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Last Friday the Supreme Court of Canada released judgments in a pair of cases involving the use of drug sniffing dogs by police: R. v. Kang-Brown, 2008 SCC 18 and R. v. A.M., 2008 SCC 19.
These decisions received considerable media attention, mostly for what they had to say about the constitutionality of police employing drug sniffing dogs. Lost in the media coverage, which was confused by the sheer length of the Court's opinions and the fact that the justices issued four separate sets of reasons in each case, was a larger controversy regarding the role of the Supreme Court in the Charter era when it comes to the creation of new police powers. Before exploring that disagreement, it is helpful to have a more definite sense of what the SCC held with respect to the use of drug sniffing dogs.
Dogs "Search" When they Sniff for Narcotics
Most importantly, all nine justices (essentially) agreed that when a police dog trained to sniff out narcotics focuses its olfactory powers on an individual's knapsack or luggage, the target's reasonable privacy expectations are encroached upon. In other words, this constitutes a "search" for s. 8 Charter purposes, a conclusion that triggers the "reasonableness" requirements of the guarantee.
This conclusion may seem obvious to many readers. After all, if the dog isn't "searching" when it is "sniffing" at someone's bag what is the point of the sniff? Amazingly, however, the answer did not seem entirely clear cut as these two cases made their way before the SCC. This was because the United States Supreme Court long ago decided that dog sniffs do not constitute a "search" for Fourth Amendment purposes. In United States v. Place, 462 U.S. 696, 707 (1983) the USSC came to this conclusion because, as Justice O'Connor explained for the majority:
...the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a "search" within the meaning of the Fourth Amendment.
Given this, there was concern that our top court might come to the same conclusion. More specifically, it was feared that the Court might draw too ready a parallel between the odour of drugs emanating from luggage and waste heat emanating from a home. In R. v. Tessling, [2004] 3 S.C.R. 432 police use of a heat detecting technology (the FLIR - "Forward Looking Infra-Red") to detect unusual amounts of heat escaping from a home, a tell-tale sign of marihuana grow lamps, was held not to constitute a "search" for s. 8 purposes. The SCC characterized the information gleaned from the FLIR as meaningless because it could also be caused by poor insulation, a hot bath or a sauna. Thankfully, in Kang-Brown and A.M. the SCC recognized a significant difference between the use of the FLIR and the use of drug detecting dogs.
A properly trained dog is capable of telling its handler something extraordinarily meaningful, that a narcotic is being secreted. The SCC refused to follow the lead of its American counterpart, remembering its earlier precedents which make clear that the unlawful nature of the targeted conduct does not vitiate an individual's reasonable privacy expectations (See e.g. R. v. Wong, [1990] 3 S.C.R. 36). To hold otherwise, Justice Binnie recognized, writing on behalf of a majority of the justices in Kang-Brown on this point, would mean that all Canadians, innocent or guilty, would henceforth be subject to having their persons and effects sniffed at by police drug detecting dogs, at the whim of law enforcement, whenever they happened to move through public spaces. This possibility, concluded Justice Binnie, is not at all in keeping with the idea of a free society.
"Reasonableness" and Drug-Sniffing Dog Searches
Consensus amongst the justices broke down, however, when it came to passing on what s. 8 of the Charter demands for such searches to be considered "reasonable". R. v. Collins, [1987] 1 S.C.R. 265 long ago established that to be "reasonable" a search or seizure must satisfy three preconditions: 1) it must be authorized by law; 2) the law itself must be reasonable; and 3) it must be carried out in a reasonable manner.
Disagreement amongst the nine justices regarding the first and second preconditions in these cases is what led to four separate sets of reasons in each judgment.
With respect to the second requirement, what reasonableness requires with respect to the use of drug sniffing dogs, the justices were sharply divided.
Four of the justices (McLachlin C.J. and Binnie, Deschamps & Rothstein JJ.) were of the view that reasonable suspicion that a person is carrying narcotics is what s. 8 demands before a drug sniffing dog can be used by police. This bloc emphasized that relative to other kinds of searches, a dog sniff is comparatively less intrusive and therefore should be permitted on a less exacting standard than that normally required by s. 8, i.e. reasonable and probable grounds.
In contrast, four of the justices (LeBel, Fish, Abella & Charron JJ.) concluded that the reasonable and probable grounds standard is indeed what s. 8 requires, refusing to countenance a lessening of the standard in this context. For this bloc, even though physically less intrusive, the information gleaned through the use of drug sniffing dogs is just as private and worthy of protection as it would be if the police instead reached inside an individual's pockets or looked inside their bag to probe for evidence.
The tie breaker on this important issue was Justice Bastarache. He went much further than Justice Binnie was prepared to go, agreeing that reasonable suspicion is indeed the appropriate standard but expressing the view that it need not be individualized to justify the use of such dogs. Rather, a generalized suspicion, for example that drugs are routinely being trafficked through a particular location (like a bus depot), would be enough to justify the use of drug detecting dogs to sniff at travelers and their belongings.
The effect of Justice Bastarche's vote is that reasonable suspicion emerges as the controlling constitutional standard in this context. And, given that four of the justices insisted that it be of a particularized nature, the clear implication would seem to be that before police can use such dogs to sniff at an individual or her belongings, section 8 of the Charter requires that they possess reasonable grounds to suspect that the person is carrying narcotics on her person or inside her belongings.
The Larger Implications: the Fate of Judicially Created Police Powers
Disagreement amongst the justices also focused on the first Collins precondition, that a search or seizure must be authorized by law. No statute authorizes the use of drug sniffing dogs by police. As a result, legal authority for their use, if it exists, must be derived from the common law.
If one were to examine the "common law" as it has been historically understood in England and throughout the Commonwealth, i.e. the written reasons of judges from previously decided cases, one will find no mention of drug sniffing dogs. I do not mean to suggest by this that the common law is somehow static. To the contrary, the great genius of the common law system is indeed its organic nature. The ability of judges, using established tools of legal reasoning, to incrementally expand existing principles to take into account the changing needs of society.
Historically, when it came to government interfering with individual liberties, our courts were very reluctant to use their law-making authority to expand state powers. In fact, in this context, the common law courts traditionally showed much restraint. That restraint eventually became the bedrock of English constitutional law, taking the "principle of legality" as its label. Applying that principle common law courts have long insisted that any interference with individual liberty or property rights be premised on clear legal authority. Absent such authority, the common law erred on the side of individual freedom. It is in this sense that the common law has been viewed as "the law of liberty".
In the search and seizure context the principle of legality has a very long lineage. It can be traced all the way back to Entick v. Carrington, (1765), 19 St. Tr. 1029, one of the earliest and most celebrated search cases. In that judgment the court refused a government request that it recognize, for the first time, an entirely unprecedented power on the part of the Secretary of State for the Northern Department to issue search warrants. In rejecting that request, Lord Chief Justice Camden remarked:
What would the parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be, not judgment, but legislation.
This same approach carried forward to Canada. In the early years of the Charter there was only one anomalous exception: R. v. Dedman, [1985] 2 S.C.R. 2. In that case a slim (5 judge) majority of the SCC seized on a relatively obscure decision of the English Court of Criminal Appeals, R. v. Waterfield, [1964] 1 Q.B. 164 (Ct. Crim. App.), which had set down a two part test for assessing whether a police officer was acting in "execution of his duty." (This was an element of the offence charged in that case.) In Dedman, however, the majority fastened on this test, and the cost-benefit analysis that it endorsed, transforming it into a bases for recognizing entirely new police powers. The power ultimatedly recognized in Dedman was the authority of police to conduct sobriety check-stops. Justice Dickson wrote a scathing dissent, reminiscent of Justice Camden's opinion in Entick v. Carrington, in which he admonished the majority for taking on a law-making role that belonged more appropriately to Parliament.
For a while, at least, the law-making authority that Dedman recognized seemed to lay dormant. In the interim, the Supreme Court of Canada repeatedly refused to recognize new police powers in response to Charter challenges under s. 8, thereby engaging Parliament in a form of dialogue that led to the creation of a number of much needed legislated search powers. (I have chronicled all of this elsewhere, see James Stribopoulos, "In Search of Dialogue: The Supreme Court, Police Powers and the Charter" (2005) 31 Queen's L.J. 1). During this period the Supreme Court sent strong signals that it would not again use the ancillary powers doctrine to create new police powers. As Justice LaForest explained, on behalf of the majority in Wong,
The common law powers of search were extremely narrow, and the courts have left it to Parliament to extend them where need be ... it does not sit well for the courts, as the protectors of our fundamental rights, to widen the possibility of encroachments on these personal liberties. It falls to Parliament to make incursions on fundamental rights if it is of the view that they are needed for the protection of the public in a properly balanced system of criminal justice.
This is how things remained throughout most of the nineteen-nineties under the Lamer Court, with only one isolated exception (see R. v. Godoy, [1999] 1 S.C.R. 311, applying the Waterfield test to recognize a police power to enter private premises to investigate disconnected 911 calls).
The turning point seemed to come in R. v. Mann, [2004] 3 S.C.R. 59 when the Supreme Court used the ancillary powers doctrine to recognize a police power to briefly detain an individual if there are reasonable grounds to suspect that he is involved in recently committed or unfolding criminal activity. That power was combined with a limited protective pat-down search power, available where police have objectively based grounds to be concerned for their safety. Rather ironic was the SCC's failure to acknowledge the extensive body of case law, cases that predated lower court developments that applied the Waterfield test to recognize an investigative detention power, which had clearly and consistently held that at common law there is no power to detain for investigative purposes short of actual arrest (see e.g. R. v. Esposito (1985) 24 C.C.C. (3d) 88 at 94).
With few exceptions, Mann has been widely criticized by commentators (myself included). The chief complaint regarding the decision is that it tends to raise more questions than it answers, and in the process creates much confusion and thereby increases the chances of unjustified and abusive police stops. (See e.g. "The Limits of Judicially Created Police Powers: Investigative Detention After Mann" (2007), 52 Criminal Law Quarterly 299). In this sense, it provides a textbook example of the problems inherent when the courts exceed their institutional capacities and begin creating entirely new and unprecedented police powers, taking on an almost legislative rather than judicial role.
Nevertheless, given the complexity of the issues raised by Mann, the case seemed to signal that any reluctance the SCC had periodically expressed about creating new police powers had fallen to the wayside. In its aftermath, the SCC has used the ancillary powers doctrine to recognize a number of entirely unprecedented police powers. (See R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3; relying on the ancillary powers doctrine, in part, to recognize a police power to ask drivers about their alcohol consumption and request their participation in field sobriety tests without first apprising them of their right to counsel; R. v. Clayton, 2007 SCC 32 .) Although Justices LeBel and Fish had expressed strong skepticism about this sort of ad hoc law-making in their dissenting judgment in Orbanksi & Elias, their vote in favour of recognizing a police power at "common law" to conduct roadblocks for criminal investigative purposes in Clayton seemed to signal a possible change of heart.
And then came the SCC's decisions last Friday in Kang-Brown and A.M. Suddenly, for the first time since Dedman was decided, a debate broke out amongst the justices regarding the legitimacy and efficacy of using the ancillary powers doctrine to create new police powers.
In a concurring judgment in Kang-Brown, Justice LeBel (joined by Justices Fish, Abella & Charron) refused to use the ancillary powers doctrine to recognize a "common law" power on the part of police to use drug sniffing dogs. Although this bloc was prepared to address the minimum constitutional requirements that would need to be satisfied in order for any law authorizing this practice to be considered "reasonable" under s. 8, in a judgment strongly reminiscent of the SCC's pronouncements in the late-eighties and early nineties, this group rejected the idea that it was the SCC's role to fill the gaps in formal police powers. Justice LeBel explained at para. 12:
The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under s. 8 of the Charter.
Justice LeBel explained his reluctance, in this case, by noting that "the courts are ill-equipped to develop an adequate legal framework for the use of police dogs" (para. 15).
It is difficult to quarrel with these observations about the historic importance of the common law in protecting liberty and the need for courts to act with restraint before recognizing new police powers, especially where those powers would have complex and far-reaching consequences.
The only troubling aspect of Justice LeBel's analysis is his failure to convincingly explain why it was appropriate in Mann and Clayton to use the ancillary powers doctrine in this way, whereas it was inappropriate to do so in these cases. The complexity of the various issues raised by investigative detention power (for example, the use of force to effect such detentions, the temporal and geographic limits on them, the difficulty in reconciling this power with the right to counsel on detention found in s. 10(b), and what, if any, corresponding obligations the power might impose on those detained etc.) suggests that, if anything, the dog sniff power is better suited for recognition under the ancillary powers doctrine than was investigative detention.
In his concurring reasons in Kang-Brown, Justice Binnie (joined by Chief Justice McLachlin) took exception to this sudden trepidation on the part of Justices LeBel, Fish, Abella and Charon. For Justice Binnie, use of the ancillary powers doctrine to create new police powers is part of a long tradition of "incremental" expansion of the common law. That doctrine simply provides courts with an analytical tool, like many such tools used by common law courts over time, to develop the law in a particular area (para. 50).
With respect, the difficulty with this view is that it largely ignores the fact that there is nothing at all "incremental" about how new police powers are created under the cost-benefit analysis supplied by the ancillary powers doctrine. The truth is, our courts have used the doctrine to create police powers out of whole cloth, powers that have no linkage to earlier judgments, and sometimes serve to implicitly overrule cases that pronounced on the absence of any such power (i.e. investigative detention providing the best example). This reality seems to contradict Justice Binnie's rather charitable characterization of the ancillary powers doctrine.
In addition, Justice Binnie's defence of the ancillary powers doctrine in Kang-Brown runs up against his rather frank acknowledgment in Clayton, where he agrees "with the critics that Waterfield is an odd godfather for common law police powers" (Clayton, supra, para. 75).
That said, Justice Binnie does seem to have the better argument at points. In his reasons in Kang-Brown he rightly complains that the approach advocated by Justice LeBel would breed even greater uncertainty, as litigants would have no way of knowing what approach the Court might be inclined to employ in a given case, one in which it is receptive to creating new police powers under the Waterfield test or one in which it insists on deferring such law-making responsibilities to Parliament (para. 22).
For Justice Binnie the question was long ago settled. The only way forward, he insists, is for the courts to "proceed incrementally with the Waterfield/Dedman analysis of common law police powers rather than try to re-cross the Rubicon to retrieve the fallen flag of the Dedman dissent" (para. 51).
One is left to wonder, however, whether "crossing the Rubicon" is ever an appropriate analogy when it comes to judicial decision-making. For example, would it have answered the claim made in Brown v. Board of Education 347 U.S. 483 (1958) that the United States Supreme Court had already crossed the Rubicon when it decided in Plessy v. Ferguson 163 U.S. 537 (1896) that "separate but equal" was consistent with the equal protection clause of the Fourteenth Amendment?
Or, looking for a more contemporary and Canadian example, how sound a response would it have been for the SCC in R v. Henry, [2005] 3 S.C.R. 609 to refuse to reconsider its earlier judgments because it had already crossed the Rubicon under s. 13 of the Charter by repeatedly embracing the unworkable incrimination versus impeachment distinction?
My point is, even questions that seem settled aren’t always so. In part, the long-term viability of any common law constitutional system very much depends on the authority and willingness of its final court of appeal to revisit established doctrine when experience has demonstrated that one of its earlier judgments is either being misconstrued or was wrongly decided. This seems especially true in a system such as ours in Canada where the Constitution is considered to be a “living tree”.
Just as important, for reasons going to its institutional integrity, the SCC must proceed with great caution before substantially revamping established precedent or taking the drastic step of overruling an earlier judgment. If the SCC appears too eager to revisit established principles then the authority of its judgments will be undermined and its institutional integrity will needlessly suffer. In other words, the institutional integrity of the SCC would seem to depend both on its willingness to reconsider its past decisions when the reasons for doing so are compelling and the resolve to refrain from doing so when they are not.
As Justice Patrick Healy has correctly pointed out, the ancillary powers doctrine crept into our law like "something of a trojan-horse for the expansion of police powers" (See Patrick Healy, "Investigative Detention in Canada", [2005] Crim. L.R. 98). As a result, the debate that has finally broken out amongst the justices at the Supreme Court of Canada on its continued use and utility is most welcome and long overdue.
In Kang-Brown, Justice Bastarache clearly had no difficulty with the idea of the SCC being responsible for filling gaps in police powers. He was quite willing to grant the police this new power based on little more than generalized suspicion. With his impending retirement, it remains to be determined how his replacement might feel about the place of the ancillary powers doctrine within our constitutional democracy. This new justice may very well hold the decisive vote on the future of this controversial source of new police powers.
One thing is for sure, the Supreme Court of Canada will have plenty of opportunities in future to decide whether this doctrine should continue as a part of our law or whether the cases that facilitated its covert entry into our legal system should be overruled. This is because, in the absence of a comprehensive code of criminal procedure in Canada, which is unlikely as long as the SCC is willing to fill the gaps in police powers through its use of the ancillary powers doctrine, these sorts of cases will increasingly become a routine part of the Supreme Court of Canada's work.
8 Comments
Thanks for that extremely clear and helpful discussion of the implications of these cases. The change at common law in these circumstances from search on reasonable grounds to believe, to reasonable grounds to suspect, certainly seems to be serious.
The only point on which I disagree with your comment is on whether in using the dog the police had commenced searching (but of course I disagree with all the judges too, so you are in good company!)
An interesting case concerning the police power at common law to make an inventory of property left at the scene of an accident, where reference is made to some Canadian authority including R v Mann, is Ngan v R [2007] NZSC 105. Drugs were found in a sunglasses pouch during the making of the inventory. At para 21 the point is made that the issue of whether or not the activity was a search has been overtaken by the requirements of the Bill of Rights Act (meaning the right not to be subjected to unreasonable search). This, the majority view on this point, seems to mean that although technically illegal at common law, such a search will be regarded as reasonable under the Bill of Rights, so police will be in the execution of their duty by acting (in such circumstances) illegally but reasonably.
Judges probably think backwards when they make these policy decisions: should the evidence be excluded or admitted - balance the competing interests of the accused and the community; if the balance favours exclusion (as in the dog sniff cases) the police conduct was unreasonable - either as a search or as ordinary police activity; if the search option is to be the basis for the judgment, the grounds on which it was exercised will have to be held to be insufficient. Here, in each case, there were no reasonable grounds to suspect the presence of drugs (the more usual grounds of reasonable belief would, as noted in the cases, make the use of the dog unnecessary). Alternatively, it could have been held that these were not searches, in which case the police conduct would have had to be held to have been unreasonable on its own merits: not so difficult a conclusion to reach on Justice Binnie's view you mention where such use of police dogs, if widespread, would be not at all in keeping with the idea of a free society.
More than one way to skin a cat, as the dogs might say.
Thanks James for that very helpful guide and commentary about the court's reasoning in R. v. Kang-Brown. As I struggled over the myriad of positions in the judgment, I realized that my high school algebra about how to spot the lowest common denominator was letting me down. But here is what I came with.
I agree with you that a five-justice majority of the court concluded that the police only require reasonable suspicion to conduct a dog sniff search on a suspect. The position of the other four justices that the normal constitutional standard of reasonable and probable grounds should continue to apply was not followed. I wonder, however, whether even within the reasonable suspicion bloc there are different understandings of what that standard entails, and how it strictly it should be applied to the police use of sniff dogs.
In fact, I would argue that there are four tests articulated by the Supreme Court as to what is required in order to authorize a police dog sniff search.
(1) a reasonable and probable grounds standard (Lebel, Abella, Fish and Charron JJ), which on the facts in Kang-Brown led to a s.8 violation finding;
(2) a strict individualized reasonable suspicion standard rigorously and diligently applied (Binnie and McLachlin JJ, at para. 97), which on the facts in Kang-Brown led to a s.8 violation finding;
(3) a lower individualized reasonable suspicion standard (Deshamps and Rothstein JJ), which on the facts in Kang-Brown led a finding that there was no s.8 violation
(4) a generalized reasonable suspicion standard for bus terminals and schools (Bastarche J.), which on the facts in Kang-Brown led to the finding there was no s.8 violation.
The question going forward is what standard now governs the use of police sniff dogs in the absence of Parliament devising legislation.
I would argue that the result of R. v. Kang-Brown is that in the future the police use of a sniffer dog to search a suspect will only be authorized by law if a subsequent rigorously and diligently applied judicial review of their actions (per Binnie J. and McLachlin J.) finds that they had an individualized reasonable suspicion to believe that the suspect is engaged in criminal activity. If that test is met it will satisfy the concerns raised by a majority of the Supreme Court of Canada (Binnie, McLachlin, Deschamps, Rothstein and Bastarche JJ.). A less strict understanding of reasonable suspicion (per Deschamps, Rothstein and Bastarche J.J) or a standard of reasonable and probable grounds (per Lebel, Fish, Abella, and Charron JJ. concurring), would not garner the approval of the majority of the court.
Now, having gone through this exercise, which originally involved the use of algebraic equations and circle graphs, to discern when the police may or may deploy a sniffer dog, I am now unabashedly in the “we need some legislative guidance” camp. It should not be this hard for citizens and police officers alike to understand when sniffer dogs can and cannot be used.
Marcus -
I agree completely.
The disagreement amongst the justices in the "reasonable suspicion" bloc as to whether or not the standard was met in these two cases demonstrates how subjective this "objective" standard can be in application.
As you know, I share your view that all the uncertainty created by the Court aptly demonstrates the need for legislation.
The genius of a legislative solution, not only for this police power but for all others, is that there is no reason why it couldn't be supplemented with guidelines promulgated through regulations, that could be updated much more easily as circumstances require.
This is exactly what has happened in the UK, where the Police and Criminal Evidence Act (PACE) has been augmented by guidelines that are periodically updated.
The guidelines can serve to put meat on the legislative bones. The great thing about going down this road is that it is much more effective means by which to train police officers.
As things stand, I worry about how those responsible for training the police will negotiate the complexities of these two judgments.
Thanks for the comment.
The point I find oddest in Kang-Brown is not that all nine judges agree the dog sniff was a search (I was pleased by that outcome and not at all confident it would be reached), but that they reach that conclusion without discussion. Indeed, it is just taken for granted - Justice Lebel hardly bothers even to note the point, while Justice Binnie says it is common ground that what occurred was a search. Only Justice Deschamps devotes any attention to the issue, and only to say why there was a reasonable expectation of privacy, not to address the reasoning below.
It just can't be right that this was "common ground". The end point of the Alberta Court of Appeal reasoning was that the dog sniff was not a search: that was the sole basis upon which the case was decided. In effect, then, the Supreme Court simply does not address why the decision below is wrong - it simply starts from the assumption that it was wrong, without even bothering to explain why.
There is some discussion in A.M. about why Kang-Brown was wrong, but even there it isn't a lot. As positive a result as this is, it would have been nice to have a little more guidance for the future.
Thank you for the insightful article.
I wonder how much the power, and now possible mandate, of the court to exclude illegally obtained evidence underlies the initial expansion of common law police powers. In England it would seem that the court can uphold the principle of legality without having to sacrifice a conviction. In the United States, and increasingly in Canada, there is an apparent willingness to limit that which will be found to have infringed Constitutional rights because such evidence will be excluded.
Binnie J.'s argument that when police are given an exceptional power and misuse it, it will result in exclusion seems to move Canada further towards the American position. It seems now in order to get evidence admitted in situations where established authority is lacking it is necessary to pronounce broadly that such behaviour is not, and will never be, in violation of the Charter. This seems to be taking a sword to a problem that could best be addressed with the scalpel of 24(2), by finding a violation and choosing to not exclude the evidence
What I find most interesting is the willingness in these cases to expand common law police powers in situations where it was not needed to obtain a conviction. These cases can't apparently be explained with the simple assertion that "Bad facts make bad law".
Dog Gone It: What's a working dog to do?
The primative canine's "sniffer" was survival equipment (and still is) used for both "search and protection"; nature's "early warning device" (prey and threats). Is it "reasonable" for a dog to use his instinct ("early warning device") and training as a member of the police force to attempt to protect the safety of the public (for the greater good)? Our furry friends are registered employees (specialized), who bring their unique olfactory skills to this challenging and dangerous job. I am more concerned about the illegal drug trade and acts of terrorism than I am about "sniffing" dogs.
I agree that what is needed is clear legislation ("meat on the bone") which recognizes the role, responsibility, special talents and legal authority of the K-9 branch of our police force to "search and protect". As well, public education is warranted which outlines the standard procedure which should occur when a dog does a "sniff about" under a Public Safety mandate.
I think judgment should have gone to the dogs, paws down.
I just learned that the US 9th Circuit Court of Appeals recognizes a properly trained and certified detection dog as a "scientific instrument". What was their trick?
The Institute for Biolgocial Detection Systems (BDS) of Auburn University (Auburn, AL) has outlined some interesting data about the dog's sniffing capabilities:
1. olfactory detection sensitivities ranging from 10's of parts per billion to 500 parts per trillion. (Specificity)
2. can discriminate as many as 10 signature odors (target vapor from non-target vapor) extremely well. (Accuracy)
What about the other scientific pillar (reproducibility and/or reliability)?
In addition to drug dogs, arson dogs, bomb dogs, there are also termite and bedbug dogs. A bedbug-detecting dog (certified) can detect bedbugs in an average sized hotel room in less than two minutes.
It is comforting to know that a working dog has some viable career options; bedbugs instead of bad guys.
It has recently been reported that Ontario Liberal Michael Colle, MPP for Eglinton-Lawrence, is organizing a bedbug summit on September 29th at Queen's Park.
I hope that some certified sniffer dogs and their professional handlers will attend this meeting to ask Mr. Colle to work on enacting changes to existing legislation which would recognize the trained working dog's sniffer as a sensitivie, specific, and reliable 'scientific instrument' which is able to detect not only these nasty, biting pests but also illegal drugs, and bombs.
On September 3rd, the press reported that the B.C. Court of Appeal overturned the B.C. Supreme Court conviction in a 2006 marijuana bust. The court ruled that the search (dog walked around the car and sniffed out 34 one pound bags in the trunk) as unlawful and the seized evidence as inadmissable. Would all the evidence have to be returned to the rightful owner in this case? If so, could he be charged with possession as long as no trained working dog sniffed him?
Battling Bedbugs: Beware of Dogs
Is it possible that the representatives at this summit will recognize the long-term viability of using certified bedbug sniffing dogs in the search for and fight against bedbugs?