The Supreme Court of Canada issued a landmark, albeit split, decision in June of 2016 that has received little attention. The case is an example of the continual growth of police powers, especially related to the common law doctrine of search incident to arrest, and of the swinging pendulum between protecting rights of alleged sexual assault victims and accused individuals.
The case, R. v. Saeed, 2016 SCC 24, considered whether it is constitutional for police to conduct a warrantless penile swab of an individual being held in custody where there were reasonable grounds to believe that penile penetration had occurred in the course of a sexual assault.
Mr. Ali Hassan Saaed was charged with brutally attacking and sexually assaulting a 15-year-old girl after a party. He was arrested and brought to the police station mere hours after the alleged incident. He was given his right to counsel and was permitted to speak to a lawyer. While Mr. Saaed was in custody, the complainant advised the police that the assault had included penile penetration. The police then concluded that they had reasonable grounds to believe the complainant’s DNA would be on Mr. Saaed’s penis and determined a penile swab should be conducted to preserve the evidence. (As a side note, it appears that, as our law stands – and stood when the officers made this call, no warrant exists that necessarily covers a genital swab.)
The swab could not be taken immediately. To prevent Mr. Saeed from destroying evidence – by washing or urinating – the officers placed Mr. Saeed in a dry cell, with no access to toilet facilities or running water, and handcuffed his hands to a pipe on the wall. He was left there for between 30 and 40 minutes. The image conjured up from those details is horrific and dehumanizing; it is not less horrific because, in reciting the facts of the case, the majority of the Court made a point of stating that Mr. Saeed was fully clothed in the dry cell. That should have gone without saying; removal of clothing would only result in an even greater loss of dignity, which, if it occurred, would deserve significant attention. The majority of the Court was unconcerned about the conditions in the dry cell. When it came time to perform the swab, Mr. Saeed was given the option of doing it himself, under police supervision, or having a male officer do it.
The complainant’s DNA was found on the swab.
The accused’s identity was the primary issue at trial. The complainant recanted her evidence and while her friend provided testimony that implicated Mr. Saeed, her testimony was far from ideal: she had been intoxicated at the time of the incident, she didn’t know Mr. Saeed well, and she had only identified Mr. Saeed after seeing him in police custody. The penile swab was thus a valuable – if not invaluable – piece of evidence for the Crown to establish identity.
Mr. Saeed argued for the penile swab to be excluded on the basis that it violated his s. 8 Charter rights. The trial judge agreed that Mr. Saeed’s right to be free from unreasonable search or seizure was violated but held that the evidence was too important to be excluded. Mr. Saeed was convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal upheld the trial judge’s decision. Mr. Saeed appealed again to the Supreme Court.
The majority of the Supreme Court of Canada, however, with Justice Moldaver writing for the majority, held that there was no s. 8 Charter violation.
Some background information might help. Section 8 of the Charter gives everyone the “right to be secure against unreasonable search or seizure.” A penile swab is, at law, a search. To be reasonable, and thus consistent with s. 8, a search must be:
- authorized by law, and
- it must be conducted in a reasonable way (see R. v. Caslake,  1 SCR 51).
There are three main categories of searches that are “authorized by law”:
- where a warrant has been issued by a judge or a justice of the peace (to obtain a warrant, police must file an Information to Obtain a Warrant with the court and the decision-maker performs an extra “check” before a search can be made; if the decision-maker decides it meets the standard, he or she will grant a warrant);
- where the party being searched consents, and
- searches incident to arrest.
No warrant was granted in this case – nor was one sought (the supervising police officer testified that he had considered applying for a warrant but failed to follow up because it was his view that the proposed swab constituted a valid “search incident to arrest”). Mr. Saeed did not consent to the penile swab.
The authorizing law was thus said to be the common law powers of police to search accused persons incident to arrest. This power, as Moldaver J. recognized, “is an extraordinary power” that is more likely than other searches to intrude on an accused’s privacy interests, though it has been an “invaluable tool” for the police (see para. 1).
In order for a search incident to arrest to be valid:
- the arrest must be lawful;
- the search must be truly incidental to arrest – meaning that the search is to advance a valid law enforcement goal that relates to the reasons the accused was arrested, and
- the search must be conducted reasonably (see R. v. Fearon, 2014 SCC 77).
However, as Justice Moldaver noted, “In some cases, an accused’s privacy interests will be so high as to be almost inviolable,” and not subject to search incident to arrest powers. 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” (see para. 5). A penile swab, while a significant intrusion, is not so significant that it cannot be performed by a warrantless police search (see para. 6).
Until this case, R. v. Stillman was the leading authority on seizing bodily samples or particular impressions from an accused – and it sets out clearly that consent or a warrant is required to do so (see para. 44).
So how did R. v. Saeed come to be decided so differently?
In short, Justice Moldaver’s reasons seem to quibble over insignificant technicalities. He distinguished Stillman on the following grounds:
- Stillman involved seizing samples of the accused’s own body, which was held to intrude on the accused’s privacy and dignity, whereas “a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s.”
- Forcibly removing an accused’s hair or taking dental impressions can take time and is “highly intrusive” but “a penile swab is in some ways less invasive” because it is “quick and painless”, it doesn’t place anything inside the accused, nothing is forcibly taken from the accused, and the accused is merely required to expose a private part of his body for the swab.
- Unlike an accused’s DNA or bodily impressions, which do not change, the complainant’s DNA will degrade on the accused’s body, if it is there, and it could be destroyed – so acting quickly to preserve evidence is a relevant factor for conducting penile swabs.
(see para. 44- 50)
So, to summarize the majority’s reasoning, the accused doesn’t have a privacy interest in the complainant’s DNA because it doesn’t show anything about him – meaning that it doesn’t constitute a search of the accused, even though it takes place on his penis.
As Karakatsanis J., writing in dissent, notes, “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” (see para. 101). She argues that Stillman was not just about informational privacy in a person’s own respective DNA but that it predominantly involved protecting human dignity (see para. 102). She notes further that, “A genital swab is even more intrusive in the context of a female individual” (see para. 101). (Interestingly, Karakatsanis J. consistently used gender-neutral language and regularly referred to the swabs as “genital swabs” in her reasons; Moldaver J., differently, referred almost exclusively to “penile swabs” and did not seem to allow for a female accused – the effect of this is not obvious but could raise important gender equality issues in the future.)
That being said, the majority and the dissent all agreed that genital swabs can assist with important state interests and provide highly probative evidence, especially related to prosecuting sexual assaults, a serious offence that’s “notoriously difficult to prove” (see para. 107). There is a sense that complainants must be prioritized in determining an accused’s rights. While I would be the last person to downplay the victim’s importance, protecting rights and upholding privacy and dignity of all individuals – accused individuals included – is crucial in a free and democratic society. Seeking a warrant would take more time and, considering the position of the accused, handcuffed in a dry cell, Moldaver J. determined it was more humane to allow the swab (not to mention that there does not seem to be an appropriate warrant to cover this situation – meaning that the legality of nonconsensual genital swabs, at least until this decision, was highly questionable). Karakatsanis J. found, and I heartily agree, that the way Mr. Saeed was detained was “a further and troubling compromise of [his] dignity,” an indignity, which, in turn, should not be used to support another, being the penile swab.
Requiring a warrant or consent, or suggesting legislative action, would have sent a strong message about an accused person’s dignity and would have kept police powers in check, at least insofar as the police in this case were acting without judicial authorization or legislative guidance. That was not to be. This is a powerful decision for sexual assault victims and its impacts are far from a known quantity. Following this decision, it is now clear that police do have – and can use – common law powers to perform genital swabs incident to arrest, a sweeping power for the state to prosecute sexual offences, subject to ten broad guidelines that Moldaver J. outlined to ensure an accused’s dignity is respected.