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Cops don't need a warrant to swab a rape suspect's penis for DNA, Canada's top court says

The ruling that revolves around an Alberta sex assault case is troubling for civil liberties advocates, who say it will infringe on the privacy rights of Canadians.

by Rachel Browne
Jun 23 2016, 7:15pm

Idaho State Police Forensic Services lab tests for DNA samples. (Photo by Idaho State Police via AP)

Police officers in Alberta did nothing wrong when they made a man accused of sexual assault swab his own penis for DNA, Canada's Supreme Court ruled on Thursday.

And, it's also okay for police to conduct penile swabs without a warrant on people who have been arrested — not convicted — if it's done in a "reasonable manner" to preserve crucial evidence in criminal cases.

The ruling is troubling for civil liberties advocates, who say it will infringe on the privacy rights of Canadians.

This case hinges on an Edmonton man, Ali Hassan Saeed, who was arrested early morning one day in 2011 and charged with the sexual assault of a 15-year-old girl. According to the court's decision, police at the scene believed the girl's DNA would "still be found on the accused's penis" and therefore a swab should be taken. Saeed was then handcuffed to a wall in a cell without a toilet or running water "to preserve the evidence." The officer in charge did not seek a warrant from the court because he believed the swab was "a valid search incident to arrest."

Related: Rape and Punishment: How a Campaign to Analyze Old DNA Evidence Is Affecting Survivors

About an hour later, two cops blocked the cell's window as Saeed swabbed his own penis. The test conducted on the swab later tested positive for the girl's DNA. Saeed was later convicted of sexual assault based on the evidence.

During Saeed's initial trial, he complained about the admissibility of the swab, saying that the way it was conducted violated his charter rights to be free from unreasonable search and seizure. The judge agreed, but the case was appealed. The appeal judge later dismissed Saeed's complaint, ruling that the evidence was indeed admissible.

Supreme Court judges agreed with the appeal court, ruling that Saeed's swabbing was done properly and humanely, and did not violate his constitutional rights. This is partly because a penile swab is not meant to gather DNA of the accused, but rather that of the complainant in the case.

Further, the swab is "in some ways less invasive than taking dental impressions and the forcible taking of parts of a person," the decision reads. "In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused's bodily samples and impressions."

But the ruling wasn't unanimous. One of two dissenting judges wrote that the swab evidence in this case was inadmissible because the police did not get permission from a judge to conduct the swab.

"The police did not make any inquiry to determine whether a swab would be probative," Justice Rosalie Abella wrote. "The accused had ample opportunity to wash away the evidence and it would have been impossible for the police to know whether the best source of DNA evidence was a genital swab."

The swab is 'in some ways less invasive than taking dental impressions and the forcible taking of parts of a person.'

She argued that "the law is clear that judicial authorization is required to conduct invasive searches with a view to obtaining bodily samples" and that in this case, the fact that police didn't consider getting a warrant is "at its best, careless."

For Laura Berger, staff lawyer at the Canadian Civil Liberties Association, arresting someone does not necessarily authorize police to conduct in-depth searches.

"It's a case that has a lot of implications for how we view Canadians' privacy interests in their own bodies, and in particular the genital area, the most private and one of the most important parts of the body," she said. "When you grant police a power like this, you are putting a great deal of power discretion in their hands, and that's troubling."

Follow Rachel Browne on Twitter: @rp_browne

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