Winnipeg Free Press - PRINT EDITION

Sniffer-dog ruling passes smell test

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In a pair of decisions last week, the Supreme Court of Canada struck a balance between Canadians' privacy rights and police investigative powers. Our highest court avoided two extreme positions argued on appeals before it, and hewed to a prudent middle ground.

Both cases involved use of drug-detecting police sniffer dogs to ferret out the transport of illegal drugs. And both cases dealt with whether use of the dogs violated the right under the Charter of Rights and Freedoms to not be subject to unreasonable search and seizure, thereby rendering evidence of seized drug stashes inadmissible against the accused.

The companion cases hinged on whether police had met the law's "reasonable suspicion" threshold to sanction their deploying sniffer dogs to scrutinize property of the travelling public. But both cases also dealt with whether "reasonable suspicion" should remain the appropriate legal yardstick to permit loosing sniffer dogs on people's possessions and vehicles.

In one case, the court unanimously held police were reasonably suspicious of Mandeep Chehil because he was travelling alone on a one-way ticket, paid cash for a Vancouver-to-Halifax flight, and was one of the last passengers to buy a ticket. When a dog was deployed to check his bag, it indicated the presence of drugs. Chehil had three kilograms of cocaine in his suitcase.

In the other case, Benjamin MacKenzie of Saskatchewan was stopped by police due to his erratic driving. His palpable nervousness, the pinkish hue of his eyes and his contradictory answers to questions about where he was going constituted police's reasonable suspicion to call in a sniffer dog. Police found 14 kilograms of marijuana in the trunk of his car. The majority of the court found his conduct, in the aggregate, dubious enough to warrant bringing in a sniffer dog.

Some interveners in the cases wanted the Supreme Court to adopt a new and higher threshold that would require police to have "reasonable and probable grounds" before launching a sniffer-dog search. Others took a polar-opposite approach. They argued, at least in Chehil's case, that all luggage at airports should, automatically, be fair game for sniffer searches.

But the Supreme Court said reasonable suspicion should remain the basis on which police can use sniffer dogs without first getting a judicial warrant.

In doing so, the court deftly reconciled our constitutional rights and society's interest in the prevention and punishment of drug trafficking.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition October 3, 2013 A14

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