Supreme Court Rules on "Sniffer Dogs"

7 posts / 0 new
Last post
Section 49
Supreme Court Rules on "Sniffer Dogs"


Section 49

[url=]R v. Kang-Brown[/url]

[url=]R v. A.M.[/url]

Another instance (following R v. Gibson) of the Court being generally unable to provide clear direction to lower courts, counsel, and law enforcement. 4 judges find that police need a "reasonable suspicion" before they can bring in sniffer dogs, 4 find that they need "reasonable and proable grounds", and 1 finds they need "Charter compliant general suspicion", whatever that is.

A.M. was the case where the school principal invited Sarnia police to come in with sniffer dogs and perform a school-wide sweep for drugs. That sort of police action is pretty clearly ruled out, at least. Kang-Brown involved the use of a sniffer dog on lockers at a bus station, and the Court held that that sort of search violated s.8 of the Charter (freedom from unreasonable search and seizure) as well.

Edited...damn, I put this in the wrong section. I apologize to the mods, please move to a more appropriate location.

[ 25 April 2008: Message edited by: Section 49 ]

M. Spector M. Spector's picture


Originally posted by Section 49:
[b]Another instance (following R v. Gibson) of the Court being generally unable to provide clear direction to lower courts, counsel, and law enforcement.[/b]

That's OK. Bastarache, the odd man out in these cases, is retiring and will be replaced with a loyal Harperite this summer.

Then the Supreme Court will be able to round up a solid Conservative majority as occasion requires.

M. Spector M. Spector's picture


Narcotics detected by sniffer dogs at an Alberta bus terminal and an Ontario high school cannot be used as evidence because the individuals involved had a reasonable expectation of privacy, the Supreme Court of Canada ruled in a pair of 6-3 decisions on Friday.

The majority said that police must have a reasonable suspicion that an individual has a prohibited substance before they can conduct a search with sniffer dogs.

The rulings are expected to give guidelines to police for the degree of reasonable suspicion they must have before they can conduct those searches in public places such as malls, stadiums and transportation terminals (other than airports, which have their own distinct rules).

"Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public," Mr. Justice Ian Binnie wrote for one faction of the majority in the Alberta case.

In the school case, the majority found that there is an expectation of privacy in a school environment — albeit an expectation that is less than in some public places.

"As with briefcases, purses and suitcases, backpacks are the repository of much that is personal — particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers," Judge Binnie said.

"No doubt, ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could be randomly inspected by the police without 'reasonable suspicion' of illegality.

"Because of their role in the lives of students, backpacks objectively command a measure of privacy," he said.

In his extensive set of reasons, Judge Binnie said that the relatively modest intrusion of a drug-sniffing dog requires police to have suspicions of possible criminal conduct that are "something more than a mere suspicion, and something less than a belief based upon reasonable and probable grounds.' In the Kang-Brown case, he said, the police action was "based on speculation."

Two of three dissenting judges — Madam Justice Marie Deschamps and Mr. Justice Marshal Rothstein — said, however, that there was nothing unconstitutional about the sniffer dog search.

In the school case, the sniffer dog was set loose on a pile of backpacks in the gymnasium.

The rulings carried a strong message that subtly intrusive invasions of privacy by police must be carefully monitored by the courts.

Coming during a period where the court has steadily drawn back from restraining police powers, the rulings are likely to be greeted with relief by civil libertarians.

Friday's ruling applies specifically to police powers in a criminal context. It leaves open the question of what school authorities can do on their own to conduct searches in the interests of school safety.



These decisions are not to be thought of as the triumph of civil liberties that most of the press coverage seems to depict.

Sure, the drug sniffing operation under the circumstances of the two cases was deemed to violate the Charter, but the most important part of the decisions from a legal point of view—the enunciation of a new standard in s. 8 analysis (which protects us from unreasonable searches and seizures)—unsurprisingly went totally unnoticed by the media.

What's happening here is that a slight majority (5 against 4) has seen it fit to lower the standard of review from "reasonable and probable grounds" to "reasonable suspicion" for cases with circumstances analogous to those of A.M. and Kang-Brown.

To answer Section 49's "question", Bastarache's "Charter compliant generalized suspicion" is an even [i]easier[/i] to satisfy form of McLachlin/Binnie/Deschamps/Rothstein's "reasonable suspicion".

Here's a quote from LeBel's reasons for the minority (on this aspect of the decision):


Nevertheless, in the leading cases on s. 8, the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because, as our Court found in Hunter v. Southam, “to determine the balance of competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would ... be seriously at odds with the purpose of s. 8”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (p. 160). Those constraints were — and in general still are, since this Court has never resiled from them — that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. La Forest J. strongly stated the view that, as a matter of principle, common law police powers were narrow and their extension is better be left to Parliament (R. v. Wong, [1990] 3 S.C.R. 36, at pp. 56-57). 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 s. 8 and of that section’s underlying values.


I will move this to...hmm. I guess the news section will be good.



Originally posted by M. Spector:
[b]That's OK. Bastarache, the odd man out in these cases, is retiring and will be replaced with a loyal Harperite this summer.

Then the Supreme Court will be able to round up a solid Conservative majority as occasion requires.[/b]

How do you figure that?

In both cases, six of the nine said the search violated s. 8 of the Charter and the evidence ought to be excluded.

Only two judges said that the search was constitutional in both cases - one of whom, incidentally, was appointed by Chretien.

Bastarache (also a Chretien appointee) said in one case that the search was constitutional, and in the other said that while the search violated s. 8, the evidence should nonetheless have been admitted. Hardly a raging lefty civil liberatrian.

All of this is by way of saying that there is virtually no way Bastarache's replacement will alter the balance of the Court.