OTTAWA - Two random police dog searches that led to drug charges failed to pass the legal sniff test, says the country's top court in a split judgment that reaffirms privacy rights.
The Supreme Court of Canada ruled Friday that police who use dogs to find drugs in high schools or public places must be able to justify prior suspicion of a crime in order to use evidence seized.
"This is a good day for civil liberties," says Frank Addario, president of the Criminal Lawyers' Association.
"The judgment is a reasonable compromise between law enforcement aspirations to search indiscriminately, and the right to privacy. Now they need reasonable suspicion - not a trumped-up profile or a pretext search based on speculation."
Randomly using canine teams amounts to unreasonable search and a breach of privacy rights, said the high court. The judgment does not affect airports where a specific set of federal laws applies.
The majority ruling stresses that "reasonable suspicion" of a probable drug crime must exist prior to such dog-sniff searches in schools, malls, sports stadiums and other public spaces.
In two 6-3 decisions, the high court set aside the conviction of a man charged with possession of cocaine for the purpose of trafficking - he was also found with heroin - and upheld the acquittal of a student who was 17 when charged with possession of pot for trafficking purposes.
Friday's rulings conclude that both a spot high-school search in Sarnia, Ont. and one at a Calgary bus terminal were "unreasonably undertaken because there was no proper justification."
The first case stems from the arrival in 2002 of police and a canine team at St. Patrick's high school in Sarnia.
Students were confined to classrooms for about two hours while a drug-sniffing dog led officers to a pile of backpacks in an empty gym - one containing bags of marijuana and some magic mushrooms.
"The subject matter of the sniff is not public air space," said the ruling in the high-school case by Justice Louis LeBel. "It is the concealed contents of the backpack.
"As with briefcases, purses and suitcases, backpacks are the repository of much that is personal. . . . While teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, I think it obvious that 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."
A student identified only as A.M. was charged with possession of pot for the purpose of trafficking in the school case, while Gurmakh Kang-Brown was charged in the second case.
Police had no search warrant or prior tip that there were drugs in the school. The officers had instead visited on the basis of a long-standing invitation from school officials.
At trial, the drugs were excluded as evidence and the charges dropped.
The Ontario Court of Appeal unanimously upheld the acquittal, describing the incident as "a warrantless, random search with the entire student body held in detention."
Paul Wubben, director of education for the St. Clair Catholic District School Board near Sarnia, says he accepts the high court's support of that ruling and its effort to balance privacy rights with student safety.
"But I'd be wrong to suggest that we haven't had a significant tool taken out of our capacity to limit drugs coming into schools. It's the randomness of the searches that is its strength.
"We always made it known to the students at the beginning of the year that we do bring in dogs on occasion."
Some high schools, although not in Wubben's district, have been known to contract private canine teams to enforce zero-tolerance drug policies by suspending or expelling students.
The director of Montreal-area Ecole polyvalente Saint-Jerome last week defended her decision to call in a sniffer dog from a private security firm. Students were warned in advance but three were still found in possession of small amounts of pot, hash and ecstasy, said France Trudeau.
Rick Johnson, vice-president of the Canadian School Boards Association, says random canine searches are rare in high schools although principals retain the right to open lockers or call police for specific incidents.
Wubben says his board has not invited police for random dog-sniff searches since the legal challenge began. Still, he won't advise principals to back off when drug concerns arise.
"And if we're criticized for being overly zealous, then we'll deal with that. If it happens to go to court in a similar situation, that's okay too."
In the other case, Kang-Brown had just arrived from Vancouver at a Calgary bus terminal when a suspicious Mountie waved over another officer with a drug-sniffing black Lab named Chevy. The dog immediately detected drugs and sat down to alert her master.
The Alberta Court of Appeal majority said that Kang-Brown was neither unlawfully detained nor illegally searched. The top court disagreed and set aside his conviction.
But the judges were themselves badly divided on key legal points. While all nine agreed that random dog sniffing amounts to a search that triggers constitutional protections, five justices said the courts can appropriately set limits on how police use such powers.
The four other judges, however, said related legal restrictions are best set by Parliament. They said any court-based lowering of the standard of scrutiny into state intrusion into privacy would be an inappropriate "exercise of judicial power."
James Stribopoulos, who specializes in criminal law at Osgoode Hall Law School, says the extraordinarily split court is proof enough that such matters are better handled by MPs.
"The court is very divided on the mechanics of all this."
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