Pubdate: Tue, 02 May 2006
Source: London Free Press (CN ON)
Copyright: 2006 The London Free Press
Author: Jane Sims, Free Press Justice Reporter
Bookmark: (Drug Dogs)
Bookmark: (Marijuana - Canada)


Ontario's highest court has upheld the privacy rights of high school
students by refusing to overturn the acquittal of a Sarnia youth
charged with drug trafficking.

The case focused on the random search of St. Patrick's high school in
Sarnia by three Sarnia police officers and a sniffer dog on Nov. 7,

The Ontario Court of Appeal refused the Crown's appeal and agreed with
Ontario Court Justice Mark Hornblower when he disallowed the drug evidence.

Hornblower acquitted the youth in June 2004 because he said police had
no reason to search the backpack in which drugs were found.

"To admit the evidence is effectively to strip (the youth) and any
other student in a similar situation of the right to be free from
unreasonable search and seizure," Hornblower said at trial.

Two years earlier, the principal told Sarnia police they were welcome
to bring the drug dog to the school when available.

There had been earlier unannounced searches. The principal was
concerned about drugs and testified the school had a zero-tolerance

"It was pretty safe to assume" drugs could be in the school, he
testified at trial.

He gave the officers immediate permission "to go through the

The principal announced on the public address system the police were
there and the students should remain in their classrooms -- a wait
that went on for as long as two hours.

After going through the school, the officers asked the principal if
there was any other area he wanted them to search.

The principal directed them to the small gymnasium because it was the
only place they hadn't searched. It was empty.

The dog, trained to detect heroin, marijuana, hashish, crack cocaine
and cocaine, started biting a backpack lying next to a wall.

The officer handling the dog handed the backpack to another officer
and said he might be interested in what was in it.

The Crown conceded the dog sniff was a search.

But the officer had no information about a target area in the school
or particular people suspected of drug use.

And he testified it would have been "a fruitless exercise to try to
obtain a warrant," the appeal court decision said.

Five bags of marijuana inside a plastic bag, five more bags of
marijuana inside a tin box, 10 magic mushrooms, a pipe, a lighter,
rolling papers and a roach clip were in the backpack.

So was the youth's wallet.

Hornblower, in acquitting the youth, ruled there were two searches --
one with the dog and one of the backpack. He concluded the police had
no reasonable grounds.

He also concluded the police search was "in the guise of a search by
school authorities." School authorities also would need reasonable
grounds before conducting a search.

Hornblower ruled the search breached the youth's Charter

"While this case centres around the rights of (the youth), the rights
of every student in the school were violated that day as they were all
subject to an unreasonable search," Hornblower said.

"This search was unreasonable from the outset."

The appeal court agreed and called the search "warrantless." No one at
the school had requested the police and the police gave no notice to
the school authorities.

The appeal court also agreed with the youth's lawyer and the Canadian
Civil Liberties Association who argued "a student's backpack should be
afforded at least the same degree or respect as an adult's briefcase."

The civil liberties agency also called a student's backpack "a
portable bedroom and study rolled into one.

"Students' expectation of their privacy in their backpacks is
objectively reasonable," it argued. 
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