Since its introduction in Canada in 1988, forensic DNA analysis has been instrumental in securing convictions in hundreds of violent crimes, from homicide to sexual assault. Until recently, however, there has been no legislative framework to regulate its use. This article examines Canada's Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis) that received Royal Assent on July 13, 1995. It represents the first attempt by Parliament to provide legal authority for the compulsion of bodily samples as a direct response to the development of genetic testing. The principles of human genetics are outlined in the first part of the paper. The second part traces the historical development of DNA testing from its introduction in England in 1988 to its present-day use in Canada. The third part details the impact of the Constitution on the forensic DNA provisions of the Criminal Code. It will be shown that the new legislation, despite its laudable aims, infringes sections 7 and 8 of the Canadian Charter of Rights and Freedoms. The analysis will demonstrate that it is unlikely that the violations of these rights can be saved by section 1. This will be followed by a discussion of the potential impact of section 24(2) on the new legislation. The paper concludes with an assessment of the constitutional validity of DNA data banks. While the present law does not authorize such a measure, it is clear that this is the legislative course that has been charted by Parliament. It will be argued that the establishment of a DNA data bank is inconsistent with the notions of privacy, liberty and personal security that exist in Canadian society.
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Robert E Astroff, "Identity Crisis: The Charter and Forensic DNA Analysis in the Criminal Justice System" (1996) 5 Dal J Leg Stud 211.