On the facts in this challenge question, the search would likely be deemed unlawful because there was no basis for a reasonable suspicion that students had carried unlawful drugs into the school. Even with a lower standard for school administrators for conducting a search, the administration must have a reasonable basis for suspicion that unlawful drugs are present.
The Queen v. A.M. :
The Supreme Court of Canada Decides
The Supreme Court of Canada consists of nine justices. A majority (five justices) is enough to constitute a decision binding on the lower courts. In the case of The Queen v. A.M., the Court’s decision was fragmented: parts of it brought majority holdings and parts of it brought no majority. To the extent there was no majority ruling, the issues there reflected are not settled. (Of course, if only eight justices took part in a decision, and they split 4–4, then the decision of the lower court would remain in effect. At times, the Court will decide cases in panels of seven justices. Then a majority consists of four justices.)
We will begin with two issues that the Court majority did resolve:
1 Does section 8 of the Charter protect students while in school?
2 Was there a search within the meaning of section 8 of the Charter?
Seven justices ruled that there was such a search and, in that regard, that students were protected by section 8 of the Charter. Justice LeBel stated this, speaking for himself and Justices Morris Fish, Abella, and Charron, and reflecting the conclusions as to this aspect of the case in the concurring opinion of Justice Binnie and Chief Justice McLachlin.
(Note that Justice Bastarache also agreed that there was a search, and that it was one that violated section 8 of the Charter. However, as we pointed out elsewhere, he would have allowed the evidence to be admitted at the trial of A.M. Justices Deschamps and Rothstein dissented from the majority view. They argued that A.M. could not claim rights under section 8 of the Charter because, on the facts, he had no reasonable expectation of privacy, a condition necessary for applying section 8 of the Charter. See, “Dissent from the Majority: A Lawful Search,” in this chapter.)
Justice LeBel stated:
I have read the reasons of my colleague Binnie J. I agree that the appeal should be dismissed.… Students are entitled to privacy even in a school environment.… 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.
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 focused search. Nor was the dog-sniffer search conducted by the school authorities on proper grounds as set out in M. (M.R.). [Discussed in “Challenge Question: The Role of School Authorities.”]
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 section 24(2) of the Canadian Charter of Rights and Freedoms. I would dismiss the appeal.
(See “You Be the Judge: Bus Station Stakeout.” The reasoning in the case discussed in the exercise was incorporated into the reasoning of Justice LeBel.)
What Kind of Search?
In effect, the Court majority found no reasonable basis for a suspicion of wrongdoing that would have legitimized the search under section 8 of the Charter:
If there were grounds for reasonable suspicion that an unlawful act had been committed, or, in this case, that a student had been or was trafficking in prohibited drugs, a search by a sniffer dog likely would have been permitted. But, even in reaching this conclusion, it would be necessary to ask — what kind of search? Here the search did not involve the students, as such. That is, they were not forced to a physical search. Indeed, they were not even in the area where the search was conducted [emphasis added].
The concurring opinion of Justice Binnie and Chief Justice McLachlin was:
If the sniff is conducted on the basis of reasonable suspicion [emphasis added] 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.… 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 [resulted] 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 section 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 (from consideration) 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.” [See “You Be The Judge: The Scales of Justice” in this chapter.]
The exclusion (of the evidence from consideration) remedy was granted in this case and, in my opinion, rightly so.
I accept the youth court judge’s finding of fact that this was a random speculative search [emphasis added]. 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.
Privacy: A Protected Interest
Justice Binnie and the chief justice said that section 8 of the Charter is designed to protect the privacy interests of individuals. And, again, this interest includes students. They wrote:
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.… 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.… 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.
These are the considerations that brought the Court to this conclusion:
“The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state…. Students are as deserving of constitutional protection as adults — although their age, vulnerability, and presence in a school environment all factor into the totality of the circumstances.”
The Court’s “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. The impact includes disruption, inconvenience and potential embarrassment for innocent individuals subjected to the dog sniff or other intrusive police attention.”
Obviously, the Court must know the purpose of the police search in determining its validity. “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,