It all started with a sentence in a story about one of the men charged in the Cape Breton Regional Police’s “John Be Gone” undercover sting operation.
You remember John Be Gone — initiated after complaints from downtown Sydney businesses about sex workers on Charlotte Street, it saw two female police officers posing as prostitutes over 10 days in the summer of 2015. Under new federal prostitution laws that decriminalized selling sex but criminalized buying (or trying to buy) sex, the operation targeted johns and resulted in charges being laid against 27 men.
Police Chief Peter McIsaac held a press conference to name the men charged (and provide their ages and addresses) and the Cape Breton Post gave the story big play. As of March 2017, three of the men charged had been found not guilty and three had had the charges against them dismissed, but the publicity surrounding their cases (which Abbey Deshman of the Canadian Civil Liberties Association likened to “public shaming”) cannot be reversed.
Another of the accused engaged Sydney lawyer TJ McKeough who challenged the sting operation as an abuse of police power and as entrapment, but Provincial Court Judge Brian Williston rejected both arguments. McKeough’s client pled guilty but argued the minimum $500 fine amounted to “cruel and unusual punishment” under Section 12 of the Canadian Charter of Rights and Freedoms but again, Williston wasn’t having it.
In reading over the press accounts of the trials, I was struck by the fact that those men found guilty were ordered to supply samples to Canada’s National DNA Data Bank (NDDB).
What is the National DNA Data Bank, I thought, and why would men whose offenses were not serious enough to involve jail time be required to supply it with samples of their DNA?
Pre-historic
I’m not going to go into depth about what DNA (deoxyribonucleic acid) is or how it is used in crime scene investigations. I’m going to assume you’ve watched enough police procedurals to have a general idea how it works — it’s found in almost all human cells and it contains your genetic code, 99.9% of which you share with other humans but 0.1% of which allows DNA analysts to distinguish you from them. It can be collected via cheek swabs or hair samples or bodily fluids. (For a somewhat more nuanced explanation, I recommend this BBC video.)
I am, however, going to share with you a little bit of Canadian DNA Data Bank pre-history which I find compelling because it shows that Canada’s Privacy Commissioner, Bruce Phillips, was worried about it before it even existed, writing in a 1995 report entitled, Genetic Testing and Privacy:
…not every form of criminal activity would warrant including a criminal’s DNA profile in a genetic database. Databases should be considered only for persons who have been convicted of crimes involving serious violence. We acknowledge that further study is needed, but offer this as our initial position.
That warning was sounded three years before Canada’s DNA Identification Act was adopted (in 1998) and five years before it came into force (in 2000), and it’s been sounded ever since by the Office of the Privacy Commissioner (OPC), as the list of offenders included in Canada’s DNA database has gone far beyond those “convicted of crimes involving serious violence.”
DNA Data Bank
The RCMP opened its DNA laboratory to DNA casework in 1989 and the first major test for the program was the trial of serial murderer Alan Legere, for which DNA evidence was ruled admissable.
In 1995, the Liberal government under Jean Chretien passed Bill C-104 which amended Canada’s Criminal Code and the Young Offenders Act to allow a judge to issue a warrant allowing police to obtain DNA evidence from suspects in criminal investigations.
In 1997, the same government brought in legislation to create the National DNA Data Bank, which came into existence in 2000. It consists of the Crime Scene Index (CSI) and the Convicted Offender Index (COI), both of which are maintained by the Royal Canadian Mounted Police (RCMP), an organization now under fire for its “dysfunctional culture” and lack of leadership, so that’s a comfort.
According to a 2002 Justice Department consultation paper:
The nature of the crime, the seriousness of the crime and the likelihood of bodily substances being left behind by the perpetrator of the offence at the crime scene or on something related to the commission of the crime were factors in determining whether an offence is included in these lists. With a few exceptions [emphasis mine] the list of designated offences is limited to violent offences and sexual offences where there is a likelihood of bodily substances being left behind by the perpetrator of the offence. Primary designated offences are the most serious of these offences.
As of March 2016, the CSI contained 117,163 DNA profiles obtained from crime scene investigations of “designated primary and secondary offences identified in section 487.04 of the Criminal Code” and the COI contained 326,989 profiles collected from offenders convicted of those same designated primary and secondary offenses.
Rapid expansion
Back in 2000, when the NDDB launched, there were only 37 designated offenses (although some critics argued that was excessive). By 2009, Lisa Madelon Campbell, acting general counsel for the Office of the Privacy Commissioner (OPC), was telling a Parliamentary Standing Committee on Public Safety and National Security that the list had “undergone significant expansion” to “more than 250 offenses…depending on how you count them.”
In 2017, it’s even more extensive. And as the list has expanded, it has come to include offenses during the commission of which it seems highly unlikely a perp would manage to leave behind bodily substances; offenses like assisting a prisoner of war to escape, failing to stop at the scene of an accident, uttering threats, high treason, unlawful assemblies while wearing a mask, piracy, weapons trafficking and municipal corruption.
For the DNA database to function properly in these cases, you would have to, say, commit high treason, get caught, get convicted, provide a DNA sample, serve your time, then commit high treason again, only this time accidentally cut yourself while doing it. And before you say, “I could commit another crime. I could murder someone,” let me remind you that recidivism, on which the effectiveness of a DNA database depends, means a tendency to fall back into old patterns of behavior, not to discover new ones.
As the OPC’s Lisa Madelon Campbell told that parliamentary committee in 2009:
Rather than primarily being a means of linking DNA of offenders who have committed serious violent and/or sexual offences with DNA found at the crime scene of similar offences, the data bank is being populated by the DNA of offenders who have committed a much wider range of offences that are not necessarily violent or sexual in nature. The Office of the Privacy Commissioner views this as a fundamental shift away from the original rationale of the data bank – it was intended to apply only to designated offences which consist of violent and sexual offences that might involve leaving DNA at a crime scene.
The list of primary offenses is now divided into “compulsory offenses,” for which the court has no choice but to order the DNA sample, and “presumptive offenses” for which the sample must be ordered unless the offender convinces the court the requirement is “grossly disproportionate.”
Secondary offenses now include “listed” and “generic” offenses for which the prosecutor may request and the court impose a data bank order. Since the Harper government introduced Bill C-36 in 2014, “obtaining sexual services for consideration” has become a “listed secondary” offense.
How many crimes has the NDDB helped solve? I have no idea. The latest NDDB Annual Report (2015/2016) shows how many investigations the NDDB has “assisted” with — 44,016 since 2000 — and how many offender “hits” they’ve had — 39,539 since 2000 — but it doesn’t tell you whether these “hits” resulted in convictions so there’s no way to gauge how effective the database has been.
(Other interesting stats which call out for exploration but are beyond the scope of this article: since 2000, they’ve taken two samples from the same offender 13,264 times. Most intriguingly, since 2000, they’ve apparently identified 265 pairs of identical twins.)
A step too far
The rapidly expanding list of offenses connected to the DNA database might seem to a cynic like a backdoor way of achieving what police in the UK had hoped to achieve from the get-go — a database including the DNA of the entire male population of the United Kingdom. According to a 1990 report by the Home Affairs Committee of the British House of Commons:
The development of a database of DNA profiles which would supplement existing criminal records is a policy we have advocated before. We asked the [UK Data Protection] Registrar to comment on any particular data protection concerns he might have. He…opposed the establishment of a DNA database on the whole male population, a move that has been mooted by the Metropolitan Police Commissioner: “I would feel it a step too far in data protection terms simply to collect information on the whole male population on the basis that you might not prevent a crime but you might prevent a second one.” Although the creation of a DNA database on the whole male population would undoubtedly be expensive, we consider it a development that would provide considerable benefits for the police.
And here’s the crazy part — the UK police made a pretty good stab at creating that database. Until recently, according to the watchdog group GeneWatch UK, British law “allowed the permanent retention of DNA samples and records from anyone arrested for virtually any offence, regardless of whether they are charged or convicted.”
As GeneWatch head Helen Wallace told the Associated Press in 2013:
A lot of British people were very shocked to find themselves or their children ending up on the database for minor alleged offences such as throwing a snowball at a car.
The law was overturned by the European Court of Human Rights in 2008. In 2013, the UK’s Protection of Freedoms Act took effect as a result of which, British authorities removed 1.7 million DNA profiles (strings of numbers derived from DNA samples) of children and innocent people from the database and destroyed 7,753,000 DNA samples.
In the United States, on the other hand, the Supreme Court ruled in 2013 that the police could take DNA samples from people arrested for serious crimes, which is now the practice for both the federal government and roughly half the states. That same year, Canada (in the person of then-Justice Minister Peter MacKay) also flirted with the possibility of collecting DNA samples from people arrested for certain crimes, but the plan did not become a reality.
And although it is not yet legal in Canada, countries elsewhere have waded into the murky world of “familial” DNA, where samples from innocent relatives are used to track down suspects.
All of which makes a question asked (and answered) by Canada’s Privacy Commissioner in 1995 seem more relevant than ever:
…should it be the object of government privacy policies to make life easier for the police, as the UK Home Affairs Committee seems to imply? Democracies accept that police efficiency must yield to respect for fundamental human rights — in this case, the right to privacy. The availability of DNA technology should not be allowed to undermine this principle.
Another step too far
Which brings us back to John Be Gone.
Because they were charged with a designated secondary offense, the prosecutor could (and did) ask that the men found guilty be ordered to provide a sample to the DNA Data Bank and the judge agreed that it was “in the best interests of the administration of justice” to do so.
I read the court documents connected to one of these cases, and it shows the prosecutor asked for the DNA order, the defense lawyer didn’t object and the judge ordered it. The prosecutor doesn’t seem to have been required to make a case for the DNA order, which is too bad, because I would have liked to have read it. I would like to know what crime the Crown felt these men might commit in future that would require DNA to solve.
The suggestion in the court documents mentioned above is that “some” johns “had a history of violence” and posed a threat to the sex workers on Charlotte Street. But none of the men charged in the John Be Gone sting was charged with a violent offense — that is, the kind of offense the DNA Data Bank was originally set up to deal with.
Some will argue that worrying about the johns’ right to privacy is losing sight of the real victims in this story, the sex workers. But perhaps the most frustrating aspect of the whole situation is that as a means of helping sex workers, sting operations like John Be Gone are deeply questionable.
I spoke to Brenda Belak, a lawyer with PIVOT, a Vancouver-based sex workers’ rights organization, after reading an article she wrote citing Sydney’s John Be Gone sting and a similar operation in Calgary (“Northern Spotlight”). Belak told me:
We’ve seen a lot of stings over the past year under various operations, including Operation Northern Spotlight, in which police claim that they are using enforcement as a way to “help” women selling sex. This approach fails to appreciate that for those dealing with substance use or insecure housing, the income they get from selling sex is critical, and cutting off that source of income does not make their lives easier or better. A better way to support sex workers is to make non-judgmental services that meet their needs available in the community. When police harass sex workers and focus on arresting their clients, sex workers tend to work in conditions of greater risk, where they are less likely to have adequate time to screen clients properly and negotiate the terms of dates clearly. As long as buying sex is illegal, sex work is a crime, and the stigma associated with it affects sex workers in all aspects of what they do, from dealing with police to accessing health services to interacting with other members of their communities.
The Vancouver Police Department does things differently — albeit, because it failed sex workers so abjectly for so many years. Says Belak:
The Vancouver Police Department’s approach in its Sex Work Enforcement Guidelines is a response to an epidemic of violence against sex workers during which police failed to respond adequately or appropriately. The VPD has realized that police cannot form relationships of trust with those doing sex work if they are constantly arresting or harassing their clients, and as long as that is true, sex workers will not go to the police when they are the victims of crimes. Police exercise discretion in a wide range of situations. There’s no reason why other police forces cannot follow the VPD’s lead and focus on only enforcing the law in situations of violence and exploitation, not in situations involving sex between consenting adults.
I started out questioning the National DNA Data Bank and I end up questioning the approach of local police to sex work enforcement — all because of one line in a court report. And I haven’t even touched on the debate over just what the DNA samples stored by law enforcement might one day, as the science continues to advance, reveal about the donors. Or problems with bias among DNA analysts. Or problems with contamination in DNA collection and storage (which led me to the amazing story of “The Phantom of Heilbronn,” a German mystery woman connected to 40 crimes who turned out to be a — completely innocent — factory worker who had contaminated the swabs used to collect forensic evidence.) Or statistical errors.
If nothing else, today’s exercise has illustrated the importance of asking questions.
Of course, I can’t help asking questions. It’s in my DNA.
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