SNIFFER DOGS V. PRIVACY RIGHTS

Case Tests Legality Of Random Searches

It took no time at all for Chief - a police dog with a finely honed
nose for narcotics - to detect marijuana amongst a pile of backpacks
in the gymnasium of a Sarnia, Ont., high school.

The owner of the offending backpack - a youth known as A.M. - was
charged with marijuana trafficking, launching a five-year legal
journey that will end tomorrow in the Supreme Court of Canada.

In a fascinating, constitutional clash between civil libertarian
values and police techniques in an age of terrorism, the court must
decide whether permitting sniffer dogs to conduct random searches
violates the right to privacy.

Lawyers opposing the technique will argue that setting a dog on a
random search for drugs is highly intrusive and chillingly reminiscent
of police state tactics popularized by southern U.S. slave owners and
Nazi storm troopers.

In a legal brief to the court, the Criminal Lawyers Association warns
that, "it would follow that there are no public places where the
police cannot attend with investigative dogs. This would include the
workplace, places of worship, schools, shopping centres, athletic
facilities, concert halls and so forth."

In 2004, the Ontario Court of Appeal agreed with this view, resulting
in A.M.'s acquittal.

However, in a companion case the court will hear tomorrow, the Alberta
Court of Appeal reached the opposite result. It upheld a sniffer-dog
search that turned up cocaine in a travel bag owned by Gurmakh
Kang-Brown at a Calgary bus station.

Legal debate at the appeals is likely to focus on a 2004 Supreme Court
ruling in the case of Regina v. Tessling. The ruling endorsed the use
of technology police had used to ferret out a marijuana grow operation
by measuring excess heat emanating from the walls of a home.

Crown lawyers argue that sniffer dogs are simply a logical extension
of the powers that were upheld in the Tessling case. "With respect to
detecting odours or smells, dogs do what people do - they just do it
better," said a federal Department of Justice brief.

"When a police officer in a public place detects an odour in the air,
there is no violation of S.8 of the Charter. That the same odour is
detected by a training police dog does not change the result."

However, their legal opponents insist that dog-sniffing is much more
intrusive - and therefore, less constitutionally acceptable - than the
heat-detection search in Tessling was.

"Clearly, not every use of a technological aid turns an observation
into a search," reasoned CLA lawyers Frank Addario and Emma Phillips.
"If that were so, police officers would be conducting a search
whenever they wore glasses."

By the same token, Mr. Addario and Ms. Phillips argued that a person
who blows a stream of marijuana smoke into the face of a police
officer has a lower expectation of privacy than someone who
triple-wraps a bag of marijuana and puts it in the locked trunk of a
car.

They said that since almost every mode of communication between human
beings involves an emanation of some sort - whether it is wireless
technology, sound waves or remnants of DNA - the courts must erect a
privacy barrier beyond which police investigators cannot stray.

"If the police are able to use whatever technology is in current use,
there is no limit to the state's ability to detect and examine the
private activities of everyday life," the CLA brief warned.

However, it stopped short of denouncing searches intended to prevent
terrorism or serious physical harm. "Where specific, identifiable
security concerns present an immediate threat to the protection of
life, bomb-sniffing dogs may be warranted," the brief said.