Supreme Court Rules Penile Swab Obtained in Illegal Search Did Not Violate Charter

Update:

Inside the Supreme Court of Canada's courtroom. photo by fightyourtickets.ca
Inside the Supreme Court of Canada’s courtroom. photo by fightyourtickets.ca

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

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.

Supreme Court of Canada. photo by fightyourtickets.ca
Supreme Court of Canada. photo by fightyourtickets.ca

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.

 Justice Abella
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.”

The front door leading into the Supreme Court of Canada. This Court considers an average of between 500 and 600 applications for leave to appeal each year. The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court's practice to start each session on a Monday. The Standard for Granting Leave The standard – even though it's circular – is set out in s. 40 (1) of the Supreme Court Act: "by reason of its public importance or the importance of any law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it " (emphasis added). photo by fightyourtickets.ca
The front door leading into the Supreme Court of Canada. This Court considers an average of between 500 and 600 applications for leave to appeal each year. The Supreme Court holds three sessions a year and hears on average between 65 and 80 appeals a year. Each session lasts three months. The first session begins in January, the second begins in April and the third begins in October. In recent years, it has been the Court’s practice to start each session on a Monday. The Standard for Granting Leave
The standard – even though it’s circular – is set out in s. 40 (1) of the Supreme Court Act:
“by reason of its public importance or the importance of any law or any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it ” (emphasis added). photo by fightyourtickets.ca

 

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