Understanding Canadian Law Four-Book Bundle. Daniel J. Baum
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