Top Court Puts Leash on Random Searches by Sniffer Dogs

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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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