discussion here centres on the opinion of Justice LeBel, who spoke for the largest grouping of the Justices, though they did not constitute a majority of the Court.
Justice LeBel stated:
Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities.
It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted.…
Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search.…
Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of section 8.… Although the word “privacy” does not appear in the Charter, from the first days of its application, section 8 evolved into a shield against unjustified state intrusions on personal privacy.…
My concern is that the approach adopted by my colleagues in this case will in practice jeopardize critical elements of the constitutional rights guaranteed by section 8 and of that section’s underlying values. Perhaps somewhat ironically, this erosion process would derive not from state action or from the laws of Parliament, but from decisions of the courts themselves.
Parliament’s Role and the Court’s Boundaries
Suppose Parliament enacted a law specifically allowing police to use sniffer dog alerts for unlawful drugs at public commuting terminals. Under the law, police, on an alert, would be permitted to search both a person and his or her luggage. If unlawful drugs were found, the law would permit the Crown to introduce the drugs in evidence in support of charges. How would a court determine the constitutionality of such a law under the Charter?
The key question goes to the justification of the law as a reasonable limit that can be justified in a free and democratic society — as set out in section 1 of the Charter. Justice LeBel, speaking for himself and three other justices in The Queen v. Kang-Brown, emphasized that such Parliamentary action gives the Crown the chance to put the reasoning, the facts, and the need for such a law as a reasonable limit on privacy to the Court. He wrote:
A statutory provision on the appropriate use of sniffer dogs in law enforcement … might require justification under section 1 [of the Charter], but state action would not be foreclosed so long as the standard for justification was met under the relevant constitutional test. A requirement that Parliament act first would put the courts in a better position to address the competing interests at play and would ensure that the justification process meets constitutional standards. The extension of common law police powers as proposed in this case would shortcut the justification process and leave the Court to frame the common law rule itself without the full benefit of the dialogue and discussion that would have taken place had Parliament acted and been required to justify its action.
Moreover, this is a case where the courts are ill-equipped to develop an adequate legal framework for the use of police dogs. In determining where the proper balance lies between the protection of privacy and effective law enforcement, the courts will be hampered by the fact that little is known about investigative techniques using sniffer dogs. Indeed, the record remains singularly bereft of useful information about sniffer dogs. The available information is in essence limited to the facts that they are used for investigative purposes in a variety of circumstances and that police officers believe in their overall reliability and to the praise of a particular dog deployed at the Calgary bus station. From the record, however, and from some of the authorities cited by the parties, it appears that serious doubt has occasionally been cast on the reliability of sniffer dogs.… Despite this inadequate record, this Court is nonetheless being asked to curtail Charter rights for fear of leaving a void in the law and interfering with the use of a fairly widespread police investigative technique. The Court would create a new common law rule on the basis of little more than unverified and, for us in this appeal, unverifiable assumptions.
Courts ought to avoid relying on such a weak and inadequate record as a basis for justifying an intrusion on privacy rights. A downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion in these circumstances and on the basis of this record might lead to an even looser test of “generalized suspicion,” which is in fact the standard adopted by one of the dissenting judges in this appeal. It would also tend to limit privacy rights to the possibility of obtaining some kind of remedy after the fact. Perfunctory excuses would be of little comfort to passengers and passers-by inconvenienced by an unfounded sniff and its consequences. The result would verge on honouring reasonable and probable cause in principle, while gutting it in practice through an even wider use of a standard of reasonable suspicion.
The constitution of Canada, including the Charter, is fundamental to our life in this country. The Court needs to have facts that are clear so that constitutional questions can be developed, argued, and decided in ways that will give a certain precedent to the decisions.
References and Further Reading
* Cited by the Supreme Court of Canada.
Amsterdam, Anthony G. 1973–74. “Perspectives on the Fourth Amendment.” Minnesota Law Review 58: 349–477.*
“At Sea, but Keeping a Balance.” 2008. Globe and Mail, April 26.
Australia. New South Wales. 2006. Review of the Police Powers (Drug Detections Dogs) Act 2001. Sydney: New South Wales Ombudsman.*
Australia. New South Wales. 2004. Discussion Paper: Review of the Police Powers (Drug Detections Dogs) Act. Sydney: New South Wales Ombudsman.*
Bird, Robert. 1996–97. “An Examination of the Training and Reliability of the Narcotics Detection Dog.” Kentucky Law Journal 85: 405–33.*
Brennan, Richard. 2008. “Random Searches Curbed.” Toronto Star, April 26.
Bryson, Sandy. 2000. Police Dog Tactics. 2nd ed. Calgary: Detselig Enterprises.*
Davis-Barron, Sherri. 2007. “The Lawful Use of Drug Detector Dogs.” Criminal Law Quarterly 52: 345–91.*
Eden, Robert S. 1993. K9 Officer’s Manual. Calgary: Detselig Enterprises.
Katz, Lewis R. 1989–90. “In Search of a Fourth Amendment for the Twenty-First Century.” Indiana Law Journal 65, no.3: 549–90.*
Katz, Lewis R., and Aaron P. Golembiewski. 2006–7. “Curbing the Dog: Extending the Protection of the Fourth Amendment to Police Drug Dogs.” Nebraska Law Review 85: 735–92.*
Kerr, Ian, and Jena McGill. 2007. “Emanations, Snoop Dogs and Reasonable Expectations of Privacy.”
