A Role for Parliament
Q: Is the Supreme Court better able than Parliament to define when and how police are to use sniffer dogs?
The Supreme Court can have a shared role with Parliament in defining when and how sniffer dogs are to be used by police. Justice Deschamps spoke of this, and her comments were not challenged by other members of the Court in either The Queen v. Kang-Brown or The Queen v. A.M. She said,
Many decisions must be made about when and how dogs ought to be used in law enforcement, and both the public and the police are entitled to know how these animals can and will be used in Canada.
This direction is best provided by Parliament, which is able to create a wholistic and harmonious scheme for the use of sniffer dogs in this country. Courts, on the other hand, are ill equipped to deal with the multitude of issues arising from the use of sniffer dogs.
Not only are judges restricted to considering the issues and factual scenarios placed directly before them by specific parties (and therefore unable to create a wholistic scheme regulating the use of dogs generally). They also do not have access to the expertise necessary to determine what type of training sniffer dogs should receive or what degree of accuracy they should have in order to be deemed “reliable.”
Courts are also poorly positioned to determine when dogs should be used on bags as opposed to persons, when a warrant ought to be obtained prior to use of the dogs, and what form notice must take when sniffer dogs are used in a generalized way.
All of these important decisions are best left to Parliament, which can study the various aspects of sniffer dog use and craft policies suited for the Canadian context, in which Charter rights must be carefully balanced against the need for effective law enforcement.
Unfortunately, Parliament has remained silent on the use of sniffer dogs, and the courts must therefore evaluate police use of this tool, absent any statutory direction from this country’s policy makers.
Parliament remains free to enact legislation even after the Court has stated its view. The Court’s decision (or holding) relates to its reasoning and the principles embodied in that reasoning. This leaves it to the legislature to set out the details that would implement the standards. For example, the legislature could set criteria necessary for the qualification of a police dog as a sniffer. And, the legislature could say that the failure to use a properly qualified police sniffer dog would result in the evidence uncovered by the dog being treated as inadmissible.
The Comparative Skills of Sniffer Dogs
Not all sniffer dogs are equally skilled at detecting illegal drugs. Justice Deschamps, in a concurring opinion joined by Chief Justice McLachlin, gave the Court a majority in ruling the search unlawful in The Queen v. A.M. She emphasized the differences between sniffer dogs and the need for police to demonstrate the sniffing skill of any particular dog whose alert is used as a basis for a search. Justice Deschamps stated:
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.
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 [emphasis added].
She went on to quote from a dissent of U.S. Supreme Court Justice Souter, who questioned the accuracy of sniffer dogs. There, Justice Souter wrote, citing reported dog sniffing cases, “The infallible dog, however, is a creature of legal fiction.… 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 [money] by cocaine.”
Justice Deschamps continued:
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 [Australian] 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 percent of the searches following an indication. That is, almost three-quarters of all indications did not result in the location of prohibited drugs [emphasis added].
“The rate of finding drugs varied from dog to dog, ranging from 7 percent (of all indications) to 56 percent. (NSW Ombudsman, Review of the Police Powers (Drug Detections Dogs) Act 2001 (2006), at p. ii.)”
Justice Deschamps added:
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.
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.
The Queen v. A.M. : The Facts
In 2000, the principal of St. Patrick’s High School in Sarnia, Ontario, extended an invitation to the Youth Bureau of Sarnia Police Services: If the police ever had sniffer dogs available to bring into the school to search for drugs, they were welcome to do so.
Apparently, on a few occasions before the case of The Queen v. A.M., police took advantage of the invitation. They used sniffer dogs to check the school parking lot, hallways, and other areas that the principal suggested. The record in this case does not indicate the results of the sniffer checks. However, Sarnia police used sniffer dog searches in at least 140 instances in schools. Further, the use of sniffer dogs in high schools apparently is widely practised in Ontario and other provinces.
The school had a zero-tolerance policy for possession and use of drugs and alcohol, a policy that the school communicated to the students and their parents. Violating this policy resulted in suspension or expulsion of the offending students.
On November 7, 2002, three police officers decided to go to the school with a sniffer dog. The principal granted them permission to go through the school.
At trial, the police officers admitted that they had no information that drugs were