The other right to smell

Earlier, I outlined the current Australian law of sniffer dogs. There’s some protection against being touched by sniffer dogs, but the bottom line is that the common law doesn’t protect anyone from the passive senses: sight, hearing, smell. So, everyone – you, me, police, dogs – has the right to look at, listen to or smell anyone (or anything) that can be seen, heard or smelled. The flipside of this right to be snoopy is that we don’t have a right to privacy. In particular, the rights to look, listen and smell come at the cost of losing our right to be visible, audible and… smelly. 

Of course, in Victoria, we now have some protection for this other right to smell, in Charter s. 13(a):

A person has the right-

(a) not to have his or her privacy… unlawfully or arbitrarily interfered with…

This right goes beyond the common law right against trespass. Subject to the confines of the operational provisions of the Charter, all Victorians have the very right to privacy that the common law has long denied us.  More precisely, we have two more limited rights: against unlawful interferences with privacy and against arbitrary interferences with privacy. Or, to be still more precise, it is now unlawful for public authorities (including Victoria Police) to do either of these intrusions (or get their dogs to them) unless another law makes it reasonable for them to do so. Any such law must itself be a reasonable limit on the right to privacy or it risks being the subject of a judicial declaration. This new right to be smelly of course comes at the expense of the police’s (and their dogs’) old right to smell (i.e. to sniff.)

So, do Canada’s two recent Supreme Court judgments shed light on when the police can set their dogs to sniff us or our belongings? At first glance, Canada seems to be a poor comparative jurisdiction on this question, because its Charter has no privacy right. Rather, s.8 of their Charter has the following right, borrowed from the Americans:

Everyone has the right to be secure against unreasonable search or seizure.

But it turns out this right is exactly the same as our Charter s.13(a)! The Canadian Supreme Court has long held that a ‘search’ occurs whenever the state does something that intrudes on someone’s reasonable expectation of privacy (ah ha!) And, such a search will be ‘unreasonable’ when it isn’t authorised by law (ah ha!) and isn’t founded on non-arbitrary (ah ha!) grounds. Hooray! So, what do the Canadians say about sniffer dogs?

There were two cases decided last week. One involved the cops being invited to a school, where they set their sniffer dog (Chief) on a pile of backpacks left in a school gym; Chief discovered magic mushrooms and cannabis in one kid’s bag. The other involved the cops conducting surveillance at a bus station, looking for suspicious characters and then offering them the choice of either a consensual search or a dog sniff. One guy exhibited funny ‘eye contact’ and reacted to this choice by getting antsy. Chevy the dog was brought in and (tellingly) sat down. The guy’s bag proved to be full of cocaine. Good Chevy! Or was he?

Alas, the SCC was totally poliarised in both cases, each producing a 4-2-2-1 split. Oh god.

Here’s how the split went down:

The first question is whether either of the dogs ‘searched’ anyone. Remember that this comes down to whether the dogs intruded into anyone’s reasonable expectation of privacy. There are two reasons to think it doesn’t: (a) the fart argument. Smell is basically a public thing, whether anyone wants it to be or not. Its in the air, which is as public as it gets. (b) the dope argument. Smell is quite a nuanced thing. Some smells can be uniquely associated with criminal conduct. There’s no privacy in criminal conduct. This argument has done quite well in the States.

The Canadians rejected both arguments and indeed turned them both on their head. (a) Sniffer dogs, they pointed out, are trained to not only smell the air but to follow it to its source. The air may not be private, but a bag is. The fact of a fart is never a secret. But who farted still is. (b) Also, smell is so revealing that sniffing intrudes on our privacy. The Canadians had earlier split from the US Supreme Court in holding that thermal imaging isn’t a search, because heat isn’t necessarily criminal. Now they split with the States again, holding that sniffing for drugs is a search, because drugs smells are inevitably the sign of something criminal. Privacy, they had previously held, must be assessed in a ‘neutral’ manner, without prejudgment about some sorts of privacy (e.g. privacy to commit certain crimes) not counting. All our smelly behaviour is private, whether that behaviour is nice or not.

In the bus station case, this ruling was unanimous. Bad Chevy. But in the school yard case, the split was 7-2. The two dissenting judges held that it’s not reasonable to expect privacy in school bags left unattended on school premises. Schools can legitimately look into anything that’s going on in school premises. The majority seven judges disagreed, holding that kids can still expect privacy at school, even for how their bags smell, although some rated these expectation higher than others. I guess it all depends on what your schooldays were like. Fairly bad Chief.

The second question is when doing such a search is reasonable. Canadian law only protects against unreasonable searches, just as Victorian law only protects against arbitrary interferences. (We’ll get to unlawfulness in a moment.) So, when is dog sniffing arbitrary? This turns on what the cop who’s in charge of the dog suspects about the person being sniffed. On this issue, the Court had a three-way split:

  • Four judges thought that what is required is the sort of standard that backs up a warrant. The Canadians call this reasonable and probable grounds. I think this is basically the same as the Americans’ ‘probable cause’, which is kinda like the Australian reasonable belief standard, but with some sifting to disallow dodgy sources of belief, like crappy informers.
  • Four other judges (including the two who thought that there was no search anyway in the school case) felt that all that is required is reasonable suspicion. This lower standard was seen as a nod to the non-intrusive nature of dog sniffing, the accuracy of the dogs and the scourge of drugs.
  • The ninth judge thought that even reasonable suspicion was too high a standard. Generalised suspicion will do. This is the kind of suspicion that applies in airports and border crossings, where courts typically allow random-style searches for border security purposes. Justice Bastarache thought that bus stations and schools deserve this type of standard given the problem of drugs in both spots. 
What’s interesting about this is that a majority of judges think that at least reasonable suspicion is required. So, they wouldn’t be all that impressed with the provision passed in NSW after Darby:
148 (1) A police officer may, without a warrant, use a dog to carry out general drug detection in relation to the following persons:
(a) persons at, or seeking to enter or leave, any part of premises being used for the consumption of liquor that is sold at the premises (other than any part of premises being used primarily as a restaurant or other dining place),
(b) persons at, or seeking to enter or leave, a public place at which a sporting event, concert or other artistic performance, dance party, parade or other entertainment is being held,
(c) persons on, or seeking to enter or leave, a public passenger vehicle that is travelling on a route prescribed by the regulations, or a station, platform or stopping place on any such route.
If this statute was passed in Victoria, and the majority Canadian view was considered determinative, then the only thing that would save the section from a declaration of inconsistent interpretation would be Charter s. 7(2).

The third question is whether the search was supported by a law. This translates in Victorian Charter-speak to whether the interference with privacy wasn’t ‘unlawful’.   It appeared to be accepted that there was no statute supporting the searches in this case. So, instead the question was whether the common law does (or should be developed to) support sniffer dogging. In both cases, the Court split 5-4.  (The 5 in the school case included the 2 who thought there wasn’t a search anyway.) The dissenters thought that filling legal gaps ought to be parliament’s problem. The five in the majority noted that sniffer dogs had been in common use in Canada for decades and that established Charter precedents supported the robust development of the common law to fix the problem. This peculiarly Canadian issue doesn’t seem to have much relevance to Victoria. The High Court has declared that it is the only body in Australia that can develop the common law and that it won’t do so to fit in with local statutory issues.

Of course, Victoria does have a provision that (probably) authorises dog sniffing. It’s in the Drugs, Poisons and Controlled Substances Act:

82 Where a member of the police force has reasonable grounds for suspecting that-

(c) in the possession of a person in a public place;

there is a drug of dependence in respect of which an offence has been committed or is reasonably suspected to have been committed…, the member may with such assistance as he thinks necessary-

(f) search the vehicle, animal, person, boat vessel or aircraft…

I’m thinking that the ‘assistance’ can include dogs. But the problem is that it requires reasonable grounds to suspect that someone has possession of drugs before the sniffing begins. According to four of the Canadian judges, this is a problem because it sets the standard to low. But the remaining five would be happy enough. So, what is reasonable suspicion anyway?

A fourth question that some of the Canadian judges addressed is whether reasonable grounds for suspicion existed in either case. This question is a no-brainer in the school case, as the backpack was just one bag in a pile and reasonable suspicion requires individualised suspicion. But it’s far trickier in the bus case, because the dog wasn’t sniffing everyone at the bus station, just dudes who the police picked out and who didn’t consent to a hand search. Kang-Brown was initially picked out of the mass of bus travellers because he gave the (plain clothes) cop (leaning on a fence) a stare. He then got the Chevy treatment because he got all antsy when the cop popped the question. Are you suspicious?

The only four judges who thought that ‘reasonable suspicion’ was the relevant standard split two-two on whether it was satisfied. The two judges who held that there wasn’t enough to be reasonably suspicious looked at the two stages individually. They weren’t impressed with the ‘stare’, because they had discovered other cases where cops had regarded avoiding eye-contact as suspicious behaviour for bus passengers:

If “eye contact” or “no eye contact” are both of concern to the RCMP, this seems an ambiguous basis for particularized suspicion.  Everyone getting off the bus will either be making eye contact or not making eye contact.

Malcolm Gladwell has a book coming out about this sort of dodgy profiling. He writes:

The law professor David Cole once tallied up some of the traits that Drug Enforcement Administration agents have used over the years in making generalizations about suspected smugglers. Here is a sample:

Arrived late at night; arrived early in the morning; arrived in afternoon; one of the first to deplane; one of the last to deplane; deplaned in the middle; purchased ticket at the airport; made reservation on short notice; bought coach ticket; bought first-class ticket; used one-way ticket; used round-trip ticket; paid for ticket with cash; paid for ticket with small denomination currency; paid for ticket with large denomination currency; made local telephone calls after deplaning; made long distance telephone call after deplaning; pretended to make telephone call; traveled from New York to Los Angeles; traveled to Houston; carried no luggage; carried brand-new luggage; carried a small bag; carried a medium-sized bag; carried two bulky garment bags; carried two heavy suitcases; carried four pieces of luggage; overly protective of luggage; disassociated self from luggage; traveled alone; traveled with a companion; acted too nervous; acted too calm; made eye contact with officer; avoided making eye contact with officer; wore expensive clothing and jewelry; dressed casually; went to restroom after deplaning; walked rapidly through airport; walked slowly through airport; walked aimlessly through airport; left airport by taxi; left airport by limousine; left airport by private car; left airport by hotel courtesy van.

Some of these reasons for suspicion are plainly absurd, suggesting that there’s no particular rationale to the generalizations used by D.E.A. agents in stopping suspected drug smugglers. A way of making sense of the list, though, is to think of it as a catalogue of unstable traits. Smugglers may once have tended to buy one-way tickets in cash and carry two bulky suitcases. But they don’t have to. They can easily switch to round-trip tickets bought with a credit card, or a single carry-on bag, without losing their capacity to smuggle. There’s a second kind of instability here as well. Maybe the reason some of them switched from one-way tickets and two bulky suitcases was that law enforcement got wise to those habits, so the smugglers did the equivalent of what the jihadis seemed to have done in London, when they switched to East Africans because the scrutiny of young Arab and Pakistani men grew too intense. It doesn’t work to generalize about a relationship between a category and a trait when that relationship isn’t stable-or when the act of generalizing may itself change the basis of the generalization.

The two judges also weren’t impressed with antsiness as a ground for reasonable suspicion. The two other judges, however, felt that this was all too compartmentalised. The cop’s suspicion can bundle together both stages and other more generalised traits and signs too. (The cop denied that the defendant’s race was a factor, but believed that the bus route was a known drug courier route.)

The judge who thought that generalised suspicion was sufficient felt that this level of suspicion was established in the bus case but in the school case. There, the cops were just acting on a ‘hunch’.

And there’s one last question that some of the judges had to deal with. What happens if the search was unconstitutional? In the bus case, the six judges who thought that it was – four, because neither law nor probable grounds existed; two, because there wasn’t reasonable suspicion – all held that the evidence had to be excluded as a result. So, bus dude goes free, 6-3. Sorry Chevy. In the school case, there were seven judges who thought that the search was unconstitutional – four, because neither law nor probable grounds existed; two, because there wasn’t reasonable suspicion; and one, because there wasn’t generalised suspicion. Of those, six of the seven would have excluded the evidence. Sorry Chief. The seventh (Basatarache, the generalised suspicion guy) – and half of the lower courts judges – would have admitted the evidence because being sniffed is kinda trivial and drugs are bad, m’kay? But the remaining judges felt that questions of trivia are already bundled into the ‘search’ analysis and raisin them again at the exclusion stage is double counting. Also, although they acknowledged that the individual cops weren’t deliberately breaking the law, they were unimpressed with police management and their willingness to do blanket searches.

This issue almost certainly wouldn’t play out this way in Victoria for two reasons. First, at least where reasonable suspicion existed, the Victorian cops would be protected by the Victorian statute. All that defendants would be entitled to get for a breach of their rights is declaration of inconsistent interpretation, which I guess they could hang up on the wall of their prison cell. Second, even if the cops aren’t within a statute, so the conduct mandate has been breached, the only remedy for defendants is the existing law’s remedy: the lame-arse public policy discretion, which almost inevitably gets resolved Bastarache’s way. Either way, the Victorian dogs win.

So, the usual Charter outcome. Lots and lots and lots of tricky new analysis. The same old result.

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