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News and Views | Milligan's Criminal Law Advisor

Penile swab upheld as lawful search incidental to arrest in sexual assault case

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

The Supreme Court of Canada permits the taking of a penile swab in a sexual assault case as a lawful search incidental to arrest

The Supreme Court of Canada recently held that the police may take a penile swab incidental 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 and if the search is conducted in a reasonable manner.

The complainant, aged 15, went to a party in an apartment house in Edmonton. There, she became intoxicated and was helped to a bedroom to sleep. She later left to find one of her friends. After she left the building, she was “viciously attacked” by a man who pushed her to the ground, hit her repeatedly, tore her clothes and sexually assaulted her.

One of the complainant’s friends saw her on the ground with a man on top of her. The man’s pants were pulled down and he had a knife in one of his hands.

The friend pulled the man off and drove her to the group home where she was staying. The police were called and took her to hospital. The police went to the apartment where the complainant had gone to the party. Learning that the assailant’s name was “Ali”, they asked for “Ali” and when the appellant came forward, they arrested him for sexual assault at a little after 5:44 a.m.

The appellant was released, in error, between 7:00 and 7:30 a.m. but was re-arrested at 8:35 a.m. He spoke to counsel following his being re-arrested. Learning by this time that he had penetrated the complainant with his penis, the police were minded to take a penile swab to obtain and preserve evidence of the sexual assault. They were hoping to find her DNA on the swab.

They placed him in a cell with no running water or toilet and handcuffed him so he could not wipe away any DNA that might be on his penis. The officer in charge of the investigation testified that he considered getting a warrant for the swab but thought that the search was a valid search incidental to arrest and seeking a warrant would entail the prolongation of the appellant’s confinement.

The appellant was permitted to swab his own penis which he did under the direction of a police officer. He was fully clothed but his pants were down. His cell was blocked by the officers with their bodies so no one could see in and the procedure took less than 2 minutes.

The swab was tested and it had the complainant’s DNA on it.

At the trial, the central issue was the identification of the assailant. The complainant recanted her identification of the assailant in cross-examination. Her friend maintained identification of him but that witness was intoxicated, did not know the assailant well and identified him for the first time when the officer led him from the apartment house.

The trial judge held that the swab violated the appellant’s s. 8 rights but admitted it under s. 24(2) of the Charter.

He appealed his conviction to the Alberta Court of Appeal. The court unanimously dismissed the appeal. The majority held that there had been a breach of the appellant’s s. 8 rights but found that the evidence was properly admitted at the trial. The minority held that there had been no breach.

The appellant argued that his privacy interests were so high that the police should be precluded from relying on their powers of search incidental to arrest to conduct a penile swab. Further, the Supreme Court of Canada’s judgment in R. v. Stillman, [1997] 1 S.C.R. 607 supported the proposition that the common law power of search incidental to arrest did not extend to authorizing the seizure of bodily samples and impressions such as dental impressions.

Stillman was distinguished by the majority of the Supreme Court. It involved the seizure of the accused’s bodily samples which did not disappear or degrade with the passage of time. In the case at bar, the police intended only to capture the bodily materials of another person, the complainant, and those bodily samples deteriorated or were washed away with the passage of time. Moreover, the analysis of the material in the swab did not reveal anything about the accused. The accused did not have any significant privacy interest in the DNA of the complainant.

The procedure used to conduct the penile swab was, as Justice Moldaver, who wrote for the majority, noted at para. 48, “less intrusive” in some respects than, say, a “two-hour long process for taking dental impressions and forcefully removing hair from an acccused’s body”. While it may be humiliating to require someone to expose his genitals for swabbing, to quote the court at para. 55, the procedure was “not inherently invasive”, it may be done in a matter of minutes, it is “not penetrative” or painful and the evidence sought was the DNA of another person and, thus, did “not implicate the privacy interest of the accused”.

Justice Moldaver concluded by saying, at para. 61, “while there is no disputing that a penile swab intrudes on an accused’s privacy, the intrusion is limited”.

If the police were required to obtain a warrant to conduct a penile swab for the complainant’s DNA they would have to keep the accused handcuffed and with no access to running water, as they did in this case, or run the risk of his destroying the evidence the police were seeking. Waiting time and restrictions upon the accused will be reduced if the police could use their common law search powers to conduct a penile swab in appropriate cases.

Having said that, however, the police were not permitted to obtain an accused’s DNA from a penile swab carried out incidental to arrest. To quote Moldaver J. at para. 48:

. . . if an accused’s DNA is obtained through a penile swab and the swab was taken without a warrant authorizing such seizure or the accused’s consent, the accused’s DNA cannot be used for any purpose.

Stillman, supra, continued to be the law where the police intended to carry out a seizure of an accused’s bodily materials. Thus, Moldaver J. reiterated at para. 67 that the police “cannot use a penile swab incident to arrest to circumvent Stillman and the warrant procedures”.

Justice Moldaver proceeded to delineate, at para. 73, requirements for taking a penile swab pursuant to the power to search an accused incidental to arrest.

First, the arrest must be lawful and the swab must be truly incidental to arrest, in the sense that it must be related to the reasons for the arrest.

Second, the police must have reasonable grounds to believe that a penile swab will afford evidence of the offence for which the accused was arrested. Those grounds are not to be confused with the reasonable grounds for the arrest. “They are,” as Moldaver J. observed at para. 75, “independent”. Relevant factors include the timing of the arrest, the nature of the allegations, whether the evidence sought will have been destroyed or removed. Thus, if the arrest is days and days after the alleged act of sexual assault, it is very unlikely that the police will have reason to believe that a swab will afford evidence of the complainant’s DNA.

Finally, the swab must be conducted in a reasonable manner. The following factors were listed to guide police in conducting such swabs:

1. the penile swab should, as a general rule, be conducted at the police station;

2. the swab should be conducted in a manner that ensures the health and safety of all involved;

3. the swab should be authorized by a police officer acting in a supervisory capacity;

4. the accused should be informed shortly before the swab of the nature of the procedure, its purpose, and the authority of the police to take the swab;

5. the accused should be given the option of removing his clothing and taking the swab himself and, if he does not chose this option, the swab should be taken by a trained officer or medical professional with a minimum of force;

6. the police officers carrying out the swab should be of the same gender as the accused, unless the circumstances compel otherwise;

7. there should be no more police officers involved than are necessary;

8. the swab should be carried out in private;

9. the swab should be conducted as quickly as possible and in a way that the person swabbed is not completely undressed at any time; and

10. a proper record should be kept of the reasons for and the manner in which the swabbing was conducted.

The onus is on the Crown to establish that the police had reasonable grounds to believe the swab would afford evidence of the offence and that it was conducted in a reasonable manner.

In this case, the police had reasonable grounds to believe that the swab would afford evidence of the offence, given what they were told and how promptly the swab was carried out after the commission of the offence. Further, the majority were satisfied that the search was conducted in a reasonable manner, which interfered with the privacy and dignity of the appellant as minimally as possible.

R. v. Saeed, 2016 SCC 24, 2016 CarswellAlta 1145, 2016 CarswellAlta 1146
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