A significant clash between the powers of police and the privacy rights of a criminal suspect came before the Supreme Court of Canada in R. v. Saeed (2016). This Court elaborated on its common law creation of clarified search incident to arrest powers. In 2016, the Court had to determine whether the penile swab of the accused was a lawful search.1 The Saeed majority found the evidence admissible and approved the swab power of the police.
The case context was an arrest following a vicious attack and sexual assault on the victim. Mr. Saeed, who was 26 at the time, was arrested after he allegedly sexually assaulted a woman at knifepoint. The accused allegedly had traces of the victim’s DNA on his penis and he was held in a ‘dry’ cell by the police, meaning that there were no bathroom facilities installed in the cell so that an accused person cannot wash the evidence away. Blocking the cell wall so no one could view the scene, a swab occurred before two male officers, in which Mr. Saeed conducted the swab upon himself. The evidence from the swab confirmed that he had sexual contact with the victim.
The trial judge found that the search was unreasonable but admitted the evidence under s.24(2) of the Charter. Upon appeal, the Appellate Court found that a warrant should have been obtained first, yet it also upheld the conviction under s. 24(2) (c.f. Kari, 2015). In its decision, the SCC majority distinguished a search of body cavities for an accused’s own fluids from a search of external organs for someone else’s fluids. In particular, the majority diminished the privacy interests of the accused in this case (R. v. Saeed, 2016: paras. 45, 47):
"First, a penile swab is not designed to seize the accused own’s bodily materials but rather, the complainant’s. The privacy interest accused persons have in their own samples and impressions stems, in part, from the fact these samples and impressions are part of their bodies and can reveal information about them. The complainant’s DNA is not part of the accused’s body, and does not reveal anything about him…
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 significant privacy interest in drugs that have passed through their digestive system."
The power of search incident to arrest must therefore morph and grow to help expedite the police investigation (2016: para. 58). The majority indicated that performed incident to arrest, penile swabs enable the police to preserve important evidence, and if this evidence is not promptly seized, “it runs the risk of degrading or even worse, being destroyed by the accused” (2016: para. 59).
Per the majority, such expedition must occur in light of the minimal intrusion of the procedure (2016: para. 55):
"Swabbing itself is not inherently invasive. It can be conducted in a matter of minutes. It is not penetrative. The cotton swab touches only the accused’s outer skin. It does not cause pain or physical discomfort. It does not pose any risk to the accused’s health. And the evidence sought—the complainant’s DNA—does not implicate any particular privacy interest of the accused. The DNA sought belongs to someone else.
The minimal intrusion of the search allowed the majority to not require consent or warrant." (2016: para. 61)
The majority concluded that the search would be lawful if the arrest was lawful, the swab was truly incidental to the arrest, the swab was for a valid law enforcement purpose regarding the discovery or preservation of evidence, and there were reasonable grounds to believe the swab will afford evidence to the offence (2016: paras. 75, 76).
Supreme Court Justice Abella was the lone dissent on the Saeed decision, arguing that searches which violate bodily integrity of the accused may also constitute the “ultimate affront to human dignity” (2016: para. 131; see also R. v. Stillman, 1997). Searches which are found to be highly intrusive and ultimate invade the privacy of the appellant should be excluded, and Abella J. cites the extraction of hair samples, buccal swabs and dental impressions as key examples of this invasion (2016: para. 131). While the public has a clear interest in the adjudication of a case on its merits, Abella J. contends that the public also has an interest in ensuring that our justice system “remains above reproach in its treatment of those charged with…serious offences” (2016: para. 134; see also R. v. Spencer, 2014: para. 80).
The dissenting justice argued that while the trial judge did not conclude that the police did not act in bad faith in their treatment of Mr. Saeed, neither did the trial judge find good faith of the police and their procedures (2016: para. 139). Mr. Saeed was arrested by police, released from custody, re-arrested, taken back into police custody, and “placed in a cell with his hands cuffed behind his back to a metal pipe which was positioned low to the ground. He was made to sit on the floor in this position for almost an hour without the opportunity to use the washroom or drink water” (2016: para. 139).
Taken together, Abella J. argued that the police acted in bad faith towards Mr. Saeed. The officers failed to inquire and obtain the necessary information to establish reasonable and probable grounds that the evidence sought from Mr. Saeed’s body would still be present on his genitals. Expediency to ensure the preservation of bodily evidence does not excuse an accused’s right to bodily privacy and dignity, as Abella J. (2016: para. 141, 146) outlines:
"Mr. Saeed had been free for an hour and a half when he was re-arrested. Despite the fact that he had ample opportunity to wash the evidence away, not only before the initial arrest but also during the time he was left along at his apartment before he was re-arrested, the police did not ask whether he had washed or wiped himself during that time. This is a crucial information gap, since expert evidence at trial indicated that without knowing whether he had washed, it would have been impossible for the police to know whether the best source of DNA evidence was a genital swab or Mr. Saeed’s underwear. The police nonetheless chose the most invasive option".
It is not for the police to unilaterally decide to waive an accused’s s. 8 Charter protections by deciding that it is more in his interests that the swab be performed quickly than it be performed constitutionally.
Furthermore, Mr. Saeed was instructed by the police to expose the most private part of his body and swab it in front of two uniformed police officers without Mr. Saeed’s consent and without prior judicial authorization (2016: para. 150). If the taking of hair, buccal and dental samples are the ‘ultimate invasion’ of an individual’s privacy, one must wonder how to conceptualize this search as appropriate. Strip searches are “inherently humiliating and degrading regardless of the manner in which they are carried out and thus constitute significant injury to an individual’s intangible interests” (Vancouver (City) v. Ward, 2010: para. 64; emphasis italicized). Abella J. argued that surely this means that the invasion of bodily integrity and dignity “does not depend on whether, as the majority concludes, it is ‘penetrative,’ painful or uncomfortable” (R. v. Saeed, 2016: para. 151). What is a more private anatomical zone than the genital area? Should it not be protected constitutionally from unjustified and unexplained police invasion without reasonable cause?
The Saeed majority decision reveals another yet no less significant expansion of police powers in the arena of search and seizure (c.f. Jochelson et al., 2017). A genital swab does not just require the individual to expose his or her genitals to state scrutiny; it asks that the individual violate his or her own bodily integrity by collecting potentially self-incriminatory evidence from that most private of areas. The Saeed decision will have profound impacts on privacy interests and bodily integrity and dignity, and possibly strikes a blow at the heart of public confidence in the Canadian legal system.
1 Aspects of this case are similarly covered in Jochelson et al. (2017). For a greater examination of the Court’s expansion of surveillance within its search and seizure jurisprudence since the Charter’s enactment, see also Jochelson et al. (2014).
Jochelson, R., Kramar, K., and Doerksen, M. (2014). The Disappearance of Criminal Law: Police Powers and the Supreme Court. Halifax and Winnipeg: Fernwood Publishing.
Jochelson, R., Gacek, J., Menzie, L., with Kramar, K., and Doerksen, M. (2017). Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance in Anticipation of Criminal Guilt. Oxford and New York: Routledge.
Kari, S. (2015) “SCC zeroes in on penile swabs.” Law Times: November 30. Available at: http://lawtimesnews.com/201511305095/headline-news/scc-zeroes-in-on-penile-swabs.
R. v. Saeed (2016) SCC 24.
R. v. Spencer (2014) 2 S.C.R. 212.
R. v. Stillman (1997) 1 S.C.R. 607.
Vancouver (City) v. Ward (2010) 2 S.C.R. 28.