Section 24(2) of the Charter allows a court to hear evidence from unlawful searches that would otherwise be excluded in a criminal trial. But this can be done only if such admission would not “bring the administration of justice into disrepute.”
These are the relevant provisions of the Charter: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.
The Ontario Education Act calls for police to be used only “when necessary, or if the well- being of the student is at risk.”
Drug use and trafficking among and by youth is considered a serious societal problem.
Discussion
The Court majority in The Queen v. A.M., having ruled the sniff search unlawful, sustained the trial court refusal to receive the results of that search (the unlawful drugs) in evidence. Justice Binnie, with whom Chief Justice McLachlin concurred, stated that (1) drugs in schools are a serious problem, but (2) the trial court judge (youth court) saw the parties and heard the evidence. That judge was in a better position to balance the rights of A.M. against those of the need to protect society.
Justice Binnie noted that the trial court’s decision should be upheld on appeal unless it was based on a wrong principle or exercised in an unreasonable manner. The trial court is seen as reflecting community values.
Justice Binnie then went on to quote the youth court judge who stated:
This search was unreasonable from the outset. It is completely contrary to the requirements of the law with respect to the search in a school setting. To admit the evidence is effectively to strip A.M. and any other student in a similar situation of the right to be free from unreasonable search and seizure. It is effectively saying that persons in the same situation as A.M. have no rights. Such a finding would, to my mind, bring the administration of justice into disrepute.
Creating a Balance
At this point, Justice Binnie reviewed the findings of the youth court judge:
The evidence was essential to the Crown’s case. Without it, the case could be and was dismissed. Further, having regard to the school setting, the youth court judge said, “the breach must be seen on the less serious end of the scale.” Involved was no crime of violence, and the drugs involved might be seen as less pernicious than those such as cocaine or heroin. No bad faith could be attributed to the police or school authorities. All of these factors, said the youth court judge, tended to favour admission of the evidence despite the Charter breaches.
However, the youth court judge continued, weighed against admission was the fact that the use of dogs for a “general sweep” in this case appears to be the standard practice of the OPP [Ontario Provincial Police] and the municipal police forces in Ontario. The searches did not respect the rules set out four years previously by this Court in The Queen v. M. (M.R.). Nor did they comply with the school board’s own policies enacted under the Ontario Education Act, which call for police to be used only “when necessary, or if the well-being of the student is at risk.” The police in this matter acknowledged that they had participated in sniffer dog searches of schools on approximately 140 previous occasions.
The failure to respect the right of the students may therefore be described as systemic — that is, reflective of the way the system, as a whole, operated. In the end, weighing the good with the bad, the youth court judge concluded that “the Charter must not be seen as something to be swept away in the interests of expediency. While this case centres around the rights of A.M., the rights of every student in the school were violated that day as they were all subject to an unreasonable search.”
Justice Binnie concluded:
Like the Ontario Court of Appeal, I would not interfere with the balance of competing values struck by the youth court judge or his exclusion of the evidence. Youth court judges carry out special responsibilities for young people in trouble with the law. They have a greater awareness than appellate judges do of the effect that admission or exclusion of this evidence would have on the reputation of the administration of justice in the community with which they deal on a daily basis. The trial judge’s analysis was brief but perceptive. I would not interfere.
A Dissenting View
Justice Bastarache agreed with the Court majority that the sniffer search was unlawful. He dissented, however, on the application of section 24(2) of the Charter. He would have allowed the evidence resulting from the unlawful search to be received. It seemed to him that (1) trafficking in prohibited drugs was a serious matter in itself. An aggravating factor was that the offence took place within a school. (2) The principal and police conducted the search in the good faith belief that they were acting in a lawful manner. To Justice Bastarache, the illegality of the search was inadvertent.
Justice Bastarache stated:
Although this search was not performed on the basis of a reasonable suspicion that drugs would be found, it was conducted in good faith. The search was non-intrusive in nature [for example, none of the students were subject to a physical search] and occurred in an environment where the [personal] expectation of privacy was diminished. The evidence obtained was non-conscriptive [obtained not by force but found in a student’s stored backpack] in nature and does not affect the fairness of the trial. As a result, it is my view that excluding this evidence would bring the administration of justice into disrepute and that the trial judge erred by failing to admit it at trial.
Dissent from the Majority: A Lawful Search
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.
To the dissenting justices, the question was not whether there was a search by the sniffer police dog. The Crown had argued, among other points, that the dog was simply sniffing air. It had not physically forced open, nor in any way impinged on, any backpack.
Justice Deschamps stated:
A.M.’s backpack was closed and was in a pile with others in the small gymnasium of St. Patrick’s High School when the police officers entered the room with their sniffer dog. It is significant that the odours emanating from the backpack could not be detected by the police using their own senses and that the police necessarily relied on the use of the dog to identify, among the several backpacks in the gymnasium, which, if any, contained controlled substances.
The dog’s positive indication on sniffing A.M.’s backpack enabled the police to ascertain what was inside the backpack with a reasonably high degree of accuracy. Accordingly, I have no difficulty in finding that the use of the dog in this case amounted to a search from an empirical perspective. However, what A.M. had to establish was that the use of the dog amounted to a “search” from a constitutional perspective such that it implicated a reasonable expectation of privacy that engaged the protection of section 8.
A Reasonable Expectation of Privacy
Justice Deschamps emphasized that A.M. was not wearing the backpack at the time of the search. It was in a pile of other student backpacks. It would be a different case, she said, if A.M. had been wearing the backpack at the time of the search. Still, the question remained as to whether A.M. had a reasonable expectation of privacy — that his backpack would be left alone.
For the dissent, Justice Deschamps argued that A.M. had neither a subjective nor objective reasonable expectation of privacy. The justice wrote:
Students and parents were aware of the drug problem and the school’s zero-tolerance drug policy and