Nunavut court: police seizure of penis swab did not breach man’s rights

The Iqaluit RCMP did not violate the Charter rights of an Iqaluit sexual assault suspect in 2014 when they obtained a swab from the man’s penis in a search for his alleged victim’s DNA, Justice Paul Bychok has ruled.

The Iqaluit RCMP did not violate the Charter rights of an Iqaluit sexual assault suspect in 2014 when they obtained a swab from the man’s penis in a search for his alleged victim’s DNA, a Nunavut judge has ruled.

Justice Paul Bychok of the Nunavut Court of Justice published the ruling April 14 after the issue arose in the case of an Iqaluit man accused of raping a young female complainant on Sept. 14, 2014.

The man is charged with sexual assault and sexual touching.

The name of the complainant cannot be published and the man’s identity is anonymized as “M.T.” in the judgment. Those initials are assigned randomly, which means they do not necessarily represent the initials of the accused man’s real name.

After the attack, the rape victim called police close to midnight that evening and identified her assailant, Bychok’s judgment said.

“She reported that the applicant had raped her without a condom, and that he had ejaculated inside her,” Bychok said.

Police arrested the man at around 12:48 a.m. Sept. 15, told him the reasons for the arrest, told him of his right to talk to a lawyer, and brought him to the RCMP detachment building in Iqaluit.

There, the man spoke on the phone for about 14 minutes to a defence lawyer serving as duty counsel that night.

After that, an RCMP member — who had previously sought advice from another member who works at the Major Crimes Unit — told M.T. that he intended to take a swab sample from his penis.

The purpose of the swab was to search for the girl’s DNA, Bychok’s judgment said.

The RCMP then took M.T. into a private room and allowed him to lower his pants and wipe himself with a swab moistened with sterile water.

After that, police seized the swab as evidence and sent it out for a DNA analysis.

M.T.’s lawyer, Shannon O’Connor, who replaced the man’s first lawyer, then filed an application to have the swab and the results of the DNA analysis thrown out of court.

She argued the warrantless search was unreasonable and a breach of Section 8 of the Charter of Rights, which sets out the right to be secure against unreasonable search or seizure.

She also said police failed to inform M.T. of the procedure before he talked to his lawyer, and alleged that this was a breach of Section 10 of the Charter, which sets out the right to retain and instruct counsel.

But Bychok found the penile swab is a reasonable kind of search to perform without a warrant following a lawful arrest, and that it’s no more intrusive than fingerprinting, swabbing for gunshot residue or collecting fingernail scrapings.

“Save for the fact that a penile swab requires exposure of the genital area, there is little to distinguish that procedure from the others I have just mentioned. The taking of a penile swab is a quick procedure, the body is not penetrated so there is no interference with bodily integrity, and very little force is applied,” Bychok said.

He also said police were not searching for M.T’s DNA, but the young complainant’s DNA.

“The police had reasonable and probable grounds to believe that a penile swab would reveal the presence of the complainant’s DNA. The search and subsequent seizure of the penile swab were related directly and logically to the grounds for arrest,” Bychok said.

That also means M.T.’s right to seek legal counsel was not violated either, the judge found.

And Bychok said his judgment doesn’t mean the Nunavut court is ready to sanction police misconduct.

“On the contrary, not to admit the penile swab in this case would undermine the confidence of Nunavummiut in the administration of justice,” he said.

However, he said the common law affecting that and other similar cases could change in the future, pending a decision on a similar case that is now before the Supreme Court of Canada.

2016 NUCJ 09, R. v. M.T. by NunatsiaqNews