Now, Toronto police are using IGG afterwards solving cold cases, like historical homicides, as more of a first-resort tool. As recently reported by the Ontario privacy commissioner, Ms. Patricia Kosseim, this technology leads to severe privacy invasions that ought to be focused on. The Ontario government is in the process of responding to her report on IGG. Experts and community members are calling for tougher regulations to control its application.
They can compare DNA gathered from crime scenes to genetic data people have uploaded—and made publicly available—on genealogy databases. This approach has allowed police to dramatically reduce the pool of possible suspects to a handful of suspects based on genetic matches assumed to be familial ties. Most recently in November 2022, the Royal Canadian Mounted Police (RCMP) used IGG technology. They did so to wrongly identify a suspect linked to two cold-case murders from 1983 in Toronto. Similarly, in 2021, Toronto police identified a man responsible for the murders of two women in the 1980s using IGG.
The practice has been successful in closing a number of cases. This year, Toronto police boasted solving 59 cases with IGG technology. This extends to the identification of human remains and the alleged perpetrators of historic homicides and sexual assaults. As this technology grows in use, the privacy implications have experts and civil rights advocates deeply alarmed.
Yet as Ms. Kosseim points out, we have to establish guardrails to protect against potential abuses of such a powerful tool. She acknowledges that the law governing IGG is indeed “very murky,” creating a lot of interpretative wiggle room and opportunity for misuse. Written by the Ontario privacy commissioner, the report proposes twelve regulations to ensure accountability and explicitly protect citizens’ privacy rights.
Each police agency would be required to publicly release statistics on their use of DNA investigative techniques. They must further notify people within 90 days if their genetic material has been tested. As Ms. Kosseim cautions, IGG risks becoming “unbridled genetic surveillance” without clear regulations in place. This change would put the privacy of millions of Canadians at risk.
“This is a technology that has evolved very rapidly.” – Ms. Kosseim
The risk of IGG being weaponized raises fears that communities of color could be intentionally targeted. As Ms. Kosseim notes, communities of color and other marginalized groups would be unfairly targeted by the deployment of new, aggressive surveillance mechanisms. “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 states.
Concerns about privacy aren’t just specific to Toronto. The RCMP have developed interim protocols for DNA investigative methods. An internal Department of National Defence document detailing these guidelines was leaked to The Globe and Mail. Yet, critics say that these guidelines fail to provide adequate protection for individual rights.
“Consult with Crown counsel with prosecuting authority over the investigation to ensure identified legal or privacy concerns have been appropriately considered,” – RCMP document
Unsurprisingly, experts say clearer rules must be set out first, so that IGG doesn’t become the new normal for municipalities all over Canada. Though these searches were illegal, courts have consistently upheld their legality. Yet, there is still a major void in federal guidance on the topic. To help mitigate some of these concerns, in 2019 the U.S. Department of Justice issued interim guidelines governing IGG use. Canada has not taken similar steps, at least not yet.
Ian MacLeod from the federal government acknowledged ongoing efforts to address developments in DNA technology, stating, “The federal government is working with its provincial/territorial partners to examine transformative developments in DNA technology.”
Community members and privacy advocacy groups like EPIC are mobilizing to hold elected officials accountable and urge legislators to put privacy rights first. Simultaneously, they want to protect law enforcement’s ability to utilize new technologies in solving crimes. They contend that transparency and accountability starts with balance and that balance is key to sustaining public confidence in law enforcement agencies.
“Much like wiretapping or other invasive forms of surveillance, this after-the-fact notice is a way of protecting privacy and human rights.” – Ms. Kosseim
Our law enforcement partners appreciate that the public has concerns about privacy. They always claim that IGG is being implemented in full compliance with the law. Joe Brisebois emphasized this point, stating, “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.”
The Ontario government is now considering the privacy commission’s extensive report and recommendations. At the same time, advocacy and business stakeholders are pushing them to move quickly on the topic.
