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| Patrick Ducharme |
The power of the police to take and the method by which they seize penile swabs of an accused was before the Alberta Court of Appeal prior to making its way to the Supreme Court of Canada. In R. v. Saeed1 the Court of Appeal for Alberta decided an appeal by an accused from his conviction for sexual assault causing bodily harm and sexual interference based largely upon the trial Judge’s refusal to exclude DNA evidence obtained from a penal swab of the accused. The trial Judge found that the swab was an illegal, warrantless search that seriously impacted the accused’s privacy rights. She found, however, that there was no bad faith on the part of the police and that society had a significant interest in adjudicating the matter on the merits. Therefore, she found the evidence admissible despite the warrantless search and seizure.
The Court of Appeal for Alberta dismissed the appeal finding that the taking of the penile swab was, in fact, a breach of the accused’s right to be free from unreasonable search and seizure, however, the breach was minor as the essential character of the breach was in failing to get a tele-warrant. The appellate court found that a search of this intimate nature required judicial authorization, except where the accused consented or there were concerns for officer safety, evidence preservation, or a situation of exigency. The basis of the majority appellate court’s decision was that a tele-warrant would likely have been obtained if it was sought, therefore the admission of the evidence would not send the message that the accused privacy rights counted for little or that the Justice system condones police misconduct.
Subsection 487.01 (2) of the Criminal Code suggests that type of speculation by the court may be unfounded. This subsection provides that nothing in subsection 1 shall be construed as to permit “interference with the bodily integrity of any person.” Consequently, the issue is whether the involuntary collection of penile swabs amounts to interference with bodily integrity.
Continued in part 2.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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