Supreme Court of Canada dismisses penile swab appeal by Edmonton man

The Supreme Court of Canada ruled that an Edmonton man who was forced to conduct a penile swab on himself while locked in a cell didn't have his charter rights violated.

Swab requested by police didn't violate accused man’s rights under Section 8 of charter, court rules

Supreme Court of Canada in Ottawa. (Albert Couillard/CBC)

An Edmonton man who was forced to conduct a penile swab on himself didn't have his charter rights violated, the Supreme Court of Canada has ruled.

In 2011, Ali Hassan Saeed was arrested and charged with sexual assault and sexual interference after a complaint from a 15-year-old girl.

It was alleged that Saeed "viciously attacked and sexually assaulted" the teen, punching her several times in the face and brandishing a knife. 

While he was in custody, police handcuffed Saeed to a wall in a cell with no toilet or running water for upwards of 40 minutes. They then had the accused conduct a penile swab on himself as two officers blocked the windows to his cell. The police didn't have judicial authorization to conduct the search.

After the swab was tested, it revealed the complainant's DNA was found on Saeed's penis.

In light of these requirements, the penile swab in this case did not violate the accused's rights under section eight  of the Charter.- Majority ruling

The trial judge ruled this was an illegal search, but said the results were admissible because the police didn't act in bad faith and society has a high interest in seeing justice in cases of sexual assault.

Saeed was convicted, and the Alberta Court of Appeal upheld the ruling, citing several precedents.

The majority ruling was that the Section 8 charter rights of the accused were not breached and the evidence could be admitted. 

Section 8 states that, "everyone has the right to be secure against unreasonable search or seizure."

In its decision released Thursday, the court said that because the police had "reasonable grounds" to believe that there was evidence on the accused's penis, the police officers were "sensitive to the need to preserve the accused's privacy and dignity."

The decision also notes that the accused was informed in advance of the procedure, and that there was no physical contact between the officers and the accused. 

"In light of these requirements, the penile swab in this case did not violate the accused's rights," they wrote in their majority decision.  

Supreme Court of Canada Justice Rosalie Abella was the only justice to state that the evidence shouldn't be admissible. (Philippe Landreville, Supreme Court of Canada Collection)

Two dissents

Justice Andromache Karakatsanis dissented, but said that even though she believed that Section 8 was violated the evidence was still admissible, writing "there was no actual bad faith on the part of the police."

She added: "Where the police act on a mistaken understanding of the law where the law is unsettled, their Charter‑infringing conduct is less serious."

Justice Rosalie Abella was the only one of the justices to state that the evidence wasn't admissible because of the lack of judicial authorization. Abella wrote "the police officers' unjustified and unexplained avoidance of this requirement weighs against admissibility." 

According to Abella: "The deliberate failure to consider a warrant in the absence of exigent circumstances is, at its best, careless; ignoring the legal possibility that under Canadian law the police were not even entitled to take a penile swab, is fatal." 

Expanding police power

Steven Penney, a law professor at the University of Alberta, said that this case may have an impact on future policing because officers will be able to use this search technique as long as they comply with the recommendations of the Supreme Court.

"Bottom line is that they will be able to conduct genital swabs for DNA and other evidence ... without a warrant when they have reasonable grounds to believe that evidence is going to be present on the genital area of the suspect," said Penney.
Steven Penney said this case could have implications on how police do conduct searches in the future. (University of Alberta)

Penney said the ruling expands the scope of the "power to search as an incident of arrest." These are the routine searches that occur when someone is arrested — frisks, pat-downs. searches of the immediate surroundings.

"That power was limited to those kind of non-intrusive searches," said Penney."What this case does, along with a lot of fairly recent cases, is allows police to engage in intrusive kinds of searches that previously they may of had to obtain a warrant to conduct."

The Criminal Lawyers Association intervened in the case because of concern about a trend toward the courts influencing police power.

"The danger is you have courts regulating the conduct of the police without any direct input from Canadians, from Parliament, as to where the appropriate boundaries are between the conflicting interests of privacy, in this case, and law enforcement," said Penney.

What this case does... is allows police to engage in intrusive kinds of searches that previously they may of had to obtain a warrant to conduct.- Steven Penney

Another problem that may stem from the ruling is, because of the lack of a warrant, "police are going to interpret this power as broadly as possibly," said Penney.

"They are potentially going to make errors. They are going to intrude and conduct these searches in circumstances where if we had the benefit of hindsight we might say the search was not justified."

About the Author

Mack Lamoureux is a reporter with CBC Edmonton. He's a lover of strange and odd stories. He counts writing about himself in the third person among his least favourite things to do. mack.lamoureux@cbc.ca, @macklamoureux

With files from The Canadian Press