Supreme Court: No Warrant to Swab Your Genitals? No Problem! - LawNow Magazine

Supreme Court: No Warrant to Swab Your Genitals? No Problem!

criminal lawIn a logically confusing and weakly justified ruling rendered on June 23, 2016, the majority of the  justices of the Supreme Court of Canada in R. v. Saeed decided that upon arrest, without warrant or consent, when Mr. Saeed was commanded to drop his trousers and a cotton-tipped swab was wiped along the length of his penis and around the head of his penis, somehow, his rights under the Charter of Rights and Freedoms were not infringed.

Mr. Saeed was charged and convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose. One of the key pieces of evidence relied upon by the Crown to secure a conviction was the DNA of the complainant found on Mr. Saeed’s penis several hours after the assault. The DNA was found after a warrantless penile swab was conducted at the police detachment after Mr. Saeed’s arrest. The defence sought to exclude the results of the penile swab on the basis that it contravened Mr. Saeed’s section 8 rights under the Charter to privacy and to be free from unreasonable search and seizure.  The Supreme Court held that Mr. Saeed’s rights were not infringed, and the police were acting within their ambit of evidence gathering.

The majority also held that the invasive search was justified because the procedure was lawful. “It’s quick and painless” says the Supreme Court, and “it’s not penetrative.” What ought to be shocking to the Canadian public is this: prior to the penile swab, Mr. Saeed was placed in a dry cell (meaning no toilet or sink) and his hands were cuffed to a metal pipe  behind his back; he was forced to sit on the floor without changing positions for over an hour; he was not allowed to use the washroom or drink any water; he was eventually commanded to expose his genitals so that a swab could be taken from his penis; and at no point did Mr. Saeed consent to the swab.

Justice Abella, was the only Justice who found a breach of Mr. Saeed’s Charter rights and would have remedied the breach by excluding the evidence under section 24(2) of the Charter. Justice Abella found it significant that Mr. Saeed was in police custody for several hours and no steps were ever taken by the police to obtain a general warrant or a telewarrant for the invasive search of his genitals.

The majority on the other hand found no breach whatsoever of Mr. Saeed’s rights. Justice Moldaver  reasoned that because it was the complainant’s DNA that was sought via a penile swab and not Mr. Saeed’s, Mr. Saeed did not have “a significant privacy interest in the complainant’s DNA, any more than [he had] a significant privacy interest in drugs that have passed through [his] digestive system.” However, if there was evidence to suggest that there was drug residue on an accused person’s penis, asking the individual to drop their pants to search for it would certainly be a breach of section 8, and quite frankly, outrageous. In addition, a drug test is worlds apart from the invasiveness of a penile swab, because, after a penile swab, the accused’s DNA would be transferred onto the swab, and thus would be in the hands of investigators. Moldaver, J. briefly acknowledges this reality, but dismisses it by stating coldly that if the accused’s DNA is obtained, “the accused’s DNA cannot be used for any purpose.” This of course assumes that it would somehow always be disclosed if the accused’s DNA is used by investigators.

The majority also held that the invasive search was justified because the procedure was lawful. “It’s quick and painless” says the Supreme Court, and “it’s 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.” This may be so. However, unjustified strip searches have the same lack of injury to the accused, but have been found to breach the section 8 rights of an accused. This also assumes that “the accused’s health” only encompasses the accused’s physical well-being.

In this case, the Supreme Court has decided that if an officer has reasonable and probable grounds to think there is evidence on your genitals, you can be chained to a pipe for a few hours, in a dry cell without food or drink, and have your genitals swabbed at the command of the officers, and this does not violate your rights under the Charter of Rights and Freedoms. Perhaps if the accused had been a woman in this case, socially constructed gender binaries would have helped magnify the inappropriateness and invasiveness of having an individual’s genitals investigated without consent or a warrant, and authorized by nothing more than reasonable and probable grounds. Would the Supreme Court have come to the same conclusion? Because, a warrantless search of an individual’s genitals without their consent is a clear breach of Section 8 of the Charter. 


Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.

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