OTTAWA - Two Supreme Court of Canada decisions saying police dog sniffing constitutes a search under Charter s. 8 are landmark rulings that separate Canadian and U.S. jurisprudence and affirm constitutional rights of high school students and travellers, say civil liberties lawyers.
The first case involved a bus traveller convicted of cocaine possession, and all nine justices found a police-dog-sniff of his gym bag amounted to be a search under Charter s. 8.
The court found the search unconstitutional because the dog was led to sniff the bag when police had no reasonable and probable grounds to believe the man was carrying drugs.
In the other case, a Crown appeal of a unanimous Ontario Court of Appeal ruling, seven of the justices agreed that a dog-sniff of backpacks in a Sarnia high school also constituted a search and violated the Charter.
The majority agreed in both cases police nonetheless possess a common law power allowing canine searches, as long as the dog handlers and other officers comply with the Charter.
“Because they [dogs] are so effective, and they are intimidating and they are imposing, their use has to be subject to constitutional scrutiny,” says Jonathan Lisus, counsel for the Canadian Civil Liberties Association as an intervener in both cases.
“The police should be allowed to use dogs in a legitimate enforcement of law and legitimate investigation and legitimate furtherance of public health and safety, but random mass speculative investigations are not a legitimate exercise of police power and they are not a legitimate use of dogs,” adds Lisus, a McCarthy Tétrault LLP partner in Toronto.
In the first case, R. v. Kang-Brown, RCMP staked out the Calgary bus terminal as part of a program involving ongoing surveillance of civil society.
The program, called Jetway, “monitors the travelling public in an effort to identify and arrest drug couriers and other individuals participating in criminal activities,” wrote Justice Ian Binnie in his partially concurring reasons.
An officer at the bus depot struck up a conversation with Gurmakh Kang-Brown, who had just arrived on a bus from Vancouver, got his permission to look into his bag, and then called over an officer handling a dog named Chevy after Kang-Brown jerked the bag away when the Mountie tried to grab it.
The dog sat down as he had been trained to do when he sniffed narcotics, and the officer arrested Kang-Brown even before he opened the bag containing 17 ounces of cocaine.
The only unusual signals Kang-Brown had given were “elongated” stares and other quirks the Mounties had been trained in the Jetway program to recognize as suspicious.
In the decision, Justice Louis LeBel suggested there was a “reasonable suspicion” of criminal activity, but said the existing threshold of “reasonable and probable grounds” for the exercise of police powers should apply and any extension of police powers through the use of sniffer dogs should be left to Parliament.
Binnie and the other justices noted privacy expectations are lower at airports and border crossings.
The constitutional right to privacy, even at a bus terminal, was central to Kang-Brown. Privacy was also crucial in the other, R. v. A.M.
Ontario appealed the case after the Court of Appeal unanimously held a youth court judge was right to acquit a student who was charged with drug possession for trafficking after the sniffing-dog search in Sarnia.
“This was a warrantless, random search which was not authorized by either the criminal law or the Education Act,” wrote Binnie.
Police, at the principal’s earlier general invitation, randomly selected a day to have their drug dog sniff backpacks at the school, while school authorities detained all the students in their classrooms.
“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,” wrote Binnie.
“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 randomly be inspected by the police without ‘reasonable suspicion’ of illegality.”
Lisus notes the Sarnia dog team had already performed more than 140 drug searches in high schools and the tactic has become widespread throughout Ontario.
He says schools should teach students respect for constitutional rights and civil liberties and “you don’t teach them that by arbitrarily confining them, separating their backpacks, and searching them with dogs.”
Binnie noted that a divided U.S. Supreme Court has declined to grant any constitutional protection against unwarranted searches by narcotic sniffer dogs and “the result of this U.S. jurisprudence is that use of police sniffer dogs for crime investigation sits entirely outside the Fourth Amendment.”
AM’s lawyer, Walter Fox, says police and prosecutors were seeking the wider use of sniffer dogs available to U.S. police.
Frank Addario, representing the Ontario Criminal Lawyers’ Association as an intervener, agreed the court has reigned in the police.
“If the two public places identified in these appeals, bus terminals and schools, are a proper hunting ground for enthusiastic police investigators, where else could they go?” he asks rhetorically.
“Could they go to grocery stores? Could you be sniffed in a grocery store? Could you be sniffed in a shopping mall? Could you be sniffed at your place of worship? Could you be sniffed on a sidewalk in front of your house? Those were on the table.”