The complainant, a 15 year old female, attended a party at an apartment. There, she became intoxicated and went to sleep in a bedroom. After waking, she left the apartment to look for a friend. The complainant was then sexually assaulted by a male who had followed her from the apartment. The sexual assault included forced intercourse. The complainant made her way home with the help of friends before police were contacted.
The appellant was arrested at the apartment where the party had occurred when police attended later in the day. The appellant was briefly released (apparently due to an investigative mistake), then re-arrested about an hour later. Upon this second arrest, the appellant was lodged in a “dry cell”—a cell without a toilet or water—and handcuffed to a wall of the cell. About two hours later, a police officer demanded that the appellant provide a swab of the surface of his penis. The officer watched the appellant completing this task. The swab was seized and later analysis found DNA of the complainant on the swab.
Aside from the DNA evidence, the other evidence on identification of the appellant as the assailant was weak. The confirmatory DNA evidence was, accordingly, of considerable importance to the Crown’s case.
At trial, the defence sought to exclude the expert report which resulted from the analysis of the penile swab. The trial judge had found:
- The search was a strip search (as defined in R v Golden, 2001 SCC 83 (CanLII)) and the police had carried out the search in a reasonable fashion, given the criteria in Golden.
- However, the strip search was not carried out in exigent circumstances. While there was a basis for scientific concern about degradation of DNA evidence (as testified to by an expert), no police witnesses had talked about this as a basis for the taking of the swab without a warrant.
- The Crown had not proven that the taking of the swab was lawful as a search incident to arrest. Accordingly, the search was an illegal warrantless search.
- Upon consideration of the breach under the test enunciated in R v Grant, 2009 SCC 32 (CanLII), the DNA report should, despite the breach, be admitted into evidence.
The appellant was convicted and he appealed to the Court of Appeal. In a reserved judgment (2014 ABCA 238 (CanLII)), the majority of the panel in the Court of Appeal refused the appeal. The majority found that the penile swab was taken in breach of the appellant’s rights against unreasonable search or seizure, but that the evidence should be admitted, following consideration of the Grant factors.
The majority concluded that the result of the Charter section 8 analysis in the case was dictated by the Supreme Court decision in R v Stillman, 1997 CanLII 384 (SCC), where it had been determined that the taking of hair samples, buccal (cheek) swabs and dental impressions from an accused post-arrest without warrant exceeded the scope of the common law power to search incident to arrest given the invasive nature of those searches and the lack of exigent circumstances.
In a portion of the decision which provides guidance to police officers contemplating future seizures of bodily samples, the majority writes:
 It is difficult to imagine a situation where a Charter-compliant warrantless search of such a nature as to infringe upon bodily integrity could occur absent consent or a finding of a realistic possibility that the evidence might disappear in the likely time needed to obtain a warrant. It may be that a finding of exigency may arise, or it may be that the delay occasioned by the time needed to apply for a warrant would raise a real risk of imminent bodily harm to anyone. However, this is not an area where the law can be simplistic. But reinforcement of the warrant presumption seems the safest course for the law.  In our respectful view, this is an area of the law that must be approached with acute attention to the rights of the individual even though it must also be attentive to the quite understandable needs and practicalities of law enforcement and public protection. In sum, unless a statute otherwise provides, a warrant is required for any intimate search and seizure for bodily samples from the person, absent consent, absent evidence which establishes that the time required to apply for a warrant could result in the bodily samples sought significantly deteriorating or disappearing before a search and seizure under warrant could be undertaken or absent evidence of extreme exigency. Such a search cannot be justified, without warrant, simply on the basis of being incidental to arrest, without more.
In considering the section 24(2) analysis, both the majority and minority saw no reason to interfere with the trial judge’s determination that the evidence seized should be admitted despite the breach. The majority reasoned:
- The magnitude of the breach was attenuated by the high probability that if police had sought a telewarrant to seize the bodily samples from the appellant, it would have been granted.
- The impact of the breach on the accused should also be weighed with consideration for the issue of discoverability. While the breach involved an intrusion upon the bodily integrity of the appellant, such an intrusion would likely have been authorized had a telewarrant been sought.
- The exclusion of the evidence would impede the seeking of truth in the adjudication of a very serious offence.
In dissent, Justice McDonald held that there had been no breach of the appellant’s section 8 rights because the seizure was made in exigent circumstances and was, accordingly, a reasonable search incident to arrest.
Justice McDonald differentiated Stillman in the following way: Simply put, in Stillman what was being sought from the individual in question were, inter alia, samples of his own bodily substances. In the case at bar, the appellant was being swabbed (by himself, I might re-iterate) to determine the presence of the complainant’s DNA. The former type of evidence will not deteriorate over time whereas the DNA evidence being sought from the appellant in this case clearly would.
… It would be an affront to one’s sense of justice for the police in this case to be required to stand idly by while highly relevant but time sensitive DNA evidence disappeared forever. Again it must be emphasized that this is potential DNA evidence of the complainant located on the appellant’s body surface and not the appellant’s own DNA. The latter situation is governed by R v Stillman. In my view, a telewarrant was not required as a precondition for the police to have conducted the penile swab in question.
There was evidence at trial that DNA of a complainant transferred through sexual intercourse could degrade in a matter of hours as a result of urination, bacteria, sweat, etc. That evidence was important to the opinion of Justice McDonald. It should be noted that there was no evidence at trial as to how long it would have taken to obtain a telewarrant. Given this, the majority concluded that the evidence led by the Crown on exigent circumstances was too sparse at trial to support this seizure as being incident to the arrest of the accused (at para. 60).