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Police Sniffer Dogs:

Schools and Public Places

A locker search might be carried out on a tip from another student; a random baggage search might be based on police-generated profiles. These searches can be aided by electronic devices or trained sniffer dogs. If, for example, illegal drugs are found, they no doubt will be seized, and there is the strong possibility that charges will be laid. If the illicit substance is found in a school, there is the added possibility of discipline, including suspension or expulsion.

Searches, however, whether of the person or the person’s belongings, whether youth or adult, are an invasion of that person’s constitutional rights. This invasion can be justified under the law, but there are conditions that must be met for such an invasion to be accepted and for the illegal item (drugs or weapons) to be used in support of any charge or penalty.

Among the questions raised in this chapter are:

 Is the police use of sniffer dogs to find illegal drugs a “search”?

 What is the importance of where the dogs are used?

 If the police dog signals illegal drugs, may police conduct a search?

 Does the Charter of Rights and Freedoms set standards for the use of police sniffer dogs?

Police have long used dogs as investigating “tools.” Their noses have a sense of smell far more sensitive than those of humans. They have been used to find suspects where the only identification is a piece of clothing believed to have been worn by that person. They have also been trained to locate illegal drugs that, in turn, provide police with leads both to ferret out illegal drugs and arrest those engaged in trafficking.

This chapter focuses on two cases decided by the Supreme Court of Canada on the same day: April 25, 2008. In both cases, a Court majority (six of nine Justices) agreed that the evidence of illegal drugs found by police as a result of dog sniffing could not be used at trial.

The cases are The Queen v. A.M. and The Queen v. Kang-Brown. In both cases, the Attorneys General of Ontario, Quebec, and British Columbia were granted the right to intervene and argue before the Court. Others permitted to intervene in The Queen v. A.M. were the Canadian Foundation for Children, Youth and the Law, and the St. Clair Catholic School Board (where the police use of sniffer dogs took place at the invitation of one of its high school principals).

The cases present real difficulties as to the legal lessons we are to take away from the decisions. Bear in mind that the rulings of the Supreme Court of Canada are the law of the land. But when we say “rulings,” we mean the reasoning that led the Court to its decision. It is the reasoning in support of a decision that makes a Supreme Court of Canada decision a precedent — that is, binding on the Court and lower courts.

In each of the two cases discussed in this chapter, there was a total of four decisions. The Court was polarized. Still, on some of the key issues, a majority of the justices did agree. To that extent, their reasoning and decision can be taken as precedent. However, we will also discuss the limitations that the justices imposed on themselves as to the scope of the conclusions reached.

All the justices seemed to agree that the issues were to be resolved not by any statute — for Parliament had not enacted any law to deal with the issues in dispute. Rather, the issues were to be resolved by “judge-made law,” as it had been developed and applied by the Court itself. This, in turn, meant that the facts in any case were important. Any significant variation in facts could change the reasoning from one case to another. This had special meaning for the subject of searches.

The investigatory techniques might be the same as applied to adults and young persons. But, should the rules relating to the use of those techniques, as applied for example to sniffer dogs, be different for luggage searches at a bus station as contrasted to bag searches at a high school?

What we will do is describe the issues raised by the justices and how they dealt with them. Then, we will more clearly see where Court majorities exist and thus precedent has been set, and where there remain issues to be decided in future cases.

Here are the central issues raised and discussed in the two Supreme Court of Canada decisions:

 Against what standard are searches to be measured to determine their lawfulness?

 When can it be said that a search has taken place?

 Under what circumstances will a search be ruled “unreasonable”?

 Even if a search is unreasonable, is it possible to use the resulting evidence in a criminal trial?

The Queen v. A.M. will frame our discussion in this chapter. That case, along with The Queen v. Kang-Brown, will be discussed under the Charter of Rights and Freedoms, part of the Constitution of Canada. We will begin our discussion with the relevant Charter provisions and with the issues raised under them. This will be followed by a summary of the facts, the first part of which will deal with the nature of sniffer dogs. The Queen v. Kang-Brown will be developed in “You Be the Judge,” challenge questions, and queries.

A Standard:

The Charter of Rights and Freedoms

Section 8 of the Charter

Under the Charter of Rights and Freedoms, the primary provision relating to search or seizure is section 8. It consists of a few words that, on their face, seem quite simple: “Everyone has the right to be secure against unreasonable search or seizure.”

The meaning of those words, however, has caused much conflict. The courts have been called upon to define what is an unreasonable search or seizure. In the cases discussed in this chapter, for example, have dogs conducted a search by sniffing the air and reacting, having been trained to detect unlawful drugs? If the answer is yes, then the first step has been taken in requiring the police to obtain judicial permission for a search.

The words of section 8 of the Charter do not answer these questions. Up to this point, the courts have given meaning to the words of the Charter section. This task of interpretation derives from the courts’ historic functions. It is the common law. The courts — and finally, and most importantly, the Supreme Court of Canada — look to past decisions and, generally slowly, case by case, graft meaning onto the words. Seldom is this done with any one sweep of a generalized decision.

And, certainly this is true of The Queen v. A.M. and The Queen v. Kang-Brown. One case involved a sniffing police dog that was walked round a school gym where students had placed their backpacks. The other related to police stopping a bus passenger and using a sniffer dog to walk alongside his luggage.

If there were any common approach to decisions involving search or seizure, it would be in factual detail insisted on by the courts in applying the language of section 8. Put differently, out of the facts the courts derive the meaning of the law.

Section 9 of the Charter

Section 9 of the Charter states, “Everyone has the right not to be arbitrarily detained or imprisoned.”

Often when we think of searches or seizures, there is the image of police forcibly detaining an individual, while searching the person or that individual’s property. In The Queen v. A.M., police did not use such force. Students had piled their backpacks in the gym. Police, at the invitation of the school principal, walked a sniffer dog around the backpacks. It was in that setting that police found drugs.

In The Queen v. Kang-Brown, police spotted the profile of a suspicious person, one who might be a drug carrier. They walked a sniffer dog around his luggage where they later discovered a stash of unlawful drugs. Section 9 provides the standard to determine whether the use of trained police dogs in such a context amounts to a “seizure of personal property.” At best, it is a generalized standard.

Section 24 of the Charter

Section 24 of the Charter states:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

24(2) Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Assume that there has been an unlawful search or seizure. What is the result? Bear in mind that the question is raised in the context of a criminal proceeding. Often, the question is raised when the Crown seeks to introduce evidence coming from the search and seizure. In the cases examined in this chapter, the evidence is the illegal drugs that police found in the student backpack or the luggage of the accused.

If the judge excluded the evidence because police obtained it in violation of the Charter, then frequently the Crown’s case against the accused collapses.

Section 24 of the Charter specifically deals with evidence that police obtain in violation of the Charter. That provision does not deny the Crown the right to introduce the evidence and have a judge and/or jury consider it in reaching a verdict. Rather, the unlawfully obtained evidence cannot be used when “the admission of it in the [court] proceedings would bring the administration of justice into disrepute.”

Again, the words of the section are general. They don’t guide the court as to when the administration of justice would be brought into disrepute. Is the answer to be found in the seriousness of the police violation, or is it to be discovered in the real danger of the crime that has been prevented?

The courts must give meaning to the language of the Charter provision. The scope of the Court’s decision — how broadly it will cast its reasoning — is, however, another matter. In The Queen v. A.M., Justice LeBel, speaking for himself and two other justices, wrote, “Courts make and change the law.… Much of what is recognized as ‘law’ is actually, in one form or another, judge-made law.… The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power.”

CHALLENGE QUESTION

A Role for Parliament

Q: Is the Supreme Court better able than Parliament to define when and how police are to use sniffer dogs?

The Supreme Court can have a shared role with Parliament in defining when and how sniffer dogs are to be used by police. Justice Deschamps spoke of this, and her comments were not challenged by other members of the Court in either The Queen v. Kang-Brown or The Queen v. A.M. She said,

Many decisions must be made about when and how dogs ought to be used in law enforcement, and both the public and the police are entitled to know how these animals can and will be used in Canada.

This direction is best provided by Parliament, which is able to create a wholistic and harmonious scheme for the use of sniffer dogs in this country. Courts, on the other hand, are ill equipped to deal with the multitude of issues arising from the use of sniffer dogs.

Not only are judges restricted to considering the issues and factual scenarios placed directly before them by specific parties (and therefore unable to create a wholistic scheme regulating the use of dogs generally). They also do not have access to the expertise necessary to determine what type of training sniffer dogs should receive or what degree of accuracy they should have in order to be deemed “reliable.”

Courts are also poorly positioned to determine when dogs should be used on bags as opposed to persons, when a warrant ought to be obtained prior to use of the dogs, and what form notice must take when sniffer dogs are used in a generalized way.

All of these important decisions are best left to Parliament, which can study the various aspects of sniffer dog use and craft policies suited for the Canadian context, in which Charter rights must be carefully balanced against the need for effective law enforcement.

Unfortunately, Parliament has remained silent on the use of sniffer dogs, and the courts must therefore evaluate police use of this tool, absent any statutory direction from this country’s policy makers.

Parliament remains free to enact legislation even after the Court has stated its view. The Court’s decision (or holding) relates to its reasoning and the principles embodied in that reasoning. This leaves it to the legislature to set out the details that would implement the standards. For example, the legislature could set criteria necessary for the qualification of a police dog as a sniffer. And, the legislature could say that the failure to use a properly qualified police sniffer dog would result in the evidence uncovered by the dog being treated as inadmissible.

The Comparative Skills of Sniffer Dogs

Not all sniffer dogs are equally skilled at detecting illegal drugs. Justice Deschamps, in a concurring opinion joined by Chief Justice McLachlin, gave the Court a majority in ruling the search unlawful in The Queen v. A.M. She emphasized the differences between sniffer dogs and the need for police to demonstrate the sniffing skill of any particular dog whose alert is used as a basis for a search. Justice Deschamps stated:

The evidence in this case is that the sniffer dog Chief has an enviable record of accuracy. Of course dogs, being living creatures, exhibit individual capacities that vary from animal to animal. While a false positive may be rare for Chief, it is not thus with all dogs. The importance of proper tests and records of particular dogs will be an important element in establishing the reasonableness of a particular sniffer-dog search.

The Crown attaches considerable importance to what it says are statistics relevant to the detection rate, that is to say the successful location of drugs in a search conducted pursuant to a dog sniff (true positives), but an important concern for the Court is the number of false positives. From the police perspective, a dog that fails to detect half of the narcotics present is still better than no detection at all. From the perspective of the general population, a dog that falsely alerts half of the time raises serious concerns about the invasion of the privacy of innocent people [emphasis added].

She went on to quote from a dissent of U.S. Supreme Court Justice Souter, who questioned the accuracy of sniffer dogs. There, Justice Souter wrote, citing reported dog sniffing cases, “The infallible dog, however, is a creature of legal fiction.… Their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency [money] by cocaine.”

Justice Deschamps continued:

Broadly based studies demonstrate an enormous variation in sniffer dog performances, with some dogs giving false positives more than 50 percent of the time. Canadian police data seem not to be available, but in 2006, the [Australian] New South Wales Ombudsman issued a report containing extensive empirical data on the use of sniffer dogs by police since the introduction of the Police Powers Act. During the review period, 17 different drug detection dogs made 10,211 indications during general drug detection operations. The Ombudsman reported:

“Almost all persons indicated by a drug detection dog were subsequently searched by police. This is in accordance with police policy which states that an indication by a drug detection dog gives police reasonable suspicion to search a person.

“Prohibited drugs were only located in 26 percent of the searches following an indication. That is, almost three-quarters of all indications did not result in the location of prohibited drugs [emphasis added].

“The rate of finding drugs varied from dog to dog, ranging from 7 percent (of all indications) to 56 percent. (NSW Ombudsman, Review of the Police Powers (Drug Detections Dogs) Act 2001 (2006), at p. ii.)”

Justice Deschamps added:

Moreover, the sniff does not disclose the presence of drugs. It discloses the presence of an odour that indicates either the drugs are present or may have been present but are no longer present, or that the dog is simply wrong. Odour attaches to circulating currency and coins. In the sniffer dog business, there are many variables.

I mention these conflicting reports because it is important not to treat the capacity and accuracy of sniffer dogs as interchangeable from one dog to the next. Dogs are not mechanical or chemical devices.

The police claim that they have available dogs like Chief who have a high accuracy rate and a low percentage of false positives. If the lawfulness of a search is challenged, the outcome may depend on evidence before the court in each case about the individual dog and its established reliability. Neither the police nor other government authorities are justified in relying on the “myth of the infallible dog.” Proper police manuals require a handler to record a dog’s (or the team’s) performance. This is (or should be) accepted as an essential part of a handler’s work (see S. Bryson, Police Dog Tactics (2nd ed. 2000); R. S. Eden, K9 Officer’s Manual (1993)), to be adduced as part of the evidentiary basis laid before the trial court at which sniffer dog evidence is sought to be introduced.

The Queen v. A.M. : The Facts

In 2000, the principal of St. Patrick’s High School in Sarnia, Ontario, extended an invitation to the Youth Bureau of Sarnia Police Services: If the police ever had sniffer dogs available to bring into the school to search for drugs, they were welcome to do so.

Apparently, on a few occasions before the case of The Queen v. A.M., police took advantage of the invitation. They used sniffer dogs to check the school parking lot, hallways, and other areas that the principal suggested. The record in this case does not indicate the results of the sniffer checks. However, Sarnia police used sniffer dog searches in at least 140 instances in schools. Further, the use of sniffer dogs in high schools apparently is widely practised in Ontario and other provinces.

The school had a zero-tolerance policy for possession and use of drugs and alcohol, a policy that the school communicated to the students and their parents. Violating this policy resulted in suspension or expulsion of the offending students.

On November 7, 2002, three police officers decided to go to the school with a sniffer dog. The principal granted them permission to go through the school.

At trial, the police officers admitted that they had no information that drugs were then present in the school. The officers acknowledged that they had no grounds to obtain a search warrant. And the principal acknowledged that he had no information about drugs in the school at that time, although he said, “It’s pretty safe to assume that they could be there.”

In cross-examination, the principal was questioned. “But you never, armed with specific information, had called [the police] and said this is what I know, therefore I think a search should be conducted.” He answered, “No.”

Constable Callander of the Sarnia police gave similar evidence. He was asked: “You did not have any direct awareness as to the existence of drugs and where that might be, and there was no indication that safety of people/students were at risk. You were not armed with any of that kind of information.” He answered, “No.”

The principal had heard occasional reports from parents or neighbours about “kids in our school who are doing drugs,” but nothing specific to the November 7, 2002, time period.

To facilitate the police search, the principal used the school’s public address system to tell everyone that the police were on the premises and that students should stay in their classrooms until the police had conducted their search. The effect of this announcement was that no student could leave his or her classroom for the duration of the police investigation.

The police, not the school authorities, took charge of the investigation. The principal testified that he had no involvement beyond giving permission and telling the students to remain in their classrooms. There was no discussion with him as to how the search was to be conducted.

The police search included the gymnasium. A police officer, a canine handler, was accompanied by his sniffer dog, Chief, trained to detect heroin, marijuana, hashish, crack cocaine, and cocaine.

There were no students in the school gymnasium but some backpacks were lying next to the wall. Chief alerted to one of the backpacks by biting at it — as he had been trained to do. The police handler gave the backpack indicated to Constable Callander, who physically searched through its contents.

The constable confirmed Chief’s identification of drugs, including five bags of marijuana; a tin box containing a further five bags of marijuana; a bag containing approximately ten magic mushrooms (psilocybin); and a bag containing a pipe, a lighter, rolling papers, and a roach clip. A.M.’s wallet, containing his identification, was in the backpack. A.M. was charged with possession of marijuana for the purpose of trafficking and possession of psilocybin.

Findings of the Lower Courts

Both the Ontario Youth Justice Court and the Ontario Court of Appeal ruled the searches unreasonable, with the result that the evidence seized was excluded and the charges against A.M. were dismissed. The youth court judge did not find any “bad faith” on the part of the police or the school principal. Still, the youth court judge said that the rights of every student at the school were violated on the day of the search. They were confined to their classroom while the dog sniffed.

In effect, the youth court judge stated that two searches were conducted on the day in question. The first search was the sniffer dog search, which resulted in the dog alerting police to A.M.’s backpack in the school gym. The second was physically searching the questioned backpack, a search that yielded the drugs.

A unanimous Court of Appeal affirmed the youth court judge’s decision. To the Court of Appeal, the central questions were:

1 Did the police conduct amount to a search?

2 If so, was the search unreasonable within the meaning of section 8 of the Charter?

(The relevant Charter provisions have been described earlier in “A Standard: The Charter of Rights and Freedoms.” Still, it may be useful to repeat the language of section 8: “Everyone has the right to be secure against unreasonable search and seizure.”)

CHALLENGE QUESTION

The Role of School Authorities

Q: Would the search have been unreasonable within section 8 of the Charter had the principal ordered the search — and not the police as in the case of The Queen v. A.M. — and had the police brought the suspicious backpack to the principal and had the principal turned over its illegal contents to the police?

A somewhat similar case involving a school-initiated search — The Queen v. M. (M.R.), [1998] 3 Supreme Court of Canada Reports 393 — was noted several times in The Queen v. A.M. This was an 8–1 decision of the Supreme Court. We will set out the facts and the Court’s reasoning and conclusions.

The Queen v. M. (M.R.), in a decision handed down by Justice Peter Cory, allowed a vice-principal to search a thirteen-year-old junior high school student, M.R., in the presence of police. They found a small quantity of marijuana. It was turned over to the police, and M.R. was charged. Several students had earlier informed the vice-principal that M.R. possessed drugs and that he intended to sell them to other students. That night, the school held a dance, for which the vice-principal was responsible.

These were the facts, as stated by Justice Cory:

When [the vice-principal] saw [the student] arrive at the dance, he called the RCMP to request that an officer attend at the school. He then approached [the student] and his friend and asked them to come to his office. He asked each of the students if they were in possession of drugs and advised them that he was going to search them.

The RCMP officer … then arrived, dressed in plain clothes. He spoke briefly with [the vice-principal] outside the room, then entered, identified himself to the two boys and sat down. He did not say anything while [the vice-principal] spoke to the students and searched them.

[The student under suspicion] turned out his pockets and, at the request of [the vice-principal], pulled up his pant legs. The vice-principal noticed a bulge in [the student’s] sock and removed a cellophane bag. He gave the bag to [the RCMP officer] who identified the contents as marijuana. [The officer] then advised [the student] that he was under arrest for possession of marijuana and read to him the police caution and his right to counsel. [The officer] also advised him that he had the right to contact a parent or adult. [The student] attempted unsuccessfully to reach his mother by phone and stated that he did not wish to contact anyone else. [The officer] and [the student] then went to [the student’s] locker and searched it, but nothing was found there.

At trial, the judge concluded that the search had violated [the student’s] rights under the Charter and excluded the evidence found in the search. The Crown did not offer any further evidence, and the charge against [the student] was dismissed. The Court of Appeal allowed the Crown’s appeal and ordered a new trial. Thereafter, leave to appeal to this Court (the Supreme Court of Canada) was granted.

For the Court, Justice Cory stated:

 The vice-principal conducted the search. The police constable had no role in this regard. He was passive.

 The vice-principal had reasonable grounds for suspicion that the student had drugs. The student informants had given reliable information in the past.

 The school had a clear policy against unlawful drugs on the premises.

 The school administrators, including the vice-principal as well as the teachers, were mandated by law to ensure good order, discipline, and safety of students.

 Students had to understand that their rights to privacy had to be confined within the limits of what it takes to run an orderly and safe school.

 The search was reasonable and respectful of the student. It took place within the vice-principal’s office. The principal gave the student the opportunity to produce the unlawful drugs.

 Justice Cory indicated that if the police officer had conducted the search, the Court may have applied a different and higher standard.

The case of The Queen v. M. (M.R.) was different from The Queen v. A.M., where the police initiated and carried out the search. The principal was merely there at the bidding of the police. Further, and perhaps more importantly, in The Queen v. A.M. there was, on the facts, no reasonable basis for believing that any student had on his/her person unlawful drugs. At most, the principal suspected that he might find such drugs.

On the facts in this challenge question, the search would likely be deemed unlawful because there was no basis for a reasonable suspicion that students had carried unlawful drugs into the school. Even with a lower standard for school administrators for conducting a search, the administration must have a reasonable basis for suspicion that unlawful drugs are present.

The Queen v. A.M. :

The Supreme Court of Canada Decides

The Supreme Court of Canada consists of nine justices. A majority (five justices) is enough to constitute a decision binding on the lower courts. In the case of The Queen v. A.M., the Court’s decision was fragmented: parts of it brought majority holdings and parts of it brought no majority. To the extent there was no majority ruling, the issues there reflected are not settled. (Of course, if only eight justices took part in a decision, and they split 4–4, then the decision of the lower court would remain in effect. At times, the Court will decide cases in panels of seven justices. Then a majority consists of four justices.)

We will begin with two issues that the Court majority did resolve:

1 Does section 8 of the Charter protect students while in school?

2 Was there a search within the meaning of section 8 of the Charter?

Seven justices ruled that there was such a search and, in that regard, that students were protected by section 8 of the Charter. Justice LeBel stated this, speaking for himself and Justices Morris Fish, Abella, and Charron, and reflecting the conclusions as to this aspect of the case in the concurring opinion of Justice Binnie and Chief Justice McLachlin.

(Note that Justice Bastarache also agreed that there was a search, and that it was one that violated section 8 of the Charter. However, as we pointed out elsewhere, he would have allowed the evidence to be admitted at the trial of A.M. Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy, a condition necessary for applying section 8 of the Charter. See, “Dissent from the Majority: A Lawful Search,” in this chapter.)

Justice LeBel stated:

I have read the reasons of my colleague Binnie J. I agree that the appeal should be dismissed.… Students are entitled to privacy even in a school environment.… Entering a schoolyard does not amount to crossing the border of a foreign state. Students ought to be able to attend school without undue interference from the state, but subject, always, to normal school discipline.

As found by the Court of Appeal and by Binnie J., a search was conducted. The authority for that search was nowhere to be found in the statute law or at common law. This is not a case, for example, where the police would have entered the school under the authority of a search warrant and used sniffer dogs to assist in effecting a more focused search. Nor was the dog-sniffer search conducted by the school authorities on proper grounds as set out in M. (M.R.). [Discussed in “Challenge Question: The Role of School Authorities.”]

Our Court should not attempt to craft a legal framework of general application for the use of sniffer dogs in schools. As a result, the evidence was properly excluded under section 24(2) of the Canadian Charter of Rights and Freedoms. I would dismiss the appeal.

(See “You Be the Judge: Bus Station Stakeout.” The reasoning in the case discussed in the exercise was incorporated into the reasoning of Justice LeBel.)

What Kind of Search?

In effect, the Court majority found no reasonable basis for a suspicion of wrongdoing that would have legitimized the search under section 8 of the Charter:

If there were grounds for reasonable suspicion that an unlawful act had been committed, or, in this case, that a student had been or was trafficking in prohibited drugs, a search by a sniffer dog likely would have been permitted. But, even in reaching this conclusion, it would be necessary to ask — what kind of search? Here the search did not involve the students, as such. That is, they were not forced to a physical search. Indeed, they were not even in the area where the search was conducted [emphasis added].

The concurring opinion of Justice Binnie and Chief Justice McLachlin was:

If the sniff is conducted on the basis of reasonable suspicion [emphasis added] and discloses the presence of illegal drugs on the person or in a backpack or other place of concealment, the police may, in my view, confirm the accuracy of that information with a physical search, again without prior judicial authorization.… But, of course, all such searches by the dogs or the police are subject to after-the-fact judicial review if it is alleged (as here) that no grounds of reasonable suspicion existed, or that the search was otherwise carried out in an unreasonable manner.

Here the after-the-fact judicial review [resulted] when the prosecution attempted to rely on the evidence obtained in the search. The exceptional authority given to the police to use sniffer dogs on the basis of reasonable suspicion and without prior judicial authorization will, if abused, lead to important consequences under section 24(2) of the Charter which provides that where a court concludes … “that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded (from consideration) if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” [See “You Be The Judge: The Scales of Justice” in this chapter.]

The exclusion (of the evidence from consideration) remedy was granted in this case and, in my opinion, rightly so.

I accept the youth court judge’s finding of fact that this was a random speculative search [emphasis added]. What was done here may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero-tolerance policy. But these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school, as the youth court judge and the Court of Appeal pointed out. The Charter weighs other values, including privacy, against an appetite for police efficiency. A hunch is not enough to warrant a search of citizens or their belongings by police dogs.

Privacy: A Protected Interest

Justice Binnie and the chief justice said that section 8 of the Charter is designed to protect the privacy interests of individuals. And, again, this interest includes students. They wrote:

Section 8, like the rest of the Charter, must be interpreted purposively, that is to say, to further the interests it was intended to protect. While these interests may go beyond privacy, they go at least that far.… A privacy interest worthy of protection is one the citizen subjectively believes ought to be respected by the government and that society is prepared to recognize as reasonable.… In each case, an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.

These are the considerations that brought the Court to this conclusion:

 “The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state…. Students are as deserving of constitutional protection as adults — although their age, vulnerability, and presence in a school environment all factor into the totality of the circumstances.”

 The Court’s “focus must be on the impact on the subject of the search or the seizure [here, all the students at the school], and not simply on its rationality in furthering some valid government objective. The impact includes disruption, inconvenience and potential embarrassment for innocent individuals subjected to the dog sniff or other intrusive police attention.”

 Obviously, the Court must know the purpose of the police search in determining its validity. “If the police in this case had been called to investigate the potential presence of guns or explosives at the school using dogs trained for that purpose, the public interest in dealing quickly and efficiently with such a threat to public safety, even if speculative, would have been greater and more urgent than routine crime prevention. Generally speaking, the legal balance would have come down on the side of the use of sniffer dogs to get to the bottom of a possible threat to the lives or immediate safety and well-being of the students and staff.”

 “The Court must consider the significance of the information obtained as a result of the [search]. Of course, much police work does consist of assembling different ‘scraps’ of information, some of it apparently meaningless, into a significant picture. This fact does not necessarily generate constitutional protection for the ‘meaningless scraps’ that form part of the mosaic unless there is something else in the context that drives that result. In the present case, [this consideration] is inapplicable. The information [here] is highly meaningful. We are not dealing with ‘scraps.’ The dogs pointed the police to the sniffer dog’s equivalent of a smoking gun.”

 Finally, the courts “have to deal with what is presented to them as reality.” It is true that a sniffer dog may alert police to information about the crime under investigation. And, having said this, the Court made it clear that the subject of such investigatory tools is not finally resolved by this case. Other facts may bring other results.

Applying Facts

Justice Binnie and the chief justice applied the following principles to the arguments that the Crown raised:

 It is true that the students knew that the school setting was closely supervised and regulated. Indeed, A.M.’s school principal had made clear the board of education and school policy of zero-tolerance of unlawful drugs.

In carrying forward that policy, wasn’t it logical to allow sniffer dog police searches? Isn’t this a legitimate incursion on the rights of students? The answer from Justice Binnie and the chief justice was this: There was a general expectation of privacy that did not end because of a generalized fear of drugs. The threat had to be more immediate; it had to be based on a real suspicion.

 Yet doesn’t A.M. in effect ask that his privacy interest be one of protecting “contraband”? The dog’s sniff relates only to illegal drugs. Justice Binnie and the chief justice quoted with approval a dissent of then U.S. Supreme Court Justice Brennan when faced with a similar prosecution argument:

Under the Court’s analysis in these cases, law enforcement officers could release a trained cocaine-sensitive dog — to paraphrase the California Court of Appeal, a “canine cocaine connoisseur” — to roam the streets at random, alerting the officers to people carrying cocaine…. Or, if a device were developed that, when aimed at a person, would detect instantaneously whether the person is carrying cocaine, there would be no Fourth Amendment [U.S. Constitution] bar [against unlawful search and seizure — similar to section 8 of the Charter], under the Court’s approach, to the police setting up such a device on a street corner and scanning all passersby.

In fact, the Court’s analysis is so unbounded that if a device were developed that could detect, from the outside of a building, the presence of cocaine inside, there would be no constitutional obstacle to the police cruising through a residential neighborhood and using the device to identify all homes in which the drug is present. In short, under the interpretation of the Fourth Amendment … first applied in this case, these surveillance techniques would not constitute searches and therefore could be freely pursued whenever and wherever law enforcement officers desire. Hence, at some point in the future, if the Court stands by the theory it has adopted today, search warrants, probable cause, and even “reasonable suspicion” may very well become notions of the past.

The means, said Justice Binnie and the chief justice, do not justify the end. The focus of any search must be on the person, place, or thing searched. A suspicionless search should not be rendered acceptable by after-the-fact discovery of unlawful drugs. Justice Binnie wrote for himself and the chief justice:

I therefore do not agree with the Crown’s argument that A.M.’s reasonable privacy interest in the contents of his backpack extended only to what was lawful and excluded what was unlawful. On the contrary, I expect A.M. would not have cared if the police had found a polished apple for the teacher in his backpack. He would very much care about discovery of illicit drugs. In past cases, we have accepted a legitimate privacy interest in a home despite the presence therein of drug[s] (The Queen v. Evans, [1996] 1 Supreme Court of Canada Reports 8) … and an automobile despite the discovery of incriminating evidence (The Queen v. Mellenthin, [1992] 3 Supreme Court of Canada Reports 615).…There is no reason why a student’s privacy interest in his backpack should not be deemed similarly respected despite the presence of contraband.

 An argument could be made that the police dog was merely sniffing air, something that all of us breathe. It was an action that everyone does. How can it be said that such action was a search? Justice Binnie and the chief justice seemed to reject the argument out-of-hand. Justice Binnie stated:

Dogs have a capacity not available to human beings. The better analogy is to a machine or device for detecting odours (such as a smoke alarm), although dogs, being living creatures, are more variable than machines in their performance.

The dog “sniffing” cannot be treated as an isolated phenomenon and detached from the broader police conduct. I do not think it is plausible for the Crown to argue at one and the same time that the sniffer-dog utility lies in quick accurate identification of illicit drugs concealed inside a backpack, but that the result is not a search.

The Importance of Facts

Justice Binnie and Chief Justice McLachlin were trying to develop guidelines that the Court could apply in any case. But the nature of the problem of investigative devices applied to crime is a rapidly developing field. The technology of today may be replaced by another technology tomorrow.

Justice Binnie and the chief justice emphasized the need to be open to review any new technology in the context of section 8 of the Charter. They acknowledged, for example, the potential use of honeybees and sensors to scan crowds on the lookout for possible wrongdoing (Kerr and McGill 2007, cited by Justice Binnie).

Justice Binnie wrote,

The [Charter’s] section 8 jurisprudence will continue to evolve as snooping technology advances. This flexibility is essentially what the totality of the circumstances approach is designed to achieve. On these occasions, critics usually refer to “Orwellian dimensions” and 1984 [a famous book by George Orwell suggesting a future where privacy would be a right long gone], but the fact is that 1984 came and went without George Orwell’s fears being entirely realized, although he saw earlier than most the direction in which things might be heading. The Court can insist on proper evidence of what the police or government are up to and how, if at all, the information the police seek to collect can be used.… Whatever evolution occurs in the future will have to be dealt with by the courts step by step. Concerns should be addressed with as they truly arise.

YOU BE THE JUDGE

The Scales of Justice

The Facts

The facts are taken from The Queen v. A.M. In effect, a high school was locked down. Students were ordered to stay in their classrooms for a period of about two hours while police, at the invitation of the school principal, conducted a sniffer dog search for unlawful drugs.

The dog sniffed such drugs — and alerted police — in the school gym where a number of students had placed their backpacks. The police opened the backpack in question and found and seized marijuana and “magic” mushrooms. The identity of the student owner of the backpack was determined and he was charged.

The youth court determined, and the Supreme Court of Canada agreed, that the search was unlawful within the meaning of the Charter of Rights and Freedoms. However, the Crown argued that, in any event, the evidence resulting from that search should be allowed at trial.

The Issues

Under what circumstances, if any, may unlawfully seized evidence be presented by the Crown in a criminal trial? Who is in the best position to make that decision?

Points to Consider

 The Charter of Rights and Freedoms is part of the Constitution of Canada and, as such, it is the highest law of the land.

 Section 24(2) of the Charter allows a court to hear evidence from unlawful searches that would otherwise be excluded in a criminal trial. But this can be done only if such admission would not “bring the administration of justice into disrepute.”

 These are the relevant provisions of the Charter:24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.24(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

 The Ontario Education Act calls for police to be used only “when necessary, or if the well- being of the student is at risk.”

 Drug use and trafficking among and by youth is considered a serious societal problem.

Discussion

The Court majority in The Queen v. A.M., having ruled the sniff search unlawful, sustained the trial court refusal to receive the results of that search (the unlawful drugs) in evidence. Justice Binnie, with whom Chief Justice McLachlin concurred, stated that (1) drugs in schools are a serious problem, but (2) the trial court judge (youth court) saw the parties and heard the evidence. That judge was in a better position to balance the rights of A.M. against those of the need to protect society.

Justice Binnie noted that the trial court’s decision should be upheld on appeal unless it was based on a wrong principle or exercised in an unreasonable manner. The trial court is seen as reflecting community values.

Justice Binnie then went on to quote the youth court judge who stated:

This search was unreasonable from the outset. It is completely contrary to the requirements of the law with respect to the search in a school setting. To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure. It is effectively saying that persons in the same situation as A.M. have no rights. Such a finding would, to my mind, bring the administration of justice into disrepute.

Creating a Balance

At this point, Justice Binnie reviewed the findings of the youth court judge:

The evidence was essential to the Crown’s case. Without it, the case could be and was dismissed. Further, having regard to the school setting, the youth court judge said, “the breach must be seen on the less serious end of the scale.” Involved was no crime of violence, and the drugs involved might be seen as less pernicious than those such as cocaine or heroin. No bad faith could be attributed to the police or school authorities. All of these factors, said the youth court judge, tended to favour admission of the evidence despite the Charter breaches.

However, the youth court judge continued, weighed against admission was the fact that the use of dogs for a “general sweep” in this case appears to be the standard practice of the OPP [Ontario Provincial Police] and the municipal police forces in Ontario. The searches did not respect the rules set out four years previously by this Court in The Queen v. M. (M.R.). Nor did they comply with the school board’s own policies enacted under the Ontario Education Act, which call for police to be used only “when necessary, or if the well-being of the student is at risk.” The police in this matter acknowledged that they had participated in sniffer dog searches of schools on approximately 140 previous occasions.

The failure to respect the right of the students may therefore be described as systemic — that is, reflective of the way the system, as a whole, operated. In the end, weighing the good with the bad, the youth court judge concluded that “the Charter must not be seen as something to be swept away in the interests of expediency. While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search.”

Justice Binnie concluded:

Like the Ontario Court of Appeal, I would not interfere with the balance of competing values struck by the youth court judge or his exclusion of the evidence. Youth court judges carry out special responsibilities for young people in trouble with the law. They have a greater awareness than appellate judges do of the effect that admission or exclusion of this evidence would have on the reputation of the administration of justice in the community with which they deal on a daily basis. The trial judge’s analysis was brief but perceptive. I would not interfere.

A Dissenting View

Justice Bastarache agreed with the Court majority that the sniffer search was unlawful. He dissented, however, on the application of section 24(2) of the Charter. He would have allowed the evidence resulting from the unlawful search to be received. It seemed to him that (1) trafficking in prohibited drugs was a serious matter in itself. An aggravating factor was that the offence took place within a school. (2) The principal and police conducted the search in the good faith belief that they were acting in a lawful manner. To Justice Bastarache, the illegality of the search was inadvertent.

Justice Bastarache stated:

Although this search was not performed on the basis of a reasonable suspicion that drugs would be found, it was conducted in good faith. The search was non-intrusive in nature [for example, none of the students were subject to a physical search] and occurred in an environment where the [personal] expectation of privacy was diminished. The evidence obtained was non-conscriptive [obtained not by force but found in a student’s stored backpack] in nature and does not affect the fairness of the trial. As a result, it is my view that excluding this evidence would bring the administration of justice into disrepute and that the trial judge erred by failing to admit it at trial.

Dissent from the Majority: A Lawful Search

Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy — a condition necessary for applying section 8 of the Charter.

To the dissenting justices, the question was not whether there was a search by the sniffer police dog. The Crown had argued, among other points, that the dog was simply sniffing air. It had not physically forced open, nor in any way impinged on, any backpack.

Justice Deschamps stated:

A.M.’s backpack was closed and was in a pile with others in the small gymnasium of St. Patrick’s High School when the police officers entered the room with their sniffer dog. It is significant that the odours emanating from the backpack could not be detected by the police using their own senses and that the police necessarily relied on the use of the dog to identify, among the several backpacks in the gymnasium, which, if any, contained controlled substances.

The dog’s positive indication on sniffing A.M.’s backpack enabled the police to ascertain what was inside the backpack with a reasonably high degree of accuracy. Accordingly, I have no difficulty in finding that the use of the dog in this case amounted to a search from an empirical perspective. However, what A.M. had to establish was that the use of the dog amounted to a “search” from a constitutional perspective such that it implicated a reasonable expectation of privacy that engaged the protection of section 8.

A Reasonable Expectation of Privacy

Justice Deschamps emphasized that A.M. was not wearing the backpack at the time of the search. It was in a pile of other student backpacks. It would be a different case, she said, if A.M. had been wearing the backpack at the time of the search. Still, the question remained as to whether A.M. had a reasonable expectation of privacy — that his backpack would be left alone.

For the dissent, Justice Deschamps argued that A.M. had neither a subjective nor objective reasonable expectation of privacy. The justice wrote:

Students and parents were aware of the drug problem and the school’s zero-tolerance drug policy and of the fact that sniffer dogs might be used. Dogs had in fact been used on prior occasions to determine whether narcotics were present at the school.…

Nor can it be said, Justice Deschamps continued, that A.M. could have had any objective expectation of privacy. She wrote:

The place where the search occurred was a school with a known problem of drug use by students, both on and off school property.…

The police were there with the permission (and at the request) of the school’s principal in furtherance of disciplinary goals being pursued by the school in order to confront a systematic drug problem. The dogs were used to search the premises, not the students….

Justice Deschamps added:

The use of a sniffer dog as an investigative technique did not intrude unreasonably on A.M.’s privacy interest, since his informational privacy interest was extremely limited in the school environment. Therefore, in my view, in light of [all] of the circumstances, A.M. did not have a reasonable expectation of privacy that engaged section 8.

Since I am of the view that A.M. did not have a reasonable expectation of privacy that engaged section 8 of the Charter, it is not necessary to determine whether the search was reasonable.

Furthermore, since A.M. did not have a reasonable expectation of privacy in respect of his backpack that was sufficient to engage section 8 of the Charter, and since the police were lawfully present at the school with the principal’s permission and were acting [as is] their duty to investigate and prevent crime, no individualized grounds were required for the police to employ their sniffer dog as they did in this case.

The Media’s Response

Within hours of the release of the decision in The Queen v. A.M., the Globe and Mail featured a lengthy editorial comment, a portion of which follows:

When a high-school principal in Sarnia, Ont., turned his school over to the police for a good portion of the day to let a drug-sniffing dog roam, he sent a terrible message to his students about what a democracy should permit the state to do in pursuit of its goals. The students were locked in their classrooms for up to two hours while the dog and the police did their work, intruding at random on the students’ personal property. For part of the day, that zero-tolerance school must have felt like a police state.

It is good that the Supreme Court of Canada ruled this 2002 search illegal yesterday, and refused to allow evidence of 10 bags of marijuana and 10 magic mushrooms found in a backpack in the [school] gymnasium to be used against the student who owned it. But, the Court, like Canadians generally, was torn over the appropriate standard for police as they go about their work of detecting crime and protecting communities. To a surprising extent, the Court is at sea.…

Charter rights are not guarantees of ideal justice, because they exist in the real world. A random drug search is of small use if the price is to render students rights-less. But holding police to an abstract standard of perfection as they try to protect us against imminent danger would give the Charter a bad name (“At Sea, but Keeping a Balance” 2008).

YOU BE THE JUDGE

Bus Station Stakeout

The Facts

On January 25, 2002, at about 11:00 a.m., three RCMP officers in plain clothes were staking out the Calgary Greyhound bus terminal. The team was watching passengers leave the overnight bus from Vancouver.

This was part of the RCMP “Jetway” program, which monitors the travelling public in an effort to identify and arrest drug couriers and other individuals participating in criminal activities. This was the only purpose of the stakeout.

The officers were not investigating the possibility of terrorist activity, explosives, or other threats to public safety. Their sniffer dog, Chevy, was not trained for anything other than narcotics detection.

RCMP Sergeant MacPhee testified that his training in the Jetway program taught him to watch for an “elongated stare,” a locked eye contact for a period of a few seconds. One passenger gave him such a stare. Sergeant MacPhee noted that the man had moved to the underbelly of the bus, but did not look at the bags that were being unloaded. Instead, he went around the bus in a direction different from the other passengers and stopped approximately three to five metres behind Sergeant MacPhee. The officer said this conduct aroused his suspicion.

The passenger was carrying a bag (like a gym bag) that had no Greyhound or other identifying tags on it. It had two handles rather than a shoulder strap, and he was carrying it on his shoulder. On entering the terminal, he walked toward the washroom. About five metres before the washroom door, he stopped, turned around and looked back at Sergeant MacPhee, who was about eight metres behind him. Sergeant MacPhee described this as “rubber-necking.”

When the passenger came out of the washroom, he again made eye contact with Sergeant MacPhee as he moved toward the exit doors. Sergeant MacPhee went over and introduced himself as follows: “Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they’re travelling.”

Sergeant MacPhee commented on the weather and asked to see the passenger’s bus ticket (which he had apparently left on the bus), and asked for identification (which the man produced). Sergeant MacPhee made a note of his name and date of birth, and asked how long he would be in Calgary. The passenger seemed to Sergeant MacPhee to be getting “increasingly antsy” in the officer’s presence.

At this point, Sergeant MacPhee asked to see the contents of the passenger’s bag. The man paused, then put his bag down on the floor and started to open it. Sergeant MacPhee said, “Thanks, sir. You’re certainly not obliged to show me, but thanks.”

Sergeant MacPhee then started to kneel down and take hold of the bag himself, saying: “Just an officer safety thing here, do you mind?” Before he could touch the bag, the passenger said “What are you doing?” and pulled the bag back.

At that point, the passenger was very agitated. Sergeant MacPhee signalled to another officer, Sergeant (then Corporal) Bouey, who was accompanied by Chevy, a police sniffer dog, as noted. They approached, and Chevy sat down, indicating to his handler the presence of drugs in the bag. Sergeant MacPhee then told the passenger that he was under arrest for the possession and/or trafficking of a controlled substance and advised him of his rights.

Following the arrest, the passenger’s bag was searched by Constable Ritchie, and was found to contain two zip lock baggies filled with approximately half a kilogram of cocaine. The accused also produced, from his pocket, a Starbucks mint container containing a small amount of heroin. He was charged with possession of cocaine for the purposes of trafficking and possession of heroin.

The trial judge ruled that the accused was neither arbitrarily detained nor unlawfully searched, and he entered a conviction. The majority of the Court of Appeal agreed and dismissed his appeal.

The Issue

Was there a lawful basis for police search of the accused’s luggage?

Points to Consider

 Section 8 of the Charter of Rights and Freedoms, part of the Constitution of Canada, provides, “Everyone has the right to be secure against unreasonable search or seizure.”

 Based on the reasoning of the Supreme Court of Canada in The Queen v. A.M., the sniffer dog’s alert in front of the luggage of the accused was a search.

 The offences with which the accused was charged were serious. However, if the search were unlawful, the breach of his section 8 Charter rights also would have been serious.

 The accused had a “reasonable expectation of privacy” in the luggage that he carried, which was protected by the Charter.

 There is no statute that defines authority for a lawful canine search.

Discussion

The facts in this case were taken from The Queen v. Kang-Brown, a decision handed down by the Supreme Court of Canada on the same day as The Queen v. A.M. The Court reflected the same split as in The Queen v. A.M. A majority of the Court agreed with the conclusion that the sniff and the luggage search were unlawful and that the seriousness of the breach of section 8 of the Charter required that the evidence arising from the search should be excluded under section 24(2) of the Charter.

Important Differences

There were, however, important differences between the two cases. In The Queen v. A.M., the search took place in a high school. This setting, Justice LeBel emphasized, requires different criteria, a different standard for measuring the lawfulness of searches. Educational institutions, such as high schools, have a duty to care for the security and well-being of students. This duty is made explicit by statute. The difficulty with the search in The Queen v. A.M. was that the search was initiated and conducted by the police, who simply took advantage of an earlier general invitation from the school principal.

A different result might have ensued (1) if the principal had received more specific and current information of drug trafficking in the school close to the time the search was made, and (2) if the principal had ordered and/or conducted the search — even in the presence of the police as backup. If these conditions had been met, then the standard for measuring the lawfulness of the search would have been reasonable suspicion of unlawful drug trafficking. (3) Further, if there were a threat of violence (guns, explosives), the police would have been able to conduct a search, even without the permission of a principal. On the facts in both cases, there was no use of sniffer dogs to alert for explosives. The dogs were trained only to alert for certain drugs.

In The Queen v. Kang-Brown, the search and the arrest that followed took place in a bus depot. Justice LeBel, for himself and Justices Fish, Abella, and Charron, said the higher standard for conducting a search, namely, reasonable and probable cause, should have been used. It was on the legal standard for conducting a search that Justice LeBel and his three colleagues differed with Justice Binnie and the chief justice, who formed the basic majority for the Court’s conclusion. To this extent, then, it can be said that there was no Court majority as to the legal standard to be applied in searches in non-school areas.

Our discussion here centres on the opinion of Justice LeBel, who spoke for the largest grouping of the Justices, though they did not constitute a majority of the Court.

Justice LeBel stated:

Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities.

It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted.…

Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search.…

Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of section 8.… Although the word “privacy” does not appear in the Charter, from the first days of its application, section 8 evolved into a shield against unjustified state intrusions on personal privacy.…

My concern is that the approach adopted by my colleagues in this case will in practice jeopardize critical elements of the constitutional rights guaranteed by section 8 and of that section’s underlying values. Perhaps somewhat ironically, this erosion process would derive not from state action or from the laws of Parliament, but from decisions of the courts themselves.

Parliament’s Role and the Court’s Boundaries

Suppose Parliament enacted a law specifically allowing police to use sniffer dog alerts for unlawful drugs at public commuting terminals. Under the law, police, on an alert, would be permitted to search both a person and his or her luggage. If unlawful drugs were found, the law would permit the Crown to introduce the drugs in evidence in support of charges. How would a court determine the constitutionality of such a law under the Charter?

The key question goes to the justification of the law as a reasonable limit that can be justified in a free and democratic society — as set out in section 1 of the Charter. Justice LeBel, speaking for himself and three other justices in The Queen v. Kang-Brown, emphasized that such Parliamentary action gives the Crown the chance to put the reasoning, the facts, and the need for such a law as a reasonable limit on privacy to the Court. He wrote:

A statutory provision on the appropriate use of sniffer dogs in law enforcement … might require justification under section 1 [of the Charter], but state action would not be foreclosed so long as the standard for justification was met under the relevant constitutional test. A requirement that Parliament act first would put the courts in a better position to address the competing interests at play and would ensure that the justification process meets constitutional standards. The extension of common law police powers as proposed in this case would shortcut the justification process and leave the Court to frame the common law rule itself without the full benefit of the dialogue and discussion that would have taken place had Parliament acted and been required to justify its action.

Moreover, this is a case where the courts are ill-equipped to develop an adequate legal framework for the use of police dogs. In determining where the proper balance lies between the protection of privacy and effective law enforcement, the courts will be hampered by the fact that little is known about investigative techniques using sniffer dogs. Indeed, the record remains singularly bereft of useful information about sniffer dogs. The available information is in essence limited to the facts that they are used for investigative purposes in a variety of circumstances and that police officers believe in their overall reliability and to the praise of a particular dog deployed at the Calgary bus station. From the record, however, and from some of the authorities cited by the parties, it appears that serious doubt has occasionally been cast on the reliability of sniffer dogs.… Despite this inadequate record, this Court is nonetheless being asked to curtail Charter rights for fear of leaving a void in the law and interfering with the use of a fairly widespread police investigative technique. The Court would create a new common law rule on the basis of little more than unverified and, for us in this appeal, unverifiable assumptions.

Courts ought to avoid relying on such a weak and inadequate record as a basis for justifying an intrusion on privacy rights. A downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion in these circumstances and on the basis of this record might lead to an even looser test of “generalized suspicion,” which is in fact the standard adopted by one of the dissenting judges in this appeal. It would also tend to limit privacy rights to the possibility of obtaining some kind of remedy after the fact. Perfunctory excuses would be of little comfort to passengers and passers-by inconvenienced by an unfounded sniff and its consequences. The result would verge on honouring reasonable and probable cause in principle, while gutting it in practice through an even wider use of a standard of reasonable suspicion.

The constitution of Canada, including the Charter, is fundamental to our life in this country. The Court needs to have facts that are clear so that constitutional questions can be developed, argued, and decided in ways that will give a certain precedent to the decisions.

References and Further Reading

* Cited by the Supreme Court of Canada.

Amsterdam, Anthony G. 1973–74. “Perspectives on the Fourth Amendment.” Minnesota Law Review 58: 349–477.*

“At Sea, but Keeping a Balance.” 2008. Globe and Mail, April 26.

Australia. New South Wales. 2006. Review of the Police Powers (Drug Detections Dogs) Act 2001. Sydney: New South Wales Ombudsman.*

Australia. New South Wales. 2004. Discussion Paper: Review of the Police Powers (Drug Detections Dogs) Act. Sydney: New South Wales Ombudsman.*

Bird, Robert. 1996–97. “An Examination of the Training and Reliability of the Narcotics Detection Dog.” Kentucky Law Journal 85: 405–33.*

Brennan, Richard. 2008. “Random Searches Curbed.” Toronto Star, April 26.

Bryson, Sandy. 2000. Police Dog Tactics. 2nd ed. Calgary: Detselig Enterprises.*

Davis-Barron, Sherri. 2007. “The Lawful Use of Drug Detector Dogs.” Criminal Law Quarterly 52: 345–91.*

Eden, Robert S. 1993. K9 Officer’s Manual. Calgary: Detselig Enterprises.

Katz, Lewis R. 1989–90. “In Search of a Fourth Amendment for the Twenty-First Century.” Indiana Law Journal 65, no.3: 549–90.*

Katz, Lewis R., and Aaron P. Golembiewski. 2006–7. “Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs.” Nebraska Law Review 85: 735–92.*

Kerr, Ian, and Jena McGill. 2007. “Emanations, Snoop Dogs and Reasonable Expectations of Privacy.” Criminal Law Quarterly 52, no.3: 392–432.*

LaFave, Wayne R. 2004. Search and Seizure: A Treatise on the Fourth Amendment. 4th ed. Vols. 1 and 4. St. Paul, MN: Thomson/West.*

Lammers, Ken. 2005. “Canine Sniffs: The Search That Isn’t.” New York University Journal of Law and Liberty 1, no. 2: 845–56.*

Makin, Kirk. 2008. “Top Court Puts Leash on Random Searches by Sniffer Dogs.” Globe and Mail, April 26.

Meehan, Eugene. 2008. “The Supreme Court Defines Man’s Best Friend.” National Post, April 26.

Naumetz, Tim. 2008. “SCC Muzzles Random Police Dog-sniff Searches.” Law Times, May 5.

Ontario Ministry of Education. 2001. Ontario Schools: Code of Conduct. Toronto: Queen’s Printer.*

Pollack, Kenneth L. 1994. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard.” Vanderbilt Law Review 47: 803–55.*

“Random Use of Police Sniffer Dogs Breaches Charter: Top Court.” 2008. CBC.ca, April 25.

Shaw, Trevor. 2004. “The Law on the Use of Police Dogs in Canada.” Criminal Law Quarterly 48: 337–66.*