(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
