AN IFFY SNIFFY COURT RULING

What's the world coming to when sniffer dogs don't pass the sniff test?

That's what the Conservative government in Ottawa is asking after the
Supreme Court of Canada, in a pair of recent rulings, curbed the use
of police sniffer dogs for random drug searches at an Ontario high
school and an Alberta bus terminal. The new rules are expected to
apply across a wider spectrum of quasi-public spaces, like shopping
malls and sports stadiums. Airports and border crossings, however, are
exempt under federal law.

The Tories, who have never made a secret of their distaste for
"judge-made law," aren't ruling out "new initiatives" to respond to
the court rulings.

But it's important first to reflect on what the top court said. Both
the high school student in Sarnia, Ont., and the traveller in Alberta
were busted after sniffer dogs smelled drugs either among their
possessions or on their person.

But the evidence uncovered through these searches was ultimately ruled
inadmissible, in a pair of 6-3 split decisions, because the culprits
were entitled to a reasonable expectation of privacy. In other words,
sniffer dogs can't be deployed willy-nilly on the unsuspecting public;
police must first have probable cause that an individual is in
possession of a narcotic.

"As with briefcases, purses and suitcases, backpacks are the
repository of much that is personal - particularly for people who lead
itinerant lifestyles during the day, as in the case of students and
travellers," Mr. Justice Ian Binnie said, writing for the majority, in
the high school case.

"No doubt, ordinary businessmen and businesswomen riding along on
public transit or going up and down on elevators in office towers
would be outraged at any suggestion that the contents of their
briefcases could be randomly inspected by the police without
'reasonable suspicion' of illegality. Because of their role in the
lives of students, backpacks objectively command a measure of
privacy," he argued.

Mr. Justice Binnie's point is well taken, although a tad alarmist. The
police actions in question were not fishing expeditions per se, but
were conducted in a more narrowly defined context.

When they got their man in Calgary, RCMP were conducting a special
operation aimed at rooting out drug couriers at bus depots. How much
different is that from RCMP pointing a radar gun at cars in a known
speeding zone?

As for the Sarnia school, when police showed up, it was on the basis
of a longstanding agreement with the school, which had enacted a
zero-tolerance policy for drugs and alcohol. The drugs were found
after a sniffer dog was turned loose on a pile of backpacks in the
gym.

In our view, schools aren't wide-open public places; they are
controlled environments where expectations of personal freedom are
lower than they would be on the street. Furthermore, students are
required by law to congregate at school, so the state has an
additional responsibility to protect them. If the student body is a
known target for drug dealers, schools should be afforded reasonable
means to defend it.

An occasional visit by a sniffer dog seems minimally intrusive. The
government should not roll over on this one.