The jurisprudence concerning the taking of penile swabs is developing. Reported decisions are limited and are not consistent. For example, several have expressly found a breach of s. 8 of the Charter (R. v. Saeed (AH), 2014 ABCA 238, 577 AR 143; R. v. Pun, 2012 ONSC 5305; and R. v. BAP, 2013 SKQB 14, 456 SaskR 23), while three others found no breach of s. 8 (R. v. Hodgson,  OJ No 4748 (QL); R. v. Amey, 2013 ONSC 5108; and R. v. Harasemow, 2014 BCSC 2287. In three of the cases, the evidence was ruled admissible (Saeed; Hodgson; and Harasemow). In three of the cases, the evidence was excluded (Pun; Amey; and R. v. Ali, 2014 ONSC 6609).
The Supreme Court of Canada recently heard an appeal from the decision in Saeed, in which the majority of the Alberta Court of Appeal, applying Stillman, held that a penile swab is not a search that is incident to arrest, and that a warrant must be obtained unless the evidence sought could significantly deteriorate or disappear, or in circumstances of “extreme exigency” (at para 62). The evidence was admitted under s 24(2). The Supreme Court of Canada’s decision in Saeed is on reserve. Until we have the benefit of that decision, two recent decisions have held that a penile swab can be lawfully taken incident to arrest for a sex offence (R. v. Laporte 2016 MBCA 36), and a warrantless search and seizure of a penile swab incident to arrest does not constitute a breach of section 7 or 8 of the Charter (R. v. M.T. 2016 NUCJ 9).
What is interesting from the Laporte decision is that the MBCA took the analytical approach for addressing the question of whether the taking of the penile swabs breached the accused’s s. 8 rights. While R. v. Fearon 2014 SCC 77 concerned searches incident to arrest in the context of cell phones found on accused persons, the MBCA said it provides a contextual analytical approach to address “the permissible scope of search incident to arrest”. The court also applied R. v. Golden 2001 SCC 83, which concluded that, as a result of the serious infringement of privacy and personal dignity occasioned by a strip search, such searches are only authorized at common law when four requirements are met: 1) the search must be “incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest”; 2) the police must have “reasonable and probable grounds justifying the arrest”; 3) the police must have “reasonable and probable grounds justifying the strip search”; and 4) “the strip search [must] be conducted in a manner that does not infringe s. 8 of the Charter” (at para 99).
Therefore, applying the analysis in Golden, and modified as required by Fearon, the MBCA in Laporte concluded that the following are required for a penile swab to be a lawful search incident to arrest:
1) The police have reasonable and probable grounds justifying the arrest;
2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and
3) The police have conducted the penile swab in a manner that complies with s 8 of the Charter. In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search:
1. Was the penile swab conducted at the police station and if not, why not?
2. Was the penile swab conducted in a manner that ensured the health and safety of all involved?
3. Was the penile swab authorized by a police officer acting in a supervisory capacity?
4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?
5. Was the number of police officers involved no more than necessary in the circumstances?
6. Was the minimum force that was necessary used to conduct the search?
7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab?
9. Was the accused person given the opportunity to swab himself and if not, why not?
10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person’s back to avoid genital exposure?
11. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?
A search warrant for penile swabs does not appear to be available under the current provisions of the Code (i.e. General Warrant s. 487.01(2)). I will report on the SCC decision in Saeed once it is reported.