ARE RCMP BAGGAGE SEARCHES LEGAL?

Pending Supreme Court Decision May Help Determine Legality Of Searches
For Drugs, Contraband, Explosives

Serious legal and constitutional questions surround RCMP tactics
involving baggage searches at Canadian bus stations, train stations
and airports.

This practice has gone on in Canada for several years now, as part of
the RCMP's national Jetway program. Jetway targets people travelling
with drugs, contraband, weapons or explosives by plane, bus or train.
It's part of a larger RCMP program that also deals with people
travelling in private vehicles and trucks.

Courts all over the country have been split in their handling of cases
relating to Jetway searches, which often involve police dogs sniffing
for drugs and contraband in luggage. Some judges have ruled the
searches are lawful, while others say they are unconstitutional.

"You see the judiciary split between civil rights guys and the guys
who say 'drug dealers should go to jail,'" says Terry Romaniuk,
program manager for the Centre for Constitutional Studies at the
University of Alberta.

Romaniuk says the results of such court cases also differ because the
judges are making decisions based on the specific details of each
case. No definitive precedent has been set by the courts. "It's an
unsettled area of law," he says from Edmonton.

The Supreme Court of Canada heard a case last May on this very issue.
A police dog sniffed drugs in a backpack at a Calgary bus terminal and
the man was charged and convicted of possession of cocaine and heroin
for the purpose of trafficking.

The convicted man, Gurmakh Kang Brown, appealed the decision and
Alberta's Court of Appeal upheld his conviction. But one appeal judge
dissented, arguing the search was illegal and without reasonable grounds.

The case went to the Supreme Court and the decision was
reserved.

"We're hoping the decision will clarify issues," says James Matheson,
a Moncton defence lawyer. "This is a live issue right across the
country. It's very controversial."

Romaniuk says the high court's decision could come tomorrow or a year
from now. He says it may or may not help determine what is a legal
search in these circumstances and what is not. It all depends on if
the Supreme Court focuses its decision on the specific details of the
Calgary case or reaches broader conclusions about searches in public
places such as bus and train stations.

Details of the Jetway program, such as its origins, why it was
created, is it effective and how long it's been in use are not
available from the Mounties. The national RCMP in Ottawa refuse to
answer any questions on the subject because they don't provide details
on "investigative programs."

J Division RCMP in Fredericton, which oversees the Jetway unit in
Moncton, also refuses to answer any questions on the program.

The Jetway program was created in the 1990s on a national level and
has been active in Moncton for several years. It involves plainclothes
officers attending the bus station, for example, often with a police
dog. Sometimes they're acting on tips about people travelling with
drugs or contraband, so they're looking out for a specific person.

If there's no specific target, they watch people get off the bus and
look for individuals who fit a certain profile or act suspicious. When
the officers question a person, they're trained to watch for certain
body movements, posture, facial movements and actions that indicate
someone is lying. They are also trained to recognize answers that
indicate someone is telling the truth or lying.

If suspicions arise from the questioning and a dog is brought over to
smell a bag and indicates there are drugs inside, police will seize
the luggage and search it.

Matheson did a case with his partner, veteran lawyer Wendell Maxwell,
where a woman was charged after being caught with large amounts of
marijuana in her baggage at the Moncton bus station on Main Street. He
says when the bus stopped in Moncton, a plainclothes officer actually
climbed inside the luggage area, sniffing bags for anything suspicious.

He could smell marijuana in a bag, so it was taken off the bus. A dog
confirmed there were illegal drugs inside.

Matheson says one of the Mounties was wearing an SMT sweater and asked
the woman if the bags were hers and then asked her a series of
questions about whether or not she was transporting drugs.

In this case, a Moncton judge ruled the search was legal and she was
convicted.

"Where the battle is fought in court is whether or not they have
enough grounds to search the bags," says the defence lawyer.

Canada's Charter of Rights guarantees every citizen has the right to
be free from unreasonable searches and seizures, but in these types of
cases, the courts are still deciding. Some judges have ruled there's
nothing wrong with police dogs sniffing baggage in a public place, and
that while the contents of the bag are private, there's nothing
private about the smell coming out of a bag full of marijuana.

"I've heard experts testify the dog doesn't sniff the bag itself,"
says Matheson. "They actually sniff the air around it. That's what
they say."

Courts often consider dogs sniffing bags in the same light as using
infrared technology to detect heat emanating from structures. Police
use this technology to detect marijuana grow-ops in structures and
courts have ruled property owners have no right to privacy over heat
coming out of their homes.

Defence lawyer Alison Menard, who used to work as a federal prosecutor
on drug cases, says this debate is not about whether or not police
should catch and prosecute people who transport drugs, contraband or
explosives. Most Canadians would agree these people should be caught
and dealt with by the courts.

"But this is not a question of whether or not there's something in the
bag," she says. "It's whether or not the officer has the right to
search that bag.

"It's important because we always have to view this in the light of
how do we want to live our lives? Do we want to live in a world where
police can do whatever they want? Probably not. That's what the
Charter is for."

While Canadian courts try to figure out whether or not these searches
violate people's rights, Romaniuk says the RCMP is content to "stumble
along" using these methods. Even if the judge throws out a criminal
case because of an illegal search, police have still seized a quantity
of illegal drugs.

"They're happy to get the drugs off the streets and I don't think
anyone's complaining about that," says Romaniuk.

As the courts decide what's legal and what isn't, police can adjust
their methods.

Romaniuk predicts one of the conclusions of the Supreme Court decision
could be that police officers with reasonable grounds for searching a
bag will need to obtain a search warrant before proceeding. That would
involve them staying with the suspect luggage while the warrant is
sought, which he estimates could actually be done by phone in 30-45
minutes.