What ever happened to ... the law of sniffer dog searches: Part 2.

• Author: Bowal, Peter

Introduction: The Flux of Law

This article illustrates how quickly and remarkably the common law can adjust when judicial principles change and when new judges are appointed to the Supreme Court of Canada.

The common law is generally intended to endure. Judges describe what they do as not making the law as much as declaring what the law has always been. They see themselves in terms of Lady Justice--as neutral experts loyal to principle and reason, unencumbered by personal ideologies and biases.

Judges will adapt the common law to reflect social change over time. However, occasionally, a radical change in the law can be traced to nothing more than a shift in thinking or putting new judges on the Supreme Court of Canada. To illustrate, we profile the abrupt five-year change to sniffer dog law.

Kang-Brown, 2008

In the last "Whatever Happened to ..." column in LawNow, we highlighted the Kang-Brown, [2008] 1 SCR 456 decision from the Supreme Court of Canada. At the Calgary Greyhound bus terminal, a trained sniffer dog detected a large quantity of illegal drugs in Kang-Brown's bag.

According to the law, a dog conducts a search when it sniffs. Since the dog is an extension of the police who are state agents, the legal and factual groundwork for the sniff search must exist before any illegal things discovered can be used in evidence at a criminal trial.

One judge in the top court said police who form a generalized suspicion that one is in possession of illegal drugs can use sniffer dogs to search. This standard would have encompassed the suspicious eye contact with Kang-Brown. Four judges declared a more onerous reasonable suspicion to apply. The other four judges upheld the existing even higher standard of reasonable and probable grounds. These last four judges said sniffer dog searches are illegal unless a statute authorizes them. In the end, six of the nine judges said this sniff search was unconstitutional and none of the illegal drugs possessed by Kang-Brown could be used as evidence against him. He was not guilty. Note that Kang-Brown was decided at the same time as R. v. A.M., 2008 SCC 19 (CanLII) by the identical Court with the same outcome. In A.M., sniffer dog detection of drugs in a student's backpack in the gymnasium was ruled an unconstitutional search.

The following illustration shows how these standards relate to the extent of freedom from unreasonable search.

Sniffer dog detections have been used by law enforcement for a long time...