Canada: Court Of Appeal Upholds Ruling That Drug Detector Dog Search At School Violates Students’ Charter Rights

Introduction

On April 28, 2006, the Ontario Court of Appeal released its decision that a drug detector dog search conducted at a school violated provisions of the Canadian Charter of Rights and Freedoms, protecting against unreasonable search and seizure.

The principal of St. Patrick’s High School in Sarnia, Mr. Bristo, had issued a standing invitation to the Sarnia Police Force to come into the school, if they had drug detector dogs available, to conduct a search. St. Patrick’s High School has a zero tolerance policy for drugs. Students are aware of the policy and are also aware that to enforce the policy, the school authorities may resort to the use of police officers with drug detector dogs.

On November 7, 2002, police officers of the City of Sarnia Police Force and the Ontario Provincial Police arrived at the school. Mr. Bristo was not aware that the police were coming to the school. The officers attended the school with their dog and asked for permission to search for drugs. Mr. Bristo gave them that permission. To facilitate the search, Mr. Bristo announced over the school’s P.A. system that a search was about to be conducted, and directed students to remain in their classrooms while the search was carried out. The police conducted the search in a manner they determined to be appropriate and, once finished, asked Mr. Bristo if there were other areas he wanted searched. He directed the officers to one of the school gymnasiums.

One of the teachers accompanied certain police officers to the gymnasium. A dog named "Chief" identified a specific backpack in the gymnasium. The police officer searched the bag and found five bags of marijuana and a container with another five bags of marijuana. He also found ten magic mushrooms, a drug known as psilocybin. The backpack in which the drugs were found belonged to a student named A. M.

At trial, counsel for A.M. moved to exclude the evidence of the drugs found in the backpack on the basis that the search by the police was unreasonable and therefore offended section 8 of the Canadian Charter of Rights and Freedoms. The trial judge accepted the submissions of counsel and excluded the evidence related to the drugs. As a result, A.M. was acquitted of the charges.

The Crown then appealed the acquittal. Counsel for the Crown raised the following arguments in the appeal:

1. The police were acting as agents of the school authorities;
2. The dog sniff was not a search;
3. If the dog sniff was a search, it was reasonable;
4. The search of the backpack was reasonable; and,
5. The trial judge erred in excluding the evidence.

Justice Armstrong, delivering the judgment of the Court, dismissed the appeal.

Justice Armstrong ruled that the search was conducted by the police, not by the police as agents for the school authorities. Cited as reasons for this decision were the fact that no school authority requested the presence of the police on the day in question, the principal received no notice of the intention of the police to conduct a search and neither the principal nor any teacher played an active role in the search.

The fact that the principal of the school had issued, two years prior to the search, a "standing invitation" to the police to search the school with a sniffer dog did not "turn the search…into a search by school authorities in police uniforms".

It was unnecessary for Justice Armstrong to decide whether the dog sniff was a search, as the Crown conceded that point following a cross-examination of the dog’s handler. However, Justice Armstrong did agree with the submission of counsel for the Canadian Civil Liberties Association that:

The dog is a necessary, direct, and integral part of the police officers' search of the classrooms, gymnasium and backpacks. The dog is, in essence, a physical extension of its handler and is directly and immediately connected to the consequent physical search of the backpack.

Justice Armstrong distinguished the case from the Supreme Court Tessling decision, that ruled a plane taking heat patterns emanating from a building suspected of housing a marijuana grow operation was not a search, on the basis that "a trained police dog sniffing at the personal effects of an entire student body in a random police search" was significantly different. Justice Armstrong noted that the Supreme Court has ruled that police officers were engaged in an "olfactory search", that engaged the right to be secure against unreasonable search and seizure, when they attended at a door for the purpose of sniffing for the odour of marijuana.

Justice Armstrong agreed with counsel for A.M. and the Canadian Civil Liberties Association "that a backpack should be afforded at least the same degree of respect as an adult’s briefcase". The Court concurred with the following submission of the Canadian Civil Liberties Association as it related to the circumstances of the case:

A student's backpack is in effect a portable bedroom and study rolled into one. It will contain personal items such as journals, photos, letters, personal hygiene items, medication, clothing and school records. Backpacks are often in reality the only way for students to carry and use items that are personal and important to them. These items are shielded from view and access.

There are no contextual factors that diminish students' legitimate expectation of privacy, dignity, and autonomy in their backpacks. Students' expectation of privacy in their backpacks is objectively reasonable. Backpacks are not searched in the normal course of a school day, nor do students come to school expecting that their backpacks will be searched. The students did not consent to their backpacks being searched on November 7, 2002, and the Principal certainly could not consent on their behalf.

As police conducted the search without a warrant it was prima facie unreasonable; the onus shifted to the Crown to rebut the presumption of unreasonableness. The Crown failed to rebut the presumption of unreasonableness with respect to the unauthorized warrantless random search.

Justice Armstrong observed, citing the Supreme Court’s decision in R v. M.R.M., that this presumption does not apply in the context of searches by school authorities on reasonable grounds. The approach to be taken in considering searches conducted by school authorities was summarized by the majority in R. v. M.R.M. as follows:

1. A warrant is not essential in order to conduct a search of a student by a school authority.
2. The school authority must have reasonable grounds to believe that there has been a breach of school regulations or discipline and that a search of a student would reveal evidence of that breach.
3. School authorities will be in the best position to assess information given to them and relate it to the situation existing in their school. Courts should recognize the preferred position of school authorities to determine if reasonable grounds existed for the search.
4. The following may constitute reasonable grounds in this context: information received from one student considered to be credible, information received from more than one student, a teacher's or principal's own observations, or any combination of these pieces of information which the relevant authority considers to be credible. The compelling nature of the information and the credibility of these or other sources must be assessed by the school authority in the context of the circumstances existing at the particular school.

In determining whether a search conducted by a teacher or principal in the school environment was reasonable, the majority of the Supreme Court outlined the following factors to be considered:

1. The first step is to determine whether it can be inferred from the provisions of the relevant Education Act that teachers and principals are authorized to conduct searches of their students in appropriate circumstances. In the school environment such a statutory authorization would be reasonable.
2. The search itself must be carried out in a reasonable manner. It should be conducted in a sensitive manner and be minimally intrusive.
3. In order to determine whether a search was reasonable, all the surrounding circumstances will have to be considered.

Justice Armstrong held that even if school authorities had done the search, through the agency of the police, there was nothing in the Education Act or the subsidiary policies that would grant the authority to conduct such a search.

As a result of this case, educators assessing whether to undertake a search of a student should recognize that a search should only be conducted when there are reasonable grounds to believe that there has been a breach of school rules or discipline. The following may constitute reasonable grounds: information received from one student considered to be credible, information received from more than one student, a teacher’s or principal’s own observations, or any combinations of these pieces of information which the relevant authority considers to be credible.

A warrant is not essential in order to conduct a search of a student by a school authority. However, where the police are seeking to conduct a search on school premises, including locker searches or property searches, they are required, absent exigent circumstances, to first obtain a search warrant. Exigent circumstances may include a bomb threat, a person possessing a weapon or a fire on school property. It should also be recognized that random or dragnet searches will likely not be regarded as reasonable in the eyes of a court. Unlike personal or locker searches that are aimed at a particular student or students, dragnet searches target a whole class or school. Under these circumstances, it is unlikely that a court would treat this search as reasonable, since it is intrusive and sweeping.

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