R. v. M.T., 2016 NUCJ 9

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. M.T. , 2016 NUCJ 09 Date: 20160414 Docket: 08-14-469 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: M.T. ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Respondent): Benjamin Flight Counsel (Applicant): Shannon O’Connor Location Heard: Iqaluit Nunavut Date Heard: December 4, 2015; January 29, 2016 Matters: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, ss. 7, 8 , 10(b) ; Voir Dire ; Common Law : Powers of Police Incident to Arrest REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Table of Contents REASONS FOR JUDGMENT . 1 I. INTRODUCTION .. 4 II. FACTS .. 5 III. ISSUES .. 6 IV. THE LAW ... 6 V. ARGUMENTS .. 7 A. Applicant 7 B. Respondent 8 VI. ANALYSIS .. 9 A. Did the warrantless search and seizure of the swab constitute a breach of sections 7 and 8 of the Charter ? . 9 B. Did the police violate the applicant’s

section 10 (

b) Charter right to counsel? . 16 VII. CONCLUSION .. 18 I. INTRODUCTION [ 1 ] This application made pursuant to sections 7, 8, and 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], pertains to charges of sexual assault and sexual touching where it is alleged that the applicant penetrated the young complainant’s vagina with his penis. During the investigation,

a member of the Royal Canadian Mounted Police [R.C.M.P.] obtained and seized a penile swab [swab] from the applicant. This Charter application hinges upon the legality of the procurement of that swab. [ 2 ] Counsel for the applicant originally filed an application for a stay of proceedings pursuant to section 24(1) of the Charter . The applicant alleged that the taking of the swab violated his rights pursuant to

section 8 of the Charter . The applicant also alleges that the police should have given him a second chance to speak to his lawyer before taking and seizing the swab. Their failure to do so, he states, violated his

section 10(

b) Charter right to counsel. The applicant changed counsel after written arguments were filed. Ms. O’Connor, the applicant’s second lawyer, took a different tack from her predecessor. Although I have read the original written submission, I have considered primarily Ms. O’Connor’s oral arguments in coming to my decision. [ 3 ] The Crown [the respondent ] submits that the swab was obtained lawfully as incident to the arrest of the applicant.

Alternatively, the respondent asserts, among other things, that any Charter breach does not fit the criteria for the imposition of a stay of proceedings, or for exclusion of the evidence. Crown counsel also changed during these proceedings and the second prosecutor filed an amended written argument. I have read the original written submission, but I have primarily focused on Mr. Flight’s oral and written submissions. [ 4 ] The Court heard evidence in Iqaluit on December 4, 2015, and January 29, 2016. Constable [Cst.] Joe Baines, Cst. Andrew Kerstens, Cst. Allan Foster, Cst. Jenny MacKinnon, and Cst.

Sedat Kulafofsky testified for the respondent. The applicant elected not to call evidence. The parties also filed an Agreed Statement of Facts . [ 5 ] The question raised by this application was the subject of a decision in R v Saeed , 2014 ABCA 238 , [2014] AJ No 739 (QL) [ Saeed ] . In Saeed , the majority ruled that “[s]uch a search cannot be justified, without warrant, simply on the basis of being incidental to arrest, without more.” Leave to appeal to the Supreme Court of Canada in that case was granted on April 30, 2015. The appeal was argued on December 1, 2015.

The Supreme Court reserved its judgment without date. In the interest of moving this case along, counsel for both parties have asked this Court not to wait for the Supreme Court to rule. I reserved judgment. These are my reasons for decision. II. FACTS [ 6 ] The complainant reported an alleged sexual assault to the R.C.M.P. in Iqaluit close to midnight on the evening of September 14, 2014. She identified the applicant as the suspect. She reported that the applicant had raped her without a condom, and that he had ejaculated inside her. In preparation for the arrest, Cst. Andrew Kerstens contacted Cst.

Alan Foster of the R.C.M.P. Major Crime Unit to seek direction concerning the taking of a possible swab. He was told by Cst. Foster that such a swab was akin to taking fingerprints, and that no prior judicial authorization was required. Cst. Foster explained the procedure to him. The applicant was arrested at approximately 12:48 a.m. on September 15th, at which time he was explained the reasons for his arrest and his right to counsel. He was taken to the detachment. [ 7 ] The applicant spoke to duty defence counsel at about 1:09 a.m. That call lasted approximately fourteen minutes. Shortly afterward, Cst.

Kerstens told the applicant for the first time that he intended to swab his penis for evidence. The procedure was explained to the applicant and it was done in private. The applicant’s pants and underwear were lowered only as far as was necessary to facilitate the procedure. The applicant was allowed to swab himself with a swab moistened with sterile water. He did so under the Constable’s guidance and supervision. The procedure was neither audio nor videotaped.

The swab was seized as evidence and was sent for analysis. [ 8 ] The parties agree that the search and seizure of the swab at issue were incidental to a lawful arrest. III. ISSUES [ 9 ] Were the applicant’s

section 7 and 8 Charter rights infringed when the police obtained a swab from him?

[ 10 ] Were the applicant’s

section 10(

b) Charter rights infringed when the police demanded the swab only after he had spoken with duty counsel? [ 11 ] If the answer to either question is yes, what remedies, if any, are available to the applicant pursuant to section 24(1) of the Charter ? IV. THE LAW [ 12 ]

Section 7 of the Charter provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” [ 13 ]

Section 8 of the Charter provides: “Everyone has the right to secure against unreasonable search or seizure.” [ 14 ]

Section 10(

b) of the Charter provides: “Everyone has the right on arrest or detention […] (

b) to retain and instruct counsel without delay and to be informed of that right” [ 15 ] Section 24(1) of the Charter provides: Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 16 ] The onus of proof respecting sections 7 and 8 of the Charter lies with the respondent to prove that the warrantless search was not illegal. [ 17 ] The onus of proof respecting the alleged

section 10(

b) Charter breach lies on the applicant. V. ARGUMENTS A. Applicant

[18] The “crux” of the applicant’s

section 8 Charter argument is that the common law does not permit the police to search for penileswabs incidental to arrest. Nor, she asserts, should the common law be extended to permit the seizure of this “core DNA.” The highlypersonal nature of this information is shown by the possibility that swabs could reveal the DNA not only of the applicant, but also ofinnocent third parties who may have previously had consensual sexual relations with the applicant.

She asserts that strict legislativecontrol in this area is required. [19] Counsel grounded her application upon the principles enunciated in R v Stillman, (SCC), [1997] 1 SCR 607, 113CCC (3d) 321 [Stillman], and Saeed. Stillman concerned the non-consensual seizure, from a young person, of dental impressions, buccalswabs, hair samples, as well as a tissue used and discarded by the youth. Saeed concerned the taking of a penile swab from an accusedwho had been arrested on an allegation of sexual assault. As I mentioned earlier, leave to appeal to the Supreme Court of Canada in thatcase was granted on April 30, 2015.

The appeal was argued on December 1, 2015. [20] Counsel also argued that the search was not conducted reasonably. The police made no effort to determine whether the applicanthad showered, changed his clothes, or gone to the washroom before he was arrested. Therefore, the police did not have reasonable andprobable grounds to conduct the search. Counsel asserted that this approach by the police violated the applicant’s “strong residualprivacy interests.” Consequently, the police breached the applicant’s

section 8 Charter rights. [21] Furthermore, counsel argued that there was “no excuse” for the police to fail to advise the applicant of their intention to conductthis non-routine procedure before speaking with his lawyer. This was an “egregious” failure to respect the law enunciated in R v Sinclair,2010 SCC 35, 90 WCB (2d) 610 [Sinclair], and a breach of the applicant’s

section 10(

b) Charter right. She noted that the police alsofailed to file the requisite Report to Justice until one year and a half had passed. These two failures of the police to respect the law of theland should inform the Court’s analysis of the unreasonable manner in which the search was conducted. [22] At this juncture, counsel says she is not seeking a remedy, but rather a declaration that the applicant’s Charter rights wereinfringed. B.

Respondent [23] The respondent argued that the taking of a penile swab “constitutes a strip search.” He said the search was conducted reasonably asthe police acted in conformity with the requirements set out in R v Golden, 2001 SCC 83, 159 CCC (3d) 449 [Golden], and that thesetypes of searches are available at common law (R v Harasemow, 2014 BCSC 2287, 16 CR (7th) 32; R v Amey, 2013 ONSC 5108, 108WCB (2d) 776; Saeed, McDonald, J. in dissent). [24] The respondent argued further that the police could have sought a general warrant to search pursuant to

section 487.01 of theCriminal Code, RSC 1985, c C-46 [Criminal Code], but that it was unnecessary. [25] In written argument, the respondent stated that the applicant’s

section 10(

b) Charter right was not breached. However, in oralargument, he said the police did breach that right, but that the evidence should be admitted. [26] Alternatively, the respondent asserted that a reduction of sentence upon conviction could be an appropriate Charter remedy. VI. ANALYSIS A. Did the warrantless search and seizure of the swab constitute a breach of sections 7and 8 of the Charter?

[27] This application turns upon the scope of the common law power conferred on the police to seize evidence without warrant asincident to a lawful arrest. There is no suggestion in the present case that the applicant’s arrest was unlawful. Nor has any argument beenraised that the search was not incidental to a lawful arrest. [28] As the applicant relied on Stillman and Saeed, it is necessary to consider what each case decided. Stillman, as counsel for theapplicant noted correctly, dealt with the seizure without warrant of Mr. Stillman’s own bodily substances.

The police took buccal swabs,samples of his pubic and scalp hair, as well as his dental impressions. The case made its way to the Supreme Court of Canada where themajority ruled that the police did not have authority at common law to seize these categories of samples incident to arrest. [29] Specifically, counsel cited paragraph 43 of the decision of Cory, J. writing on behalf of the majority in Stillman. That portion of thejudgment considered Parliament’s codification of search and seizure provisions for a suspect’s DNA.

Of more relevance, I believe, arethe previous portions of Justice Cory’s judgment: 42 […] It has often been clearly and forcefully expressed that state interference with a person’s bodily integrity is a breach of a person’sprivacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification[…] In addition,La Forest, J. observed in R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 431-32, “the use of a person’s body without hisconsent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity”.

Finally, in R. v. Simmons, [1982] 2 S.C.R. 495, at p. 517, Dickson, C.J. stated: The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers haverecourse to medical doctors, to x-rays, to emetics, and to other highly invasive means.

Searches of the third or bodily cavity type may raise entirely difference constitutional issues for it is obvious that the greater theintrusion, the greater must be the justification and the greater the degree of constitutional protection” [Emphasis added]. [30] Central to this analysis is the recognition by Dickson, C.J. that greater intrusion requires greater constitutional protection. I shallreturn to that idea momentarily. [31] Cory J. addressed the Crown’s argument that the taking of dental impressions was analogous to the routine investigative techniqueof fingerprinting.

In rejecting that argument, Corey J. cited LaForest, J. in R v Beare, (SCC), [1988] 2 SCR 387, [1987]SCJ No 92, on the reduced expectations of privacy of an accused upon arrest, at paragraph 45: “While some may find [fingerprinting] distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There isno penetration into the body and no substance is removed from it”. [32] I cite that paragraph because it is important to remember that upon arrest for sexual assault, a suspect has a reduced expectation ofprivacy respecting the possible presence of an alleged victim’s DNA on his person.

Furthermore, while some may consider swabbing apenis to be distasteful, it is no more intrusive a procedure than fingerprinting. [33] I also believe it is important to recall that although there is language in Stillman of general applicability, the decision did notaddress or consider explicitly the seizure of a complainant’s bodily substances from the person of an accused. The entire focus ofStillman turned upon “the use of a person’s body without his consent to obtain information about him” [Emphasis added].

I understandthat to mean the search for, and seizure of, the suspect’s own bodily substances and DNA, which everyone understands requires priorjudicial authorization. It did not, in my view, purport to refer to the search and seizure for bodily fluids left by the complainant on thesuspect’s body where that search does not engage any intrusive procedure. Only in the very broadest sense can that information beconstrued to be information “about him”.

To the extent that the presence of the complainant’s fluids might give information about thesuspect, it is, in my view, at the very lowest end of the spectrum and does not require the same level of constitutional protections as theintrusive procedures contemplated in Stillman. [34] I now turn to Saeed which considered the taking of a penile swab incident to arrest and the question of the admissibility of theresultant DNA analysis.

[ 35 ] Writing for the two justice majority in Saeed , Wilson, J. ruled that Stillman governed the outcome. The majority judges stated: 55 [ Stillman ] cannot be distinguished on the basis that some of the seized material there was obtained from within the body, namely the dental impressions, whereas here the seized material was obtained from the surface of the body, from the penis.

The relevant question is not whether the seizure occurs from the surface of or from within any part of the body, but whether the nature of the area from which material is taken is such that the search and resulting seizure may infringe upon the person’s bodily dignity in such a way as to constitute the ultimate affront to human dignity[…] 62 […] this is an area of the law that must be approached with acute attention to the rights of the individual even though it must also be attentive to the quite understandable needs and practicalities of law enforcement and public protection[…] [ 36 ] While of persuasive authority, the majority decision in Saeed is not binding upon this Court .

I respectfully disagree with the foregoing Stillman analysis for several reasons. First and most importantly, the real issue here, the search for a complainant’s DNA on the body of a suspect, was not argued before the Supreme Court in Stillman . That case was concerned with the seizure from the suspect of his own buccal substances, dental impressions, and hair follicles. These samples could only be obtained by highly intrusive and penetrative investigative procedures.

The invasive nature of these procedures is simply not analogous to swabbing a suspect’s penis. [ 37 ] Nor do I agree that the taking of a penile swab is by definition “an ultimate affront to human dignity”. There is some merit to the view that “In Canadian society, people generally identify themselves with their bodies” [ Saeed , para 56] . But as a matter of principle, the reasonableness of a law should not be confused with the manner in which the police exercise their authority. I draw an analogy to the seizure of fingernail scrapings.

The common law has long held that this procedure may be conducted incident to a lawful arrest. However, it is possible to envisage scenarios where the scrapings could be obtained unreasonably. The key criterion is not the part of the body searched, but the manner in which that search is conducted. Put another way, that one may envisage circumstances where the taking of a penile swab may be unreasonable does not mean all such procedures will offend the law. [ 38 ] The majority in Saeed also stated that a search warrant was required to obtain the sample in issue.

However, in my view, there is no statutory provision which authorizes the issuance of a search warrant to obtain a penile swab from a suspect. I do not agree with the respondent that such a warrant may be obtained pursuant to the general search warrant provisions of

section 487.01 of the Criminal Code . Subsection 2 of

section 487.01 provides that “[n]othing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person”. Whether or not such a swab is an interference with a suspect’s bodily integrity, it is an interference with the suspect’s personal dignity. Significantly, the court in Saeed did not identify a

section 487.01 general search warrant as an available tool. If state agents are to procure such a penile swab lawfully, their authority to do so in the absence of legislation must be grounded in the common law. Otherwise, their actions will breach the Charter . [ 39 ] In considering this issue, I have been aided by the analytical framework adopted by Cromwell, J. on behalf of the majority of the Supreme Court of Canada in R v Fearon , 2014 SCC 77 , 318 CCC (3d) 182 [Fearon] .

The Supreme Court in Fearon determined that the search of a cell phone in Canada was within the scope of the common law power to search incident to arrest. It is noteworthy that in Saeed , Wilson, J. cited a 2014 decision to the contrary issued by the Supreme Court of the United States (see paragraph 52). [ 40 ] Fearon , it is true, dealt with a different form of privacy issue. However, it reminds us that the common law is not set in stone. It is a living construct developed by judges who follow and apply first principles with guidance from extensive jurisprudence and precedent.

The common law must take account of, and reflect, changes and developments in science and technology if it is to remain relevant as well as retain the respect of the population. I have considered these issues in the context of this application. [ 41 ] Cromwell, J. succinctly outlined the analytical framework which governs this Charter analysis. Cromwell, J. reminded us that a search is reasonable pursuant to

section 8 of the Charter “if it is authorized by a reasonable law and is conducted reasonably.” The police have long enjoyed the power to search incident to arrest, so the reasonableness of the search must be determined on the basis of “the particular circumstances of the particular arrest.” The court must weigh “the public purposes served by effective control of criminal acts” against “respect for the liberty and fundamental dignity of individuals.” Ultimately, the court must conduct that analysis in a manner that is consistent with

section 8 of the Charter [paras 12-14].

[42] The common law has long permitted the warrantless seizure from a suspect of fingerprints, swabs for gunshot residue, and fingernail scrapings as incident to a lawful arrest. Save for the fact that a penile swab requires exposure of the genital area, there is little todistinguish that procedure from the others I have just mentioned. The taking of a penile swab is a quick procedure, the body is notpenetrated so there is no interference with bodily integrity, and very little force is applied.

If the swab is taken in private in conformitywith Golden, at paragraph 43, the impact on personal dignity is minimal and transient, and it leaves no lasting impression. The real issueis whether the police acted reasonably in the particular circumstances of this particular arrest. For the reasons I shall now explain, I findthat in appropriate circumstances, the common law provides the police with authority to obtain penile swabs from a suspect incident to alawful arrest. [43] It is settled law that strip searches incident to arrest are legal if the police conform to the principles prescribed in Golden.

Thesesearches are an exception to the well-known general rule that a warrantless search is presumptively unreasonable under

section 8 of theCharter. [44] The facts of the present case most closely resemble the circumstances which surround strip searches as the suspect must partiallyundress. There is, of course, the added element that a sterile swab is applied to the exterior of the suspect’s genitals once his pants havebeen lowered.

Seen in this light, it is should be obvious that the common law principles governing strip searches will apply with dueconsideration given to the added application of the sterile swab to the suspect’s penis. [45] The court must balance the interest of the individual to be secure from arbitrary state interference with his person against the publicinterest in securing the safety of police investigators and the preservation of evidence which otherwise might be lost.

As I noted above, awarrantless search by police of a suspect will survive subsequent Charter scrutiny by the Court if: it was authorized by law; if theauthorising law is reasonable; and, if the actual search was conducted reasonably [R v Collins, (SCC), [1987] 1 SCR265, [1987] SCJ No 15]. [46] In this case, the parties concede that the applicant’s arrest was lawful, and that the search and seizure was incident to his lawfularrest. Despite the appeal by the Supreme Court of Canada for clear legislative guidelines in this area, the law respecting strip searchescontinues to be that expressed in Golden.

I have applied the Golden factors to the present case, and I have made the following findings offact: a. The applicant had a reduced expectation of privacy having been arrested lawfully on an allegation of sexual assault; b. The search and seizure were related directly and logically to the reason for arrest – the police had reasonable and probable grounds tobelieve that the DNA of the complainant would be found on the penis of the applicant; c. The search was not intended to seize any of the aplicant’s bodily substances; d.

The search and seizure were conducted in good faith by the investigator after he had consulted with the Major Crime Unit and theFederal Identification Section; e. The search was conducted at the R.C.M.P. detachment; f. The search was conducted after the applicant had received legal advice from duty defence counsel; g. The search was conducted in private; h. The search was conducted in the presence of only one investigator, who was of the same gender as the applicant; i. The applicant was allowed to lower his own clothing; j. The applicant’s pants were only lowered far enough to permit the procedure; k.

The applicant was allowed to apply the sterile swab himself; l. The search was of extremely brief duration, between two to four seconds; m. The procedure did not penetrate the applicant’s body so it did not interfere with his bodily integrity; and, n. Any affront to the applicant’s personal dignity was fleeting and minimal.

[ 47 ] I find that the search and seizure of the swab from the applicant was a lawful exercise of the reasonable common law power of the police to search for evidence incident to a lawful arrest, and that the search was performed reasonably. [ 48 ] I note that the ambit of the common law in this area has heretofore been unsettled. While legislative guidelines would be preferable, this is an appropriate case for the judiciary to refine the ambit of the common law in this area. To ensure Charter compliance, the process should, at a minimum, conform to the prerequisites required in Golden .

That said, this Court will not issue firm guidelines as every case must be judged upon its own merits. [ 49 ] This common law power strikes a reasonable balance between the privacy interests of an accused and the public interest that crime should be investigated properly and thoroughly. In the present case, I have found that the search and seizure was conducted reasonably in all the circumstances. I conclude, then, that the search and seizure of the swab in the present case did not infringe the applicant’s

section 7 and 8 Charter rights. B. Did the police violate the applicant’s

section 10 (

b) Charter right to counsel? [ 50 ] Counsel for the applicant asserted that the police should have given the applicant a second chance to consult with his lawyer before having him submit to the taking of the contested swab. Cited in support is Sinclair , one of the trilogy of custodial interrogation cases released by the Supreme Court of Canada at the end of 2010.

Specifically, counsel pointed to the majority judgment authored by the Chief Justice and Charron, J. where the court stated that “non-routine” procedures such as submitting to a polygraph examination or participation in a line-up “will not generally fall within the expectation of the advising lawyer” at the time of the initial Charter

section 10(

b) consultation [para 50]. In these situations, the Justices ruled, a detainee would be entitled to further legal advice.

Only in this way would the detainee be able to make an informed decision whether or not to co-operate with the police investigation. [ 51 ] Significantly, the Supreme Court in Sinclair highlighted another situation where the police would be obligated to facilitate further consultation with counsel: whenever the investigation takes “a more serious turn as events unfold” where the initial advice “may no longer be adequate to the actual situation or jeopardy” faced by the detainee [para 51]. [ 52 ] The Supreme Court stated further that the category of situations where further consultation may be required is not closed [para 54].

The applicant invites this Court to extend this protection to this accused in these circumstances. [ 53 ] Counsel for the applicant reproached the police for not informing the applicant, before he spoke to duty counsel, of their intention to take the swab. Sinclair has been the law for over five years, she said, and police are expected to stay informed of, and to act in accordance with, developments in the law. [ 54 ] While the respondent took the opposite view in written argument, the respondent in oral argument “conceded” that the applicant’s

section 10 (

b) Charter right was violated, but that the evidence should be admitted pursuant to section 24(2) of the Charter . [ 55 ] Although no evidence was called pertaining to the use of this particular technique in Canada, this Court does infer that the technique is ‘non-routine’. The Court heard evidence that there is no R.C.M.P. policy governing the technique. The very few reported cases which have considered this issue are all recent. This was the investigating officer’s first use of the technique.

The Court also finds that the state of the law in this area was uncertain at the time the swab was taken and seized and it remains so today. [ 56 ] Even though the procedure was non-routine, I find that the police did not violate the applicant’s rights by not advising him of their intention to seize a swab before he spoke to his lawyer. In making this finding, I have considered the rule in Sinclair against the well- established law that police need not suspend a search incident to a lawful arrest to permit access to counsel.

[57] The applicant was arrested and detained lawfully on allegations of sexual assault. Specifically, he was accused of rape. The policewere told the applicant had not used a condom. The police had reasonable and probable grounds to believe that a penile swab wouldreveal the presence of the complainant’s DNA. The search and subsequent seizure of the penile swab were related directly and logicallyto the grounds for arrest. The investigating police officer in this case acted in good faith and only after consultation with the MajorCrime Unit.

No increased jeopardy issues arise in these circumstances. [58] Except for the location of the body part swabbed (which was accounted for here by the use of the procedure mandated in Golden),there is nothing in principle to distinguish a penile swab from other routine investigative practices such as fingerprinting, swabbing thehands of a suspect for gunshot residue, or the taking of fingernail scrapings. Each one of those procedures is likely to result in the seizureof a suspect’s DNA as an investigative by-product.

As the respondent correctly noted, Stillman considerations prevent the use of asuspect’s DNA in these circumstances. Each one of these techniques is a fleeting and minimal infringement of a suspect’s bodilyintegrity. [59] Having found that the police were permitted under the common law to search for, and seize, the penile swab incident to the lawfularrest, they were under no obligation to delay their search until after the applicant had consulted with counsel.

Nor were they required toadvise him of their intentions to do so before he spoke with counsel [R v Debot, (SCC), [1989] 2 SCR 1140, [1989] SCJNo 118]. [60] I conclude, therefore, that the police did not breach the applicant’s

section 10(

b) Charter rights by not informing duty defencecounsel of the investigative procedure they intended to employ. [61] If I am wrong in this Charter analysis, then I would follow the reasoning of the majority in Saeed and admit the evidence despiteany Charter breach. To exclude the swab and the results of the forensic testing would, in the words of Wilson, J. in Saeed, “contradictthe truth seeking function of the administration of justice in the context of a very serious offence. Doing so would adversely affect therepute of justice long term as well as in this case.” [para 71].

This ruling applied the two-part Charter admissibility analysis set out bythe Supreme Court of Canada in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant]. [62] To admit the evidence in the circumstances of this case would not signal that this Court will sanction serious police misconduct ornegligence. On the contrary, not to admit the penile swab in this case would undermine the confidence of Nunavummiut in theadministration of justice.

In reaching this conclusion after a Grant analysis, I have considered that the investigating officer acted in goodfaith, the procedure was directly and logically connected to the reasons for arrest in a very serious case, the search was performedreasonably, and it was done at a time when there was some case law affirming the right of the police to act in this fashion. VII. CONCLUSION [63] The Court rules that the applicant has not established that the police violated sections 7, 8, or 10(

b) of the Charter when theysearched the applicant incident to his lawful arrest, and when they seized the penile swab without giving him the opportunity to seekfurther legal advice. Therefore, no Charter remedies pursuant to section 24(1) are available to the applicant. [64] The penile swab and the results of its DNA analysis are admissible as material and relevant evidence against the applicant at histrial. Dated at the City of Iqaluit this 14th day of April, 2016

___________________ Justice P. Bychok Nunavut Court of Justice