A MAN'S (CONSTITUTIONAL) BEST FRIEND

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.