HIGH COURT RULING LAUDED

Decision Collars Use Of Drug-Sniffing Dogs In Random
Searches

The head of the local defence lawyers association is applauding a
ruling yesterday by the Supreme Court of Canada that will limit police
use of sniffer dogs for warrantless searches in schools and other
random places.

Canada's top court called two random searches - one in a high school
and one at a Calgary bus terminal - "unlawful," declaring them
breaches of privacy.

The Supreme Court of Canada has ruled 6-3 that neither search was
based on a reasonable prior suspicion of a criminal act.

Matt Hodgson, a local lawyer who is president of the Kingston Criminal
Defence Lawyers Association said cases whose evidence includes
material gathered by mass searches of belongings or lockers by police
dogs are a regular part of local lawyers' caseloads.

"This is a welcome decision," Hodgson said after scanning the Supreme
Court judgment yesterday afternoon.

"What they are saying is that a person might be a teenager, but they
are still entitled to the same protection of the Charter as any other
Canadian citizen."

Hodgson said members of the local bar would be reading the decision
closely to see what other types of searches the court found to be
unconstitutional, calling it a decision with potentially far-reaching
consequences.

"It happens on a fairly regular basis," he said of such
searches.

The first case considered by the court stems from the sudden arrival
in 2002 of police and a canine team at St. Patrick's high school in
Sarnia.

Students were confined to classrooms for about two hours while a
drug-sniffing dog eventually led officers an empty gymnasium and a
pile of backpacks, one of which contained bags of marijuana and some
magic mushrooms.

"The subject matter of the sniff is not public air space," the
justices wrote in the decision in the high-school case. "It is the
concealed contents of the backpack.

"As with briefcases, purses and suitcases, backpacks are the
repository of much that is personal. ... Teenagers may have little
expectation of privacy from the searching eyes and fingers of their
parents, but they expect the contents of their backpacks not to be
open to the random and speculative scrutiny of the police. This
expectation is a reasonable one that society should support."

A student identified only as A.M. was charged with possession of
marijuana for the purpose of trafficking in the school case. Police
had no search warrant or prior tip that there were drugs in the
school. The officers had instead visited on the basis of a
long-standing invitation from school officials.

At trial, the drugs were excluded as evidence and the charges
dropped.

The Ontario Court of Appeal unanimously upheld the acquittal,
describing the case as "a warrantless, random search with the entire
student body held in detention."

Said the Supreme Court: "The dog-sniff search was unreasonably undertaken
because there was no proper justification."

"While the sniffer-dog search may have been seen by the police as an
efficient use of their resources, and by the principal of the school
as an efficient way to advance a zero-tolerance policy, these
objectives were achieved at the expense of the privacy interest [and
constitutional rights] of every student in the school."

The companion case involved a man found with cocaine and heroin after
his bags were flagged by a drug-sniffing dog at a Calgary bus terminal
in January 2002. The Alberta Court of Appeal majority upheld that
Gurmakh Kang Brown was neither unlawfully detained nor illegally searched.

The top court disagreed.

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

It called any court-based solutions that would reduce the standard of
scrutiny into state intrusion into privacy "an [inappropriate]
exercise of judicial power" in the circumstances.

"When rights and interests as fundamental as personal privacy and
autonomy are at stake, the constitutional role of the court suggests
that the creation of a new and more intrusive power of search and
seizure should be left to Parliament to set up and justify under a
proper statutory framework."