Whatever Happened to ... the law of sniffer dog searches.

• Author: Bowal, Peter

When does a sniff amount to an illegal search? The Supreme Court of Canada recently weighed in on this question and the decision changes the law in Canada from what it had previously been. What was the law prior to the recent decision?

Assume you are walking along the street or are on public transit. Perhaps you are at the Greyhound bus depot where the police believe illegal drugs are being brought in and moved. Normally not much privacy would be expected in such public places.

If a police dog walks alongside someone and indicates (usually by sitting down) that this person has illegal drugs in his pocket or bag, that is an illegal search in Canada. Any drugs found will not be admissible in evidence if drug possession charges are laid.

This ruling emerges from a 2008 case from the Supreme Court of Canada called R. v. Kang-Brown, [2008] 1 SCR 456. As we will see, it was out of step with our American, British and Australian cousins.

The Kang-Brown Facts

On the morning of January 25th, 2002, Mr. Gurmakh Kang-Brown disembarked from an all-night Greyhound bus trip from Vancouver at the Calgary bus terminal, a route that the Calgary police suspected of being frequented by drug couriers. Several plainclothes officers were present as part of the Calgary Police Service's Operation Jetway, to observe passengers for suspicious behaviour that might indicate illegal courier activity.

Alighting the bus with his bag slung over his shoulder, Kang-Brown made sustained eye contact with plain clothes officer Sergeant Macphee, who returned his stare. Walking through the terminal, Kang-Brown turned and looked again at officer Macphee several times. Just before Kang-Brown exited the building, Macphee walked up and introduced himself as a police officer, showing his badge. He told Kang-Brown that he was not in any trouble and that he was free to go at any time, but that he would like to ask him some questions. Kang-Brown responded that was fine with him.

After more small talk, Macphee noticed that Kang-Brown was becoming increasingly nervous. Macphee asked if Kang-Brown was carrying any illegal drugs. Kang-Brown answered that he was not. Macphee requested to peek into Kang-Brown's bag.

Kang-Brown put the bag on the ground and began to open it. Macphee knelt down, with his hands about to touch the bag. He said, "just an officer safety thing here, do you mind?" Before Macphee could touch the bag, Kang-Brown jerked it away and exclaimed "what are you doing?"

At this...