Friday, November 17, 2006

Smell Test Appeal to The Supreme Court of Canada

The Supreme Court of Canada (SCC) has, for reasons unknown, granted leave to appeal to the Crown in the R v. A.M. case. The facts of the case were summed up by Armstrong J. of the Ontario Court of Appeal as follows:

[1] On November 7, 2002, three police officers attended St. Patrick’s High School in Sarnia and, with the assistance of a “sniffer” dog, conducted a warrantless and random search of the school. The attendance of the police on that particular day was not at the request of school authorities. The principal and staff were unaware that the police were planning to attend until they arrived in the school.

[2] As a result of an indication from the sniffer dog, the police were directed to the backpack of A.M. When they searched the backpack, they found that it contained a quantity of marijuana and psilocybin. A.M. was charged with possession for the purpose of trafficking in respect of both drugs.

[3] 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 s. 8 of the Canadian Charter of Rights and Freedoms. The trial judge, Justice G. M. Hornblower of the Ontario Youth Justice Court, accepted the submissions of counsel and excluded the evidence related to the drugs under s. 24(2) of the Charter. In the result, A.M. was acquitted of the charges.

[4] The Crown now appeals the acquittals on the basis that the trial judge erred in finding a breach of s. 8 of the Charter and in excluding the evidence under s. 24(2) of the Charter.
At trial the judge had found as follows:
[21] The trial judge found that there were two searches. The first search was the search conducted with the assistance of the sniffer dog; the second search was the search of the backpack of A.M. The trial judge concluded that neither search was reasonable.

[22] Finally, the trial judge concluded that the search was a police search in the guise of a search by school authorities. He noted that, even if it had been a search by school authorities, the school authorities had no right to conduct such a search in the absence of reasonable grounds to believe drugs could be found.

[23] The trial judge excluded the evidence obtained as a result of the police search under s. 24(2) of the Charter. In his consideration of the application of s. 24(2) of the Charter the trial judge said:

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. This search was unreasonable from the outset. It is completely contrary to the requirements of the law with respect to a 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 notwithstanding the other factors I have alluded to.
Section 8 of the Charter reads as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
The evidence was excluded under section 24(2) of the Charter. Section 24 of the Charter reads:
(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.

(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 Court looked at the reasonableness of the sniff search and concluded:
[51] The search in this case was warrantless. The Supreme Court of Canada in Hunter, et al. v. Southam Inc., 1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145 at 161 held that a warrantless search by the police is prima facie unreasonable. The Crown, who seeks to justify a warrantless search, has the burden of rebutting the presumption of unreasonableness. In Collins, the Supreme Court held at p. 278 that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.”

[52] I pause here to observe that, in respect of a search by school authorities (on reasonable grounds), the same presumption does not apply: see M.R.M. at para. 50. However, I have already said that, in my opinion, this was a warrantless search by the police and therefore the presumption in Hunter v. Southam applies. As Cory J. said in M.R.M. at para 56:

The usual standard, requiring prior authorization in the form of a warrant which is based upon information which provides reasonable and probable grounds, will continue to apply to police and their agents in their activities within a school. The modified standard for school authorities is required to allow them the necessary latitude to carry out their responsibilities to maintain a safe and orderly school environment. There is no reason, however, why police should not be required to comply with the usual standards, merely because the person they wish to search is in attendance at an elementary or secondary school.
The court then concluded that the detention of the students for 1-2 hours was not reasonable, but that this was not as egregious as the warrantless search:
There was no credible information to suggest that a search was justified. There were no reasonable grounds to detain the students. As Laskin J.A. said in R. v. Calderon (2004), 188 C.C.C. (3d) 481 at para. 69 (Ont. C.A.): “An officer cannot exercise the power to detain on a hunch, even a hunch borne of intuition gained by experience.”

[58] The Supreme Court of Canada has held that there must be a clear nexus between the individual to be detained and a recent or on-going criminal offence. This position was articulated by Iacobucci J. for the majority of the court in R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59 at para. 34:

The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.

[59] Quite apart from the detention of the entire student body, of more significance is the unauthorized warrantless random search itself.

[60] In my view, the Crown has failed to rebut the presumption that the search was unreasonable. Even if the presumption of unreasonableness did not apply, it is my opinion that there were no grounds upon which to justify a random search of the kind that was conducted in this case.
The evidence was properly excluded.

The idea that the police can collude with school administrators to detain students while random searches are conducted by the police may sound great to some overly protective parent who has forgotten his own childhood. For me, it just does not pass the smell test.

(Cross post: Little Tobacco)

1 Comment:

Anonymous said...

I was told several decades ago, by a party who claimed to be involved in the case, that at a certain Ontario high school the cops approached the principal and asked to search every locker in the school for drugs. The principal politely told them to get fucked. So just to show there was no hard feelings, they opened a "suspicious persons" file on the principal and proceeded to harass him by questioning all his acquaintances about his background, pastimes, associates, etc. For the sake of the children, you understand.

But don't worry! I'm sure once the Gimper turns high schools into educational prisons there won't be any increase in discipline problems or drug use at schools, and you'll hardly ever hear of the police going there. Because everyone will be getting so ... educated ...