No warrant needed for penile swab: SCC

No warrant needed for penile swab: SCC

The Supreme Court of Canada ruled today that police do not need a warrant to collect DNA from a male suspect’s genitals, potentially making it easier for authorities to secure sexual assault convictions.

The country’s top court ruled in R. v. Saeed that police may perform penile swabs on an arrested person if they believe it will reveal and preserve relevant evidence and if done in a “reasonable manner.”

Police have greater search powers when dealing with people who are arrested, and a penile swab, which seeks a complainant’s DNA and not the suspect’s, would be a reasonable part of that, the court ruled.

“A penile swab does not fall within the scope of R. v. Stillman, [1997] 1 S.C.R. 607,” says the majority decision penned by Justice Richard Wagner. “First, a penile swab 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 the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy

The court also laid out a series of factors to guide police in conducting penile swabs. They include:

•    Conducting the swab at a police station;
•    Being authorized by a senior officer;
•    Giving the accused the option of taking the swab himself or having a trained officer or medical professional do it with minimal force;
•    The officer taking the swab should preferably be of the same gender as the accused;
•    Conducting the swabbing in a private area;
•    Doing it as quickly as possible; and
•    Keeping a proper record of the reasons for and the manner in which the swabbing was conducted.

The court ruled against a man from the western province of Alberta whose sexual assault conviction was based on DNA evidence from a penile swab done without a warrant.

Ali Hassan Saeed was accused of sexually assaulting a female acquaintance in 2011. While in custody, he was asked by a police officer to “wipe his own penis with a swab while the officer watched,” according to the Supreme Court.

After his conviction, Ali unsuccessfully raised the issue to the Ontario Court of Appeal.

The Supreme Court ruled that while the swab violated his privacy, it was not done in a humiliating way and did not “fundamentally violate his human dignity.”

However, Justice Rosalie Abella dissented, saying a warrant was necessary and the evidence from the swab should have been thrown out.

“The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal,” she wrote.

With files from Reuters.

Free newsletter

The Canadian Legal Newswire is a FREE weekly newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered every two weeks, providing targeted news and information of interest to in-house counsel.

Please complete the form below to receive the weekly Canadian Legal Newswire and/or the Canadian Inhouse Legal Newswire.

Recent articles & video

Daphne Dumont to receive CBA’s Cecilia I. Johnstone award

Quebec taking harsh line on cannabis edibles

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?

Copyright law: set for an overhaul?

Corporate Counsel Survey 2019 closes on Monday, Aug 26

When Legal Aid is a political prop, Access to justice suffers

Most Read Articles

Canadian Judicial Council seeks leave to SCC in Girouard case

The Ontario government is destroying university legal clinics

Quebec taking harsh line on cannabis edibles

Will the conversation catalyzed by the Law Society of Ontario mean the end of articling?