Nor can it be said, Justice Deschamps continued, that A.M. could have had any objective expectation of privacy. She wrote:
The place where the search occurred was a school with a known problem of drug use by students, both on and off school property.…
The police were there with the permission (and at the request) of the school’s principal in furtherance of disciplinary goals being pursued by the school in order to confront a systematic drug problem. The dogs were used to search the premises, not the students….
Justice Deschamps added:
The use of a sniffer dog as an investigative technique did not intrude unreasonably on A.M.’s privacy interest, since his informational privacy interest was extremely limited in the school environment. Therefore, in my view, in light of [all] of the circumstances, A.M. did not have a reasonable expectation of privacy that engaged section 8.
Since I am of the view that A.M. did not have a reasonable expectation of privacy that engaged section 8 of the Charter, it is not necessary to determine whether the search was reasonable.
Furthermore, since A.M. did not have a reasonable expectation of privacy in respect of his backpack that was sufficient to engage section 8 of the Charter, and since the police were lawfully present at the school with the principal’s permission and were acting [as is] their duty to investigate and prevent crime, no individualized grounds were required for the police to employ their sniffer dog as they did in this case.
The Media’s Response
Within hours of the release of the decision in The Queen v. A.M., the Globe and Mail featured a lengthy editorial comment, a portion of which follows:
When a high-school principal in Sarnia, Ont., turned his school over to the police for a good portion of the day to let a drug-sniffing dog roam, he sent a terrible message to his students about what a democracy should permit the state to do in pursuit of its goals. The students were locked in their classrooms for up to two hours while the dog and the police did their work, intruding at random on the students’ personal property. For part of the day, that zero-tolerance school must have felt like a police state.
It is good that the Supreme Court of Canada ruled this 2002 search illegal yesterday, and refused to allow evidence of 10 bags of marijuana and 10 magic mushrooms found in a backpack in the [school] gymnasium to be used against the student who owned it. But, the Court, like Canadians generally, was torn over the appropriate standard for police as they go about their work of detecting crime and protecting communities. To a surprising extent, the Court is at sea.…
Charter rights are not guarantees of ideal justice, because they exist in the real world. A random drug search is of small use if the price is to render students rights-less. But holding police to an abstract standard of perfection as they try to protect us against imminent danger would give the Charter a bad name (“At Sea, but Keeping a Balance” 2008).
YOU BE THE JUDGE
Bus Station Stakeout
The Facts
On January 25, 2002, at about 11:00 a.m., three RCMP officers in plain clothes were staking out the Calgary Greyhound bus terminal. The team was watching passengers leave the overnight bus from Vancouver.
This was part of the RCMP “Jetway” program, which monitors the travelling public in an effort to identify and arrest drug couriers and other individuals participating in criminal activities. This was the only purpose of the stakeout.
The officers were not investigating the possibility of terrorist activity, explosives, or other threats to public safety. Their sniffer dog, Chevy, was not trained for anything other than narcotics detection.
RCMP Sergeant MacPhee testified that his training in the Jetway program taught him to watch for an “elongated stare,” a locked eye contact for a period of a few seconds. One passenger gave him such a stare. Sergeant MacPhee noted that the man had moved to the underbelly of the bus, but did not look at the bags that were being unloaded. Instead, he went around the bus in a direction different from the other passengers and stopped approximately three to five metres behind Sergeant MacPhee. The officer said this conduct aroused his suspicion.
The passenger was carrying a bag (like a gym bag) that had no Greyhound or other identifying tags on it. It had two handles rather than a shoulder strap, and he was carrying it on his shoulder. On entering the terminal, he walked toward the washroom. About five metres before the washroom door, he stopped, turned around and looked back at Sergeant MacPhee, who was about eight metres behind him. Sergeant MacPhee described this as “rubber-necking.”
When the passenger came out of the washroom, he again made eye contact with Sergeant MacPhee as he moved toward the exit doors. Sergeant MacPhee went over and introduced himself as follows: “Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they’re travelling.”
Sergeant MacPhee commented on the weather and asked to see the passenger’s bus ticket (which he had apparently left on the bus), and asked for identification (which the man produced). Sergeant MacPhee made a note of his name and date of birth, and asked how long he would be in Calgary. The passenger seemed to Sergeant MacPhee to be getting “increasingly antsy” in the officer’s presence.
At this point, Sergeant MacPhee asked to see the contents of the passenger’s bag. The man paused, then put his bag down on the floor and started to open it. Sergeant MacPhee said, “Thanks, sir. You’re certainly not obliged to show me, but thanks.”
Sergeant MacPhee then started to kneel down and take hold of the bag himself, saying: “Just an officer safety thing here, do you mind?” Before he could touch the bag, the passenger said “What are you doing?” and pulled the bag back.
At that point, the passenger was very agitated. Sergeant MacPhee signalled to another officer, Sergeant (then Corporal) Bouey, who was accompanied by Chevy, a police sniffer dog, as noted. They approached, and Chevy sat down, indicating to his handler the presence of drugs in the bag. Sergeant MacPhee then told the passenger that he was under arrest for the possession and/or trafficking of a controlled substance and advised him of his rights.
Following the arrest, the passenger’s bag was searched by Constable Ritchie, and was found to contain two zip lock baggies filled with approximately half a kilogram of cocaine. The accused also produced, from his pocket, a Starbucks mint container containing a small amount of heroin. He was charged with possession of cocaine for the purposes of trafficking and possession of heroin.
The trial judge ruled that the accused was neither arbitrarily detained nor unlawfully searched, and he entered a conviction. The majority of the Court of Appeal agreed and dismissed his appeal.
The Issue
Was there a lawful basis for police search of the accused’s luggage?
Points to Consider
Section 8 of the Charter of Rights and Freedoms, part of the Constitution of Canada, provides, “Everyone has the right to be secure against unreasonable search or seizure.”
Based on the reasoning of the Supreme Court of Canada in The Queen v. A.M., the sniffer dog’s alert in front of the luggage of the accused was a search.
The offences with which the accused was charged were serious. However, if the search were unlawful, the breach of his section 8 Charter rights also would have been serious.
The accused had a “reasonable expectation of privacy” in the luggage that he carried, which was protected by the Charter.
There is no statute that defines authority for a lawful canine search.
Discussion
The facts in this case were taken from The Queen v. Kang-Brown, a decision handed down by the Supreme Court of Canada on the same day as The Queen v. A.M. The Court reflected the same split as in The Queen v.