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
