Monthly Archives: June 2016

Penile swab incident to a lawful arrest – striking a proper balance between an accused’s privacy interests and valid law enforcement objectives

R. v. Saeed (2016) SCC 24 – around 4:00 a.m. on May 22, 2011, the complainant was viciously attacked and sexually assaulted. At 6:05 a.m., the accused was arrested and was advised of his right to counsel. He was mistakenly released and re‑arrested at 8:35 a.m. Based on the complainant’s allegations, the supervising police officer felt that there were reasonable grounds to believe the complainant’s DNA would still be found on the accused’s penis and a penile swab should be taken. The penile swab could not be taken immediately. Around 9:30 a.m., the accused was handcuffed to a wall in a cell with no toilet or running water to preserve the evidence. He spent about 30 to 40 minutes handcuffed in the dry cell. The supervising officer did not seek a warrant for the swab, because in his view, the swab was a valid search incident to arrest. The swab took place at around 10:45 a.m before two male officers who blocked the cell’s window with their bodies. The police permitted the accused to conduct the swab. The accused pulled his pants down and wiped a cotton‑tipped swab along the length of his penis and around the head. The swab was tested and revealed the complainant’s DNA.

At trial, the central issue was the identity of the complainant’s assailant. The accused challenged the admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The trial judge ruled that the penile swab violated the accused’s s. 8 Charter right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2) of the Charter and relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal dismissed the accused’s appeal. The majority held that taking the swab violated s. 8  of the Charter but the evidence was admissible under s. 24(2).

The Supreme Court of Canada, by a 8:1 majority, dismissed the accused’s appeal. At para. 1:

The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.

At para. 4:

At issue, once again, is the scope of the common law power of the police to search incident to arrest. Courts have examined and re-examined this power as new investigative methods and types of evidence have presented themselves. But no matter the context, to be constitutional, searches incident to arrest must be reasonable.

The SCC said that a penile swab does not fall within the scope of R. v. Stillman, [1997] 1 S.C.R. 607. First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. Accused persons do not have a significant privacy interest in a complainant’s DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused’s bodily samples and impressions.

There can be no doubt that requiring a penile swab is an intrusion on an accused’s privacy. A penile swab has the potential to be a humiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives…

…The police may take a penile swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested. The reasonable grounds standard will prevent unjustified searches before they occur and will hold the police to a higher level of justification before they can take a penile swab. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed. The potential for destruction or degradation of the complainant’s DNA will always be a concern in this context…

The swab must also be conducted in a reasonable manner. The following factors will guide police in conducting penile swabs incident to arrest reasonably:

  • A swab should, as a general rule, be conducted at the police station.
  • It should be conducted in a manner that ensures the health and safety of all involved.
  • It should be authorized by a police officer acting in a supervisory capacity.
  • The accused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to require the swab.
  • The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary.
  • The officers carrying out the swab should be of the same gender as the accused unless the circumstances compel otherwise.
  • There should be no more police officers involved in the swab than are reasonably necessary in the circumstances.
  • The swab should be carried out in a private area.
  • It should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time.
  • A proper record should be kept of the reasons for and the manner in which the swabbing was conducted.

In light of these requirements, the penile swab in Saeed did not violate the accused’s rights under s. 8 of the Charter, according to the SCC. The accused was validly arrested. The swab was performed to preserve evidence of the sexual assault. The police had reasonable grounds to believe that the complainant’s DNA had transferred to the accused’s penis during the assault and that it would still be found on his penis. The swab was performed in a reasonable manner. The police officers were sensitive to the need to preserve the accused’s privacy and dignity. The accused was informed in advance of the procedure for taking the swab and its purpose. The swab itself was conducted quickly, smoothly, and privately (the swab took at most two minutes). The accused took the swab himself. There was no physical contact between the officers and the accused. The officers took detailed notes regarding the reasons for and the process of taking the swab. The swab did not fundamentally violate the accused’s human dignity.

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