Academic

Canada Supreme Court Nixes Suspicionless Dog Sniffs

By Dan Filler

The United States Supreme Court is moving toward allowing more and more suspicionless searching under the Fourth Amendment.  In Illinois v. Caballos, for example, the Court held that an officer may conduct a dog sniff of the outside of a car after a traffic stop.  In dissent, Justice Ginsburg argued that random dog sniffing is pretty much A-OK after this decision, writing:

[Caballos] clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.

The Canadian Supreme Court, however, takes a different view and does not share this disrespect for individual privacy and autonomy.  The Court considered two cases (Kang-Brown and A.M.) where trained drug sniffing dogs sniffed backpacks in a high school and bags in a bus depot - in both cases, without reasonable  suspicion.  The Court held the searches violated Canadians' right to be free of unreasonable searches and seizures as protected by the Charter of Rights.  I am not a student of Canadian law, and I'm not sure the degree to which Parliment may adopt legislation that empowers police to engage in these searches.  But the decisions make clear that this Court views dog sniffs as intrusive searches - a significantly different perception of the matter than that shared by the U.S.  Supreme Court. 

Some may argue that Canada faces less serious threats - particularly with respect to terrorism.  But fears of terrorism and widespread drug use are also handy tools for those who prefer a highly interventionist criminal justice state.   If Justice Ginsburg is right in her analysis - and I suspect she is - and the Courts and legislatures continue their embrace of policing über alles,  this Land of the Free will become discernably less so.

Full post as published by The Faculty Lounge on April 26, 2008 (boomark / email).