Case Report – Companion sniffer dog cases establish reasonable suspicion search standard

27 Apr

On April 25th, the Supreme Court of Canada released two decisions involving Charter challenges to sniffer dog searches. Very briefly, R. v. Kang-Brown was about the search of an individual traveller’s luggage at a bus station based on a police officer’s observation of suspicious behavior. R. v. A.M. was about a routine sniffer dog search at a public school. In both cases, the Court found a violation of section 8 of the Charter and held that the evidence found should be excluded.

The two cases are primarily about about the legal rules for police use of sniffer dogs and, to some extent, “snooping technologies” that facilitate scanning for crimes outside of a targeted investigation.

On the key issue, the Court split 4-4, with Bastarache J. writing a swing judgement on his own. Lebel J. (with Fish, Abella and Charron JJ. on this point) held that the police have no common law authority to use sniffer dogs outside of an investigation based on reasonable and probable cause. Binnie J. (with McLachlin C.J. and Deschamps and Rothstein JJ. on this point) held that the police possess a common law power to search using sniffer dogs on the basis of a Charter compliant standard of “reasonable suspicion.” Bastarache J. held that the police posses a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of “generalized suspicion.” Bastarache J. also endorses the reasonable suspicion standard, so it appears the police may continue to use sniffer dogs without statutory enactment based on the reasonable suspicion standard.

Police powers and Charter constraints – reasonable suspicion standard prevails

On the main issue, A.M. is a better example of what was at stake. Binnie J. characterizes the sniffer dog search in A.M. as one used in a “routine criminal investigation.” Calling what happened in A.M. an “investigation” seems a slight misnomer because there was really no crime under investigation at all. The sniffer dog search was used by the police in A.M. as a type of surveillance tactic, with its purpose rooted in keeping the peace and preventing crime. “Routine criminal inspection” might be a more accurate description of how sniffer dogs were used in A.M., though the word “inspection” is ordinarily used to describe regulatory rather than police activity.

This was the problem. In fact, a concern about the use of search powers for keeping the peace (as opposed to investigating crime) arguably drives Lebel J.’s judgement. In both cases, he held that the police only have a common law power to engage in a search that is based on reasonable and probable cause. Although he does not reject the permissibility of search powers for purposes that will naturally involve less targeted suspicions, he says that such policing powers ought to based in statute, not the common law.

Binnie J. held that a requirement for reasonable and probable cause would render a longstanding law enforcement tool unusable, so the Court ought to recognize the power and subject the reasonable suspicion standard to Charter scrutiny. In Kang-Brown, he said:

… the “leave it to Parliament” approach ducks a practical and immediate problem facing law enforcement. Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog.

He held sniffer dog searches are Charter compliant when they meet the reasonable suspicion standard, characterizing a search with a well-trained and accurate dog as relatively unintrusive.

While Binnie J. states in Kang-Brown that the reasonable suspicion standard contemplates a suspicion “in relation to one or more members of a group of people closely linked in proximity to the crime,” in both cases Bastarache J. endorses a standard that is de-linked from individuals – the generalized suspicion standard. He says this standard is justifiable in environments such as public terminals and schools where there is a reduced expectation of privacy. In Kang-Brown, he explains:

In my view, it is, in some circumstances, appropriate for police to conduct random searches using sniffer dogs on the basis of generalized suspicion. Allowing this type of search recognizes the important role sniffer dogs can play not only in detecting crime but also in preventing and deterring crime. Given the accuracy and efficiency of sniffer-dog searches, it is reasonable to conclude that their known presence, or potential presence, at particular locations would have a significant preventative effect. Allowing random searches in certain situations also has the benefit of avoiding inappropriate profiling and reducing any embarrassment which may be associated with a targeted search. I agree with the finding in Simmons that there is no stigma attached “to being one of the thousands of travellers who are daily routinely checked” at border crossings (p. 517), and believe that that lack of stigma results in large part from the random nature of the search process.

School searches

A.M. was not resolved in a manner that significantly alters or speaks to the law regarding searches conducted by school boards themselves. When police search schools using sniffer dogs or conduct similar premises searches, it is now clear they must meet the reasonable suspicion standard. When school officials physically search individual students, based on the Supreme Court of Canada’s 1998 decision in M.R.M., they must meet a similar relaxed standard (which Binnie J. interestingly characterizes as the reasonable suspicion standard, though that term was not used in M.R.M.). Whether school boards (acting on their own and not through the police) can engage in routine searches of school premises is not yet clear.

A.M. does not speak to a school board’s own power to search school premises because it was clear that the search under review was initiated by the police. Despite this, Deschamps J. (with Rothstein J. on this point) held that the search in question did not affect a reasonable expectation of privacy such that it engaged a section 8 right to be free from unreasonable search. She stressed the difficult challenge school boards face in maintaining safety and order, that the search was supported by policy that was known to students and parents and the relatively unintrusive nature of a sniffer dog search. The other judges’ position seems to be represented by Binnie J., who rejects Deschamps J.’s argument by stating that it fails to recognize the difference between a school board exercising its authority to maintain a safe and orderly school environment and a police search. Without endorsing routine school board searches, Binnie J. reinforces the different function of a school board and implicitly leaves open the possibility that properly constructed and executed routine or generalized suspicion searches by school boards may be lawful. School boards should nonetheless be very cautious in embarking upon any such initiatives and should seek legal advice before proceeding.

R. v. Kang-Brown, 2008 SCC 18.

R. v. A.M., 2008 SCC 19.

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