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Privacy in Peril: A Lack of Clarity from the Courts - Steph Lozinski

Jurisprudential Approach to Searches Incident to Arrest:

In analysing searches incident to arrest, the courts must balance public safety interests against the privacy interests of the accused. This is a contextual analysis, and many factors come into play in a court’s decision-making process. This contextual approach could prove to be beneficial or detrimental for an accused, depending on the circumstances. The fact that there isn’t a clear standard being upheld means that it is very difficult to consistently determine what is too much of a breach of privacy or what puts the public too much at risk.


Effect on Police Power:

One key issue with the lack of clarity from the courts is that it gives police the freedom to act in ways they find to be reasonable. Ultimately, the police’s motivation for upholding public safety will be likely to take precedence over the privacy interests of an accused. This amount of freedom given to officers has led to dangerous and abusive police practices.[1] They have improperly used force, coercion, and threats and have obtained evidence in ways that inflict mental and physical damage to the accused.[2] Not only does this give the police too much power, but it places a threat on public safety. When an officer neglects to uphold the rights of an accused, they are putting the admissibility of evidence at risk. This could lead to an accused being acquitted after committing a serious offence, an outcome which does not benefit anyone.


The contextual approach has potential to be more of an issue for a marginalized accused who may have a language barrier or reduced access to legal representation. In such cases, the accused is at risk, as they may not understand their rights and when a breach has occurred. This could be especially difficult for an accused who is self-represented. They would be at a disadvantage in arguing on behalf of their Charter rights, given that the jurisprudence has been conflicting.


Contrasting Caselaw:

The conflicting results of the court’s approach to Charter breaches is demonstrated by comparing the following two cases: R v Stillman and R v Saeed.[3] Each of these cases involve the seizure of DNA to obtain evidence. In Stillman, the seizure of hair and dental samples was found to be inadmissible due to a breach of the accused Charter rights, whereas in Saeed, the evidence obtained from a penile swab was admissible. I do not find the distinction in the court’s approach to searches in these two cases to be justifiable. Since the collection of hair, buccal, and dental samples in Stillman was found to be highly intrusive and the ultimate invasion of an accused’s privacy, it is difficult to conceive that a penile swab would fall outside the scope of this decision.[4] Despite the fact that a penile swab requires the accused to be stripped of their clothing and exposed to police officers, the majority found it to be a less invasive procedure than the collection of DNA samples in Stillman.[5] While it was noted in Saeed that the accused was able to remove the least amount of clothing possible to proceed with the swab, this procedure remains to be an extreme invasion of privacy.[6] It does not seem to be a lower standard of invasiveness compared to Stillman in terms of the impact on the privacy interests of the accused.


Saeed Dissent: Applying s 24 (2):

The distinction between these cases is further outlined by Justice Arabella’s dissent in Saeed. The focus of the dissent was on three factors to determine admissibility of evidence according to s 24(2) of the Charter: the seriousness of the Charter‑infringing state conduct, the impact of the breach on Charter‑protected interests of the accused, and the societal interest in adjudication on the merits.[7]


The first factor looks at the behaviour of the police and the respect they show the Charter. Justice Abella found the behaviour of the police to be in bad faith, meaning they did not act in accordance with the Charter.[8] The majority gave their reasoning that the evidence in this case was likely necessary for conviction and could be easily destroyed by the accused.[9] I don’t agree that the need for the evidence to achieve conviction is sufficient to justify an invasive search without a warrant. The lack of evidence available should put the onus on police officers to lawfully investigate and seek further evidence. It should not allow them to breach an accused’s Charter rights because they did not see another way to convict the accused. Justice Abella further outlined that the police gave a vague statement with their reasoning for the search, which she did not find to be a sufficient justification for the police’s actions.[10] It was also noted that the police lacked consent and authorization for their search, which should be important considerations for the courts in looking at search procedures.


In analysing the impact of the breach on the Charter rights of the accused, Justice Abella stated that similarly to the search in Stillman being overly invasive, a penile swab would land in that same category. This is because strip searches are inherently humiliating and degrading, regardless of the manner in which they are carried out.[11] Justice Abella also found that having an accused perform a search himself does not mitigate the invasiveness of the search.[12] I agree with Justice Abella’s reasoning, as I find that the evidence in this case was obtained in a manner which negatively impacted the accused’s dignity and was beyond a reasonable invasion of the accused’s privacy.


Justice Abella’s approach to the third factor of the s 24(2) analysis was an admission that in this case, the seriousness of the offence can point both towards inclusion and exclusion of the evidence. What is of utmost importance is the long‑term reputation of the justice system — the public has a vital interest in a justice system that is beyond reproach. Justice Abella ultimately concluded that the reputation of the justice system weighs against admission of the evidence, as the police acted carelessly and in disregard of the accused’s Charter rights.[13] I find this to be a sensible line of reasoning, as I believe the public should be able to trust the police to respect their Charter rights throughout a criminal investigation. The public should not be under the impression that police actions are so unlimited as to allow for an invalidation of citizens’ privacy interests.


For the reasons stated above, I agree with Justice Abella’s dissenting opinion in Saeed. On the first reading of the case, I was in disbelief in the court’s decision, as well as the reasoning behind it. The allowance of a penile swab because it was done in an attempt to collect the complainant’s rather than the accused’s DNA was not, in my opinion, a sufficiently mitigating factor to allow the evidence to be admissible at trial.[14] Regardless of the fact that the complainant’s DNA was collected, it was the accused’s body, privacy, and dignity which was being invaded.


Further Guidance Needed:

Justice Abella’s dissenting opinion demonstrates the confusion of the standard of the courts in approaching searches incident to arrest. The majority in the case listed the fact that the accused performed a DNA swab on himself to be less intrusive, while the dissent came to the opposite conclusion, stating that the imposition on the accused to perform the swab himself was a further violation of privacy. In this small portion of the decision, we can see the extent of the lack of clarity within the current search standards. It seems that the outcome heavily depends on the viewpoint of the judge, rather than an application of a clearly outlined legal framework.


As it stands, the police have a wide net under which they can undertake a search. Prior to Saeed, the threshold for the police in terms of demonstrating the reasonableness of a search and the respect owed to the Charter rights of an accused was quite low. The majority’s decision in Saeed seemed to lower that threshold and provide police with more leeway in admitting evidence which was obtained at a great cost to the accused’s dignity interests. As we see more case law in this area, it would be beneficial for the courts to provide further examples of a framework to apply in specific circumstances. I would like to see a concrete guideline in place for police officers to follow. Within the flexible framework currently used, the police have shown blatant disregard for Charter rights of the accused. An invasion of an accused’s privacy does not serve the police nor the public. It simply increases the chances of evidence being inadmissible due to police acting irresponsibly, and an accused may be acquitted after committing a serious offence. Having more concrete examples of the standards needed to be met by a police search will better ensure the balance of public safety and the protection of the privacy rights of the accused.




[1] Richard Jochelson & David Ireland, Privacy in Peril (Toronto: UBC Press, 2019). [2] Ibid at 111-116 [3] Ibid at 124-129 [4] R v Stillman, [1997]1 SCR 607 at 42 [Stillman]. [5] R v Saeed, 2016 SCC 24 at para 51. [6] Ibid at para 131. [7] Ibid at para 133. [8] Ibid at para 138. [9] Ibid at para 50. [10]Ibid at para 145. [11] Ibid at para 151. [12] Ibid at para 152. [13] Ibid at para 166. [14] Ibid at para 17.

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