DECISION UPHELD ON APPEAL

The Saskatchewan Court of Appeal has ruled against the Crown in a case
involving use of a drug-sniffer dog -- an issue that has been a bone
of contention in Canadian courts in recent years.

Late last week, the court handed down its decision in relation to an
Ottawa man, Kang-Po Tom Yeh, who had been arrested and charged with
possession of drugs for the purpose of trafficking and possession of
crime proceeds following a traffic stop by RCMP near Caronport in April 2007.

He went to trial but was acquitted by Queen's Bench Justice Ellen
Gunn, who found police had no grounds to call in a drug-sniffer dog to
perform a vehicle search that turned up about 5,000 ecstasy pills, 8.5
kilograms of marijuana and $10,000 in cash.

In a rare move, seven members of the province's highest court sat in
on the appeal argued by Crown prosecutor Doug Curliss, who asked the
court to order a new trial on the basis that Gunn had erred in
throwing out the evidence.

Defence lawyer Aaron Fox disagreed, stating his client's Charter
rights regarding search, seizure and detention had been violated.
While the Crown had argued police believed Yeh was impaired by
marijuana, Fox said there was no odour of marijuana detected by
police, nor anything in plain view that would have otherwise alerted
police to the presence of drugs.

While the judges split somewhat on reasons, they all came to the same
conclusion -- that Gunn had not erred in law by throwing the case out.

In one of the separate, yet essentially concurring decisions upholding
the Queen's Bench decision, Chief Justice John Klebuc and Justices
Gary Lane, Robert Richards, Gene Anne Smith and Ysanne Wilkinson said
Yeh's rights were violated by the sniffer dog search.

They agreed "the trial judge made no error in excluding the evidence
obtained as a result of that breach."

Justices Georgina Jackson and Darla Hunter concurred with that finding
in their decision but gave different reasons.

Richards -- writing on behalf of all but Jackson and Hunter -- found
the arresting officer didn't have adequate training or background in
drug use detection and used "patchy logic" to decide Yeh had used
drugs, meaning he didn't meet the reasonable suspicion test referred
to by the Crown.

Meanwhile, Jackson -- writing also on Hunter's behalf -- said "there
is a good reason to limit dog searches when a person is detained."

Jackson said police powers shouldn't be expanded to allow the use of
dogs in searches in instances where police officers themselves
couldn't by law perform a search.

"Police conduct must be considered objectively from the perspective of
the ordinary travelling public, as well as from the perspective of
crime prevention," Jackson wrote.

"If the police can use a sniffer dog when a person is detained in the
circumstances such as the case at bar, the traffic stop runs the risk
of becoming a pretext for a search for drugs."