Sunday, May 17, 2009

These fingerprinting proposals are a bit of a problem

While the opposition, both NDP and Liberals are making noises of objection, there are some terrible privacy issues in the Harper government's proposed set of amendments to the Identification of Criminals Act: "Ottawa's plan to fingerprint those not yet charged under fire." The amendments would allow someone who is not charged with an offence to be fingerprinted upon arrest. So in effect, even if you are never charged, your fingerprints would remain in a police database and the potential for abuse is ripe. Clayton Ruby effectively sums up the problem:
“Providing fingerprints is self-incrimination and the Constitution protects us from this. The line that is drawn is when you are charged. And to allow police to compel you to incriminate yourself before that moment is open to abuse,” Mr. Ruby said.

“The example that I use is the lawful detention of somebody in the street without reasonable and probable grounds – but on suspicion.”

Mr. Ruby said he was skeptical of the rationale Ottawa is offering for this. “This has nothing to do with streamlining. [That's] just nonsense.”
More of the predictable law and order posturing without due regard for privacy and Charter rights. Perversely placing the onus on the citizen to have themselves removed from the database, if that will at all be an option that is offered. It would be preferable if this data was not at all collected until charges are laid. But if this is going to proceed, destruction of these records should be a legal obligation on the state if no charges are laid. And immediately.  

As the Jurist service notes today, in December the European Court of Human Rights smacked down such legislation from the UK and the House of Lords similarly weighed in.  This bit of accepted reasoning from the Lords in November is instructive for Canadian politicians:  
Baroness Hanham summed up the amendment: "The purpose of the amendment is to ensure that anyone who is on the database has access to guidelines that will tell them how to get off the database ... Those who are innocent should not be on any database. They should not be under the eye of the law of this country. They are innocent. They have no truck with the law and their DNA should not passed to Europe for whatever reason."

What is needed instead is a clear, publicly available summary of rules for taking and storing DNA samples.

Hanham said: "Regulations laying out the guidelines on the whys, wherefores and means of DNA and other samples being either retained on or removed from the police national computer that are clear, explicit and user-friendly are long overdue. Changes to the whole system during the passage of the Criminal Justice Act in 2001, which turned the assumption of the destruction of DNA at the end of a case into the assumption of retention, upset the presumption of innocence. The balance at present is not in favour of the innocent.

"Endless justifications may be put forward by those who believe that the current use of the database is too restricted and should be widened into one that is universal. However, it is perhaps now time to listen to the voices of those in favour of the current situation, and of those who are frankly appalled by the possibility of having their identifying materials held indefinitely by the police." (emphasis added)
The Brits, however, are coming right back with absurd 6-12 year time frames, in what they say are the "serious" cases, for destruction of the fingerprints of innocent persons. 

It's too much to ask, I suppose, that procedural safeguards be the norm in legislative drafting under these Conservatives. Hopefully the opposition will be able to push them on it because theoretically, you know, that's the way minority government is supposed to work.

(See also Politics - for the people on this.)

Update (6:00 p.m.): And on further reflection, what are we doing plowing down this road...six months to a year behind what other nations dealing with the same issues are finding to be sorely wrongheaded? Shouldn't we benefit from common experience and issues raised that are certainly to be applicable here when the legislation is challenged in court, wasting more time and money?