Police have been granted wider latitude to use "sniffer dogs" to search people's belongings for drugs, in two cases that suggest the Supreme Court of Canada is becoming tougher on crime – at a cost of personal privacy.
The cases were an early test of the Supreme Court's attitude toward law enforcement in an era in which a majority of judges have been appointed by Prime Minister Stephen Harper. Several tough-on-crime laws are headed for the country's highest court. Within a year, Mr. Harper will appoint two more judges to the court, bringing his total to seven of nine.
On a court split five to four on the more contentious of the two sniffer-dog cases, four of Mr. Harper's five appointees sided with police, saying they should be able to do their jobs without excessive judicial scrutiny.
One of those four, Justice Michael Moldaver of Ontario, wrote that not every police move should be "placed under a scanning electron-microscope."
The case involved Benjamin MacKenzie of Saskatchewan, stopped for speeding by a veteran officer with 5,000 traffic stops and 150 drug finds under his belt, who was accompanied by a sniffer dog.
The officer said he was one of the most nervous stopped drivers he had ever seen, and noted that Mr. MacKenzie was driving along a Calgary-to-Regina route known to be used by traffickers. Police found 14 kilograms of marijuana in the trunk of his car.
The ruling "has the effect of giving an enormous amount of deference to the instincts and subjective views of police officers, at the expense of some of the liberties we assumed were in place since the Charter [of Rights and Freedoms] came" in 1982, Benjamin Berger, a law professor at York University's Osgoode Hall Law School, said.
He said the ruling moves acceptable sniffer-dog searches out of airports, bus terminals and schools, where people expect less privacy, to the more familiar and common area of traffic stops.
In a bluntly worded dissent, the minority warned that the court was casting the police net so wide that almost all Canadians could be caught up in it, and subject to searches.
"The police cannot simply draw on their experience in the field to create broad categories of 'suspicious' behaviour into which almost anyone could fall," Justice Louis LeBel wrote in dissent.
He rejected the signs that police took to be suspicious, saying they were just as characteristic of innocent people as of guilty ones, even when taken together. And he said the police officer's 5,000 traffic stops and 150 drug finds tell the court nothing, unless it knows what his error rate is in such cases.
In the court's previous sniffer-dog jurisprudence, in two cases from 2008, six judges of nine defended the right to privacy, and criticized police for their use of the dogs.
The only Harper appointee on the court then sided with police.
Justice Moldaver said "reasonable suspicion" is a wide standard encompassing behaviour that suggests the possibility, not the probability, of a crime. He acknowledged the cost to individual privacy, but said sniff searches are "minimally intrusive."