Canada's highest court has upheld police taking a penile swab from a sexual assault suspect following arrest.
In R. v. Saeed, 2016 SCC 24, police arrested the accused after a sexual assault complaint. He was allowed to speak to a lawyer at the station. At some point, police became aware that the sexual assault involved penile penetration.
As a consequence, Saeed was placed in a "dry cell," handcuffed to a steel pipe and seated on the floor with his hands behind his back to prevent him destroying evidence. Believing there were reasonable grounds the complainant's DNA would be found, the detective, through an interpreter, repeated the reason for arrest, again advised him of his rights and explained the process. The detective told Saeed he could take the swab himself or have a male officer do it.
Saeed pulled down his pants and used a cotton tip swab along the length of his penis and around its head. There were only two officers in the cell and they blocked the small door window so no one could look in. The swab came into contact only with the outside skin of Saeed's penis and took no more than two minutes. A subsequent analysis showed DNA matching the complainant.
In the Alberta Court of Queen's Bench a forensic specialist called by the Crown provided an expert opinion that the complainant's vaginal DNA would be expected to be found after a sexual assault involving penetration, if no condom was used. He indicated that urination, humidity, warmth, sweat and the natural bacteria present on the skin could all cause this evidence to degrade. The suspect could also wash off or wipe away the DNA. Because of these factors, the expert said a swab should be taken as soon as possible.
The judge ruled taking the swab violated s. 8 because there were no exigent circumstances (the imminent loss of evidence) justifying the search. The Crown had not established the swab was lawful as a search incident to arrest and therefore did not overcome the presumptive warrant requirement. Nevertheless, the judge admitted the evidence under s. 24(2). Saeed was convicted of sexual assault causing bodily harm and sexual interference.
Saeed challenged his conviction to the Alberta Court of Appeal. A 2:1 majority found the swab was not a proper exercise of the police power to search as an incident to arrest and therefore breached <s. 8>. The character was more intrusive than a strip search, it said, and more akin to obtaining bodily samples from a suspect (as in R. v. Stillman,  1 SCR 607). Thus, the warrantless taking was unreasonable under s. 8. However, the majority would not exclude the evidence under s. 24(2). Saeed's appeal was dismissed and his convictions upheld.
Saeed appealed to the Supreme Court of Canada, contending that police were not entitled to rely on the common law power of search incident to arrest to take the swab. A majority (7:2) disagreed, finding the swab lawful as an incident to arrest. R. v. Stillman, which involved taking hair, buccal and dental samples from an arrestee, did not apply.
The purpose was not to take samples of Saeed's own body (his DNA) but rather to obtain the complainant's DNA. The swab was quick and painless, not penetrative and no objects or substances were placed inside Saeed. Unlike Stillman the swabbing did not involve forcibly taking parts of a person.
Finally, evidence of the complainant's DNA would degrade over time and could be destroyed, intentionally or accidentally. However, as a safeguard, the majority made it clear that any of Saeed's DNA collected during the swab could not be used for any purpose.
The majority then outlined the framework for taking penile swabs incident to arrest.
The arrest itself must be lawful.
The swab must be truly incident to the arrest, in that it must be related to its reasons and performed for a valid purpose, generally to preserve or discover evidence.
Police must have reasonable grounds to believe that a penile swab will afford evidence of the offence for which the accused was arrested. "These grounds are not to be confused with the reasonable grounds required for the arrest," said the majority.
They are independent. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed.For example, the police will generally lack reasonable grounds if the alleged sexual offence did not involve contact between the suspect's penis and the complainant.
Similarly, if the suspect is arrested several days after the alleged offence, the police will probably lack reasonable grounds because it is likely that the evidence will have degraded or been wiped or washed away in the interim. To be clear, meeting the reasonable grounds standard is more than a mere pro forma exercise. The potential for destruction or degradation of the complainant's DNA will always be a concern in this context.
The greater the time frame between the alleged offence and the swab, the more difficult it will be for the police to establish reasonable grounds for believing that the swab will afford evidence of the offence for which the accused was arrested.>
The swab must be conducted in a reasonable manner. The court outlined a number of factors police must consider in performing a penile swab:
The swab, like a strip search, should as a general rule be conducted 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, the court did not rule out the possibility that a swab may reasonably be performed in another suitable location, such as a hospital, if there is some valid reason for doing so.
The swab should be conducted in a manner that ensures the health and safety of all involved.
The swab should be authorized by a police officer acting in a supervisory capacity.
The accused should be informed shortly before the swab is done about the nature of the procedure, its purpose and police authority to take it. As a general rule this should be done before the swab to ensure the accused understands its nature and the steps involved to keep the procedure quick and efficient.
The accused should be given the option of removing his clothing and taking the swab himself. If not, it should be taken or directed by a trained officer or medical professional. Giving the accused the option of taking the swab enables him to minimize its intrusiveness.
If the accused resists, police may only use the minimum amount of force necessary to obtain it, proportional in the specific circumstances. However, resistance does not entitle police "to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety."
The police officer(s) carrying out the swab should be of the same gender as the individual being swabbed, unless the circumstances compel otherwise.
There should be no more police officers involved than are reasonably necessary in the circumstances.
The swab should be carried out in a private area not visible to others.
The swab should be conducted as quickly as possible and in a way that ensures the person is not completely undressed at any one time.
A proper record should be kept of the reasons for and the manner in which the swabbing was conducted. A detailed record is important for a review to be effective and is likely to focus on whether officer conduct was reasonable.
The court cautioned that these factors will not be determinative in every case and "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."
Whether a particular swab incident to arrest accords with <s. 8> will depend on the individual facts of a particular case.
The majority found the penile swab in this case did not breach s. 8. The arrest was lawful and police were searching for evidence related to the arrest – the complainant's DNA. They had reasonable grounds to believe the DNA had transferred to Saeed. The swab was taken several hours after the sexual assault and there was no reason to believe Saeed had taken steps to destroy the evidence.
Finally, the swab was taken in a reasonable manner. Saeed was informed in advance of the procedure and its purpose. It was conducted quickly, smoothly and in private by Saeed, there was no physical contact with the officers and those involved took detailed notes about the process and reasons for the swab.
A different view
Two justices concluded that the warrantless swab breached s. 8 of the Charter because it was not authorized by the common law power of search incident to arrest. Justice Karakatsanis would have admitted the evidence under s. 24(2) while Justice Abella would have excluded it.
Saeed's appeal was dismissed and his convictions upheld.