SETTING LIMITS TO SEARCHES

It's only a matter of time before the Supreme Court of Canada is
forced to decide, once and for all, whether the one who smelt it, dealt it.

In meantime, this week the supreme legal authority of this country
applied its keen Solomonic wit to defining the sniff or, more
specifically, the question of whether a smell can be "private." The
likely answer, it seems, will be a boon to bean burrito fans
everywhere: Yes, it can, provided it emanated from a place where there
is a reasonable expectation of privacy.

(In effect the SCOC has answered the first question. If you supplied
it, deny it. You're constitutionally protected -- unless the victim(s)
have probable cause ...)

Esoteric stuff, but the issue was deadly serious -- and it possibly
affects every student in Canada. What the court was deciding was
whether a drug-sniffing dog, in the course of sweeping a school,
merely samples the air or does it conduct a "search."

The Ontario Court of Appeal said yes to the latter. It ruled the dog's
nose was a direct part of its police handler's search and a physical
extension of the officer. That meant in November 2002, when the pair
were going through St. Patrick's high school in Sarnia, Ont., they
violated a student's Charter right protecting him from unreasonable
search and seizure when they found magic mushrooms and pot in his backpack.

The student had a reasonable expectation of privacy, didn't consent to
the intrusion and thus was protected against the warrantless search.

Now that doesn't mean sniffer dogs can't be used in airports, train
stations or, for that matter, schools. What made the search bogus was
the manner in which it was conducted. According to the Edmonton
Journal, the search wasn't specifically requested (the principal had
issued a "standing invitation" to police to drop by whenever a dog was
available); neither police nor the school had any tangible reason to
believe drugs were present that day (other than there were teenagers
around); no school official directly participated in the search; and
every student was told to remain in their classroom for two hours
while the sweep went on.

It was, due to some unfortunate mistakes by well-meaning but
overzealous officials, the definition of an arbitrary, warrantless
search. An immediate reaction is the court was soft on a punk 'shroom
head but the police can't be allowed to search a person's belongings
or home, kid or not, based on just hunches, intuition, or good
guesses, even if they find three severed heads, an eight ball and an
AK-47. It's a fundamental Charter protection designed to insure good
intentions don't become the tread of a jackboot.

The Supreme Court will also decide if searches in schools -- dogs or
no, warrants or not, reasonable cause or not -- are kosher, provided
they're done appropriately with the involvement of school officials
(as in loco parentis). Students can expect their backpack won't be
rifled by police without their consent but if they're on school
property, they have to obey school rules, which can allow random searches.

Which brings up a more interesting question, one the top court wasn't
obliged answer but one the Canadian Civil Liberties Association has
asked: Should drug-sniffing dogs be allowed in schools in the first
place?

It's the classic civil-rights how-far-is-too-far debate. Even Martin
Luther King would be on shaky ground arguing against schools being
able to search students whenever they want, within reason. It's a key
tool in keeping kids safe.

And, in Tuesday's Citizen, a Prince George drug and alcohol counsellor
warned that most heinous of substances -- hideously powerful, cheap
crystal meth -- is finding its way to city schoolyards. An Associated
Press report earlier this year detailed how drug dealers are mixing
meth with strawberry drink mix to make it more palatable to young
mouths. Based on that information, put dogs in every classroom,
hallway, and washroom in District 57 -- and if that's Nazi talk, bring
on the copies of Mein Kampf.

But where does it end? Why not put cameras in schools, to catch what
the dogs' noses miss? Or maybe try the U.S. approach, where there are
murmurings of mandatory drug testing for all students?

It's likely the Supreme Court will allow searches in schools, with
dogs and limits, based on reasonable cause. And hopefully that's
enough of a leash.

Associate news editor Rodney Venis