Manitoba's highest Court has upheld the taking of penile swabs as an incident to arrest for a sexual assault victim's DNA.
In R. v. Laporte, 2016 MBCA 36 the accused approached a 38-year-old woman waiting for a taxi in December 2007. He said he had a knife, told her to follow him into a building and hit and punched her, fracturing her nose and other facial bones. He then forced the woman to have sex with him.
Laporte was arrested shorty after this crime and police took penile swabs without his consent at the station without any physical objection. He was allowed to call his lawyer prior to the swabs being taken and was subsequently released from custody some 11 months later in November 2008.
About two weeks after his release, Laporte was involved in three more separate assaults of a sexual nature, all committed during the same day. The first involved an eight year old boy. This attack was interrupted by a neighbour; Laporte fled the scene.
Laporte attacked a woman with her two-year-old child in an elevator two hours later, dragging the woman towards a stairwell and threatened her with a knife. Another tenant intervened and the woman and child got away.
Two hours later, Laporte attacked another woman. This assault was interrupted when the building caretaker heard a woman scream, threw Laporte to the ground and held him until police arrived.
Officers took Laporte to the station and again took penile swabs without his consent. This time, however, Laporte struggled vehemently and was not allowed to speak to his lawyer. He was subsequently charged on a nine count indictment, including sexual assault causing bodily harm, unlawful confinement and assault with a weapon involving the four victims. A charge of assaulting a police officer was also laid as a result of Laporte kicking an officer during the arrest.
In the Manitoba Court of Queen's Bench Laporte brought a motion to exclude the DNA evidence obtained from the penile swabs under s. 24(2) of the Charter. He argued that the swabs, taken in search of DNA evidence from the sex assault complainants, breached his rights under s. 8 of the Charter to be secure against unreasonable search and seizure since they were warrantless and nonconsensual. As a result, he asserted that admitting this evidence would bring the administration of justice into disrepute. The Crown countered that the DNA samples were taken as an incident to arrest and so did not require a warrant.
The judge found that taking the swabs without warrants did not fall within the common law power of search incident to arrest, and that the Crown had not demonstrated emergency or exigent circumstances for their taking. Nor did police consider the availability of a telewarrant under s 487.1(1) of the Code. Therefore, obtaining them breached Laporte's s. 8 rights on both occassions.
The judge allowed the evidence of the 2007 DNA swabs under s. 24(2) but excluded the 2008 DNA evidence. During the 2008 swab, police denied Laporte's right to counsel and their conduct was unreasonable, considering the number of officers present, use of the spit sock and the amount of force.
Nevertheless, Laporte was convicted of sexual assault causing bodily harm x 3, unlawful confinement x 2, assault with a weapon, forcible seizure and assaulting a police officer. Laporte was designated a dangerous offender and sentenced to a period of indeterminate incarceration.
Laporte appealed his convictions before the Manitoba Court of Appeal submitting, among other things, that the trial judge erred in not excluding the 2007 DNA evidence. The Crown argued there was no s. 8 breach and, even if there was, the trial judge properly admitted the evidence under s. 24(2).
The appeal court found that a penile swab can be taken as a lawful search incident to arrest. Noting that "the jurisprudence concerning the taking of penile swabs is developing," Justices Hamilton and Pfuetzner used other Supreme Court of Canada decisions as an analytical framework to address whether the 2007 swabs breached Laporte's s. 8 rights.
"Searches incident to arrest are an established exception to the general rule that warrantless searches are prima facie unreasonable," the justices said. "They have an important law enforcement function that includes the collection and preservation of evidence."
The court continued:
The taking of penile swabs in a sexual assault investigation can capture important evidence arising from bodily samples from a complainant found on the accused person. This is to be distinguished from collecting bodily samples containing personal information relating to an accused person, which requires a warrant… Given that distinction, we conclude that the taking of penile swabs falls within the existing general framework of the common law power of a search incident to arrest [para. 44].
The general framework was then modified so that the following are required for a penile swab to be a lawful search incident to arrest, providing the appropriate balance between the significant interests to pursue legitimate police investigations of sexual assaults and an accused person's significant right to privacy:
1) The police have reasonable and probable grounds justifying the arrest;
2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and
3) The police have conducted the penile swab in a manner that complies with s 8 of the Charter. In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search.
• Was the penile swab conducted at the police station and if not, why not?
• Was the penile swab conducted in a manner that ensured the health and safety of all involved?
• Was the penile swab authorized by a police officer acting in a supervisory capacity?
• Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?
• Was the number of police officers involved no more than necessary in the circumstances?
• Was the minimum force that was necessary used to conduct the search?
• Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
• Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab?
• Was the accused person given the opportunity to swab himself and if not, why not?
• Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person's back to avoid genital exposure?
• Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?
Strip searches generally should be conducted at a police station unless there are exigent circumstances… Given that, and the nature of a penile swab search, we expect that it will be the rare circumstance that a penile swab will not take place in a police station [paras. 63-64].
The 2007 swab complied with this framework and thus s. 8. Police had subjective and objective reasonable and probable grounds to arrest Laporte and subjective and objective reasonable grounds to believe that evidence from the victim could be found on his penis.
Police provided Laporte with two opportunities to speak to a lawyer and the swabs were taken in an interview room at the police station within 12 hours of the attack. The search was videotaped, but the swabs were taken off camera. The high degree of justification required for the penile swab search existed in the circumstances and the evidence was admissible.
Laporte's appeal was dismissed.