R v AM: Clarifying or Complicating Section 8 Jurisprudence?
In R v AM,  1 SCR 569 (“AM“), released on Friday, the Supreme Court of Canada (“SCC”), dismissed the Crown’s appeal, holding that the sniffer-dog search at issue violated section 8 of the Canadian Charter of Rights and Freedoms, and that the evidence gathered during the search should be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 [“Charter“]. This case was heard together with R v Kang-Brown,  1 SCR 456 (“Kang-Brown“), which concerned the use of a sniffer-dog to check the luggage of a traveller in a bus terminal. There are several common issues in these two cases, but I will only summarize the holding in AM, since it was particularly contentious. The SCC was split on many aspects of this appeal, particularly the issue of whether there is a common law power for sniffer-dog searches. Ultimately, a 6-3 decision was reached, but the underlying tensions with regard to s. 8 jurisprudence were not clarified in this case. It is possible that the sniffer-dog search issue may require further clarification in the future, given the tenuous nature of the holding in AM.
The facts of the case were as follows. St. Patrick’s High School in Sarnia implemented a zero-tolerance policy for possession and consumption of drugs and alcohol, which was then communicated to the students and their parents. In 2000, the school principal attempted to bolster this policy by advising the Youth Bureau of Sarnia Police Services that they were welcome to bring available sniffer-dogs to the school to search for drugs, and the police took him up on this offer on several occasions prior to the search at issue. On November 7, 2002, three police officers decided to again attend the school with a sniffer dog, though at trial, the officers admitted that they had no information that drugs were then present in the school, and had no grounds to obtain a search warrant. Similarly, while the principal had heard anecdotal reports from parents and neighbours that students were doing drugs, he also had no specific information as to whether drugs were present in the school on the day of the search in question.
When the police arrived to conduct the sniffer-dog search, the principal readily gave them permission to do so, and made a school-wide announcement that informed students of the presence of police, requesting that the students stay in their classrooms until the search was completed. During this time, the police searched the school gymnasium, which was empty of students but contained some backpacks. The sniffer-dog present in the gym, trained to detect heroin, marijuana, hashish, crack cocaine and cocaine, “alerted” to one of the backpacks by biting at it. The attending officers then physically searched through the backpack’s contents and located five bags of marijuana, a tin box containing another five bags of marijuana, a bag with approximately ten magic mushrooms (psilocybin), and a bag containing a pipe, lighter, rolling papers, and a roach clip. A.M.’s wallet was also in the bag, and he was identified and charged with possession for the purpose of trafficking marijuana and possession of psilocybin.
At trial in the Ontario Youth Justice Court, Hornblower J. held that there were no reasonable grounds to conduct the sniffer-dog search. Though he acknowledged that there is a reduced expectation of privacy in a school setting and that the police were not acting in bad faith, the rights of every student in the school were nevertheless violated as they were all subject to an unreasonable search. By weighing these factors, the youth court judge found that admitting the evidence would bring the administration of justice into disrepute, and excluded the evidence. At the Ontario Court of Appeal (“OCA”), it was similarly held that the search was unjustified, and the OCA agreed with the youth court judge’s decision to exclude the evidence.
At the SCC, the justices were split 6-3 in favour of dismissing the appeal (with one dissenter, Justice Bastarache, allowing the appeal on the “limited basis” that the evidence ought to have been admitted under s. 24(2)). First, I will briefly summarize the findings on each issue. On the matter of whether the police possess a common law power to search using drug sniffer-dogs, four justices said that they have this power on the basis of a common law, Charter-compliant standard of reasonable suspicion, four said that there was no common law authority, and one said that this power exists on the common law standard of generalized suspicion. However, there was more agreement on the matter of whether the dog sniff of the backpack amounted to a search within s. 8 of the Charter; seven justices said that it did, while two said that it did not. With regard to whether the sniffer-dog search violated s. 8 of the Charter, the same seven found that it did, while the same two dissenters did not need to decide this question, given that they did not find that the sniff amounted to a search. Finally, a total of six justices held that the evidence gathered as a result of the search should be excluded under s. 24(2) of the Charter, two found that there was no need to determine the s. 24(2) issue because the sniff was not a search, and one held that the trial judge’s exclusion of the evidence under this section was erroneous.
More specifically, LeBel, Fish, Abella and Charron JJ. (whose reasoning is more fully elaborated upon in Kang-Brown) found that there was no statutory or common law authority for the sniffer-dog search, and that the search therefore violated s. 8. They did not think that it was up to the SCC to craft a legal framework for this type of search, and the evidence was properly excluded on the basis of s. 24(2).
McLachlin C.J. and Binnie J., conversely, held that the police do possess a common law authority to use sniffer-dogs in the appropriate circumstances. They provided the example of a school-wide gun or explosives investigation; in such a case, the public interest in dealing with the threat to public safety is greater than that in routine crime prevention, and using dogs trained for the purpose of such investigations would be warranted. The search in this case, according to McLachlin C.J. and Binnie J., fell within the framework of s. 8, because the subject matter of the sniff (a student’s backpack) is personal property. Students have a reasonable expectation of privacy in their backpacks, in that the contents of their backpacks should not to be open to the random and speculative scrutiny of the police.
These justices did acknowledge that a warrantless sniffer-dog search would be available where reasonable suspicion is demonstrated, but that the search in this case violated s. 8 because there was no such suspicion. McLachlin C.J. and Binnie J. found that the principal’s desire to advance a zero-tolerance policy against drugs was achieved at the expense of the privacy interests and constitutional rights of every student in the school. They specified that if the sniff was conducted on the basis of reasonable suspicion, and disclosed the presence of illegal drugs in the place of concealment, then the police would be able to confirm the accuracy of that suspicion with a physical search. Here, the police had no such suspicion.
In this fashion, McLachlin C.J. and Binnie J. stopped short of pronouncing fully on the reasonableness of sniffer-dog searches; rather, they honed in on the standard of reasonable suspicion. By clarifying that reasonable suspicion is the foundation for such searches, the conduct of a sniffer-dog search will be dealt with on a case-by-case basis. McLachlin C.J. and Binnie J. reasoned that the prior requirement of reasonable suspicion, coupled with after-the-fact judicial review, will be enough to determine whether a search was reasonable under s. 8.
As well, McLachlin C.J. and Binnie J. noted that abuse of this procedure will result in excluding the obtained evidence under s. 24(2). They deferred to the youth court judge’s decision on this issue, explaining that he had a greater awareness than appellate judges on the effect that admission or exclusion of the evidence would have on the administration of justice in his community. They were unwilling to interfere with his decision to exclude the ill-gotten evidence.
Overall, McLachlin C.J. and Binnie J. disagreed with LeBel, Fish, Abella and Charron JJ. with regard to whether there is a common law authority for sniffer-dog searches, but agreed that in this case, the search violated s. 8 and that its proceeds should be excluded under s. 24(2).
The dissenting opinion in AM also diverged in certain respects. Dissenters Deschamps and Rothstein JJ. found that the youth court judge and the OCA both erred in failing to consider the threshold issue of whether A.M. had a reasonable expectation of privacy that engaged s. 8. Deschamps and Rothstein JJ. held that he did not have a reasonable expectation of privacy in his backpack; accordingly, the appeal should be allowed and a new trial ordered as a result of this analytical oversight.
These justices utilized both a subjective and objective standard in coming to their conclusion on reasonable expectations of privacy. Subjectively, the accused did not have an expectation of privacy because students and parents had been made aware of the drug problem, the ensuing zero-tolerance policy, and the fact that sniffer-dogs might be used in the school to combat this problem. These facts were all well-advertised, according to the dissenters, and lowered the accused’s subjective expectation of privacy considerably. Additionally, the accused’s expectation of privacy was not objectively reasonable, primarily because the school had a known problem of drug use by students, the police were there at the request of the principal, and the dogs were used to search the premises, not the students.
With these facts in mind, Deschamps and Rothstein JJ. found that the accused’s objective expectation of privacy in his unattended backpack was “extremely low.” They also cited the following facts to augment their reasoning: the accused was not present at the time of the search (and there was no risk that the student would be personally searched), the backpack was left unattended and in plain view (so the search was less intrusive than if the bag was being worn or was in a locker), and the investigative technique was non-intrusive (in that the dog detected the presence of drugs in the backpack without it being opened).
In Bastarache J.’s dissent, he alternatively argued that the dog sniff was a search within the meaning of s. 8. The accused did have a reasonable expectation of privacy in his backpack, but his expectation was limited in that the dog sniff occurred at school, where a diminished expectation of privacy is assumed. As a result of this unique scholastic environment, where it is important to prevent and deter the presence of drugs, a random sniffer-dog search in a school would be reasonable where it is based on a lower standard of “generalized reasonable suspicion.”
Bastarache J. drew the line at the search in issue, however, arguing that the police cannot enter a school and conduct a search on the basis that drugs may be found. Bastarache J. specified that a generalized, ongoing suspicion does not exist in relation to schools, and it is therefore necessary for each random dog-sniff to be justified on the basis of a specific suspicion that drugs will be located in that location, at the time the search is performed. He further stated that the key inquiry in every instance is whether there is a sufficient basis upon which to form a reasonable suspicion about the presence of drugs at the time of the search. He found that in this case, the search of the backpack was unreasonable; though the students were aware of the zero-tolerance policy for drugs and that sniffer-dogs may be used, there was no evidence that the sniffer-dog search was founded on reasonable suspicion.
Finally, Bastarache J. differed from all other justices in holding that the trial judge erred in excluding the evidence under s. 24(2). Bastarache J. argued that the search was conducted in good faith, it was non-intrusive, and it occurred in a school environment where the students had a diminished expectation of privacy. The evidence was also non-conscriptive and did not affect trial fairness. He would have rendered the evidence admissible for these reasons.
The only definitive conclusion that can be reached from the foregoing analysis is that this decision does not clarify the law on sniffer-dog searches. While seven SCC justices have found that this specific search fell under the auspices of s. 8 and was unreasonable, much tension with regard to common law search powers, especially within school property, remains. More disconcertingly, within the slight majority of five justices that held that this common law power exists, two have pronounced that it should be analyzed on a case-by-case basis, and one created a schoolyard standard of “generalized reasonable suspicion.” It is clear that R v AM does little to untangle the web of s. 8 jurisprudence, and merely addresses the narrow parameters of its specific facts.
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