SUPREME COURT RULING RESTRICTS RANDOM SNIFFER DOG SEARCHES

Judges Find Random Searches In Some Public Places Violate Privacy Rights

OTTAWA - There will likely be far fewer scent-sniffing dogs routinely
sticking their noses in public places following a Supreme Court of
Canada ruling Friday that tightened the leash on police powers to use
the canines for random sweeps. In its first pronouncement on sniffer
dogs, the court sided 6-3 with a high-school student from Sarnia,
Ont., and a Vancouver man who was caught with cocaine in his luggage
at a Calgary bus terminal.

"We're no longer going to be able to show up and randomly search,"
said Tom Stamatakis, vice-president of the Canadian Police
Association.

In both cases, police violated the charter right against unreasonable
search and seizure by allowing their dogs to embark on general sniff
searches of a school and bus depot without more concrete reasons to
suspect drugs were present, the Supreme Court said.

The two rulings are expected to end routine searches in public places
like schools and bus and train stations. The decisions, however, are
silent on airports, where police dogs routinely sniff the luggage of
passengers entering the country.

Past Supreme Court rulings have established that privacy rights are
lower when weighed against the need to secure the borders, prompting
speculation that sniffer dogs will continue to be used at airports in
the absence of a specific legal challenge.

"It's fair to say the decisions wouldn't apply to airports," predicted
Brent Olthuis, a lawyer for the B.C. Civil Liberties Association,
noting that neither case involved matters of border security.

Quasi-private shopping malls, where private security guards are
sometimes called in with sniffer dogs, are another "grey area,"
Stamatakis said.

The Supreme Court invited lawmakers to step in an spell out specific
police powers with sniffer dogs.

"Any perceived gap in the present state of the law on police
investigative powers arising from the use of the sniffer dogs is a
matter better left for Parliament," Justice Louis LeBel wrote.

In the meantime, perhaps the biggest impact of the rulings will be in
the nation's schools, where officials in some jurisdictions often call
in police and their dogs to conduct searches without any information
on a specific threat.

"What this means for us is we won't have the ability to bring the dogs
in at random," said Paul Wubben, director of education for the St.
Clair Catholic District School Board in Sarnia.

"It has to be more than the old notion that it's a high school, so
there are going to be drugs there."

Schools in the St. Clair district routinely invited police and their
sniffer dogs to root out drugs until a teen identified as A.M.
challenged the practice following his arrest on drug charges at St.
Patrick's Catholic high school in 2002.

During the search, students were confined in their classrooms for
almost two hours while police searched the school, including backpacks
piled in a corner of the gymnasium. After a signal from a sniffer dog
named Chief, police zeroed in on one backpack, in which they found 10
bags of marijuana, 10 magic mushrooms and assorted drug
paraphernalia.

The Supreme Court majority said that the sniff search violated A.M.'s
rights, saying that students are entitled to the same expectation of
privacy in their backpacks as adults are in their purses or briefcases.

"Students are entitled to privacy in a school environment," LeBel
wrote. "Entering a schoolyard does not amount to crossing the border
of a foreign state."

The majority rejected the Crown's argument that no search took place
because the dog was only sniffing the public air and tipped off police
to a trouble spot, giving them reasonable suspicion to believe that
drugs were present.

In a strong dissent, Justice Marie Deschamps asserted that the privacy
interests of the students were "extremely low," given that drugs had
infiltrated the school. "The introduction of drugs into a school is
tantamount to the introduction of a toxic substance into an otherwise
safe environment," she wrote.

"Since drugs are readily concealed and since their odours are often
imperceptible to humans, school officials are essentially powerless to
confront the possession and trafficking of drugs in these institutions
of learning without the assistance of the police using well-trained
sniffer dogs."

The court also ruled 6-3 in favour of Gurmakh Kang-Brown, who was
caught with 17 ounces cocaine in his luggage after RCMP conducted a
random search with a sniffer dog at the Calgary Greyhound bus depot
six years ago.

"Drug trafficking is a serious matter, but so are the constitutional
rights of the travelling public," said the Supreme Court, overturning
an Alberta Court of Appeal ruling.