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Parliament Hill and the Supreme Court of Canada in Ottawa June 8, 2016.

Blair Gable

In a ruling that adds to police powers in investigating rape, the Supreme Court of Canada says police have the right to take a penile swab from suspected attackers, forcibly if necessary, as long as they do so in a private cell and have reasonable grounds to believe they will find relevant evidence.

The new power allows officers to do a more modest, male version of the rape kit – the intrusive examination of victims, albeit with their consent, done in medical clinics for DNA evidence on their assailant. Suspected attackers could be subjected to an obligatory physical search of their genital area for the bodily tissue of victims. Police will not need a warrant to demand such a swab. (The suspect's own DNA obtained from the swab cannot be used in court unless police first obtain a warrant, or the suspect's consent to do the search, the court said.)

It is the first time the court has empowered police to take bodily samples without a warrant, according to Ottawa criminal lawyer Howard Krongold, who represented the Criminal Lawyers Association, which intervened in the case.

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The case – involving the rape of a 15-year-old girl from an Edmonton group home – comes at a time when the prosecution of sexual assault is receiving heightened attention in cases such as that of former CBC broadcaster Jian Ghomeshi, U.S. actor Bill Cosby, and incidents on campuses in Canada and the United States.

The Supreme Court's majority stressed the importance of getting tough on sexual assault despite the intrusiveness of the swab. "Sexual assaults are notoriously difficult to prove," Justice Michael Moldaver wrote, with six other judges in support. He cited the importance of obtaining the evidence before a suspect can wipe or wash it away, or it degrades. And he said swabbing can be done in minutes and is not inherently invasive.

The ruling illustrates a Supreme Court trend toward expanding police powers in key areas – the taking of confessions, the limiting of the right to counsel, the use of sniffer dogs – even as the court opposed government attempts to toughen sentencing and limit judicial discretion during the just-ended Stephen Harper era, one legal observer said.

"The main story in the court's relationship to the police has been permissive expansion of the scope of police powers over the last 10 to 12 years," Ben Berger, associate dean at Osgoode Hall Law School, said in an interview.

A rape crisis centre cheered the ruling. "If it means the criminal justice system will be able to hold more rapists accountable, that it will increase the likelihood of charges, then we think it's a useful judgment," Hilla Kerner, facilitator at the Vancouver Rape Relief & Women's Shelter, told The Globe and Mail.

Under common law, a centuries-old body of precedents, police can conduct a search to protect safety and protect evidence when they make an arrest. The question in the case of Ali Hassan Saeed, who was 26 at the time of the sexual assault in 2011, was whether those powers allowed police to do a genital search for the DNA of the victim. The evidence from the swab was crucial, because the victim recanted her identification of Mr. Saeed when cross-examined, and a witness who did identify him was intoxicated at the time.

The trial judge ruled the search illegal but said the evidence could be used because police acted in good faith and because society had a strong interest in ensuring the case was heard on its merits. She sentenced Mr. Saeed to five years in prison. He appealed to the Alberta Court of Appeal, where one judge ruled the search legal, and two others said it was illegal but would have allowed the evidence. Mr. Saeed appealed to the Supreme Court, which upheld his conviction.

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Just two Supreme Court judges, both of them women, said a penile swab should be deemed an illegal search.

The ruling is a change in tone and direction from a 1997 case known as R v. Stillman, in which police took dental impressions and hair samples from a 17-year-old man suspected in a rape-killing. The majority of the court said the police acted illegally when they obtained those samples without a warrant, and that the evidence had to be excluded. (Under the Charter of Rights and Freedoms, prosecutors may use illegally obtained evidence if a judge decides keeping it out would harm the justice system's reputation more than using it would.)

In a strong dissent in the Saeed case, Justice Andromache Karakatsanis accused the majority of straying from precedents that found a "close relationship between bodily privacy and human dignity." Comparing the case with Stillman, she said the privacy rights involved were more compelling for Mr. Saeed – a penile swab is more intrusive than a dental imprint, she said – and the government's interest in prosecuting the crime was no greater. At the time of the Stillman case, warrants were not available to gather DNA from suspects. Parliament created those warrants as a result of the case, Justice Karakatsanis reminded the court, urging the majority to leave the expansion of police powers to elected legislators. However, she said she would have permitted the evidence to be used in this case.

Justice Rosalie Abella said she would have disallowed the penile swab and barred the evidence from being used.

Mr. Krongold said in an interview he is troubled that police will be empowered to take invasive samples from a detainee's genital area "on the spur of the moment. Inevitably, you're going to have cases where this extraordinary power is abused."

Elizabeth Sheehy, a University of Ottawa law professor specializing in violence against women, said she finds it disturbing that the court "fails to place much weight on what one might think would be the most serious privacy invasion of the body," and added: "It's hard for me to see swabbing men's penises as a great victory for women who have been raped, given how few men deny contact (most argue "consent" or "mistaken belief in consent") as well as the many other substantive, procedural and credibility hurdles that women face, many of which have been given the court's seal of approval."

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