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Canada: Supreme Court Nixes Random Use of Drug Dogs

Submitted by Phillip Smith on (Issue #534)
Drug War Issues
Politics & Advocacy

In a ruling last Friday, the Canadian Supreme Court held that the use of drug-sniffing dogs in a random search of an Ontario school was unconstitutional. The decision should result in an end to random drug dog searches across the country -- except at borders and airports, where customs officials have free rein.

drug dog
The court held that the use of a drug-sniffing dog without particularized suspicion violated Section 8 of the Canadian Charter of Rights and Freedoms, which governs what constitutes reasonable search and seizure.

The case began in 2002, when police visited St. Patrick's High School in Sarnia, in the southwestern part of the province. Police confined students to their classrooms, while taking their backpacks to an empty gym. The dog alerted on one backpack, and one youth who was identified only by his initials was subsequently charged with possession of marijuana and psychedelic mushrooms.

Police admitted they had no search warrant nor even a tip that drugs were present at the school. Instead, they said, they were responding to a long-standing open invitation from school officials.

The trial judge in the case granted a motion to exclude the seized drugs as evidence and acquitted the youth. Prosecutors appealed, but the Ontario Court of Appeal in 2004 upheld the trial judge, saying the sniffing of backpacks by the drug dog amounted to "a warrantless, random search with the entire student body held in detention."

Crown lawyers argued unsuccessfully that being sniffed by a drug dog does not constitute a search. Odors in the public air are not private, and a drug dog detecting contraband by smell should be viewed as similar to police officers detecting an odor in the air, they argued.

That argument would have flown in the United States, where the Supreme Court has okayed the use of drug dogs in random searches, saying a drug dog sniff did not amount to a search. But it didn't fly in the Canadian courts. Now, police will not be able to conduct random searches with drug dogs in public places, such as churches, schools, and shopping malls.

Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.


Anonymous (not verified)

"Odors in the public air are not private, and a drug dog detecting contraband by smell should be viewed as similar to police officers detecting an odor in the air, they argued."
Is this article trying to say that in Canada if officers
smell marijuana coming from a person or residence and
they conduct a search it will not stand up in court? Or does
it just mean an odor not emanating from any particular
person or place?

Fri, 05/02/2008 - 4:46pm Permalink
Anonymous (not verified)

Justice Scalia wrote the opinion in a recent Virginia drug case in which the plaintiff appealed his conviction on the grounds police searched his car illegally after being issued a traffic citation. Virginia law forbids random searches of this type without probable cause (being issued a traffic ticket is not an arrest, so search incidental to arrest doesn't apply). Scalia, and several other Justices, acknowledged the search was in fact illegal, but upheld the 10 year prison conviction for possession of a small amount of cocaine anyway. And we thought the Rhenquist court was bad.

Sat, 05/03/2008 - 12:55pm Permalink

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