PFlynn
New Member
The Sniffer Dog, In Other Words, Is More Like An X-Ray Machine Peering Into Your Private Space. On Friday the Supreme Court of Canada delivered its first-ever jurisprudence on the relationship between police sniffer dogs and section 8 of the Charter of Rights, which guarantees the citizen against unreasonable police searches. Unfortunately, it did not deliver anything resembling a clear doctrine that police will be able to use in their day-to-day work, beyond establishing a couple of broad principles: that a sniff of a backpack or container is generally to be considered a "search" for section-8 purposes, and that completely random canine fishing expeditions probably will not pass Charter muster unless they are performed in places like airports, where visitors are made aware in advance that they enjoy a low expectation of privacy.
Beyond those axioms, the twin cases of Gurmakh Kang-Brown ( a man caught trying to carry heroin and cocaine through a Vancouver bus terminal ) and A.M. ( a Sarnia high school student who had pot and psychedelic mushrooms in an unattended backpack ) can only be described as having resulted in an unholy mess of disagreement. Both defendants won their appeals, but the arguments and counter-arguments they touched off cover everything from the fundamental nature of the judiciary to the philosophical differences between a dog's sense of smell and a human's.
This is not too surprising; the older debate in the U.S. over sniffer dogs and reasonable searches is an equally complicated one. The unfortunate thing is that the dogs shepherded the nine members of our Court into blocs of determined opinion, none commanding a majority. ( One infers a failed behind-the-scenes struggle, probably by the Chief Justice, to whip the Court into better order. )
In a strange turn of events, Justices LeBel, Fish, Abella, and Charron formed a liberal camp and argued that both searches violated section 8 and lacked any legal warrant even under the old common law, but they refused to participate in the formation of a general rule covering the constitutional use of sniffer dogs, citing the conservative-sounding ground 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."
Justices McLachlin and Binnie stuck together, agreeing that both searches violated section 8, but griping about the foursome's hands-off attitude and noting that it would be ridiculous to force cops to meet the same standard before deploying a sniffer dog that they would need for a search warrant. If they could get a warrant, after all, they wouldn't need the dog. They thus argued for a reduced standard of "reasonable suspicion"-- requiring an "expectation," falling short of a clear belief, that some particular person might be "engaged in a criminal activity" before putting him to the dog test.
The other three justices introduced their own quirks, with retiring Justice Bastarache taking particular pains to set himself apart from the rest of the group. Deschamps and Rothstein felt that in the A.M. case, the defendant enjoyed a reduced expectation of privacy because he was at a school, one where random drug searches were common, foreseeable and performed at the invitation of the principal. Similarly, in the Kang-Brown case, the pair accepted the police contention that the defendant had been acting suspiciously enough to make the use of a dog constitutional. Bastarache was less willing to agree with this, but all three agreed that the evidence from both searches should not have been excluded from trial, since any infringements on the defendants' rights would not really be severe enough to call justice into disrepute.
The above summary ( prepared with the help of a spreadsheet and several hand-drawn branching diagrams ) does not come close to capturing the nuances of the two cases, and what practical advice Canadian law enforcement is supposed to extract from it all, God knows. School administrators may be equally at sea despite the closest, most painful study of A.M. Ironically, things might have been much simpler if the justices had changed their minds about the one thing they all more or less agree on: that a sniff is a "search."
After all, if a police officer catches the sour scent of marijuana coming from your backpack, that isn't a search. Why should constitutional protections suddenly come into play when it's the officer's partner pup who catches the scent? The Court seems to feel that the dog's powerful scent organs create a qualitative, not merely quantitative, difference between its detection abilities and those of a human. As a corollary, says Justice Binnie in A.M., "The subject matter of the sniff is not public air space. It is the concealed contents of the backpack."
The sniffer dog, in other words, is more like an X-ray machine peering into your private space than it is like a mere mammal with a good nose. This is more debatable than they may realize. In one of his memoirs, the physicist Richard Feynman wrote memorably of how, as a young man, he once wondered how much better a dog's nose really was than a human's. Unwilling to shrug off such weird questions ( whose pursuit would eventually win him the Nobel Prize ), he ended up spending a day making controlled experiments with the help of his wife. He found, to his surprise, that a human who was unashamed to put his nose right up against things, and concentrate on odour with unaccustomed intensity, could perform canine-level feats of sensory inference. It would be interesting if a criminal defence lawyer were able to repeat experiments like Feynman's on a more rigorous basis in order to mount a conceptual challenge to the new A.M./Kang-Brown jurisprudence.
But even if a dog is somewhat like an X-ray, is that necessarily a problem? In the 2004 Tessling case, in which infrared imaging of the thermal interior of an otherwise unsuspicious home led to the discovery of a marijuana grow-op, the Court ruled unanimously that the technology used was "non-intrusive" and "mundane" at its then-current stage of development. If it is permissible for the police to "look" at the heat distribution within your home by means of the radiation emitted through the walls, should it not be that much more permissible for a dog to sample the air near a closed container?
Source: National Post (Canada)
Copyright: 2008 Southam Inc.
Contact: letters@nationalpost.com
Website: National Post | Canadian News, Financial News And Opinion
Beyond those axioms, the twin cases of Gurmakh Kang-Brown ( a man caught trying to carry heroin and cocaine through a Vancouver bus terminal ) and A.M. ( a Sarnia high school student who had pot and psychedelic mushrooms in an unattended backpack ) can only be described as having resulted in an unholy mess of disagreement. Both defendants won their appeals, but the arguments and counter-arguments they touched off cover everything from the fundamental nature of the judiciary to the philosophical differences between a dog's sense of smell and a human's.
This is not too surprising; the older debate in the U.S. over sniffer dogs and reasonable searches is an equally complicated one. The unfortunate thing is that the dogs shepherded the nine members of our Court into blocs of determined opinion, none commanding a majority. ( One infers a failed behind-the-scenes struggle, probably by the Chief Justice, to whip the Court into better order. )
In a strange turn of events, Justices LeBel, Fish, Abella, and Charron formed a liberal camp and argued that both searches violated section 8 and lacked any legal warrant even under the old common law, but they refused to participate in the formation of a general rule covering the constitutional use of sniffer dogs, citing the conservative-sounding ground 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."
Justices McLachlin and Binnie stuck together, agreeing that both searches violated section 8, but griping about the foursome's hands-off attitude and noting that it would be ridiculous to force cops to meet the same standard before deploying a sniffer dog that they would need for a search warrant. If they could get a warrant, after all, they wouldn't need the dog. They thus argued for a reduced standard of "reasonable suspicion"-- requiring an "expectation," falling short of a clear belief, that some particular person might be "engaged in a criminal activity" before putting him to the dog test.
The other three justices introduced their own quirks, with retiring Justice Bastarache taking particular pains to set himself apart from the rest of the group. Deschamps and Rothstein felt that in the A.M. case, the defendant enjoyed a reduced expectation of privacy because he was at a school, one where random drug searches were common, foreseeable and performed at the invitation of the principal. Similarly, in the Kang-Brown case, the pair accepted the police contention that the defendant had been acting suspiciously enough to make the use of a dog constitutional. Bastarache was less willing to agree with this, but all three agreed that the evidence from both searches should not have been excluded from trial, since any infringements on the defendants' rights would not really be severe enough to call justice into disrepute.
The above summary ( prepared with the help of a spreadsheet and several hand-drawn branching diagrams ) does not come close to capturing the nuances of the two cases, and what practical advice Canadian law enforcement is supposed to extract from it all, God knows. School administrators may be equally at sea despite the closest, most painful study of A.M. Ironically, things might have been much simpler if the justices had changed their minds about the one thing they all more or less agree on: that a sniff is a "search."
After all, if a police officer catches the sour scent of marijuana coming from your backpack, that isn't a search. Why should constitutional protections suddenly come into play when it's the officer's partner pup who catches the scent? The Court seems to feel that the dog's powerful scent organs create a qualitative, not merely quantitative, difference between its detection abilities and those of a human. As a corollary, says Justice Binnie in A.M., "The subject matter of the sniff is not public air space. It is the concealed contents of the backpack."
The sniffer dog, in other words, is more like an X-ray machine peering into your private space than it is like a mere mammal with a good nose. This is more debatable than they may realize. In one of his memoirs, the physicist Richard Feynman wrote memorably of how, as a young man, he once wondered how much better a dog's nose really was than a human's. Unwilling to shrug off such weird questions ( whose pursuit would eventually win him the Nobel Prize ), he ended up spending a day making controlled experiments with the help of his wife. He found, to his surprise, that a human who was unashamed to put his nose right up against things, and concentrate on odour with unaccustomed intensity, could perform canine-level feats of sensory inference. It would be interesting if a criminal defence lawyer were able to repeat experiments like Feynman's on a more rigorous basis in order to mount a conceptual challenge to the new A.M./Kang-Brown jurisprudence.
But even if a dog is somewhat like an X-ray, is that necessarily a problem? In the 2004 Tessling case, in which infrared imaging of the thermal interior of an otherwise unsuspicious home led to the discovery of a marijuana grow-op, the Court ruled unanimously that the technology used was "non-intrusive" and "mundane" at its then-current stage of development. If it is permissible for the police to "look" at the heat distribution within your home by means of the radiation emitted through the walls, should it not be that much more permissible for a dog to sample the air near a closed container?
Source: National Post (Canada)
Copyright: 2008 Southam Inc.
Contact: letters@nationalpost.com
Website: National Post | Canadian News, Financial News And Opinion
