"Around 4:00 a.m. on May 22, 2011, the complainant was viciously attacked and sexually assaulted. At 6:05 a.m., the accused was arrested and was advised of his right to counsel. He was mistakenly released and re‑arrested at 8:35 a.m. Based on the complainant’s allegations, the supervising police officer felt that there were reasonable grounds to believe the complainant’s DNA would still be found on the accused’s penis and a penile swab should be taken. The penile swab could not be taken immediately. Around 9:30 a.m., the accused was handcuffed to a wall in a cell with no toilet or running water to preserve the evidence. He spent about 30 to 40 minutes handcuffed in the dry cell. The supervising officer did not seek a warrant for the swab, because in his view, the swab was a valid search incident to arrest. The swab took place at around 10:45 a.m before two male officers who blocked the cell’s window with their bodies. The police permitted the accused to conduct the swab. The accused pulled his pants down and wiped a cotton‑tipped swab along the length of his penis and around the head. The swab was tested and revealed the complainant’s DNA.
At trial, the central issue was the identity of the complainant’s assailant. The accused challenged the admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The trial judge ruled that the penile swab violated the accused’s s. 8 Charter right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2) of the Charter and relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal dismissed the accused’s appeal. The majority held that taking the swab violated s. 8 of the Charter but the evidence was admissible under s. 24(2) . McDonald J.A., concurring in the result, held that s. 8 was not violated."
The S.C.C. (8:1) dismissed the appeal.
Justice Moldaver wrote as follows (at paras. 1, 4-7, 88-91):
" The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.
…
At issue, once again, is the scope of the common law power of the police to search incident to arrest. Courts have examined and re-examined this power as new investigative methods and types of evidence have presented themselves. But no matter the context, to be constitutional, searches incident to arrest must be reasonable.
Reasonableness in this context involves striking a proper balance between an accused’s privacy interests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter compliant.
…I am of the view that this case falls into the second category. To be precise, I am satisfied that while a penile swab constitutes a significant intrusion on the privacy interests of the accused, the police may nonetheless take a swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested, and the swab is conducted in a reasonable manner.
Applying those requirements to this case, I conclude that the police had reasonable grounds to conduct the swab and that in carrying it out, they took reasonable steps to respect Mr. Saeed’s privacy. It follows that Mr. Saeed’s s. 8 Charter rights were not breached, and that the evidence of the complainant’s DNA obtained from the swabbing was properly admitted.
…
The Crown has established that the swab was performed in a reasonable manner. In short, the police officers involved in the swab were sensitive to the need to preserve Mr. Saeed’s privacy and dignity.
Mr. Saeed was informed in advance of the procedure for taking the swab and the purpose of the swab. The swab itself was conducted quickly, smoothly, and privately. The swab took at most two minutes. Mr. Saeed took the swab himself. There was no physical contact between the officers and Mr. Saeed. The officers involved took detailed notes regarding the reasons for and the process of taking the swab.
While the process of taking a penile swab from Mr. Saeed intruded on Mr. Saeed’s privacy, it did not fundamentally violate his human dignity. Far from it. The police conducted a well-grounded search incident to a valid arrest. They took care to minimize the intrusion on Mr. Saeed’s privacy. I therefore conclude that the search did not breach Mr. Saeed’s s. 8 Charter rights.
For the reasons set out above, the penile swab taken incident to Mr. Saeed’s arrest did not violate his right under s. 8 of the Charter to be secure against unreasonable search and seizure. The police had reasonable grounds to believe that the swab would afford evidence of the complainant’s DNA, and they conducted the swab in a reasonable manner. The evidence from the penile swab was therefore properly admitted at trial."
At trial, the central issue was the identity of the complainant’s assailant. The accused challenged the admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The trial judge ruled that the penile swab violated the accused’s s. 8 Charter right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2) of the Charter and relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal dismissed the accused’s appeal. The majority held that taking the swab violated s. 8 of the Charter but the evidence was admissible under s. 24(2) . McDonald J.A., concurring in the result, held that s. 8 was not violated."
The S.C.C. (8:1) dismissed the appeal.
Justice Moldaver wrote as follows (at paras. 1, 4-7, 88-91):
" The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.
…
At issue, once again, is the scope of the common law power of the police to search incident to arrest. Courts have examined and re-examined this power as new investigative methods and types of evidence have presented themselves. But no matter the context, to be constitutional, searches incident to arrest must be reasonable.
Reasonableness in this context involves striking a proper balance between an accused’s privacy interests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter compliant.
…I am of the view that this case falls into the second category. To be precise, I am satisfied that while a penile swab constitutes a significant intrusion on the privacy interests of the accused, the police may nonetheless take a swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested, and the swab is conducted in a reasonable manner.
Applying those requirements to this case, I conclude that the police had reasonable grounds to conduct the swab and that in carrying it out, they took reasonable steps to respect Mr. Saeed’s privacy. It follows that Mr. Saeed’s s. 8 Charter rights were not breached, and that the evidence of the complainant’s DNA obtained from the swabbing was properly admitted.
…
The Crown has established that the swab was performed in a reasonable manner. In short, the police officers involved in the swab were sensitive to the need to preserve Mr. Saeed’s privacy and dignity.
Mr. Saeed was informed in advance of the procedure for taking the swab and the purpose of the swab. The swab itself was conducted quickly, smoothly, and privately. The swab took at most two minutes. Mr. Saeed took the swab himself. There was no physical contact between the officers and Mr. Saeed. The officers involved took detailed notes regarding the reasons for and the process of taking the swab.
While the process of taking a penile swab from Mr. Saeed intruded on Mr. Saeed’s privacy, it did not fundamentally violate his human dignity. Far from it. The police conducted a well-grounded search incident to a valid arrest. They took care to minimize the intrusion on Mr. Saeed’s privacy. I therefore conclude that the search did not breach Mr. Saeed’s s. 8 Charter rights.
For the reasons set out above, the penile swab taken incident to Mr. Saeed’s arrest did not violate his right under s. 8 of the Charter to be secure against unreasonable search and seizure. The police had reasonable grounds to believe that the swab would afford evidence of the complainant’s DNA, and they conducted the swab in a reasonable manner. The evidence from the penile swab was therefore properly admitted at trial."