Tuesday, April 29, 2008

Sniffing Dogs

The Supreme Court of Canada rendered two related and important decisions on the issue of how evidence obtained through the use of sniffer dogs is to be treated. One case dealt with a situation where a school invited the police into sniff through the school and on sniffing an unattended backpack found drugs. In the other case the police targeted a man who they perceived as acting in a shifty manner at a bus station and had his bags sniffed, again uncovering a stash of drugs.

In the result the court decided that the searches were illegal under the Charter of Rights and Freedoms and excluded the evidence. What is more interesting about the case, though, is how fractured the court was on how to analyze the situations in front of them. The judges disagreed with each other on almost every issue and it is hard to discern any common thread amongst the judges who decided to exclude the evidence. The judges could not agree on whether or the 'sniff' was a search at all; how much suspicion was needed to justify a 'sniff' if it was a search; and then whether the admission of evidence brought the administration of justice into disrepute.

This decision shows that we are now truly at the end of the Dickson-Lamer Court era. That era was characterized by a strong interest in the Charter as a tool to re-inforce certain common law traditions against arbitrary exercises of state power. The debates in that court largely focused not on the content of the right in search and seizure cases but on how best to address police wrong-doing (when would the administration of justice be brought into disrepute). In these cases we clearly see a factionalized Court struggling to find a way to give the police more latitude and to not even cast a shadow upon their behaviour while still trying uphold the common law.

Given this court's propensity to overturn or significantly modify early rulings I think we are in for some rough weather ahead.
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