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Supreme Court of Canada expands scope of police search powers

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On June 23, the Supreme Court of Canada handed down an opinion that significantly expands the power of Canadian police to conduct intrusive body searches on criminal defendants without first obtaining judicial warrants. In R. v. Saeed, law enforcement — without a warrant — required the arrested suspect in a sexual assault case to perform a penile swab on himself in an attempt to gather DNA evidence of the victim.

Section 8 of the Canadian Charter of Rights and Freedoms establishes the “right to be secure against unreasonable search or seizure.” The DNA of the victim was found upon testing of the swab, so the issue at trial was whether this DNA evidence linking the defendant physically to the sexual assault victim should be excluded from the trial as an unconstitutional violation of the defendant’s Charter rights.

The Supreme Court found that defendant Saeed’s Charter rights were not violated by the warrantless gathering of evidence from his body because the police had “reasonable grounds” to believe the evidence existed there and because they handled the procedure in a way that was sensitive to his “privacy and dignity.”

The analysis involved the issue of whether the warrantless swab was a proper use of the police power of search incident to a valid arrest. The court explained that to determine whether such a search without a warrant is constitutional, the court must balance of the defendant’s privacy interests versus the police objective of law enforcement. In this case, the court pointed out that the defendant had no privacy interest in the victim’s DNA, even though the victim’s DNA was on the defendant’s private body part.

The court also noted that a penile swab is less invasive than other kinds of evidence gathering like taking dental impressions or drawing blood. In addition, the victim’s DNA on the defendant’s skin would degrade if not gathered in time.

The Supreme Court opinion also emphasizes that to be reasonable a warrantless swab, if it is determined that police have reasonable grounds to believe the procedure will gather important evidence, must be conducted in a reasonable manner considering privacy, dignity and health concerns.

Charter rights cases are particularly complex and depend on the facts of each situation, so anyone arrested for or charged with a crime, especially involving a warrantless search, should consult a criminal defence lawyer for advice and representation.

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