Everyone has the right to be secure against unreasonable search and seizure.
So says Section 8 of the Canadian Charter of Rights and Freedoms.
And, because of its existence, Ebony the drug dog must be pulled from Porter Creek Secondary School.
The animal’s presence in the school violates the students’ rights, according to a Supreme Court of Canada decision delivered Friday.
The court ruling stemmed from a drug sweep of a Sarnia, Ontario, school by a police canine team in 2002.
Police conducted a random search of the student body for drugs. No search warrant was obtained and no tip provoked the search.
There, as at Porter Creek, the police attended through a longstanding invitation from school officials.
“The police had no knowledge that drugs were present in the school and would not have been able to obtain a warrant to search the school,” according to the court decision written by Louis LeBel.
“The subject of the search 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.
“This expectation is a reasonable one that society should support.”
The dog sniff was unreasonably undertaken because there was no proper justification.
The police lacked any grounds for reasonable suspicion, wrote LeBel.
“While the sniffer-dog search may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero-tolerance policy, these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school.”
Sniffer dogs are not infallible, wrote the court.
And, therefore, a record of a particular dog’s record of success will be important in assessing the reasonableness of a search.
From a police perspective, a dog that fails half the time is better than no detection at all, according to the decision.
“However, from the perspective of the general population, a dog that falsely alerts half of the time raises serious concerns about the invasion of the privacy of innocent people,” wrote LeBel.
“Moreover, the sniff does not disclose the presence of drugs. It discloses the presence of an odour that indicates either the drugs are present or may have been present but are no longer present, or that the dog is simply wrong.
“In the sniffer-dog business, there are many variables.”
“Students are entitled to privacy even in a school environment,” wrote Justice William Ian Corneil Binnie in support of the decision.
“Entering a schoolyard does not amount to crossing the border of a foreign state.
“Students ought to be able to attend school without undue interference from the state, but subject, always, to normal school discipline.
“A search was conducted. The authority for that search was nowhere to be found in the statute law or at common law.
“This is not a case, for example, where the police would have entered the school under the authority of a search warrant and used sniffer dogs to assist in effecting a more focused search.”
Therefore, the drug evidence found through the search was properly excluded, he concluded.
“What was done here may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero-tolerance policy, wrote Justice Marie Deschamps in support of the decision.
“But these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school, as the youth court judge and the Court of Appeal pointed out. The Charter weighs other values, including privacy, against an appetite for police efficiency.
“A hunch is not enough to warrant a search of citizens or their belongings by police dogs.”
Currently, at Porter Creek Secondary, that’s exactly what’s happening.
Doug Green, Ebony’s handler, is probably providing useful drug information to the school’s students.
But the presence of Ebony, a trained dog sniffing around pockets, backpacks and lockers throughout the day, is sending the wrong message to impressionable young minds.
It erodes their personal freedom. The dog’s presence suggests it’s OK for the state to monitor a person’s affairs throughout the day, even without just cause.
As well, any seizures or actions spurred by Ebony’s efforts are now likely to be ruled inadmissible following the Supreme Court’s ruling.
So, why have her there?
The three-year drug-dog pilot project at the school will cost $275,000. That’s a lot of money for a project that now violates the Canadian Charter.
It will be more costly if a student challenges the project in court.
In Canada, everyone has a right to protection against unreasonable search and seizure.
The drug-dog project proceeded under the understanding that our children were exempt from that protection.
Friday the Supreme Court ruled otherwise.
And, in light of that decision, the Education department has no choice but to get the dog out of the school. (RM)