Continuing with our "America is Different" theme ...
The Canadian Supreme Court has ruled that random searches by drug sniffing dogs are illegal under their Charter of Rights and Freedoms. Mark Walsh has the details.
Here is some of the relevant language:
The dog sniff amounts to a search within s. 8 of
the Charter. The information provided when the dog is trained to alert
to the presence of controlled drugs permits inferences about the precise
contents of the source that are of interest to the police. 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. This
expectation is a reasonable one that society should support. The guilty secret
of the contents of the accused’s backpack was specific and meaningful
information, intended to be private, and concealed in an enclosed space in
which the accused had a continuing expectation of privacy. By use of the dog,
the policeman could “see” through the concealing fabric of the backpack.
the Charter. The information provided when the dog is trained to alert
to the presence of controlled drugs permits inferences about the precise
contents of the source that are of interest to the police. 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. This
expectation is a reasonable one that society should support. The guilty secret
of the contents of the accused’s backpack was specific and meaningful
information, intended to be private, and concealed in an enclosed space in
which the accused had a continuing expectation of privacy. By use of the dog,
the policeman could “see” through the concealing fabric of the backpack.
Reading that one can't help but conclude that the Canadian approach and the American approach to enforcement of Constitutional Rights are fundamentally different. Here the Canadian Supreme Court is expansively reading their Charter to encompass its general intent applied to this new situation. Lately, however, the American Supreme Court narrowly reads Constitutional Provisions looking for exceptions. On the same issue our lower courts have concluded that the air around the backpack is public, thus, the dog sniff does not constitute technically constitute a "search."
There is so much rich information if one were to study differences in educational law across national boundaries. However, so few educational law scholars actually engage in this kind of work. As the world continues to shrink ... we are gonna need more work in this area.
PhotoCredit: Lone Primate - Canadian Supreme Court Building (I like the progressively smaller windows in the roof)