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
