R. v. Saeed (A.H.),

R. v. Saeed (A.H.) (2016), 616 A.R. 69; 672 W.A.C. 69 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] A.R. TBEd. JN.124

Ali Hassan Saeed (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Ontario, Canadian Association of Chiefs of Police and Criminal Lawyers' Association (Ontario)

(interveners)

(36328; 2016 SCC 24; 2016 CSC 24)

Indexed As: R. v. Saeed (A.H.)

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

June 23, 2016.

Summary:

Saeed appealed his convictions for sexual assault causing bodily harm and sexual interference. He agreed with the trial judge's finding that there had been a s. 8 Charter breach by the police in taking the penile swab incident to his arrest, arguing that the police officers should have obtained a warrant. He submitted that the trial judge's decision pursuant to her s. 24(2) analysis, to admit the results of the penile swab into evidence, was unreasonable. The Crown argued that there was no s. 8 Charter violation by the police in taking the penile swab as that was a proper exercise of the police power to search and seize incident to arrest.

The Alberta Court of Appeal, in a decision reported at (2014), 577 A.R. 143; 613 W.A.C. 143, dismissed the appeal. McDonald, J.A., concluded that the trial judge erred in ruling that the search violated Saeed's s. 8 Charter rights. Had there been a breach, such breach was "at a lower end of the spectrum", in light of the trial judge's finding that the police conducted the search "in a reasonable fashion" but absent exigent circumstances. Watson and Bielby, JJ.A., concluded that Saeed's s. 8 Charter rights were infringed, but agreed with McDonald, J.A., that the evidence should be admitted. The trial judge made a reviewable error of law in her s. 24(2) analysis, but in Saeed's favour in relation to the first and second lines of inquiry in R. v. Grant (2009) (S.C.C.). Saeed appealed.

The Supreme Court of Canada, Abella, J., dissenting, dismissed the appeal. The penile swab taken incident to Saeed's arrest did not violate his s. 8 Charter right to be secure against unreasonable search and seizure. The police had reasonable grounds to believe that the swab would afford evidence of the complainant's DNA, and they conducted the swab in a reasonable manner. The evidence from the penile swab was therefore properly admitted at trial. Karakatsanis, J., concurring in the result, concluded that the common law power of search incident to arrest did not authorize the police to take genital swabs, "[g]iven the profound impact such state conduct can have on an individual's privacy and human dignity." Although the penile swab was in violation of s. 8 of the Charter, the evidence was nonetheless admissible under s. 24(2). Abella, J., while agreeing with Karakatsanis, J., that the search was a breach of s. 8, would have excluded the evidence, based on public confidence in the integrity of the justice system.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See first and second Criminal Law - Topic 3147 ].

Civil Rights - Topic 1216

Security of the person - Lawful or reasonable search - Strip searches - [See sixth Criminal Law - Topic 3147 ].

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See first and second Criminal Law - Topic 3147 ].

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - DNA samples (incl. victim's DNA from accused) - [See second, fourth and ninth Criminal Law - Topic 3147 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The accused appealed his convictions for sexual assault causing bodily harm and sexual interference - The Supreme Court of Canada majority held that the penile swab taken incident to the accused's arrest did not violate his s. 8 Charter right to be secure against unreasonable search and seizure - The police had reasonable grounds to believe that the swab would afford evidence of the complainant's DNA, and they conducted the swab in a reasonable manner - Karakatsanis, J., concluded that the penile swab was in violation of s. 8, but that the evidence was nonetheless admissible under s. 24(2) - "The impact of the Charter breach on the accused was very serious. Going forward, in the face of settled law, it would be difficult to justify its admission. However, the law on this issue was unsettled at the time of this seizure and the police acted on their understanding of the law. Furthermore, society has a strong interest in the adjudication of this brutal sexual assault. On balance, I conclude that the trial judge was justified in concluding that the admission of the evidence would not bring the administration of justice into disrepute." - See paragraphs 124 to 129.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The police arrested, released, and re-arrested the accused, handcuffed him to a pipe in a dry cell, and, without taking any steps either to obtain a warrant or a telewarrant, proceeded to conduct a genital swab for the purposes of obtaining DNA evidence - The accused appealed his convictions for sexual assault causing bodily harm and sexual interference - The Supreme Court of Canada majority held that the penile swab taken incident to the accused's arrest did not violate his s. 8 Charter right - The police had reasonable grounds to believe that the swab would afford evidence of the complainant's DNA, and they conducted the swab in a reasonable manner - Karakatsanis, J., concluded that the penile swab was in violation of s. 8, but that the evidence was nonetheless admissible under s. 24(2) - Abella, J., agreed with Karakatsanis, J., that the search was a breach of s. 8, but that the reputation of the justice system weighed against admission of the evidence - "[T]he 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. In these circumstances, based on public confidence in the integrity of the justice system, I would exclude the evidence and order a new trial." - See paragraphs 131 to 168.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The accused appealed his convictions for sexual assault causing bodily harm and sexual interference - At issue was the scope of the common law power of the police to search incident to arrest - The Supreme Court of Canada, in examining the power, stated that "to be constitutional, searches incident to arrest must be reasonable. Reasonableness in this context involves striking a proper balance between an accused's privacy interests and valid law enforcement objectives. In some cases, an accused's privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused's privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter-compliant." - See paragraphs 4 and 5.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The accused was convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose - At his trial, the Crown introduced evidence showing that the complainant's DNA was found on the accused's penis within several hours of the assault - Police obtained that evidence through a warrantless penile swab, conducted at the police station following the accused's arrest - The accused objected to the admission of that evidence - He argued in the courts below that his right to be secure against unreasonable search and seizure under s. 8 of the Charter was violated because the police performed the penile swab without his consent or a warrant - The Supreme Court of Canada dismissed the appeal - "[W]hile a penile swab constitutes a significant intrusion on the privacy interests of the accused, the police may nonetheless take a swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested, and the swab is conducted in a reasonable manner." - Applying those requirements to this case, the police had reasonable grounds to conduct the swab, and in carrying it out they took reasonable steps to respect the accused's privacy - It followed that the accused's s. 8 Charter rights were not breached, and that the evidence of the complainant's DNA obtained from the swabbing was properly admitted - See paragraphs 6 and 7.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The accused appealed his convictions for sexual assault causing bodily harm and sexual interference - The main issue was whether the police were entitled to rely on the common law power of search incident to arrest to take a penile swab, given the particular privacy interests at stake - The accused submitted that a penile swab fell within the scope of R. v. Stillman (1997) (S.C.C.); i.e., that a penile swab was a seizure of a bodily sample, and therefore, as the police had neither his consent nor a warrant, they were not entitled to take the swab - The Supreme Court of Canada disagreed - "In particular, I reject his argument that this case can be decided on a straightforward application of Stillman. But that is not the end of the matter. An accused's privacy interests are invariably implicated by a penile swab. While I would reject [the accused]'s argument that the privacy interests are so high as to require the police to obtain either consent or a warrant, I agree that the common law power of search incident to arrest must be tailored to protect the enhanced privacy interests involved. In my view, the police may take a penile swab incident to arrest if they have reasonable grounds to believe the swab will reveal and preserve evidence of the offence, and if the search is carried out in accordance with guidelines that are designed to respect the accused's privacy interests and interfere with them as little as possible." - See paragraphs 39 to 42.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Supreme Court of Canada disagreed with the accused's submission that a penile swab fell within the scope of its decision in R. v. Stillman (1997), i.e., that the police must have consent or a warrant to seize an accused's bodily samples and certain impressions - "First, a penile swab is not designed to seize the accused's own bodily materials but rather, the complainant's. ... The complainant's DNA is not part of the accused's body, and does not reveal anything about him. ... The evidence sought is not personal information relating to the accused. Accordingly, accused persons do not have a significant privacy interest in the complainant's DNA ... Second, a penile swab is in some ways less invasive ... While the accused is required to expose a private area of his body to conduct the swab, the procedure for taking the swab is not invasive. Third, unlike with the accused's bodily materials or impressions, evidence of the complainant's DNA degrades over time. The accused can also destroy this evidence, whether intentionally or accidentally. ... In sum, the issue in this case cannot be resolved by a straightforward application of Stillman. A penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused's bodily samples and certain impressions." - See paragraphs 43 to 51.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The accused appealed his convictions for sexual assault causing bodily harm and sexual interference - The police had relied on the common law power of search incident to arrest to take a penile swab - The Supreme Court of Canada, in assessing the particular privacy interests at stake, stated that "this search is a significant intrusion on the accused's privacy because of the body part searched. ... Unlike my colleague Karakatsanis J., I do not find the approach in the United Kingdom to be particularly helpful in assessing the privacy interests implicated here. The regime in the United Kingdom operates in an entirely different context, with different rules ... On the other side of the ledger, a penile swab conducted incident to arrest can serve important law enforcement objectives. ... At bottom, while there is no disputing that a penile swab intrudes on an accused's privacy, the intrusion is limited. In my view, it is not so substantial as to require the police to obtain consent or a warrant. Permitting these swabs to be taken only with the accused's consent - as in the United Kingdom - would strike an inappropriate balance in the Canadian context. It would countenance an approach that effectively disregards the interests of victims of sexual assault, where the evidence is most likely to be pertinent, and all but ignores the public interest in bringing sexual offenders to justice." - See paragraphs 52 to 61.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Supreme Court of Canada stated that a penile swab implicated privacy interests similar to those in strip searches, and could be protected by a similar approach - "Both strip searches and penile swabs involve law enforcement inspecting private areas of an accused's body. While a strip search does not always require touching of the accused's private areas, both strip searches and penile swabs can involve such contact ... The guidelines set out in Golden [R. v. Golden (2001) (S.C.C.] contemplate the touching of an accused's private areas to remove evidence or weapons ... This process could certainly involve the exposure and possible manipulation of an accused's genitals ... Hence, the need for explicit guidelines designed to ensure, so far as possible, that the search is conducted in the least humiliating manner. So too, penile swabs must be conducted with the same care. ... The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these two protections. ... Both serve to protect the accused's privacy while ensuring the police are free to pursue the valid objective of preserving this highly probative, perishable evidence. These two modifications to the common law ensure that it is Charter-compliant, or in other words, that it is reasonable." - See paragraphs 62 to 64.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Supreme Court of Canada set out the requirements for conducting a valid penile swab incident to arrest - "First, as with every search incident to arrest, the arrest itself must be lawful. The swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest, and it must be performed for a valid purpose. The valid purpose will generally be to preserve or discover evidence ... Second, the police must also have reasonable grounds to believe that a penile swab will afford evidence of the offence for which the accused was arrested. These grounds are not to be confused with the reasonable grounds required for the arrest. They are independent. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors 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. ... Finally, the penile swab must be conducted in a reasonable manner. Above all, the police must take care to respect the privacy of the accused." - See paragraphs 73 to 78.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Supreme Court of Canada outlined and further explained the following 10 factors to guide police in conducting penile swabs incident to arrest reasonably: "1. The penile swab should, as a general rule, be conducted at the police station; 2. The swab should be conducted in a manner that ensures the health and safety of all involved; 3. The swab should be authorized by a police officer acting in a supervisory capacity; 4. The accused should be informed shortly before the swab of the nature of the procedure for taking the swab, the purpose of taking the swab, and the authority of the police to require the swab; 5. The accused should be given the option of removing his clothing and taking the swab himself, and if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary; 6. The police officer(s) carrying out the penile swab should be of the same gender as the individual being swabbed, unless the circumstances compel otherwise; 7. There should be no more police officers involved in the swab than are reasonably necessary in the circumstances; 8. The swab should be carried out in a private area such that no one other than the individuals engaged in the swab can observe it; 9. The swab should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time; and 10. A proper record should be kept of the reasons for and the manner in which the swabbing was conducted." - See paragraphs 78 to 82.

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - The Supreme Court of Canada stated that "whether a particular penile swab incident to arrest complies with s. 8 [of the Charter] will depend on the facts of the case. The onus is on the Crown to establish that the police had reasonable grounds to believe the swab would reveal the evidence sought and that the swab was conducted in a reasonable manner." - In the case at bar, the Court held that taking the penile swab did not violate the accused's s. 8 Charter rights - First, the nature of the allegations gave the police reasonable grounds to believe that the complainant's DNA had transferred to the accused's penis - The timing of the swab gave the police reasonable grounds to believe that the DNA was still there - Second, the swab was performed in a reasonable manner - The police were sensitive to the need to preserve the accused's privacy and dignity - The accused was informed in advance of the procedure and the purpose of the swab - The swab was conducted quickly, smoothly, and privately - The accused took the swab himself - "The police conducted a well-grounded search incident to a valid arrest. They took care to minimize the intrusion on [the accused]'s privacy." - See paragraphs 83 to 90.

Criminal Law - Topic 3152

Special powers - Power of search - Warrantless searches - [See second Criminal Law - Topic 3147 ].

Criminal Law - Topic 3154

Special powers - Power of search - Evidence obtained - Admission of - [See both Civil Rights - Topic 8368 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See first and second Criminal Law - Topic 3147 ].

Counsel:

Peter J. Royal, Q.C., and Conor Davis, for the appellant;

Maureen J. McGuire and Melanie Hayes-Richards, for the respondent;

Melissa Adams and Susan Magotiaux, for the intervener, the Attorney General of Ontario;

David Lynass and Greg Preston, for the intervener, the Canadian Association of Chiefs of Police;

Howard L. Krongold and Vanessa MacDonnell, for the intervener, the Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Royal & Company and Conor Davis, Edmonton, Alberta, for the appellant;

Attorney General of Alberta, Edmonton, Alberta, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Edmonton Police Service, Edmonton, Alberta, for the intervener, the Canadian Association of Chiefs of Police;

Abergel Goldstein & Partners, Ottawa, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on December 1, 2015, before   McLachlin,  C.J.C.,  Abella,  Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada. The Court delivered the following judgment and reasons, dated June 23, 2016, in both official languages:

Moldaver, J. (McLachlin, C.J.C., Cromwell, Wagner, Gascon, Cིཾté and Brown, JJ., concurring) - see paragraphs 1 to 91;

Karakatsanis, J., concurring in the result - see paragraphs 92 to 130;

Abella, J., dissenting - see paragraphs 131 to 168.