Published On: Jul 15,2016
June 25, 2016: “The Common Law Search Incident to Arrest Powers: Penile Swabs to Cell Phones” J.S. Patel, Barrister
There is arguably a pattern to be discerned from the Supreme Court of Canada
”) and other jurisdictions wherein there is a principled abatement of individual privacy rights when balanced against the common-law policing powers permitting officers to conduct certain searches incident to arrest. There are two cases from the SCC
that exhibit this trend as discussed in this article: Saeed, infra,
and Fearon, infra
Saeed – Police Penile Swabs – Search Incident to Arrest
The SCC, in Regina
, 2016 SCC 24
”) has dismissed an accused’s appeal from a decision emanating from a trial decision and Court of the Appeal, which found that an Albertan man’s rights to privacy under Sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”)
were not violated in connection with a penile swab that was conducted on a “search incident to the arrest.” The matter stems from an incident that was alleged to have occurred in 2011. The accused, Mr. Saeed, was arrested and charged with sexual assault and sexual interference after a complaint from a 15-year-old girl. The details of the attack were significantly serious in that the it was alleged that the accused had “viciously attacked and sexually assaulted
” the complainant, punching her several times in the face and brandishing a knife.
Mr. Saeed was arrested for sexual assault by the Police Service and taken to the detachment. At the police station, the police handcuffed Mr. Saeed to a wall in a cell with no toilet or running water for upwards of forty (40) minutes; and they had the accused conduct a penile swab on himself as two (2) officers blocked the windows to his cell. 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. The police didn’t have prior judicial authorization, i.e. a warrant, to conduct the search; and I believe it was critical to note the police did not apply for a tele-warrant under section 487.1 of the Criminal Code of Canada
. The DNA evidence was critical to the central issue at trial: the identity of the offender.
At his trial, in the Provincial Court of Alberta, Mr. Saeed had challenged the Charter
admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The Crown posited that search and seizure was incident to arrest and therefore fell within the common-law police powers; and was thus admissible. The challenge under the charter stated, in essence, that conscripted evidence, i.e. the putative DNA evidence, violated Mr. Saeed’s rights to be free from an unreasonable search and seizure under Section 8 of the Charter
. The trial judge ruled that the penile swab violated the Mr. Saeed’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
(regardless of the breach of Mr. Saeed’s privacy rights) 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. Leave was sought and granted to the appeal the matter further the Supreme Court of Canada on the whether the Mr. Saeed’s rights were violated or whether this was a valid search incident to arrest, and therefore the DNA evidence conscripted from his penis was lawfully obtained under the common-law power of the police.
The majority of the Supreme Court of Canada found that Mr. Saeed’s s. 8 Charter
rights were not breached and the evidence of the complainant’s DNA obtained from the swabbing was properly admitted. By way of prefatory comments, they applied the following general principles, as stated the following in representative part:
To be reasonable and therefore consistent with s. 8
of the Charter
: (1) a search must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably. The SCC delineated the following principles regarding the common-law power of the police, in searching a potential offender during an alleged search incident to arrest, in the context of penile swabs:
“Determining whether the common law power of search incident to arrest may reasonably authorize a penile swab 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. This case falls into the second category.
A penile swab does not fall within the scope of R. v. Stillman,  1 S.C.R. 607. 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 interests and law enforcement objectives than seizures of an accused’s bodily samples and impressions.
The common law power of search incident to arrest must be delineated in a way that is consistent with s. 8 of the Charter . There can be no doubt that requiring a penile swab is an intrusion on an accused’s privacy. A penile swab has the potential to be a humiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives. It can enable the police to preserve important evidence that runs the risk of degrading or being destroyed. Sexual assaults are notoriously difficult to prove and this type of evidence is highly reliable. A penile swab can be crucial in the case of complainants who are unable to testify. The privacy interests at issue are similar to those implicated in strip searches and they can be protected by a similar approach. As with strip searches, the common law must provide a means of preventing unjustified searches before they occur and a means of ensuring that when these searches do occur, they are conducted in a reasonable manner. The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these two protections. These two modifications to the common law power of search incident to arrest ensure that it is Charter ‑compliant.”
The Court then arguably modified the common-law power of search incident to arrest relative to penile searches with the following principles
- The police may take a penile 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. The reasonable grounds standard will prevent unjustified searches before they occur and will hold the police to a higher level of justification before they can take a penile swab.
- Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include: (a) the timing of the arrest in relation to the alleged offence, (b) the nature of the allegations, and (c) whether there is evidence that the substance being sought has already been destroyed. The potential for destruction or degradation of the complainant’s DNA will always be a concern in this context.
- The swab must also be conducted in a reasonable manner. The following factors will guide police in conducting penile swabs incident to arrest reasonably.
- A swab should, as a general rule, be conducted at the police station. It should be conducted in a manner that ensures the health and safety of all involved. It should be authorized by a police officer acting in a supervisory capacity.
- The accused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to require the swab.
- The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary.
- The officers carrying out the swab should be of the same gender as the accused unless the circumstances compel otherwise. There should be no more police officers involved in the swab than are reasonably necessary in the circumstances.
- The swab should be carried out in a private area. It should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time.
- A proper record should be kept of the reasons for and the manner in which the swabbing was conducted.
In applying these principles to the facts in Mr. Saeed’s case, the Court found:
“In light of these requirements, the penile swab in this case did not violate the accused’s rights under s. 8 of the Charter . The accused was validly arrested. The swab was performed to preserve evidence of the sexual assault. The police had reasonable grounds to believe that the complainant’s DNA had transferred to the accused’s penis during the assault and that it would still be found on his penis. The swab was performed in a reasonable manner. The police officers were sensitive to the need to preserve the accused’s privacy and dignity. The accused was informed in advance of the procedure for taking the swab and its purpose. The swab itself was conducted quickly, smoothly, and privately. The swab took at most two minutes. The accused took the swab himself. There was no physical contact between the officers and the accused. The officers took detailed notes regarding the reasons for and the process of taking the swab. The swab did not fundamentally violate the accused’s human dignity.”
2.Cell Phone Searches – Incident to Arrest
case may, at first glance, reveal a pattern flowing from the Supreme Court of Canada
to expand the policing powers of search incident to arrest. The Court previously dealt with this issue in Regina v. Fearon, 2014] S.C.J. No. 77
with regards to cell phone searches conducted incident to arrest. The majority of the Court in Fearon
, supra, (4:3) accepted that the important function served by searches incident to arrest, especially in relation to mobile devices, rejected a categorical prohibition, or the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances in favour of requiring specific modifications to the common law power to limit the potential invasion of privacy that may result. The majority of the court laid out a very clear framework for future searches of cell phones and similar mobile devices. Police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, the modified test under section 8 of the Charter
- The arrest was lawful;
- The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
- protecting the police, the accused, or the public;
- preserving evidence; or
- discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest.
- The nature and the extent of the search are tailored to the purpose of the search. It is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted.
4.The police take detailed notes of what they have examined on the device and how it was searched. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review takes on special importance where, as here, there is no prior authorization.
3.The SCC has not authorized unfettered searches incident to arrest.
These two cases also echo a trend demonstrating the Courts intention to balance the individual liberty interest of arrested individuals with the societal interest in ensuring that the police have the proverbial arrows in their quiver to ensure that crime detection (and eventual prosecution) remains abreast of evolving technologies and science.
Some authors and academics have commented that the Saeed
case will have a negative impact on the future policing practices, given that the police may secure genital swabs without a warrant when they have reasonable grounds to believe that relevant evidence will be present in that region of the body in connection with the indexed offence. Those who are critical of the decision argue that the policing powers have now been expanded beyond non-intrusive pat-down searches. This presumes that the such police powers never existed in various forms and permutations from the various Appellant Courts in Canada. Prior to these two decisions, there was a judicial disparity between the common-law amongst the Provinces.
The SCC decision simply sets out the test for warrantless searches and lends a sense of parity to the common-law rules throughout the dominion of Canada. Additionally, if the police to choose not evince the warrant procedure and elect to rely on their common-law authority, the Crown is encumbered with the burden of proving, arguably on a balance of probabilities, that the search was reasonable according to the common-law standards set out above. The peril the police may face is interpreting this power as broadly as possible; and not securing a warrant (albeit via telephone) is the exclusion of evidence that they would otherwise secured validly with proper judicial authorization. While in the Saeed
case the absence of a telephone warrant under Section 487.1 of the Code was not fatal to the Crown case, there may be other cases wherein the facts do not gel with the new common-law test. An avenue exists for defence counsel to argue that the failure to comport with the modified common-law test, in the absence of any prior judicial authorization, ought to result in the exclusion of evidence that it critical to an issue in the Crown’s case against an excused person based on a breach of a Section 8 right under the Charter
In my view, it is mistake to simply assume that that SCC has averred that the police may always conduct penile searches in sexual assault cases or review the contents of a cell phone. The modified common-law test, stated above, defines the outer contours of the law and does not give the police the carte blanche
authority to proceed with a search. Depending on factual matrix presented to a court, the Saeed, supra,
tests may arguable advance formidable defences for arrested individuals in the event that police forces ignore the new common-law standards resulting in the inadmissibility of the evidence.