Top court puts leash on random searches by sniffer dogs

KIRK MAKIN
Globe and Mail
Apr. 30, 2008

OTTAWA -- The Supreme Court of Canada jettisoned evidence of narcotics detected by sniffer dogs at an Alberta bus terminal and an Ontario high school because the individuals involved had a reasonable expectation of privacy.

The majority of the court in a pair of 6-3 decisions yesterday said police must have a reasonable suspicion an individual has a narcotic before they can conduct a search with sniffer dogs.

The rulings, which featured an unusually factionalized court and starkly differing constitutional visions, provides guidelines to police for sniffer-dog searches in public places such as malls and stadiums.

"Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public," Mr. Justice Ian Binnie wrote for one faction of the majority in the Alberta case.

He said police did not have a reasonable suspicion when they searched Gurmakh Kang-Brown's bag based on a hunch that he had been acting in a suspicious manner.

In the school case, the majority found that there is an expectation of privacy in a school environment - albeit an expectation that is less than in some public places.

"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," Judge Binnie said.

"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 be randomly inspected by the police without reasonable suspicion of illegality. Because of their role in the lives of students, backpacks objectively command a measure of privacy."

"This is a good day for civil liberties," said Frank Addario, president of the Criminal Lawyers' Association. "It's refreshing to see the court back in its old role of limiting police intrusions and protecting the right to be let alone."

Today's ruling applies specifically to police powers in a criminal context. It leaves open the question of what school authorities can do on their own to conduct searches in the interests of school safety.

Mr. Kang-Brown was arrested on Jan. 25, 2002, after a police officer decided he looked furtive and suspicious, and called for a sniffer-dog search. The dog quickly detected the presence of drugs in his backpack.

In its second ruling yesterday, the court concluded that a 17-year-old student at a Sarnia school, identified in the case as A.M., was improperly arrested and charged with possession of drugs for the purpose of trafficking after marijuana was found in his backpack.

Judge Binnie said the relatively modest intrusion of a drug-sniffing dog requires police to have suspicions of possible criminal conduct that are "something more than a mere suspicion, and something less than a belief based upon reasonable and probable grounds."

In the Kang-Brown case, he said, the police action was "based on speculation."

However, two of three dissenting judges - Madam Justice Marie Deschamps and Mr. Justice Marshall Rothstein - said: "The accused's objectively reasonable expectation of privacy in this case was not high. The search in the present place was conducted in a public place. Moreover, the search technique employed by the police was only minimally intrusive."

A faction comprising Mr. Justice Louis LeBel, Mr. Justice Morris Fish, Madam Justice Rosalie Abella and Madam Justice Louise Charron said: "Students are entitled to privacy in a school environment." They said Parliament should set up a general legal framework for the use of sniffer dogs in schools.

Judge Binnie and Chief Justice Beverley McLachlin noted that the dog in the school was not sniffing "public air space," but rather was sniffing the concealed contents of a backpack.

"Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support."













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