Sniffing Out the Larger Implications of the Dog Sniff Cases

Last Friday the Supreme Court of Canada released judgments in a pair of cases involving the use of drug sniffing dogs by police: R. v. Kang-Brown, 2008 SCC 18 and R. v. A.M., 2008 SCC 19.

These decisions received considerable media attention, mostly for what they had to say about the constitutionality of police employing drug sniffing dogs. Lost in the media coverage, which was confused by the sheer length of the Court’s opinions and the fact that the justices issued four separate sets of reasons in each case, was a larger controversy regarding the role of the Supreme Court in the Charter era when it comes to the creation of new police powers. Before exploring that disagreement, it is helpful to have a more definite sense of what the SCC held with respect to the use of drug sniffing dogs.

Dogs “Search” When they Sniff for Narcotics
Most importantly, all nine justices (essentially) agreed that when a police dog trained to sniff out narcotics focuses its olfactory powers on an individual’s knapsack or luggage, the target’s reasonable privacy expectations are encroached upon. In other words, this constitutes a “search” for s. 8 Charter purposes, a conclusion that triggers the “reasonableness” requirements of the guarantee.

This conclusion may seem obvious to many readers. After all, if the dog isn’t “searching” when it is “sniffing” at someone’s bag what is the point of the sniff? Amazingly, however, the answer did not seem entirely clear cut as these two cases made their way before the SCC. This was because the United States Supreme Court long ago decided that dog sniffs do not constitute a “search” for Fourth Amendment purposes. In United States v. Place, 462 U.S. 696, 707 (1983) the USSC came to this conclusion because, as Justice O’Connor explained for the majority:

…the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.

Given this, there was concern that our top court might come to the same conclusion. More specifically, it was feared that the Court might draw too ready a parallel between the odour of drugs emanating from luggage and waste heat emanating from a home. In R. v. Tessling, [2004] 3 S.C.R. 432 police use of a heat detecting technology (the FLIR – “Forward Looking Infra-Red”) to detect unusual amounts of heat escaping from a home, a tell-tale sign of marihuana grow lamps, was held not to constitute a “search” for s. 8 purposes. The SCC characterized the information gleaned from the FLIR as meaningless because it could also be caused by poor insulation, a hot bath or a sauna. Thankfully, in Kang-Brown and A.M. the SCC recognized a significant difference between the use of the FLIR and the use of drug detecting dogs.

A properly trained dog is capable of telling its handler something extraordinarily meaningful, that a narcotic is being secreted. The SCC refused to follow the lead of its American counterpart, remembering its earlier precedents which make clear that the unlawful nature of the targeted conduct does not vitiate an individual’s reasonable privacy expectations (See e.g. R. v. Wong, [1990] 3 S.C.R. 36). To hold otherwise, Justice Binnie recognized, writing on behalf of a majority of the justices in Kang-Brown on this point, would mean that all Canadians, innocent or guilty, would henceforth be subject to having their persons and effects sniffed at by police drug detecting dogs, at the whim of law enforcement, whenever they happened to move through public spaces. This possibility, concluded Justice Binnie, is not at all in keeping with the idea of a free society.

“Reasonableness” and Drug-Sniffing Dog Searches

Consensus amongst the justices broke down, however, when it came to passing on what s. 8 of the Charter demands for such searches to be considered “reasonable”. R. v. Collins, [1987] 1 S.C.R. 265 long ago established that to be “reasonable” a search or seizure must satisfy three preconditions: 1) it must be authorized by law; 2) the law itself must be reasonable; and 3) it must be carried out in a reasonable manner.

Disagreement amongst the nine justices regarding the first and second preconditions in these cases is what led to four separate sets of reasons in each judgment.

With respect to the second requirement, what reasonableness requires with respect to the use of drug sniffing dogs, the justices were sharply divided.

Four of the justices (McLachlin C.J. and Binnie, Deschamps & Rothstein JJ.) were of the view that reasonable suspicion that a person is carrying narcotics is what s. 8 demands before a drug sniffing dog can be used by police. This bloc emphasized that relative to other kinds of searches, a dog sniff is comparatively less intrusive and therefore should be permitted on a less exacting standard than that normally required by s. 8, i.e. reasonable and probable grounds.

In contrast, four of the justices (LeBel, Fish, Abella & Charron JJ.) concluded that the reasonable and probable grounds standard is indeed what s. 8 requires, refusing to countenance a lessening of the standard in this context. For this bloc, even though physically less intrusive, the information gleaned through the use of drug sniffing dogs is just as private and worthy of protection as it would be if the police instead reached inside an individual’s pockets or looked inside their bag to probe for evidence.

The tie breaker on this important issue was Justice Bastarache. He went much further than Justice Binnie was prepared to go, agreeing that reasonable suspicion is indeed the appropriate standard but expressing the view that it need not be individualized to justify the use of such dogs. Rather, a generalized suspicion, for example that drugs are routinely being trafficked through a particular location (like a bus depot), would be enough to justify the use of drug detecting dogs to sniff at travelers and their belongings.

The effect of Justice Bastarche’s vote is that reasonable suspicion emerges as the controlling constitutional standard in this context. And, given that four of the justices insisted that it be of a particularized nature, the clear implication would seem to be that before police can use such dogs to sniff at an individual or her belongings, section 8 of the Charter requires that they possess reasonable grounds to suspect that the person is carrying narcotics on her person or inside her belongings.

The Larger Implications: the Fate of Judicially Created Police Powers

Disagreement amongst the justices also focused on the first Collins precondition, that a search or seizure must be authorized by law. No statute authorizes the use of drug sniffing dogs by police. As a result, legal authority for their use, if it exists, must be derived from the common law.

If one were to examine the “common law” as it has been historically understood in England and throughout the Commonwealth, i.e. the written reasons of judges from previously decided cases, one will find no mention of drug sniffing dogs. I do not mean to suggest by this that the common law is somehow static. To the contrary, the great genius of the common law system is indeed its organic nature. The ability of judges, using established tools of legal reasoning, to incrementally expand existing principles to take into account the changing needs of society.

Historically, when it came to government interfering with individual liberties, our courts were very reluctant to use their law-making authority to expand state powers. In fact, in this context, the common law courts traditionally showed much restraint. That restraint eventually became the bedrock of English constitutional law, taking the “principle of legality” as its label. Applying that principle common law courts have long insisted that any interference with individual liberty or property rights be premised on clear legal authority. Absent such authority, the common law erred on the side of individual freedom. It is in this sense that the common law has been viewed as “the law of liberty”.

In the search and seizure context the principle of legality has a very long lineage. It can be traced all the way back to Entick v. Carrington, (1765), 19 St. Tr. 1029, one of the earliest and most celebrated search cases. In that judgment the court refused a government request that it recognize, for the first time, an entirely unprecedented power on the part of the Secretary of State for the Northern Department to issue search warrants. In rejecting that request, Lord Chief Justice Camden remarked:

What would the parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be, not judgment, but legislation.

This same approach carried forward to Canada. In the early years of the Charter there was only one anomalous exception: R. v. Dedman, [1985] 2 S.C.R. 2. In that case a slim (5 judge) majority of the SCC seized on a relatively obscure decision of the English Court of Criminal Appeals, R. v. Waterfield, [1964] 1 Q.B. 164 (Ct. Crim. App.), which had set down a two part test for assessing whether a police officer was acting in “execution of his duty.” (This was an element of the offence charged in that case.) In Dedman, however, the majority fastened on this test, and the cost-benefit analysis that it endorsed, transforming it into a bases for recognizing entirely new police powers. The power ultimatedly recognized in Dedman was the authority of police to conduct sobriety check-stops. Justice Dickson wrote a scathing dissent, reminiscent of Justice Camden’s opinion in Entick v. Carrington, in which he admonished the majority for taking on a law-making role that belonged more appropriately to Parliament.

For a while, at least, the law-making authority that Dedman recognized seemed to lay dormant. In the interim, the Supreme Court of Canada repeatedly refused to recognize new police powers in response to Charter challenges under s. 8, thereby engaging Parliament in a form of dialogue that led to the creation of a number of much needed legislated search powers. (I have chronicled all of this elsewhere, see James Stribopoulos, “In Search of Dialogue: The Supreme Court, Police Powers and the Charter” (2005) 31 Queen’s L.J. 1). During this period the Supreme Court sent strong signals that it would not again use the ancillary powers doctrine to create new police powers. As Justice LaForest explained, on behalf of the majority in Wong,

The common law powers of search were extremely narrow, and the courts have left it to Parliament to extend them where need be … it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties. It falls to Parliament to make incursions on fundamental rights if it is of the view that they are needed for the protection of the public in a properly balanced system of criminal justice.

This is how things remained throughout most of the nineteen-nineties under the Lamer Court, with only one isolated exception (see R. v. Godoy, [1999] 1 S.C.R. 311, applying the Waterfield test to recognize a police power to enter private premises to investigate disconnected 911 calls).

The turning point seemed to come in R. v. Mann, [2004] 3 S.C.R. 59 when the Supreme Court used the ancillary powers doctrine to recognize a police power to briefly detain an individual if there are reasonable grounds to suspect that he is involved in recently committed or unfolding criminal activity. That power was combined with a limited protective pat-down search power, available where police have objectively based grounds to be concerned for their safety. Rather ironic was the SCC’s failure to acknowledge the extensive body of case law, cases that predated lower court developments that applied the Waterfield test to recognize an investigative detention power, which had clearly and consistently held that at common law there is no power to detain for investigative purposes short of actual arrest (see e.g. R. v. Esposito (1985) 24 C.C.C. (3d) 88 at 94).

With few exceptions, Mann has been widely criticized by commentators (myself included). The chief complaint regarding the decision is that it tends to raise more questions than it answers, and in the process creates much confusion and thereby increases the chances of unjustified and abusive police stops. (See e.g. “The Limits of Judicially Created Police Powers: Investigative Detention After Mann” (2007), 52 Criminal Law Quarterly 299). In this sense, it provides a textbook example of the problems inherent when the courts exceed their institutional capacities and begin creating entirely new and unprecedented police powers, taking on an almost legislative rather than judicial role.

Nevertheless, given the complexity of the issues raised by Mann, the case seemed to signal that any reluctance the SCC had periodically expressed about creating new police powers had fallen to the wayside. In its aftermath, the SCC has used the ancillary powers doctrine to recognize a number of entirely unprecedented police powers. (See R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3; relying on the ancillary powers doctrine, in part, to recognize a police power to ask drivers about their alcohol consumption and request their participation in field sobriety tests without first apprising them of their right to counsel; R. v. Clayton, 2007 SCC 32 .) Although Justices LeBel and Fish had expressed strong skepticism about this sort of ad hoc law-making in their dissenting judgment in Orbanksi & Elias, their vote in favour of recognizing a police power at “common law” to conduct roadblocks for criminal investigative purposes in Clayton seemed to signal a possible change of heart.

And then came the SCC’s decisions last Friday in Kang-Brown and A.M. Suddenly, for the first time since Dedman was decided, a debate broke out amongst the justices regarding the legitimacy and efficacy of using the ancillary powers doctrine to create new police powers.

In a concurring judgment in Kang-Brown, Justice LeBel (joined by Justices Fish, Abella & Charron) refused to use the ancillary powers doctrine to recognize a “common law” power on the part of police to use drug sniffing dogs. Although this bloc was prepared to address the minimum constitutional requirements that would need to be satisfied in order for any law authorizing this practice to be considered “reasonable” under s. 8, in a judgment strongly reminiscent of the SCC’s pronouncements in the late-eighties and early nineties, this group rejected the idea that it was the SCC’s role to fill the gaps in formal police powers. Justice LeBel explained at para. 12:

The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under s. 8 of the Charter.

Justice LeBel explained his reluctance, in this case, by noting that “the courts are ill-equipped to develop an adequate legal framework for the use of police dogs” (para. 15).

It is difficult to quarrel with these observations about the historic importance of the common law in protecting liberty and the need for courts to act with restraint before recognizing new police powers, especially where those powers would have complex and far-reaching consequences.

The only troubling aspect of Justice LeBel’s analysis is his failure to convincingly explain why it was appropriate in Mann and Clayton to use the ancillary powers doctrine in this way, whereas it was inappropriate to do so in these cases. The complexity of the various issues raised by investigative detention power (for example, the use of force to effect such detentions, the temporal and geographic limits on them, the difficulty in reconciling this power with the right to counsel on detention found in s. 10(b), and what, if any, corresponding obligations the power might impose on those detained etc.) suggests that, if anything, the dog sniff power is better suited for recognition under the ancillary powers doctrine than was investigative detention.

In his concurring reasons in Kang-Brown, Justice Binnie (joined by Chief Justice McLachlin) took exception to this sudden trepidation on the part of Justices LeBel, Fish, Abella and Charon. For Justice Binnie, use of the ancillary powers doctrine to create new police powers is part of a long tradition of “incremental” expansion of the common law. That doctrine simply provides courts with an analytical tool, like many such tools used by common law courts over time, to develop the law in a particular area (para. 50).

With respect, the difficulty with this view is that it largely ignores the fact that there is nothing at all “incremental” about how new police powers are created under the cost-benefit analysis supplied by the ancillary powers doctrine. The truth is, our courts have used the doctrine to create police powers out of whole cloth, powers that have no linkage to earlier judgments, and sometimes serve to implicitly overrule cases that pronounced on the absence of any such power (i.e. investigative detention providing the best example). This reality seems to contradict Justice Binnie’s rather charitable characterization of the ancillary powers doctrine.

In addition, Justice Binnie’s defence of the ancillary powers doctrine in Kang-Brown runs up against his rather frank acknowledgment in Clayton, where he agrees “with the critics that Waterfield is an odd godfather for common law police powers” (Clayton, supra, para. 75).

That said, Justice Binnie does seem to have the better argument at points. In his reasons in Kang-Brown he rightly complains that the approach advocated by Justice LeBel would breed even greater uncertainty, as litigants would have no way of knowing what approach the Court might be inclined to employ in a given case, one in which it is receptive to creating new police powers under the Waterfield test or one in which it insists on deferring such law-making responsibilities to Parliament (para. 22).

For Justice Binnie the question was long ago settled. The only way forward, he insists, is for the courts to “proceed incrementally with the Waterfield/Dedman analysis of common law police powers rather than try to re-cross the Rubicon to retrieve the fallen flag of the Dedman dissent” (para. 51).

One is left to wonder, however, whether “crossing the Rubicon” is ever an appropriate analogy when it comes to judicial decision-making. For example, would it have answered the claim made in Brown v. Board of Education 347 U.S. 483 (1958) that the United States Supreme Court had already crossed the Rubicon when it decided in Plessy v. Ferguson 163 U.S. 537 (1896) that “separate but equal” was consistent with the equal protection clause of the Fourteenth Amendment?

Or, looking for a more contemporary and Canadian example, how sound a response would it have been for the SCC in R v. Henry, [2005] 3 S.C.R. 609 to refuse to reconsider its earlier judgments because it had already crossed the Rubicon under s. 13 of the Charter by repeatedly embracing the unworkable incrimination versus impeachment distinction?

My point is, even questions that seem settled aren’t always so. In part, the long-term viability of any common law constitutional system very much depends on the authority and willingness of its final court of appeal to revisit established doctrine when experience has demonstrated that one of its earlier judgments is either being misconstrued or was wrongly decided. This seems especially true in a system such as ours in Canada where the Constitution is considered to be a “living tree”.

Just as important, for reasons going to its institutional integrity, the SCC must proceed with great caution before substantially revamping established precedent or taking the drastic step of overruling an earlier judgment. If the SCC appears too eager to revisit established principles then the authority of its judgments will be undermined and its institutional integrity will needlessly suffer. In other words, the institutional integrity of the SCC would seem to depend both on its willingness to reconsider its past decisions when the reasons for doing so are compelling and the resolve to refrain from doing so when they are not.

As Justice Patrick Healy has correctly pointed out, the ancillary powers doctrine crept into our law like “something of a trojan-horse for the expansion of police powers” (See Patrick Healy, “Investigative Detention in Canada”, [2005] Crim. L.R. 98). As a result, the debate that has finally broken out amongst the justices at the Supreme Court of Canada on its continued use and utility is most welcome and long overdue.

In Kang-Brown, Justice Bastarache clearly had no difficulty with the idea of the SCC being responsible for filling gaps in police powers. He was quite willing to grant the police this new power based on little more than generalized suspicion. With his impending retirement, it remains to be determined how his replacement might feel about the place of the ancillary powers doctrine within our constitutional democracy. This new justice may very well hold the decisive vote on the future of this controversial source of new police powers.

One thing is for sure, the Supreme Court of Canada will have plenty of opportunities in future to decide whether this doctrine should continue as a part of our law or whether the cases that facilitated its covert entry into our legal system should be overruled. This is because, in the absence of a comprehensive code of criminal procedure in Canada, which is unlikely as long as the SCC is willing to fill the gaps in police powers through its use of the ancillary powers doctrine, these sorts of cases will increasingly become a routine part of the Supreme Court of Canada’s work.