Wednesday, October 7, 2009

Man trying to clear name forced to give DNA sample

This is another of the older articles about John and his case that John has asked me to post. It is a 2006 article from a Sudbury paper about one of the many indignities he still must face as a result of his unjust 1978 conviction.

Man trying to clear name forced to give DNA sample
by Tracey Duguay, from Northern Life, December 22, 2006.

After being convicted of second-degree murder in 1978, John Moore spent 10 years in a peniteniary. He was released on bail in 1989, two years after the law used to convict him was repealed and ruled unconstitutional.

Moore was forced to report to the Ontario Provincial Police detachment in Sudbury this week to provide a DNA sample for a national database. The DNA Identification Act of 1998 allows law enforcement officers to collect samples from those convicted of serious offences.

"It's 28 years later and the OPP want a DNA sample," Moore says, shaking his head. "I've been out of jail for 18 years, contributing to this so-called 'just society.'"

His frustration is understandable given Moore has maintained his innocence in the murder conviction and has being try to clear his name for more than two decades.

He knew two men who were convicted of robbing and killing a taxi driver more than 25 years ago. Moore had spent time with them earlier in the day and was a passenger in the car that dropped the men off at a bar before the murder took place.

It was accepted as fact at his trial that Moore wasn't present during the murder. He was miles away fishing with a friend at the time. However, Moore was convicted on the grounds he should have known the murder was going to happen. This legal theory was known as culpable homicide, and the Supreme Court of Canada struck it down in 1989 because it was based on the presumption of guilt rather than innocence.

Moore was to live with the murder conviction on his record, even though he wouldn't be convicted on the same grounds today.

Moore has to provide a DNA sample because the Supreme Court of Canada upheld the legality of the DNA Identification Act being applied retroactively in 2006. This means even though the law didn't go into effect until 1998, it can be used against people convicted of a serious crime prior to this date.

Yet, even though the law used to convict Moore in 1978 was later repealed as unconstitutional, the same concept of retroactively isn't applicable.

Moore didn't want to cooperate with the summons but was advised by his lawyer to do so. If he didn't comply, a warrant for his arrest would be issued, which would be a violation of his parole and hecould be sent back to jail.

"I'm doing this in protest because it's against the Charter of Rights and Freedoms," Moore says. He plans to file an appeal and is prepared to take it to the Supreme Court of Canada.

It wouldn't be the first time Canada's highest court has heard a similar argument. In the case R v. Rodgers, where the Supreme Court of Canada ruled about the legality of DNA law being applied retroactively, concerns about a violation to the charter were raised.

In particular, Section 8 of the charter states "everyone has the right to be secure against unreasonable search and seizure." While the court acknowledged that collecting DNA samples without consent did constitute a seizure outlined in the charter, in the written decision of the court, it stated "the collection of DNA samples for data bank purposes from designated classes of convicted offenders is reasonable."

The argument is based on the fact that collecting DNA is comparable to taking fingerprints.

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