Penile Swabs Admitted Despite Unlawful Search

Thursday, May 7, 2020

Cory Wilson is a sexual assault lawyer based in Calgary. If you have been charged with sexual assault, call today for a free no obligation consultation.

Penile Swabs Admitted Despite Unlawful Search

A recent Alberta Court of Appeal decision upheld penile swabs of the accused despite the lower court finding breaches in the manner of search.

The Complainant testified that while at a house party, she was bent over in a bathroom vomiting into a toilet when a man known to her entered the bathroom and penetrated her from behind. Both the Complainant and accused were heavily intoxicated at the time. Police attended and arrested the accused.

The accused told police that he did not understand English very well and was provided with a Spanish interpreter. He spoke to a lawyer and then was placed in a police cell where he was strip searched. While naked, a police officer took a penile swab. Prior to the swab being taken, the accused asked if he could once again speak to the lawyer. Officers told him that he could. The officers did not give the accused the option of taking the swab himself and he did not have the interpreter present during the process.

After the penile swab, the accused gave police a statement through the interpreter. He admitted to following the Complainant into the bathroom but was so heavily intoxicated, he could not remember if he penetrated her.

Results of the penile swab revealed the Complainant’s DNA in such a significant concentration that the Crown expert opined that it had to be from penetration. The Complainant had vaginal swabs taken but no male DNA was found.

At trial, the accused argued that his section 10(b) Charter rights were breached when the Spanish interpreter told him he could only call one lawyer as well as police failure to allow him to call a friend to get another lawyer’s phone number.

The accused also argued that his section 8 Charter right was breached as a result of the manner in which the penile swab was taken, specifically, in the presence of three officers, while he was nude and with insufficient recording.

As a result of the breaches, the accused sought the exclusion of the penile swab under section 24(2).

The trial judge found no 10(b) breach but did find a section 8 breach. Despite this finding, the trial judge refused to exclude the penile swab and the accused was convicted.

Penile Swabs Admitted Despite Unlawful Search

The Court of Appeal

The Court of Appeal found that the statement was properly admitted that the trial judge’s decision to admit the penile swab was entitled to deference (a common refrain from the Court of Appeal).

With respect to not being allowed to call a friend, the accused never told police the purpose was to obtain a phone number for a lawyer. Police are not to be mind readers and can only respond given the information they are provided. Given that the accused did not testify at trial, there was no evidence that he would have done anything differently.

With respect to the penile swab, the trial judge found three section8 breaches:

  1. The unnecessary presence of the third police officer;
  2. The fact the accused was naked during the swab; and
  3. Police failed to properly record the search.

The trial preceded the Supreme Court of Canada case of R v Saeed in which a detailed list of circumstances for ensuring Charter compliance during penile swabs taken search incident to arrest.

The Court of Appeal found that while there were indeed breaches, they were not intentional, malicious or serious. The truth seeking function of the administration of justice supported the admission of the evidence.

Cory Wilson is a Calgary criminal lawyer serving clients in all of Alberta. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.