The social uses of DNA in the political realm or how politics constructs DNA technology in the fight against crime

Abstract

Research has shown that the adoption and integration of new technologies in professional environments and daily lives depend less on their objective characteristics and “real” performance than on representations and hopes built into those technologies. This paper will focus on DNA technology and the meanings and expectations invested into it by actors who participated in the debate surrounding two bills on DNA identification in Canada. Through this process, we will uncover the symbolic conditions that allowed for the introduction of the National DNA Databank as a crime-fighting tool: first, the minimization of the power of the substance and the idealization of the DNA databank potentialities; second, the scientification and professionalization of the police through DNA; and third, the reconciliation of Canada's two identities, that of the criminal justice innovator and human rights defender. Those are some of the key symbolic elements that made the creation and expansion of the DNA databank possible.

Keywords:

• social uses of technology
• DNA databank
• criminal policy
• Canada

Introduction

Signs of salvation or catastrophe, the “new” technologies are invested with an unusual power. DNA technologies are no exception – on the contrary. The essence of life, the stuff of gods, genealogy, alterations to the genetic code in order to defy crime, diseases, death, the potential of DNA is multifaceted and its power seemingly infinite (Nelkin and Lindee 2004). Moreover, the ideas swirling around it appear to have a life of their own, disconnected from the scientific basis of DNA technology. Reality? Ignorance? Manipulation? How can we make sense of the way people understand DNA technology, especially in a context emotionally charged like the criminal justice system, and how did these representations lead to the adoption of a DNA databank law in Canada?

A theoretical framework like the sociology of social uses (Millerand 1998, 1999) allows for an analysis that supersedes a mechanistic and will-centered view according to which technology necessarily achieves the intended aims of the creators and promoters – and only them – and is a simple addition to the existing body of knowledge and tools. In contrast, the sociology of social uses has shown that technology, its potentialities and effects are constructed by a whole array of social factors at the macro and the micro levels. Moreover, the same approach has shown that technology transforms the social milieu in profound ways. These interrelations between the social and technological worlds are felt at all stages of the process: the scientific discovery, the diffusion of the technological object and its actual usage by the people.

For example, the course of scientific discovery is suffused with subjective evaluation, social conditions and influences that are unrelated to purely scientific methods and criteria: from the economic structures of a society to the competition for funding between laboratories, via personal relationships between researchers (Ravetz 1971, Latour and Woolgar 1996 [1979]). Moreover, once the scientific discovery is achieved and incarnated in an object, its dissemination and acceptance in the community are also mediated by social influences: its perceived availability, cost, desirability, etc. (Rogers 1983). Finally, at the appropriation stage, there is always a space for innovation on the part of the users that creates a discrepancy between the use anticipated by its creators and the effective uses of the technological object.

Therefore, rather than thinking in terms of technological determinism whereby the technology imposes itself and unilaterally improves the life of its users, we should consider a dynamic effect whereby the milieu and its people also transform the adopted technology. In brief, technology transforms, is adopted and adapted; so are the objects in which it materializes and the representations that are associated with it (Chambat 1994).

The concept of social use does not refer simply to the utilization, the action of concretely operating a technology, but also to the social representations that underlie it. The study of the social uses of technology goes beyond the study of practicalities to encompass its symbolic appropriation. In fact, research has shown that the adoption and integration of new technologies in professional environments and daily lives depend less on their objective characteristics and “real” performance than on representations and hopes built into those technologies (Mallein and Toussaint 1994).

Adopting the sociology of social uses as a frame of reference, this paper will focus on the representations and hopes built into the DNA technology by actors who participated in the debate surrounding two bills on DNA identification in Canada. Through this process, we will be able to uncover the symbolic conditions that allowed for the introduction of the National DNA Databank (NDDB) as a crime-fighting tool. Our analysis points at three of them. First, the minimization of the power of the DNA profile and the idealization of the DNA databank potentialities; second, the scientification and professionalization of the police through DNA; and third, the reconciliation of Canada's two identities, that of the criminal justice innovator and human rights defender. More than the actual and verified effect of the DNA identification tools, those are some of the key symbolic elements that made the creation and expansion of the DNA databank possible. DNA technology is not only a tool that answers a need at the fieldwork level, it is a social object constructed by the different stakeholders in the political process in a way that makes it acceptable, if not desirable.

Studies on DNA in the criminal justice system have blossomed since the mid-1980s and a brief summary of those will help situate the social uses perspective adopted in this paper. Following this first section, the next will describe the legislative context, the material and method used as well as the social and political actors involved in the process. After that, the analysis of results will lead to the discussion of the appropriation dynamics of DNA in the context of the fight against crime.

A brief overview of research on DNA in the criminal justice system1

Within the literature on DNA in the criminal justice system, we identify two different categories reflecting two different foci of analysis: DNA as a forensic substance and DNA as a crime-fighting tool and evidence.

DNA as a forensic substance

This category of research on DNA in the criminal justice system stands at the border of biochemical knowledge and forensic sciences. Here, we learn that DNA analysis technologies evolve at a quick pace. While initially DNA identification results suffered from the flaws in technology, errors in sampling the bodily substances and misinterpretations (Ford and Thompson 1990), with the latest advances, ironically, DNA technology also suffers from its successes. In fact, with the LCN and the STR technologies, it is now possible to recover a genetic profile from an object through a secondary transfer, i.e. recovering the profile of person A on an object not because A touched the object but because she shook the hand of person B who touched the object afterwards (Wise and Li 2003). Those secondary transfers can also result from the investigation process itself, meaning that a DNA profile can be carried from one crime scene to another though the tools used to collect samples (Raymond et al. 2004). Moreover, the recovery of the genetic profile in a sample is important but needs to be interpreted in the light of the frequency of occurrence of that profile within a population. Therefore, the match between a sample recovered on a crime scene and a sample from a suspect is always probabilistic.

The research on DNA as a forensic substance reminds us of two things. First, recovering a profile in a sample and matching it to someone are just the first parts of a crime puzzle that needs to be solved. Second, the “hard” science behind DNA identification is far from straightforward and infallible. The human and social utilization of this technology adds an additional layer of uncertainty.

DNA as a crime-fighting tool and evidence

This second category of studies takes us into the police and tribunals environments. The “DNA as a crime-fighting tool and evidence” category refers to those researches on the use of DNA and DNA databanks in the investigation process and in the determination of guilt or innocence.

A large part of this literature promotes the effectiveness of DNA and DNA databanks in investigations claiming they would allow for rapid identification of suspects, elimination of others as suspects, saving of time and money as well as the reduction of waiting periods for victims and their loved ones (Kuperus et al. 2003, Asplen 2004, National Institute of Justice 2004). Accordingly, some of those studies make implicit or explicit pleas to incorporate the profiles of more and more people, from those guilty of violent offenses to those found guilty of crime against property (Cronan 2000–2001, Asplen 2004, House et al. 2006). Research also alerts us to serious hurdles in using DNA as a crime-fighting tool: the choice of what samples to collect, the absence of the perpetrator's DNA or the multiplicity of other people's DNA on a crime scene (Hibbert 1999), the high costs of DNA collection and analysis making it hard to justify its use for petty crimes (Tracy and Morgan 2000), the backlogs that accumulate in the processing of samples, even for very serious crimes (National Institute of Justice 2004) preventing the provision of results in a timely manner, etc.

Despite the fact that it has been used for a long time, DNA still brings about challenges in the courtroom. The probabilistic language of DNA often leads attorneys, juries and judges to exaggerate the power of this evidence and misinterpret it (the prosecutor's fallacy) (Giannelli 2005). This is due in part both to the magical power numbers have for non-specialists (Derksen 2000) and to the so-called “CSI effect” (Cooley 2004). Therefore, it is not surprising that there is a strong correlation between the presence of DNA evidence and not just a guilty verdict but a more severe punishment as well (Briody 2004).

The research on DNA as a crime-fighting tool and as evidence shows that DNA is shaped by its users, here the police and tribunals, and their context. Hence, the use and effectiveness of DNA as a crime-fighting tool and as evidence is mediated by an array of social, symbolic, organizational and economic factors.

Research question, legislative context and material

This brief review of the literature presenting some aspects of the social uses of DNA by the laboratories, the police and the tribunal suggests an important gap: how did we get to adopt DNA as a crime-fighting tool in the first place? The purpose of our contribution is to partially fill this gap and highlight how, earlier on, in the policy formulation process, the idea of DNA was constructed by the policymakers. This neglected part is crucial. As Gerlach affirms:

Obviously, a new technology does not move directly from the research laboratory to the practical application. It must first pass through a social context of existing power relations and structures of meaning that sets the limits on when, where and how it may be applied and that order it in terms of what it means for a society. (2004, p. 7)

Hence, we conceive of the legislative process leading to the introduction and expansion of the DNA provisions in Canada as an early step in the adoption process of the DNA technology. It is this political and official adoption that sanctions and tailors the implementation and utilization of DNA by the laboratories, the police and the tribunals in specific cases. What are these representations and hopes that are built into the DNA technology that act as symbolic conditions of possibility for its entry into the criminal justice system?

In Canada, it is officially since 1995 that the legislation allows for a warrant to collect DNA from a potential suspect. In 2000, Bill C-32 came into force. Basically, it added to two lists of designated offenses: the primary designated offenses list, made up of sexual and violent offenses,3 renders a DNA collection order automatic for people who have been found guilty; the secondary designated offenses list, made up of offenses considered less serious,4 leaves the DNA collection order to the judge's discretion. Bill C-3 also created the National DNA Databank, an institution under the jurisdiction of the Canadian federal police. In 2005, Bill C-13 was adopted5 and widened the scope of DNA collection. Through that bill, some secondary designated offenses became primary designated offenses (e.g. robbery, breaking and entering, etc.) and new offenses were added to both lists of offenses.6 Moreover, C-13 allows for DNA collection from people found not criminally responsible on account of a mental disorder for designated offenses and provides for retroactivity.

As has been shown by others before us, the legislative process offers a “moment of interest” to capture the social uses of technology since it is by definition a discussion arena where different views and interests intersect (Hosein 2002). This is where we have decided to locate our research. More precisely, we have decided to study those bills at a particular phase of the legislative process: their hearing at the standing committee of the House of Commons.7

For the two selected bills, the standing committee decided to call for briefs and hear individual members of the public as well as relevant organizations. Those briefs and, to a lesser extent, the minutes of the standing committee, comprised the empirical basis of our research. Overall, our material consists of all the briefs sent or testimonies made (briefs from 24 groups for C-3 and briefs or testimonies from 25 groups for C-13) to the standing committee of the House of Commons. Each brief or testimony underwent a content analysis aimed at identifying the general position adopted by the individual or group, the modifications suggested to the two bills under study, the series of claims made about DNA and its role in the criminal justice system as well as the evidence used to back up those claims.

The briefs or testimonies come from very diverse individuals and groups but two clusters of individuals and groups can be identified on the basis of their general position regarding the use of DNA in the criminal justice system and the bills introduced.8 The first cluster is favorable to the use of DNA for criminal identification purposes and the two bills proposed as is or else wishes for a more extensive use of DNA. This cluster is made up of the representatives of the federal and provincial justice and solicitor general ministries, officials of the federal police in Canada, municipal police services and chiefs of police associations, some members of parliament as well as different victim groups. We will refer to this group as the approving cluster. A second cluster is either generally favorable to the use of DNA in the criminal justice system, but is cautious and worried about the possible rights infringement, or unfavorable. Many lawyers associations, NGOs working with mentally ill or criminalized people, human rights' groups, women's' associations as well as a group working with wrongfully convicted people make up this cluster. We fuse those actors into the cautious cluster, because what differentiates them is the degree more than the substance and structure of their representations. The next section will show the social uses of DNA made by the two clusters under study during the legislative process.

The social uses of DNA in the policy formulation process

In order to identify the social uses of DNA or the ways politics constructs DNA technology we asked three interrelated questions of our material: (1) Is DNA banalized or idealized by the social and political actors involved in the legislative process? (2) Is the introduction of DNA seen as a technology with the potential for social evolution or social revolution? In other words, is DNA a criminal identification tool that pushes the existing technology forward or instead breaks away from it? (3) Is DNA mobilized to redefine the identities of the social and political actors involved or, on the contrary, does DNA affirm existing identities? This model of analysis emerged from studies on the appropriation of different technologies by their users (Mallein and Toussaint 1994). The premise behind this model is that technology and the technological object in which it is incarnated contain a symbolic aspect that configures its material and practical use. The latter cannot be understood without the former.

Aside from helping to map and compare the representations held by the two clusters of groups involved in the legislative process, these three conceptual dyads are keys for uncovering the meanings DNA has for those groups in relation to their vision of the criminal justice system and the role they create for themselves within that system.

Banalization and idealization

In this analytical context, banalizing and idealizing don't equate to fabricating truth about DNA but rather emphasizing or downplaying, often exclusively, either its strengths or its risks. When assessing whether the two clusters of actors involved in the policy process for C-3 and C-13 bills banalize or idealize DNA, our material shows that it is important to distinguish between the perception of DNA as a substance per se, the DNA collection process and the DNA banking process. Doing so allows us to transcend the seemingly chaotic and contradictory positions adopted by the members of each cluster and show in a more nuanced fashion the ways that representations convince and persuade in the political arena.

The nature of DNA

Some members of the approving cluster who speak directly to the nature of DNA propose a minimalist conception of it (Williams and Johnson 2004). For them, DNA is comparable to fingerprints; some groups emphasize the wording to show the similarity. Referring to a newspaper article, a group affiliated with the police explains:

The last article included the statement: “In the past decade, DNA evidence, also known as genetic fingerprinting, has become an increasingly important tool in new and old homicides, as well as clearing the wrongfully accused.” The key word in the above quote is “fingerprinting”. Given the proven, successful use of DNA evidence, the question for Parliamentarians should be why DNA, the most effective identification tool available to law enforcement, should be unduly hindered in its use. Put another way, would we accept similar restrictions in the collection of fingerprints? (Emphasis in original)

Other members of the approving cluster have a conception of DNA that we can classify, following Williams and Johnson (2004) as “biometrical pragmatism”. This conception acknowledges that DNA is a “powerful biometric identifier” and provides much more information than simple fingerprints. At the same time though, biometrical pragmatists are not preoccupied with the ethical safeguards needed to protect such sensitive information. In the case of the political actors we are referring to here, the lack of interest in ethical safeguards is related not so much to their high confidence in the criminal justice system as an ethical body but rather to the secondary status of the law breakers. As a victims' group puts it:

The real difference between DNA and fingerprints is in the information that can obtain or will one day be obtainable through a DNA sample. Many Canadians are concerned about their privacy, but most Canadians will not have their DNA submitted to the national Databank. If asked, we believe most Canadians would agree the taking of a DNA sample from someone charged with a serious criminal offence is an acceptable practice given the potential public safety benefits.

On the other hand, when members of the cautious cluster speak of the nature of DNA, their conception falls clearly under the category of genetic exceptionalism (Williams and Johnson 2004). Here, the sensitive nature of DNA is put forward and the necessity for stringent regulations and safeguards in its collection, use and access is strongly emphasized. As a human rights agency says: “The information contained in a DNA sample poses a profound privacy threat to individuals and thus merits the strongest protection.” Not only is DNA eloquent about precise individuals but, some geneticists group adds:

However, […] it is the potential of obtaining additional private genetic information about an individual, and indeed their family members, that distinguishes DNA technology from other less sensitive methods of identification, such as fingerprinting. There must be stringent regulations in place to ensure that specimens are used only for the purpose collected to establish forensic genetic profile …

The exceptionalist conception of DNA is even clearer when the same group adds certain important information to the debate:

[…] Right now we consider these 10 or 11 markers anonymous markers of no clinical significance. In fact, we know there is a group of disorders that are caused by expansions of exactly the same type of markers, so it's possible as we learn more about human genetics that those markers could cease to be anonymous and actually be predictive of a genetic disease or condition.

Strangely enough, this information is never rebutted or picked up in the debate.

The way DNA, as a chemical substance, is conceived of and presented in the political debate enables the approving cluster of groups to put forward arguments for the initiation or widening of the DNA collection process.

DNA collection

The debate on DNA collection centers around the degree of intrusiveness that the procedure entails. Like the nature of DNA, the act of collecting it is conceived very differently among the groups. The groups define differently what intrusiveness is. Moreover, while some banalize the intrusiveness of DNA collection, others put emphasis on it. Some members of the approving groups insist on the apparent simplicity, swiftness and painlessness of the process, even in comparison to the traditional fingerprinting. As a member of parliament explains:

How could there be any constitutional argument that it is too intrusive to ask a convicted criminal of these primary or secondary offences to give DNA? We're not talking necessarily of very intrusive. [Talking to another member of parliament] I notice the quote you read said “blood samples”. It didn't indicate any other samples, but we know that these DNA samples can be as non-intrusive, if I can use that expression, as fingerprinting – a simple swab in the mouth, as simple as that. When you take fingerprints, you have all this ink all over your hands. You put them down on the pad and you have to wash that off. With the swab of DNA, it's a swab in the mouth and that's it. […] There's nothing that is in any way permanent.

A supporter of crime victims goes as far as explaining that DNA collection, in the form of a swab in the mouth, cannot be seen as intrusive since the mouth, and the entire human digestive tract, is in fact topographically outside the human body. Taking the emotional stance, the representative of a victims' group exclaims: “It is difficult for us to explain the concept of the intrusiveness of a pin prick or mouth swab to a rape victim or parent of a murdered child”.

It is interesting to note that the approving cluster tends to define intrusiveness strictly in terms of penetration of the body, leading to a banalization of the act of gathering DNA. On the other hand, the cautious groups see the issue of intrusiveness not in mechanical but rather in informational terms.

Hence, what is seen as intrusive is not so much the act of gathering DNA itself but the eloquence of the data. Those groups are not as preoccupied with bodily intrusion as they are with privacy intrusion. As a lawyers association explains: “DNA […] is an intrusion into both the bodily integrity and privacy of an individual. Of these two, the more significant is the privacy intrusion through state retention of the information contained in the DNA sample”.

Not surprisingly, defining the intrusiveness of the collection procedures in terms of bodily intrusion, rather than privacy intrusion, induces a minimizing effect. This effect leads the approving cluster to require the limitation on the judge's discretionary power and the will to collect DNA earlier in the process (at the arrest rather than the condemnation stage).

DNA banking

Finally, idealization and banalization of DNA also occurs in the way the DNA databank is portrayed by the different clusters. Contrary to the two preceding topics though, the spectrum of positions is narrower here.

Approving groups clearly promote the necessity and success of the DNA databank:

The National DNA Data Bank has assisted in solving the most serious crimes – such as murder, attempted murder, and sexual assault … (Law enforcement group)

The DNA databank brings “immediate public safety benefits”. (Government's officials)

The reality is simple – the more DNA samples of criminals we submit to the databank, the more crime we will solve. (Victim's group)

DNA databank is “the most effective tool”. (Police-related group)

We have been struck by the success of the DNA Databank. (Victim's group)

Similar affirmations can be found, repeatedly, among the large majority of briefs and testimonies. Indeed, there is little opposition to the banking of DNA in the legislative process leading to the adoption of bills C-3 and C-13.

Reading the briefs and testimonies, one cannot help but equate the use of DNA and the matches produced by the DNA databank with a guilty perpetrator behind bars. Indeed, through the whole discussion, most of the political and social actors ignore the fact that a match is a probabilistic calculation and not a certainty, that a match doesn't mean guilt but only presence at a crime scene, that technical problems can and do arise, that DNA is just one proof among others, that the defense can challenge DNA, etc. In brief, throughout the legislative debate, the concepts of DNA and the DNA databank undergo an important simplification process – to the point where they become vested with magical powers.

Notwithstanding its so-called “success”, the approving groups affirm that the DNA databank's positive impact could be even greater if it wasn't for the obstacle the law poses, hence the importance of widening it:

Expanding the definition of primary and secondary designated offences […] will enable the DNA databank to fulfill its purposes more effectively. [relying on a court's interpretation]: deterring potential repeat offenders; promoting the safety of the community; detecting when a serial offender is at work; assisting in the solving of “cold” crimes; streamlining investigations; most importantly, assisting the innocent by early exclusion from investigative suspicion or in exonerating those who have been wrongfully convicted. (A provincial justice ministry)

The cautious groups are less vocal when it comes to criticizing the success of the DNA databank. Some of these groups clearly state that it has a “vital role in law enforcement”. Their reservations are mainly related to the protection of people's rights (confidentiality, illegal uses of DNA) and not to the existence of the databank itself.9 Of course, the defense lawyers' groups tend to minimize the power of the databank by saying that a match should only be seen as contributing evidence. A human rights group also notes that there is little empirical evidence for the gateway crime hypothesis and that we should verify the quality and usefulness of the databank before widening it. But one of the most forceful arguments against the power of the DNA databank and its expansion certainly comes from a women's group and an association defending wrongfully convicted people. According to them, the criminal justice system is warped, biased against the underprivileged and, once a suspect is identified, it begins to suffer from tunnel vision. The new crime-fighting tool will worsen these distortions rather than remedy them. Though they are voiced, those arguments do not impact on the representation of the DNA databank circulated in the discussion. The dominant discourse embraces the powers of this new tool.

To grasp the extent to which DNA technology is idealized or banalized by the political actors in the legislative process, it was necessary to distinguish between the substance per se, and its collection and banking. In doing so, we showed that the groups adopting a minimalist and pragmatist conception of the substance and framing the collection process in terms of bodily intrusion are also the ones idealizing the power of the DNA bank as a crime-fighting tool. On the other hand, the actors who adopt an exceptionalist conception of DNA as a substance and who present the intrusive power of DNA collection in terms of privacy intrusion are also the groups who have some reservations concerning the DNA databank. Nevertheless, those reservations don't shake the predominating conception that the DNA databank is a somewhat miraculous tool of law enforcement.

Those representations of DNA, its collection and banking process merge with institutional representations. How do those banalized and idealized representations fit in with the ideas held about the criminal justice system?

Social evolution and revolution

Even if it is introduced as an “innovative” and “groundbreaking” tool, DNA is also presented by the approving groups as a timely technology that the Canadian criminal justice system is ready for. The representation is that other “model” countries have had a DNA databank for longer; those databanks are bigger and seemingly more efficient. Those groups send the message that it is time Canada stopped lagging behind:

The [Canadian] data bank now predicts that 5% of the crime scene profiles entering the data bank will result in a match with a previous offender's profile. While this is a significant achievement, it pales by comparison to the United Kingdom, where there is a 40% chance that a crime scene sample will match immediately with an individual's profile on the National DNA Database. […] The [group] supports the incremental improvements contained in Bill C-13 … (A law enforcement group)

These kinds of comparisons with other countries, and there are many in the briefs, “naturalize” the creation and expansion of the DNA databank. Listening to approving groups, it seems that the “revolutionary” aspect of the technology, an element that could exacerbate resistance, is counterbalanced by the apparently prudent approach adopted by the Canadian government. Canada instituted a DNA databank after countries such as the United States and the United Kingdom experimented with it. The C-3 bill that created the databank allowed DNA collection for a limited number of offenses. At the time of the introduction of the bill, the minister responsible stated: “The rationale for collecting DNA samples for the purpose of data banking is twofold: the serious nature of the offense and the likelihood that DNA samples would be found at the crime scene”. Hence, Bill C-3 was limited in scope. Therefore, the approving groups present Bill C-13, the extension of the DNA databank, as the continuation of a project already started, fine-tuned and in urgent need of completion.

On the other hand, the cautious groups portray the creation and mostly the expansion of the DNA databank as an important qualitative leap. As mentioned earlier, even the cautious groups are, in general, favorable to the creation of a DNA databank. The shadow of extreme and repetitive offenders disarms strong resistance to its creation. Nevertheless, the expansion of the databank is presented as a revolution for, according to them, it transforms the initial principle behind the databank. As a human rights group asserts:

We have seen a fundamental shift away from this rationale toward what appears to be a growing national registry of convicted criminals. This is a marked move away from the underlying philosophy of the DNA data bank scheme as it was originally conceived and approved by Parliament. New offences were added with the adoption of then Bill C-36, the Anti-Terrorism Act, in 2001, and more offences are now being proposed in this bill [C-13] that do not appear to meet these criteria of violent and sexual offences involving the loss or exchange of bodily substances. We urge committee members to question this creeping expansion of the DNA data bank program and to insist that demonstrable justification and firm criteria be set out and met before including new offences.

Moreover, defense lawyers and NGOs working with people suffering from mental illness claim that expanding the DNA collection to people found not criminally guilty by reason of mental disorder, as Bill C-13 intends, is a profound shift in the Canadian economy of human rights:

If Bill C-13 passes as proposed, persons found NCRMD will be the only category of persons subject to databanking who have not been found guilty of an offence. This has two problems. Firstly, DNA Databanking should not be extended beyond offenders found guilty of a designated offence. To do so would reflect a clear policy choice that DNA Databanking applies even to those not exposed to penal sanction. (Defense lawyer; emphasis in the original)

From an external point of view, that of international comparison, the creation and expansion of the DNA databank is merely an evolution, a next step Canada has to take to be part of the DNA club. This stance meshes with the representation of DNA as “fingerprinting”, the banalization of the whole process and the plea for a wider use of this technique that could yield important benefits in the fight against crime. Here, a DNA databank is just an amplifier of existing social practices.

From an internal point of view, that of Canadian policy, the creation, but mostly the expansion of the DNA databank, places the legislation on a slippery slope where the basic principles of the law and human rights lose ground. Not only is DNA in itself a powerful substance, its use, as prescribed in the bills under study, revolutionizes fundamental beliefs and values.

The positions groups take on the spectrum from banalization to idealization of DNA and from evolution to revolution in the criminal justice system by DNA are also linked with representations of themselves and the traditions of the country. How do their positions on DNA affirm or redefine the identities of those groups and that of Canada?

Affirmation and redefinition of identities

There is little doubt that those of us who have been involved in the investigation of crime have spent a significant portion of our lives recovering, evaluating and interpreting evidence. In large part, forensic scientists have a significant advantage in this process simply because their efforts are largely confined to detecting, evaluating and interpreting physical evidence. As a result they don't find themselves in the position of having to make the subjective sort of evaluations and interpretations that field investigators often encounter. Physical evidence speaks for itself. It doesn't lie, it has no bias, it doesn't forget and it doesn't change. (Forensic experts)

The very nature of DNA as a chemical substance and its aura of truth clearly reinforce the scientification and professionalization of policing. The border between the forensic experts and the police force is so porous that the latter appropriates the characteristics of the former. Thus, the DNA databank becomes an additional opportunity, in a long series of attempts, to redefine the role of the police. In his history of criminal identification, Marquis (1994) justly points out that fingerprints were invested with the same hopes at the turn of the twentieth century: “to monitor and control a class thought to be largely beyond rehabilitation” (p. 167); to solve a large number of crimes quickly and efficiently through better identification procedures; to prevent crime and then reduce the crime rate, etc. Those hopes were publicly carried by fictional detectives: then Sherlock Holmes, now CSI. With the then new technology of fingerprinting, police officers were expected to be transformed from night watchmen to crime fighters. The briefs and testimonies of the approving groups convey the same idea about DNA.

Not only does DNA strengthen the scientification and professionalization of the police force, it also serves as an additional accountability tool for the police, and the criminal justice system as a whole. Both the police and the criminal justice system strive to achieve the status of accountable, efficient and manageable systems. In the police force, a “new accountability” emphasizes self-regulation and external controls: record keeping by each police officer, monitoring by electronic tracking systems and cameras in the patrol cars, auditing, etc. As a result, individual police officers as well as the organization become increasingly preoccupied with the accountability measures which now become a measure of their performance (Chan 1999). The DNA databank engages with those preoccupations since it allows for a clear tracking of the police activity and the costs therein saved. As a forensic expert from Great Britain testifying to the permanent committee states:

As a consequence of the recording activities associated with these [DNA] projects, there is a raft of management data generated. We can determine: monthly submissions versus target; submissions by divisions; submissions by scenes of crime officer; success rate by sample type; success rate by scenes of crime officer, which obviously gives information about performance of individual scenes of crime specialists and perhaps points out new training needs; we can measure average and actual turn around times for police and [forensic services] processes; we measure the detection rate; we record the judicial disposals by type; we can also estimate the “value” of the cases to the community based on the Home Office calculation that an average burglary costs the householder about £2300 which is made up in replacing damaged doors and windows, replacing stolen or missing property and increased security. It also costs the police £500 in investigation charges per burglary […] All of the players in the CJ process are aware of the outcomes and can attribute value to the information provided by the National DNA database and other forensic science. (Emphasis in the original)

This is certainly not a characteristic unique to the use of a DNA databank but its managerial qualities allow it to conform to an important layer of institutional expectations and growing representations of self.

Finally, the creation and expansion of the DNA databank also fuel two aspects of the identity of Canada as a leader on the international criminal justice scene. On the one hand, Canada sees itself as putting forward innovative approaches in policing. Talking about a program of proactive policing during C-13 consultations, a law enforcement representative states:

The ambassador who just left here and our colleagues in the United States talk about this as the best practice. I have people from all over the world. I have two delegations here right now, a delegation from Switzerland and one from Germany, who have come here to examine this new philosophical approach to proactive policing.

The introduction and wider use of the DNA databank facilitates this quest for innovation and excellence:

We today on major crimes guarantee and have produced a 15-day turnaround, which is as good as if not better than anywhere else in the world. […] With the changes we've made, and the processes we've changed, and some of the new technology, by 2005 we will have substantially improved our ability to provide world-class service. We've had several people from around the world come here to say “we wish we were where you're at”. I'm not satisfied that we're where we need to be. I want to get better and I want to do better. I want us to be the very best. (A law enforcement representative)

On the other hand, Canada is also proud of its human rights tradition. The cautious groups emphasize that aspect by warning of the potential breaches of the Charter created by the collection and banking of DNA, by warnings against the potential “widening of the net” effect, by allusions to the “security syndrome” that have motivated recent parliament decisions (including the creation and expansion of the DNA databank) and by emphasizing and questioning the growing power the Canadian state has over its citizens.

Overall though, the discussion surrounding the creation and expansion of the DNA databank succeeds at promoting both national identities:

The effectiveness of the automated technology and the process employed by the data bank have been envied by many forensic laboratories in the world. In many ways our protocols are unique in the ability they give us to track each sample but at the same time to ensure the complete privacy and security of all samples and data. (An administrator of the NDDB)

Canada uses more and more of this technology and can see itself as a leader in crime fighting among comparable nations while using a more “measured” approach than other countries (Canada collects DNA at the condemnation and not at arrest) as well as ensuring, as best as possible, the privacy of the people included in the bank.

Conclusion

As Gerlach said previously (2004), between the laboratories and its actual utilization, a technology has to go through a process of definition; a web of power relations that constructs its identity, its potentialities and its limits. The political arena is such a stage in the definitional process of DNA technology in the criminal justice system.

Our empirical analysis showed that the creation and expansion of the DNA databank was made possible in Canada by a certain construction of DNA. Represented in the dominant discourse through a minimalist conception, as a powerful identifier with few ethical implications, DNA seemed inoffensive. Also, the collection process was perceived as simple and quick, even more so than traditional identifiers. The intrusiveness of the procedure was seen as minimal and framed mainly in terms of body penetration, leaving the privacy issues on the sidelines. The bank was represented as a powerful tool to discover, charge and punish criminals who were irremediably bound to perpetrate more and more severe offenses. Despite its revolutionary powers, DNA and the DNA databank were presented as a timely and necessary addition to existing law enforcement tools, merely an evolution in the fight against crime.

Moreover, keeping our distance from a mechanistic approach and adopting a social uses perspective, our contention is that the DNA identification does more and less than what it claims to achieve. On the one hand, despite the identification capacity of DNA, the scientific discourse briefly touched upon in the literature review warns that this is not a technology devoid of shortcomings and indeterminacies. Our analysis shows that, in the political realm, most of those risks and obstacles have been avoided, especially in the discourse of the approving groups.

On the other hand, DNA in the criminal justice system does much more than helping in establishing correspondence between two samples of human substance. It also produces important symbolic effects. In terms of the reinforcement of identities, DNA and the databank are vested with an aura of truth and certainty that fuels the professionalization and scientification ideal of the police force. It can also produce an array of indicators enabling performance measurement, a key feature to support the legitimacy of the criminal justice system. The dominant discourse on DNA and the DNA databank finally reconciles the two aspects of the Canadian criminal justice system, that of a leader and innovator as well as a protector of democratic rights.

Rather than thinking in terms of DNA technology as a monolithic crime-fighting tool with precise uses and effects, the social uses perspective brings us to conceive of DNA technology as a malleable object. This construction of DNA and the DNA databank in the political realm is but one moment in the continuous process of construction of DNA as a law enforcement tool. Every new bill on the topic is an occasion for the political reconstruction of DNA. In the field, police officers, prosecutors and judges also actualize social uses that make the utilization of DNA possible or not, helpful or problematic, necessary or accessory.

Acknowledgements

We want to thank the Office of the Privacy Commissioner of Canada for funding the research leading to this publication. We are also grateful to Uri Ben-Gal for editing the article.

Notes

1. It goes without saying that most studies reviewed here are either American or British. Studies on this topic conducted in continental Europe, Australia and Canada are few.

2. Canadian Criminal Code, s. 487.04

3. E.g. sexual assault, homicide, aggravated assault, etc.

4. E.g. assault, robbery, indecent acts, etc.

5. At the time of writing, the bill has been adopted but is still not in force.

6. For example, causing bodily harm with intent and child pornography related offenses were added to the primary designated offenses list and offenses such as criminal harassment and uttering threats were added to the secondary designated offenses list.

7. After the second reading in the House, bills are sent to the relevant standing committee, in this case, the Standing Committee on Justice and Human Rights (C-3), renamed later the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness (C-13). The committee is composed of members of parliament from all political parties, in proportion, and has the duty to examine and report on bills related to its area of competence.

8. See Robert et al. (2006) for more detailed description and categorization of the groups.

9. It is interesting to note that the way the DNA databank “assists” and “helps” is never clearly defined and the weight of DNA evidence amongst other evidences is never specified. Some research tends to show that overall DNA might not be as efficient as portrayed (Brodeur 2005, Mucchielli 2006).