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| Patrick J Ducharme |
Continued from part 1.
On further appeal to the Supreme Court of Canada, our highest court concluded that to be reasonable and therefore consistent with section 8 of the Charter a search must be authorized by law, the authorizing law must be reasonable, and, the search must be conducted reasonably. The court acknowledged that in some cases the privacy interests of an accused will be so high as to be almost inviolable. In those cases the common law power of search incident to arrest must yield. A search will be allowed only where the accused consents, or a warrant is obtained or exigent circumstances can be established. The court also opined that there may be instances where the accused’s privacy interests are significant, but not so significant as to preclude the power of police to search “incident to arrest.”
The Supreme Court found that in determining whether reasonable grounds exist will vary with the facts of each case. Relevant factors will include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed. Further, the potential for destruction or degradation of the complainant’s a DNA will always be a concern in this context.
In addition, the manner of taking the swab must be a manner that is reasonable. The court outlined the important factors that will guide the police in conducting penile swab seizures. As a general rule swabs should be taken in a way 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 is taken as to the nature of the procedure, its purpose, and the authority of the police to require that swab. The police officer performing the procedure should be of the same gender as the accused unless the circumstances compel otherwise. There should not be any more police officers involved then are reasonably necessary in the circumstances. And, the swab should be carried out in a private area, conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any time. Lastly, a proper record should be of the reasons for and the manner in which the swabbing was conducted.
The Supreme Court ruled that the investigating officers did not violate the rights of the accused pursuant to section 8 of the Charter. One suspects that the court’s ruling was heavily influenced by the dramatic nature of the alleged sexual assault. The accused was alleged to have punched his victim several times in the face while brandishing a knife. It was alleged that the accused had viciously attacked the victim, who was only a teenager. The court overlooked the fact that the police did not have judicial authorization to conduct a penile swab test on the accused. The majority ruling was that section 8 of the Charter was not breached in these circumstances and therefore the evidence was admissible. The court also found that in this case the police were “sensitive to the need to preserve the accused’s privacy and dignity.”
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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