Thanks to Judge Wayne Gorman, we can report:

In R. v. Saeed, 2014 ABCA 238, July 22, 2014, the accused was convicted of the offence of sexual assault causing bodily harm.  After being arrested, a penile swab was obtained from the accused (without a warrant) in the following circumstances:

The appellant was taken to the police station, but released sometime between 7:00 a.m. and 7:30 a.m., according to one detective, because of someone’s “bad judgment”. The appellant was arrested again at 8:35 a.m. When he arrived back at the police station at between 8:45–8:50 a.m., he was placed in a “dry cell”, that is one without a toilet or any water. In order to preserve evidence, the appellant was handcuffed to a steel pipe mounted low on the wall of the cell, and seated on the floor with his hands behind his back. Photographs taken of the appellant at 10:00 a.m. showed scratches on his forehead and nose. At 10:25 a.m., constable Mitchell obtained a penile swab from the appellant. Constable Mitchell watched as the appellant wiped his own penis with the swab and then turned over the swab. Analysis of the swab showed DNA matching the complainant.

The trial judge concluded that the obtaining of the swab was not a lawful search incident to arrest and thus, it was an illegal warrantless search in violation of section 8 of the Charter.
However, the trial judge concluded that the evidence was admissible pursuant to section 24(2) of the Charter.  The accused was convicted and appealed.

The appeal was dismissed by the Alberta Court of Appeal.  The three presiding justices, however, differed as to why.

 

MR. JUSTICE McDONALD

Mr. Justice McDonald held that there had a violation of section 8 of the Charter had not occurred.  He noted that the “Supreme Court of Canada decision in Golden posits three
requirements in order for a strip search to be justified as incidental to arrest:

(i) the arrest must be lawful – that is not an issue in this case;

(ii) the search must be related to the reasons for the arrest – the arrest here was for sexual assault and the search was to determine if the complainant’s DNA was on the appellant’s person; and

(iii) the reasonableness of the search itself – in this case the search was clearly to preserve evidence and done in a respectful manner.”

In this case, Mr. Justice McDonald concluded that the police did not require a warrant to obtain the penile swab (at paragraphs 28, 29 and 36):

In my opinion, the trial judge erred in ruling that the strip search violated the appellant’s s. 8 Charter rights. As pointed by the Crown, Golden requires the existence of exigent circumstances to justify a strip search in the field. This is not the requirement for a strip search that is conducted at a police station. What is required in the latter situation is that reasonable grounds exist and that the search itself be conducted in a reasonable fashion: para 105 of Golden. However, that said, the highly time-sensitive nature of the evidence being sought does constitute exigent circumstances in my opinion.

The trial judge reviewed the 11 factors set forth in para 101 of Golden which are to be considered in determining whether a strip search incident to arrest is compliant with the Charter. Having considered the evidence in light of these relevant factors and given that the trial judge held the strip search to have been conducted in a “reasonable fashion”, her ruling that there was a s. 8 Charter breach cannot be sustained as a matter of law. In my opinion, there was no need for the police to have obtained a warrant in order to conduct the penile swab as they had ample authority to do so pursuant to the common- law power of search incident to arrest, given the facts of this case i.e., a sexual assault that had occurred mere hours before and the need to preserve important evidence…

It would be an affront to one’s sense of justice for the police in this case to be required to stand idly by while highly relevant but time sensitive DNA evidence disappeared forever. Again it must be emphasized that this is potential DNA evidence of the complainant located on the appellant’s body surface and not the appellant’s own DNA. The latter situation is governed by R v Stillman. In my view, a telewarrant was not required as a precondition for the police to have conducted the penile swab in question.

 

JUSTICES WATSON AND BIELBY

Justices Watson and Biebly concurred in concluding that the appeal should be dismissed.  However, they held that the trial judge was correct in finding that a breach of section 8 of the Charter had occurred.  The justices held that “in the absence of a recognized exception to the presumptive requirement for prior judicial authorization to permit a search of this intimate sort to occur, the absence of that prior authorization means that there was a breach of the right of the appellant to be free of unreasonable search and seizure. Those exceptions include situations where an accused consents to the search and seizure, where it is truly incidental to arrest in the sense it flows from a valid concern for officer safety or evidence preservation, or in situations of exigency. This last category deserves particular comment because its qualities and limitations dictate that it will rarely arise.”

The justices concluded that “reinforcement of the warrant presumption seems the safest course for the law” (at paragraphs 61 and 62):

It is difficult to imagine a situation where a Charter-compliant warrantless search of such a nature as to infringe upon bodily integrity could occur absent consent or a finding of a realistic possibility that the evidence might disappear in the likely time needed to obtain a warrant. It may be that a finding of exigency may arise, or it may be that the delay occasioned by the time needed to apply for a warrant would raise a real risk of imminent bodily harm to anyone. However, this is not an area where the law can be simplistic. But reinforcement of the warrant presumption seems the safest course for the law.

In our respectful view, 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. In sum, unless a statute otherwise provides, a warrant is required for any intimate search and seizure for bodily samples from the person, absent consent, absent evidence which establishes that the time required to apply for a warrant could result in the bodily samples sought significantly deteriorating or disappearing before a search and seizure under warrant could be undertaken or absent evidence of extreme exigency. Such a search cannot be justified, without warrant, simply on the basis of being incidental to arrest, without more.

In concluding that the trial judge did not err in admitting the evidence, the justices noted that the “need to adjudicate on true facts is a long term social objective, of which the magnitude, or lack of it, of the specific case is an example.”