Supreme Court Ruling
The Court found that 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 section 8 of the Charter. Consequently, the evidence should be excluded as it would interfere with the fairness of justice under section 24(2) of the Charter. Therefore, the appeal was dismissed.
The following issues were put to the Court:
- whether dog sniff constituted search of content of student backpack
- if so, whether the search was reasonable.
- if the search was unreasonable and the appellant's rights were violated, whether the evidence ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms;
- whether common law powers of police to investigate crime include use of sniffer dogs.
Opinion of the Court
The majority agreed that the dog sniff amounted to a search within section 8 of the Charter because by use of the dog, the police officer could "see" through the concealing fabric of the backpack, and students are entitled to privacy in a school environment. Since there was no authority in the statutes or at common law for the warrantless sniffer dog search in this case, the search violated section 8 of the Charter.
Expectation of privacy standard
Teenagers 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.
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 section 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 excluded the evidence. The Court agreed that his exclusion of the evidence should not be interfered with.
Reasonable suspicion standard
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 section 8 reasonableness standard. In this case, the search 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.
Sniffer dog context
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 section 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 if it is established under section 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. Also in the section 8, it was violated because they searched A.M without his right
Dissent
Bastarache, Deschamps and Rothstein JJ dissented. Deschamps and Rothstein JJ found there was no need to determine whether section 8 of the Charter was violated because the dog sniff of the backpack at the school did not amount to a search. Hence, there was no need to determine whether the evidence should be excluded pursuant to section 24(2) of the Charter.
Bastarache J found that the police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of generalized suspicion and that the trial judge erred in excluding the evidence pursuant to section 24(2) of the Charter.
Rothstein J in held that the combination of the school's advertised "zero-tolerance" drug policy, the drugs in schools and the unattended state of the suspect's backpack reduced his privacy expectation to zero.
In United States criminal law, probable cause is the legal standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal and for a court's issuing of a search warrant. One definition of the standard derives from the U.S. Supreme Court decision in the case of Beck v. Ohio (1964), that probable cause exists when “at [the moment of arrest] the facts and circumstances within [the] knowledge [of the police], and of which they had reasonably trustworthy information, [are] sufficient to warrant a prudent [person] in believing that [a suspect] had committed or was committing an offense.”
New Jersey v. T. L. O., 469 U.S. 325 (1985), is a landmark decision by the Supreme Court of the United States which established the standards by which a public school official can search a student in a school environment without a search warrant, and to what extent.
United States v. Place, 462 U.S. 696 (1983), is a decision by the Supreme Court of the United States in which the Court held that it does not violate the Fourth Amendment to the U.S. Constitution for a trained police dog to sniff of a person's luggage or property in a public place.
Reasonable suspicion is a legal standard of proof that in United States law is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch'"; it must be based on "specific and articulable facts", "taken together with rational inferences from those facts", and the suspicion must be associated with the specific individual. If police additionally have reasonable suspicion that a person so detained is armed and dangerous, they may "frisk" the person for weapons, but not for contraband like drugs. However, if the police develop probable cause during a weapons frisk, they may then conduct a full search. Reasonable suspicion is evaluated using the "reasonable person" or "reasonable officer" standard, in which said person in the same circumstances could reasonably suspect a person has been, is, or is about to be engaged in criminal activity; it depends upon the totality of circumstances, and can result from a combination of particular facts, even if each is individually innocuous.
R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter. The Collins test for section 24(2) was developed for determining if the administration of justice was brought into disrepute by the inclusion of the evidence. The test was later replaced in R. v. Grant.
R v Buhay [2003] 1 S.C.R. 631, 2003 SCC 30 is a leading Supreme Court of Canada decision on the Charter rights protecting against unreasonable search and seizure and the criteria for the exclusion of evidence under section 24(2). The court held that for evidence to be excluded on the Collins test, the seriousness of the breach must be determined by looking at factors such as good faith and necessity. On the facts, marijuana found in a bus station locker was excluded from evidence because the police had insufficient reason to search it without a warrant.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. This right provides those in Canada with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
R v Tessling [2004] 3 S.C.R. 432, is a leading Supreme Court of Canada decision where the Court held that the use of thermal imaging by police in the course of an investigation of a suspect's property did not constitute a violation of the accused's right to a reasonable expectation of privacy under section 8 of the Canadian Charter of Rights and Freedoms.
R v Strachan, [1988] 2 S.C.R. 980 is a leading Supreme Court of Canada decision on the exclusion of evidence under section 24(2) of the Canadian Charter of Rights and Freedoms subsequent to a violation of a Charter right. The Court held that there does not need to be a causal connection between the violation and the evidence, but rather there need only be a temporal link between the two.
R v Wong, [1990] 3 S.C.R. 36, is a leading decision of the Supreme Court of Canada on the evidence obtained by electronic video surveillance conducted without authorization. The Court held that individuals have a reasonable expectation of privacy in a hotel room. This expectation does not depend on whether those persons were engaging in illegal activities. Therefore, individuals can expect that agents of the state will not engage in warrantless video surveillance. Electronic surveillance without authorization violates Section Eight of the Canadian Charter of Rights and Freedoms. However, for this particular case, the Supreme Court held that the police acted in good faith and had reasonable and probable ground to believe criminal activities were committed. The surveillance without authorization was a result of misunderstanding. Hence, acceptance of the surveillance as evidences will not bring the administration of justice into disrepute under Section Twenty-four of the Canadian Charter of Rights and Freedoms.
In United States constitutional law, expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the U.S. Constitution. It is related to, but is not the same as, a right to privacy, a much broader concept which is found in many legal systems. Overall, expectations of privacy can be subjective or objective.
Illinois v. Caballes, 543 U.S. 405 (2005), is a decision by the Supreme Court of the United States in which the Court held that the use of a drug-sniffing police dog during a routine traffic stop does not violate the Fourth Amendment to the U.S. Constitution, even if the initial infraction is unrelated to drug offenses.
R v Belnavis, [1997] 3 S.C.R. 341, is a leading Supreme Court of Canada decision on the right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that there is no reasonable expectation of privacy in the backseat of a car.
R v Duarte, [1990] 1 SCR 30 is a leading case decided by the Supreme Court of Canada on the right to privacy under section 8 of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a warrantless and surreptitious video recording of private communications violated section 8. Consent of only one party to a conversation is insufficient to be reasonable.
R v Kang-Brown, [2008] 1 S.C.R. 456, 2008 SCC 18, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a suspect's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession.
R v Patrick, [2009] 1 S.C.R. 579, 2009 SCC 17, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police have the right to take garbage bags placed for collection at edge of a property without warrant. In this case, the accused abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public. His section 8 rights under the Canadian Charter of Rights and Freedoms were not violated when a police officer seized bags of garbage at the rear of his property and used the contents of seized bags as evidence of criminal activity.
R v M (MR), [1998] 3 SCR 393 is a leading decision of the Supreme Court of Canada on search and seizure by teachers and principals in Canadian schools (not colleges or universities). In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were not violated by being searched by a school principal with a police constable present.
Florida v. Jardines, 569 U.S. 1 (2013), was a United States Supreme Court case which resulted in the decision that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant.
R v Spencer, 2014 SCC 43 is a landmark decision of the Supreme Court of Canada on informational privacy. The Court unanimously held that internet users were entitled to a reasonable expectation of privacy in subscriber information held by Internet service providers. And as such, police attempts to access such data could be subject to section 8 of the Charter of Rights and Freedoms.
Rodriguez v. United States, 575 U.S. 348 (2015), was a United States Supreme Court case which analyzed whether police officers may extend the length of a traffic stop to conduct a search with a trained detection dog. In a 6–3 opinion, the Court held that officers may not extend the length of a traffic stop to conduct a dog sniff unrelated to the original purpose of the stop. However, the Court remanded the case to the United States Court of Appeals for the Eighth Circuit to determine whether the officer's extension of the traffic stop was independently justified by reasonable suspicion. Some analysts have suggested that the Court's decision to limit police authority was influenced by ongoing protests in Ferguson, Missouri.
