The Supreme Court of Canada ruled Friday that police cannot use random dog searches to find drugs at schools or in public places, with the exception of airports.

The Court ruled 6-3 that the random searches were a violation of section 8 of the Charter of Rights and Freedoms, which protects Canadians from unlawful search and seizure of their property.

The ruling stemmed from two cases involving evidence seized as a result of sniffer dogs.

In both cases, police did not have reasonable grounds to conduct the searches, the Court said.

"This is one of those cases where the court kind of steered a middle ground between requiring a judge to approve the use of dogs or no regulation at all," Frank Addario, president of the Criminal Lawyers' Association, told CTV Newsnet.

"They said... if the police have a reasonable suspicion that there's criminal activity taking place, they're permitted to use these dogs.

"Otherwise, it's too intrusive and too exceptional to authorize on a random basis."

Background of the cases

In one of the cases, police visited St. Patrick's High School in Sarnia, Ont., in November 2002 at the invitation of school officials.

While police and their dogs searched the school, students were confined to their classrooms. During the sweep, a dog led police to a backpack in the gym that contained marijuana and magic mushrooms.

The student who owned the backpack was charged with possession of marijuana and psilocybin for the purpose of trafficking. He challenged the admissibility of the evidence on the grounds that his Charter rights were violated.

The drugs were excluded and the charges dismissed. A Court of Appeal ruling upheld that decision.

In the Supreme Court ruling regarding the Sarnia case, Justice Louis LeBel wrote:

"The subject matter of the sniff is not public air space. It is the concealed contents of the backpack. 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.

Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police...By use of the dog, the policeman could 'see' through the concealing fabric of the backpack."

"The dog-sniff search was unreasonably undertaken because there was no proper justification. The youth court judge found that the police lacked any grounds for reasonable suspicion and the Crown has shown no error in the youth court judge's finding of fact."

In the second case, police and their sniffer dogs were patrolling a Greyhound bus station in Calgary in 2002 as part of an initiative to patrol travel ports looking for drugs, bombs and other contraband.

Police approached a man and, while conversing with him, a sniffer dog indicated the presence of drugs. That search turned up cocaine and heroin in the man's bag. He was charged with possession of cocaine for the purposes of trafficking, as well as possession of heroin.

In this case, the courts found that Gurmakh Kang-Brown could not have had an expectation of privacy because of the odours of the drugs emanating from his bag and into the air.

However, the Supreme Court ruled that the sniffer-dog search of Kang-Brown's bag violated his Charter rights.

"The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called," Justice Ian Binnie wrote.

Implications of ruling

The implications of the findings are expected to be far-reaching.

It is now unlikely that schools can invite police in to conduct random searches of lockers and backpacks, unless there is a strong suspicion that students are carrying drugs.

Paul Wubben, director of education for the St. Clair Catholic District School Board, told The Canadian Press prior to the ruling that allowing sniffer dogs into schools can be an important tool for ensuring student safety.

"Parents send their children to school with the underlying assumption that school is a safe place," Wubben said.

"And having a drug-free environment certainly lends itself to being a safe place."

Addario, who was involved with Friday's ruling, said the decision will also stop police from walking into a shopping mall with a drug dog and approaching people without reasonable cause.

"(The SCC told police) you're free to go ahead if you have a reasonable suspicion but when the case gets to court we're going to examine your grounds and they better be reasonable or we're not going to let you do it," said Addario.

The ruling does not apply to airports as a special federal law protects the use of drug-sniffing dogs at such facilities.

"We thought that airports should be off the table for this appeal," said Addario.

"When you're dealing with explosive devices at airports it's a completely different set of factors."

Link to R. v. A.M.

Link to R. v. Kang-Brown