Friday, April 25, 2008

You have a sniffer dog? Prove you need to use it

The Supreme Court of Canada made the correct ruling today when, in two cases, it decided that sniffer dogs cannot perform drug searches without probable cause. In both cases, the vote was 6-3.

In the first case, students were confined to their classrooms at a Catholic high school in Sarnia, Ontario -- while a trained police dog sniffed out the students' backpacks in the school gymnasium. The visit was not based on a search warrant but rather a standing invitation by school officials that the police could come any time. Several students were found to be in possession of marijuana and psilocybin a.k.a "magic mushrooms."

In the second, a bus passenger getting off a bus in Calgary from Vancouver. The passenger "looked nervous" and a police officer obtained a sniffer dog to inspect the bag which contained cocaine and heroin. The police justified their actions by saying the bus depot is a major staging point for drug trafficking and they could smell something in the air.

In both cases the court ruled that there was a lack of probable cause and that the actions of the cops constituted illegal search and seizure. People have a reasonable expectation of privacy when they're going to and from school or work, riding on public transit or on an elevator and so forth. As far as the "scent in the air" goes, the court mentioned a case in the States where nearly 2800 students at a high school were searched by a dog and found one -- who happened to be playing with her dog earlier in the day, a bitch in heat.

The situation here was far different than using sniffer dogs to check for guns or explosives where there is a legitimate public security threat. Such is the case at airports where there is a real concern for public safety; a similar concern does exist with intercity trains. Or at border crossings where customs agents have certain powers domestic police do not.

Both decisions may cause some problems for the police in the short term, but both decisions were correct. People do have a right to privacy, regardless of their age or occupation; and regardless of whether they choose to travel or not. But there's a much bigger issue beyond search and seizure, and that is the right to be presumed innocent. In the school case, the school board presumed all the students were guilty unless they could prove their innocence. In the bus case, the mere fact that a guy looked disoriented when getting off a bus was all the proof the cops needed. Seriously -- how many of you have ridden a train or bus from one city to another and need a few moments to get your bearings when you get off the vehicle?

In short, as Justice William Binnie wrote: "A hunch is not enough to warrant a search of citizens or their belongings by police dogs." Schools and transit authorities have every right to impose a zero tolerance policy on drugs, alcohol, weapons and sexually explicit materials. They do not however have the right to make everyone look guilty for the sake of catching the few truly guilty ones.

Nothwithstanding what the right-wing bloggers and media may have us believe, the success rate for Charter appeals by defendants in Canada is actually very low, about 6%. That's because the SCC recognizes police do need to do their job, but within reason. It has set a fairly reasonable bar for what constitutes reasonable police conduct. They have done so again today in ruling for the defendants and for that they are to be applauded.

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