Two in-depth comments on the sniffer dog cases worth reading

Case analysis takes time, and my aim with this blog is typically to limited to posting case reports as timely and accurate news, and in a way that situates cases in their practical context. I also write predominantly for our base of institutional clients, who tend to want the bottom line and (surprise) represent institutional interests.

I blogged about the basic meaning of the Supreme Court of Canada’s sniffer dog cases last week. While I met my measure of success, two superior comments have been published this week by academics that you should read if you’re interested in going deeper into their subject matter.

James Stribopolous, an Osgoode Hall professor, situates the case in the context of the evolving law on ancillary police powers. Ian Kerr, who holds the Canada Research Chair in Ethics, Law and Technology, focuses on the other key aspect of the judgements – the search aspect. He’s critical of the outcome of the cases for their “reductionist” approach to assigning value to the information captured by a dog sniff – an approach which led the majority to a lesser standard for legality than “reasonable cause” and an approach that Mr. Kerr feels raises the spectre of increased surveillance by law enforcement based on new technologies.

Enjoy!

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

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.

SCC releases school search decision

The Supreme Court has just dismissed the appeal in R. v. A.M., a significant decision on school searches.

The case is significant for school boards because it may involve a re-visitation of a 1997 Supreme Court of Canada case called “M.R.M.”, where a majority of the Supreme Court recognized that teachers and principals must be able to react quickly to problems that arise in schools and, hence, should have greater search powers than those enjoyed by the police.

The facts in the A.M. case are very different from those in M.R.M. The search in A.M. was a police search, not a school board search as in M.R.M., and the facts in A.M. are quite extreme because the a sniffer dog search is both random (as it pertains to individuals) and routine (i.e. there was no specific incident which gave rise to a justification for the search).

In A.M., a principal extended an open invitation to police to come onto school property and conduct sniffer dog searches. On the day in question, the police called the principal and received permission to enter the school. Students were told to remain in their classrooms while the police conducted the search. While searching a gymnasium, a sniffer dog identified “A’s” backpack. The police opened it and found narcotics and drug paraphernalia. A was arrested and charged with possession for the purpose of trafficking.

At trial, the principal admitted that he did not have any reason to believe that drugs would be found in the gymnasium. He could only testify to a general suspicion that drugs would likely be found somewhere in the school.

A Youth Justice Court judge held that A’s right to be secure from unreasonable search and seizure was violated, and this finding was unanimously upheld by the Ontario Court of Appeal. The Court of Appeal held that the search was unlawful because it was a warrantless and unreasonable police search – i.e. since the police initiated the search the lower standard established by the Supreme Court in M.R.M. did not apply. However, the Court of Appeal also stated that the search would have been unlawful if conducted by the principal himself because the Education Act does not give principals (or other school board officers) the power to conduct random searches:

As set out above, counsel for the Crown asserts that the Education Act, the provincial Code of Conduct, the St. Clair Catholic School Board Policy and the school’s zero-tolerance policy provide the authority for a warrantless search in this case. This submission is premised on the ground that the search was a search by school authorities conducted through the agency of the police. However, even if this was a search by school authorities through the agency of the police, there is nothing in the Education Act and the subsidiary policies articulated in the other documents that gives the required authority to conduct such a search.

Though the facts in A.M. are extreme and the statement above is technically obiter (meaning it was a passing comment), the Supreme Court may also choose to make a comment on a school board’s power of search and its student’s expectation of privacy.

The award is 97 pages. I’ll read it and provide a summary on the weekend.

Case Report – Propriety of border crossing laptop search affirmed on appeal

Yesterday, the Ninth United States Circuit Court of Appeals overturned much-discussed order to suppress evidence obtained in a border crossing laptop search.

The case involves a traveller named Michael Arnold, who was routinely selected for secondary questioning after returning from a three week vacation in the Philippines. A border agent turned on Arnold’s computer and discovered photos of two nude women in folders on his desktop. She called in other officials, who then questioned Arnold and examined his computer some more, and ultimately seized the computer after finding what they believed was child pornography. Based on these facts, in 2006 a district court judge granted Arnold’s motion to suppress on a finding that there was no reasonable suspicion for the search.

The appeal from the lower court’s order centered on whether the Fourth Amendment requires the United States government to meet a “reasonable suspicion” standard in conducting border crossing laptop searches because laptops are different than other closed containers. The Court’s description of Arnold’s argument nicely highlights its significance:

Arnold argues that “laptop computers are fundamentally different from traditional closed containers,” and analogizes them to “homes” and the “human mind.” Arnold’s analogy of a laptop to a home is based on his conclusion that a laptop’s capacity allows for the storage of personal documents in an amount equivalent to that stored in one’s home. He argues that a laptop is like the “human mind” because of its ability to record ideas, e-mail, internet chats and web-surfing habits.

This was similar to an argument rejected by the Fourth Circuit Court of Appeals in a 2006 border crossing laptop search case called Ickes and reserved on by the Ninth Circuit Court of Appeals in a 2006 border crossing laptop search case called Romm.

In Arnold’s case, the Ninth Circuit Court of Appeals flatly rejected the laptop argument as contrary to United States Supreme Court jurisprudence, which it read as weighing against any analysis that would differentiate between the types of property searched at border crossings. In short, it held that property is property. It also held that Arnold had not adduced any evidence to support a finding that the search fit within the “exceptional damage to property” or “particularly offensive manner” exceptions to the United States government’s broad power to search property at its borders.

Law.com reports that an appeal may be in order.

United States v. Arnold, 08 C.D.O.S. 4533.

Case Report – SCC says no power to order costs of production order

Yesterday, the Supreme Court of Canada unanimously held that the Criminal Code‘s production order scheme does not allow a court to order that the police compensate a third party for the costs of compliance with a production order.

In 2004, the federal government passed Bill C-45, An Act to Amend the Criminal Code (capital markets fraud and evidence gathering). The Act created a new investigative tool called a “production order” by which third-parties may be required to produce documents, produce data or even prepare documents (based on existing data) for production. A production order is meant to be an easier-to-administer alterative to search warrants. The Department of Justice backgrounder on the Bill also says production orders are privacy-protective because they do not involve the fishing that’s associated with the execution of a search warrant.

The Court held that costs could not be ordered based on a reading of the statutory text in light of the relevant legislative history and the recognized social duty of citizens to assist in the administration of justice. It noted that the Department of Justice and the telecommunications industry had a dialogue before Bill C-45 was promulgated in which industry members requested an express jurisdiction to order costs.

The Court also held that standard for am exemption based on “unreasonable” burden should not be altered by establishing alternative criteria such as “undue hardship.” It held that reasonableness in the entire circumstances was a justiciable standard, noting that parties who are subject to frequent production orders may raise this fact as a relevant circumstance.

Tele-Mobile Company v. Ontario, 2008 SCC 12.

Case Report – Rise of citizen journalism does not devalue work of professional journalists…

…but law enforcement trumps all.

Yesterday, the Ontario Court of Appeal restored a search warrant and assistance order that was served on the National Post. Unless the order is stayed pending an appeal, it will require the Post’s editor-in-chief to provide the RCMP with document and envelope received from a confidential informant. The RCMP believes the document and envelope will contain evidence that could identify a person who committed a criminal conspiracy against former Prime Minister Jean Chretien.

In 2001, Andrew McIntosh from the Post received a document that appeared to be a Business Development Bank of Canada loan authorization for a $600,000 loan to the Auberge Grand-Mere. The document listed a $23,000 debt to “JAC Consultants,” a Chretien holding company. The auberge was in Mr. Chretien’s home riding, and he had previously admitted to contacting the BDB’s president to urge him to approve the loan.

McIntosh circulated copies of the document to the BDBC, to the Prime Minister’s Office and to Mr. Chretien personally the course of his investigation. Based on a comparison between its file copy of the document and what McIntosh provided, the BDBC complained to the RCMP that the document was a forgery. As part of its investigation, the RCMP sought the document and envelope. Although the allegedly forged communication had been widely distributed, it believed that document and envelope might contain fingerprints and DNA that would help it identity the sender. The RCMP obtained a search warrant and an assistance order that became the matter of the appeal. The Post resisted because McIntosh had promised anonymity to his informant (who simply passed the documents to him) and (so it appears) because he questioned the whether the disclosure would actually help the RCMP’s pursuit of the wrongdoer.

The Court of Appeal award turned on an analysis of the fourth “Wigmore criterion” – the final criterion for recognition of a case-by-case privilege, which asks whether the injury to the relationship between the parties to the communication that would flow from the disclosure is greater than the benefit gained from the correct disposal of the litigation. The Court held that it was appropriate to simply assess the Post’s Charter claim based on the Wigmore analysis because it required the same balancing of interests required by section 2(b) of the Charter.

The Court held that the judge who reviewed the search warrant erred in finding that balance weighed in favour of finding that the envelope and document were privileged because she wrongly inferred that there was only a speculative possibility that the documents would advance the investigation and wrongly disregarded the law enforcement interest at stake. In its reasoning, the Court held that an investigative journalist cannot insulate a potential wrongdoer from a law enforcement investigation by giving an absolute promise of confidentiality because this would lead to law enforcement’s role (and the court’s oversight of its role) being usurped:

McIntosh himself recognized that there must be at least some limits on the press’ entitlement to protect the confidentiality of its sources. That is why he told X that his promise of confidentiality would remain binding only so long as he believed that he was not being misled. However, once the court concluded that there were reasonable and probable grounds to believe the document was a forgery, McIntosh could not arrogate to himself the right to decide whether X was a wrongdoer.

Notably, the court rejected an argument that must have gotten the Post and the other participating media organizations backs’ up. The Crown had argued that citizen journalism was reason not to treat the journalist-source relationship as one which should be “sedulously fostered” under the third Wigmore criterion. The Court said:

We reject the Crown’s first contention. The case-by-case approach to privilege does not require us to establish the boundaries of legitimate journalism. The National Post is a recognized national news organization and McIntosh is a respected journalist. It can hardly be disputed that they fall within the class of persons who may be entitled to the benefit of journalist-confidential source privilege.

This comment is likely more interesting than significant, but the court’s Wigmore analysis goes more to the fundamental role of investigative journalists under the Charter. Members of the Fourth Estate are fierce defenders of this role, so we’ll see if they try for an appeal.

R. v. National Post, 2008 ONCA 139.

Case Report – NSCA says “Crown” must be implicated in search to be liable for costs

On January 18, the Nova Scotia Court of Appeal issued a significant judgement on Crown liability for costs on an application to quash a search warrant.

The Court held that the Crown in Right of Canada ought not to be liable for costs of on an application to quash an “ill-conceived and poorly executed” search warrant obtained and executed by the Canada Revenue Agency. It reached this conclusion because a Crown Attorney was not involved in the impugned investigation but, rather, had simply responded to the application to quash.

The Court also said that it did not matter the CRA is a deemed agent of the Crown under the Canada Revenue Agency Act because the basis for an award of costs is rooted in the special role of the Crown as prosecutor:

The basis of this general rule is not that the prosecutor might be an agent of the Crown and that an investigator might not be. The general rule is not based on the law of agency, but on strong reasons of public policy which I have already described, and which have been set out in the cases on many occasions: see, for example, Foster, supra at ¶ 62-65; and Ciarniello, supra, at ¶ 31-36. Whether by virtue of ss. 4(2) of the CRAA, the investigator here was or was not an agent of the Crown (a point I need not decide) does not change the general legal principle applicable to costs against the Crown in criminal matters.

The underlying facts involved a search based on a flawed Information and in which the CRA had seized records subject to solicitor-client privilege contained on computer and electronic storage devices.

R. v. Taylor, 2008 NSCA 5.

Government ordered to return electronic records seized under warrant

On December 11th, the Ontario Superior Court of Justice found the Ministry of Labour violated Booth Centennial Healthcare Linen Services’ section 8 Charter rights and ordered it to return electronic records seized under an extremely broad search warrant. Mr. Justice Corbett’s order states, “The search and seizure of electronic records in this case was grossly overbroad, in the circumstances. There was no evidence before me of the practicality of an on-site search for electronic records, an approach that, as a matter of common sense, ought to be possible in a case like this.” We expect supplementary reasons to be issued in January.