We’re all reeling from the shock of the Brexit vote, but to help take your mind off our uncertain economic times for a few minutes, I thought I would bring to your attention what I believe to be a landmark decision in the ongoing heated dialogue between sexual-assault victim’s rights and the rights of the accused to have the Crown prove it’s case against him.

On Tuesday this week, the Supreme Court of Canada (SCC) determined in R. v. Saeed that, incident to arrest, police can conduct a penile swab of a suspect during an investigation of a sexual assault where there are reasonable grounds to believe there was penile penetration.

Why is this huge? Let me explain.

A penis swab is a search. In Canada, we have the constitutional right to be free from unreasonable search and seizure by the Crown. In order for a search to be lawful, the search must be authorized by law, the law must be reasonable, and the search must be conducted in a reasonable manner.

The police have three ways they can get the authority to conduct a lawful search. One way is for them to obtain a warrant. This involves a process whereby the investigating officer has to swear an affidavit, known as an Information to Obtain a Warrant. This goes before a justice of the peace and if it meets the necessary standard, the police officer gets a warrant. If the police are going to search a home for a grow operation, they need to get a warrant.

In R. v. Saeed, the SCC discussed whether or not you can obtain a warrant to do a penile swab. It determined that it was not clear and they would not make a decision on that point. I think that this demonstrates a huge hole in our law for the investigation of sexual assaults. The SCC did not decide the issue, but implored Parliament to create specific legislation for conducting searches that interfere with a person’s bodily integrity.

Another way the police can conduct a search is if they obtain the consent of a party to do so. This is pretty straightforward; you are under no obligation to consent to a search and there is no adverse presumption if you don’t.

What occurs most frequently in crime investigations, however, are searches incident to arrest. Police derive their authority to search suspects of crime incident to arrest from the common law (i.e., judge-made law, not Parliament-made law).

Your Section 8 Charter rights balance privacy with the Crown’s need to investigate crime. There are some privacy rights that are so sacred as to be almost inviolable. In the case of these most important privacy rights, the police will have to get a warrant or your consent to conduct a search. For less important privacy rights, the police can conduct a search for evidence incident to arrest.  

A penile swab incident to arrest, apparently, does not violate your Charter-protected rights because its purpose is to search for the DNA of the complainant.

Our highest court in Canada has determined that you do not have a privacy right in someone else’s DNA, which may be on your penis. This is what the SCC said at paragraph 45 of its decision:

“…a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. The privacy interest accused persons have in their own samples and impressions stems, in part, from the fact that these samples and impressions are part of their bodies and can reveal personal information about them.  The complainant’s DNA is not part of the accused’s body, and does not reveal anything about him.”

It’s important to know that there are limits on the search incident to arrest. First, the arrest must be lawful; this means that the police must have had reasonable and probable grounds to believe you committed an offence. Second, the search (or, in this case, the penile swab) must be truly incident to arrest. To be truly incident to arrest, the swab must be related to the reason for arrest and it must be performed for a valid purpose, such as preserving or discovering evidence.

What this means is that you cannot do a penile swab in a shoplifting investigation or other unrelated crime. It would also not likely be a valid search during an investigation into a sexual assault where there was no evidence of penile penetration. Because DNA degrades over time and can be washed away, a penile swab would likely not be lawful where the suspect is arrested a week after the assault.

What’s interesting about this case is its history. At the trial level, the court said that the penile swab was a violation of the accused’s rights to be free from unreasonable search and seizure, but the evidence was too important to exclude from trial. The Court of Appeal ultimately agreed. The majority of judges on the SCC disagreed. Five out of seven judges determined that there is no Section 8 violation. The evidence goes in.

So, the SCC has taken a stance and said Parliament has not made legislation to specifically authorize these kinds of searches, acknowledged that sexual assault is notoriously difficult to prove, and, as a result, has determined that the judge-made law of search incident to arrest is expansive enough to give police authority to conduct penile swabs to collect evidence.

In this case it made all the difference. The complainant was a 15-year-old girl who had been drinking at a party. She went outside and was violently sexually assaulted by the accused. Her friend went looking for her and intervened. Her friend was also intoxicated at the time, and it was dark, but gave the police the evidence of the accused’s identity.

At trial, the complainant recanted her identity of the accused. Her friend’s identification of the accused was far from being ironclad. It was the penile swab that got the conviction. This type of evidence is critical in cases where the complainant is not able to give evidence as to the identity of the attacker or where their evidence is not ironclad.

In my opinion, I think the Supreme Court of Canada has made a strong statement about the manner in which sexual-assault offences are to be addressed by our judicial system going forward.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.