RULING PUTS LEASH ON DRUG DOGS

Police Need Grounds For Search: Court

Police must have more than a mere suspicion when they sic their
sniffer dogs in public places on people they believe are drug
couriers, the country's highest court has ruled.

The Supreme Court of Canada, in a 6-3 decision released on Friday, has
muzzled the canines in overturning the conviction of a Calgary man,
Gurmakh Kang-Brown, for possession of nearly half a kilogram of
cocaine for the purpose of trafficking and possession of heroin.

Police now must have reasonable and probable grounds before they
conduct a search.

And, the court added, a dog sniffing a person or his or her luggage is
an illegal search without those grounds.

"The difficult issue raised by this appeal is not the existence of a
police power to investigate crime using sniffer dogs or any other
lawful devices or technology in places where the police are lawfully
entitled to be," said the top court, "but to the extent to which the
use of such devices or techniques or animals is permitted."

Calgary criminal lawyers Alias Sanders and Jim Lutz had argued last
year before the Supreme Court that police didn't have the legal
authority to detain Kang-Brown, who disembarked a bus arriving from
Vancouver at the city Greyhound depot on Jan. 25, 2002.

A plain-clothed Mountie involved in the special program, Operation
Jetway, observed the accused, who gave him a lengthy stare before
going into the lobby, then looked back at the officer.

The officer approached the accused, identified himself and asked if he
was carrying drugs. Kang-Brown said no.

Another officer was signalled and he approached with his female
Labrador retriever, Chevy, which sat down, indicating the presence of
drugs in the bag. Kang-Brown was then charged.

The top court noted the dog involved in the case had a success rate of
90 to 92 per cent in detecting drugs in such circumstances.

Kang-Brown was convicted at trial and the decision was upheld, in a
split decision, at the Alberta Court of Appeal.

"This clearly defines the boundaries in which police are allowed to
use drug dogs to determine if people are carrying drugs," Lutz said.

"And the Jetway program, which has been running all these years,
certainly with respect to the bus depot, is over."

Sanders agreed.

"They need at least reasonable suspicion to conduct a search, not
suspicion at large," she said.

"If, under the Constitution, they have reasonable suspicion, not just
speculation-based suspicion, then they are allowed to use the dog."

Neither the RCMP nor the federal Department of Justice would
specifically comment on the case until they've had an opportunity to
digest the lengthy ruling.

"We're going to study the decision carefully," said Chris Girouard, a
Justice spokesman.

The decision also dealt with a similar case out of Ontario dealing
with the use of dogs to detect drugs in schools.

Cpl. Wayne Oakes of the RCMP in Edmonton said Mounties have been
complying for five or six years with what the Supreme Court ruled,
related to the standard of grounds to use dogs to search for drugs.

"The federal Justice law department, from whom we get our
instructions, will review the case and advise us.

"We will respect the spirit of the decision. If there are any
requirements for policy change, they will be done as quickly as possible."

Oakes said there are currently 140 police dog handlers across
Canada.

While this decision centres on bus depots, which have a higher
expectation of privacy than airports, for example, Calgary defence
lawyer Alain Hepner believes it spills over to any public venue.

"It will have an impact in other areas, such as airports or even the
public street," Hepner said. "The charter protects everybody, the
guilty and the innocent, and it's got to be done right."

The Supreme Court recognizes in its decision that "drug trafficking is
a serious matter," but added: "So are the constitutional rights of the
travelling public."

The Calgary Police Service said it will want to take a look at the
decision in its entirety to understand what it entails, but it is
unlikely it will affect them, said spokesman Kevin Brookwell. Although
the service has dogs used to detect drugs -- five in all -- they are
only used in cases where officers have already obtained search warrants.

"We do not use them in public settings or for random searches,"
Brookwell added. Calgary police also have 17 general duty dogs, three
bomb detection dogs and two used in cadaver searches.