Ali Hassan Saeed Appellant v. Her Majesty The Queen, 2016 SCC 24

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 connectionwith sexual assault — Police have reasonable grounds to believe complainant’s DNA is present on accused’s penis — Police seek penileswab from accused — Accused complies in privacy of police cell — Police do not attempt to obtain warrant — Complainant’s DNAdetected 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., theaccused was arrested and was advised of his right to counsel. He was mistakenly released and re-arrested at 8:35 a.m. Based on thecomplainant’s allegations, the supervising police officer felt that there were reasonable grounds to believe the complainant’s DNA wouldstill be found on the accused’s penis and a penile swab should be taken. The penile swab could not be taken immediately.

Around9:30 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 to40 minutes handcuffed in the dry cell. The supervising officer did not seek a warrant for the swab, because in his view, the swab was avalid search incident to arrest. The swab took place at around 10:45 a.m. before two male officers who blocked the cell’s window withtheir bodies. The police permitted the accused to conduct the swab. The accused pulled his pants down and wiped a cotton-tipped swabalong 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 theevidence of the complainant’s DNA obtained from the penile swab. The trial judge ruled that the penile swab violated the accused’s s. 8Charter right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2) of the Charterand relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court ofAppeal dismissed the accused’s appeal.

The majority held that taking the swab violated s. 8 of the Charter but the evidence wasadmissible 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 werenot 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) theauthorizing law must be reasonable; and (3) the search must be conducted reasonably. Determining whether the common law power ofsearch incident to arrest may reasonably authorize a penile swab involves striking a proper balance between an accused’s privacyinterests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable.

Inthose cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accusedconsents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may besignificant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existinggeneral framework of the common law power of search incident to arrest must instead be tailored to ensure the search will beCharter-compliant. This case falls into the second category.

A penile swab does not fall within the scope of R. v. Stillman, (SCC), [1997] 1 S.C.R. 607. First, a penileswab 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 theforcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNAdegrades over time. In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of anaccused’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 ahumiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives. Itcan enable the police to preserve important evidence that runs the risk of degrading or being destroyed. Sexual assaults are notoriouslydifficult to prove and this type of evidence is highly reliable.

A penile swab can be crucial in the case of complainants who are unable totestify. The privacy interests at issue are similar to those implicated in strip searches and they can be protected by a similar approach. Aswith strip searches, the common law must provide a means of preventing unjustified searches before they occur and a means of ensuringthat when these searches do occur, they are conducted in a reasonable manner. The reasonable grounds standard and guidelines regardingthe manner of taking the swab provide these two protections.

These two modifications to the common law power of search incident toarrest 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 revealand preserve evidence of the offence for which the accused was arrested. The reasonable grounds standard will prevent unjustifiedsearches before they occur and will hold the police to a higher level of justification before they can take a penile swab. Whetherreasonable grounds have been established will vary with the facts of each case.

Relevant factors include the timing of the arrest inrelation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has alreadybeen 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 penileswabs incident to arrest reasonably. A swab should, as a general rule, be conducted at the police station.

It should be conducted in amanner that ensures the health and safety of all involved. It should be authorized by a police officer acting in a supervisory capacity. Theaccused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to requirethe swab. The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken ordirected by a trained officer or medical professional, with the minimum of force necessary.

The officers carrying out the swab should beof the same gender as the accused unless the circumstances compel otherwise. There should be no more police officers involved in theswab than are reasonably necessary in the circumstances. The swab should be carried out in a private area. It should be conducted asquickly as possible and in a way that ensures that the person is not completely undressed at any one time. A proper record should be keptof 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. Theaccused was validly arrested. The swab was performed to preserve evidence of the sexual assault. The police had reasonable grounds tobelieve 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 anddignity.

The accused was informed in advance of the procedure for taking the swab and its purpose. The swab itself was conductedquickly, smoothly, and privately. The swab took at most two minutes. The accused took the swab himself. There was no physical contactbetween the officers and the accused. The officers took detailed notes regarding the reasons for and the process of taking the swab. Theswab 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 freeand democratic society.

Given the profound impact that a genital swab can have on an individual’s privacy and human dignity, thecommon law power of search incident to arrest does not authorize the police to take genital swabs. Since the penile swab taken from theaccused was not authorized by law, it was unreasonable and in violation of s. 8 of the Charter. However, in the exceptionalcircumstances 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 prosecutingcrime. 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 theindividual’s interest in preserving dignity and privacy and the state’s interest in investigating crime. The principles animating R. v.

Stillman, (SCC), [1997] 1 S.C.R. 607, suggest that it would not be areasonable balancing of the competing individual and state interests for the common law to authorize genital swabs. A swab of thegenital 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 thegenitals, 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 ourbodies.

Moreover, although the purpose of a genital swab may be to search for residue deposited on the individual’s genitals, an effect ofthe 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. Sexualassault is a very serious offence. It is notoriously difficult to prove. A search for the victim’s DNA on the genitals of the arrested personcan 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 finallydeciding the issue, there is no warrant obviously available for genital swabs. If no warrant is available, then it simply does not followthat the common law can advance state interests by allowing the police to take a genital swab before the sample degrades in the time itwould take to obtain a warrant.

Finally, the troubling compromise of an individual’s dignity during detention in a dry cell cannot be usedto 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 genitalswabs 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 privacyinterests at stake with genital swabs, the majority proposes a heightened threshold test for this specific search incident to arrest: thepolice must also have reasonable grounds to believe the genital swab will reveal and preserve evidence of an offence. Additionalrequirements for particular types of searches incident to arrest should be avoided. A specific threshold test is much less effective insafeguarding privacy than judicial pre-authorization.

Moreover, defining the threshold requirements is a nuanced exercise which may bebest left to Parliament. In the exceptional circumstances of this case, the trial judge’s decision to admit the evidence should be upheld. Inconsidering the seriousness of the Charter-infringing state conduct, the trial judge found that the officer who directed the swab did notappropriately consider the accused’s Charter rights and the ambit of the police’s power of search incident to arrest, but that there was noactual bad faith on the part of the police.

Where the police act on a mistaken understanding of the law where the law is unsettled, theirCharter-infringing conduct is less serious. The impact of the breach on the Charter-protected interests of the accused was obviouslyserious, and weighs against admitting the evidence. There is no doubt that this was a very intrusive search that engaged the core of theaccused’s bodily privacy. Finally, society’s interest in the adjudication of the case on its merits weighs in favour of admission. The DNAevidence was reliable and probative. The evidence was very important in the Crown’s case.

The assault was particularly heinous andsociety has a keen interest in the adjudication of this case on its merits. Having regard to all the circumstances, on balance, the trial judgewas 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 onCharter-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 disregardof Charter requirements becomes more deliberate or flagrant, his or her conduct approaches the “bad faith” end of the spectrum. Thepolice did not make any inquiry to determine whether a swab would be probative. The accused had ample opportunity to wash away theevidence and it would have been impossible for the police to know whether the best source of DNA evidence was a genital swab. Thepolice nonetheless chose the most invasive option.

Restrictions on obtaining bodily samples as part of a search incident to arrest werealready articulated by this Court and the police must be taken to have been aware of them. The police are required to get prior judicialauthorization yet there was no explanation for why they took no steps towards obtaining either a general warrant or a telewarrant. Therewere no exigent circumstances. The only testimony demonstrating any concern about the need to preserve evidence was a vaguestatement by one officer. Most significantly, it is by no means clear that a warrant was even legally available.

There is no statutoryauthority for a warrant in these circumstances. The police officers failed to establish reasonable and probable grounds that the evidencesought would still be present on the accused’s genitals. They handcuffed him to a pipe against a wall and deprived him of access to wateror 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 “goodfaith” continuum.

The next Grant question is the impact of the breach on the Charter-protected interests of the accused. This Court has foundthat the taking of hair, buccal and dental samples is the ultimate invasion of an individual’s privacy and that strip searches are inherentlyhumiliating and degrading regardless of the manner in which they are carried out. The impact of the genital swab on the accused’sCharter-protected interests was therefore as profound as one can imagine. The invasion of dignity and bodily integrity does not dependon whether it is penetrative, painful or uncomfortable.

A genital swab does not just require the individual to expose his or her genitals tostate scrutiny, it asks that individual to violate his or her own bodily integrity by collecting potentially self-incriminatory evidence fromthe 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 isweighed is the seriousness of the offence, the reliability of the evidence and its importance to the Crown’s case. The seriousness of theoffence can point both towards inclusion and exclusion of the evidence.

What is of utmost importance is the long-term reputation of thejustice 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 isrequired to conduct invasive searches with a view to obtaining bodily samples. The police officers’ unjustified and unexplainedavoidance of this requirement weighs against admissibility. So does their disregard for the likelihood that a warrant was not evenavailable.

The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legalpossibility 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, (SCC), [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, (SCC), [1998] 1 S.C.R. 51; R. v.Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; R. v. Monney, (SCC), [1999] 1 S.C.R. 652; R. v.

Legere (1988), (NB CA), 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), (ON CA), 194C.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 QCCA1160. By Karakatsanis J. Discussed: R. v. Stillman, (SCC), [1997] 1 S.C.R. 607; referred to: R. v. Caslake,

(SCC), [1998] 1 S.C.R. 51; Cloutier v. Langlois, (SCC), [1990] 1 S.C.R. 158; R. v. Golden, 2001 SCC 83, [2001] 3S.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, (SCC), [1988] 2 S.C.R. 417; R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945; Hunter v. Southam Inc., (SCC), [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, (SCC), [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), (ONCA), 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, 93C.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, (SCC), [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 provedto 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 todetect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident toarrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is thecase here. [2] The appellant, Ali Hassan Saeed, was convicted of sexual assault causing bodily harm and unlawful touching for asexual purpose. At his trial, the Crown introduced evidence showing that the complainant’s DNA was found on Mr.

Saeed’s peniswithin several hours of the assault. Police obtained this evidence through a warrantless penile swab, conducted at the police stationfollowing 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 hisright to be secure against unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms was violatedbecause 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 theswab 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 theirview, the seizure of bodily material that may infringe upon a person’s dignity was governed by this Court’s decision in R. v. Stillman, (SCC), [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 wouldjustify 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 wasa valid search incident to arrest. He distinguished Stillman, holding that it applies only to samples of an accused’s own bodilysubstances.

In his view, the search here was effectively a strip search and was therefore governed by the requirements in Golden. Thepolice 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) thesearch must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably (R. v.Caslake, (SCC), [1998] 1 S.C.R. 51, at para. 10).

The Crown relies on the common law power of search incident toarrest as the authorizing law. [37] The existing general framework for a valid search incident to arrest purports to authorize a broad range of searches. It requires only that (1) the individual searched has been lawfully arrested; (2) the search is truly incidental to the arrest in the sense thatit is for a valid law enforcement purpose related to the reasons for the arrest; and (3) the search is conducted reasonably (R. v.

Fearon,2014 SCC 77, [2014] 3 S.C.R. 621, at para. 27). [38] Despite this broadly framed power, in some contexts, the accused’s privacy interests are so high that the police areprecluded from relying on the power of search incident to arrest, because if the common law authorized such a search, it would not bereasonable and therefore not consistent with the Charter. In others, while the police may rely on the power of search incident to arrest,the power must be tailored to ensure that the accused’s heightened privacy interests receive adequate protection.

In other words, in thesecontexts, the common law power of search incident to arrest must be modified to permit only reasonable searches — that is, searches thatare Charter-compliant. [39] Although Mr. Saeed has challenged the manner in which this search was conducted, the main issue on this appeal iswhether the police were entitled to rely on the common law power of search incident to arrest to take the penile swab, given theparticular privacy interests at stake here. There is no real dispute that the police met the existing requirements of the general frameworkfor a search incident to arrest. Mr.

Saeed was validly arrested and the police had a legitimate law enforcement purpose related to hisarrest for performing the search. [40] The Crown submits that the police were entitled to rely on the common law power of search incident to arrest, withsome modifications, to take the penile swab. The Crown points to this Court’s decision in Golden. In Golden, this Court modified thecommon law power of search incident to arrest in respect of strip searches, to ensure it conformed to the Charter.

Specifically, Goldenstated that the police must have reasonable grounds to believe the strip search is necessary in the particular circumstances and followcertain restrictive guidelines in carrying out the search (paras. 98-99 and 101). The Crown maintains that similar modifications for penileswabs will bring the existing general common law framework in line with the Charter. [41] Mr. Saeed accepts the law as set out in Golden, but submits that it does not apply here.

He says that the question ofwhether the police were entitled to rely on the common law power of search incident to arrest can instead be resolved by astraightforward application of this Court’s decision in Stillman. In that case, the Court held that the common law power of searchincident to arrest cannot reasonably authorize the police to seize the accused’s bodily samples and certain impressions, such as dentalimpressions. Instead, the police must have either consent or a warrant. Mr.

Saeed says that a penile swab is a seizure of a bodily sample,and therefore, as the police had neither his consent nor a warrant, they were not entitled to take the swab. [42] With respect, I disagree with Mr. Saeed’s submission. In particular, I reject his argument that this case can bedecided on a straightforward application of Stillman. But that is not the end of the matter. An accused’s privacy interests are invariablyimplicated by a penile swab. While I would reject Mr.

Saeed’s argument that the privacy interests are so high as to require the police toobtain either consent or a warrant, I agree that the common law power of search incident to arrest must be tailored to protect theenhanced privacy interests involved. In my view, the police may take a penile swab incident to arrest if they have reasonable grounds tobelieve the swab will reveal and preserve evidence of the offence, and if the search is carried out in accordance with guidelines that aredesigned to respect the accused’s privacy interests and interfere with them as little as possible. A.

Stillman Does Not Apply [43] As indicated, Mr. Saeed submits that a penile swab falls within the scope of Stillman. I disagree. [44] Three factors played a significant role in the Court’s decision in Stillman that the police must have consent or awarrant to seize the accused’s bodily samples and certain impressions. First, seizing samples of the accused’s own body to obtaininformation about him without his consent intrudes on an accused’s privacy and dignity in a very significant way (Stillman, at para. 42,quoting with approval R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32).

Second, forcefully removing theaccused’s hair and taking his dental impressions — a two-hour long procedure which involved inserting instruments and substances intothe accused’s mouth — was highly intrusive (Stillman, at paras. 44 and 46). Third, the accused’s DNA or bodily impressions do notchange, degrade, or disappear over time (Stillman, at para. 49). In other words, the accused has a significant privacy interest in his own

bodily samples, the methods for taking these samples and impressions are invasive, and there is no reason the police need to rush to seizethis evidence. [45] The same cannot be said of a penile swab. First, a penile swab is not designed to seize the accused’s own bodilymaterials but rather, the complainant’s. The privacy interest accused persons have in their own samples and impressions stems, in part,from the fact that these samples and impressions are part of their bodies and can reveal personal information about them.

Thecomplainant’s DNA is not part of the accused’s body, and does not reveal anything about him. [46] In R. v. Monney, (SCC), [1999] 1 S.C.R. 652, this was the very reason upon which the Courtdistinguished Stillman. In that case, the Court considered the power of customs officers to conduct a “bedpan vigil” and seize drugs froman accused’s expelled faecal matter.

Justice Iacobucci, writing for the Court, concluded that the accused’s privacy interest in his ownbodily fluids did not extend to the drugs contained in his bodily waste, as the drugs sought were not “bodily samples containing personalinformation relating to the [accused]” (para. 44; see also para. 45). [47] The same principle applies here. The evidence sought is not personal information relating to the accused.

Accordingly, accused persons do not have a significant privacy interest in the complainant’s DNA, any more than they have a significantprivacy interest in drugs that have passed through their digestive system. [48] That said, I accept as a practical reality that swabs are likely to contain bodily substances of the accused from whichhis DNA could be obtained. But the fact that the evidence sought is the complainant’s DNA, and not information about the accused,changes the context.

Unlike the situation in Stillman, taking a penile swab raises only a risk that an accused’s privacy interest in theinformation contained in his bodily substances will be intruded upon. And, as I shall explain, this risk is manageable. Put simply, if anaccused’s DNA is obtained through a penile swab and the swab was taken without a warrant authorizing such seizure, or the accused’sconsent, the accused’s DNA cannot be used for any purpose. [49] Second, a penile swab is in some ways less invasive than a two-hour long process for taking dental impressions andforcefully removing hair from an accused’s body.

As a general rule, it will be quick and painless. It is not penetrative. No objects orsubstances are placed inside the accused. Nor does the swab involve “the forcible taking of parts of a person” (Stillman, at para. 41,quoting with approval R. v. Legere (1988), (NB CA), 89 N.B.R. (2d) 361 (C.A.), at p. 379). While the accused isrequired to expose a private area of his body to conduct the swab, the procedure for taking the swab is not invasive. [50] Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades overtime.

The accused can also destroy this evidence, whether intentionally or accidentally. It cannot be said that this evidence is in “nodanger of disappearing” or that there is “simply no possibility of the evidence sought being destroyed if it [is] not seized immediately”(Stillman, at para. 49). [51] In sum, the issue in this case cannot be resolved by a straightforward application of Stillman. A penile swabimplicates different privacy interests and law enforcement objectives than seizures of an accused’s bodily samples and certainimpressions. B.

The Police Can Rely on the Power of Search Incident to Arrest [52] Even though Stillman does not apply, the question remains: Are an accused’s privacy interests in this context so highas to require consent, a warrant, or exigent circumstances, or can the police rely on the common law power of search incident to arrest intaking a penile swab? [53] The principles and policy considerations which this Court has identified in Fearon, Golden, and Stillman provide theframework needed to resolve this question.

In short, our task is to weigh the privacy interests and law enforcement objectives involvedand “delineate the scope of the common law power . . . in a way that is consistent with the Charter right to be protected againstunreasonable search and seizure” (Golden, at para. 87). This Court has, in Fearon, and in “both Stillman and Golden, . . . modified thecommon law power in relation to particularly invasive types of searches in order to make that power consistent with s. 8 of the Charter”(para. 44).

With respect, these authorities do not bear out Karakatsanis J.’s statement that the common law power can only be tailored tocomply with the Charter “in the rarest of cases” (para. 118). [54] There can be no doubt that requiring an individual to expose and swab his genitals is an intrusion on an accused’sprivacy. Much like a strip search, a penile swab has the potential to be a “humiliating, degrading and traumatic experience” for theaccused (Golden, at para. 83).

A penile swab may be all the more humiliating because it requires more than a mere visual inspection ofthe accused’s genitals. [55] But that is not the end of the story. Swabbing itself is not inherently invasive. It can be conducted in a matter ofminutes. It is not penetrative. The cotton swab touches only the accused’s outer skin. It does not cause pain or physical discomfort. Itdoes not pose any risk to the accused’s health. And the evidence sought — the complainant’s DNA — does not implicate any particularprivacy interest of the accused.

The DNA sought belongs to someone else. [56] In short, this search is a significant intrusion on the accused’s privacy because of the body part searched. If the samesearch was conducted elsewhere on the accused’s body — the back of his hands, for example — there could be no suggestion that theswab was a “humiliating, degrading and traumatic experience”. [57] Unlike my colleague Karakatsanis J., I do not find the approach in the United Kingdom to be particularly helpful inassessing the privacy interests implicated here.

The regime in the United Kingdom operates in an entirely different context, withdifferent rules. The treatment of penile swabs in the United Kingdom cannot be considered in a contextual vacuum. For example, in theUnited Kingdom, if an individual refuses to consent to a penile swab without “good cause”, this can be used by the court or jury indetermining whether that person is guilty of the offence charged (Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60(“P.A.C.E.”), s. 62(10)). Further, while the United Kingdom allows these swabs to be taken only with consent, it allows for hair (other

than pubic hair) and saliva samples to be taken without consent or a warrant, unlike in Canada (P.A.C.E., s. 63). At bottom, while themajority of the Court in Golden found P.A.C.E. useful in the context of strip searches (para. 101), it does not follow that P.A.C.E.’streatment of penile swabs — or any other type of search incident to arrest — reflects Canadian constitutional standards. [58] On the other side of the ledger, a penile swab conducted incident to arrest can serve important law enforcementobjectives. [59] Penile swabs performed incident to arrest enable the police to preserve important evidence.

If this evidence is notpromptly seized, it runs the risk of degrading or even worse, being destroyed by the accused. As my colleague Karakatsanis J. accepts,sexual assaults are notoriously difficult to prove (para. 107). This type of evidence is highly reliable. It can be crucial in the case ofcomplainants who are unable to testify, such as children, adults with disabilities, or those who have died or suffered serious injuries as aresult of the offence or otherwise (see, for example, the first complainant in R. v. Laporte, 2016 MBCA 36, [2016] M.J. No. 104 (QL)).

And of course, a penile swab incident to arrest may serve, in the end, to exclude a particular suspect. [60] The facts of this case demonstrate the usefulness of a penile swab performed incident to arrest. By taking the swab,the police obtained evidence which was highly probative of Mr. Saeed’s involvement in the crime, and preserved evidence which mightotherwise have been destroyed. [61] At bottom, while there is no disputing that a penile swab intrudes on an accused’s privacy, the intrusion is limited. In my view, it is not so substantial as to require the police to obtain consent or a warrant.

Permitting these swabs to be taken only withthe accused’s consent — as in the United Kingdom — would strike an inappropriate balance in the Canadian context. It wouldcountenance an approach that effectively disregards the interests of victims of sexual assault, where the evidence is most likely to bepertinent, and all but ignores the public interest in bringing sexual offenders to justice. [62] The privacy interests here are similar to those implicated in strip searches, and they can be protected by a similarapproach.

Both strip searches and penile swabs involve law enforcement inspecting private areas of an accused’s body. While a stripsearch does not always require touching of the accused’s private areas, both strip searches and penile swabs can involve such contact (seeGolden, at paras. 101 and 114; see also R. v. Parchment, 2015 BCCA 417, 378 B.C.A.C. 146). The guidelines set out in Goldencontemplate the touching of an accused’s private areas to remove evidence or weapons (para. 101, see guideline 10).

This process couldcertainly involve the exposure and possible manipulation of an accused’s genitals, a potentially humiliating experience to be sure. Hence, the need for explicit guidelines designed to ensure, so far as possible, that the search is conducted in the least humiliatingmanner.

So too, penile swabs must be conducted with the same care. [63] As with strip searches, therefore, the common law must provide a means of preventing unjustified searches beforethey occur — to minimize the number of accused affected by this type of search — and a means of ensuring that when these searches dooccur, they are conducted in a reasonable manner — to minimize the impact a swab can have on an accused who is subjected to one. [64] The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these twoprotections.

The reasonable grounds standard prevents unjustified searches before they occur (Golden, at para. 89). It holds the police toa higher level of justification before they can take a penile swab, thereby limiting the number of cases in which accused persons will berequired to expose their genitals for a swab. Detailed guidelines regarding the manner of taking the swab ensure that when a penile swabis taken, it is “conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible”(Golden, at para. 104).

Both serve to protect the accused’s privacy while ensuring the police are free to pursue the valid objective ofpreserving this highly probative, perishable evidence. These two modifications to the common law ensure that it is Charter-compliant,or in other words, that it is reasonable. [65] I would add that, in some ways, allowing the police to take a penile swab incident to arrest is more beneficial to anaccused than requiring a warrant.

If the police were required to obtain a warrant, during the time needed to obtain it, they would eitherhave to keep the accused handcuffed without access to water or toilet facilities (perhaps for several hours) in order to preserve theevidence, or run the risk of the accused destroying the evidence. Realistically, the police are going to choose the former, leavingaccused persons to wait for an indefinite period in an uncomfortable and potentially degrading position.

On the other hand, if the policeare able to exercise their common law power of search incident to arrest and take a swab promptly, the waiting time for an accused willbe minimal. Looked at that way, a prompt swab would seem more humane than requiring an accused to wait for a warrant to issue. [66] Mr. Saeed makes one further argument in favour of requiring a warrant.

He says that because an accused’s DNA islikely to be collected in the course of taking a penile swab, if the police are not required to obtain a warrant, there is nothing to preventthem from using penile swabs to obtain the accused’s DNA, thereby avoiding Stillman and the warrant procedures set out in the CriminalCode. [67] In my view, this argument is flawed. Stillman continues to govern the procedure for seizing the accused’s ownbodily materials. The police must obtain consent or prior judicial authorization in order for evidence of the accused’s DNA to be legallyobtained.

The police cannot use a penile swab incident to arrest to circumvent Stillman and the warrant procedures set out in theCriminal Code. If DNA of the accused is obtained through a penile swab and the swab was taken without a warrant authorizing suchseizure, or the accused’s consent, the accused’s DNA cannot be used for any purpose. [68] If Mr. Saeed’s argument were to be accepted, swabs of an accused’s person incident to arrest would never bepermitted. Lower courts have held — and Mr.

Saeed appears to accept — that the police may dab or swab an accused’s hands incidentto arrest to check for gunshot residue or to obtain a sample of blood visible on the accused’s skin (see, for example, R. v. Backhouse(2005), (ON CA), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 139-45; R. v. Smyth, [2006] O.J. No. 5527 (QL) (S.C.J.)).

Either of these procedures might enable the police to obtain the accused’s DNA, but the police are not entitled to use them for thatpurpose. [69] Similarly, the police are entitled to seize evidence found on the accused during a reasonable strip search incident toarrest, such as the bag found between the accused’s buttocks in Golden. The police could in theory test such evidence to obtain the

accused’s DNA. But if the police were to use a strip search to obtain the accused’s DNA, they would clearly be in violation of theaccused’s s. 8 rights. [70] I add this final point on warrants. I recognize that the question of whether the police can obtain a warrant to take apenile swab is not settled. The only possible source of authorization at present is the general warrant provision in s. 487.01 of theCriminal Code.

But this warrant power cannot “be construed as to permit interference with the bodily integrity of any person” (s.487.01(2)). “Bodily integrity” is not defined in the Criminal Code, and this Court has not defined it in the context of s. 487.01(2). Clearly, a strong argument can be made that taking a penile swab interferes with an accused’s “bodily integrity”.

At the same time, somecourts have upheld general warrants for photographs of an accused’s genital or anal areas, including situations where the taking of thephotographs has required touching or manipulation of the accused’s private areas (see, for example, R. v. H. (T.G.), 2014 ONCA 460,120 O.R. (3d) 581, at para. 48; R. v. H.-G., 2005 QCCA 1160, at para. 4 ).

At the very least, there is a lack of clarity regardingthe availability of a general warrant in these circumstances (Laporte, at para. 65). [71] Assuming for argument’s sake that at present, a warrant authorizing the taking of a penile swab is not available, myconclusion would not change. It is true that if no warrant is available, the indignity occasioned to an accused while waiting for a warrantand the possibility that the evidence might degrade or be destroyed during this time frame cannot be relied upon to support the policecommon law power of search incident to arrest.

But the unavailability of a warrant in no way precludes the operation of the commonlaw power of search incident to arrest (Fearon, at paras. 16 and 45). In Golden, the unavailability of a warrant did not prevent the Courtfrom holding that strip searches can be conducted as an incident of arrest in appropriate circumstances.

Importantly, while the Courtnoted that there were a few legislative provisions governing searches of the person, these provisions were “directed at the circumstancesunder which particular types of evidence may be obtained from a person” and they did not address “the scope of police powers toconduct personal searches for evidence or weapons incident to arrest” (para. 85).

Absent legislative guidance, it fell to the Court “todetermine the scope of the common law power to search as an incident to arrest, and what the limits are to this power in the context ofstrip searches” (Golden, at para. 85). [72] In the end, while I have not found it necessary to decide whether a warrant is available, Parliament might wish toestablish an express, comprehensive legislative regime for these and other intrusive searches, such as body cavity searches, to providegreater direction to the police. The common law power of search incident to arrest, as modified in these reasons, is not the only solution.

C. Requirements for Conducting a Valid Penile Swab Incident to Arrest [73] I turn now to the requirements for taking a penile swab incident to arrest. [74] First, as with every search incident to arrest, the arrest itself must be lawful. The swab must be truly incident to thearrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose.

The validpurpose will generally be to preserve or discover evidence (Caslake, at para. 19). [75] Second, the police must also have reasonable grounds to believe that a penile swab will afford evidence of theoffence for which the accused was arrested. These grounds are not to be confused with the reasonable grounds required for the arrest. They are independent. Whether reasonable grounds have been established will vary with the facts of each case.

Relevant factors includethe timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substancebeing sought has already been destroyed. [76] For example, the police will generally lack reasonable grounds if the alleged sexual offence did not involve contactbetween the suspect’s penis and the complainant.

Similarly, if the suspect is arrested several days after the alleged offence, the policewill probably lack reasonable grounds because it is likely that the evidence will have degraded or been wiped or washed away in theinterim. [77] To be clear, meeting the reasonable grounds standard is more than a mere pro forma exercise. The potential fordestruction or degradation of the complainant’s DNA will always be a concern in this context.

The greater the time frame between thealleged offence and the swab, the more difficult it will be for the police to establish reasonable grounds for believing that the swab willafford evidence of the offence for which the accused was arrested. [78] Finally, the penile swab must be conducted in a reasonable manner. Above all, the police must take care to respectthe privacy of the accused. To this end, I would outline a number of factors to guide police in conducting penile swabs incident to arrestreasonably: 1. The penile swab should, as a general rule, be conducted at the police station; 2.

The swab should be conducted in a manner that ensures the health and safety of all involved; 3. The swab should be authorized by a police officer acting in a supervisory capacity; 4. The accused should be informed shortly before the swab of the nature of the procedure for taking the swab, the purpose of takingthe swab, and the authority of the police to require the swab;

5. The accused should be given the option of removing his clothing and taking the swab himself, and if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary; 6. The police officer(

s) carrying out the penile swab should be of the same gender as the individual being swabbed, unless the circumstances compel otherwise; 7. There should be no more police officers involved in the swab than are reasonably necessary in the circumstances; 8. The swab should be carried out in a private area such that no one other than the individuals engaged in the swab can observe it; 9. The swab should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time; and 10.

A proper record should be kept of the reasons for and the manner in which the swabbing was conducted. [ 79 ] Some of these factors require further explanation. As with strip searches, penile swabs should generally be performed at the police station. This requirement is even stricter for penile swabs than strip searches. Safety concerns may justify a strip search for weapons in the field. Safety concerns are highly unlikely to justify a penile swab in the field.

However, I would not rule out the possibility that a penile swab may reasonably be performed in another suitable location, such as a hospital, if there is some valid reason for doing so. [ 80 ] The police may use force in taking a penile swab incident to arrest, but only if the force used is “necessary and proportional in the specific circumstances” ( Golden , at para. 116 ). In other words, as with strip searches, if the accused resists the swab, the police may only use the minimum amount of force necessary to obtain it.

The fact that an accused resists does not entitle the police “to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety” ( Golden , at para. 116 ). [ 81 ] As a general rule, the police must explain to the accused the procedure for taking a swab before it is taken, to ensure the accused understands the nature of the procedure and the steps it involves. Reviewing the procedure with the accused in advance can only help to keep the procedure quick and efficient.

Giving the accused the option of taking the swab himself enables the accused to minimize the intrusiveness of the swab. A detailed record of how the swab was conducted is important for after-the-fact review of these searches to be effective ( Fearon , at para. 82 ). And it is likely to focus police officers’ attention on whether their conduct is reasonable ( Fearon , at para. 82 ). [ 82 ] These factors require the police to take great care in performing a penile swab and will often ensure that the swab is performed in a reasonable manner. But they will not be determinative in every case.

As this Court observed in Golden , the greater the intrusion on the accused’s privacy, the higher the degree of justification required before the search may be carried out, and the greater the constraints there will be as to the manner in which it may be performed (para. 87). The same logic applies here. My colleague Karakatsanis J. raises the concern that a “genital swab is even more intrusive in the context of a female individual” (para. 101).

These reasons should not be taken as deciding the question of whether a penetrative swab performed in accordance with the common law police power of search incident to arrest would be reasonable and therefore Charter -compliant. They are restricted to genital swabs conducted on the outer surface of the skin. [ 83 ] At bottom, whether a particular penile swab incident to arrest complies with s. 8 will depend on the facts of the case.

The onus is on the Crown to establish that the police had reasonable grounds to believe the swab would reveal the evidence sought and that the swab was conducted in a reasonable manner. V. Application [ 84 ] In light of the requirements set out above, taking the penile swab did not violate Mr. Saeed’s rights under s. 8 of the Charter . [ 85 ] There is no question that Mr. Saeed was validly arrested. And as indicated, the swab was performed for a valid purpose related to Mr. Saeed’s arrest: preserving evidence of the sexual assault for which Mr. Saeed was arrested.

The only questions remaining are whether the police had reasonable grounds to believe the swab would afford the evidence sought, and whether the swab was taken in a reasonable manner. A. The Police Had Reasonable Grounds [ 86 ] The police had the required reasonable grounds. The nature of the allegations gave the police reasonable grounds to believe that the complainant’s DNA had transferred to Mr. Saeed’s penis during the assault. And the timing of the swab — within several hours of the assault — gave the police reasonable grounds to believe that the complainant’s DNA was still there at the time of the swab.

The police had no reason to think that Mr. Saeed had taken steps to destroy the evidence, especially given that he was in police custody for most of the time following the assault.

[87] Mr. Hunter’s expert opinion evidence confirmed the reasonableness of the officers’ belief that the complainant’sDNA had transferred to Mr. Saeed, and would likely still be there at the time of the swab. I would emphasize that the issue at this stageis not whether the police knew the science behind DNA degradation testified to by the Crown’s expert, Mr. Hunter. The police are notrequired to know to a scientific degree of certainty that evidence of the complainant’s DNA will be found on an accused’s penis in orderto justify a swab.

Rather, the issue is whether, when they took the sample, the police had reasonable grounds to believe that evidence ofthe complainant’s DNA would be found on Mr. Saeed’s penis. B. The Swab Was Conducted in a Reasonable Manner [88] The Crown has established that the swab was performed in a reasonable manner. In short, the police officersinvolved in the swab were sensitive to the need to preserve Mr. Saeed’s privacy and dignity. [89] Mr. Saeed was informed in advance of the procedure for taking the swab and the purpose of the swab. The swabitself was conducted quickly, smoothly, and privately.

The swab took at most two minutes. Mr. Saeed took the swab himself. Therewas no physical contact between the officers and Mr. Saeed. The officers involved took detailed notes regarding the reasons for and theprocess of taking the swab. [90] While the process of taking a penile swab from Mr. Saeed intruded on Mr. Saeed’s privacy, it did not fundamentallyviolate his human dignity. Far from it. The police conducted a well-grounded search incident to a valid arrest. They took care tominimize the intrusion on Mr. Saeed’s privacy. I therefore conclude that the search did not breach Mr. Saeed’s s. 8 Charter rights. VI.

Conclusion [91] For the reasons set out above, the penile swab taken incident to Mr. Saeed’s arrest did not violate his right under s. 8of the Charter to be secure against unreasonable search and seizure. The police had reasonable grounds to believe that the swab wouldafford evidence of the complainant’s DNA, and they conducted the swab in a reasonable manner. The evidence from the penile swabwas therefore properly admitted at trial. Accordingly, I would dismiss the appeal.

The following are the reasons delivered by [92] Karakatsanis J. — How we treat those suspected of serious criminal offences says a great deal about the values ofour free and democratic society. This case is no exception. My colleague Moldaver J. concludes that the common law should empowerpolice to swab a person’s genitals on arrest — without a warrant. Given the profound impact such state conduct can have on anindividual’s privacy and human dignity, I cannot agree. [93]

Section 8 of the Canadian Charter of Rights and Freedoms balances an individual’s interest in privacy with thestate’s interest in investigating and prosecuting crime. While the state’s interest in obtaining probative evidence is undeniably important,a genital swab represents a profound affront to individual privacy and human dignity. Obviously, a genital swab cannot be takenwithout exposing, touching and manipulating the genitals, the most private area of the body, in the presence of others.

Regardless ofwhether it can be lawfully used, a genital swab also gives the police a sample which contains the individual’s DNA. It is difficult toconceive of a more personal or private interest in our bodies. [94] As a result, I conclude the common law power of search incident to arrest does not authorize the police to takegenital swabs. Since the penile swab taken from Mr. Saeed was not authorized by law, it was unreasonable and in violation of s. 8 of theCharter. [95] However, on balance, I agree with the courts below that the evidence obtained in breach of the Charter wasnonetheless admissible under s. 24(2).

I. Analysis:

Section 8 [96]

Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search or seizure.” [97] The common law authorizes the police to search an individual incident to arrest; however, this power is an exceptionto the general rule that a warrantless search is presumptively unreasonable (R. v. Caslake, (SCC), [1998] 1 S.C.R. 51,at para. 13). Although the precise limits of this common law power are not defined, that does not mean the power is unlimited (Cloutierv. Langlois, (SCC), [1990] 1 S.C.R. 158, at p. 186).

It must evolve in a way that is consistent with Charter principles,particularly the Charter right to be free from unreasonable search and seizure (Cloutier, at p. 184; R. v. Golden, 2001 SCC 83, [2001] 3S.C.R. 679, at paras. 86-87). In R. v. Stillman, (SCC), [1997] 1 S.C.R. 607, Cory J. emphasized the importance ofplacing limits on the power of search incident to arrest: When [the police] are carrying out their duties as highly respected and admired agents of the state they must respect the dignity andbodily integrity of all who are arrested.

The treatment meted out by agents of the state to even the least deserving individual will oftenindicate the treatment that all citizens of the state may ultimately expect. Appropriate limits to the power of search incidental to arrestmust be accepted and respected. [Emphasis added; para. 47.] [98] Thus, some kinds of searches fall outside the scope of the common law power of search incident to arrest becausethey do not reflect a reasonable balance between the individual’s interest in preserving dignity and privacy and the state’s interest ininvestigating crime.

The issue in this appeal is whether expanding the common law to permit the police to take genital swabs incident toarrest would strike a reasonable balance between these competing individual and state interests. [99] In Stillman, this Court held that mouth swabs, dental impressions and hair samples cannot be taken as part ofsearches incident to arrest because they represent too great an infringement of bodily integrity and affront to privacy and dignity. Although Stillman did not deal with genital swabs, the principles animating the decision suggest that it would also not be a reasonable

balancing of interests for the common law to authorize genital swabs. [100] As Moldaver J. acknowledges, genital swabs represent a significant interference with individual dignity and privacy. He concludes, however, that the seizures at issue in Stillman are more physically intrusive than genital swabs. He suggests that a genitalswab can be conducted in a matter of minutes, touches only the individual’s outer skin, does not cause pain or physical discomfort, anddoes not pose any risk to the individual’s health.

He concludes that dental impressions and hair samples are actually more physicallyinvasive than genital swabs: dental impressions because they can take up to two hours to create; hair samples, one infers, because theycan cause some pain to remove. [101] I cannot agree. A swab of the genital area is far more damaging to personal dignity and privacy than a swab of theinside of the mouth or a pluck of hair from the head. In ideal circumstances a genital swab may take only a few minutes, but it stillrequires an individual to expose and manipulate his or her genitals in the presence of other persons.

If the individual resists the swab, theprocess can be more protracted and especially invasive.[1] A genital swab is even more intrusive in the context of a female individual. Genital swabs are substantially more invasive and dehumanizing than mouth swabs, hair samples and dental impressions. [102] Moldaver J. further distinguishes Stillman on the basis that there is no informational privacy at stake here because it isnot the purpose of a genital swab to collect biographical information from the individual. Rather it is to test for the presence of the DNAof another person — the victim of a sexual assault.

However, the Court in Stillman was concerned about far more than informationalprivacy in one’s own DNA. The main principle animating Stillman was a concern to protect human dignity, which — whatever thedegree of informational privacy at stake — is all the more pronounced in the case of genital swabs. [103] Cory J. emphasized in Stillman that taking bodily samples engages a strong privacy interest related to human dignity. It “may constitute the ultimate affront to human dignity”, he said (para. 39).

He reiterated: “It has often been clearly and forcefullyexpressed that state interference with a person’s bodily integrity is a breach of a person’s privacy and an affront to human dignity” (para.42). Notably, he found that the common law power of search incident to arrest does not go so far as to authorize the police to take bodilysamples because the taking of bodily samples is “highly intrusive” and “violate[s] the sanctity of the body which is essential to themaintenance of human dignity” (para. 51).

This resonates with this Court’s repeated emphasis on the close relationship between bodilyprivacy and human dignity (see, e.g., R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432, at para. 21; Golden, at paras. 87 and 98-99; R. v.Dyment, (SCC), [1988] 2 S.C.R. 417, at pp. 431-32; R. v. Pohoretsky, (SCC), [1987] 1 S.C.R. 945, at p.949).

In my view, my colleague’s discussion of Stillman betrays an unduly narrow reading of the decision and the fundamental interests itsought to protect. [104] Further, 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. As the expert evidence in this case indicated, this residueis indivisible from the person’s own bodily substances: the sample also contains the individual’s DNA.

Whatever its purpose, a genitalswab has the result of giving police a DNA sample from the individual. [105] As Moldaver J. notes, it would presently be unlawful for the police to treat the genital swab sample as evidence of theindividual’s DNA. In principle, the courts would supervise any suc

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