Supreme Court: No warrant to swab your genitals? No Problem!

Author:Izadi, Melody

In 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.

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."...

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