Ex Parte Order to Take Sex Offenders' DNA Constitutional, Says Supreme Court of Canada

Rodgers (R) was convicted of a sexual offence. Before R's prison term was completed, the Crown obtained a warrant from a judge on an ex parte application to permit the prison authorities to take DNA samples from R. R applied to another judge, unsuccessfully, for a declaration that the issue of the warrant was unconstitutional, in part because the authorizing warrant was obtained without notice to R. R appealed to the Ontario Court of Appeal, which held that R ought to have been given notice of the hearing to obtain the warrant. The Crown appealed to the Supreme Court of Canada. In a split, 4-3 decision, the Court ruled that granting a seizure order for the taking of a convicted sex offender's DNA without notice to the offender was not an unreasonable infringement of an individual's privacy interest under the Charter of Rights and Freedoms. The majority held that society's interest in identifying sex offenders is an important one, the impact on the physical integrity of targeted offenders is minimal and that Parliament had adequately answered any heightened concerns about the informational privacy interests of the individual by restricting the use of DNA sampling for identification purposes only. The Court reasoned that by the offender's criminal conduct, he was already known to law enforcement officials and may be a logical suspect in future investigations, independently of any application to take and file his DNA in a databank. DNA sampling, said the Court, is analogous to the taking of a photograph or of fingerprints. Writing for the dissenting justices, Justice Binnie, perhaps the strongest advocate for privacy rights in Canada's highest court, argued that the ex parte nature of the application for DNA sampling was unreasonable under the Charter. The DNA data bank constituted "a substantial and novel invasion of privacy" and that the "notice and an opportunity to participate should be given to those whose privacy interests are at stake, except where competing interests require otherwise". Although the case dealt with a criminal law matter, it gives increased guidance how Canadian courts will weigh the impact of new, privacy-invasive technologies on an individual's Charter privacy rights. For the full text of the decision, R v Rodgers, 2006 SCC 15, visit: http://www.canlii.org/ca/cas/scc/2006/2006scc15.html Summary by: Jason Young