Patricia Kosseim, Ontario’s information and privacy commissioner, is calling for clearer rules and more transparency in the wake of crime investigations in Canada where police have cast wide nets.Cole Burston/The Canadian Press
In Burnaby, B.C., police investigating the rape and murder of a 13-year-old girl staged an undercover operation at a Kurdish New Year’s celebration in hopes of capturing the perpetrator whose identity was at that point completely unknown.
After DNA analysis from the crime scene suggested the suspect was likely Kurdish, the RCMP posed as market researchers for a fake beverage company at the ethnic cultural festival. Undercover officers served tea to festivalgoers at random in more than 140 disposable cups, which were then discarded, swabbed and analyzed. The DNA found on the cups included the brother of the suspect – a key step that allowed authorities to later arrest and convict the killer.
This 2018 operation is among the police investigations highlighted in a new report by Ontario’s privacy watchdog, who is warning about a lack of guardrails in a new era of DNA-based criminal investigations.
As police increasingly rely on powerful DNA techniques to solve cold cases and identify suspects of serious crimes, Ontario Information and Privacy Commissioner Patricia Kosseim is urging checks-and-balances to prevent “unbridled genetic surveillance.”
Ms. Kosseim is issuing this call for clearer rules and more transparency following dozens of crime investigations in Canada where police have cast wide nets.
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One such DNA-based technique – known as investigative genetic genealogy – involves cross-referencing DNA from crime scenes with information members of the public have uploaded onto genetic genealogy websites that are searchable by police. This allows authorities to zero in on an unknown suspect through close genetic matches presumed to be relatives.
“The law on this topic, or on this new technology, is very murky,” Ms. Kosseim said in an interview. “This is a technology that has evolved very rapidly.”
The privacy commissioner’s report, released this week, includes 12 proposed guardrails for law enforcement agencies – the first of its kind in Canada, Ms. Kosseim said.
They include calling on police to release statistics on their use of new DNA investigative techniques and informing members of the public within 90 days if their genetic material has been analyzed.
Such disclosure processes would mirror what has already been done for decades in other police campaigns, Ms. Kosseim said. “Much like wiretapping or other invasive forms of surveillance, this after-the-fact notice is a way of protecting privacy and human rights.”
The privacy commissioner does not have the power to make binding recommendations but said she hopes to spur discussions about whether parameters should be placed on police probes.
In response to the report, Ontario Provincial Police spokesman Joe Brisebois said, “We recognize the public’s concern for privacy and emphasize that the investigative tools used by the OPP, including IGG, are subject to and used in compliance with appropriate laws.”
OPP Commissioner Thomas Carrique described IGG as “an absolutely essential investigative tool.” The force would not say often it had used it to solve cases.
In Toronto, police say they have used IGG to solve 59 cases, including identifying human remains as well as alleged perpetrators of historic homicides and sexual assaults. The force is developing its own policies governing the use of the technology, said spokeswoman Stephanie Sayer.
“While we are still reviewing the report in full, we appreciate the Information and Privacy Commissioner’s interest in the use of investigative genetic genealogy and the call for clear oversight and transparency,” she said.
B.C. RCMP Sergeant Freda Fong defended the 2018 Burnaby probe, saying police in high-profile homicides gather whatever evidence they are allowed to get.
“If the DNA analysis had resulted in a suspect profile of a different ethnicity, investigators would’ve assessed the options available to them,” she said in an e-mail. “Police will use all tools available to them within the law.”
Toronto police are using new investigative genetic genealogy techniques to help crack cold cases, including historical homicides. In November 2022, detectives said they used these methods to identify a suspect in a Northern Ontario community in connection with two 1983 killings in Toronto.
The Globe and Mail
Sgt. Fong said she knows the case well because she worked for years as a liaison officer with the family of the slain girl. “I know firsthand that the family, their ethnic community and many citizens of Burnaby were relieved that the accused was held accountable.”
The national police force developed preliminary guidelines in 2023 for the use of DNA techniques, according to an internal document obtained by The Globe and Mail.
The policy states that the techniques can be used to investigate homicide and sexual assault investigations, as well as kidnappings, national security probes and cases “in which all other viable avenues of investigation have been reasonably exhausted.”
“Consult with Crown counsel with prosecuting authority over the investigation to ensure identified legal or privacy concerns have been appropriately considered,” the RCMP document advises.
In the early 2000s, federal MPs passed laws and warrant requirements around a new National DNA Databank – a statute-enabled state repository of genetic profiles drawn from Canadian convicts and crime scenes.
Parliament has not fundamentally revisited DNA laws since, and no warrant requirements are currently in place for police to tap into newer pools of data controlled by the private sector that are the engine of genetic genealogy investigations.
In 2019, the U.S. Department of Justice published an interim guidance document on police probes involving investigative genetic genealogy, however, no such guidance exists at the federal level in Canada.
In a statement this week, Ian MacLeod, spokesman for the federal Justice Department, said, “The federal government is working with its provincial/territorial partners to examine transformative developments in DNA technology,” adding that this work is intended to “inform future discussion.”
The Ontario government is reviewing the commissioner’s report, said Brent Ross, spokesman for the Ministry of the Solicitor General.
Ms. Kosseim acknowledged that it could “take some time for decision makers, and certainly the courts, to determinatively decide on the legality of this technology.”
She said privacy officials need to take stock. “In other cases, it could be Black communities, Indigenous communities, who again come under the spectre of police surveillance or police suspicion for no other reason than shared DNA,” she said.
Companies such as GEDmatch have assembled searchable repositories of genetic data – which are essentially forests of genetic family trees – as police friendly tools in today’s burgeoning direct-to-consumer DNA industry.
Police say they have used investigative genetic genealogy to solve 59 cases in Toronto.Chris Young/The Canadian Press
These databases include hundreds of thousands of profiles. GEDmatch and others build them by encouraging people to hand over the profiles they bought about themselves and consent to having them aggregated and then searched by police.
These resources carry a cost to collective privacy, Ms. Kosseim’s report says, because they can facilitate the identification of “millions of Canadians” through their close biological relatives “without their knowledge or consent.”
Police who have obtained DNA from a crime scene use these genetic leads to home in on possible suspects by identifying close relatives. Next they can they confirm their suspicion through the practice known as “cast-off collection,” which involves extracting DNA from an item they watched being discarded, such as a coffee cup, a pizza crust or a piece of gum.
While such searches aim to identify particular suspects, they occur without judicially supervised warrant processes and may also capture the DNA of relatives. In 2021, Toronto Police used genetic genealogy to figure out the identity of a Moosonee man who killed two Toronto women in the 1980s. That investigation involved police searching garbage bags and other cast-off items from four of his brothers, before eliminating them as suspects.
Ms. Kosseim said that while courts have so far broadly upheld such searches to be legal, better rules are needed. “These kinds of tactics risk trampling into or evolving into basically unbridled genetic surveillance,” she said.