36328   R. v. Saeed


Constitutional law — Charter of Rights — Search and seizure — Search incident to arrest

Appeal from a judgment of the Alberta Court of Appeal (Watson, McDonald and Bielby JJ.A.), 2014 ABCA 238 2014, affirming the accused’s convictions for sexual assault causing bodily harm and sexual interference.

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). McDonald J.A., concurring in the result, held that s. 8 was not violated.

Held (9-1): The appeal should be dismissed.

Per McLachlin C.J. and Cromwell, Moldaver, Wagner, Gascon, Côté and Brown JJ.: 

The accused’s s. 8 Charter rights were not breached and the evidence of the complainant’s DNA obtained from the swabbing was properly admitted. 

To be reasonable and therefore consistent with s. 8 of the Charter: (1) a search must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably. Determining whether the common law power of search incident to arrest may reasonably authorize a penile swab involves striking a proper balance between an accused’s privacy interests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter compliant. This case falls into the second category.

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.

The common law power of search incident to arrest must be delineated in a way that is consistent with s. 8 of the Charter. 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. It can enable the police to preserve important evidence that runs the risk of degrading or being destroyed. Sexual assaults are notoriously difficult to prove and this type of evidence is highly reliable. A penile swab can be crucial in the case of complainants who are unable to testify. The privacy interests at issue are similar to those implicated in strip searches and they can be protected by a similar approach. As with strip searches, the common law must provide a means of preventing unjustified searches before they occur and a means of ensuring that when these searches do occur, they are conducted in a reasonable manner. The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these two protections. These two modifications to the common law power of search incident to arrest ensure that it is Charter-compliant.

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 this case did not violate the accused’s rights under s. 8 of the Charter. 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. 

Per Karakatsanis J. (concurring in the result): 

How we treat those suspected of serious criminal offences says a great deal about the values of our free and democratic society. Given the profound impact that a genital swab can have on an individual’s privacy and human dignity, the common law power of search incident to arrest does not authorize the police to take genital swabs. Since the penile swab taken from the accused was not authorized by law, it was unreasonable and in violation of s. 8 of the Charter. However, in the exceptional circumstances of this case, the evidence obtained in breach of the Charter was nonetheless admissible under s. 24(2) of the Charter.

Section 8 of the Charter balances an individual’s interest in privacy with the state’s interest in investigating and prosecuting crime. The common law power to search an individual incident to arrest must evolve in a way that is consistent with Charter principles. Some kinds of searches fall outside the scope of the common law power because they do not reflect a reasonable balance between the individual’s interest in preserving dignity and privacy and the state’s interest in investigating crime.

The principles animating R. v. Stillman, [1997] 1 S.C.R. 607, suggest that it would not be a reasonable balancing of the competing individual and state interests for the common law to authorize genital swabs. A swab of the genital area is far more damaging to personal dignity and privacy than a swab of the inside of the mouth or a pluck of hair from the head. Genital swabs are substantially more invasive and dehumanizing. One cannot be taken without exposing, touching and manipulating the genitals, the most private area of the body, in the presence of others. It is difficult to conceive of a more personal or private interest in our bodies. Moreover, although the purpose of a genital swab may be to search for residue deposited on the individual’s genitals, an effect of the seizure is to put the individual’s DNA in the hands of the state, available for undetermined potential future use.

Turning to society’s interests in effective law enforcement, genital swabs can advance compelling state interests. Sexual assault is a very serious offence. It is notoriously difficult to prove. A search for the victim’s DNA on the genitals of the arrested person can yield highly probative physical evidence. However, the state interests are no more compelling here than they were in Stillman. Further, as in Stillman it is not clear in this case whether there is any other lawful means to conduct genital swabs. Without finally deciding the issue, there is no warrant obviously available for genital swabs. If no warrant is available, then it simply does not follow that the common law can advance state interests by allowing the police to take a genital swab before the sample degrades in the time it would take to obtain a warrant. Finally, the troubling compromise of an individual’s dignity during detention in a dry cell cannot be used to justify the greater affront to dignity that a genital swab would represent. One indignity cannot justify another.

Balancing the competing individual and state interests, it is not reasonable to permit the police to take warrantless genital swabs under the common law power of search incident to arrest.

Recognizing that the traditional safeguards for the common law power are insufficient to protect the enhanced privacy interests at stake with genital swabs, the majority proposes a heightened threshold test for this specific search incident to arrest: the police must also have reasonable grounds to believe the genital swab will reveal and preserve evidence of an offence. Additional requirements for particular types of searches incident to arrest should be avoided. A specific threshold test is much less effective in safeguarding privacy than judicial pre authorization. Moreover, defining the threshold requirements is a nuanced exercise which may be best left to Parliament.

In the exceptional circumstances of this case, the trial judge’s decision to admit the evidence should be upheld. In considering the seriousness of the Charter-infringing state conduct, the trial judge found that the officer who directed the swab did not appropriately consider the accused’s Charter rights and the ambit of the police’s power of search incident to arrest, but that there was no actual bad faith on the part of the police. Where the police act on a mistaken understanding of the law where the law is unsettled, their Charter-infringing conduct is less serious. The impact of the breach on the Charter-protected interests of the accused was obviously serious, and weighs against admitting the evidence. There is no doubt that this was a very intrusive search that engaged the core of the accused’s bodily privacy. Finally, society’s interest in the adjudication of the case on its merits weighs in favour of admission. The DNA evidence was reliable and probative. The evidence was very important in the Crown’s case. The assault was particularly heinous and society has a keen interest in the adjudication of this case on its merits. Having regard to all the circumstances, on balance, the trial judge was justified in concluding that the admission of the evidence would not bring the administration of justice into disrepute.

Per Abella J. (dissenting): The evidence should be excluded. 

In determining whether evidence should be excluded under s. 24(2) of the Charter, three factors are to be balanced under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: the seriousness of the Charter-infringing state conduct; the impact of the breach on Charter protected interests of the accused; and the societal interest in adjudication on the merits. No factor is determinative or absolute.

The first factor engages its own continuum. The key is not so much whether the conduct fits within a compartment called “good faith” or “bad faith”, but whether the police reasonably believed they were respecting the Charter. As a police officer’s disregard of Charter requirements becomes more deliberate or flagrant, his or her conduct approaches the “bad faith” end of the spectrum. The police did not make any inquiry to determine whether a swab would be probative. The accused had ample opportunity to wash away the evidence and it would have been impossible for the police to know whether the best source of DNA evidence was a genital swab. The police nonetheless chose the most invasive option. Restrictions on obtaining bodily samples as part of a search incident to arrest were already articulated by this Court and the police must be taken to have been aware of them. The police are required to get prior judicial authorization yet there was no explanation for why they took no steps towards obtaining either a general warrant or a telewarrant. There were no exigent circumstances. The only testimony demonstrating any concern about the need to preserve evidence was a vague statement by one officer. Most significantly, it is by no means clear that a warrant was even legally available. There is no statutory authority for a warrant in these circumstances. The police officers failed to establish reasonable and probable grounds that the evidence sought would still be present on the accused’s genitals. They handcuffed him to a pipe against a wall and deprived him of access to water or bathroom facilities. He was instructed to expose the most private part of his body and swab it in front of two uniformed police officers. All of this occurred without consent and without prior judicial authorization. These circumstances fall at the opposite end of the “good faith” continuum.

The next Grant question is the impact of the breach on the Charter-protected interests of the accused. This Court has found that the taking of hair, buccal and dental samples is the ultimate invasion of an individual’s privacy and that strip searches are inherently humiliating and degrading regardless of the manner in which they are carried out. The impact of the genital swab on the accused’s Charter-protected interests was therefore as profound as one can imagine. The invasion of dignity and bodily integrity does not depend on whether it is penetrative, painful or uncomfortable. A genital swab does not just require the individual to expose his or her genitals to state scrutiny, it asks that individual to violate his own bodily integrity by collecting potentially self-incriminatory evidence from the most private area of his body.

The third Grant factor is society’s interest in an adjudication on the merits. This factor is nuanced and multi-faceted. What is weighed is the seriousness of the offence, the reliability of the evidence and its importance to the Crown’s case. The seriousness of the offence can point both towards inclusion and exclusion of the evidence. What is of utmost importance is the long term reputation of the justice system — the public has a vital interest in a justice system that is beyond reproach.

The reputation of the justice system weighs against admission of the evidence. The law is clear that judicial authorization is required to conduct invasive searches with a view to obtaining bodily samples. The police officers’ unjustified and unexplained avoidance of this requirement weighs against admissibility. So does their disregard for the likelihood that a warrant was not even available. The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal.

Reasons for judgment by Moldaver J. (McLachlin C.J. and Cromwell, Wagner, Gascon, Côté and Brown JJ. concurring)

Reasons concurring in the result by Karakatsanis J.

Dissenting reasons by Abella J.

Neutral Citation: 2016 SCC 24
Docket Number: 36328