Did police breach student's rights by visiting school with drug sniffer dog?
May 22, 2007 04:30 AM
Legal Affairs Reporter
A case that began when officers showed up at a Sarnia high school with "Chief" the drug-sniffing dog is about to test the limits of police powers in Canada.
The Crown appeal, to be heard today by the Supreme Court of Canada, will help determine whether police can use sniffer dogs to conduct random searches of schools and other public places, such as parks, sports stadiums, beaches and malls.
At issue is whether an unannounced police visit to St. Patrick's high school in November 2002 amounted to an unreasonable search and seizure under the Charter of Rights and Freedoms.
Students spent nearly two hours locked down in their classrooms while police combed the school with their dog, who led them to five bags of marijuana and 10 magic mushrooms in a backpack belonging to a student known as "A.M."
The dog's handler acknowledged he had no grounds for getting a search warrant beforehand and no direct knowledge of drugs inside. But police had a longstanding invitation from the principal to come with their dog, he said.
"What this comes down to is whether using police and police dogs in this way is a proper ... exercise of power," said Jonathan Lisus, a lawyer representing the Canadian Civil Liberties Association, which is intervening in the case.
"Do we want an environment where schools and children are policed?"
To the Ontario Court of Appeal, there was more than a whiff of illegality about the incident.
"This was a warrantless, random search with the entire student body held in detention," the court said in a ruling last year, upholding a trial judge's decision to acquit A.M. of possession for the purpose of trafficking.
Admitting the drugs into evidence would strip A.M. and any other student in a similar situation of their right to be free from unreasonable search and seizure, the court said.
But the Crown disputes there was ever any "search."
The use of a drug-sniffing dog does not amount to a search because there is no privacy interest attached to smells in the public air, lawyers Robert Hubbard and Alison Wheeler say in submissions filed with the Supreme Court on behalf of Ontario's attorney general.
"A dog sniff alone is not a search; it only supplies information that may lead to one," they said.
The same reasoning was adopted by the Alberta Court of Appeal in a companion case, also being heard today by the court, involving Gurmakh Kang Brown, who was found with cocaine and heroin in his luggage after police conducted a random canine search at a Calgary bus terminal in January 2002.
There is no privacy interest attached to emissions emanating from personal belongings, the court said.
If the decision is allowed to stand, the implications are serious, lawyers
Frank Addario and Emma Phillips say in a brief filed on behalf of Ontario's Criminal Lawyers' Association.
Excluding "emissions" from personal belongings from Charter protection could open the door to police intrusions into a wide range of activities, including the monitoring of sounds coming from inside houses and communications from wireless technology, their brief says.
In its brief to the court, the Civil Liberties Association contends the Crown has artificially framed the case around the "metaphysics of the dog sniff" when the real question is "what the police were doing in the school in the first place and how they came to apply their dog's snout to the backpacks of students who had been confined to their classrooms."
The search breached the school board's own policies – which calls for police to be used as a last resort and for all searches to be directed by teachers – and it sent "the wrong message" to students about their Charter rights, the group says,
The Criminal Lawyers' Association says that while the use of bomb-sniffing dogs may be justified in the face of immediate security threats, the use of drug-sniffing dogs should require police to obtain a warrant and establish grounds for the search.
In Sarnia, Chief's handler testified he had taken his dog into schools 140 times.
The phenomenon seems to happen more in smaller centres, Lisus said, adding that the Civil Liberties Association became involved in the case when the mother of a student subjected to a search emailed the organization.