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SCC rules swabs don’t violate Charter

Thursday, July 07, 2016 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s decision authorizing police to swab DNA from the penises of some sexual assault suspects incident to their arrest raises the question whether Parliament should create a new warrant for invasive personal searches, such as genital swabs and body cavity searches.

On June 23, the top court split 7-2 to dismiss the appeal of Ali Hassan Saeed of Edmonton, who was convicted in the Alberta courts below (based partly on DNA evidence) of beating and raping a 15-year-old girl at knifepoint in a case where her assailant’s identity was disputed: R. v. Saeed 2016 SCC 24.

Relying on what they considered to be their common law power of search incident to arrest, police officers compelled Saeed to do a DNA swab on his penis, about five hours post-assault. At that time, he had been handcuffed to a pipe on the wall for about 40 minutes in a “dry” cell without a toilet or running water, so that he could not destroy any evidence on his body. The swab yielded vaginal fluid containing the complainant’s DNA, but Saeed argued his s. 8 Charter right to be free from unreasonable search and seizure was violated by the warrantless procedure, and that the resulting evidence should thus have been excluded under s. 24(2) of the Charter.

The Supreme Court’s majority held that there was no Charter violation — after it expanded the common law power to conduct searches incident to arrest to encompass police compelling (under threat of force) penile swabbing of sexual assault suspects, in some circumstances. The court created a test for when penile swabs will be reasonable, and thus Charter-compliant, as well as detailed guidelines for how to conduct such searches in a reasonable manner.

“While the process of taking a penile swab from Mr. Saeed intruded on Mr. Saeed’s privacy, it did not fundamentally violate his human dignity,” Justice Michael Moldaver wrote for seven judges.

“Far from it,” he stressed, pointing out that the two-minute procedure was neither painful, “penetrative,” nor a health risk. “The police conducted a well-grounded search incident to a valid arrest,” the majority held. “They took care to minimize the intrusion on Mr. Saeed’s privacy.”

Importantly, the case involved a challenge to the taking of a penile swab, and the use of the complainant’s DNA (not the accused’s) — which thus did not implicate the accused’s privacy interest in his own DNA, the majority said. The judges stipulated if an accused’s DNA is also present on a swab taken without his consent or a warrant authorizing the seizure of his DNA, “the accused’s DNA cannot be used for any purpose.”

The majority also expressly stated they were confining the new search incident to arrest power to “genital swabs conducted on the outer surface of the skin” and were not deciding whether “penetrative” searches of body cavities — vaginas and rectums — could ever be reasonable and therefore Charter- compliant.

The Alberta Crown saw the penile swab issue as so important for the investigation and prosecution of sexual assault cases that it supported Saeed’s application for leave to appeal to the top court.

Maureen McGuire, who argued the appeal for the Alberta Crown along with Melanie Hayes-Richards, told The Lawyers Weekly she doesn’t see the judgment as “such a big departure” from the pre-Saeed law on search incident to arrest. She pointed to the guidelines for strip searches in R. v. Golden 2001 SCC 83, whereby “police officers are checking between people’s butt cheeks and removing bags of drugs and…the Supreme Court has said that’s OK…The only difference, really, is that this is a sex assault investigation compared to the exact same thing that’s done in drug cases all the time, without this same level of opposition.”

While both the majority and minority justices emphasized the important privacy interests implicated by penile swabs, McGuire said she find it a “strange” suggestion that the considerations should differ based on whether the investigation is for drugs or sexual assault. “It’s still the same act of collecting evidence.”

McGuire said the issue of whether police can conduct warrantless body cavity searches incident to arrest awaits a future case.

Saeed’s counsel Peter Royal of Edmonton’s Royal and Co. could not be reached for comment.

In their separate opinions, Justices Rosalie Abella and Andromache Karakatsanis argued that the appellant’s Charter rights were violated because, in their view, the power of search incident to arrest does not authorize police to take non-consensual penile swabs. “Genital swabs are substantially more invasive and dehumanizing than mouth swabs, hair samples and dental impressions” — procedures which the Supreme Court held in R. v. Stillman [1997] 1 S.C.R. 607, fall outside the common law power of search incident to arrest because they too greatly infringe bodily integrity, privacy and human dignity, noted Justice Karakatsanis. Echoing the majority, she said “that Parliament could choose to create a legislative regime for genital swabs that balances the need to obtain and preserve evidence with the need to safeguard privacy interests, much as it did for DNA samples.”

Laura Berger, staff lawyer with the Canadian Civil Liberties Association, called the majority’s ruling “a disappointing expansion of police powers.”

She noted “there does seem to be a worrisome trend of expanding the boundaries of the search incident to arrest, as we also saw in” R. v. Fearon 2014 SCC 77, which dealt with a search of a cellphone incident to arrest. “The court attempts to add internal controls, or to add an internal threshold, to ensure that the power is not abused, but we’re concerned about how effective those safeguards really will be in the field.”

Berger adds: “One troubling aspect of the majority’s decision is the way they characterize the invasiveness of the genital swab…I think the distinctions relied on by the majority served to downplay the privacy interests involved, and mask the fact that in reality this is…an extremely invasive search that really strikes to the heart of someone’s dignity and personal bodily integrity.”

Berger said it is unclear what the majority means by confining genital swabs to the “outer surface of the skin” — e.g. do female labia fall into that category? And why is a genital swab that touches the inside of the body more invasive than one that does not? “In our mind that’s splitting hairs a little bit,” Berger remarked. “I think clearly any kind of genital swab is incredibly invasive, and should be treated as such.”

Queen’s University law professor Donald Stuart, editor of the Criminal Reports, opined: “It’s way too pragmatic [for the majority] to say, ‘Well, there wasn’t really a Charter issue because they were looking for the complainant’s DNA.’ I mean it was his penis. I think it’s very difficult for the majority to distinguish, and not follow, Stillman.” On the positive side, the court imposed detailed safeguards, he said.

Justice Moldaver acknowledged penile swabbing incident to arrest intrudes on an accused’s privacy, but said the intrusion is “limited” and “not so substantial as to require the police to obtain consent or a warrant.”

“On the other side of the ledger,” enabling police to do warrantless DNA swabbing incident to arrest enables them to preserve important evidence (DNA in fluids degrades in a matter of hours, and can be washed or wiped away by an accused; however police demands for a DNA swab days after the alleged crime are likely to be deemed unreasonable).

“Sexual assaults are notoriously difficult to prove,” Justice Moldaver remarked, noting the case at bar illustrated how important DNA swab evidence can be. “This type of evidence is highly reliable. It can be crucial in the case of complainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as a result of the offence or otherwise…And of course, a penile swab incident to arrest may serve, in the end, to exclude a particular suspect.”

Pre-Saeed, penile swabbing was a practice countenanced by some trial judges, but there was no definitive appellate consensus across Canada.

The majority held that police may conduct penile swabs incident to arrest if (1) they have reasonable grounds to believe the swab would reveal the evidence sought and (2) that the swab was conducted “in a reasonable manner.”

Justice Moldaver stressed that conducting a penile swab incident to arrest in a reasonable manner requires police to be “sensitive to the need to preserve” the suspect’s “privacy and dignity.”

He outlined 10 factors to guide police, including keeping “a proper record” of the reasons for, and the manner in which, the swabbing was conducted. An accused should also be given the option of swabbing himself and, if he refuses to do so, a trained officer or medical professional should do so “with the minimum of force necessary.”