Summary

Keywords

Canadian charter (Criminal) - Search and seizure (s. 8), Criminal law, Evidence.

Summary

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(Publication ban in case)

Charter of Rights and Freedoms - Search and Seizure - Criminal Law - Evidence - Admissibility of DNA evidence - Accused arrested for sexual assault and other offences - Without a warrant, police compel accused to swab his penis - Swab tested for complainant’s DNA - Whether search was incidental to arrest - Whether police violated accused’s right to be secure against unreasonable search and seizure - If so, whether Court of Appeal mischaracterized the magnitude of the breach - Whether DNA evidence was properly admitted at trial - Charter of Rights and Freedoms, s. 8

On May 22, 2011, the complainant was sexually assaulted. She identified her assailant as a man whom she knew as Ali. The complainant’s friend saw the assault and intervened to help the complainant. She identified the Appellant as the assailant to the police and the Appellant was arrested. At 8:35 a.m., he was placed in a cell without a toilet or water. He was handcuffed to a steel pipe, seated on the floor with his hands behind his back. At 10:25 a.m., a police officer directed the Appellant to wipe his own penis with a swab while the officer watched. The police did not obtain a warrant authorizing the taking of the penile swab. Analysis of the swab showed DNA matching the complainant. The trial judge held that the taking of the penile swab violated the Appellant’s right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter of Rights and Freedoms but the DNA evidence was admissible pursuant to s. 24(2) of the Charter. At trial, the complainant identified the Appellant as her assailant during her examination-in-chief but, in cross-examination, she made statements which the trial judge held had to be taken as recanting her identification evidence. The trial judge convicted the Appellant of sexual assault causing bodily harm and sexual interference, relying on the DNA evidence in part as proof of identity. The Court of Appeal dismissed an appeal.