DATE: 20050922

DOCKET: M32974 (C42056)

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN Respondent (Appellant)

-and- ANDREW M. Respondent (Respondent in Appeal)

BEFORE:

MCMURTRY, C.J.O.

COUNSEL:

JONATHAN LISUS and CHRISTOPHER WAYLAND

for the Moving Party/Intervenor, The Canadian Civil Liberties Association

LISA MATTHEWS

for the Respondent/Appellant in Appeal, Her Majesty the Queen

WALTER FOX

for the Respondent/Respondent in Appeal, Andrew M.

HEARD:

September 22, 2005

E N D O R S E M E N T

[1] This is a motion brought by the Canadian Civil Liberties Association (CCLA) seeking to intervene in this appeal scheduled for hearing on November 1, 2005. In addition to filing a factum and participating in the oral argument, the CCLA requests permission to seek to adduce fresh evidence before the panel. The proposed fresh evidence is set out in appendices to the affidavit of Alan Borovoy, filed in the motion record. Counsel for the young person (the respondent in this appeal) consents to the intervention. Counsel for the Crown opposes both the intervention and the request to be permitted to submit fresh evidence.

[2] This is a Crown appeal from a decision on a charter motion excluding evidence at trial. The facts alleged by the Crown are that the principal of a high school invited the police to conduct a search of public areas of the school using a drug-detecting dog. The students were in class at the time and were not allowed to leave their class during the time of the search, which took place in the hallways and gymnasium. In the gym, the dog detected something suspicious in a knapsack. A subsequent search resulted in the seizure illicit drugs. At trial the judge ruled that the search was unreasonable and excluded the evidence. As noted the crown appeals the decision.

[3] There is little doubt that the CCLA has both the experience and expertise to be able to assist the court in the consideration of whether such searches are constitutionally permissible. I am prepared to permit the CCLA to intervene, file a factum and participate in the oral argument.

[4] In most cases, an intervenor who participates as a friend of the court is required, as a term of intervention, to take the record as it exists and not seek to augment the record. This condition is imposed to ensure economy and fairness to the parties and to prevent an intervenor from changing the focus, scope or nature of the proceedings by changing the record.

[5] The intervenor seeks to introduce a large number of newspaper articles commenting on dog-assisted searches in this particular school and in other schools across Ontario both before and after the incident under consideration. I have difficulty with the probative value of these articles, other than to report that other searches have taken place. The details and other commentary regarding the searches contained in those articles would serve only to cloud the issue.

[6] Similarly the intervenor seeks to submit a letter prepared on behalf of the Ontario Principal's Council and sent to the Commissioner of the OPP. In the letter, the author gives opinions as to the law in relation to schoolhouse searches in general, this case in particular and makes factual assertions in relation to the conduct of the police. While, in other circumstances, the views of the Ontario Principal's Council may be of interest, its legal opinion as to the validity of the searches generally and this search in particular is irrelevant. Further, statements of fact contained therein may well change the evidentiary record before the court to unfairly widen the scope or change the focus of the appeal.

[7] The intervenor did not press its case with respect to the other exhibits to the affidavit of Mr. Borovoy. I am not satisfied that the intervenor has made a case to justify granting permission for it to augment the record as requested.

[8] As a result, the Canadian Civil Liberties Association may intervene in this appeal as a friend of the court on the following conditions:

a) It shall take the record as it exists and not seek to augment the record;

b) It may file a factum not to exceed 15 pages on or before Friday, October 7, 2005;

c) It may have up to 20 minutes for oral argument at the hearing of the appeal;

d) It shall not seek costs nor will costs be awarded against it;

e) The appellant may file a reply factum not to exceed five pages on or before Monday October 24, 2005.

There shall be no costs of this motion.