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Sniffer Dogs and Backpacks; Privacy and the Charter in Schools
April 29, 2008

The Supreme Court of Canada requires a ‘reasonable suspicion’ before the police can use drug detection dogs to search in a school.

In 2000, the principal of St. Patrick’s High School in Sarnia, Ontario issued an open invitation to the local police to attend at the school with ‘sniffer dogs’ to conduct drug searches whenever the police found it convenient. On November 7, 2002, the police – not for the first time – decided to go to the school with a dog and undertake such a search. Although the principal was not given prior notice of their attendance on that day, he gave permission for the police to enter the school and search for drugs. In order to assist the police, the principal announced over the p.a. system that the police were in the school and that all students and staff were to stay in their classrooms until their search was concluded.

The search included a gymnasium where some student backpacks had been left unattended. The dog “alerted” to one of the backpacks, causing the police to search its contents more closely . They discovered ten bags of marijuana, some magic mushrooms (psilocybin) and a few items of drug paraphernalia. They also found A.M.’s wallet and his identification in the backpack. He was charged with possession for the purpose of trafficking (the marijuana) and possession of psilocybin.

At trial, the judge excluded the drug evidence on the basis that A.M.’s rights under s. 8 of the Charter had been violated by two unreasonable searches; the search conducted by the sniffer dog and the physical search of the backpack. As a result of the exclusion, A.M. was acquitted of all charges. The Ontario Court of Appeal upheld the acquittals. The Crown appealed and, on Friday, April 25, 2008, the Supreme Court of Canada dismissed that appeal.

The reasons of the Court in R. v. A.M. were released together with reasons in a companion case, R. v. Kang-Brown, 2008 SCC 18. In that case, a sniffer dog had been used at a bus depot and Mr. Kang-Brown was arrested on the basis of the dog’s indication that drugs were present in his bag. The two cases were the first time that the Supreme Court of Canada had examined the Charter issues raised by the use of sniffer dogs to conduct searches.

The Court confirmed that the use of sniffer dogs by the police is a search covered by s. 8 of the Charter. A ‘sniff’ is, however, a minimal intrusion on the privacy interests of the individual and may be undertaken on a standard of reasonable suspicion, rather than the stricter ‘reasonable and probable grounds’ standard ordinarily required for more intrusive searches. As the Court stated, ‘Suspicion is an expectation that the targeted individual is possibly engaged in some criminal activity’. A reasonable suspicion is something more than mere suspicion but something less than a belief based upon reasonable and probably grounds.

The Court also confirmed that students in a school do have an expectation of privacy in their backpacks and other personal possessions, even when left unattended. The Court confirmed its earlier finding in R. v. M. (M.R.), [1993] 3 S.C.R. 393, however, that students’ expectation of privacy in the school is lower than it might be outside of the school context.

R. v. A.M. also applies a lower standard to searches by a sniffer dog, even when undertaken by the police. A reasonable suspicion that an individual is in possession of contraband is required, however, before even that type of search can be used. Random, speculative searches are a breach of even the lesser expectation of privacy enjoyed by students in a school. As Mr. Justice LeBel stated:

“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.”

On the facts of the case, the Court concluded that neither the police nor the principal had a reasonable suspicion of any illegal activities at the school on that day. The appeal was dismissed and the acquittal confirmed.

R. v. A.M.