OTTAWA – The Supreme Court of Canada has dismissed an appeal from an Alberta man who was convicted of sexual assault after police ordered him to swab his own genitals for evidence of the victim’s DNA.
Ali Hassan Saeed was arrested and charged in 2011 after a complaint from a 15-year-old.
While he was in custody, police had him swab his penis for DNA and matched it to the victim.
The trial judge ruled the request an illegal search, but said the results were admissible because the police did not act in bad faith and society has a high interest in seeing justice in cases of sexual assault.
Saeed was convicted of sexual assault causing bodily harm and unlawful touching for a sexual purpose and the Alberta Court of Appeal upheld the ruling.
The Supreme Court in its judgment, said the evidence was properly admitted, leaving the verdict intact.
Writing for the majority, Justice Michael Moldaver said the power of search upon arrest has a long pedigree and is an invaluable investigative tool.
He said the swab did constitute a significant intrusion against the privacy rights of the accused, but the police acted properly.
“I conclude that the police had reasonable grounds to conduct the swab and that in carrying it out, they took reasonable steps to respect Mr. Saeed’s privacy,” he wrote.
Saeed’s charter rights were not breached, he concluded.
Justice Andromache Karakatsanis said she believed Saeed’s rights were breached, but that the evidence was admissible, nonetheless.
“On balance, I conclude that the trial judge was justified in concluding that the admission of the evidence would not bring the administration of justice into disrepute,” she wrote.
Justice Rosalie Abella, writing in dissent, said she would have excluded the evidence and ordered a new trial.
