PFlynn
New Member
A dog is a man's best friend. What about a sniffer dog? In the past, Canada's Supreme Court has ruled that - where police don't know drugs are present in a school, or - where police have an "ops" running to pick out drug couriers at a bus station, and a target gives the officer an "elongated stare" then "turns and looks back" at the officer any drugs a sniffer dog finds are excluded as evidence, and the alleged dealer walks. Walks Scot free ( though being a Scot myself, I never did like that phrase ). Basically, Canada's highest court has ruled that a dog is a man's constitutional best friend, or if you wish, a sniffer dog is a drug dealer's constitutional best friend. Who would've known?
WHAT HAPPENED IN THE SNIFFER DOG CASES THE SUPREME COURT DECIDED ON FRIDAY
The High School Case: R. v. A.M.
In 2000, the principal of St. Patrick's High School advised the Youth Bureau of the Sarnia Police that if ever the police had sniffer dogs available to bring into school to search for drugs, they were welcome to do so. The school had a zero tolerance policy for possession and use of drugs and alcohol. In November, 2002, three police officers accepted the open invitation and showed up with their canines. The principal gave them permission to go through the school. The police had no knowledge that drugs were present in the school -- only a hunch -- and would not have been able to obtain a warrant to search the school had they sought one.
The search took place while all the students were confined to their classrooms. In the gymnasium, the sniffer dog reacted to one of the unattended backpacks lined up against a wall. Without obtaining a warrant, the police opened the student backpack and found drugs and drug paraphernalia. They charged the student who owned the backpack with possession of marijuana and psilocybin ( known colloquially as magic mushrooms ) for the purpose of trafficking.
The Bus Station Case: R. v. Kang-Brown
An RCMP officer involved in a special operation to detect drug couriers at bus stations observed Kang-Brown come off a bus at the Calgary Greyhound station. When the officer found Kang-Brown's behaviour suspicious, he signaled to another officer who had a sniffer dog to approach. The dog detected the presence of drugs in Kang-Brown's backpack. He was arrested for possession of and/or trafficking in drugs.
WHAT THE COURTS BELOW THE SUPREME COURT OF CANADA DECIDED
The High School Case: R. v. A.M.
At trial, the accused student brought an application for exclusion of the evidence, arguing that his rights under section 8 of the Canadian Charter of Rights and Freedoms had been violated. The youth court judge agreed, finding two unreasonable searches: the search conducted with the sniffer dog and the search of the backpack. The judge also found the search was conducted by the police, not the school authorities, and excluded the evidence acquitting the accused.
The Ontario Court of Appeal upheld the acquittal on the basis that this was a warrantless, random search not authorized by either the criminal law or the Education Act. It was deemed a serious breach of the Charter and the court cautioned that admitting the evidence would bring the administration of justice into disrepute.
The Bus Station Case: R. v. Kang-Brown
The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and so entered a conviction: "with respect to the dog sniff and ensuing physical search, there was no evidence that Kang-Brown had a subjective expectation of privacy in the contents of his bag." The trial judge also found that odour is a voluntary exposure of information, and that no person can have a reasonable expectation of privacy in what he or she knowingly exposes to the public.
The Alberta Court of Appeal upheld the conviction.
WHAT THE SUPREME COURT OF CANADA DECIDED ON FRIDAY
The Court split 6-3 in both decisions. Nine judges heard the case and four judges wrote separate judgments. I'll save you a sleep-inducing summary of the Court's constitutional analysis of sections 8 and 24( 2 ) of the Charter -- let's simply ( irreverently ) say the Charter is like the lamppost to the intoxicated -- it can be used for either illumination or support. But, in the meantime, here's a quick summary.
The High School Case: R. v. A.M.
The majority of the Court dismissed the Crown's appeal with Justices Deschamps and Rothstein dissenting on exclusion of the evidence because in their view the dog sniff of the backpack at a school did not amount to a search. Justice Bastarache joined the majority view that the dog sniff in the these circumstances was a "search" within the meaning of sectoion 8 of the Charter and such search violates section 8 of the Charter but he was alone in finding the final judge had erred in excluding the evidence pursuant to section 24( 2 ) of the Charter. In his view, the trafficking charges against the student were serious and even more serious in a school setting so he would have allowed the evidence as crucial to the Crown's case.
The Bus Station Case: R. v. Kang-Brown
All members of the Court agreed that the dog sniff of the passenger's bag at the bus station amounted to a search within section 8 of the Charter ( some judges opined that the police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion or generalized suspicion while others found that there was no authority at common law for the sniffer-dog search in this case ) and a majority of the Court concluded that the sniffer-dog search violated section 8. A majority also found that in the circumstances of the case, the evidence should be excluded pursuant to section 24( 2 ) of the Charter.
FUTURE IMPACT: JUDGE-MADE LAW; POLICE INVESTIGATIONS
In these cases, there is much discussion of the role of courts in changing the law. As recognized by Justice LeBel: "Courts make and change the law . Much of what is recognized as 'law' is actually, in one form or another, judge-made law . The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power." This explicit recognition of judge-made law will undoubtedly be relied upon by counsel who seek future important changes in the law.
Justice Binnie characterized such a drug search as part of "routine crime investigation" and contrasted searching for illicit drugs to less routine police work involving explosives, guns or other public safety issues in schools. He also found the Crown's comparison of dog sniffers to remote infrared camera techniques unhelpful. "What is required is to strike an appropriate balance between the state's need to search ( whether the need be public safety, routine crime investigation or other public interest ) against the invasion of privacy which the search entails, including the disruption and prejudice that may be caused to law-abiding members of the public, whether travelling ( as in Kang-Brown ) or in the schools ( as here ) or in the peace and quiet of their own homes."
CONCLUSION: A DEALER'S BEST FRIEND
While some may sleep better knowing the fundamental constitutional principles of individual rights are upheld, others might not sleep quite as well knowing drug dealers are well protected from sniffer dogs at school and in the bus station. Man's best friend indeed.
Source: National Post (Canada)
Copyright: 2008 Southam Inc.
Contact: letters@nationalpost.com
Website: National Post | Canadian News, Financial News And Opinion
WHAT HAPPENED IN THE SNIFFER DOG CASES THE SUPREME COURT DECIDED ON FRIDAY
The High School Case: R. v. A.M.
In 2000, the principal of St. Patrick's High School advised the Youth Bureau of the Sarnia Police that if ever the police had sniffer dogs available to bring into school to search for drugs, they were welcome to do so. The school had a zero tolerance policy for possession and use of drugs and alcohol. In November, 2002, three police officers accepted the open invitation and showed up with their canines. The principal gave them permission to go through the school. The police had no knowledge that drugs were present in the school -- only a hunch -- and would not have been able to obtain a warrant to search the school had they sought one.
The search took place while all the students were confined to their classrooms. In the gymnasium, the sniffer dog reacted to one of the unattended backpacks lined up against a wall. Without obtaining a warrant, the police opened the student backpack and found drugs and drug paraphernalia. They charged the student who owned the backpack with possession of marijuana and psilocybin ( known colloquially as magic mushrooms ) for the purpose of trafficking.
The Bus Station Case: R. v. Kang-Brown
An RCMP officer involved in a special operation to detect drug couriers at bus stations observed Kang-Brown come off a bus at the Calgary Greyhound station. When the officer found Kang-Brown's behaviour suspicious, he signaled to another officer who had a sniffer dog to approach. The dog detected the presence of drugs in Kang-Brown's backpack. He was arrested for possession of and/or trafficking in drugs.
WHAT THE COURTS BELOW THE SUPREME COURT OF CANADA DECIDED
The High School Case: R. v. A.M.
At trial, the accused student brought an application for exclusion of the evidence, arguing that his rights under section 8 of the Canadian Charter of Rights and Freedoms had been violated. The youth court judge agreed, finding two unreasonable searches: the search conducted with the sniffer dog and the search of the backpack. The judge also found the search was conducted by the police, not the school authorities, and excluded the evidence acquitting the accused.
The Ontario Court of Appeal upheld the acquittal on the basis that this was a warrantless, random search not authorized by either the criminal law or the Education Act. It was deemed a serious breach of the Charter and the court cautioned that admitting the evidence would bring the administration of justice into disrepute.
The Bus Station Case: R. v. Kang-Brown
The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and so entered a conviction: "with respect to the dog sniff and ensuing physical search, there was no evidence that Kang-Brown had a subjective expectation of privacy in the contents of his bag." The trial judge also found that odour is a voluntary exposure of information, and that no person can have a reasonable expectation of privacy in what he or she knowingly exposes to the public.
The Alberta Court of Appeal upheld the conviction.
WHAT THE SUPREME COURT OF CANADA DECIDED ON FRIDAY
The Court split 6-3 in both decisions. Nine judges heard the case and four judges wrote separate judgments. I'll save you a sleep-inducing summary of the Court's constitutional analysis of sections 8 and 24( 2 ) of the Charter -- let's simply ( irreverently ) say the Charter is like the lamppost to the intoxicated -- it can be used for either illumination or support. But, in the meantime, here's a quick summary.
The High School Case: R. v. A.M.
The majority of the Court dismissed the Crown's appeal with Justices Deschamps and Rothstein dissenting on exclusion of the evidence because in their view the dog sniff of the backpack at a school did not amount to a search. Justice Bastarache joined the majority view that the dog sniff in the these circumstances was a "search" within the meaning of sectoion 8 of the Charter and such search violates section 8 of the Charter but he was alone in finding the final judge had erred in excluding the evidence pursuant to section 24( 2 ) of the Charter. In his view, the trafficking charges against the student were serious and even more serious in a school setting so he would have allowed the evidence as crucial to the Crown's case.
The Bus Station Case: R. v. Kang-Brown
All members of the Court agreed that the dog sniff of the passenger's bag at the bus station amounted to a search within section 8 of the Charter ( some judges opined that the police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion or generalized suspicion while others found that there was no authority at common law for the sniffer-dog search in this case ) and a majority of the Court concluded that the sniffer-dog search violated section 8. A majority also found that in the circumstances of the case, the evidence should be excluded pursuant to section 24( 2 ) of the Charter.
FUTURE IMPACT: JUDGE-MADE LAW; POLICE INVESTIGATIONS
In these cases, there is much discussion of the role of courts in changing the law. As recognized by Justice LeBel: "Courts make and change the law . Much of what is recognized as 'law' is actually, in one form or another, judge-made law . The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power." This explicit recognition of judge-made law will undoubtedly be relied upon by counsel who seek future important changes in the law.
Justice Binnie characterized such a drug search as part of "routine crime investigation" and contrasted searching for illicit drugs to less routine police work involving explosives, guns or other public safety issues in schools. He also found the Crown's comparison of dog sniffers to remote infrared camera techniques unhelpful. "What is required is to strike an appropriate balance between the state's need to search ( whether the need be public safety, routine crime investigation or other public interest ) against the invasion of privacy which the search entails, including the disruption and prejudice that may be caused to law-abiding members of the public, whether travelling ( as in Kang-Brown ) or in the schools ( as here ) or in the peace and quiet of their own homes."
CONCLUSION: A DEALER'S BEST FRIEND
While some may sleep better knowing the fundamental constitutional principles of individual rights are upheld, others might not sleep quite as well knowing drug dealers are well protected from sniffer dogs at school and in the bus station. Man's best friend indeed.
Source: National Post (Canada)
Copyright: 2008 Southam Inc.
Contact: letters@nationalpost.com
Website: National Post | Canadian News, Financial News And Opinion
