REINING IN THE DOGS

Sniffer dogs, once rarely used in Canada, have become common tools of
law enforcement, especially to detect drugs. But like all government
instruments, they are open to abuse without proper guidelines.

In a pair of rulings released yesterday, the Supreme Court of Canada
has given police some badly needed guidance about the use of sniffer
dogs, and in so doing has helped limit their potential abuse in the
future.

In two 6-3 decisions, the Supreme Court ruled that drugs detected by
sniffer dogs during random searches in a Calgary bus terminal and at
an Ontario high school are inadmissible as evidence because the
constitutional rights of the accused were violated in each case.

First, the school: In 2002, police with sniffer dogs showed up at St.
Patrick's High School in Sarnia, on an invitation from the school
itself. There was no specific tip or intelligence about the
possibility of drugs in the school that day, although the school had a
zero-tolerance drug policy. Students were confined to their classrooms
while police and dogs searched the school. They found drugs in a
knapsack, and the teenage owner was charged with possession of
marijuana for the purpose of trafficking.

The second case also took place in 2002, and involved Gurmakh
Kang-Brown, whose bags were searched at the Calgary bus terminal. The
dogs came up lucky. Gurmakh Kang-Brown was charged with possession of
cocaine for the purposes of trafficking and possession of heroin.

The Supreme Court ruled that both cases constituted unreasonable
search and seizure because police didn't have grounds to suspect they
would find drugs, and so both cases have now been thrown out.

It is a good ruling. For one thing, the ruling appears unlikely --
thankfully -- to hinder legitimate security and counterterrorist
activities. Sniffer dogs are probably most commonly seen at border
crossings and airports, where they are used to find explosives, among
other things. Because these are locations where people expect that
they and their bags might be searched, the ruling shouldn't apply.

Instead, the Supreme Court dealt with the expanding use of sniffer
dogs in communities, and that was an area in need of
clarification.

While some may welcome police with sniffer dogs hanging out in school
hallways, the justices rightly felt that random searches of knapsacks
were unreasonably intrusive. "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," the Court ruled.

Likewise with random searches at bus depots. No doubt police dogs
could turn up drugs on any given day by giving all arriving and
departing passengers a once over. But would the benefits of doing so
justify the scale of such an intrusion? We doubt it. Moreover, the
American experience suggests that random use of sniffer dogs tends to
disproportionately target the poor and racial minorities.

The Supreme Court has told police officials they must have reasonable
suspicion they will find something before setting their dogs on
Canadians who otherwise are minding their own business. That strikes a
fair balance between privacy rights and law enforcement.