R. v. Saeed

R. v. Saeed
Collection
Supreme Court Judgments
Date
2016-06-23
Neutral citation
2016 SCC 24
Report
[2016] 1 SCR 518
Case number
36328
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 36328
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518
Appeal heard: December 1, 2015
Judgment rendered: June 23, 2016
Docket: 36328
Between:
Ali Hassan Saeed
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario,
Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for Judgment:
(paras. 1 to 91)
Reasons Concurring in the Result:
(paras. 92 to 130)
Dissenting Reasons:
(paras. 131 to 168)
Moldaver J. (McLachlin C.J. and Cromwell, Wagner, Gascon, Côté and Brown JJ. concurring)
Karakatsanis J.
Abella J.
R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518
Ali Hassan Saeed Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Saeed
2016 SCC 24
File No.: 36328.
2015: December 1; 2016: June 23.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Search and seizure — Search incident to arrest — Accused arrested in connection with sexual assault — Police have reasonable grounds to believe complainant’s DNA is present on accused’s penis — Police seek penile swab from accused — Accused complies in privacy of police cell — Police do not attempt to obtain warrant — Complainant’s DNA detected on swab and introduced as evidence at trial — Whether common law power of search incident to arrest authorizes penile swabs — Whether swab was unreasonable and contrary to accused’s right to be secure against unreasonable search or seizure — If so, whether evidence discovered in search should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
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 (Abella J. dissenting): 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.: 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 or her own bodily integrity by collecting potentially self‑incriminatory evidence from the most private area of his or her 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.
Cases Cited
By Moldaver J.
Distinguished: R. v. Stillman, [1997] 1 S.C.R. 607; referred to: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Monney, [1999] 1 S.C.R. 652; R. v. Legere (1988), 89 N.B.R. (2d) 361; R. v. Laporte, 2016 MBCA 36, [2016] M.J. No. 104 (QL); R. v. Parchment, 2015 BCCA 417, 378 B.C.A.C. 146; R. v. Backhouse (2005), 194 C.C.C. (3d) 1; R. v. Smyth, [2006] O.J. No. 5527 (QL); R. v. H. (T.G.), 2014 ONCA 460, 120 O.R. (3d) 581; R. v. H.‑G., 2005 QCCA 1160.
By Karakatsanis J.
Discussed: R. v. Stillman, [1997] 1 S.C.R. 607; referred to: R. v. Caslake, [1998] 1 S.C.R. 51; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Laporte, 2012 MBQB 227, 283 Man. R. (2d) 9; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Pohoretsky, [1987] 1 S.C.R. 945; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657.
By Abella J. (dissenting)
R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Chuhaniuk, 2010 BCCA 403, 292 B.C.A.C. 89; R. v. Washington, 2007 BCCA 540, 248 B.C.A.C. 65; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Dhillon, 2012 BCCA 254, 93 C.R. (6th) 260; R. v. Voong, 2013 BCCA 527, 347 B.C.A.C. 278; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Kokesch, [1990] 3 S.C.R. 3; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215.
Statutes and Regulations Cited
Act to amend the Criminal Code and the Young Offenders Act (forensic DNA analysis), S.C. 1995, c. 27, s. 1.
Canadian Charter of Rights and Freedoms, ss. 8 , 10 (b), 24(2) .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 151 , 272(1) (c), 487.01 , 487.05 , 487.06(1) .
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, ss. 62(1), (10), 63, 65.
Authors Cited
Madden, Mike. “Marshalling the Data: An Empirical Analysis of Canada’s Section 24(2) Case Law in the Wake of R. v. Grant” (2011), 15 Can. Crim. L.R. 229.
Milne, Justin. “Exclusion of Evidence Trends post Grant: Are Appeal Courts Deferring to Trial Judges?” (2015), 19 Can. Crim. L.R. 373.
Paciocco, David M. “Section 24(2) : Lottery or Law — The Appreciable Limits of Purposive Reasoning” (2011), 58 C.L.Q. 15.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 7th ed. Toronto: Irwin Law, 2015.
Stewart, Hamish. “Section 24(2) : Before and After Grant” (2011), 15 Can. Crim. L.R. 253.
APPEAL from a judgment of the Alberta Court of Appeal (Watson, McDonald and Bielby JJ.A.), 2014 ABCA 238, 5 Alta. L.R. (6th) 219, 315 C.C.C. (3d) 127, 314 C.R.R. (2d) 338, [2014] 12 W.W.R. 291, [2014] A.J. No. 739 (QL), 2014 CarswellAlta 1181 (WL Can.), affirming the accused’s convictions for sexual assault causing bodily harm and sexual interference. Appeal dismissed, Abella J. dissenting.
Peter J. Royal, Q.C., and Conor Davis, for the appellant.
Maureen J. McGuire and Melanie Hayes‑Richards, for the respondent.
Melissa Adams and Susan Magotiaux, for the intervener the Attorney General of Ontario.
David Lynass and Greg Preston, for the intervener the Canadian Association of Chiefs of Police.
Howard L. Krongold and Vanessa MacDonnell, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Cromwell, Moldaver, Wagner, Gascon, Côté and Brown JJ. was delivered by
Moldaver J. —
I. Introduction
[1] The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.
[2] The appellant, Ali Hassan Saeed, was convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose. At his trial, the Crown introduced evidence showing that the complainant’s DNA was found on Mr. Saeed’s penis within several hours of the assault. Police obtained this evidence through a warrantless penile swab, conducted at the police station following Mr. Saeed’s arrest.
[3] Mr. Saeed objected to the admission of this evidence. He argued in the courts below, and now before us, that his right to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was violated because the police performed the penile swab without his consent or a warrant.
[4] At issue, once again, is the scope of the common law power of the police to search incident to arrest. Courts have examined and re-examined this power as new investigative methods and types of evidence have presented themselves. But no matter the context, to be constitutional, searches incident to arrest must be reasonable.
[5] Reasonableness in this context 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.
[6] For reasons that follow, I am of the view that this case falls into the second category. To be precise, I am satisfied that while a penile swab constitutes a significant intrusion on the privacy interests of the accused, the police may nonetheless take a 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, and the swab is conducted in a reasonable manner.
[7] Applying those requirements to this case, I conclude that the police had reasonable grounds to conduct the swab and that in carrying it out, they took reasonable steps to respect Mr. Saeed’s privacy. It follows that Mr. Saeed’s s. 8 Charter rights were not breached, and that the evidence of the complainant’s DNA obtained from the swabbing was properly admitted. Accordingly, I would dismiss the appeal.
II. Facts
[8] In the early morning hours of May 22, 2011, the complainant, age 15, and her friend S, age 14, attended a small party at an apartment building in the city of Edmonton. Another of the complainant’s friends, a man called Skip, joined them. There were three men at the party other than Skip. One was introduced as Ali.
[9] The complainant and S drank alcohol at the party. At some point, the complainant became tired. She was very intoxicated. S and Skip helped her to a bedroom to sleep. Around 4:00 a.m., the complainant awoke and discovered that S and Skip had left the apartment. She then went outside to find S. When she reached the front yard of the building, she was viciously attacked, in full public view, by a man who pushed her to the ground, hit her multiple times, tore her clothes, called her names, and proceeded to sexually assault her.
[10] In the meantime, S and Skip returned to the apartment and found that the complainant — and Ali — were gone. S went outside to look for her friend and heard the complainant screaming. She saw her friend on the ground outside of the apartment with a man on top of her. The man’s pants were pulled down and he had a knife in his hand. S recognized the man as Ali. She yelled for Skip to separate them. Skip pulled the man off the complainant.
[11] Skip drove the complainant and S to the group home where they both lived. The police were called and they arrived at the home around 5:00 a.m.
[12] The complainant was taken to the hospital. She had bruises, cuts, and scrapes all over her body, including her face. The examining nurse, who had special training with respect to sexual assault cases, noted tenderness in the complainant’s outer vagina but no other injuries in the genital area.
[13] Constable Mitchell took S back to the apartment building to investigate. They arrived at around 5:44 a.m. S directed Constable Mitchell to the apartment where she and the others had been partying, and told him that the assailant’s name was Ali.
[14] Constable Mitchell knocked on the apartment door. Mr. Saeed answered. When asked his name, he said it was Ali. Constable Mitchell arrested Mr. Saeed immediately and advised him of his right to counsel under s. 10 (b) of the Charter . It was 6:05 a.m.
[15] Mr. Saeed was taken to the police station but mistakenly released sometime between 7:00 a.m. and 7:30 a.m. Constable Mitchell was still at the scene when an officer brought Mr. Saeed back to the apartment. Constable Mitchell re-arrested Mr. Saeed at 8:35 a.m. He once again advised Mr. Saeed of his s. 10 (b) rights.
[16] Constable Mitchell returned to the police station with Mr. Saeed. They arrived at 8:50 a.m. Mr. Saeed was immediately permitted to speak to a lawyer. He took up the opportunity and finished the call at around 9:20 a.m.
[17] At some point that morning, the complainant disclosed to investigating officers that the sexual assault had involved penile penetration. This information was relayed to Detective Fermaniuk, who had a supervising role in the investigation. Based on this information and the proximity in time of the assault to the arrest, Detective Fermaniuk felt that there were reasonable grounds to believe the complainant’s DNA would be found on Mr. Saeed’s penis. Accordingly, he determined that a penile swab should be taken from Mr. Saeed to preserve this evidence.
[18] The penile swab could not be taken immediately after Mr. Saeed finished speaking to counsel because Constable Craddock, the officer responsible for collecting physical evidence, was not at the station. She was completing an interview with the complainant and photographing her injuries. In anticipation that a swab would be taken, at around 9:30 a.m., after Mr. Saeed had finished speaking to counsel, Detective Fermaniuk directed Constable Mitchell to place him in a dry cell, with no toilet or running water, to preserve the evidence. Mr. Saeed was handcuffed to the wall to prevent him from licking his hands or otherwise washing away evidence. Mr. Saeed was fully clothed.
[19] In his time on the force, Detective Fermaniuk had not personally been involved in taking a penile swab. He testified that he considered getting a warrant for the swab, but he did not follow up on this because in his view, the proposed swab was a valid search incident to arrest. He also testified that taking a swab was more respectful of Mr. Saeed, as applying for a warrant would have resulted in Mr. Saeed being handcuffed to a wall for several hours while the warrant was obtained. He did not consider getting a telewarrant.
[20] Constable Craddock returned to the station at around 10:00 a.m. Detective Fermaniuk requested a penile swab be performed, and Constable Craddock agreed that a swab was appropriate based on the allegation of penetration. Seizing DNA evidence such as a penile swab would ordinarily have been part of Constable Craddock’s job. However, in view of her gender, Detective Fermaniuk directed Constable Mitchell to perform the penile swab. Constable Craddock explained the procedure to Constable Mitchell.
[21] Mr. Saeed spent about 30 to 40 minutes in total handcuffed in the dry cell. At around 10:10 a.m., he was escorted from the cell to speak with an interpreter. Acting Detective Kachkowski informed Mr. Saeed of the possibility that the police might take DNA swabs from him and arranged for a phone call with the interpreter. During the call, Acting Detective Kachkowski repeated to Mr. Saeed the reason for his arrest and once again advised him of his s. 10 (b) rights. Mr. Saeed indicated that he had already spoken to a lawyer, and that he understood that he was not required to make any statements.
[22] The call with the interpreter was used to prepare Mr. Saeed for the process of taking the swab. Constable Craddock explained the process of obtaining a swab to the interpreter, and had the interpreter repeat the process back to her to make sure that the interpreter understood. Mr. Saeed then spoke directly to the interpreter about the swabbing process. The interpreter informed Mr. Saeed how the swab would be taken, and that he could choose either to take the swab himself, or to have a male officer take it for him.
[23] Following the call with the interpreter, Mr. Saeed was escorted back to the dry cell, where Constable Craddock took pictures of him fully clothed. Several scratches on his face were apparent. She left the room.
[24] The swab took place at around 10:45 a.m. Constable Mitchell, Detective Fermaniuk, and Mr. Saeed were the only persons in the cell at the time. The cell had a small window, located towards the top of the door. During the swabbing process, the officers blocked the window with their bodies so that no one could look into the room. Constable Craddock stood outside the closed door.
[25] The procedure took at most two minutes. Mr. Saeed was fully clothed, but pulled his pants down in order to take the swab. Constable Mitchell handed Mr. Saeed a swab with a cotton tip and a four to five inch-long handle. Under Constable Mitchell’s direction, Mr. Saeed wiped the cotton tip of the swab along the length of his penis and around the head before returning the swab to Constable Mitchell. The swab came into contact only with the skin on the outside of Mr. Saeed’s body. Mr. Saeed then pulled up his pants. Constable Mitchell returned the swab to Constable Craddock, who sealed it in order to preserve the evidence.
[26] The swab was tested. It revealed the complainant’s DNA on Mr. Saeed’s penis.
[27] At trial, the central issue was the identity of the complainant’s assailant. The main evidence implicating Mr. Saeed came from the testimony of the complainant and S, and the DNA evidence from the penile swab. The complainant testified to the assault, but in cross-examination, she recanted her identification of Mr. Saeed. S maintained her identification of Mr. Saeed, but her identification was far from ironclad. She was intoxicated when she witnessed the sexual assault, did not know Mr. Saeed well, and identified him for the first time to police only when she saw Constable Mitchell leading him from the apartment building.
[28] As indicated, Mr. Saeed challenged the admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The Crown called Kenneth Hunter, a forensic specialist, to provide expert opinion evidence. Mr. Hunter testified that he would expect to find the complainant’s vaginal DNA on the accused’s penis for a period of time after a sexual assault involving penile penetration, if no condom was used. He further stated that urination by the accused, humidity, warmth, sweat, and the natural bacteria present on the accused’s skin could all cause this type of DNA evidence to degrade. An accused could also wash off or wipe away the DNA evidence.
[29] Mr. Hunter could not state definitively the time frame within which a swab must be taken, due to the many factors that affect how long a complainant’s DNA will remain on the accused’s penis — including whether the accused chooses to destroy the evidence. Mr. Hunter referred to a study on DNA transfer conducted on consenting couples who were not permitted to wipe or wash after intercourse. The study found that DNA degradation began five hours after intercourse for some couples, but for others, degradation did not begin until twenty-four hours after intercourse. However, because of the likelihood that an accused will urinate, wash, or wipe away the evidence, Mr. Hunter testified that a swab should be taken as soon as possible. Mr. Saeed did not give evidence on the s. 8 application.
III. Decisions Below
A. Alberta Court of Queen’s Bench — Sulyma J.
[30] The trial judge ruled that the penile swab violated Mr. Saeed’s s. 8 Charter right to be free from unreasonable search and seizure. She concluded that exigent circumstances are required to justify conducting a warrantless penile swab. Exigent circumstances — namely, the imminent loss of evidence — did not exist in this case. However, the trial judge noted that based on the factors governing the reasonableness of strip searches set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, the police conducted the swab in a reasonable manner.
[31] The trial judge admitted the evidence from the penile swab under s. 24(2) of the Charter , having regard to the factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. She found that there was no bad faith on the part of the police.
[32] Mr. Saeed did not testify at trial. On the evidence before her, the trial judge convicted him of sexual assault causing bodily harm under s. 272(1) (c) of the Criminal Code, R.S.C. 1985, c. C-46 , and unlawful touching for a sexual purpose under s. 151 of the Criminal Code . In convicting Mr. Saeed, the trial judge relied on S’s identification and the DNA evidence. Mr. Saeed appealed his convictions.
B. Alberta Court of Appeal, 2014 ABCA 238, 5 Alta. L.R. (6th) 219 — Watson, McDonald and Bielby JJ.A.
[33] The Alberta Court of Appeal unanimously dismissed the appeal. The court divided on whether the taking of the swab violated Mr. Saeed’s s. 8 rights, but agreed that the DNA evidence was properly admitted at trial.
[34] For the majority, Watson and Bielby JJ.A. held that taking the swab violated Mr. Saeed’s rights under s. 8 . In their view, the seizure of bodily material that may infringe upon a person’s dignity was governed by this Court’s decision in R. v. Stillman, [1997] 1 S.C.R. 607. And because a penile swab infringes on a person’s dignity, absent Mr. Saeed’s consent, the police were required under Stillman to obtain a warrant for the swab. There were no exigent circumstances in this case that would justify bypassing the warrant requirement.
[35] Justice McDonald, concurring in the result, held that Mr. Saeed’s s. 8 rights were not violated because the swab was a valid search incident to arrest. He distinguished Stillman, holding that it applies only to samples of an accused’s own bodily substances. In his view, the search here was effectively a strip search and was therefore governed by the requirements in Golden. The police met these requirements.
IV. Analysis
[36] To be reasonable and therefore consistent with s. 8 of the Charter , a search must meet three requirements: (1) the search must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be