Is the Charter violated when police officers use "drug dogs" to sniff students’ backpacks in schools? On 22 May 2007, McCarthy Tétrault lawyers argued before the Supreme Court of Canada in R. v. A.M. [2008], SCC 19 (CanLII), and in companion case R. v. Kang-Brown [2008], SCC 18 (CanLII), that such police activity violates students’ Section 8 Charter rights, which guarantees the right to be free from unreasonable search and seizure.

In 2004, the Canadian Civil Liberties Association (CCLA) retained McCarthy Tétrault to represent the CCLA at the Ontario Court of Appeal hearing in R. v. A.M. In that case, the Ontario Provincial Police had entered a high school, detained all students in the school for almost two hours, and brought in drug dogs to search the school, as well as the students’ belongings.

The CCLA argued that while students might have some diminished expectations of privacy in a school setting, this police action not only violated their rights against unreasonable search and seizure, but also their rights not to be arbitrarily detained. The Court of Appeal agreed.

The Crown appealed the decision to the Supreme Court of Canada (SCC). The SCC upheld the Court of Appeal decision, holding that it was necessary to "strike an appropriate balance between the state’s need to search … against the invasion of privacy that the search entails." The SCC held that the use of drug-sniffing police dogs may be permissible in some circumstances, but that it was an impermissible violation of students’ rights to use the dogs without any reasonable and individualized suspicion.

McCarthy Tétrault Notes:

This ruling has important privacy implications. The SCC agreed with the CCLA that students have constitutionally protected rights. The SCC likened students’ backpacks to briefcases and purses, noting that:

No doubt ordinary businessmen and businesswomen riding 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.

Both the Ontario Court of Appeal and the SCC quoted the CCLA submissions that a "student’s backpack is in effect a portable bedroom and study rolled into one."