Most people would say that if police need a warrant to search a private place like a house or a car or a cellphone, surely they would need a warrant to examine and touch and take samples from one’s genitals.
In most situations, the police are required by law to obtain a warrant before conducting a search. However, there are certain circumstances where the police can circumvent these measures due to the impracticability of obtaining a warrant or risk of disappearing evidence. In the recent case of R v Saeed, the Supreme Court of Canada held that the common law power of the police to search incident to arrest includes the ability to obtain a penile swab. As a result, a warrant or consent of the accused is not necessary when collecting a penile swab, provided that certain conditions are met.
Firstly, the swab must be connected to the reasons for the arrest and performed for a legitimate purpose. Secondly, there must be reasonable grounds to believe that the penile swab can serve as evidence for the alleged crime committed by the accused. Consequently, the police will generally lack reasonable grounds if the accused is arrested several days after the offence occurred. In addition, the police must take reasonable steps to guarantee that the accused’s privacy rights and dignity are maintained while obtaining the swab. For instance, the swab should be carried out as quickly as possible and in a manner that ensures that the accused is not completely undressed at any given time.
In this case, the collection of the swab was directly related to the offence for which the accused was charged. The complainant and witnesses at the scene identified Mr. Saeed as the man who brutally attacked and sexual assaulted the complainant outside a house party. Moreover, the complainant disclosed to the police that penile penetration was involved during the sexual assault. This fact, in conjunction with the proximity of time between the alleged assault and the arrest gave the police reasonable grounds to believe that the Mr. Saeed’s penis likely contained the complainant’s DNA. Prior to taking the penile swab, the police implemented extensive measures to preserve the DNA. For approximately one hour, Mr. Saeed was placed in a dry cell with no running water and toilet, and was also handcuffed to the wall, in order to prevent him from washing away the evidence. After the swab was tested, it was revealed that the complainants DNA was found on Mr. Saeed’s penis.
Competing interests are at play in relation to the collection of penile swabs incident to arrest. On the one hand there is the state’s interest in prosecuting serious crimes such as sexual assault, while on the other there is the need to ensure that Charter rights are maintained. For the Supreme Court, the central issue in this case was whether or not the accused’s section 8 Charter right – that is to be free from unreasonable search and seizure – was violated as a result of the collection of the penile swab. The majority held that section 8 was not breached.
While the case of R v Stillman requires that the police obtain consent or a warrant prior to the seizure of bodily samples, the Supreme Court held that the rule in Stillman did not apply in this case. To begin with, Moldaver J. stated that Mr. Saeed’s privacy interests were lower than the one’s concerned in R v Stillman, as penile swabs are designed to seize the complainant’s bodily materials, not the accused’s. While the swab will inevitably contain bodily substances from the accused and in turn his DNA, it will not be used to for any purpose other than detecting the complainant’s DNA on the accused. Furthermore, unlike dental impressions and hair removal, which were the subject matter of the search in R v Stillman, a penile swab is less invasive, as it simply involves the contact of a cotton swab with the outer lawyer of a penis. On the other hand, Karakatsanis J. argued that Mr. Saeed’s section 8 right was breached. Since penile swabs require a person to expose the most intimate part of their body, it is significantly more detrimental to an individual’s privacy and human dignity than the collection of hair or dental impressions.
The question of whether a warrant is even available to obtain a penile swab is unclear. No provision in the Criminal Code specifically authorizes this type of search. Although a general warrant permits the police to do anything that is not authorized, would be considered an unreasonable search or seizure, under s.487.01 (2) of the Criminal Code, this search cannot permit interference with one’s bodily integrity. Since the Supreme Court remained divided on the issue of whether a penile swab is an affront to an individual’s bodily integrity, it is up to Parliament to decide.
The bottom line is that in recent years, the Supreme Court has limited the scope of Charter rights to privacy when it comes to searches. The Court has started to distinguish between which rights matter more (the right to counsel), and those which apparently matter less (the right to be free from unreasonable search).