R. v. A.M.

R. v. A.M.
Collection
Supreme Court Judgments
Date
2008-04-25
Neutral citation
2008 SCC 19
Report
[2008] 1 SCR 569
Case number
31496
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Constitutional law
Professional law
Notes
SCC Case Information: 31496
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19
Date: 20080425
Docket: 31496
Between:
Her Majesty The Queen
Appellant
and
A.M.
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of Quebec, Attorney General
of British Columbia, Criminal Lawyers' Association (Ontario), Canadian
Civil Liberties Association, St. Clair Catholic District School Board and
Canadian Foundation for Children, Youth and the Law (Justice for Children and Youth)
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 2)
Partially Concurring
Reasons: (paras. 3 to 99)
Dissenting Reasons:
(paras. 100 to 149)
Dissenting Reasons:
(paras. 150 to 191)
LeBel J. (Fish, Abella and Charron JJ. concurring)
Binnie J. (McLachlin C.J. concurring)
Deschamps J. (Rothstein J. concurring)
Bastarache J.
______________________________
R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19
Her Majesty The Queen Appellant
v.
A.M. Respondent
and
Attorney General of Ontario, Attorney General of
Quebec, Attorney General of British Columbia, Criminal
Lawyers’ Association (Ontario), Canadian Civil Liberties
Association, St. Clair Catholic District School Board and
Canadian Foundation for Children, Youth and the Law
(Justice for Children and Youth) Interveners
Indexed as: R. v. A.M.
Neutral citation: 2008 SCC 19.
File No.: 31496.
2007: May 22; 2008: April 25.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Search and seizure — Sniffer dogs — Schools — Police using sniffer dog to search school for illicit drugs — Positive alert by dog to student’s backpack left in school gymnasium leading to examination of content of backpack by police officer, who confirmed presence of illegal drugs — Whether dog sniff constituted search of content of student backpack — If so, whether search reasonable — If search unreasonable, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Police — Police powers — Investigative tools — Sniffer dogs — Whether common law powers of police to investigate crime include use of sniffer dogs.
The police accepted a long‑standing invitation by the principal of a high school to bring sniffer dogs into the school to search for drugs. The police had no knowledge that drugs were present in the school and would not have been able to obtain a warrant to search the school. The search took place while all the students were confined to their classrooms. In the gymnasium, the sniffer dog reacted to one of the unattended backpacks lined up against a wall. Without obtaining a warrant, the police opened the backpack and found illicit drugs. They charged the student who owned the backpack with possession of cannabis marihuana and psilocybin for the purpose of trafficking. At trial, the accused brought an application for exclusion of the evidence, arguing that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been violated. The trial judge allowed the application, finding two unreasonable searches: the search conducted with the sniffer dog and the search of the backpack. He excluded the evidence and acquitted the accused. The Court of Appeal upheld the acquittal.
Held (Bastarache, Deschamps and Rothstein JJ. dissenting): The appeal should be dismissed.
1. Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion.
Per Bastarache J.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of generalized suspicion.
Per LeBel, Fish, Abella and Charron JJ.: There was no authority at common law for the sniffer‑dog search in this case.
2. Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.: The dog sniff of the backpack at the school amounted to a search within s. 8 of the Charter .
Per Deschamps and Rothstein JJ.: The dog sniff of the backpack at the school did not amount to a search within s. 8 of the Charter .
3. Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and Charron JJ.: The sniffer‑dog search of the backpack at the school violated s. 8 of the Charter .
Per Deschamps and Rothstein JJ.: There is no need to determine whether s. 8 of the Charter was violated because the dog sniff of the backpack at the school did not amount to a search.
4. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: In the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter .
Per Deschamps and Rothstein JJ.: There is no need to determine whether the evidence should be excluded pursuant to s. 24(2) of the Charter because the dog sniff of the backpack at the school did not amount to a search.
Per Bastarache J.: The trial judge erred in excluding the evidence pursuant to s. 24(2) of the Charter .
_____________
Per LeBel, Fish, Abella and Charron JJ.: Students are entitled to privacy in a school environment. Since there was no authority in the statutes or at common law for the sniffer‑dog search in this case, the search violated s. 8 of the Charter . For the reasons stated in R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, 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 para. 24(2) of the Charter . [1‑2]
Per McLachlin C.J. and Binnie J.: The police possess common law authority to use sniffer dogs in appropriate circumstances. 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 would have been greater and more urgent than routine crime prevention. [7] [37]
The dog sniff amounts to a search within s. 8 of the Charter . The information provided when the dog is trained to alert to the presence of controlled drugs permits inferences about the precise contents of the source that are of interest to the police. The subject matter of the sniff is not public air space. It is the concealed contents of the backpack. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support. The guilty secret of the contents of the accused’s backpack was specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy. By use of the dog, the police officer could “see” through the concealing fabric of the backpack. [8] [62‑63] [66‑67]
Although a warrantless sniffer‑dog search is available where reasonable suspicion is demonstrated, the sniffer‑dog search of the students’ belongings in this case violated their Charter rights under s. 8 . The dog‑sniff search was unreasonably undertaken because there was no proper justification. The youth court judge found that the police lacked any grounds for reasonable suspicion and the Crown has shown no error in the youth court judge’s finding of fact. [91]
While the sniffer‑dog search 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, these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school. The Charter weighs other values, including privacy, against an appetite for police efficiency. Because of their role in the lives of students, backpacks objectively command a measure of privacy, and since the accused did not testify, the question of whether he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. [15] [62‑63]
In the context of a routine criminal investigation, the police are entitled to use sniffer dogs based on a “reasonable suspicion”. If there are no grounds of reasonable suspicion, the use of the sniffer dogs will violate the s. 8 reasonableness standard. Where there are grounds of reasonable suspicion, the police should not have to take their suspicions to a judicial official for prior authorization to use the dogs in an area where the police are already lawfully present. All “searches” do not have the same invasive and disruptive quality and prior judicial authorization is not a universal condition precedent to any and all police actions characterized as “searches” given that the touchstone of s. 8 is reasonableness. Account must be taken in s. 8 matters of all the relevant circumstances including the minimal intrusion, contraband‑specific nature and high accuracy rate of a fly‑by sniff. The warrantless search is, of course, presumptively unreasonable. If the sniff is conducted on the basis of reasonable suspicion and discloses the presence of illegal drugs on the person or in a backpack or other place of concealment, the police may confirm the accuracy of that information with a physical search, again without prior judicial authorization. But 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 unreasonably undertaken. [12‑14]
Permitting the police to act on a standard of reasonable suspicion within the framework of s. 8 will allow inappropriate conduct by the dog or the police to be dealt with on the basis that although the lawful authority to use the sniffer dog does exist, the search in the particular case was executed unreasonably, and thereby constituted a Charter breach, on the basis of which the evidence obtained may be excluded. 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. From the police perspective, a dog that fails to detect half of the narcotics present is still better than no detection at all. However 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. An important concern for the court is therefore the number of any such false positives. It is important not to treat the capacity and accuracy of sniffer dogs as interchangeable. Dogs are not mechanical or chemical devices. 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. In the sniffer‑dog business, there are many variables. [82] [84‑85] [87‑88]
In sniffer‑dog situations, the police are generally required to take quick action guided by on‑the‑spot observations. In circumstances where this generally occurs, it is not feasible to subject the “sniffer dog’s” sniff to prior judicial authorization. Both the subject and his suspicious belongings would be long gone before the paperwork could be done. In the particular context of sniffer dogs, there is sufficient protection for the public in the prior requirement of reasonable suspicion and after‑the‑fact judicial review to satisfy the “reasonableness” requirement of s. 8 . [90]
The trade‑off for permitting the police to deploy their dogs on a “reasonable suspicion” standard without a warrant is that if this procedure is abused and sniffer‑dog searches proceed without reasonable suspicion based on objective facts, the consequence could well tip the balance against the admission of the evidence if it is established under s. 24(2) of the Charter that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Youth court judges have a greater awareness than appellate judges do of the effect that admission or exclusion of the evidence would have on the reputation of the administration of justice in the community with which they deal on a daily basis. Here, the youth court judge excluded the evidence. His exclusion of the evidence should not be interfered with. [14] [90] [98]
Per Deschamps and Rothstein JJ. (dissenting): In light of the totality of the circumstances, the accused did not have in this case a reasonable expectation of privacy that engaged s. 8 of the Charter , and a new trial should be ordered. [140] [149]
While the use of the dog amounted to a search from an empirical perspective, what the accused had to establish was whether that use amounted to a “search” from a constitutional perspective. The pivotal question in this appeal was thus whether the accused had a reasonable expectation of privacy in respect of odours imperceptible to humans that emanated from his unattended backpack in a school gymnasium. This requires consideration of whether the accused had a subjective expectation of privacy and whether his privacy interest was objectively reasonable. [119] [128]
The accused did not have a subjective expectation of privacy. Students and parents were made aware of the drug problem and the 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. While school policy must be implemented in a manner consistent with a legitimate expectation of privacy, the well‑advertised means devised and used by the school reduced the accused’s subjective expectation of privacy very significantly. [129]
The accused’s expectation of privacy was also not objectively reasonable. First, 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 primarily to search the premises, not the students. In these circumstances, the objective expectation of privacy in respect of an unattended backpack on this school’s property was not only significantly diminished, but extremely low. Second, the accused was not present at the time of the search. Since there were no students in the school gymnasium at the time of the search, there was no risk that the dog, on sniffing a backpack worn by a student, might make a false positive indication leading to a — more intrusive — personal search of the student. Third, the accused’s backpack was left not only unattended, but also in plain view. While there is no indication that the backpack was abandoned, the use of a sniffer dog to check an unattended bag left in plain view is less intrusive than the use of one to check a bag that is either worn or carried by an individual, or is placed in a locked compartment out of plain view. Fourth, the investigative technique was relatively non‑intrusive. The dog detected the presence of drugs in the accused’s backpack without the backpack being opened. Moreover, the dog was trained only to detect drugs and find humans. It could not therefore convey any information other than that there were drugs present. Thus, the use of a sniffer dog in these circumstances was a less intrusive investigative technique than simply opening the accused’s backpack without a prior positive indication by the dog. [130‑131] [137‑139]
Per Bastarache J. (dissenting): The dog sniff constituted a search within the meaning of s. 8 of the Charter . The accused had a reasonable, but limited, expectation of privacy in his backpack when the dog sniff occurred, even though he was not carrying the backpack at the time. A high school student who, like his classmates, leaves his bag unattended continues to have a reasonable expectation of privacy in its contents. It is relevant from an objective perspective that the odour identified by the dog sniff was not accessible to humans and that its detection provided immediate information about the contents of the backpack. The accused’s reasonable expectation of privacy is, however, reduced by the fact that this dog sniff occurred at the school. Students are aware of the importance both society at large and school administrators place on the school environment, and have a diminished expectation of privacy as a result. [150] [157‑159]
A random sniffer‑dog search in a school would be deemed reasonable where it is based on a generalized reasonable suspicion, providing a reasonably informed student would have been aware of the possibility of random searches involving the use of dogs. Schools are unique environments and the application of this lower standard is appropriate given the importance of preventing and deterring the presence of drugs in schools to protect children, the highly regulated nature of the school environment, the reduced expectation of privacy students have while at school, and the minimal intrusion caused by searches of this nature. However, the police cannot enter a school and conduct a search whenever they please on the basis that drugs may be found there on any given day. Reasonable suspicion requires more than a mere hunch. Further, since a generalized, ongoing suspicion does not exist in relation to schools, it is necessary for each random dog‑sniff search to be justified on the basis of a suspicion that drugs will be located at that specific location at the specific time the search is being performed. Although it is necessary that a dog‑sniffer search in a school be related to a reasonable suspicion that drugs will be located on the premises at the time the search occurs, it is unreasonable to expect that a sniffer‑dog search will occur at the precise moment that a reasonable suspicion is first formed. How long the suspicion lasts will depend in large part on the nature of the information received and on whether it is supplemented by additional indicators that the presence of drugs continues. In every instance, the key inquiry is whether there is a sufficient basis on which to form a reasonable suspicion about the presence of drugs at the time the search occurs. [152] [163‑164] [168] [174‑175]
In this case, the search of the accused’s backpack was unreasonable. The trial judge determined that the students were aware of the zero‑tolerance policy for drugs and that it may be enforced using sniffer dogs, but there is no evidence that the sniffer‑dog search which led police to arrest the accused was founded on a current reasonable suspicion that drugs would be found. The trial judge concluded that school authorities had little more than a “reasonably well‑educated guess” that drugs would be at the school on the day the search was conducted. The evidence likewise indicates that the police themselves had no direct awareness as to the possible existence of drugs at the school on the day the search occurred. [179‑180]
Although the search violated s. 8 of the Charter , the trial judge erred in excluding the evidence found in the accused’s backpack pursuant to s. 24(2) of the Charter . The search, which was conducted in good faith and was non‑intrusive in nature, occurred in an environment where the expectation of privacy was diminished. The evidence obtained was non‑conscriptive in nature and did not affect the fairness of the trial. [190]
Cases Cited
By LeBel J.
Applied: R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18; referred to: R. v. M. (M.R.), [1998] 3 S.C.R. 393.
By Binnie J.
Applied: R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18; referred to: R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Wise, [1992] 1 S.C.R. 527; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States, 389 U.S. 347 (1967); R. v. Collins, [1987] 1 S.C.R. 265; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Kokesch, [1990] 3 S.C.R. 3; Kyllo v. United States, 533 U.S. 27 (2001); R. v. M. (M.R.), [1998] 3 S.C.R. 393; Terry v. Ohio, 392 U.S. 1 (1968); R. v. Colarusso, [1994] 1 S.C.R. 20; United States v. Place, 462 U.S. 696 (1983); United States v. Jacobsen, 466 U.S. 109 (1984); Illinois v. Caballes, 543 U.S. 405 (2005); R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62; R. v. Thompson, [1990] 2 S.C.R. 1111; Doe v. Renfrow, 631 F.2d 91 (1980); R. v. Evans, [1996] 1 S.C.R. 8; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Lal (1998), 113 B.C.A.C. 47; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Stillman, [1997] 1 S.C.R. 607.
By Deschamps J. (dissenting)
R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Edwards, [1996] 1 S.C.R. 128; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Campanella (2005), 75 O.R. (3d) 342; Hunter v. Southam Inc., [1984] 2 S.C.R. 145.
By Bastarache J. (dissenting)
R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Colarusso, [1994] 1 S.C.R. 20; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. M. (M.R.), [1998] 3 S.C.R. 393; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Therens, [1985] 1 S.C.R. 613.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(2) (a)(iii).
Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 49 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 254 .
Customs Act, R.S.C. 1985, c. 1 (2nd Supp .), ss. 98 , 99.2 .
Education Act, R.S.O. 1990, c. E.2, ss. 301(1), 306(1)2, 309(1)5.
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, ss. 15(1) , 16(1) , (2) , 17(1) .
Authors Cited
Amsterdam, Anthony G. “Perspectives on the Fourth Amendment” (1973‑1974), 58 Minn. L. Rev. 349.
Australia. New South Wales. Review of the Police Powers (Drug Detection Dogs) Act 2001. Sydney: NSW Ombudsman, 2006.
Bird, Robert. “An Examination of the Training and Reliability of the Narcotics Detection Dog” (1996‑97), 85 Ky. L.J. 405.
Bryson, Sandy. Police Dog Tactics, 2nd ed. Calgary: Detselig Enterprises, 2000.
Coughlan, Steve. “Privacy Goes to the Dogs” (2006), 40 C.R. (6th) 31.
Coughlan, Steve, and Marc S. Gorbet. “Nothing Plus Nothing Equals . . . Something? A Proposal for FLIR Warrants on Reasonable Suspicion” (2005), 23 C.R. (6th) 239.
Eden, Robert S. K9 Officer’s Manual. Calgary: Detselig Enterprises, 1993.
Gold, Alan D. “Privacy Suffers From the Heat: R. v. Tessling”. Paper delivered at Law Society of Upper Canada 5th Annual Six‑Minute Criminal Defence Lawyer, June 4, 2005.
Katz, Lewis R. “In Search of a Fourth Amendment for the Twenty‑first Century” (1989‑1990), 65 Ind. L.J. 549.
Katz, Lewis R., and Aaron P. Golembiewski. “Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs” (2006‑2007), 85 Neb. L. Rev. 735.
Kerr, Ian, and Jena McGill. “Emanations, Snoop Dogs and Reasonable Expectations of Privacy” (2007), 52 Crim. L.Q. 392.
Lammers, Ken. “Canine Sniffs: The Search That Isn’t” (2005), 1 N.Y.U. J.L. & Liberty 845.
MacKay, A. Wayne. “Don’t Mind Me, I’m from the R.C.M.P.: R. v. M. (M.R.) — Another Brick in the Wall Between Students and Their Rights” (1997), 7 C.R. (5th) 24.
Ontario. Ministry of Education. Ontario Schools: Code of Conduct. Toronto: Queen’s Printer, 2001.
Pollack, Kenneth L. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard” (1994), 47 Vand. L. Rev. 803.
Pomerance, Renee. “Shedding Light on the Nature of Heat: Defining Privacy in the Wake of R. v. Tessling” (2005), 23 C.R. (6th) 229.
Rosenberg, Marc. “Controlling Intrusive Police Investigative Techniques Under Section 8” (1991), 1 C.R. (4th) 32.
Stuart, Don. “Reducing Charter Rights of School Children” (1999), 20 C.R. (5th) 230.
APPEAL from a judgment of the Ontario Court of Appeal (Goudge, Armstrong and Blair JJ.A.) (2006), 79 O.R. (3d) 481, 209 O.A.C. 257, 208 C.C.C. (3d) 438, 37 C.R. (6th) 372, [2006] O.J. No. 1663 (QL), 2006 CarswellOnt 2579, upholding the accused’s acquittal entered by Hornblower J. (2004), 120 C.R.R. (2d) 181, [2004] O.J. No. 2716 (QL), 2004 CarswellOnt 2603, 2004 ONCJ 98. Appeal dismissed, Bastarache, Deschamps and Rothstein JJ. dissenting.
Kenneth J. Yule, Q.C., Jolaine Antonio and Lisa Matthews, for the appellant.
Walter Fox, for the respondent.
Robert W. Hubbard and Alison Wheeler, for the intervener the Attorney General of Ontario.
Dominique A. Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec.
Kenneth D. Madsen, for the intervener the Attorney General of British Columbia.
Frank Addario and Emma Phillips, for the intervener the Criminal Lawyers’ Association (Ontario).
Jonathan C. Lisus, Christopher A. Wayland and Sarah Corman, for the intervener the Canadian Civil Liberties Association.
Thomas McRae, for the intervener the St. Clair Catholic District School Board.
Martha Mackinnon, for the intervener the Canadian Foundation for Children, Youth and the Law (Justice for Children and Youth).
The reasons of LeBel, Fish, Abella and Charron JJ. were delivered by
[1] LeBel J. — I have read the reasons of my colleague Binnie J. I agree that the appeal should be dismissed, but on the basis of my comments in the companion case, R. v. Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18. Students are entitled to privacy even in a school environment (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 32). 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.
[2] 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 focussed search. Nor was the dog-sniffer search conducted by the school authorities on proper grounds as set out in M. (M.R.). For the reasons stated in Kang-Brown, 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 para. 24(2) of the Canadian Charter of Rights and Freedoms . I would dismiss the appeal.
The reasons of McLachlin C.J. and Binnie J. were delivered by
[3] Binnie J. — The issues in the present appeal are whether a sniffer-dog “sniff” of a student’s backpack is a search within the meaning of s. 8 of the Canadian Charter of Rights and Freedoms , and if so, in what circumstances police officers may use sniffer dogs to search a school for illicit drugs. This case involves routine crime investigation. It does not involve explosives, guns or other public safety issues in the schools.
[4] This appeal was argued together with R. v. Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18 (released concurrently), which raises similar issues in the context of a bus terminal. In both appeals, arguments were framed by analogy with technology or devices considered in decided cases, especially R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67. In Kang-Brown, a majority of the Alberta Court of Appeal equated a dog sniff of the odour of marijuana emanating from a piece of luggage to the infrared imaging of heat emanating from a building in Tessling. Emanations were treated generically as largely devoid of any constitutionally protected privacy interest, regardless (it seems) of the very different value to the police of the information thereby obtained about what an individual seeks to preserve as private.
[5] Section 8 has proven to be one of the most elusive Charter provisions despite the apparent simplicity of its language:
8. Everyone has the right to be secure against unreasonable search or seizure.
In the present appeal, the Ontario Court of Appeal saw a “significant difference” ((2006), 79 O.R. (3d) 481, at para. 47), between sniffer dogs and Tessling-type heat imaging technology, but framed the issue more broadly, as had the trial judge, in terms of the reasonableness of “a trained police dog sniffing at the personal effects of an entire student body in a random police search” (para. 47). I think the approach of the Ontario courts is more in keeping with the “totality of the circumstances” reasoning adopted in s. 8 cases by this Court in R. v. Wong, [1990] 3 S.C.R. 36, R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45, and Tessling itself where, at para. 19, the Court said:
. . . the Court early on established a purposive approach to s. 8 in which privacy became the dominant organizing principle. . . . Given the bewildering array of different techniques available to the police (either existing or under development), the alternative approach of a judicial “catalogue” of what is or is not permitted by s. 8 is scarcely feasible.
Stripped of the relevant context, musing on the differences between a dog’s nose and an infrared camera, or generalizing about “emanations”, does not greatly advance the resolution of the issues before us. What is required is to strike an appropriate balance between the state’s need to search (whether the need be public safety, routine crime investigation or other public interest) against the invasion of privacy which the search entails, including the disruption and prejudice that may be caused to law-abiding members of the public, whether travelling (as in Kang-Brown) or in the schools (as here) or in the peace and quiet of their own homes.
[6] In this case, the principal of St. Patrick’s High School, in Sarnia, had issued a standing invitation to the Sarnia police to bring sniffer dogs to the school whenever convenient to the police. Both the Attorney General of Ontario and the intervener St. Clair Catholic District School Board argue that this invitation was all the justification the police required. The accused, on the other hand, argues that sniffer dogs may only be used where the police have reasonable grounds to believe a drug offence has been committed by the individual who is the subject of the search and that a search will lead to discovery of evidence or, perhaps, to the apprehension of the perpetrator. The Attorney General of Ontario denies that the use of sniffer dogs constitutes a s. 8 search at all, as the dogs simply sniff the air which is part of our shared public space. He thus contends that nothing done here even engaged the rights of the accused under s. 8 of the Charter . The youth court judge held that neither the police nor the school authorities had anything more than a “hunch” to suspect the presence of drugs in the school at the relevant time of the search ((2004), 120 C.R.R. (2d) 181, 2004 ONCJ 98). He held the “sniff” to be a search and excluded the evidence both of the dog sniff and the subsequent physical search by the police of the student’s backpack.
[7] For the reasons expressed in Kang-Brown, I believe the common law powers of the police to investigate crime and bring perpetrators to justice includes the use of sniffer dogs. Such powers, however, are subject to compliance with the Charter .
[8] I also agree with the youth court judge that the deployment of sniffer dogs in the school constituted a s. 8 search, which may be defined as the state invasion of a reasonable expectation of privacy; R. v. Wise, [1992] 1 S.C.R. 527, at p. 533. The dog’s positive alert led immediately and without judicial intervention to the physical examination of the contents of the accused’s backpack to confirm the dog’s identification of illegal drugs.
[9] While the dog sniff constituted a search, it is a search of a minimally intrusive and tightly targeted type. For reasons to be explained, I would not go so far as the accused who insists that the full Hunter v. Southam Inc., [1984] 2 S.C.R. 145, requirement of prior judicial authorization must be imposed. In effect, the defence argument would mean that the dogs can only be used where there is no need for them. If the police have reasonable and probable grounds to believe that an individual has committed a drug offence and that a search would lead to apprehension of the perpetrator and/or discovery of evidence, the police would already have the grounds required for a search warrant. The defence argument produces too much rigidity and does not take into account the minimally intrusive nature of a sniffer-dog search, and the fact that a sniffer dog properly trained and handled “alerts” only to contraband with a high degree of accuracy.
[10] In the United States, from whose Fourth Amendment decisions Hunter v. Southam drew inspiration, a series of divided Supreme Court decisions has declined to grant any Fourth Amendment protection against “narcotic” sniffer dogs. This may be, at least in part, because the courts may fear that once it is found that a police activity amounts to an invasion of a cognizable privacy interest, the legal machinery of prior judicial authorization is presumptively imposed: Katz v. United States, 389 U.S. 347 (1967). This may have involved the U.S. courts in a form of cost-benefit analysis, as noted by K. L. Pollack:
. . . in deciding these cases, the Court arguably made implicit findings that the costs of imposing a probable cause requirement outweighed the corresponding benefits to individual privacy. In these cases, the intrusion into individual interests was low, and the Court seemed unconcerned about the prospect of arbitrary government use of these searching methods. . . . [I]n pure investigatory searches, no middle standard exists between suspicionless searches and those searches based on probable cause.
(K. L. Pollack, “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard” (1994), 47 Vand. L. Rev. 803, at pp. 820‑21)
[11] The result of this U.S. jurisprudence is that use of police sniffer dogs for crime investigation sits entirely outside the Fourth Amendment. I do not agree that in Canada such use of police dogs is without constitutional regulation, although I agree that the degree and nature of that s. 8 regulation must be apt to the circumstances and reflect the minimally intrusive, contraband-specific nature and, where established, accurate olfactory capacity of a properly trained dog. This context gives rise to two consequences of importance.
[12] Firstly, I conclude that in the context of a routine criminal investigation, the police are entitled to use sniffer dogs based on a “reasonable suspicion”. If there are no grounds of reasonable suspicion, the use of the sniffer dogs will violate the s. 8 reasonableness standard.
[13] Secondly, where there are grounds of reasonable suspicion, I believe the police should not have to take their suspicions to a judicial official for prior authorization to use the dogs in an area where the police are already lawfully present (in any event there is at present no mechanism in the Criminal Code, R.S.C. 1985, c. C-46 , to issue such an authorization based only on reasonable suspicion). All “searches” do not have the same invasive and disruptive quality. In Hunter v. Southam, the combines officers were poised to rummage through private papers of varying degrees of relevance and irrelevance of the Edmonton Journal under a Director’s order whose sweep was described by Dickson J. as “breathtaking” (p. 150). The Hunter v. Southam requirement of prior judicial authorization is the gold standard because an important purpose of s. 8 is to prevent unreasonable searches and not in the usual case just to give an after-the-fact remedy. However, prior judicial authorization is not a universal condition precedent to any and all police actions characterized as “searches” given that the touchstone of s. 8 is reasonableness. Account must be taken in s. 8 matters of all the relevant circumstances including (as stated) the minimal intrusion, contraband-specific nature and high accuracy rate of a fly-by sniff. The warrantless search is, of course, presumptively unreasonable, and must satisfy the exceptional requirements set out in R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.
[14] If the sniff is conducted on the basis of reasonable suspicion 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, as will be discussed. 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 was engaged 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 s. 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 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 exclusion remedy was granted in this case and, in my opinion, rightly so.
[15] I accept the youth court judge’s finding of fact that this was a random speculative search. 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 ac