The cases present real difficulties as to the legal lessons we are to take away from the decisions. Bear in mind that the rulings of the Supreme Court of Canada are the law of the land. But when we say “rulings,” we mean the reasoning that led the Court to its decision. It is the reasoning in support of a decision that makes a Supreme Court of Canada decision a precedent — that is, binding on the Court and lower courts.
In each of the two cases discussed in this chapter, there was a total of four decisions. The Court was polarized. Still, on some of the key issues, a majority of the justices did agree. To that extent, their reasoning and decision can be taken as precedent. However, we will also discuss the limitations that the justices imposed on themselves as to the scope of the conclusions reached.
All the justices seemed to agree that the issues were to be resolved not by any statute — for Parliament had not enacted any law to deal with the issues in dispute. Rather, the issues were to be resolved by “judge-made law,” as it had been developed and applied by the Court itself. This, in turn, meant that the facts in any case were important. Any significant variation in facts could change the reasoning from one case to another. This had special meaning for the subject of searches.
The investigatory techniques might be the same as applied to adults and young persons. But, should the rules relating to the use of those techniques, as applied for example to sniffer dogs, be different for luggage searches at a bus station as contrasted to bag searches at a high school?
What we will do is describe the issues raised by the justices and how they dealt with them. Then, we will more clearly see where Court majorities exist and thus precedent has been set, and where there remain issues to be decided in future cases.
Here are the central issues raised and discussed in the two Supreme Court of Canada decisions:
Against what standard are searches to be measured to determine their lawfulness?
When can it be said that a search has taken place?
Under what circumstances will a search be ruled “unreasonable”?
Even if a search is unreasonable, is it possible to use the resulting evidence in a criminal trial?
The Queen v. A.M. will frame our discussion in this chapter. That case, along with The Queen v. Kang-Brown, will be discussed under the Charter of Rights and Freedoms, part of the Constitution of Canada. We will begin our discussion with the relevant Charter provisions and with the issues raised under them. This will be followed by a summary of the facts, the first part of which will deal with the nature of sniffer dogs. The Queen v. Kang-Brown will be developed in “You Be the Judge,” challenge questions, and queries.
A Standard:
The Charter of Rights and Freedoms
Section 8 of the Charter
Under the Charter of Rights and Freedoms, the primary provision relating to search or seizure is section 8. It consists of a few words that, on their face, seem quite simple: “Everyone has the right to be secure against unreasonable search or seizure.”
The meaning of those words, however, has caused much conflict. The courts have been called upon to define what is an unreasonable search or seizure. In the cases discussed in this chapter, for example, have dogs conducted a search by sniffing the air and reacting, having been trained to detect unlawful drugs? If the answer is yes, then the first step has been taken in requiring the police to obtain judicial permission for a search.
The words of section 8 of the Charter do not answer these questions. Up to this point, the courts have given meaning to the words of the Charter section. This task of interpretation derives from the courts’ historic functions. It is the common law. The courts — and finally, and most importantly, the Supreme Court of Canada — look to past decisions and, generally slowly, case by case, graft meaning onto the words. Seldom is this done with any one sweep of a generalized decision.
And, certainly this is true of The Queen v. A.M. and The Queen v. Kang-Brown. One case involved a sniffing police dog that was walked round a school gym where students had placed their backpacks. The other related to police stopping a bus passenger and using a sniffer dog to walk alongside his luggage.
If there were any common approach to decisions involving search or seizure, it would be in factual detail insisted on by the courts in applying the language of section 8. Put differently, out of the facts the courts derive the meaning of the law.
Section 9 of the Charter
Section 9 of the Charter states, “Everyone has the right not to be arbitrarily detained or imprisoned.”
Often when we think of searches or seizures, there is the image of police forcibly detaining an individual, while searching the person or that individual’s property. In The Queen v. A.M., police did not use such force. Students had piled their backpacks in the gym. Police, at the invitation of the school principal, walked a sniffer dog around the backpacks. It was in that setting that police found drugs.
In The Queen v. Kang-Brown, police spotted the profile of a suspicious person, one who might be a drug carrier. They walked a sniffer dog around his luggage where they later discovered a stash of unlawful drugs. Section 9 provides the standard to determine whether the use of trained police dogs in such a context amounts to a “seizure of personal property.” At best, it is a generalized standard.
Section 24 of the Charter
Section 24 of the Charter states:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
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.
Assume that there has been an unlawful search or seizure. What is the result? Bear in mind that the question is raised in the context of a criminal proceeding. Often, the question is raised when the Crown seeks to introduce evidence coming from the search and seizure. In the cases examined in this chapter, the evidence is the illegal drugs that police found in the student backpack or the luggage of the accused.
If the judge excluded the evidence because police obtained it in violation of the Charter, then frequently the Crown’s case against the accused collapses.
Section 24 of the Charter specifically deals with evidence that police obtain in violation of the Charter. That provision does not deny the Crown the right to introduce the evidence and have a judge and/or jury consider it in reaching a verdict. Rather, the unlawfully obtained evidence cannot be used when “the admission of it in the [court] proceedings would bring the administration of justice into disrepute.”
Again, the words of the section are general. They don’t guide the court as to when the administration of justice would be brought into disrepute. Is the answer to be found in the seriousness of the police violation, or is it to be discovered in the real danger of the crime that has been prevented?
The courts must give meaning to the language of the Charter provision. The scope of the Court’s decision — how broadly it will cast its reasoning — is, however, another matter. In The Queen v. A.M., Justice LeBel, speaking for himself and two other justices, wrote, “Courts make and change the law.… Much of what is recognized as ‘law’ is actually, in one form or another, judge-made law.… The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power.”
CHALLENGE QUESTION
A Role for Parliament