SCC MUZZLES RANDOM POLICE DOG-SNIFF SEARCHES

OTTAWA -- Two Supreme Court of Canada decisions saying police dog
sniffing constitutes a search under Charter s. 8 are landmark rulings
that separate Canadian and U.S. jurisprudence and affirm
constitutional rights of high school students and travellers, say
civil liberties lawyers.

The first case involved a bus traveller convicted of cocaine
possession, and all nine justices found a police-dog-sniff of his gym
bag amounted to be a search under Charter s. 8.

The court found the search unconstitutional because the dog was led
to sniff the bag when police had no reasonable and probable grounds
to believe the man was carrying drugs.

In the other case, a Crown appeal of a unanimous Ontario Court of
Appeal ruling, seven of the justices agreed that a dog-sniff of
backpacks in a Sarnia high school also constituted a search and
violated the Charter.

The majority agreed in both cases police nonetheless possess a common
law power allowing canine searches, as long as the dog handlers and
other officers comply with the Charter.

"Because they [dogs] are so effective, and they are intimidating and
they are imposing, their use has to be subject to constitutional
scrutiny," says Jonathan Lisus, counsel for the Canadian Civil
Liberties Association as an intervener in both cases.

"The police should be allowed to use dogs in a legitimate enforcement
of law and legitimate investigation and legitimate furtherance of
public health and safety, but random mass speculative investigations
are not a legitimate exercise of police power and they are not a
legitimate use of dogs," adds Lisus, a McCarthy Tetrault LLP partner
in Toronto.

In the first case, R. v. Kang-Brown, RCMP staked out the Calgary bus
terminal as part of a program involving ongoing surveillance of civil
society.

The program, called Jetway, "monitors the travelling public in an
effort to identify and arrest drug couriers and other individuals
participating in criminal activities," wrote Justice Ian Binnie in
his partially concurring reasons.

An officer at the bus depot struck up a conversation with Gurmakh
Kang-Brown, who had just arrived on a bus from Vancouver, got his
permission to look into his bag, and then called over an officer
handling a dog named Chevy after Kang-Brown jerked the bag away when
the Mountie tried to grab it.

The dog sat down as he had been trained to do when he sniffed
narcotics, and the officer arrested Kang-Brown even before he opened
the bag containing 17 ounces of cocaine.

The only unusual signals Kang-Brown had given were "elongated" stares
and other quirks the Mounties had been trained in the Jetway program
to recognize as suspicious.

In the decision, Justice Louis LeBel suggested there was a
"reasonable suspicion" of criminal activity, but said the existing
threshold of "reasonable and probable grounds" for the exercise of
police powers should apply and any extension of police powers through
the use of sniffer dogs should be left to Parliament.

Binnie and the other justices noted privacy expectations are lower at
airports and border crossings.

The constitutional right to privacy, even at a bus terminal, was
central to Kang-Brown. Privacy was also crucial in the other, R. v.
A.M.

Ontario appealed the case after the Court of Appeal unanimously held
a youth court judge was right to acquit a student who was charged
with drug possession for trafficking after the sniffing-dog search in
Sarnia.

"This was a warrantless, random search which was not authorized by
either the criminal law or the Education Act," wrote Binnie.

Police, at the principal's earlier general invitation, randomly
selected a day to have their drug dog sniff backpacks at the school,
while school authorities detained all the students in their classrooms.

"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," wrote Binnie.

"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 randomly be inspected by the police without
'reasonable suspicion' of illegality."

Lisus notes the Sarnia dog team had already performed more than 140
drug searches in high schools and the tactic has become widespread
throughout Ontario.

He says schools should teach students respect for constitutional
rights and civil liberties and "you don't teach them that by
arbitrarily confining them, separating their backpacks, and searching
them with dogs."

Binnie noted that a divided U.S. Supreme Court has declined to grant
any constitutional protection against unwarranted searches by
narcotic sniffer dogs and "the result of this U.S. jurisprudence is
that use of police sniffer dogs for crime investigation sits entirely
outside the Fourth Amendment."

AM's lawyer, Walter Fox, says police and prosecutors were seeking the
wider use of sniffer dogs available to U.S. police.

Frank Addario, representing the Ontario Criminal Lawyers' Association
as an intervener, agreed the court has reigned in the police.

"If the two public places identified in these appeals, bus terminals
and schools, are a proper hunting ground for enthusiastic police
investigators, where else could they go?" he asks
rhetorically.

"Could they go to grocery stores? Could you be sniffed in a grocery
store? Could you be sniffed in a shopping mall? Could you be sniffed
at your place of worship? Could you be sniffed on a sidewalk in front
of your house? Those were on the table."