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A civii .-;r.';:.'r'eiy through education and .:-)'i.:-Jiogi.-e La n d m a r k Ca 5 e OJNREJ RESEAU QNTARIEN D'EDUCATJON IURIDiQUE SNIFFER DOGS, SCHOOL SEARCHES, AND THE CHARTER R. v. AM. Prepared for'le Ontario justice Education Network by a Law Student from Osgoode Hall Law School R. v. AM. (2003) Background In 2002, AM. was a student at St. Patriclcs High School in Sarnia, Ontario. The school had a zero- tolerance policy towards drugs that was well known by students, faculty, and pa rents. The principal of St. Patricids, Mr. Bristo, had offered a standing invitation to the local police to search the school whenever they had the resources to do so. On November 7, 2002, the local police arrived at the school and requested permission to bring in their sniffer dog, Chief, to search the premises. The police had no specic reason to suspect that drugs were at the school that day and would not have been able to obtain a warrant to search the premises. Sniffer dogs are trained to alert to the presence of odours associated with drugs {i.e. the smell of marijuana). Mr. Bristo agreed, and the police proceeded to bring the dog through the school. During the search, students were told to remain in their classrooms while Chief inspected students' lockers. After completing a sweep of the halls, the ofcer asked the principal if there were any other locations to search. The principal tookthe ofcer to the gymnasium, where a number of backpacks were lined up against the walls. In the gymnasium, Chief indicated the presence of drugs in one of the bags, the one which belonged to AM. The police opened the backpack where they found ten bags of marijuana, a bag containing approximately ten \"magic mushrooms\Sniffer Dogs, School Searches, and the Charter: R. v. AM. 2 Another OJEN Courtroom: & Classrooms Resource The Youth Court judge found that there were two searches conducted on November 7, 2002. The rst search was conducted by the sniffer dog, which alerted police to the presence of drugs. The second search was the physical searching of AMJS backpack by the police ofcer. The judge found that both of these searches were 'unreasonable', and therefore unconstitutional and excluded the evidence. Court of Appeal The Crown appealed this ruling to the Court oprpeal for Ontario. The Court of Appeal agreed with the earlier ruling that the searches were 'unreasona ble'. The Crown appealed the decision to the Supreme Court of Canada. Supreme Court of Canada The ninejudges of the Supreme Court of Canada considered whether sniffer dog searches are constitutional, and then looked at how they should be used in the school environment. The Supreme Court of Canada addressed the following four major issues: 1. Did the police possess the legal power to use drug sniffer dogs? If so, are there limitations to this power? 2. Did the use of the drug-snifng dog in these circumstances amount to a \"search\" under section 8 of the Clutter? If it was considered a \"search\Sniffer Dogs. School Searches, and the Charter: R. v. AM. 3 Another OJEN Courtroom: & Classrooms Resource The Standard of \"reasonable suspicion\"? The Court stated that any drug-snifng search without a warrant would be assumed to be unreasonable unless the police could demonstrate evidence of a \"reasonable suspicion\". Any drug dog search done without a warrant would require evidence that the police had reason to believe {or a reasonable suspicion that} drugs were going to be at a certain location at that time. The Test for Reasonable Suspicion: Before the police can use a drug-snifng dog to search a person or their belongings theymust have reasonable grounds to suspect that the person is carry/rug drugs on their person orinsib'e ti:I eir beion gin gs. In order for the grounds to be reasonable, they would have to be based on some objectively veriable evidence (such as testimony. video surveilla nce. etc). The police could not merely use drug-snifng dogs in situations where they had a \"hunch\" that drugs were nearby. 2. Did the use of the drug-snifng dog in these circumstances amount to a 'search" under section 8 of the Charter? The Majority found that the drug dog search was a search under section 8 of the Charter: The Supreme Court of Canada paid particular attention to the fact that the case occurred at a school and discussed a student's expectation of privacy at school. The Majority recognized that students have a lower expectation of privacy when at school, however it refused to extend this lowered expectation to police conduct. The Court acknowledged that staff members of a school are responsible for maintaining order in the school, while police are responsible for criminal investigations. The Court compared the backpacks of students with the briefcases and purses of adults. The Majority stated that business people would consider it absurd to have the contents of these cases and bags searched at random by the police. Therefore, students could expect similar protection from arbitrary police searches. The Majority dismissed the argument that the dog was merely snifng I"public air space\". Chief Justice McLachlin found that when the dog was snifng the air, it was effectively \"seeing through" the fabric of the bags. The personal contents of backpacks, particularly for young students who spend much of their time at school and are effectively living out of their book bags, are private. Therefore the drug dog search is a "search" within the meaning of section B of the Chartec 3. If it was considered a \"search\Sniffer Dogs. School Searches, and the Charter: R. v. AM. 4 Another OJEN Courtroom: & Classrooms Resource would be drugs somewhere on school property on any given day was not sufcient. Th us. the search was unreasonable and a violation of A.M.'s rights. 4. If there was a section 8 violation, should the evidence be excluded in the criminal case against AMI! Section 24(2) of the Charts-(allows for the admission of evidence. despite a Charterviolation, unless the inclusion of the evidence would \"bring the administration of ju stice into disrepute". This section is intended to provide exibility in Charrercases. In cases of relatively minor violations of a person's rights, judges often admit the evidence. The Court considered two major competing values: the Charter rights of students, and expediency of police investigations. Expediency refers to the ability of police to use their resources as efciently as possible. Drug dog searches require very little resources, and they are highly effective. In this case, this efciency had to be balanced against the Charterrights of the students. The Court agreed with the ndings ofthe lower courts that the evidence should not be admitted. By excluding the evidence in A.M.'s case the Court was encouraging police forces to respect the Charter rights of students, and to adhere to regular search standards even in schools. Dissent The dissenting judges felt that EM. had no legitimate privacy interest. A subjective expectation of privacy would exist if AM. personally believed that the contents of his bag would not be examined. An objective expectation of privacy considers the situation from a third person perspective and asks whether a reasonable person in similar circumstances would have believed the contents of their backpack were safe from a police search. The Dissent fou nd that EM. did not have an objective or subjective expectation of privacy. Parents and students had been made aware of the school's drug policy, and AM. had chosen to bring drugs to school despite this policy. Thus it was unnecessary to consider whether the dog search. and the physical search which preceded it, resulted from a 'reasonable suspicion'. Conclusion The Majority agreed with the lower courts that a section 8 Charterviolation had occurred. and that the evidence should be excluded pursuant to section 24{2). The evidence against AM. could not be included in the criminal case. and AMIS acquittal was upheld. The decision gives guidance to police and schools about how to protect students' privacy while also ensuring safety in schools. ' A (Mi society through education and dfafogue. % m N Fl m N Fl