Introduction

In a recent case, the Supreme Court of Canada examined whether a drug-detector or “sniffer” dog search of student property undertaken by the police at a school was reasonable. On April 25, 2008, the Court released its decision that the search violated provisions of the Canadian Charter of Rights and Freedoms, protecting against unreasonable search and seizure.

The principal of St. Patrick’s High School in Sarnia had issued a standing invitation to the Sarnia Police Force to come into the school, if they had drug-detector dogs available, to conduct a search. St. Patrick’s High School had a zero tolerance policy for drugs. Students were aware of the policy and were also aware that, to enforce the policy, the school authorities could resort to the use of police officers with drug-detector dogs.

On November 7, 2002, police officers from the City of Sarnia Police Force and the Ontario Provincial Police arrived at the school. The principal was not aware that the police were coming to the school. The officers arrived with their dog and asked for permission to search for drugs. The principal gave them that permission and, to facilitate the search, announced over the school’s P.A. system that a search was about to be conducted, and directed students to remain in their classrooms while the search was carried out. The police conducted the search in a manner they determined to be appropriate and, once finished, asked the principal if there were other areas he wanted searched. He directed the officers to one of the school gymnasiums.

One of the teachers accompanied certain police officers to the gymnasium where a drug-detector dog identified a specific backpack in the gym. The police officer searched the backpack and found five bags of marijuana and a container with another five bags of marijuana. He also found ten magic mushrooms and a drug known as psilocybin. The backpack in which the drugs were found belonged to a student, A.M.

At trial, counsel for A.M. moved to exclude the evidence of the drugs found in the backpack on the basis that the search by police was unreasonable and therefore offended section 8 of the Canadian Charter of Rights and Freedoms. The trial judge accepted the submissions of counsel and excluded the evidence related to the drugs. As a result, A.M. was acquitted of the charges.

The majority of the Supreme Court of Canada, in a 6:3 decision, held that police must have a reasonable suspicion that an individual has a narcotic before they can conduct a search with sniffer dogs. While the Court was divided on the application of legal principles, seven justices agreed that the random dog sniff of the backpack amounted to a search that violated section 8 of the Charter. Six of those seven justices then ruled the evidence should be excluded under section 24(2) of the Charter.

Justice LeBel, writing for the majority, noted that there was no statutory or common law authority for the search, nor was it conducted on proper grounds as set out in R. v. M. (M.R.). He made the following comments about the expectation of privacy at school:

Students are entitled to privacy even in a school environment. Entering a schoolyard does not amount to crossing the border of a foreign state. Students ought to be able to attend school without undue interference from the state, but subject, always, to normal school discipline.

  In the majority’s view, any legal framework for the use of sniffer dogs in schools should be created by Parliament, and not by the courts. In separate reasons for judgment, Justice Binnie, with Chief Justice McLachlin concurring, reasoned that backpacks objectively command a measure of privacy because of their role in the lives of students. Students expect the contents of their backpacks will not be open to random and speculative scrutiny by police, which is a reasonable expectation that society should support. He rejected the Crown’s arguments that there is no expectation of privacy because of the close supervision present in school settings. The student’s expectation of privacy was not lessened in the school setting, nor did the student abandon his expectation of privacy by leaving his backpack in the gymnasium.

Judge Binnie said: “As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. He went on to state:

No doubt ordinary businessmen and businesswomen riding along on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of their briefcases could randomly be inspected by the police without “reasonable suspicion” of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy.

Justice Binnie accepted the trial judge’s finding of fact that this was a random and speculative search. He said:

What was done here may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero tolerance policy. But these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school, as the youth court judge and the Court of Appeal pointed out. The Charter weighs over values, including privacy, against an appetite for police efficiency. A hunch is not enough to warrant a search of citizens or their belongings by police dogs.

Justice Binnie ruled that the police are entitled to use sniffer dogs based on a reasonable suspicion in the context of a routine criminal investigation. If there are no grounds for reasonable suspicion, the use of sniffer dogs will violate the section 8 reasonableness standard. Justice Binnie said that where there are grounds for reasonable suspicion, the police should not have to take their suspicions to a judicial official for prior authorization to use the dogs in an area where the police are already lawfully present.

If the sniffer-dog search is conducted on the basis of reasonable suspicion and discloses the presence of illegal drugs on a student or in a backpack or other concealed place, the police may confirm the accuracy of that information with a physical search. However, all searches are subject to after-the-fact judicial review if the student alleges there were no grounds for reasonable suspicion or the search was otherwise carried out in an unreasonable manner. In Justice Binnie’s view, there was no reasonable suspicion in R. v. M. (A.) and therefore the search was not authorized by statute or common law. The Court concluded that A.M. was improperly arrested and charged with possession of drugs for the purpose of trafficking. The Supreme Court of Canada agreed with the decision of the trial judge not to admit the evidence produced by the search.