SEARCH GOES TO SUPREME COURT

Incident At St. Pat's In 2002 With Drug-Sniffing Dog Will Test Limits
Of Police Power

A case that began when officers showed up at a Sarnia high school with
a drug-sniffing dog is about to test the limits of police powers in
Canada.

The Crown appeal, to be heard Tuesday by the Supreme Court of Canada,
will help determine whether police can use sniffer dogs to conduct
random searches of schools and other public places, such as parks,
sports stadiums, beaches and malls.

At issue is whether an unannounced police visit to St. Patrick's high
school in November 2002 amounted to an unreasonable search and seizure
under the Charter of Rights.

Students spent nearly two hours locked down in their classrooms while
police combed the school with their dog, who led them to five bags of
marijuana and 10 magic mushrooms in a backpack belonging to a student
known as "A.M."

The dog's handler acknowledged he had no grounds for getting a search
warrant beforehand and no direct knowledge of drugs inside. But police
had a long-standing invitation from the principal to come with their
dog, he said.

"What this comes down to is whether using police and police dogs in
this way is a proper ... exercise of power," said Jonathan Lisus, a
lawyer representing the Canadian Civil Liberties Association, which is
intervening in the case.

"Do we want an environment where schools and children are policed?" To
the Ontario Court of Appeal, there was more than a whiff of illegality
about the incident.

"This was a warrantless, random search with the entire student body
held in detention," the court said in a ruling last year, upholding a
trial judge's decision to acquit A.M. of possession for the purpose of
trafficking.

Admitting the drugs into evidence would strip A.M. and any other
student in a similar situation of their right to be free from
unreasonable search and seizure, the court said.

But the Crown disputes there was ever any "search."

The use of a drug-sniffing dog does not amount to a search because
there is no privacy interest attached to smells in the public air,
lawyers Robert Hubbard and Alison Wheeler said in submissions filed
with the Supreme Court on behalf of Ontario's attorney general.

"A dog sniff alone is not a search; it only supplies information that
may lead to one," they said.

The same reasoning was adopted by the Alberta Court of Appeal in a
companion case, also to be heard Tuesday by the court, involving
Gurmakh Kang Brown, who was found with cocaine and heroin in his
luggage after police conducted a random canine search at a Calgary bus
terminal in January 2002.

If the decision is allowed to stand, the implications are serious,
lawyers Frank Addario and Emma Phillips said in a brief filed on
behalf of Ontario's Criminal Lawyers' Association.

Excluding "emissions" from personal belongings from Charter protection
could open the door to police intrusions into a wide range of
activities, including the monitoring of sounds coming from inside
houses and communications from wireless technology, their brief says.

In its brief to the court, the Civil Liberties Association contends
the real question is "what the police were doing in the school in the
first place and how they came to apply their dog's snout to the
backpacks of students who had been confined to their
classrooms."

The search breached the school board's own policies which calls for
police to be used as a last resort and for all searches to be directed
by teachers and it sent "the wrong message" to students about their
Charter rights, the group said.