Catching criminals with genetic tests is not an invasion of privacy

Tanya Van Cuylenborg’s killer went free for decades until DNA evidence led to his arrest in Washington State. The young Victoria woman’s boyfriend was also killed but no one has been arrested so far.

image: Canadian Forensics Inc.

The cold case was solved with the help of a genetic genealogist, CeCe Moore, in just eight hours. She reluctantly helped with the investigation:

“It’s something I declined to do for a very long time. I was concerned about informed consent, about people in the genetic genealogy databases having their DNA used for a purpose they had not consented to and were not aware was a possibility (Globe and Mail, June 8, 2018)”

Moore’s reluctance had nothing to do with gathering evidence at a crime scene. If perpetrators leave evidence, such as fingerprints, at a crime scene consent is not required.

Nor does DNA evidence gathered in a public place require permission. Police don’t even need a search warrant to take a discarded coffee cup from the trash. That’s how DNA was gathered from the alleged killer and matched to DNA he left behind at the crime scene.

Moore’s reluctance had to do with the fact that the consent of dozens of people related to the alleged killer had not been given. His relatives wouldn’t even have necessarily known about the investigation.

The comparison of DNA to fingerprints is useful because it reveals the stark difference. A fingerprint indentifies one, and only one, person. DNA indentifies one person -and all of that person’s relatives.

An obvious question to ask is: “why did it take police 31 years to match the alleged killer’s DNA with that at the crime scene?” It seems like a simple thing to do until you realize that the number of discarded coffee cups, or whatever, that would have to be analyzed would be in the millions –a logistically improbable task.

That’s when an open-source genealogy database called GEDMatch came in handy. The original purpose of the database was not to catch criminals but rather to help “amateur and professional researchers and genealogists.” By May, 2018, the database had 929,000 genetic profiles.

Detectives uploaded a DNA sample from the crime scene to GEDMatch. From there, they identified ancestors and relatives of their suspect. With the help of Moore they built a family tree, incorporating marriage records and other information, and worked their way backward to find a potential suspect. It was only then that they knew whose discarded coffee cup to check.

Civil libertarians worry about the misuse of the technology by the police. However, while police need a court order to access some private sector databases like and 23andMe, GEDMatch is open-source.

Civil libertarians worry about the invasion of privacy. It’s also true that in giving GEDMatch permission to share my genetic information, I might be giving access to my third cousin Fred’s genetic information. And that hapless Fred may unknowingly be part of a police investigation without his consent.

Despite all those reservations, the family tree of suspects should be open to investigation as long as the investigation doesn’t incriminate those family members in any way –the target of the investigation must be clearly stated with no fishing allowed.

Acts of vandalism disturbing in what they say about perpetrators

       Idle hands are the devil’s tools  (18th century proverb)

There’s no shortage of theories why teenagers would enter a petting zoo in Westsyde and bludgeon two caged birds to death.


One theory is suggested by the above proverb – – a struggle between good and evil.  In this theory, work is seen a virtue.  The devil’s influence is exorcised from our thoughts by work.  Idle citizens with time on their hands are open to temptation and will likely do no good.

Then there are psychological implications.  The senseless killing of tame animals is disturbing.   “The perpetrator of this crime may well be more than just a bored kid with a penchant for shock.  Perhaps he is he next Clifford Olsen,” says Greg Dueck in his letter to the Daily News (May 7, 2003).   Psychologists warn that disturbed people may start off with torture of animals and then move on to killing people.

UCC Criminologist Linda Deutschman agrees that cruel acts could be the act of highly disturbed persons. “By highly disturbed person, I do not mean ‘mentally ill.’  The kind of person who kills birds and sometimes goes on to kill humans is very rarely someone who is out of touch with reality,” she told me.

“These people, like Clifford Olsen, are psychopaths, but not psychotic. Mentally ill people are actually less likely to commit violent offences than the rest of us. They scare us mainly because they are unpredictable, not because they are predictably hurtful,” says Associate Professor Deutschman.

Beyond the sacrificed lives of animals, there is the wasted lives of the perpetrators.  The senseless death of birds is one thing but what about the senseless lives of those who did it?   The devil’s work is sometimes labour intensive.

Take the recent case in which 30 grave-markers of war veterans were knocked over  by vandals.  The overturning of headstones amounts to a significant amount of labour.  “They really had to work at it.  They have a solid concrete footing,” said Chris Pyett, who lives near the cemetery.  “There’s one busted right in half,” he added.  That’s just part of a vandal’s work.

After a evening of tipping over bus stop benches,  destroying public toilets, smashing concrete picnic tables with sledge hammers, is there a sense of satisfaction?  Can the vandals come home after a hard day’s night and relax in their favourite easy chair with a beer and reflect on a job well done?

If the vandals put the same amount of effort into a job, they could earn a living.  If someone would hire them, that is.  In all likelihood, such vandals probably can’t find work. Worse still, the longer that they are out of work the less likely that they will find work.

The Corrections Service of Canada has identified this group in society with diminished opportunities as the “baby bust.”

“Studies indicate the emergence of an unemployed (and under-employed) group of youths, who are in neither school or the labour force. This under-employed and under-educated group is not only large, it seems likely to increase unless action is taken,” says Correction Canada in an article called Unemployment and Population Aging: Contradictory Trends Affecting Penitentiary Populations.

These baby busters sit at home waiting for their parents’ generation to retire from well-paying jobs.   This group of youths slowly ages as they watch diminished opportunities in an economy that has been stagnating since the 1970s.

The problem in B.C. has been compounded by the loss of high paying jobs in the resource extraction sector – – forestry and mining – – and the highest unemployment this side of the Atlantic provinces.

Now in their thirties, many of this so-called Generation X are losing their job-finding skills.  In a difficult labour market like B.C., they may lack the basic “social capital” required to achieve success and attachment to the work force.

Legitimate jobs and crime are inversely proportional.  Vandals are more likely to permanently unemployed youths. They tend to have below-average education, irregular job experience.

“Young males with steady jobs are typically believed to be at much lower risk of criminal behaviour and incarceration,” says CSC.

The death of animals and destruction of property is one thing but what about the pointless and non-productive lives of the vandals?  They sit idle with more time on their hands than money.  Maybe this is where the devil comes in.

Legalize heroin and save lives

Legal opiates are being use to adulterate illegal ones with tragic consequences. More than 800 British Columbians were killed in fentanyl-related overdoses last year. Many of them were ordinary Canadians you might find living next door. One of them was my nephew who died a few years ago.

Calgary Herald

Calgary Herald

They injected what they thought was heroin, or some other illegal drug. If they had injected legal heroin, of known purity and strength, they would still be alive. I’m not naive; they would still be addicted but their quest for bliss would not have ended in death.

It’s a question of harm prevention. Legalization of heroin may seem like a radical idea but not long ago so did giving drug addicts clean needles and a safe place to inject.

Like the prohibition of alcohol, the prohibition of drugs has been a dismal failure. Prohibition simply pushes the drug trade underground. When a trade is unregulated, who knows what junk users will end up taking? Drug manufacturers don’t intend to kill users: it’s bad for business to kill your customers. They just want to maximize profits.

Fentanyl is perfectly legal. It’s prescribed by doctors for controlling pain. Fentanyl is just one the opium family. It turns out that all of them are addictive.

A brief history of legal opiates is a guide to the intersection of illegal ones. Opium from Persian poppies has been used for pain control since the fourth century. Researchers discovered the active components of opium -morphine, codeine and theobain- in the 1800s. In an attempt to find a non-additive painkiller, heroin was derived from morphine. The manufacturer of heroin, Bayer, pulled it from shelves in 1913 once it was found to be addictive.

In the quest for a non-addictive pain killer, Perdue Canada filed a patent in 1992 for OxyContin, a pill that would treat pain “without unacceptable side effects (Globe and Mail, Dec. 30, 2016).” Perdue encouraged doctors to prescribe the pill and soon it was a blockbuster hit with billions of dollars being made.

But OxyContin turned out to have terrible side effects and thousands of were hooked. Canadians consume more prescription opiates on a per-capita basis than any other country in the world according to a United Nations report.

As in all opiates, those hooked on OxyContin become habituated so that they needed more pills to control pain. Purdue attempted to control the problem with the replacement OxyNEO in 2012, a tamper-resistant alternative that is difficult to crush, snort or inject. And that same year, the provinces stopped paying for both opiates.

Both factors drove addicts to the streets to find a fix. Illegal drug manufacturers care not how their clients get hooked, whether it be from the pursuit of bliss or the relief of pain.

Fentanyl is now the universal opiate. Manufactured in China in concentrated form, it can be ordered on the internet and sent through the mail. From there, it is pressed into pills to mimic OxyContin and other opiates.

Making fentanyl illegal is not the solution. Drug abuse is a medical problem, not a criminal one. All opiates should be legalized and safe doses prescribed. Education, as in tobacco and alcohol abuse, is the only solution.

The high cost of failure to rehabilitate sex-offenders

No one wants a sex offender living in their neighbourhood because they are a menace to society. The assumption is that they are incurable; that their impulses are so strong that they are certain to reoffend. But what if that assumption is wrong?

From website of Circles of Support and Accountability

From website of Circles of Support and Accountability

If offenders could be rehabilitated, communities would be safer but it would take a change in policy. The policies of the Harper government ensure that communities remain endangered.

The “tough on crime” policies of the Dark Decade meant government-legislated mandatory minimum sentences, capped incarceration credit for pre-sentence custody, limited parole eligibility, and plans to build more prisons to house pot-smokers,  mentally ill, and aboriginals –a plan that the U.S. advised against as I outlined in an earlier column (November, 2011).

Jonathan Kay, editor of Walrus magazine, says that there was eventually pushback even from conservatives. “Harper’s attitude toward criminals was so callous that even many Tory diehards began to push back (September, 2016). Kay quotes a conservative columnist regarding the closure of the prison-farm system. “When queried on the evidence for such measures or a broader philosophy of the role of incarceration in the criminal justice system, the justice department offers little more than slogans.”

Fortunately, rehabilitation is more than a slogan; it’s a plan. The prison-farm system is part of that plan because it provides education, vocational guidance and vital skills on how to improve the lives of prisoners and integrate them back into society.

The Liberal government plans to reopen prison farms on an “evidence based” approach. Minister of Justice Jody Wilson-Raybould has been instructed to review the justice system with a view to “increasing the safety of our communities, getting value for money, addressing the gaps and ensuring that current provisions are aligned with objectives of the criminal-justice system.”

Notice the difference? Safer communities does not mean just punishing prisoners but ensuring that when they get out that they are less likely to cause harm. The change in focus is from punishing offenders to securing society. Other than the visceral pleasure of revenge, punishment is no plan at all.

Another useful program that the Tories stopped funding was the Circles of Support and Accountability. This volunteer-run group was founded by Mennonites in 1994 and has proven results in keeping sex-offenders and pedophiles from reoffending. Studies suggest that they can reduce recidivism of sex offenders by as much as 70 per cent.

No wonder that the model of CoSA has been adopted by the U.S., Australia and New Zealand, and some European counties. Volunteers help men deal with landlords, stay sober, access food banks, and obtain government ID. More importantly, they help men avoid the triggers that that cause them to reoffend; help them deal with their guilt, shame, loneliness, and anger towards others. They are often the victims of abuse themselves.

This is not coddling the sickos, as avengers claim. This is protecting society. The CoSA program is not only effective; it’s cheaper than re-incarceration.

Trial judges overturn the Supreme Court

One person can, and has overturned rulings of Canada’s Supreme Court. Not Prime Minister Harper although I’m sure he would like to. It’s the trial judges appointed by the prime minister that can.


It may seem alarming but it’s nothing new. Appointees from Prime Minister Chrétien did. Whether it’s alarming or not depends on your point of view.

If you think that physician-assisted suicide is a good idea, you would have been pleased when lower court judge, Justice Lynn Smith, overturned an earlier Supreme Court ruling.

In 1993 the Supreme Court ruled against Sue Rodriguez in her bid to have access to physician-assisted suicide. Rodriguez was suffering a terminal illness that prevented from ending her ended her own life.

In 2012, Justice Smith overturned that ruling. She heard testimony from jurisdictions in the U.S. and Europe that allow assisted suicide, and concluded those laws are successful in protecting  the vulnerable from being pressured into accepting an unwanted death.

Justice Smith was appointed by the Chrétien government but she was no hack. Before being appointed, she was dean of the University of British Columbia law faculty and a founding director of the Women’s Legal Education and Action Fund.

Those aren’t the criteria our current PM uses. Unlike Chrétien, Harper has made it clear what he looks for in judges. Sean Fine, justice writer for the Globe and Mail puts it this way: “For nearly 10 years, the Conservative government has been seeking candidates it believed would defer to Parliament and not go out of their way to defend individual rights.”

If you think that a two-tier health care system is a bad idea, then you will worry about the ruling of a lone judge, yet to be chosen, who will hear the case of Dr. Day. He claims the constitution supports his extra-billing of patients. The Canada Health Act and the parallel equivalent B.C., the Public Health Act, prohibit extra billing.

The Supreme Court reference in Dr. Day’s claim would not affect all of Canada –yet. The 2005, Supreme Court ruling only affected Quebec’s Health Insurance Act. In the so-called Chaoulli decision, private health care was allowed under Quebec’s Act. Should Dr. Day’s claim be successful, however, it could have implications for all of Canada in a subsequent Supreme Court decision.

How can it be that the Supreme Court is not supreme? It turns out that in its wisdom the Supreme Court has ruled that it isn’t all powerful.  That’s because our Constitution is a “living tree,” capable of growth over time. Trial judges are to interpret the Constitution because society’s values change over time.

If this doesn’t seem to ring true, it’s because we are constantly reminded of the immutable U.S. Constitution, especially in the right to bear arms. Canada has no such tradition of “originalism:” we are not bound by the intent of the Charter’s framers.

My hope is that trial judges will feel the weight of Canada’s destiny on their shoulders. I trust that honourable judges will base decisions on the facts and not the machinations of malevolent politicians who would corrupt the judiciary to their own ends.

Legalize all drugs

Don’t use drugs. If these two statements seem contradictory, it’s understandable. Legalization is approval. And since drug abuse is a problem, why approve drug use?

The flaw in this argument is that drug abuse in not a legal problem, it’s a medical and social problem. It wastes lives and is a burden on our health care system; it destroys families; it consumes the time and resources of law enforcement agencies.

we want beer

Prohibition is a well-intentioned initiative but it doesn’t work. As we discovered in the case of alcohol prohibition, booze was simply driven into the hands of criminals and organized crime who waged war against rivals.

Warring cartels and gangs in Mexico alone killed 120,000 in the years 2006 to 2013. That’s forty per cent more deaths than all the deaths due to illegal drug use in the U.S. according to data from the Center for Disease Control.

Guns in Canada are a serious problem. In the same period (2006 – 2013) there were approximately 1500 gun homicides in Canada. Not exactly the carnage that Mexico is experiencing  but that’s not the point: just because guns result in death and injury, no sensible person would suggest making them illegal.

What does make sense is the regulation of guns. Gun owners must obtain a Possession and Acquisition Licence and renew it every five years. Education makes sense. As a general rule, applicants must have passed the Canadian Firearms Safety Course.

Tobacco in Canada is a serious problem. In the same period, 259,000 Canadians died due to tobacco-related diseases according to the Canadian Cancer Agency. Education has reduced the number of Canadians who smoke from fifty to less than fifteen per cent.

Politicians have agreed for decades that education is key to harm reduction. As one of the founding members of the Calgary chapter of the Alberta Legalization of Cannabis Committee in 1976, I received letters from all leaders.

In his letter, then leader of the opposition Progressive Conservative party Joe Clark wrote: “In my view, a drug education programme would be far more beneficial and economical in attacking the problem than using law enforcement agencies and the courts.”

NDP leader Ed Broadbent thought that marijuana should be removed from the Criminal Code and placed under the Food and Drug Act and added: “I would agree with your statement that it does not appear to have any worse impact than alcohol.”

Prime Minster Trudeau wrote that his Bill S-19, one that would remove marijuana from the Food and Drug Act, died on the order paper but his government was pursuing the bill. “[My government] is working to make certain the legislation we introduce strikes a proper balance between concerns over the personal and social effects of penal laws aimed at discouraging its use.”

Time has stood still for the last four decades. Regressive Canadian governments have preferred to pander to misconceptions such as the “war on drugs,” or “prohibition works.”

Meanwhile the U.S., a place we think of a bastion of conservative thought, has leapt ahead of Canada. Now some states, such as Washington, have legalized the sale of marijuana. I just returned from Seattle and didn’t notice any reefer madness in the streets.

Dancing with Bill C-51

Dictum one: Make laws that promote ideology.

The Harper Government passes laws because they serve a political purpose, not because they believe they will pass a legal test. Bill C-51, the Anti-terrorism bill, is the latest. Before that was Bill-36. I like to call it The Illegal Prostitution Act.

Bill C51

Contrary to popular opinion, prostitution itself never was illegal. Rather, profiting from prostitution was. Late in 2013, the Supreme Court overturned the former law because it didn’t do enough to protect prostitutes.

In overturning the old law, the court ruled that, indeed, some people should make money from prostitution, specifically those who are hired by prostitutes to help them run their business such as managers, drivers, and security guards.

“Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes,” wrote Chief Justice Beverley McLachlin in the 9-0 decision that noted “it is not a crime in Canada to sell sex for money.”

The Supreme Court criticized the old law for punishing everyone who lived on the avails of prostitution. New laws should distinguish between those who exploit prostitutes and those who would “increase the safety and security of prostitutes.”

Government was given a year to come with a new law, if they wished. Or they could do nothing and prostitution would remain legal. Harper’s response was to make prostitution one-half legal. Confusingly, the sale of sex is legal but purchase is not.

The government’s response was not to protect sex-trade workers or even because it would survive a legal test. Justice Minister Peter MacKay made that clear: the purpose of the bill was to appeal to his conservative base. Unrealistically, they imagine they can abolish the world’s oldest profession. MacKay explained: “deterring participation in it, and ultimately abolishing it, to the extent possible.”

Minister MacKay was told that his law would not likely survive a constitutional challenge. He admitted that a court challenge would be likely because his law would drive the sale of sex into the shadows because Johns would avoid arrest. And prostitutes still can’t hire security or advertising agents to improve safety.

 Dictum two: Make laws that bait the opposition.

In election years, it’s useful to bait the opposition and provoke a response that defies common sense. They gave us a preview of this in Bill C-30, the so-called Protecting Children from Internet Predators Act. Public Safety Minister Vic Toews told the opposition MP they could “either stand with us or with the child pornographers.”

This false dichotomy is a model for the latest, Bill C-51. Frame your laws such that opposition to them makes no sense.

The Anti-terrorism bill, C-51 baits the opposition. If they oppose the bill they will appear to be in favour of terrorism. The NDP aren’t buying it. They insist that there aren’t enough resources to do the job of enforcing the law.

A group of 100 experts, mostly law professors, warn that Bill C-51 threatens Canadians’ privacy and freedom of speech. The Harper government will ram the bill through regardless.

It’s the actions of a desperate government in the throws of its last days.