cannot override individual freedoms or rights.

Tony Wong律师解释说,提取DNA样本的命令要在罪犯被定罪后才会下达。罪犯会有机会向法庭陈述提供其DNA样本是否是为维护司法的极高利益。“罪犯可争辩说,提取DNA样本是对其个人隐私的严重侵犯,因为DNA样本显示了个人极为重要的个人信息。他可争辩说,他没有犯罪记录,其行为性质不严重且属偶然。他可争辩说,在这种情况下,提取其DNA样本而造成的对其个人隐私的侵犯是不公正的,因此法庭不该下达这一命令。”

Wong explained that the order for the taking of DNA samples is made after the accused is convicted or discharged as part of the sentencing stage of the trial, and the offender is given an opportunity to make arguments relating to whether it is in the best interests of the administration of justice to allow a DNA sample to be taken.  “An offender could argue, however, that a DNA sample is a very significant intrusion on personal privacy because DNA reveals significant information about an individual.  He could argue that he has no criminal record and that the assault was out of character for him or minor in nature.  He could argue that in these circumstances, the intrusion into his personal privacy through a taking of DNA is not justified and that an order ought not to be made,” says Wong.


In the Alberta Provincial Court case, the judge further noted that the physical intrusiveness of taking a sample, which though does not leave an immediate trauma as it might be precipitated by the police breaking into one’s home to execute a search warrant, invades an individual’s privacy. Since DNA samples lead to the indentification of a person’s genetic makeup, in the long term, the taking of the sample may impact that individual significantly in the future in terms of her privacy, and “the physical intrusiveness of taking a sample leads to the most significant level of intrusion of privacy that is possible. ”


 Should a convicted person be entitled to less privacy than a non-convicted individual? The judge noted that “in my view, no legal, moral or philosophical foundation to support the view that a convicted person is entitled to less privacy with respect to his very genetic makeup than anyone else…  A conviction does not mean that one’s privacy right in his or her DNA is less than it was before.”

虽然刑法条例假定法庭应下令对被定罪的一类罪犯提取其样本,且法庭多会下向一类罪犯的提取样本的命令,但Tony Wong律师表示,你不能想当然的认为刑法一定会向二类罪犯提取样本。

While under the Criminal Code, it is presumed that an order sought for a primary designated offender shall be made upon conviction, and therefore it would be more common for the court to authorize such orders, Wong indicates that “there is no presumption, under the Criminal Code, for for secondary designated offences that an order authorizing the taking of a DNA sample be issued.”
法官Jerry N.LeGrandeur认为,一类罪犯的犯罪性质被认为是最严重且凶残的,且在犯罪过程中多会留下DNA,但二类罪犯的犯罪行为却通常不会引起象一类犯罪那样程度的道德仇恨。他表示,“这名年轻的罪犯没有严重的犯罪史,虽然此次犯罪情节严重,但此类犯罪不会留下DNA,警方也不需要寻找DNA去破案.“

In the Justice Jerry N.LeGrandeur’s view, primary designated offences are considered the most serious and heinous and would involve circumstances where DNA may be left during the course of the crime, and offences set out in the secondary list do not generally carry with them the same moral repugnancy associated with the primary designated offences. He noted that “The young offender has never involved violence to other persons, though the offences committed are serious as but they not likely to yield DNA, nor are they offences where DNA is likely to be searched for by the authorities in any event.”

Tony Wong律师进一步表示,罪犯的律师会在法庭上提出与检控管相反的理由,律师会提出下达提取令对罪犯的隐私的侵犯及对其安全的威胁程度将远远超出保障社会安全及正当维护司法的公众利益,以及法官下令时应考虑的几项因素都倾向于不利于下达该命令。

Wong further indicates that the offender’s lawyer,who would  have to make the contrary argument to the procecution before the court, could argue that the impact of the order on the offender’s privacy and security of person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, and that the factors that a judge is required to consider in making an order do not favour the granting of the order.

法官Jerry N.LeGrandeur’s最后判决提取DNA的申请被驳回。他表示,“我不认为提取样本将会进一步维护司法,我也不能得出结论说提取样本会有利于国家利益。它仅仅意味着又有一名个人的DNA进入了数据库。”

Justice Jerry N.LeGrandeur’s finally dismissed the application by noting that “I do not believe that the taking of a sample will further the administration of justice, and I cannot conclude that the balance is clearly in favor of the States. It will simply mean that another individual will be added to a databank.”

Xu told Chinese News that “the application to take his DNA sample is baseless and ridiculous, since what I was charged with is non-sex-related assault, which has nothing involved with DNA.”


我们鼓励所有读者在我们的文章和博客上分享意见。We are committed to maintaining a lively but civil forum for discussion, so we ask you to avoid personal attacks, and please keep your comments relevant and respectful. Visit the FAQ page for more information.