SUPREME COURT OF CANADA Citation: R. v. A.M., 2008 SCC 19 Docket: 31496



Source: http://scc.lexum.umontreal.ca/en/2008/2008scc19/2008scc19.html







SUPREME COURT OF CANADA





Citation: R. v. A.M., 2008 SCC 19


Date: 20080425

Docket: 31496




Between:

Her Majesty The Queen

Appellant

v.

A.M.

Respondent

- and -

Attorney General of Ontario, Attorney General of Quebec, Attorney
General

of British Columbia, Criminal Lawyers' Association (Ontario),
Canadian

Civil Liberties Association, St. Clair Catholic District School Board
and

Canadian Foundation for Children, Youth and the Law (Justice for
Children and Youth)

Interveners







Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish,
Abella, Charron and Rothstein JJ.









Reasons for Judgment: (paras. 1 to 2)



Partially Concurring

Reasons: (paras. 3 to 99)



Dissenting Reasons:

(paras. 100 to 149)



Dissenting Reasons:

(paras. 150 to 191)




LeBel J. (Fish, Abella and Charron JJ. concurring)

Binnie J. (McLachlin C.J. concurring)





Deschamps J. (Rothstein J. concurring)





Bastarache J.


Note: This document is subject to editorial revision before its
reproduction in final form in the Canada Supreme Court Reports.



______________________________



r. v. a.m.



Her Majesty The
Queen
Appellant



v.



A.M.
Respondent



and



Attorney General of Ontario, Attorney General of

Quebec, Attorney General of British Columbia, Criminal

Lawyers' Association (Ontario), Canadian Civil Liberties

Association, St. Clair Catholic District School Board and

Canadian Foundation for Children, Youth and the Law

(Justice for Children and
Youth)
Interveners



Indexed as: R. v. A.M.



Neutral citation: 2008 SCC 19.



File No.: 31496.



2007: May 22; 2008: April 25.



Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps,
Fish, Abella, Charron and Rothstein JJ.



on appeal from the court of appeal for ontario



Constitutional law -- Charter of Rights -- Search and seizure -- Sniffer
dogs -- Schools -- Police using sniffer dog to search school for illicit
drugs -- Positive alert by dog to student's backpack left in school
gymnasium leading to examination of content of backpack by police
officer, who confirmed presence of illegal drugs -- Whether dog sniff
constituted search of content of student backpack -- If so, whether
search reasonable -- If search unreasonable, whether evidence should be
excluded -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).



Police -- Police powers -- Investigating tools -- Sniffer dogs -- Whether
common law powers of police to investigate crime include use of
sniffer dogs.





The police accepted a long-standing invitation by the principal of a
high school to bring sniffer dogs into the school to search for drugs.
The police had no knowledge that drugs were present in the school and
would not have been able to obtain a warrant to search the school.
The search took place while all the students were confined to their
classrooms. In the gymnasium, the sniffer dog reacted to one of the
unattended backpacks lined up against a wall. Without obtaining a
warrant, the police opened the backpack and found illicit drugs. They
charged the student who owned the backpack with possession of cannabis
marihuana and psilocybin for the purpose of trafficking. At trial,
the accused brought an application for exclusion of the evidence,
arguing that his rights under s. 8 of the Canadian Charter of Rights
and Freedoms had been violated. The trial judge allowed the
application, finding two unreasonable searches: the search conducted
with the sniffer dog and the search of the backpack. He excluded the
evidence and acquitted the accused. The Court of Appeal upheld the
acquittal.



Held (Bastarache, Deschamps and Rothstein JJ. dissenting): The appeal
should be dismissed.



1. Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The
police possess a common law power to search using drug sniffer dogs on
the basis of a Charter compliant standard of reasonable suspicion.



Per Bastarache J.: The police possess a common law power to search
using drug sniffer dogs on the basis of a Charter compliant standard
of generalized suspicion.



Per LeBel, Fish, Abella and Charron JJ.: There was no authority at
common law for the sniffer-dog search in this case.



2. Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and
Charron JJ.: The dog sniff of the backpack at the school amounted to
a search within s. 8 of the Charter.



Per Deschamps and Rothstein JJ.: The dog sniff of the backpack at the
school did not amount to a search within s. 8 of the Charter.



3. Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish, Abella and
Charron JJ.: The sniffer-dog search of the backpack at the school
violated s. 8 of the Charter.



Per Deschamps and Rothstein JJ.: There is no need to determine
whether s. 8 of the Charter was violated because the dog sniff of the
backpack at the school did not amount to a search.



4. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron
JJ.: In the circumstances of this case, the evidence should be
excluded pursuant to s. 24(2) of the Charter.



Per Deschamps and Rothstein JJ.: There is no need to determine
whether the evidence should be excluded pursuant to s. 24(2) of the
Charter because the dog sniff of the backpack at the school did not
amount to a search.



Per Bastarache J.: The trial judge erred in excluding the evidence
pursuant to s. 24(2) of the Charter.



Per LeBel, Fish, Abella and Charron JJ: Students are entitled to
privacy in a school environment. Since there was no authority in the
statutes or at common law for the sniffer-dog search in this case, the
search violated s. 8 of the Charter. For the reasons stated in R. v.
Kang-Brown, 2008 SCC 18, our Court should not attempt to craft a legal
framework of general application for the use of sniffer dogs in
schools. As a result, the evidence was properly excluded under para.
24(2) of the Charter. [1-2]



Per McLachlin C.J. and Binnie J.: The police possess common law
authority to use sniffer dogs in appropriate circumstances. If the
police in this case had been called to investigate the potential
presence of guns or explosives at the school using dogs trained for
that purpose, the public interest in dealing quickly and efficiently
with such a threat to public safety would have been greater and more
urgent than routine crime prevention. [7] [37]







The dog sniff amounts to a search within s. 8 of the Charter. The
information provided when the dog is trained to alert to the presence
of controlled drugs permits inferences about the precise contents of
the source that are of interest to the police. The subject matter of
the sniff is not public air space. It is the concealed contents of
the backpack. 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. Teenagers may have little expectation of privacy from
the searching eyes and fingers of their parents, but they expect the
contents of their backpacks not to be open to the random and
speculative scrutiny of the police. This expectation is a reasonable
one that society should support. The guilty secret of the contents of
the accused's backpack was specific and meaningful information,
intended to be private, and concealed in an enclosed space in which
the accused had a continuing expectation of privacy. By use of the
dog, the policeman could "see" through the concealing fabric of the
backpack. [8] [62-63] [66-67]



Although a warrantless sniffer-dog search is available where
reasonable suspicion is demonstrated, the sniffer-dog search of the
students' belongings in this case violated their Charter rights under
s. 8. The dog-sniff search was unreasonably undertaken because there
was no proper justification. The youth court judge found that the
police lacked any grounds for reasonable suspicion and the Crown has
shown no error in the youth court judge's finding of fact. [91]





While the sniffer-dog search 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, these
objectives were achieved at the expense of the privacy interest (and
constitutional rights) of every student in the school. The Charter
weighs other values, including privacy, against an appetite for police
efficiency. Because of their role in the lives of students, backpacks
objectively command a measure of privacy, and since the accused did
not testify, the question of whether he had a subjective expectation
of privacy in his backpack must be inferred from the circumstances.
[15] [62-63]



In the context of a routine criminal investigation, the police are
entitled to use sniffer dogs based on a "reasonable suspicion". If
there are no grounds of reasonable suspicion, the use of the sniffer
dogs will violate the s. 8 reasonableness standard. Where there are
grounds of 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.
All "searches" do not have the same invasive and disruptive quality
and prior judicial authorization is not a universal condition
precedent to any and all police actions characterized as "searches"
given that the touchstone of s. 8 is reasonableness. Account must be
taken in s. 8 matters of all the relevant circumstances including the
minimal intrusion, contraband-specific nature and high accuracy rate
of a fly-by sniff. The warrantless search is, of course,
presumptively unreasonable. If the sniff is conducted on the basis of
reasonable suspicion and discloses the presence of illegal drugs on
the person or in a backpack or other place of concealment, the police
may confirm the accuracy of that information with a physical search,
again without prior judicial authorization. But all such searches by
the dogs or the police are subject to after-the-fact judicial review
if it is alleged (as here) that no grounds of reasonable suspicion
existed, or that the search was otherwise unreasonably undertaken.
[12-14]





Permitting the police to act on a standard of reasonable suspicion
within the framework of s. 8 will allow inappropriate conduct by the
dog or the police to be dealt with on the basis that although the
lawful authority to use the sniffer dog does exist, the search in the
particular case was executed unreasonably, and thereby constituted a
Charter breach, on the basis of which the evidence obtained may be
excluded. The importance of proper tests and records of particular
dogs will be an important element in establishing the reasonableness
of a particular sniffer-dog search. From the police perspective, a dog
that fails to detect half of the narcotics present is still better
than no detection at all. However from the perspective of the general
population, a dog that falsely alerts half of the time raises serious
concerns about the invasion of the privacy of innocent people. An
important concern for the court is therefore the number of any such
false positives. It is important not to treat the capacity and
accuracy of sniffer dogs as interchangeable. Dogs are not mechanical
or chemical devices. Moreover, the sniff does not disclose the
presence of drugs. It discloses the presence of an odour that
indicates either the drugs are present or may have been present but
are no longer present, or that the dog is simply wrong. In the
sniffer-dog business, there are many variables. [82] [84-85] [87-88]



In sniffer-dog situations, the police are generally required to take
quick action guided by on-the-spot observations. In circumstances
where this generally occurs, it is not feasible to subject the
"sniffer dog's" sniff to prior judicial authorization. Both the
subject and his suspicious belongings would be long gone before the
paperwork could be done. In the particular context of sniffer dogs,
there is sufficient protection for the public in the prior requirement
of reasonable suspicion and after-the-fact judicial review to satisfy
the "reasonableness" requirement of s. 8. [90]





The trade-off for permitting the police to deploy their dogs on a
"reasonable suspicion" standard without a warrant is that if this
procedure is abused and sniffer-dog searches proceed without
reasonable suspicion based on objective facts, the consequence could
well tip the balance against the admission of the evidence if it is
established under s. 24(2) of the Charter that, having regard to all
the circumstances, the admission of it in the proceedings would bring
the administration of justice into disrepute. Youth court judges have
a greater awareness than appellate judges do of the effect that
admission or exclusion of the evidence would have on the reputation of
the administration of justice in the community with which they deal on
a daily basis. Here, the youth court judge excluded the evidence. His
exclusion of the evidence should not be interfered with. [14] [90]
[98]



Per Deschamps and Rothstein JJ. (dissenting): In light of the
totality of the circumstances, the accused did not have in this case a
reasonable expectation of privacy that engaged s. 8 of the Charter,
and a new trial should be ordered. [140] [149]



While the use of the dog amounted to a search from an empirical
perspective, what the accused had to establish was whether that use
amounted to a "search" from a constitutional perspective. The pivotal
question in this appeal was thus whether the accused had a reasonable
expectation of privacy in respect of odours imperceptible to humans
that emanated from his unattended backpack in a school gymnasium.
This requires consideration of whether the accused had a subjective
expectation of privacy and whether his privacy interest was
objectively reasonable. [119] [128]





The accused did not have a subjective expectation of privacy.
Students and parents were made aware of the drug problem and the
zero-tolerance drug policy and of the fact that sniffer dogs might be
used. Dogs had in fact been used on prior occasions to determine
whether narcotics were present at the school. While school policy
must be implemented in a manner consistent with a legitimate
expectation of privacy, the well-advertised means devised and used by
the school reduced the accused's subjective expectation of privacy
very significantly. [129]





The accused's expectation of privacy was also not objectively
reasonable. First, the place where the search occurred was a school
with a known problem of drug use by students, both on and off school
property. The police were there with the permission (and at the
request) of the school's principal in furtherance of disciplinary
goals being pursued by the school in order to confront a systematic
drug problem. The dogs were used primarily to search the premises,
not the students. In these circumstances, the objective expectation of
privacy in respect of an unattended backpack on this school's property
was not only significantly diminished, but extremely low. Second, the
accused was not present at the time of the search. Since there were no
students in the school gymnasium at the time of the search, there was
no risk that the dog, on sniffing a backpack worn by a student, might
make a false positive indication leading to a -- more intrusive --
personal search of the student. Third, the accused's backpack was
left not only unattended, but also in plain view. While there is no
indication that the backpack was abandoned, the use of a sniffer dog
to check an unattended bag left in plain view is less intrusive than
the use of one to check a bag that is either worn or carried by an
individual, or is placed in a locked compartment out of plain view.
Fourth, the investigative technique was relatively non-intrusive. The
dog detected the presence of drugs in the accused's backpack without
the backpack being opened. Moreover, the dog was trained only to
detect drugs and find humans. It could not therefore convey any
information other than that there were drugs present. Thus, the use
of a sniffer dog in these circumstances was a less intrusive
investigative technique than simply opening the accused's backpack
without a prior positive indication by the dog. [130-131] [137-139]



Per Bastarache J. (dissenting): The dog sniff constituted a search
within the meaning of s. 8 of the Charter. The accused had a
reasonable, but limited, expectation of privacy in his backpack when
the dog sniff occurred, even though he was not carrying the backpack
at the time. A high school student who, like his classmates, leaves
his bag unattended continues to have a reasonable expectation of
privacy in its contents. It is relevant from an objective perspective
that the odour identified by the dog sniff was not accessible to
humans and that its detection provided immediate information about the
contents of the backpack. The accused's reasonable expectation of
privacy is, however, reduced by the fact that this dog sniff occurred
at the school. Students are aware of the importance both society at
large and school administrators place on the school environment, and
have a diminished expectation of privacy as a result. [157-159]





A random sniffer-dog search in a school would be deemed reasonable
where it is based on a generalized reasonable suspicion, providing a
reasonably informed student would have been aware of the possibility
of random searches involving the use of dogs. Schools are unique
environments and the application of this lower standard is appropriate
given the importance of preventing and deterring the presence of drugs
in schools to protect children, the highly regulated nature of the
school environment, the reduced expectation of privacy students have
while at school, and the minimal intrusion caused by searches of this
nature. However, the police cannot enter a school and conduct a
search whenever they please on the basis that drugs may be found there
on any given day. Reasonable suspicion requires more than a mere
hunch. Further, since a generalized, ongoing suspicion does not exist
in relation to schools, it is necessary for each random dog-sniff
search to be justified on the basis of a suspicion that drugs will be
located at that specific location at the specific time the search is
being performed. Although it is necessary that a dog-sniffer search
in a school be related to a reasonable suspicion that drugs will be
located on the premises at the time the search occurs, it is
unreasonable to expect that a sniffer-dog search will occur at the
precise moment that a reasonable suspicion is first formed. How long
the suspicion lasts will depend in large part on the nature of the
information received and on whether it is supplemented by additional
indicators that the presence of drugs continues. In every instance,
the key inquiry is whether there is a sufficient basis on which to
form a reasonable suspicion about the presence of drugs at the time
the search occurs. [152] [163-164] [168] [174-175]



In this case, the search of the accused's backpack was unreasonable.
The trial judge determined that the students were aware of the
zero-tolerance policy for drugs and that it may be enforced using
sniffer dogs, but there is no evidence that the sniffer-dog search
which led police to arrest the accused was founded on a current
reasonable suspicion that drugs would be found. The trial judge
concluded that school authorities had little more than a "reasonably
well-educated guess" that drugs would be at the school on the day the
search was conducted. The evidence likewise indicates that the police
themselves had no direct awareness as to the possible existence of
drugs at the school on the day the search occurred. [179-180]





Although the search violated s. 8 of the Charter, the trial judge
erred in excluding the evidence found in the accused's backpack
pursuant to s. 24(2) of the Charter. The search, which was conducted
in good faith and was non-intrusive in nature, occurred in an
environment where the expectation of privacy was diminished. The
evidence obtained was non-conscriptive in nature and did not affect
the fairness of the trial. [190]



Cases Cited



By LeBel J.



Applied: R. v. Kang-Brown, 2008 SCC 18; referred to: R. v. M.
(M.R.), [1998] 3 S.C.R. 393.



By Binnie J.





Applied: R. v. Kang-Brown, 2008 SCC 18; referred to: R. v. Tessling,
[2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Wong, [1990] 3 S.C.R. 36; R.
v. Edwards, [1996] 1 S.C.R. 128; R. v. Wise, [1992] 1 S.C.R. 527;
Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Katz v. United States,
389 U.S. 347 (1967); R. v. Collins, [1987] 1 S.C.R. 265; R. v. Dyment,
[1988] 2 S.C.R. 417; R. v. Plant, [1993] 3 S.C.R. 281 ; R. v. Mann,
[2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Caslake, [1998] 1 S.C.R. 51; R.
c. Kokesch, [1990] 3 S.C.R. 3; Kyllo v. United States, 533 U.S. 27
(2001); R. v. M. (M.R.), [1998] 3 S.C.R. 393; Terry v. Ohio, 392 U.S.
1 (1968); R. v. Colarusso, [1994] 1 S.C.R. 20; United States v. Place,
462 U.S. 696 (1983); United States v. Jacobsen, 466 U.S. 109 (1984);
Illinois v. Caballes, 543 U.S. 405 (2005); R. v. Buhay, [2003] 1
S.C.R. 631, 2003 SCC 30; R. v. Duarte, [1990] 1 S.C.R. 30; R. v.
Wiggins, [1990] 1 S.C.R. 62; R. v. Thompson, [1990] 2 S.C.R. 1111; Doe
v. Renfrow, 631 F.2d 91 (1980); R. v. Evans, [1996] 1 S.C.R. 8;
Thomson Newspapers Ltd. v. Canada (Director of Investigation and
Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R.
425; R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627; R. v.
Mellenthin, [1992] 3 S.C.R. 615; R. v. Clayton, [2007] 2 S.C.R. 725,
2007 SCC 32; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Lal (1998), 113
B.C.A.C. 47; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v.
Stillman, [1997] 1 S.C.R. 607.



By Deschamps J. (dissenting)



R. v. Kang-Brown, 2008 SCC 18; R. v. M. (M.R.), [1998] 3 S.C.R. 393;
R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Simmons,
[1988] 2 S.C.R. 495; R. v. Edwards, [1996] 1 S.C.R. 128; Dedman v. The
Queen, [1985] 2 S.C.R. 2; R. v. Campanella (2005), 75 O.R. (3d) 342;
Hunter v. Southam Inc., [1984] 2 S.C.R. 145.



By Bastarache J. (dissenting)



R. v. Kang-Brown, 2008 SCC 18; R. v. Evans, [1996] 1 S.C.R. 8; R. v.
Colarusso, [1994] 1 S.C.R. 20; R. v. Edwards, [1996] 1 S.C.R. 128; R.
v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Law, [2002] 1 S.C.R.
227, 2002 SCC 10; R. v. M. (M.R.), [1998] 3 S.C.R. 393; Dedman v. The
Queen, [1985] 2 S.C.R. 2; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52;
R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; Hunter v. Southam
Inc., [1984] 2 S.C.R. 145; R. v. Plant, [1993] 3 S.C.R. 281; R. v.
Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607; R.
v. Therens, [1985] 1 S.C.R. 613.



Statutes and Regulations Cited



Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).



Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 10(2)(a)
(iii).



Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 49.



Criminal Code, R.S.C. 1985, c. C-46, s. 254.



Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), ss. 98, 99.2.



Education Act, R.S.O. 1990, c. E.2, ss. 301(1), 306(1)(2), 309(1)(5).



Proceeds of Crime (Money Laundering) and Terrorism Financing Act, S.C.
2000, c. 17, ss. 15(1), 16(1), (2), 17(1).



Authors Cited



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Bird, Robert. "An Examination of the Training and Reliability of the
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Bryson, Sandy. Police Dog Tactics, 2nd ed. Calgary: Detselig
Enterprises, 2000.



Coughlan, Steve. "Privacy Goes to the Dogs" (2006), 40 C.R. (6th) 31.



Coughlan, Steve, and Marc S. Gorbet. "Nothing Plus Nothing
Equals . . . Something? A Proposal for FLIR Warrants on Reasonable
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Eden, Robert S. K9 Officer's Manual. Calgary: Detselig Enterprises,
1993.



Gold, Alan D. "Privacy Suffers From the Heat: R. v. Tessling".
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Katz, Lewis R. "In Search of a Fourth Amendment for the Twenty-first
Century" (1989-1990), 65 Ind. L.J. 549.





Katz, Lewis R., and Aaron P. Golembiewski. "Curbing the Dog:
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Kerr, Ian, and Jena McGill. "Emanations, Snoop Dogs and Reasonable
Expectations of Privacy" (2007), 52 Crim. L.Q. 392.



Lammers, Ken. "Canine Sniffs: The Search That Isn't" (2005), 1
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MacKay, A. Wayne. "Don't Mind Me, I'm from the R.C.M.P.: R. v. M.
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Pollack, Kenneth L. "Stretching the Terry Doctrine to the Search for
Evidence of Crime: Canine Sniffs, State Constitutions, and the
Reasonable Suspicion Standard" (1994), 47 Vand. L. Rev. 803.



Pomerance, Renee. "Shedding Light On the Nature of Heat: Defining
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Rosenberg, Marc. "Controlling Intrusive Police Investigative
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Stuart, Don. "Reducing Charter Rights of School Children" (1999), 20
C.R. (5th) 230.



APPEAL from a judgment of the Ontario Court of Appeal (Goudge,
Armstrong and Blair JJ.A.) (2006), 79 O.R. (3d) 481, 209 O.A.C. 257,
208 C.C.C. (3d) 438, 37 C.R. (6th) 372, [2006] O.J. No. 1663 (QL),
2006 CarswellOnt 2579, upholding the accused's acquittal entered by
Hornblower J. (2004), 120 C.R.R. (2d) 181, [2004] O.J. No. 2716 (QL),
2004 CarswellOnt 2603, 2004 ONCJ 98. Appeal dismissed, Bastarache,
Deschamps and Rothstein JJ. dissenting.



Kenneth J. Yule, Q.C, Jolaine Antonio and Lisa Matthews, for the
appellant.



Walter Fox, for the respondent.



Robert W. Hubbard and Alison Wheeler, for the intervener the Attorney
General of Ontario.



Dominique A. Jobin and Gilles Laporte, for the intervener the Attorney
General of Quebec.



Kenneth D. Madsen, for the intervener the Attorney General of British
Columbia.



Frank Addario and Emma Phillips, for the intervener the Criminal
Lawyers' Association (Ontario).



Jonathan C. Lisus, Christopher A. Wayland and Sarah Corman, for the
intervener the Canadian Civil Liberties Association.



Thomas McRae, for the intervener the St. Clair Catholic District Scool
Board.



Martha Mackinnon, for the intervener the Canadian Foundation for
Children, Youth and the Law (Justice for Children and Youth).



Solicitor for the appellant: Public Prosecution Service of Canada,
Calgary.



Solicitor for the respondent: Walter Fox, Toronto.





Solicitor for the intervener the Attorney General of Ontario:
Attorney General of Ontario, Toronto.



Solicitor for the intervener the Attorney General of Quebec: Attorney
General of Quebec, Québec.



Solicitor for the intervener the Attorney General of British
Columbia: Attorney General of British Columbia, Victoria.



Solicitors for the intervener the Criminal Lawyers' Association
(Ontario): Sack Goldblatt Mitchell, Toronto.



Solicitors for the intervener the Canadian Civil Liberties
Association: McCarthy Tétrault, Toronto.



Solicitors for the intervener the St. Clair Catholic District Scool
Board: Shibley Righton, Toronto.



Solicitor for the intervener the Canadian Foundation for Children,
Youth and the Law (Justice for Children and Youth): Canadian
Foundation for Children, Youth and the Law, Toronto.



Appeal dismissed, Bastarache, Deschamps and Rothstein JJ. dissenting.



The reasons of LeBel, Fish, Abella and Charron JJ. were delivered by



LeBel J. --



1 I have read the reasons of my
colleague Binnie J. I agree that the appeal should be dismissed, but
on the basis of my comments in the companion case, R. v. Kang-Brown,
2008 SCC 18. Students are entitled to privacy even in a school
environment (R. v. M. (M.R.), [1998] 3 S.C.R. 393, at para. 32).
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.



2 As found by the Court of Appeal
and by Binnie J., a search was conducted. The authority for that
search was nowhere to be found in the statute law or at common law.
This is not a case, for example, where the police would have entered
the school under the authority of a search warrant and used sniffer
dogs to assist in effecting a more focussed search. Nor was the dog-
sniffer search conducted by the school authorities on proper grounds
as set out in M. (M.R.). For the reasons stated in Kang-Brown, our
Court should not attempt to craft a legal framework of general
application for the use of sniffer dogs in schools. As a result, the
evidence was properly excluded under para. 24(2) of the Canadian
Charter of Rights and Freedoms. I would dismiss the appeal.



The reasons of McLachlin C.J. and Binnie J. were delivered by



Binnie J. --



3 The issues in the present appeal
are whether a sniffer-dog "sniff" of a student's backpack is a search
within the meaning of s. 8 of the Canadian Charter of Rights and
Freedoms, and if so, in what circumstances police officers may use
sniffer dogs to search a school for illicit drugs. This case involves
routine crime investigation. It does not involve explosives, guns or
other public safety issues in the schools.



4 This appeal was argued together
with R. v. Kang-Brown, 2008 SCC 18 (released concurrently), which
raises similar issues in the context of a bus terminal. In both
appeals, arguments were framed by analogy with technology or devices
considered in decided cases, especially R. v. Tessling, [2004] 3
S.C.R. 432, 2004 SCC 67. In Kang- Brown, a majority of the Alberta
Court of Appeal equated a dog sniff of the odour of marijuana
emanating from a piece of luggage to the infrared imaging of heat
emanating from a building in Tessling. Emanations were treated
generically as largely devoid of any constitutionally protected
privacy interest, regardless (it seems) of the very different value to
the police of the information thereby obtained about what an
individual seeks to preserve as private.



5 Section 8 has proven to be one of
the most elusive Charter provisions despite the apparent simplicity of
its language:



8. Everyone has the right to be secure against unreasonable search or
seizure.





In the present appeal, the Ontario Court of Appeal saw a "significant
difference" ((2006), 79 O.R. (3d) 481, at para. 47), between sniffer
dogs and Tessling-type heat imaging technology, but framed the issue
more broadly, as had the trial judge, in terms of the reasonableness
of "a trained police dog sniffing at the personal effects of an entire
student body in a random police search" (para. 47). I think the
approach of the Ontario courts is more in keeping with the "totality
of the circumstances" reasoning adopted in s. 8 cases by this Court in
R. v. Wong, [1990] 3 S.C.R. 36, R. v. Edwards, [1996] 1 S.C.R. 128, at
para. 45, and Tessling itself where, at para. 19, the Court said:



[T]he Court early on established a purposive approach to s. 8 in which
privacy became the dominant organizing principle. . . . Given the
bewildering array of different techniques available to the police
(either existing or under development), the alternative approach of a
judicial "catalogue" of what is or is not permitted by s. 8 is
scarcely feasible.



Stripped of the relevant context, musing on the differences between a
dog's nose and an infrared camera, or generalizing about "emanations",
does not greatly advance the resolution of the issues before us. What
is required is to strike an appropriate balance between the state's
need to search (whether the need be public safety, routine crime
investigation or other public interest) against the invasion of
privacy which the search entails, including the disruption and
prejudice that may be caused to law-abiding members of the public,
whether travelling (as in Kang-Brown) or in the schools (as here) or
in the peace and quiet of their own homes.





6 In this case, the principal of St.
Patrick's High School, in Sarnia, had issued a standing invitation to
the Sarnia police to bring sniffer dogs to the school whenever
convenient to the police. Both the Attorney General of Ontario and
the intervener St. Clair Catholic District School Board argue that
this invitation was all the justification the police required. The
accused, on the other hand, argues that sniffer dogs may only be used
where the police have reasonable grounds to believe a drug offence has
been committed by the individual who is the subject of the search and
that a search will lead to discovery of evidence or, perhaps, to the
apprehension of the perpetrator. The Attorney General of Ontario
denies that the use of sniffer dogs constitutes a s. 8 search at all,
as the dogs simply sniff the air which is part of our shared public
space. He thus contends that nothing done here even engaged the
rights of the accused under s. 8 of the Charter. The youth court
judge held that neither the police nor the school authorities had
anything more than a "hunch" to suspect the presence of drugs in the
school at the relevant time of the search ((2004), 120 C.R.R. (2d)
181, 2004 ONCJ 98). He held the "sniff" to be a search and excluded
the evidence both of the dog sniff and the subsequent physical search
by the police of the student's backpack.



7 For the reasons expressed in Kang-
Brown, I believe the common law powers of the police to investigate
crime and bring perpetrators to justice includes the use of sniffer
dogs. Such powers, however, are subject to compliance with the
Charter.



8 I also agree with the youth court
judge that the deployment of sniffer dogs in the school constituted a
s. 8 search, which may be defined as the state invasion of a
reasonable expectation of privacy; R. v. Wise, [1992] 1 S.C.R. 527, at
p. 533. The dog's positive alert led immediately and without judicial
intervention to the physical examination of the contents of the
accused's backpack to confirm the dog's identification of illegal
drugs.





9 While the dog sniff constituted a
search, it is a search of a minimally intrusive and tightly targeted
type. For reasons to be explained, I would not go so far as the
accused who insists that the full Hunter v. Southam Inc., [1984] 2
S.C.R. 145, requirement of prior judicial authorization must be
imposed. In effect, the defence argument would mean that the dogs can
only be used where there is no need for them. If the police have
reasonable and probable grounds to believe that an individual has
committed a drug offence and that a search would lead to apprehension
of the perpetrator and/or discovery of evidence, the police would
already have the grounds required for a search warrant. The defence
argument produces too much rigidity and does not take into account the
minimally intrusive nature of a sniffer-dog search, and the fact that
a sniffer dog properly trained and handled "alerts" only to contraband
with a high degree of accuracy.



10 In the United States, from whose
Fourth Amendment decisions Hunter v. Southam drew inspiration, a
series of divided Supreme Court decisions has declined to grant any
Fourth Amendment protection against "narcotic" sniffer dogs. This may
be, at least in part, because the courts may fear that once it is
found that a police activity amounts to an invasion of a cognizable
privacy interest, the legal machinery of prior judicial authorization
is presumptively imposed; Katz v. United States, 389 U.S. 347 (1967).
This may have involved the U.S. courts in a form of cost-benefit
analysis, as noted by K. L. Pollack:



. . . in deciding these cases, the Court arguably made implicit
findings that the costs of imposing a probable cause requirement
outweighed the corresponding benefits to individual privacy. In these
cases, the intrusion into individual interests was low, and the Court
seemed unconcerned about the prospect of arbitrary government use of
these searching methods. . . . [I]n pure investigatory searches, no
middle standard exists between suspicionless searches and those
searches based on probable cause.



(K. L. Pollack, "Stretching the Terry Doctrine to the Search for
Evidence of Crime: Canine Sniffs, State Constitutions, and the
Reasonable Suspicion Standard" (1994), 47 Vand. L. Rev. 803, at pp.
820-21)



11 The result of this U.S. jurisprudence
is that use of police sniffer dogs for crime investigation sits
entirely outside the Fourth Amendment. I do not agree that in Canada
such use of police dogs is without constitutional regulation, although
I agree that the degree and nature of that s. 8 regulation must be apt
to the circumstances and reflect the minimally intrusive, contraband-
specific nature and, where established, accurate olfactory capacity of
a properly trained dog. This context gives rise to two consequences
of importance.





12 Firstly, I conclude that in the
context of a routine criminal investigation, the police are entitled
to use sniffer dogs based on a "reasonable suspicion". If there are
no grounds of reasonable suspicion, the use of the sniffer dogs will
violate the s. 8 reasonableness standard.



13 Secondly, where there are grounds of
reasonable suspicion, I believe 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 (in
any event there is at present no mechanism in the Criminal Code,
R.S.C. 1985, c. C-46, to issue such an authorization based only on
reasonable suspicion). All "searches" do not have the same invasive
and disruptive quality. In Hunter v. Southam, the combines officers
were poised to rummage through private papers of varying degrees of
relevance and irrelevance of the Edmonton Journal under a Director's
order whose sweep was described by Dickson J. as "breathtaking" (p.
150). The Hunter v. Southam requirement of prior judicial
authorization is the gold standard because an important purpose of s.
8 is to prevent unreasonable searches and not in the usual case just
to give an after-the-fact remedy. However, prior judicial
authorization is not a universal condition precedent to any and all
police actions characterized as "searches" given that the touchstone
of s. 8 is reasonableness. Account must be taken in s. 8 matters of
all the relevant circumstances including (as stated) the minimal
intrusion, contraband-specific nature and high accuracy rate of a fly-
by sniff. The warrantless search is, of course, presumptively
unreasonable, and must satisfy the exceptional requirements set out in
R. v. Collins, [1987] 1 S.C.R. 265, at p. 278.





14 If the sniff is conducted on the basis
of reasonable suspicion and discloses the presence of illegal drugs on
the person or in a backpack or other place of concealment, the police
may, in my view, confirm the accuracy of that information with a
physical search, again without prior judicial authorization, as will
be discussed. But, of course, all such searches by the dogs or the
police are subject to after-the-fact judicial review if it is alleged
(as here) that no grounds of reasonable suspicion existed, or that the
search was otherwise carried out in an unreasonable manner. Here the
after-the-fact judicial review was engaged when the prosecution
attempted to rely on the evidence obtained in the search. The
exceptional authority given to the police to use sniffer dogs on the
basis of reasonable suspicion and without prior judicial authorization
will, if abused, lead to important consequences under s. 24(2) of the
Charter which provides that where a court concludes



that evidence was obtained in a manner that infringed or denied any
rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.



The exclusion remedy was granted in this case and, in my opinion,
rightly so.



15 I accept the youth court judge's
finding of fact that this was a random speculative search. 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 other 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.



16 The youth court judge, having refused
to admit the evidence produced by the search, acquitted the accused.
The Ontario Court of Appeal affirmed the acquittal, and I would
dismiss the further appeal to this Court.



I. Facts



17 In 2000, the principal of St.
Patrick's High School advised the Youth Bureau of Sarnia Police
Services that if the police ever had sniffer dogs available to bring
into the school to search for drugs, they were welcome to do so. On a
couple of occasions prior to the facts giving rise to the present
appeal, the police had taken advantage of the invitation to check the
parking lot, the hallways and, time permitting, other areas suggested
by the principal. We do not know the results of these prior visits.



18 The school had a zero tolerance policy
for possession and consumption of drugs and alcohol, a policy which
had been communicated to the students and their parents.



19 On November 7, 2002, three police
officers decided to go to the school with a sniffer dog. The police
asked the principal for "permission" to go through the school. At
trial they admitted that they had no information that drugs were then
present in the school and freely acknowledged that they had no grounds
to obtain a search warrant. The principal acknowledged that he had no
information about drugs in the school at that time, although he said:
"[I]t's pretty safe to assume that they could be there" (A.R., at p.
49 (emphasis added)). In cross-examination, the principal was asked:



Q. Okay. But you never, armed with specific information, had called
them and said this is what I know, therefore I think a search should
be conducted.



A. No.



(A.R., at p. 53)



Police Officer Callander of the Sarnia Police gave similar evidence:





Q. Okay. You did not have any direct awareness as to the existence
of drugs and where that might be, and there was no indication that
safety of people/students were at risk. You were not armed with any
of that kind of information.



A. No.



(A.R., at p. 84)



The principal had heard occasional anecdotal reports from parents or
neighbours about "kids in our school who are doing drugs" (A.R., at p.
50), but nothing specific to the November 7, 2002 time period.



20 Having issued a standing invitation,
the principal readily gave permission to the police to search the
school with sniffer dogs. The principal then used the school's public
address system to tell everyone that the police were on the premises
and that students should stay "[i]n their classroom[s] until th[e]
search was conducted" (A.R., at p. 47). The effect of this
announcement was that no student could leave his or her classroom for
the duration of the police investigation.



21 The police, not the school
authorities, took charge of the investigation. The principal
testified that he had no involvement beyond giving permission and
telling the students to remain in their classrooms. There was no
discussion with him as to how the search was to be conducted.





22 The police search included the
gymnasium. Constable McCutchen of the Ontario Provincial Police was
accompanied by his sniffer dog, Chief, who was trained to detect
heroin, marijuana, hashish, crack cocaine and cocaine. There were no
students in the school gymnasium but some backpacks were lying next to
the wall. Chief "alerted" to one of the backpacks by biting at it.
Constable McCutchen handed the backpack to Sarnia police Constable
Callander who physically searched through its contents and confirmed
Chief's identification of drugs including five bags of marijuana, a
tin box containing a further five bags of marijuana, a bag containing
approximately ten magic mushrooms (psilocybin), a bag containing a
pipe, a lighter, rolling papers and a roach clip. A.M.'s wallet,
containing his identification, was in the backpack. A.M. was charged
with possession for the purpose of trafficking marijuana and
possession of psilocybin.



II. Relevant Constitutional Provisions



23 The relevant Charter provisions read
as follows:





Canadian Charter of Rights and Freedoms

Charte canadienne des droits et libertés





8. Everyone has the right to be secure against unreasonable search or
seizure.



9. Everyone has the right not to be arbitrarily detained or
imprisoned.

8. Chacun a droit à la protection contre les fouilles, les
perquisitions ou les saisies abusives.



9. Chacun a droit à la protection contre la détention ou
l'emprisonnement arbitraires.





24. ...



-- (2) Where, in proceedings under subsection (1), a court concludes
that evidence was obtained in a manner that infringed or denied any
rights or freedoms guaranteed by this Charter, the evidence shall be
excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the
administration of justice into disrepute.

24. ...



-- (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal
a conclu que des éléments de preuve ont été obtenus dans des
conditions qui portent atteinte aux droits ou libertés garantis par la
présente charte, ces éléments de preuve sont écartés s'il est établi,
eu égard aux circonstances, que leur utilisation est susceptible de
déconsidérer l'administration de la justice.










III. Judicial History



A. Ontario Youth Justice Court (Hornblower J.) (2004), 120 C.R.R.
(2d) 181, 2004

ONCJ 98





24 The youth court judge held that there
were two searches conducted on November 7, 2002. The first was the
sniffer-dog search, which resulted in the dog "alerting" to the
backpack of A.M. The second was the physical search of the backpack
by the Sarnia police officer. In his view, neither search was
reasonable. While there was some evidence that neighbours and parents
had expressed concern about the possible presence of drugs at the
school, the school authorities possessed no information relevant to
the day of the search. The school principal simply thought it
possible that on any given day drugs might be found in the school.
While some flexibility must be extended to school authorities, the
youth court judge did not believe that "a reasonably well-educated
guess" constituted reasonable grounds to conduct a search (para. 16).



25 The youth court judge further found
that the search in this case was not a search conducted by school
authorities, but a search by the police. No school authority took any
active role. The fact that the principal had on an earlier occasion
invited a search by police did not convert the search on November 7,
2002 into one by school authorities.



26 As to the admissibility of the
evidence under s. 24(2) notwithstanding the Charter breach, the youth
court judge acknowledged a reduced expectation of privacy in a school
setting and noted that trafficking in marijuana is a serious offence.
No bad faith could be imputed to either the police or the school
authorities. On the other hand, the rights of every student in the
school were violated that day as they were all subject to an
unreasonable search. To admit the evidence would bring the
administration of justice into disrepute. For these reasons, the
youth court judge held that the evidence should be excluded, and A.M.
acquitted.





B. Court of Appeal for Ontario (Goudge, Armstrong and Blair JJ.A.)
(2006), 79 O.R. (3d) 481



27 Armstrong J.A. wrote for the Court of
Appeal that what had occurred at St. Patrick's High School on November
7, 2002 was a search by police. No school authority requested the
presence of police on that day, and no school official played any
active role in the search. The "standing invitation" to the police to
conduct a sniffer-dog search of the school did not render this search
a "search by school authorities".



28 The court rejected the Crown's
argument that the police conduct did not amount to a "search" within
the meaning of s. 8, noting the Sarnia constable's testimony that the
police went to the school to conduct a "random search" (A.R., at p. 28
(emphasis added), that the OPP police constable agreed in cross-
examination that he and the dog were engaged in a search (A.R., at pp.
28 and 77), and that the Crown conceded that point at trial.



29 Armstrong J.A. disagreed with the
Crown's contention that A.M.'s expectation of privacy in his backpack
"was so significantly diminished as to be negligible". He accepted
the submission of both counsel for the accused and the Canadian Civil
Liberties Association ("CCLA") that, as the CCLA had put it, "[a]
student's backpack is in effect a portable bedroom and study rolled
into one" (A.R., at p. 30).



30 Neither the Education Act, R.S.O.
1990, c. E.2, nor its subsidiary policies, nor the provincial Ontario
Schools: Code of Conduct (2001), provide for warrantless searches,
and the principal had admitted that the school authorities themselves
could not legally have conducted the search that was carried out by
the police in this case.





31 Armstrong J.A. observed that to
facilitate the search, the entire student population was detained in
their classrooms for a period of one and a half to two hours.
Although the principal himself made the announcement to the student
body, he did so to accommodate the police. There was no credible
information to suggest that a search was justified and no reasonable
grounds to detain the students. The detention aggravated the
unreasonableness of the search.



32 The youth court judge was right to
exclude the evidence. This was a warrantless, random search which was
not authorized by either the criminal law or the Education Act. The
breach was serious. Admission of the evidence would bring the
administration of justice into disrepute. The Crown's appeal from the
acquittal was therefore dismissed.



IV. Analysis



33 Section 8, like the rest of the
Charter, must be interpreted purposively, that is to say, to further
the interests it was intended to protect. While these interests may
go beyond privacy, they go "at least that far" (Hunter v. Southam, at
p. 159). A privacy interest worthy of protection is one the citizen
subjectively believes ought to be respected by the government and
"that society is prepared to recognize as 'reasonable'" (Katz, p.
361). In each case, "an assessment must be made as to whether in a
particular situation the public's interest in being left alone by
government must give way to the government's interest in intruding on
the individual's privacy in order to advance its goals, notably those
of law enforcement" (Hunter v. Southam, at pp. 159-60).



34 In carrying out this assessment, a
number of considerations have emerged which should assist in the
resolution of these appeals.





35 First is the recognition of the type
of society which Canadians, by their adoption of the Charter, have
elected to live in. "The restraints imposed on government to pry
into the lives of the citizen go to the essence of a democratic
state" (R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 427-28). Students
are no less deserving of constitutional protection than adults,
although their age, vulnerability and presence in a school
environment, all factor into the "totality of the circumstances".



36 Secondly, the focus must be on the
"impact on the subject of the search or the seizure [here all the
students at the school], and not simply on its rationality in
furthering some valid government objective" (Hunter v. Southam, at p.
157). The impact includes disruption, inconvenience and potential
embarrassment for innocent individuals subjected to the dog sniff or
other intrusive police attention.



37 Thirdly, the assessment of the privacy
interest necessarily takes place in the shadow of the reason why the
police want the information. As noted in Tessling, "the police were
clearly interested in the 'heat profile' not for its own sake but for
what it might reveal about the [illegal] activities inside the
home" (para. 41 (emphasis in original)). If the police in this case
had been called to investigate the potential presence of guns or
explosives at the school using dogs trained for that purpose, the
public interest in dealing quickly and efficiently with such a threat
to public safety, even if speculative, would have been greater and
more urgent than routine crime prevention. Generally speaking, the
legal balance would have come down on the side of the use of sniffer
dogs to get to the bottom of a possible threat to the lives or
immediate safety and well-being of the students and staff.





38 Fourth, the Court must consider the
significance of the information obtained as a result of the police
intervention. Mr. Alan Gold, Q.C., amongst others, has criticized use
of the meaningfulness of the information as an important factor in the
determination of whether a reasonable expectation of privacy exists.
He writes:



I appreciate that Tessling can be understood as referencing a category
of information -- electrical and heat information -- that is in general
uninformative and "meaningless,". . . . But ... [A] fine meal can be
made from scraps, and the police certainly seem highly interested in
this "meaningless" information.



("Privacy Suffers From the Heat": R. v. Tessling", paper delivered at
Law Society of Upper Canada 5th Annual Six-Minute Criminal Defence
Lawyer, June 4, 2005, at paras. 7-8)



Of course, much police work does consist of assembling different
"scraps" of information, some of it apparently meaningless, into a
significant picture. This fact does not necessarily generate
constitutional protection for the "meaningless scraps" that form part
of the mosaic unless there is something else in the context that
drives that result. In the present case, Tessling is inapplicable.
The information is highly meaningful. We are not dealing with
"scraps". The dogs pointed the police to the sniffer dog's equivalent
of a smoking gun.



39 Fifth, the courts have to deal with
what is presented to them as reality. Some of the interveners
portrayed the resolution of the dog-sniffing issue in this case as
critical to the future of informational privacy. It is true that the
information conveyed by a sniffer-dog alert reveals important
information to the police about the crime under investigation (being
one of the circumstances that distinguishes this case from Tessling).
This appeal, however, does not purport to chart the future course of
informational privacy any more than did R. v. Plant, [1993] 3 S.C.R.
281, or Tessling. It is in the nature of this rapidly developing
field that courts will need to return again and again to fundamental
principles to draw the reasonableness line.





40 Professor Kerr and Ms. McGill rightly
warn of snooping technologies under development including reference to
"Honey Bees Join the Bomb Squad" and talk of "sensors that will scan
crowds to determine whether anyone is planning to commit -- or is even
thinking of committing -- an illegal act" (see I. Kerr and J. McGill,
"Emanations, Snoop Dogs and Reasonable Expectations of
Privacy" (2007), 52 Crim. L. Q. 392, at p. 410, footnote 57). The s.
8 jurisprudence will continue to evolve as snooping technology
advances. This flexibility is essentially what the "totality of the
circumstances" approach is designed to achieve. On these occasions,
critics usually refer to "Orwellian dimensions" and 1984, but the fact
is that 1984 came and went without George Orwell's fears being
entirely realized, although he saw earlier than most the direction in
which things might be heading. The Court can insist on proper
evidence of what the police or government are up to and how, if at
all, the information the police seek to collect can be used. As
Tessling noted, "[w]hatever evolution occurs in future will have to be
dealt with by the courts step by step. Concerns should be addressed
with as they truly arise" (para. 55).



A. The Use of Sniffer Dogs



41 For reasons expressed in Kang-Brown, I
believe the police are acting within their common law powers, provided
the requirements of the Charter are respected, when they call on the
use of sniffer dogs in the course of crime investigation in places to
which they otherwise have lawful access. In the present context, the
s. 8 right to be secure against unreasonable search or seizure is of
paramount importance. What occurred at St. Patrick's High School on
November 7, 2002 was a warrantless search, and therefore presumptively
unreasonable. As Lamer J. stated in Collins, at p. 278:



. . . once the appellant has demonstrated that the search was a
warrantless one, the Crown has the burden of showing that the search
was, on a balance of probabilities, reasonable.



A search will be reasonable if it is authorized by law, if the law
itself is reasonable and if the manner in which the search was carried
out is reasonable.



(See also R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 36; R.
v. Caslake, [1998] 1 S.C.R. 51, at paras. 10-12.)



42 For the reasons to be explained below,
as well as the analysis set out in Kang-Brown, my opinion is that in
cases where reasonable suspicion exists, the first two conditions of
the Collins test are satisfied (Collins, at pp. 278-79; R. v. Kokesch,
[1990] 3 S.C.R. 3, at pp. 15-16). Where reasonable suspicion exists,
a sniffer-dog search is authorized by the common law, and the common
law itself is reasonable because of the minimally intrusive, narrowly
targeted and high accuracy of "sniff searches" by dogs with a proven
track record like Chief. However, on the facts of this case, because
of the absence of reasonable suspicion, the search fails the first and
third branches of the Collins test. As there was no reasonable
suspicion, the search was not authorized by law and fails the first
requirement. Further, it fails on the third requirement, namely that
the search be conducted reasonably. The police failed because they
proceeded on the basis of speculation rather than objectively
verifiable evidence supporting reasonable suspicion.



B. A Student's Privacy is Entitled to Constitutional Protection



43 In support of their argument that s. 8
of the Charter is not engaged because of free access to "emissions in
the public domain", the Attorneys General alluded to the dissent in
Kyllo v. United States, 533 U.S. 27 (2001), cited in Tessling, at
para. 51:





. . . public officials should not have to avert their senses or their
equipment from detecting emissions in the public domain such as
excessive heat, traces of smoke, suspicious odors, odourless gases,
airborne particulates, or radioactive emissions, any of which could
identify hazards to the community. [p. 45]



This frequently quoted passage from Kyllo clearly refers to situations
involving immediate public hazards, not routine crime investigation.
The present appeal, however, is a case of routine crime investigation,
not public hazards. Moreover, the police here were not asked to
"avert their senses". The question before us relates to the
circumstances in which the police can initiate an investigation using
sniffer dogs.



44 The leading Canadian case on searches
in schools is R. v. M. (M.R.), [1998] 3 S.C.R. 393, where it was held
that "the reasonable expectation of privacy of a student in attendance
at a school is certainly less than it would be in other
circumstances" (para. 33). After adverting to the fact that "weapons
and drugs create problems that are grave and urgent", Cory J.
nevertheless maintained that "schools also have a duty to foster the
respect of their students for the constitutional rights of all members
of society" (para. 3).



Learning respect for those rights is essential to our democratic
society and should be part of the education of all students. These
values are best taught by example and may be undermined if the
student's rights are ignored by those in authority. [para. 3]



Of course, the consequences for the student of a police search are
potentially far more serious than would result from an exercise of
school discipline.





45 In M. (M.R.), the issue was the
constitutionality of the body search of a student for drugs at a
school dance by the vice-principal. The Court specifically held that
if the body search had been conducted by the police, or the school
authorities acting as agents of the police, reasonable and probable
grounds of belief would have been required. However, reasonable
suspicion was sufficient for school authorities. The teaching of M.
(M.R.) is that in matters of school discipline, a broad measure of
discretion and flexibility (para. 49) will be afforded the school
authorities, but when police are conducting a body search, even on
school premises, the ordinary standard of justification applicable to
police will be required. Cory J. stated:



The modified standard for school authorities is required to allow them
the necessary latitude to carry out their responsibilities to maintain
a safe and orderly school environment. There is no reason, however,
why police should not be required to comply with the usual standards,
merely because the person they wish to search is in attendance at an
elementary or secondary school. [para. 56]



In the present case, of course, we are not dealing with a body search,
which is far more intrusive than a dog sniff and whose results are not
limited to the disclosure of contraband.



46 My colleague Deschamps J. (at para.
131) cites M. (M.R.) as authority for a diminished expectation of
privacy in schools, but seemingly does not attach importance to the
distinction between school authorities (which is what Cory J. is
speaking of in the passage she cites) and the police. The difference
between a police search and an investigation by school authorities was
of critical importance to the Court's decision in M. (M.R.) and, I
believe, is of importance here as well.





47 Some authors have criticized the
distinction between a search by school authorities and a police search
if the end result in both situations is a prosecution, e.g. D. Stuart,
"Reducing Charter Rights of School Children" (1999), 20 C.R. (5th)
230; A. W. MacKay, "Don't Mind Me, I'm from the R.C.M.P.: R. v. M.
(M.R.) -- Another Brick in the Wall Between Students and Their
Rights" (1997), 7 C.R. (5th) 24. However, I agree with Cory J. that
significantly greater latitude must be given to school authorities in
the discharge of their responsibilities than to the police. If
evidence sufficient to ground a prosecution should come to light in
the course of a school investigation, the evidence no doubt will be
passed on to the regular prosecutorial authorities if the school
authorities think it appropriate to do so. Otherwise, schools may
become safe havens for juvenile drug dealers, which would be
unacceptable. In any event, Cory J. factored this possible outcome
into his consideration in pronouncing the usual caveat that "[a]ll the
circumstances surrounding a search must be taken into account in
determining if the search is reasonable" (M. (M.R.), at para. 48).
The important point is that the Court in M. (M.R.) refused to carve
out a "school exception" to the exercise of police powers.



48 My colleague Deschamps J. concludes
that the accused lacked any personal privacy interest in his bag when
left in the gym. She writes:



No personal privacy interest as defined in R. v. Tessling, [2004] 3
S.C.R. 432, 2004 SCC 67, at para. 23, is in issue in this case, since
A.M. was not wearing or carrying his backpack at the time of the
alleged search. [Emphasis in original; para. 121.]



Reliance is also placed on the unattended backpack factor at paras.
100, 120, 128, 131, 138, 147 and 148 of my colleague's reasons. I do
not agree with the importance attached to the circumstance that the
backpack was unattended. If an accused has a privacy interest in the
contents of a letter, it is not lost when she takes it out of her
purse and posts it. If an accused has documents concealed in the
locked trunk of his car, the privacy interest in the contents of the
trunk of the car does not depend on whether he is in the car or has
left it parked somewhere, including a public parking lot. My home is
no less private when I am out than when I am there. When students
left their backpacks in the gymnasium, they did not thereby lose their
privacy interest in the concealed contents, in my view.





49 My colleague Deschamps J. then writes:



A third factor is the fact that A.M.'s backpack was left not only
unattended, but also in plain view. [para. 138]



As I see it, the issue is not whether the outside of the backpack was
in plain view. The privacy issue relates to the concealed contents.



C. Reasonableness Incorporates a Measure of Flexibility



50 While the primary s. 8 focus is on the
impact of the police action on the person searched, or from whom the
effects are seized, it is evident that the impact of the search
(potential criminal prosecution) cannot by itself render the
warrantless search unreasonable. Warrantless searches generally arise
in the context of a criminal prosecution.



51 An overly rigid reading of Hunter v.
Southam produces a dilemma for both the defence and the Crown. Here,
the Crown argues that little privacy is at stake because of the nature
of the container (backpack), the place of the search (the school), and
the narrowness of the sniffer dog's focus (contraband). If this
argument fails to persuade, however, the Crown is faced with the full
brunt of the Hunter v. Southam procedural requirements with the
consequence, generally speaking, that the dogs can only be used where
they are not needed. If the police already have reasonable and
probable grounds to obtain a search warrant for a physical search,
they have no need to deploy a sniffer dog.





52 From the defence viewpoint, on the
other hand, if the Court finds a "privacy" interest to exist, the
backpack is thereby surrounded by a legal fortress impenetrable to a
sniffer dog or any other person or device without the subject's
consent or a judicially authorized search warrant. But if this
defence argument fails, as it has in the United States, the citizen
will be left without any s. 8 protection at all against the use of
sniffer dogs.



53 The opposing positions offer an all-or-
nothing result -- i.e. the activity is either wholly regulated by a
rigid constitutional procedure or it is completely unregulated -- that
appears inconsistent with a "reasonableness" approach which should
offer a more nuanced answer. This point was famously made by
Professor Anthony G. Amsterdam writing over 30 years ago in the
context of the U.S. Fourth Amendment:



The fourth amendment, then, is ordinarily treated as a monolith:
wherever it restricts police activities at all, it subjects them to
the same extensive restrictions that it imposes upon physical entries
into dwellings. To label any police activity a "search" or "seizure"
within the ambit of the amendment is to impose those restrictions upon
it. On the other hand, if it is not labelled a "search" or "seizure,"
it is subject to no significant restrictions of any kind. It is only
"searches" or "seizures" that the fourth amendment requires to be
reasonable: police activities of any other sort may be as unreasonable
as the police please to make them.



("Perspectives on the Fourth Amendment" (1973-1974), 58 Minn. L. Rev.
349, at p. 388)



The "all-or-nothing" approach was eventually rejected by the United
States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968), a case which
gave rise to the warrantless investigative police "stops" based on
reasonable suspicion (called Terry stops). This approach was accepted
in Canada in Mann. The present case, of course, is different. The
police had no evidence even that a crime had been committed at the
school on November 7, 2002.





54 Professor Katz has noted that the
American approach "totally eliminates significant invasions of privacy
from any fourth amendment protection because they are not akin to
traditional searches. However, these unprotected invasions of privacy
involve interests that a reasonable person in a free society would
expect to have protected" (L. R. Katz, "In Search of a Fourth
Amendment for the Twenty-first Century" (1989-1990), 65 Ind. L.J. 549,
at p. 581). In Canada, although the police may be regulated by
internal non-constitutional administrative procedures where available,
"there is considerable pressure by the police community to leave that
area unregulated" (M. Rosenberg "Controlling Intrusive Police
Investigative Techniques Under Section 8" (1991), 1 C.R. (4th) 32, p.
43. Professors Coughlan and Gorbet have written:



If there is no reasonable expectation of privacy, there is no search,
no s. 8 protection, and no opportunity for judicial scrutiny. There
is no forum for balancing competing interests: that has ended at the
earliest possible stage.



(S. Coughlan and M. S. Gorbet, "Nothing Plus Nothing Equals . . .
Something? A Proposal for FLIR Warrants on Reasonable
Suspicion" (2005), 23 C.R. (6th) 239, at p. 241; see also S. Coughlan,
"Privacy Goes to the Dogs" (2006), 40 C.R. (6th) 31.)



55 I do not believe the Crown's solution
of placing sniffer dogs entirely outside constitutional regulation is
consistent with our jurisprudence which recognizes that within the
Charter the need for privacy "can vary with the nature of the matter
sought to be protected, the circumstances in which and the place where
state intrusion occurs, and the purposes of the intrusion" (R. v.
Colarusso, [1994] 1 S.C.R. 20, at p. 53) as will now be analyzed in
greater detail.



D. The Crown's Argument





56 At this point, it is convenient to
restate the Crown's argument, which says that what was done here was
perfectly reasonable. The police inquiry began with a relatively
unobtrusive examination by dogs of odours emanating from three
classrooms and some lockers and eventually the small gym where a pile
of backpacks were kept. Unlike M. (M.R.), there is no evidence of any
body searches. The Crown emphasizes that a school is a regulated
environment and the students know it. Drug-free schools are important
to assure safety and promote learning. Sniffer dogs smell only the
surrounding air; neither their snouts nor their handlers physically
enter the students' backpacks. The dog communicates nothing about the
contents except the presence of an illegal drug, which the student has
been told time and time again is prohibited under a zero-tolerance
policy. The student has no reasonable expectation of privacy in
contraband, argues the Crown. As stated, these arguments have found
favour in the United States: United States v. Place, 462 U.S. 696
(1983); United States v. Jacobsen, 466 U.S. 109 (1984), and Illinois
v. Caballes, 543 U.S. 405 (2005).



57 In Place, O'Connor J., writing for the
majority, commented in obiter that a canine sniff is sui generis
because it "discloses only the presence or absence of narcotics, a
contraband item" (p. 707). In her view, the sniff did not constitute
a "search" within the meaning of the Fourth Amendment. Blackmun J.,
concurring in the result, suggested that a canine sniff might be a
"minimally intrusive" search justifiable upon reasonable suspicion (p.
723).



58 In Jacobsen, federal agents seized a
white powder leaking from a freight package in transit and identified
it as cocaine. Stevens J., writing for the majority, found that the
search and seizure of the cocaine was reasonable and did not violate
the Fourth Amendment because "governmental conduct that can reveal
whether a substance is cocaine, and no other arguably 'private' fact,
compromises no legitimate privacy interest" (p. 123).





59 In Caballes, an Illinois state trooper
stopped a driver, Caballes, for speeding on a highway. When the
trooper radioed the police dispatcher to report the stop, a second
trooper headed for this scene with a sniffer dog. While the first
trooper was writing a warning ticket, the second trooper walked the
dog around the car, and the dog alerted at the trunk. On the basis of
the alert, the troopers searched the trunk, found marijuana and
arrested Caballes. The majority of the U.S. Supreme Court held that
the dog sniff did not violate the Fourth Amendment. The traffic stop
was based on probable cause and was lawful. Its duration was not
excessive. The use of a sniffer dog, which does not expose lawful
items that otherwise would remain hidden from public view, did not
implicate legitimate privacy interests, in the view of the majority.



60 The Crown is understandably supportive
of the U.S. approach. Its argument can be organized around the
following issues:



(i) What degree of privacy could students reasonably expect in the
contents of their backpacks having regard in particular to the school
setting?



(ii) Did the dog sniff constitute a search of the contents of the
backpacks?



(iii) Is an intermediate standard of reasonable suspicion applicable?



(iv) Was a prior judicial authorization required in this case?



(v) Were the students unlawfully detained?

(vi) If there is a violation of s. 8 or s. 9 of the Charter, ought
the evidence to be excluded under s. 24(2)?



E. What Degree of Privacy Can Students Reasonably Expect in Their
Backpacks?



61 Canadian courts have accepted as
correct the proposition that s. 8 protects "people, not places".
People do not shed their reasonable expectations of privacy in their
person or in the concealed possessions they carry when they leave
home, although those expectations may have to be modified depending on
where they go, and what "place" they find themselves in.





62 The backpacks from which the odour
emanated here belonged to various members of the student body
including the accused. 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. 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.



63 As the accused did not testify, the
question of whether or not he had a subjective expectation of privacy
in his backpack must be inferred from the circumstances. While
teenagers may have little expectation of privacy from the searching
eyes and fingers of their parents, I think it obvious that they expect
the contents of their backpacks not to be open to the random and
speculative scrutiny of the police. This expectation is a reasonable
one that society should support.



64 The Crown's contrary assertion that
the backpacks of students enjoy a diminished expectation of privacy
and are therefore essentially open to suspicionless searches by police
rests on three arguments:



(1) The school setting is known by students to be closely supervised
and regulated;



(2) there can be no privacy interest in the public airspace in the
vicinity of the backpacks;





(3) the subject matter of the "sniff" is the presence of illegal
drugs, and contraband is not a constitutionally protected privacy
interest.



I will briefly examine each of these points in turn.



(1) The School Setting Is Known by Students to Be Closely Supervised
and Regulated



65 While, as M. (M.R.) noted, a
student's expectation of privacy is lessened in the school setting in
relation to school authorities, it does exist and was not abandoned
(even in relation to school authorities) when the students left their
backpacks in the gymnasium. In R. v. Buhay, [2003] 1 S.C.R. 631, 2003
SCC 30, we held that Mr. Buhay had not abandoned his privacy interest
in his duffel bag when he left it in a rented bus station locker. The
Court emphasized that the locker had been paid for and was under lock
and key. An analogy was drawn to a hotel room (para. 23). Buhay thus
had stronger privacy features than does this case. However, here as
in Buhay, the individuals in question sought to preserve as much
privacy in their belongings as the circumstances of their lives and
activities permitted. As held in M. (M.R.), the fact that school
authorities may on occasion disregard this expectation of privacy does
not make it disappear. "Expectation of privacy is a normative rather
than a descriptive standard" (Tessling, at para. 42).



(2) Can There Be a Privacy Interest in Public Airspace?





66 I do not think Tessling is of much
help to the Crown in this case. Here, as in Tessling, the carrying
medium can be characterized as emanations, not detected by unaided
human senses, from an object exposed to public view. However, unlike
Tessling, the information provided by a drug-dog sniff, when the dog
is trained to alert to the presence of controlled drugs, is entirely
unlike a FLIR image in that it most definitely permits inferences
about the precise contents of the source that are of interest to the
police. Under the Operation Jetway program at issue in Kang-Brown, a
positive alert by a sniffer dog was itself taken by the police as
reasonable and probable grounds for an arrest. However, the subject
matter of the sniff is not public air space. It is the concealed
contents of the backpack. Dog sniffing is, in terms of the Kyllo
jargon (at p. 46), a "through-the-wall" technology, as compared with
Tessling, where we held that FLIR technology could only show "that
some of the activities in the house generate heat. That is not enough
to get the respondent over the constitutional threshold" (para. 62).



67 The Crown argues that in this case, as
in Tessling and Plant, the information obtained is not part of a
"biographical core of personal information", i.e. does not reveal
intimate details about the lifestyle of the accused that he is
entitled to protect. However, Tessling and Plant were premised on the
finding that the information had already escaped the possession and
control of the suspect. In Plant, the electricity records were
generated by a third party (the electrical company); in Tessling,
information regarding the heat escaping from a house simply could not
be controlled, as any home insulation salesman can tell from walking
down a Canadian street after a snowfall. Here, the guilty secret of
the contents of the accused's backpack was not known to third
parties. It was specific and meaningful information, intended to be
private, and concealed in an enclosed space in which the accused had a
continuing expectation of privacy. By use of the dog, the policeman
could "see" through the concealing fabric of the backpack.





68 In Dyment, Plant and Tessling, the
various categories of "information" (including "biographical core of
personal information") were used as a useful analytical tool, not a
classification intended to be conclusive of the analysis of
information privacy. Not all information that fails to meet the
"biographical core of personal information" test is thereby open to
the police. Wiretaps target electrical signals that emanate from a
home; yet it has been held that such communications are private
whether or not they disclose core "biographical" information. R. v.
Duarte, [1990] 1 S.C.R. 30; R. v. Wiggins, [1990] 1 S.C.R. 62, and R.
v. Thompson, [1990] 2 S.C.R. 1111. The privacy of such communications
is accepted because they are reasonably intended by their maker to be
private: R. M. Pomerance, "Shedding Light On the Nature of Heat:
Defining Privacy in the Wake of R. v. Tessling" (2005), 23 C.R. (6th)
229, at pp. 234-35.



(3) Can There Be a Legitimate Privacy Interest in Contraband?



69 The Crown says that while there may be
an asserted privacy interest in belongings generally, there can be no
legitimate privacy interest in contraband. This argument incorporates
a semantic shift from "reasonable expectation" of privacy to
"legitimate" expectation of privacy. The Attorneys General ask the
Court to adopt the view of the U.S. Supreme Court in Place (p. 707)
and Caballes (p. 411) that



because the [dog's] sniff can only reveal the presence of items devoid
of any legal use, the sniff "does not implicate legitimate privacy
interests" and is not to be treated as a search.



A denial of any protected privacy interest in sniffer-dog situations
has on occasion led in the United States to serious repercussions. In
Doe v. Renfrow, 631 F.2d 91 (7th Cir. 1980), a school was raided and
2,780 students subjected to a sniff search, without the police having
any specific information as to particular drugs or contraband,
transactions or events, or drug suppliers on the premises. As
recounted by Swygert J. in his dissent in that case (at p. 93):





Every student was instructed to place his belongings in view and his
hands on his desk. Girls placed their purses on the floor between
their feet. The teams of searchers moved from room to room, and from
desk to desk. Every single student was sniffed, inspected, and
examined at least once by a dog and a joint school-police team. The
extraordinary atmosphere at the school was supplemented still further
when representatives of the press and other news media, invited in by
school authorities, entered the schoolhouses and classrooms during the
raid and observed the searches while in progress.



As it turns out, the dog alerted to the plaintiff in that case because
she had been playing with one of her own dogs on the morning of the
search and her dog was in heat.



70 I think this branch of the Crown's
case is effectively addressed by what was said by La Forest J. in
Wong, at p. 50:



[I]t would be an error to suppose that the question that must be asked
in these circumstances is whether persons who engage in illegal
activity behind the locked door of a hotel room have a reasonable
expectation of privacy. Rather, the question must be framed in broad
and neutral terms so as to become whether in a society such as ours
persons who retire to a hotel room and close the door behind them have
a reasonable expectation of privacy.



71 In the United States, numerous judges
continue to assert the wider privacy interests. Brennan J. (Marshall
J. concurring) in Jacobsen warned in his dissent, at p. 138, that





under the Court's analysis in these cases, law enforcement officers
could release a trained cocaine-sensitive dog -- to paraphrase the
California Court of Appeal, a "canine cocaine connoisseur" -- to roam
the streets at random, alerting the officers to people carrying
cocaine. Cf. People v. Evans, 65 Cal. App. 3d 924, 932, 134 Cal. Rptr.
436, 440 (1977). Or, if a device were developed that, when aimed at a
person, would detect instantaneously whether the person is carrying
cocaine, there would be no Fourth Amendment bar, under the Court's
approach, to the police setting up such a device on a street corner
and scanning all passersby. In fact, the Court's analysis is so
unbounded that if a device were developed that could detect, from the
outside of a building, the presence of cocaine inside, there would be
no constitutional obstacle to the police cruising through a
residential neighborhood and using the device to identify all homes in
which the drug is present. In short, under the interpretation of the
Fourth Amendment first suggested in Place and first applied in this
case, these surveillance techniques would not constitute searches and
therefore could be freely pursued whenever and wherever law
enforcement officers desire. Hence, at some point in the future, if
the Court stands by the theory it has adopted today, search warrants,
probable cause, and even "reasonable suspicion" may very well become
notions of the past.



In Caballes, as already noted, the U.S. Supreme Court held that the
use of a narcotics-sniffing dog during a routine traffic stop, in the
absence of any suspicion of the motorist's involvement in drug
activity, did not implicate legitimate privacy interests. Ginsburg J.
(Souter J. concurring) stated, in dissent at p. 422:



Under today's decision, every traffic stop could become an occasion to
call in the dogs, to the distress and embarrassment of the law-abiding
population.



. . .



. . . Nor would motorists have constitutional grounds for complaint
should police with dogs, stationed at long traffic lights, circle cars
waiting for the red signal to turn green.



See also K. Lammers,"Canine Sniffs: The Search That Isn't"(2003), 1
N.Y.U. J.L. & Liberty 845, at pp. 849-50.



72 As held by our Court in Wong, the
emphasis should not be on the object of the search but on where the
search takes place and its potential impact on the person that is
subject to the search. Similarly, in Jacobsen, Brennan J. (Marshall
J. concurring) in dissent noted that





[i]n determining whether a reasonable expectation of privacy has been
violated, we have always looked to the context in which an item is
concealed, not to the identity of the concealed item. Thus in cases
involving searches for physical items, the Court has framed its
analysis first in terms of the expectation of privacy that normally
attends the location of the item and ultimately in terms of the
legitimacy of that expectation. . . .The fact that a container
contains contraband, which indeed it usually does in such cases, has
never altered our analysis. [p. 139]



These observations, although in dissent, seem to me to put the focus
where it belongs, namely on the person, place or thing searched and
the purpose for which the search is undertaken. A suspicionless
search should not be absolved by after-the-fact discovery of
contraband. The end does not justify the means. Unregulated sniffing
raises the very real problem of false positives, where a dog's alert
has proven to be inaccurate, or inaccurately interpreted by its
handler, and a law abiding citizen is put to embarrassment and
inconvenience.



73 I therefore do not agree with the
Crown's argument that A.M.'s reasonable privacy interest in the
contents of his backpack extended only to what was lawful and excluded
what was unlawful. On the contrary, I expect A.M. would not have
cared if the police had found a polished apple for the teacher in his
backpack. He would very much care about discovery of illicit drugs.
In past cases, we have accepted a legitimate privacy interest in a
home despite the presence therein of a drug (R. v. Evans, [1996] 1
S.C.R. 8, at para. 42), as well as the privacy of an office despite
the existence of incriminating documents (Thomson Newspapers Ltd. v.
Canada (Director of Investigation and Research, Restrictive Trade
Practices Commission), [1990] 1 S.C.R. 425, at pp. 517-19; R. v.
McKinlay Transport Ltd., [1990] 1 S.C.R. 627, at pp. 641 et seq.) and
an automobile despite the discovery of incriminating evidence (Wise,
at p. 533) or drugs (R. v. Mellenthin, [1992] 3 S.C.R. 615). In
Buhay, at para. 21, we upheld the privacy interest of an accused in
the contents of a duffel bag found in a locker in a bus depot
notwithstanding the presence of marijuana. There is no reason why a
student's privacy interest in his backpack should not be deemed
similarly respected despite the presence of contraband.





74 However, the fact that the "sniff"
only communicates the presence of contraband and does not disclose the
nature or existence of other personal belongings is not without
significance. It weighs in the "unreasonableness" balance because,
unlike the hand search, a dog sniff is a very narrowly targeted
invasion of the suspect's privacy interest.



F. The Dog Sniff Constituted a "Search" of the Contents of the
Student Backpacks



75 The use of the dog to "sniff" the
students' backpacks constituted a search. As the police officers
explained at trial, the only reason they went to St. Patrick's school
was to conduct a "random search" for drugs. They had no reason to
suspect at that point that any crime at all had been or was about to
be committed. They brought with them a dog which they had specially
trained to make their "search" more effective.



76 The Attorney General of Canada argues
that "with respect to detecting odours or smells dogs do what people
do, they just do it better" (factum, para. 3). I do not think this
attempt to anthropomorphize sniffer dogs is convincing. Dogs have a
capacity not available to human beings. The better analogy is to a
machine or device for detecting odours (such as a smoke alarm),
although dogs, being living creatures, are more variable than machines
in their performance. The dog "sniffing" cannot be treated as an
isolated phenomenon and detached from the broader police conduct. I
do not think it is plausible for the Crown to argue at one and the
same time that the sniffer-dog utility lies in quick accurate
identification of illicit drugs concealed inside a backpack, but that
the result is not a search. The lack of plausibility is equally
apparent in Kang-Brown, where the Crown argues simultaneously that the
dog sniff was not a search of the contents of the suspect's bag, yet
the information about the concealed contents revealed by the sniff was
treated by the RCMP as sufficient to arrest the suspect without ever
looking inside the self-same bag.





G. The Courts and Parliament Have Already Adopted for Some Purposes
an Intermediate Standard of "Reasonable Suspicion"



77 The suggestion that sniffer-dog
searches be permitted on reasonable suspicion, based on objective
grounds, rather than "reasonable belief " as laid down in the
circumstances of Hunter v. Southam should, of course, be approached
with caution. Reasonable "suspicion" has been used by this Court to
authorize police action in the context of investigative detention
(Mann and R. v. Clayton, 2007 SCC 32), entrapment (R. v. Mack, [1988]
2 S.C.R. 903, at pp. 964-65), and as justification for the search of a
student by a school authority in M. (M.R.), as already noted. The
"reasonable suspicion" standard has been adopted by Parliament in
regard to searches in areas where there exists a lesser expectation of
privacy, such as at border-crossings (e.g., the Customs Act, R.S.C.
1985, c. 1 (2nd Supp.), s. 98, a personal search of an individual who
is about to leave Canada, a person who has recently arrived, or a
person who has been in a departure area and who leaves the area but
not Canada), and s. 99.2 (where it is suspected that a person has
secreted on or about their person any contraband)). A reasonable
suspicion standard has also been adopted in the Corrections and
Conditional Release Act, S.C. 1992, c. 20, s. 49 (frisk search of an
inmate suspected of carrying contraband). Section 254 of the Criminal
Code (authorizing use of an "approved screening device" for testing
"the presence of alcohol in the blood") also offers some legislative
analogy outside the border and prison context as it too provides for a
minimally intrusive search without a warrant triggered on reasonable
suspicion.





78 Parliament has also used "reasonable
suspicion" where it is of the view that the public importance of the
objective outweighs the individual's privacy interest, as in the
Proceeds of Crime (Money Laundering) and Terrorism Financing Act, S.C.
2000, c. 17, including s. 15(1) (search of the person), s. 16(1)
(search of conveyance), s. 16(2) (search of baggage) and s. 17(1)
(opening of mail).



79 The validity of some of these
legislative provisions is being challenged in the courts, and their
particular circumstances will have to be considered at the relevant
time. My point simply is that "reasonable suspicion" is a recognized
legal standard that has been adopted where considered appropriate by
both Parliament and the courts.



80 Of course if "reasonable suspicion" is
construed as nothing more than a subjective standard, it may lead, as
critics fear, to abuse in terms of arbitrary police action and racial
profiling. Realistically, the possibility of after-the-fact
accountability will not help a lot of innocent people who have been
put to embarrassment by false positives. However, "reasonable
suspicion" requires the police officer's subjective belief to be
backed by objectively verifiable indications, as is discussed more
fully in Kang-Brown and by the B.C. Court of Appeal in R. v. Lal
(1998), 113 B.C.A.C. 47. The problem does not arise in the present
case, as the youth court judge concluded that there were no grounds
even of reasonable suspicion.



81 Why should the lower standard of
reasonable suspicion be adopted? As in Mann, the need is to strike an
appropriate balance, having regard to the opposing interests.
Firstly, the search, properly conducted, does not require any physical
contact with the person or object being sniffed. The dog in this case
was trained to alert "actively", by making physical contact with the
object searched (A.R., at pp. 75-76), but that is not essential. This
is an important factor in differentiating a "sniff" search from the
physical entry into an individual's private place.





82 Permitting the police to act on an
"intermediate" standard, that of reasonable suspicion, within the
framework of s. 8 will allow inappropriate conduct by the dog or the
police to be dealt with on the basis that although the lawful
authority to use the sniffer dog does exist, the search in the
particular case was executed unreasonably, for example, using an
inappropriately trained or poorly disciplined dog, and thereby
constituted a Charter breach under the third branch of Collins, on the
basis of which the evidence obtained may be excluded.



83 Secondly, as discussed, the dog's
communication capacity is limited to a positive alert or a failure to
react at all. Unlike a wiretap or a physical search, the police do
not obtain a lot of information about a suspect that is not relevant
to their specific drug inquiry. While the suspect has a privacy
interest in the place where the drugs are concealed, the fact that the
sniff will disclose nothing except the presence of illegal drugs in
that private place is a factor weighing in favour of moving the
balance point to the reasonable suspicion standard.



84 Thirdly, the evidence in this case is
that the sniffer dog Chief has an enviable record of accuracy. Of
course dogs, being living creatures, exhibit individual capacities
that vary from animal to animal. While a false positive may be rare
for Chief, it is not thus with all dogs. The importance of proper
tests and records of particular dogs will be an important element in
establishing the reasonableness of a particular sniffer-dog search.



85 The Crown attaches considerable
importance to what it says are statistics relevant to the detection
rate, that is to say the successful location of drugs in a search
conducted pursuant to a dog sniff (true positives), but an important
concern for the Court is the number of false positives. From the
police perspective, a dog that fails to detect half of the narcotics
present is still better than no detection at all. From the
perspective of the general population, a dog that falsely alerts half
of the time raises serious concerns about the invasion of the privacy
of innocent people.





86 Robert Bird, in his article "An
Examination of the Training and Reliability of the Narcotics Detection
Dog" (1996-97), 85 Ky. L.J. 405, claims that many dogs maintain "a
near perfect record of narcotics detection" (p. 406). However,
Justice Souter's dissent in Caballes provides a useful compilation of
some of the decided cases in the United States where, on the facts,
the result was otherwise:



The infallible dog, however, is a creature of legal fiction. Although
the Supreme Court of Illinois did not get into the sniffing averages
of drug dogs, their supposed infallibility is belied by judicial
opinions describing well-trained animals sniffing and alerting with
less than perfect accuracy, whether owing to errors by their handlers,
the limitations of the dogs themselves, or even the pervasive
contamination of currency by cocaine. [pp. 411-12]



Broadly based studies demonstrate an enormous variation in sniffer-dog
performances, with some dogs giving false positives more than 50
percent of the time. Canadian police data seem not to be available,
but in 2006, the New South Wales Ombudsman issued a report containing
extensive empirical data on the use of sniffer dogs by police since
the introduction of the Police Powers Act. During the review period,
17 different drug detection dogs made 10,211 indications during
general drug detection operations. The Ombudsman reported:



Almost all persons indicated by a drug detection dog were subsequently
searched by police. This is in accordance with police policy which
states that an indication by a drug detection dog gives police
reasonable suspicion to search a person.



Prohibited drugs were only located in 26% of the searches following an
indication. That is, almost three-quarters of all indications did not
result in the location of prohibited drugs.



The rate of finding drugs varied from dog to dog, ranging from 7% (of
all indications) to 56%.



(NSW Ombudsman, Review of the Police Powers (Drug Detections Dogs) Act
2001 (2006), at p. ii (emphasis added).)





See also L. R. Katz and A. P. Golembiewski in "Curbing the Dog:
Extending the Protection of the Fourth Amendment to Police Drug
Dogs" (2006-2007), 85 Neb. L. Rev. 735.



87 Moreover, the sniff does not disclose
the presence of drugs. It discloses the presence of an odour that
indicates either the drugs are present or may have been present but
are no longer present, or that the dog is simply wrong. Odour
attaches to circulating currency and coins. In the sniffer-dog
business, there are many variables.



88 I mention these conflicting reports
because it is important not to treat the capacity and accuracy of
sniffer dogs as interchangeable from one dog to the next. Dogs are
not mechanical or chemical devices. The police claim that they have
available dogs like Chief who have a high accuracy rate and a low
percentage of false positives. If the lawfulness of a search is
challenged, the outcome may depend on evidence before the court in
each case about the individual dog and its established reliability.
Neither the police nor other government authorities are justified in
relying on the "myth of the infallible dog". Proper police manuals
require a handler to record a dog's (or the team's) performance. This
is (or should be) accepted as an essential part of a handler's work
(see S. Bryson, Police Dog Tactics (2nd ed. 2000); R. S. Eden, K9
Officer's Manual (1993)), to be adduced as part of the evidentiary
basis laid before the trial court at which sniffer- dog evidence is
sought to be introduced.



89 The argument of critics based on the
existence of inept or poorly trained animals should not obscure the
point that a non-obtrusive search by a dog/handler team of established
reliability represents, in my view, a lesser step in a criminal
investigation than a physical search and one that may be triggered by
reasonable suspicion.



H. Is a Prior Judicial Warrant Required?



90 In sniffer-dog situations, the police
are generally required to take quick action guided by on-the-spot
observations. In circumstances where this generally occurs, as in the
bus terminal situation in Kang-Brown, it is not feasible to subject
the "sniffer dog's" sniff to prior judicial authorization. Absent a
positive "alert" by the dog, the police would have no basis on which
to push their investigation beyond a few Mann-type questions, much
less to detain the suspect. Both the suspect and his suspicious
belongings would be long gone before the paperwork could be done or a
telewarrant processed (even if such procedures were made available on
a "reasonable suspicion" standard). While a school setting provides a
different set of difficulties, the fact remains that there is no
mechanism in the Criminal Code to obtain a warrant on the basis of
reasonable suspicion, and there is apparently no immediate prospect of
Parliament addressing these issues. In my view, in the particular
context of sniffer dogs, there is sufficient protection for the public
in the prior requirement of objectively based reasonable suspicion and
after-the-fact judicial review to satisfy the "reasonableness"
requirement of s. 8. The trade-off for permitting the police to
deploy their dogs on a "reasonable suspicion" standard without a
warrant is that if this procedure is abused and sniffer-dog searches
proceed without reasonable suspicion based on objective facts, the
consequence could well tip the balance against the admission of the
evidence.



91 It is clear that the dog-sniff search
here was unreasonably undertaken. The youth court judge found that
the police lacked any grounds for reasonable suspicion. He wrote:





The search conducted November 7, 2002, was conducted without any
reasonable grounds. While Mr. Bristo gave evidence of concern
expressed by neighbours of the school and parents of the children at
the school of observations they had made giving rise to a reasonable
belief drugs would be at the school. There were no such disclosures
to school authorities on that day. Those disclosures to which Mr.
Bristo referred, had all been made previous to the day in question.
Until the moment the police arrived that day, none of the school
officials were aware the police were coming. The invitation to the
police was extended in a general fashion some time earlier.



Mr. Bristo did testify as to his belief in the likelihood of drugs
being present in the school on that day or any other day. Perhaps not
surprisingly, he is of the view that on any given day drugs will be
found in the school. While some flexibility must be extended to
school authorities with respect to what information will give them
reasonable grounds, I do not believe the intent of the Supreme Court
in M. (M.R.) is to allow a reasonably well- educated guess to
constitute reasonable grounds. [paras. 15-16]



Nor is a "reasonably well-educated guess" sufficient to constitute
reasonable suspicion. The Crown has shown no error in the youth court
judge's finding of fact. I therefore conclude that although a
warrantless sniffer-dog search is available where grounds for
reasonable suspicion are demonstrated, the sniffer-dog search of the
students' belongings in this case violated their Charter rights under
s. 8.



I. Were the Students Unlawfully Detained?



92 The accused contends that when the
students were told by the principal to remain in their classrooms,
there was a s. 9 detention. I do not agree.





93 The school principal announced over
the school's public address system that the police were on site and on
his own initiative informed the staff and students that they were to
remain in their classrooms until the police were finished (A.R., at
pp. 3, 47 and 64). He made this announcement for the mutual benefit
of the police and the school population, "so the dogs can work and the
kids can feel -- the kids are out of the halls" (A.R., at p. 55). The
principal acknowledged that his announcement would make it easier for
the police to do their jobs, but repeated that the benefit was
"mutual" (A.R., at p. 55). His announcement should be seen as action
by the school principal pursuant to the Education Act to maintain
order and discipline in the school. It was not itself a Charter
breach.



J. Should the Evidence Nevertheless Be Admitted Pursuant to Section
24(2) of the Charter?



94 Constable Callander testified that he
went to St. Patrick's to conduct a "random sear[ch]" (A.R., at p.
79). He acknowledged that any attempt to obtain a search warrant
would have been "a fruitless exercise" (A.R., at p. 88). He did not
have any "direct awareness" of drugs in the school (A.R., at p. 84)
and there was no concern for anyone's safety (A.R., at p. 84). My
colleague Deschamps J. writes that:



There is evidence in the record that drugs were prevalent at the
school. . . . Mr. Bristo . . . testified that "on any given day drugs
will be found in the school" . . . . [para. 104]



However, in the paragraph cited by my colleague, the trial judge
concluded that Mr. Bristo's comments represented no more than a
"reasonably well-educated guess" (para. 16). The trial judge did not
find that drugs were prevalent in the school. There is no evidence
from which it could be concluded that St. Patrick's had any greater
problem than other schools. This is not to diminish the importance of
dealing with drugs in schools, but, with respect, the trial judge was
in a better position than we are to evaluate the effect of Mr.
Bristo's evidence.



95 After a careful review of the s. 24(2)
factors set out in Collins, the youth court judge concluded:





This search was unreasonable from the outset. It is completely
contrary to the requirements of the law with respect to the search in
a school setting. To admit the evidence is effectively to strip A.M.
and any other student in a similar situation of the right to be free
from unreasonable search and seizure. It is effectively saying that
persons in the same situation as A.M. have no rights. Such a finding
would, to my mind, bring the administration of justice into disrepute,
notwithstanding the other factors I have alluded to. [para. 25]



96 In Collins, Lamer J. held that the
exercise of a trial judge's discretion in s. 24(2) is "grounded in
community values" and that its exercise would not be interfered with
on appeal unless it were based on a wrong principle or exercised in an
unreasonable manner (p. 283). See also R. v. Law, [2002] 1 S.C.R.
227, 2002 SCC 10, at para. 32. Wise, at p. 539. R. v. Stillman,
[1997] 1 S.C.R. 607, at para. 68, and Buhay, at para. 48.





97 The youth court judge here noted that
the evidence of the drugs existed independently of the Charter
violation and that its admission, being non-conscriptive, would not
affect trial fairness (A.R., at p. 10). The evidence was essential to
the Crown's case. Further, having regard to the school setting, "the
breach must be seen on the less serious end of the scale" (A.R., at p.
10). No bad faith could be attributed to the police or school
authorities (A.R., at p. 11). All of these factors tended to favour
admission of the evidence despite the Charter breaches. However,
weighed against admission was the fact that the speculative sweep in
this case appears to be the standard practice of the OPP and the
municipal police forces in Ontario. The searches did not respect the
rules set out four years previously by this Court in M. (M.R.); nor
did they comply with the school board's own policies enacted pursuant
to the Education Act, which call for police to be used only "when
necessary, or if the well-being of the student is at risk" (see St.
Clair Catholic District School Board Policies and Procedures: Section
3: Students (2000), Policy 3.10, at p. 3). Constable McCutchen
acknowledged that he had participated in sniffer-dog searches of
schools on approximately 140 prior occasions (A.R., at p. 74). The
failure to respect the right of the students may therefore be
described as systemic. In the end, weighing the good with the bad,
the youth court judge concluded that "the Charter must not be seen as
something to be swept away in the interests of expediency. While this
case centres around the rights of A.M., the rights of every student in
the school were violated that day as they were all subject to an
unreasonable search" (para. 25).



98 Like Armstrong J.A. in the Ontario
Court of Appeal, I would not interfere with the balance of competing
values struck by the youth court judge or his exclusion of the
evidence. Youth court judges carry out special responsibilities for
young people in trouble with the law. They have a greater awareness
than appellate judges do of the effect that admission or exclusion of
this evidence would have on the reputation of the administration of
justice in the community with which they deal on a daily basis. The
trial judge's analysis was brief but perceptive. I would not
interfere.



V. Disposition



99 I would dismiss the appeal.



The reasons of Deschamps and Rothstein JJ. were delivered by



Deschamps J. --





100 The presence of drugs in our schools is
a very serious social problem. Schools must be substantially free of
illegal drugs to promote a safe and productive learning environment
for the benefit of students and staff. In this case, a high school's
zero-tolerance policy for drugs was enforced using a sniffer dog to
check an unattended backpack in an empty school gymnasium. Even though
students and parents had been informed of the zero-tolerance policy
and sniffer dogs had been used in the past, the respondent A.M. claims
that evidence of the marijuana and psilocybin ("magic mushrooms")
found in his backpack by police using a sniffer dog should be excluded
on the basis that it was obtained unconstitutionally.



101 In my view, both the trial judge and the
Ontario Court of Appeal erred in failing to consider the threshold
issue of whether A.M. had a reasonable expectation of privacy that
engaged s. 8 of the Canadian Charter of Rights and Freedoms in this
case. In my view, he did not. Accordingly, I would allow the appeal
and order a new trial.



102 This case was heard together with R. v.
Kang-Brown, 2008 SCC 18, which concerns the use by police of a sniffer
dog to check the luggage of a traveller in a bus terminal on the basis
of a reasonable suspicion that evidence of an offence would be
discovered. There are several common issues in these two cases. Unlike
in the instant case, however, the facts of Kang-Brown also raise the
issues of a reasonable expectation of privacy engaging s. 8 of the
Charter, and reasonable suspicion. That case is thus better suited to
legal analysis. In the interest of concision, therefore, the main
legal propositions at issue in both cases are set out in my reasons in
Kang-Brown.



1. Facts



103 A.M. was a student at St. Patrick's High
School in Sarnia, Ontario. The school had a zero-tolerance policy for
drugs. The trial judge noted that "[s]tudents are aware of the policy
and are also aware that to enforce the policy, the school authorities
may resort to the use of police officers with drug detector
dogs" ((2004), 120 C.R.C. (2d) 181, 2004 ONCJ 98, at para. 5). Parents
were also made aware of the zero-tolerance policy and of the use of
sniffer dogs to enforce the policy.





104 There is evidence in the record that
drugs were prevalent at the school. Neighbours of the school and
parents of students had spoken to the principal, Mr. Bristo, about the
presence of drugs at the school. Specifically, Mr. Bristo testified
that parents and neighbours had called him to report that they
believed students were engaging in drug activities outside the school,
and parents had also reported that they were aware of students using
drugs and were "fearful about a safe and orderly environment" (A.R.,
at p. 50). Under cross-examination, Mr. Bristo agreed that the reports
relating to drugs in the school were ongoing and consistent. He also
testified that "on any given day drugs will be found in the
school" (A.R., at p. 8) and that some students "go out of their way to
hide things around the building or hide it on their person" (A.R., at
p. 46).



105 After becoming the principal of St.
Patrick's High School in September 2000, Mr. Bristo had issued a
"standing invitation" to the police to visit the school with sniffer
dogs if dogs were available (A.R., at p. 2). The trial judge stated
that the invitation had been "extended to allow school authorities to
more easily enforce school discipline" (A.R., at p. 5).



106 Between September 2000 and November
2002, the police went to the school with their sniffer dog on a couple
of occasions to determine whether there were illegal drugs there
(A.R., at p. 16). They would go through the hallways and the parking
lot and, "if time is available, sometimes even [go] into
classrooms" (A.R., at pp. 45-46).





107 On November 7, 2002, three police
officers once again asked for permission to look for drugs at the
school with their dog. Mr. Bristo immediately gave them permission to
do so. To allow the police to do their work, he made an announcement
over the school's public address system in which he instructed
students to remain in their classrooms. The dog was trained to find
humans and detect five types of narcotics: heroin, marijuana, hashish,
crack cocaine and cocaine. There is no evidence that the dog went into
any classrooms or came into direct contact with any students on this
occasion.



108 Once the police had gone through the
areas of the school they had intended to visit, they asked Mr. Bristo
if there were any other areas that might be of interest. He suggested
a gymnasium.



109 In the gymnasium, where there were no
students, the dog indicated to his handler that he smelled drugs in a
backpack lying with others next to the wall. The handler passed the
backpack to another officer, who searched it and found five bags of
marijuana, ten magic mushrooms (psilocybin), drug paraphernalia (a
pipe, a lighter, rolling papers and a roach clip) and a wallet
containing A.M.'s identification.



110 A.M. was suspended for a number of days
pursuant to the school's zero- tolerance drug policy. He was also
charged with possession of cannabis marijuana for the purpose of
trafficking and with possession of psilocybin.





111 A.M. brought an application to exclude
the evidence of the marijuana and psilocybin under s. 24(2) of the
Charter on the basis that his s. 8 right to be secure against
unreasonable search or seizure had been infringed. Hornblower J. based
his analysis on this Court's decision in R. v. M. (M.R.), [1998] 3
S.C.R. 393, and began by considering "whether the school authorities
were acting as agents of the police" (para. 10). After finding that
they were not, he immediately turned to the issue of the
reasonableness of the search. He reasoned that since the search was
conducted without prior judicial authorization, it was prima facie
unreasonable and that any search of A.M.'s backpack would have to be
based on reasonable grounds, specific to an individual, to believe
that evidence of an offence would be discovered. He accordingly found
that s. 8 of the Charter had been infringed. Hornblower J. concluded
that the evidence should be excluded under s. 24(2) of the Charter. As
a result, the charges against A.M. were dismissed.



112 Armstrong J.A., writing for the Ontario
Court of Appeal, considered that the use of the sniffer dog at the
school constituted a warrantless and random search. He agreed that the
use of the dog constituted a police search and stated that the dog
sniff of A.M.'s backpack constituted a search for s. 8 purposes. In
his view, "a student's backpack should be afforded at least the same
degree of respect as an adult's briefcase" ((2006), 79 O.R. (3d) 481,
at para. 49). He held that because the search was warrantless it was
prima facie unreasonable. Armstrong J.A. stated that neither the
legislation nor the policies in effect at the time authorized
warrantless, random searches. He could find no error in Hornblower
J.'s decision to exclude the evidence. Accordingly, he dismissed the
appeal and upheld the dismissal of the charges.



2. Issues



113 The issues in this appeal are whether
A.M.'s right to be secure against unreasonable search or seizure
pursuant to s. 8 of the Charter was infringed in the circumstances of
this case and, if so, whether the evidence obtained should be excluded
pursuant to s. 24(2) of the Charter.



3. Analysis



114 The Charter provision involved in this
appeal reads as follows:



8. Everyone has the right to be secure against unreasonable search or
seizure.





115 After summarizing the legal principles
applicable to this s. 8 claim, I will apply them to this case.



3.1 Applicable Legal Principles



116 As mentioned above, my view on the law
applicable to this case is set out more fully in the companion case of
Kang-Brown. With this in mind, the main legal principles to be applied
in assessing this s. 8 claim can be summarized as follows:



(1) To determine whether s. 8 is engaged, an accused must establish
that his or her expectation of privacy was reasonable in light of the
totality of the circumstances. The alleged privacy interest must be
framed in broad and neutral terms.



(2) If s. 8 is engaged, the reasonableness of the search or seizure
must be evaluated. The Crown must show that the search was authorized
by law, that the law was reasonable, and that the search was carried
out in a reasonable manner.



(3) Where the Crown relies on common law police powers as authority
for the search, it must demonstrate both (a) that the police were
acting in pursuit of a lawful duty when they conducted the search, and
(b) that the search amounted to a justifiable use of police powers
associated with that duty.



(4) The grounds the police must have had for a court to find that a
given investigative technique was properly employed will depend on
what was reasonably necessary in the circumstances. The standards
range from no grounds, to reasonable suspicion, to reasonable grounds
to believe that evidence of an offence will be discovered.





117 It is therefore necessary in the case at
bar to determine whether A.M. had a reasonable expectation of privacy
that engaged s. 8.



3.2 Application to this Appeal



3.2.1 Identifying A.M.'s Alleged Privacy Interest



118 The central issue in this appeal is
whether the use of a sniffer dog amounts to a "search" for the
purposes of s. 8 of the Charter.



119 A.M.'s backpack was closed and was in a
pile with others in the small gymnasium of St. Patrick's High School
when the police officers entered the room with their sniffer dog. It
is significant that the odours emanating from the backpack could not
be detected by the police using their own senses and that the police
necessarily relied on the use of the dog to identify, among the
several backpacks in the gymnasium, which, if any, contained
controlled substances. The dog's positive indication on sniffing
A.M.'s backpack enabled the police to ascertain what was inside the
backpack with a reasonably high degree of accuracy. Accordingly, I
have no difficulty in finding that the use of the dog in this case
amounted to a search from an empirical perspective. However, what A.M.
had to establish was that the use of the dog amounted to a "search"
from a constitutional perspective such that it implicated a reasonable
expectation of privacy that engaged the protection of s. 8. This is
the question I will now consider.



120 Framed in broad and neutral terms, the
alleged privacy interest was in odours imperceptible to humans that
emanated from A.M.'s unattended backpack in a school gymnasium.





121 No personal privacy interest as defined
in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67, at para. 23, is
in issue in this case, since A.M. was not wearing or carrying his
backpack at the time of the alleged search. Indeed, he was not present
when the backpack was searched. It would be a different case if A.M.
had been wearing the backpack when the police checked it with the
sniffer dog. Moreover, the backpack in question is clearly not the
type of bag a student would wear on his or her person at all times
such that a search of the bag would be tantamount to a search of the
person wearing it.



122 The alleged privacy interest in this
case has both an informational and a territorial component. As in Kang-
Brown, the odours from A.M.'s backpack might disclose intimate
personal details about him, namely his having recently come into
contact with a controlled substance either as a drug trafficker, an
illegal drug user or a legal drug user (such as a user of medicinal
marijuana), or by being in the company of drug users.



123 The territorial component of the alleged
privacy interest in this case is considerably less significant than in
Kang-Brown. Whereas the search in that case took place in a bus
terminal, the one in the case at bar took place in a school. I will
discuss these factors in greater detail below in evaluating the
reasonableness of A.M.'s expectation of privacy.



124 Having identified the alleged privacy
interest in this case, I will now consider whether A.M.'s expectation
of privacy was reasonable.



3.2.2 Reasonableness of A.M.'s Expectation of Privacy





125 The principal submission made by the
Crown in its appeal in this case is that A.M. did not have a
reasonable expectation of privacy that engaged s. 8 of the Charter.



126 In my view, both the trial judge and the
Court of Appeal erred in failing to consider the threshold issue of
whether A.M. had a reasonable expectation of privacy that engaged s. 8
of the Charter. At trial, Hornblower J. did not consider whether a
reasonable expectation of privacy was at stake. Rather, he simply
assumed that it was. The Court of Appeal did not correct this error of
law. Armstrong J.A. simply stated: "I do not find it necessary in this
case to decide whether the police activity prior to the search of the
backpack constituted a search for s. 8 purposes. In my view, the dog
sniff of A.M.'s backpack and the search of the backpack by Constable
Callander constituted a search for the purposes of s. 8 of the
Charter" (para. 45).



127 It must be determined whether, in light
of the totality of the circumstances, including the relevant factors
discussed in R. v. Simmons, [1988] 2 S.C.R. 495, R. v. Edwards, [1996]
1 S.C.R. 128, at para. 45, and Tessling, at para. 32, the dog sniff of
A.M.'s backpack involved a reasonable expectation of privacy that A.M.
had. Neither the trial judge nor the Court of Appeal conducted this
analysis. This Court must therefore do so.



128 The pivotal question in this appeal is
whether A.M. had a reasonable expectation of privacy in respect of
odours imperceptible to humans that emanated from his unattended
backpack in a school gymnasium. This requires consideration of whether
A.M. had a subjective expectation of privacy and whether his privacy
interest was objectively reasonable. In Kang-Brown, at para. 140, I
identify a non-exhaustive list of factors to aid in this assessment:



(i) the presence of the accused at the time of the alleged
search;



(ii) the subject matter of the alleged search:



(a) ownership and historical use of the subject matter;



(b) whether the subject matter was in public view;



(c) whether the subject matter had been abandoned;



(d) where the subject matter is information, whether the information
was already in the hands of third parties; if so, was there a duty of
confidentiality in relation to it?



(iii) the place where the alleged search
occurred:



(a) ownership, possession, control or use of the place where the
alleged search took place;



(b) the ability to regulate access, including the right to admit or
exclude others from the place;



(c) notification of the possibility of searches being conducted in
the place;



(iv) the investigative technique used in the
alleged search:



(a) whether the police technique was intrusive in relation to the
alleged privacy interest;



(b) whether the information obtained in the alleged search exposed
any intimate details of the accused's lifestyle, or information of a
biographical nature.



129 In my view, A.M. did not have a
subjective expectation of privacy in the case at bar. Students and
parents were aware of the drug problem and the zero-tolerance drug
policy and of the fact that sniffer dogs might be used. Dogs had in
fact been used on prior occasions to determine whether narcotics were
present at the school. A.M. did not lead any evidence to rebut these
facts. Defiance of school policy must not be confused with an
expectation of privacy. Of course, school policy must be implemented
in a manner consistent with a legitimate expectation of privacy.
However, the well-advertised means devised and used by the school
reduced A.M.'s subjective expectation of privacy very significantly,
as was true of the R.I.D.E. program in issue in Dedman v. The Queen,
[1985] 2 S.C.R. 2, at pp. 28-29.





130 Moreover, there are numerous factors
that support a finding that A.M.'s expectation of privacy was not
objectively reasonable.



131 First, the place where the search
occurred was a school with a known problem of drug use by students,
both on and off school property. In M. (M.R.), which concerned a
personal search of a student by a school official, Cory J., writing
for the majority, held that a student's reasonable expectation of
privacy is significantly diminished while he or she is at school:



. . . the reasonable expectation of privacy of a student in attendance
at a school is certainly less than it would be in other
circumstances. Students know that their teachers and other school
authorities are responsible for providing a safe environment and
maintaining order and discipline in the school. They must know that
this may sometimes require searches of students and their personal
effects and the seizure of prohibited items. It would not be
reasonable for a student to expect to be free from such searches. A
student's reasonable expectation of privacy in the school environment
is therefore significantly diminished. [para. 33]



These words by Cory J. are all the more compelling where, as in the
instant case involving an unattended backpack on school property, a
non-personal search is in issue. A.M. did not have a right to control
access to the school and, unlike in M. (M.R.), the police were there
with the permission (and at the request) of the school's principal in
furtherance of disciplinary goals being pursued by the school in order
to confront a systematic drug problem. The dogs were used to search
the premises, not the students. In these circumstances, the objective
expectation of privacy in respect of an unattended backpack on this
school's property was not only significantly diminished, but extremely
low.





132 It is notable that there is a clear
connection between the school environment, which is tightly
controlled, and the search that took place at the school. The
provincial Ontario Schools Code of Conduct (2001), established under
the Education Act, R.S.O. 1990, c. E.2, recognizes that "illegal drugs
are addictive and present a health hazard", and calls on Ontario
schools to "work cooperatively with police" to address the issue (p.
3). A.M. was subject to school discipline as a result of the drugs
that were found in his backpack. Constable Callander testified that
the Sarnia police do not go into a school with their sniffer dog
unless asked to do so by school authorities (A.R., at p. 78). It is
also notable that neither the police nor the school authorities acted
on an "educated guess" or a random "hunch" in this case. Rather, the
school authorities invited the police in response to what they
reasonably viewed as credible concerns expressed by students' parents
and neighbours of the school. They relied on cooperation with the
police to ensure a safe and secure learning environment for the
benefit of all students and staff.



133 Owing to the drug problem in this
school, it was critical that the school authorities take enhanced
control measures. The well-publicized zero-tolerance policy and the
measures taken in the past to enforce that policy call to mind Le Dain
J.'s comment in Dedman (at p. 36) that the psychological effects of
random vehicle stops under the R.I.D.E. program, which were carried
out to detect impaired motorists, tended "to be minimized by the well-
publicized nature of the program, which is a necessary feature of its
deterrent purpose".



134 A.M., and all the school's other
students and its staff, benefited from an environment that was
substantially free from illegal drugs and the ills that they bring. In
this respect, the situation in a school, where the environment is
controlled for the benefit of those who attend it, is analogous to --
albeit distinct from -- that of a courthouse, where one has a very low
expectation of privacy in respect of one's belongings: see R. v.
Campanella (2005), 75 O.R. (3d) 342, (C.A.), at paras. 17, 19, 20 and
24.





135 The controlled environment of a school's
property is also analogous to the customs context. In Simmons, Dickson
C.J. held at p. 528 that the degree of personal privacy reasonably
expected at customs is lower than in most other situations, both
because the state has an important interest in enforcing customs laws
in the interest of public safety and because individuals have a
significantly reduced expectation of privacy. According to Chief
Justice Dickson:



People do not expect to be able to cross international borders free
from scrutiny. It is commonly accepted that sovereign states have the
right to control both who and what enters their boundaries. For the
general welfare of the nation the state is expected to perform this
role. Without the ability to establish that all persons who seek to
cross its borders and their goods are legally entitled to enter the
country, the state would be precluded from performing this crucially
important function. Consequently, travellers seeking to cross national
boundaries fully expect to be subject to a screening
process." [Emphasis added; p. 528.]





136 Likewise, schools are expected to ensure
the safety of their students and staff. Students fully expect that
school authorities will perform this crucially important function. In
the instant case, the reasonable expectation of privacy of the
school's students was even lower in light of the school's well-
publicized zero-tolerance policy and the means employed in the past to
enforce it. As Dickson C.J. noted in Simmons (at p. 526), this
contextual approach to determining reasonableness under s. 8 was
established in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, where
Dickson J. (as he then was) had held, at pp. 159-60:



The guarantee of security from unreasonable search and seizure only
protects a reasonable expectation. This limitation on the right
guaranteed by s. 8, whether it is expressed negatively as freedom from
"unreasonable" search and seizure, or positively as an entitlement to
a "reasonable" expectation of privacy, indicates that an assessment
must be made as to whether in a particular situation the public's
interest in being left alone by government must give way to the
government's interest in intruding on the individual's privacy in
order to advance its goals, notably those of law enforcement.
[Emphasis added; emphasis in original deleted.]





137 A second factor that supports a finding
that A.M.'s expectation of privacy was not objectively reasonable is
the fact that he was not present at the time of the search. I would
add that since there were no students in the school gymnasium at the
time of the search, there was no risk that the dog, on sniffing a
backpack worn by a student, might make a false positive indication
leading to a -- more intrusive -- personal search of the student.



138 A third factor is the fact that A.M.'s
backpack was left not only unattended, but also in plain view. While
there is no indication that the backpack was abandoned, the use of a
sniffer dog to check an unattended bag left in plain view is less
intrusive than the use of one to check a bag that is either worn or
carried by an individual, or is placed in a locked compartment out of
plain view.



139 A fourth factor is the fact that the
investigative technique was relatively non-intrusive. While it is true
that the dog was able to detect the presence of drugs in A.M.'s
backpack, it was able to do so without the backpack being opened.
Moreover, the dog was trained only to detect drugs and find humans. It
could not therefore convey any information other than that there were
drugs present. Thus, the use of a sniffer dog in these circumstances
was a less intrusive investigative technique than simply opening
A.M.'s backpack without a prior positive indication by the dog.



140 The use of a sniffer dog as an
investigative technique did not intrude unreasonably on A.M.'s privacy
interest, since his informational privacy interest was extremely
limited in the school environment. Therefore, in my view, in light of
the totality of the circumstances, A.M. did not have a reasonable
expectation of privacy that engaged s. 8.



3.2.3 Reasonableness of the Search





141 Since I am of the view that A.M. did not
have a reasonable expectation of privacy that engaged s. 8 of the
Charter, it is not necessary to determine whether the search was
reasonable.



142 Furthermore, since A.M. did not have a
reasonable expectation of privacy in respect of his backpack that was
sufficient to engage s. 8 of the Charter, and since the police were
lawfully present at the school with the principal's permission and
were acting in pursuit of their duty to investigate and prevent crime,
no individualized grounds were required for the police to employ their
sniffer dog as they did in this case.



3.2.4 Additional Comments



143 I have had the benefit of reading the
reasons of Binnie J., which invite the following comments.



144 At para. 86 of his reasons, Binnie J.
notes that no evidence as to the accuracy of sniffer dogs was adduced
in the instant case. He proceeds to impugn the accuracy of sniffer
dogs generally, by drawing on data gathered by the New South Wales
Ombudsman, Review of the Police Powers (Drug Detection Dogs) Act 2001
(2006), concluding at para. 87: "In the sniffer-dog business, there
are many variables." With respect, this foray into the accuracy of
the dog used in this case is unwarranted. The trial proceeded on the
basis that sniffer dogs are generally accurate. This general accuracy
was established both as an explanation for their widespread use and as
a basis for the argument that they should be accepted as a proper
investigative tool. This Court must confine its disposition of the
instant case to the facts that were adduced and accepted at trial. It
is not proper for the Court to consider the inaccuracy of sniffer dogs
ex proprio motu and, in so doing, to make an assumption that the dog
used might have been improperly trained.





3.2.5 Section 24(2)



145 It is not necessary to consider
excluding the evidence under s. 24(2) of the Charter since no
infringement of a Charter right has been established.



4. Conclusion



146 Schools are places of education, but
will that education consist of enlightenment for the betterment both
of students and of our free and democratic society, or will schools
become places where students become ensnared by drugs, gangs, violence
and anti-social behaviour? It is crucial to recognize that the
presence of drugs in a school cannot reasonably be dissociated from
the physical violence that attends the trafficking, purchase and use
of drugs. Our criminal law, education legislation and school board
policies recognize that students are particularly vulnerable to the
dangers posed by illegal drugs, dangers which are so immediate and
grave as to be indissociable from the social risks posed by, for
example, weapons. The introduction of drugs into a school is
tantamount to the introduction of a toxic substance into an otherwise
safe environment. Not only are drugs literally, and directly, toxic,
but they are indirectly toxic as well in light of the harm and
violence that attend the production, trafficking and consumption of
drugs. Since drugs are readily concealed and since their odours are
often imperceptible to humans, school officials are essentially
powerless to confront the possession and trafficking of drugs in these
institutions of learning without the assistance of the police using
well-trained sniffer dogs.





147 Drugs had infiltrated St. Patrick's High
School. A zero-tolerance policy for drugs was in effect, and parents
and students alike had been informed that the policy existed and that
it would be enforced by using sniffer dogs. On the day in question, as
on other occasions, the police went to the school and, with the
permission of the principal, used their dog to check A.M.'s unattended
backpack in the school's gymnasium. Only after the dog gave a positive
indication of the presence of a controlled substance did the police
open the unidentified backpack and find drugs inside, together with
A.M.'s identification. In light of these circumstances, A.M. did not
establish a reasonable expectation of privacy that would preclude the
use of the sniffer dog.



148 This case demonstrates the importance of
answering the threshold question whether an accused had a reasonable
expectation of privacy that engaged s. 8 of the Charter before
prematurely subjecting the investigative technique employed by the
police to a full s. 8 analysis. In my view, the privacy interest
affected by the use in this case of a sniffer dog to check A.M.'s
unattended backpack in a school gymnasium where there were no students
was so extremely low that it did not engage s. 8 of the Charter.



149 Because I have found that A.M. did not
have a reasonable expectation of privacy that engaged s. 8 of the
Charter, I would allow the appeal and order a new trial.



The following are the reasons delivered by



Bastarache J. --





150 A.M. has been charged with possession of
psilocybin (magic mushrooms) and possession of cannabis marijuana for
the purpose of trafficking. Police discovered the drugs in A.M.'s
backpack after the bag was sniffed by a police dog trained in drug
identification. The search took place at St. Patrick's High School,
where A.M. was a student. The central issue raised by this appeal is
whether the dog sniff constituted a reasonable search under s. 8 of
the Canadian Charter of Rights and Freedoms and, if not, whether the
evidence ought to be excluded pursuant to s. 24(2).



151 The reasons which follow form an
application of the principles I have outlined in the accompanying case
of R. v. Kang-Brown, 2008 SCC 18. In Kang-Brown, I emphasized the
important role sniffer dogs can play in the prevention and deterrence
of crime and found that the use of these dogs is appropriate, under
certain conditions, where police have a reasonable suspicion about the
presence of illicit substances. In some instances, this suspicion
will attach to a particular individual, as was demonstrated in Kang-
Brown itself. In other situations, however, police will have a
reasonable suspicion that attaches to a particular activity or
location rather than to a specific person. This generalized suspicion
will form a sufficient basis to justify random searches of bags or
luggage in some circumstances. Absent Parliamentary direction on when
generalized reasonable suspicion will be sufficient to allow the use
of sniffer dogs, the courts must make this determination on a case-by-
case basis by balancing the importance of protecting the privacy
interests of individuals with the public interest in preventing and
investigating criminal activity.





152 In my view, using sniffer dogs to
perform a random search for drugs at a high school can be justified on
the basis of a reasonable generalized suspicion. Schools are unique
environments in which crime prevention has a heightened importance,
and the need to protect children from the dissemination of drugs must
be taken into account when the requisite balancing is performed. This
does not mean, however, that police may enter a school and conduct a
search whenever they please on the basis that drugs may be found there
on any given day. Reasonable suspicion requires more than a mere
hunch. Further, the suspicion must be temporally related to the
search -- police are unable to justify the random use of sniffer dogs
by relying on a suspicion which existed many months in the past.



153 In this case, the use of the dog sniff
was not based on a current, reasonable suspicion. As a result, the
search was unreasonable for the purposes of s. 8 of the Charter. The
evidence found in A.M.'s backpack, however, ought nonetheless have
been admissible at trial. Section 24(2) of the Charter requires that
evidence is only excluded when its admission would bring the
administration of justice into disrepute, and admission in this case
would not have that effect. As a result, I would have allowed the
appeal on the limited basis that the evidence against A.M. ought to
have been admitted at trial notwithstanding the breach of his s. 8
rights.



I. Facts



154 The essential facts of this case can be
briefly summarized. On November 7, 2002, the police arrived at St.
Patrick's High School and asked for permission to search the school
for drugs. The principal, Mr. Bristo, agreed to the search, and
students were directed to remain in their classrooms while the police
used a sniffer dog to search three classrooms and several lockers in
the hallway. Mr. Bristo then indicated to the police that they should
search the gymnasium, where a number of student school bags were lined
up against a wall. The police dog, Chief, sniffed the bags and
indicated the presence of drugs in one of them. That bag was then
searched by a police officer who found it to contain several bags of
marijuana, ten magic mushrooms, and other drug paraphernalia.
Identification indicating that the backpack belonged to A.M was also
found and he was subsequently arrested and charged.





155 St. Patrick's has a zero-tolerance
policy with regards to possession of drugs and use of drugs in the
school. Parents and students are made aware of this policy and are
informed that the school may access the services of police dogs if
they are available. Mr. Bristo became principal of the school in
September 2000 and at that time he contacted the police and gave them
a "standing invitation" to conduct searches at the school whenever
resources made it feasible to do so. Mr. Bristo testified that
although he had in the past received reports from neighbours and
parents about drug activity in and around the school, he had "no
knowledge" that there might be drugs within the school on the date the
search was performed. It was, however, "pretty safe to assume that
they could be there".



II. Analysis



A) Reasonable Expectation of Privacy



156 A police activity is only considered a
search for the purposes of s. 8 of the Charter if it invades a
reasonable expectation of privacy (R. v. Evans, [1996] 1 S.C.R. 8, at
para. 11). This expectation can vary with the "nature of the matter
sought to be protected, the circumstances in which and the place where
state intrusion occurs, and the purposes of the intrusion" (R. v.
Colarusso, [1994] 1 S.C.R. 20, at p. 53), and must be evaluated in
light of the "totality of the circumstances" (R. v. Edwards, [1996] 1
S.C.R. 128).





157 In my view, A.M. had a reasonable, but
limited, expectation of privacy in his backpack at the time the dog
sniff occurred. Student backpacks frequently contain many personal
items and I am prepared to find that A.M., like other high school
students, had a subjective expectation that the contents of his bag
were private. As I noted in Kang-Brown, it is relevant from an
objective perspective that the odour identified by the dog sniff was
not accessible to humans and that its detection provided immediate
information about the contents of the backpack. The sniff thus
revealed a "biographical core of personal information" about A.M. and
his personal choices that would otherwise have been kept secret from
the state.



158 In addition, I find that the fact that
A.M. was not carrying his backpack at the time the search occurred did
not remove his reasonable expectation of privacy in its contents. An
individual is not required to be physically in possession of an object
in order for a reasonable expectation of privacy to be found (R. v.
Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, and R. v. Law, [2002] 1
S.C.R. 227, 2002 SCC 10), and there is no indication in this case that
A.M.'s backpack was in any way abandoned. To the contrary, the
evidence suggests that A.M. and his classmates were likely required by
school officials to leave their bags unattended in the gym at the time
the search began: "there was a class ... being conducted in that area
when all of [the search] was announced. But the students were not in
the gym [at the time of the search] as I recall. Where they had been
directed to, I can't testify to firmly" (A.R., at p. 65 (emphasis
added)). Regardless of where A.M. and his classmates were directed to
after the search was announced, it is in my view clear that these
students had not abandoned their backpacks by leaving them in the gym
that day. Further, I believe that a high school student who, like his
classmates, leaves his bag unattended during gym class continues to
have a reasonable expectation of privacy in its contents. As a
result, both a subjective and objective expectation of privacy have
been established.





159 A.M.'s reasonable expectation of privacy
is, however, diminished by the fact that this dog sniff occurred at
the school. Schools are highly regulated environments where the
threat of dangerous weapons and illicit drugs must be taken very
seriously by school officials charged with maintaining an effective
and safe learning environment. Students are aware of the importance
both society at large and school administrators place on the school
environment, and have a diminished expectation of privacy as a result.
This diminished expectation was emphasized by this Court in R. v. M.
(M.R.), [1998] 3 S.C.R. 393:



[T]he reasonable expectation of privacy of a student in attendance at
a school is certainly less than it would be in other circumstances.
Students know that their teachers and other school authorities are
responsible for providing a safe environment and maintaining order and
discipline in the school. They must know that this may sometimes
require searches of students and their personal effects and the
seizure of prohibited items. It would not be reasonable for a student
to expect to be free from such searches. A student's reasonable
expectation of privacy in the school environment is therefore
significantly diminished. [para. 33]



160 My conclusion is thus that although A.M.
had a reasonable expectation of privacy in his backpack, this
expectation was significantly diminished as a result of the fact that
this search occurred at a school. Privacy interests do not need to be
of the highest form to attract s. 8 protection (Buhay, at para. 22),
but the degree of the interest will be taken into account in the
remainder of the analysis (M. (M.R.), at para. 34).



B) Reasonable Search Authorized by Common Law



(1) Lawful Police Duty



161 The police were issued an open
invitation to attend St. Patrick's High School to search for drugs
anytime they had resources available to do so. The search conducted
on November 7, 2002 was an attempt to identify individuals carrying
illegal drugs in order to ensure the continued safety of the school
environment, and this activity thus falls within the police powers to
preserve the peace and prevent crime (Dedman v. The Queen, [1985] 2
S.C.R. 2, at p. 32; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at
para. 26).



(2) Nature of the Search





162 In Kang-Brown, I identified numerous
features which make searches of bags using sniffer dogs minimally
intrusive on an individual's reasonable expectation of privacy. These
include the fact that these searches are expedient and therefore
create minimal inconvenience for the individual; the fact that the
only information revealed by the dog sniff is the presence or absence
of drugs; and the fact that the presence of drugs can be signalled in
a completely non-threatening manner. In this case, it is also
significant that A.M. was not even present when the search occurred
and that there was therefore absolutely no interference with his
bodily integrity and no creation of an embarrassing or humiliating
encounter.



C) Standard for Conducting the Search



163 I found in Kang-Brown that a search of
luggage using sniffer dogs would be deemed reasonable where it was
based on a reasonable suspicion. This lowered standard for
instigating a search is, in my view, appropriate, given the important
preventative potential of sniffer dogs and the minimal intrusion
caused by searches of this nature. I further found that in some
situations, it would be appropriate for police to base this search not
on individualized suspicion related to a particular individual, but
rather on a generalized suspicion attaching to a particular activity
or location. Although it was not necessary for the outcome of the
appeal in Kang-Brown, it was my conclusion that a public bus terminal
was one example of an environment where it was reasonable for police
to use sniffer dogs to perform random searches where they had a
generalized suspicion about the presence of drugs, providing that a
reasonably informed member of the travelling public would have been
aware of the possibility of random searches involving the use of dogs.





164 In my view, schools are another
environment in which it is appropriate to base random searches of bags
on the lowered standard of a generalized reasonable suspicion. I
reach this conclusion by weighing the public interest in preventing
and deterring the presence of drugs in schools with the rights of
students to be free from state interference. The balancing of privacy
interests with the suppression of crime always underlies the s. 8
analysis and must be performed every time the court is asked to
consider the reasonableness of a police procedure (R. v. Tessling,
[2004] 3 S.C.R. 432, 2004 SCC 67, at paras. 17-18; Hunter v. Southam
Inc., [1984] 2 S.C.R. 145, at pp. 159-60; R. v. Plant, [1993] 3 S.C.R.
281, at p. 293).



165 The increased presence of drugs at
schools is a disturbing trend. Parliament's concern about this trend
is reflected in numerous pieces of legislation including the
Controlled Drugs and Substances Act, S.C. 1996, c. 19, which makes
being in or near a school an aggravating factor on sentencing for drug-
related offences (s. 10(2)(a)(iii)), and the Education Act, R.S.O.
1990, c. E.2, which requires school administration to suspend students
found in possession of illicit drugs (s. 306(1)(2)) and expel those
found trafficking (s. 309(1)(5)). This Court has also recognized the
gravity of drugs in our school systems. In M. (M.R.), Cory J.,
writing for the majority, found that the escalation of illicit
substances in the school environment represents a threat to the
ability of teachers and administrators to care for and educate this
country's children:



In recent years, problems which threaten the safety of students and
the fundamentally important task of teaching have increased in their
numbers and gravity. The possession of illicit drugs and dangerous
weapons in the schools has increased to the extent that they challenge
the ability of school officials to fulfill their responsibility to
maintain a safe and orderly environment. [para. 36]





166 In M.(M.R.) the majority of this Court
determined that a vice-principal's search of a 13-year-old student was
reasonable despite the fact that it was not authorized by a warrant.
The search was conducted in the presence of a police officer after
several students reported that the youth was likely to be carrying
drugs. Marijuana was found. In concluding that the search was
reasonable, the Court emphasized that the need to protect students and
create an orderly atmosphere for learning necessitated according
school authorities a reasonable degree of discretion and flexibility.
The altered approach was also appropriate, given the students' reduced
expectation of privacy while at school.



167 Although the Court in M. (M.R.) went on
to find that the special nature of the school environment did not
authorize police (or agents of the police) to proceed without a
warrant, that finding related specifically to traditional police
searches (M. (M.R.), at para. 56). As has been discussed, a sniffer-
dog search is unique from other forms of police search because of its
minimally intrusive nature. The standard applicable to other forms of
police searches in schools is therefore not necessarily applicable to
dog searches.



168 In my view, the incredible importance of
preventing drug activity in schools, the highly regulated nature of
the school environment, the reduced expectation of privacy students
have while at school, and the minimally intrusive nature of dog-sniff
searches all support a finding that police may use sniffer dogs to
search in schools where there is a reasonable suspicion of drug
activity. Further, I believe it is irrational to conclude that school
administrators or police must have an individualized suspicion before
they are able to conduct dog-sniff searches in schools. This would
require that information about a particular student be obtained before
a search could occur and would limit searches to specific
individuals. Such an approach fails to recognize that in many cases,
school authorities will be aware that there is a drug problem within
the school without knowing specifically which students are likely to
be carrying illicit substances on any particular day.





169 A reasonable suspicion about the
presence of drugs at school may result from tips by community members,
parents, or other students, and it is unreasonable to assume that
these individuals will always be able to identify the particular
individuals believed to be involved. It is also possible that a
reasonable suspicion develops as a result of drug paraphernalia being
found on school property. Once again, while the discovery of these
materials may be sufficient to raise a reasonable suspicion about the
presence of drugs, it will frequently not be possible to determine who
is actually in possession of them before a search occurs. Indeed, the
very reason sniffer dogs are so effective in the school environment is
their ability to determine, specifically, where drugs are located.
The principal of St. Patrick's High School testified as follows:



[A]lthough the staff is vigilant, kids who are engaged in this type
[of] activity don't want to be caught. They go out of their way to
hide things around the building or hide it on their person. The ...
ability of the police to come in with the dogs, who are specially
trained, allows us to conduct a search very, very quickly in the
building. Because when the dogs come in, it takes approximately two
hours maybe at the most ... so you can do something like that very
quickly and very thoroughly because the dogs are very, very well-
trained.



(A.R., at p. 46)



Requiring that school authorities or police know exactly where drugs
are located before the search occurs significantly hinders the
benefits of this kind of search technique.



170 As I noted in Kang-Brown, a random
search based on generalized suspicion also has the benefit of being
non-targeted in nature. This minimizes the risk of inappropriate
profiling and reduces the stigma associated with being searched.
Students in a school being randomly searched by dogs are aware that
they are not being singled out and that they are not the subject of
any particular suspicion, and no student is therefore required to be
embarrassed by being targeted for investigation.





171 Further, it is in my view extremely
important to consider the incredible impact random sniffer-dog
searches in schools may have on preventing drug activity from
occurring at these locations. The highly efficient and extremely
accurate nature of sniffer-dog searches creates a real threat to
individuals seeking to bring drugs into our schools. In fact, the
very possibility that this kind of search may occur is likely to deter
some potential drug traffickers from taking the risk of being caught.
In my view, it is the scope and effectiveness of the search which
creates the threat and leads to the deterrence. Restricting dog-sniff
searches to specific individuals therefore minimizes the preventative
effect of this kind of search in an environment where prevention ought
to be of paramount importance.



172 This does not mean, however, that police
ought to be able to conduct random dog searches in any school at any
time. As I have indicated, students continue to possess a reasonable
expectation of privacy while at school, and the public interest in
preventing and detecting crime using sniffer dogs must be balanced
against the privacy interests of students. It is for that reason that
a reasonable suspicion that drug activity is occurring at the school
must exist prior to any search. Further, it is insufficient that a
search be based on a suspicion which existed at some time in the past;
rather, the reasonable suspicion underlying the search must have a
temporal connection to the search itself.





173 In Kang-Brown, I found that police have
an ongoing reasonable suspicion about drug activity occurring at this
country's airports and bus and train depots. This ongoing suspicion
has resulted in the creation of Operation Jetway, a special RCMP
initiative aimed specifically at trying to minimize the use of our
public transportation systems for the movement of illicit substances.
In my view, it would be inappropriate to find that this same ongoing
suspicion exists in all schools. Although it is true that the
presence of drugs on school premises is becoming an escalating problem
in Canada, I am unprepared to conclude that school officials and
police have a constant reasonable suspicion that drugs will be found
in any school at any time. To make such a finding without more
evidence on the subject would be to erode the reasonable suspicion
standard of any meaning and to significantly undermine the rights of
youths in this country.



174 Since a generalized, ongoing suspicion
does not exist in relation to schools, it is necessary for each random
dog-sniff search to be justified on the basis of a suspicion that
drugs will be located at that specific location at the specific time
the search is being performed.



175 Although it is necessary that a dog-
sniffer search in a school be related to a reasonable suspicion that
drugs will be located on the premises at the time the search occurs, I
do recognize that it is unreasonable to expect that a sniffer-dog
search will occur at the precise moment that a reasonable suspicion is
first formed. Such a standard fails to recognize that when
information about drugs on the premises is received, school officials
may need time to consult with each other before determining how to
proceed. It is also unrealistic to assume that a tip about the
presence of drugs will only raise a reasonable suspicion for an hour
or a day or a week after it is received. How long the suspicion lasts
will depend in large part on the nature of the information received
and on whether it is supplemented by additional indicators that the
presence of drugs continues. In every instance, the key inquiry is
whether there is sufficient basis on which to form a reasonable
suspicion about the presence of drugs at the time the search occurs.
In my view, school authorities who receive information about the
presence of drugs on school premises ought to proceed as follows:





1. The school authorities must satisfy themselves that the
information giving rise to the reasonable suspicion is credible. The
information itself may come from a variety of sources including one or
more students, a teacher's or principal's own observations, tips from
parents or community members, physical evidence of drugs found on
school property, or any combination of these sources.



2. Once information about drugs at the school is deemed credible,
school authorities may then determine the best strategy for responding
to the concern. This may involve working cooperatively with police or
drug and alcohol agencies, as is required by the Ontario Schools: Code
of Conduct (2001), (authorized by the s. 301(1) of the Education Act).



3. In some situations, the reasonable suspicion may be such that
school officials wish to invite police to perform a random search at
their school. Given the realities of police resources, it is
unrealistic to assume that a search will be feasible the same day an
invitation is issued. For that reason, it is permissible for school
officials to issue police with an "open invitation" to search the
school.



4. When police resources enable a search to occur, school officials
must determine whether their reasonable suspicion about the presence
of drugs on the premises still exists. It is not permissible for a
search to occur on the basis of a reasonable suspicion which existed
in the past, and school authorities must be satisfied that they have a
current reasonable suspicion that drugs will be found on the premises
on the day the search occurs.





176 With respect, I think the distinction
between a search initiated by school authorities who ask for police
assistance and a search initiated by the police who ask school
authorities for assistance is of no moment. Nor is it necessary to go
into a deep analysis of the "open invitation". In every case, what is
occurring is a cooperative effort to assure a safe environment for
students by preventing the sale and use of drugs. What matters is
that the search be undertaken only when a reasonable suspicion can be
established and related in time to that particular search.



177 The process I have suggested above
ensures that an appropriate balance will be struck between the public
interest in preventing drug activity at schools and the privacy
interests of students. Allowing random searches on the basis of a
current, reasonable suspicion ensures that students are not subjected
to unfounded invasions of their privacy while simultaneously
protecting the valuable role sniffer-dog searches may play at
preventing and deterring drugs in the school system.



178 Finally, I wish to reiterate my finding
in Kang-Brown that random drug sniff searches must only occur where it
is established that reasonably informed members of the public would
have been aware that they may be used. Although the provision of such
knowledge does not make it reasonable to base a search on generalized
reasonable suspicion (this must be determined on a case-by-case basis
by balancing the requisite factors), it is a necessary precondition to
a finding that a random search is reasonable within the meaning of s.
8 of the Charter.



179 In this case, I am satisfied that
students at St. Patrick's High School were given sufficient notice
that a random sniffer-dog search might occur. They clearly had the
required knowledge. The school has a zero-tolerance policy for drugs
and the trial judge determined that students were aware of the policy
and were aware of the fact that it may be enforced using drug detector
dogs ((2004), 120 C.R.R. (2d) 181, 2004 ONCJ 98, at para. 5).





180 There is, however, no evidence that the
sniffer-dog search which led police to arrest A.M. was founded on a
current reasonable suspicion that drugs would be found. While I accept
that the principal of St. Patrick's High School was concerned about
the presence of drugs at his school, concern is insufficient to
justify a random search. The fact that the school had received calls
in the past from parents and neighbours about the use of drugs is also
an insufficient basis. Principal Bristo testified that he had no
knowledge that the police were planning on searching the school on
November 7, 2002 (A.R., at p. 8) and, importantly, when asked if he
had any knowledge that there might be drugs within the school on that
date he replied "I had no knowledge of it. It's ... pretty safe to
assume that they could be there" (A.R., at p. 10 (emphasis added)).
The trial judge concluded on the basis of these answers that school
authorities had little more than a "reasonably well-educated
guess" (para. 16) that drugs would be at the school on the day the
search was conducted, and I agree with that conclusion. The evidence
likewise indicates that the police themselves had no direct awareness
as to the possible existence of drugs at the school on the day the
search occurred (A.R., at p. 84). In their view, the search was
conducted solely because it was requested by the school principal
(A.R., at p. 77). As a result, the requisite generalized suspicion
was lacking and the search must therefore be found to be in
contravention of s. 8 of the Charter.



D) Admission of the Evidence



181 Section 24(2) of the Charter requires
that the admissibility of evidence obtained in violation of an
individual's Charter rights be considered. Evidence will only be
excluded when, having regard to all the circumstances, its admission
would bring the administration of justice into disrepute (Law; R. v.
Collins, [1987] 1 S.C.R. 265; R. v. Stillman, [1997] 1 S.C.R. 607).
The circumstances to be considered in making this determination can be
grouped into three categories:





(1) the effect of admitting the evidence on the fairness of the
subsequent trial, (2) the seriousness of the police's conduct, and (3)
the effects of excluding the evidence on the administration of
justice. Trial judges are under an obligation to consider these three
factors.



(Law, at para. 33, relying on Collins.)







(1) Trial Fairness







182 The concept of trial fairness is
concerned with the continued effects of self-incrimination and, where
an "accused, in violation of his Charter rights, is compelled to
incriminate himself at the behest of the state by means of a
statement, the use of the body or the production of bodily samples",
admission of the resulting evidence would generally affect the
fairness of the trial (Stillman, at para. 80). This kind of evidence
is referred to as "conscriptive" (Law, at para. 34, citing Stillman,
at para. 80).



183 Where, as here, however, the evidence is
non-conscriptive because it existed independently of the violation and
did not emanate from the accused, its admission will not affect trial
fairness (Buhay, at para. 50, citing Stillman and Evans).



(2) Seriousness of the Breach



184 Assessing the seriousness of the breach
requires a determination of "whether it was committed in good faith,
or was inadvertent or of a merely technical nature, or whether it was
deliberate, wilful or flagrant": R. v. Therens, [1985] 1 S.C.R. 613,
at p. 652. It is also relevant to consider whether the violation was
motivated by a situation of urgency or necessity, the obtrusiveness of
the search, and the individual's expectation of privacy (Buhay, at
para. 52).





185 The trial judge determined that this
breach "must be seen on the less serious end of the scale" (para. 22),
and I agree with that conclusion. It is significant that the search
occurred in an environment where there is a diminished expectation of
privacy and that the search itself was of a non-intrusive nature. It
is also significant that the police conducted the search in
cooperation with the school principal and that they believed this gave
them the authority to do so. Constable McCutchen testified that he
understands that the police respond to requests from schools in order
to "assist" where there is a problem with drugs. He estimated that in
his 10 years with the Ontario Provincial Police Canine Unit, he has
conducted dog-sniff searches in 140 schools (A.R., at p. 74).
Constable Callander was another officer who participated in the search
at St. Patrick's. He has been with the Clearwater Police Force for 27
years and testified that searches of this nature are "common
practice" (A.R., at p. 79) and are conducted upon invitation from
school principal (A.R., at p. 79). In my view, this evidence supports
a finding that the officers involved in this search were unaware that
using dog sniffs to search the school in the circumstances of this
case breaches the Charter if there is no reasonable suspicion that
drugs will be found.



186 The evidence also indicates that school
authorities were not aware that this kind of search constituted a
breach of the Charter. The principal of St. Patrick's High School
testified that he feels bound by the Education Act to provide a safe
and orderly environment in the school (A.R., at p. 47) and that he
needs the cooperation of the police to help discover drugs in the
building (A.R., at p. 45). He further testified that although he is
unable to arbitrarily select a locker or a bag and search it without
"something more" (A.R., at p. 59), the police do not need to provide
him with any specific information indicating a need for a search in
order to proceed (A.R., at p. 53). In his view, the arrangement he
had with police at the time A.M.'s bag was searched allowed a random
search to be conducted by sniffer dogs at any time, and was restricted
only by the availability of police resources (A.R., at p. 53).





187 This evidence is sufficient to establish
that the Charter breach in this case was neither deliberate nor
wilful. Both the school officials and police officers involved were
acting in good faith when the sniffer-dog search was performed and, as
I result, I find that the breach was inadvertent. This factor,
combined with the diminished expectation of privacy and the non-
intrusive nature of the search, leads me to conclude that the breach
was not of a serious nature.



(3) Effect of Exclusion on the Reputation of the Administration of
Justice



188 The final stage of the s. 24(2) analysis
considers whether excluding the evidence would have a detrimental
effect on the administration of justice. This generally requires
consideration of "whether the unconstitutionally obtained evidence
forms a crucial part of the Crown's case and, where trial fairness is
not affected, the seriousness of the underlying charge" (Law, at para.
39).



189 It is clear that the evidence obtained
by the search is necessary to substantiate the charges against A.M.,
and it therefore forms a crucial part of the Crown's case. In
addition, the trafficking charges against A.M. are of a serious
nature, and the fact that the offence occurred within a school is an
aggravating element.



190 In my view, all of the aforementioned
factors favour allowing this evidence to be admitted. Although this
search was not performed on the basis of a reasonable suspicion that
drugs would be found, it was conducted in good faith. The search was
non-intrusive in nature and occurred in an environment where the
expectation of privacy was diminished. The evidence obtained was non-
conscriptive in nature and does not affect the fairness of the trial.
As a result, it is my view that excluding this evidence would bring
the administration of justice into disrepute and that the trial judge
erred by failing to admit it at trial.





191 For these reasons, I would allow the
appeal on the limited basis that the evidence against A.M. ought to
have been admitted.


.



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