TOP COURT LIMITS USE OF SNIFFER DOGS

Police Canines Breach Privacy At Schools, Terminals

OTTAWA - The Supreme Court of Canada ruled yesterday that police
cannot use scent-tracking canines for random searches in public
places, including schools, malls and bus terminals.

In its first pronouncement on sniffer dogs, the court sided 6-3 with a
high school student from Sarnia, 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 sniff searches
of a school and bus depot without more concrete reasons to suspect
drugs were present, the Supreme Court said.

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.

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

The Supreme Court invited lawmakers to 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 rulings' biggest impact will be in
schools, where officials in some jurisdictions regularly call in
police and their dogs to conduct searches without 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
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 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," Justice
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.

In 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 for Gurmakh Kang-Brown, who was caught with
17 ounces of cocaine in his luggage after RCMP conducted a random
search with a sniffer dog, Chevy, at the Calgary Greyhound Bus depot
six years ago.