STRANGE JUSTICE

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?