New drug laws blur the future for Canada’s K9 units
Some pot-sniffing dogs have retired, but those staying raise legal issues
As legalization looms, canine units across the country are facing a problem: their dogs are outdated.
Drug-sniffing dogs undergo training from a very young age to be able to detect a wide variety of drugs, including cannabis, which will be legal in Canada as of tomorrow. And while some have been forced into early retirement, many will remain in their jobs, raising questions for legal experts concerned that law-abiding citizens might be stopped and searched by police based on an alert for a perfectly legal substance. Some organizations said they’ll be totally unaffected by legalization. Since crossing the border with cannabis will remain illegal without a permit, the Canadian Border Services Agency said all their drug-sniffing dogs will remain in the same role.
“Through its programs and services, the CBSA will continue to uphold laws governing the illegal cross-border movement of cannabis, while facilitating the free flow of legitimate people and goods,” spokesperson Jayden Robertson said in a statement.
Vancouver Police Department spokesperson Jason Doucette said its drug-sniffing dog numbers “are not going down, we’re not reassigning anyone.”
Even in forces that are adapt- ing to legalization, change will come slowly.
In January, the Winnipeg Police Service’s canine unit added Ivy, a 20-month-old Belgian Malinois, to its roster. Ivy got all the regular training except cannabis odour detection. But all14 WPS canines, all of whom except Ivy are trained to detect cannabis, will continue working until the end of their careers, the WPS said — instead, change will be grandfathered in, as new dogs won’t undergo cannabis training.
Since the Calgary Police Service said “nearly all” of its searches initiated by drugsniffing dogs involve a previously obtained warrant, it will be keeping its dogs, too. Drugsniffing dogs are also used at traffic stops, the CPS said, albeit rarely.
Sometime this fall, the CPS canine unit will employ dogs with and without cannabis training.
“This will allow flexibility in a variety of investigative needs,” the CPS said.
The RCMP said it has prepared for legalization by training a new crop of drug-sniffing dogs over the summer that only detect illegal drugs, to be used for traffic stops and interdiction work.
The current crop of 14 dogs in those roles, spread out across British Columbia, Alberta, Manitoba, Nova Scotia, New Brunswick and Newfoundland, will all enjoy early retirements.
But those dogs only make up 12 per cent of the RCMP’s total canine force. The vast majority of “general duty” dogs will remain in place with their current training.
“There will still be offences related to cannabis, such as the unlawful sale or distribution of cannabis, including its sale or distribution to young persons, and the unlawful possession, production, importation and exportation of cannabis,” the RCMP said in a statement.
This is where the law could get fuzzy, experts say.
Toronto cannabis lawyer Paul Lewin said it is “ridiculous” that police forces plan to keep their cannabis-trained dogs.
“It’s absolutely pointless. It’d be like a tomato-detecting dog,” he said. “(The dogs) aren’t going to tell us if it’s illicit cannabis. The dogs aren’t trained that well. The dog won’t know how much cannabis is there. I’m baffled.”
When cannabis was illegal, police had reasonable grounds to search a person if a dog smelled cannabis on them. Now, Lewin said, though cannabis-related offences will still exist, the waters are muddied.
Since dogs don’t distinguish their alerts based on specific drugs, police won’t know whether a dog is alerting them to the presence of fentanyl or a joint.
Toronto cannabis lawyer Harrison Jordan said he expects to see court challenges, where dogs alert their handler for the presence of a drug that turns out to be legal cannabis, and the cop finds a different illegal item, like a handgun — will that charge hold up in court, since the initial search was for a legal substance? “It really depends on the reasonable grounds that they have,” Jordan said.
For instance, most provinces will allow police to search a vehicle if they believe the driver is carrying cannabis in an open container — similar to open container laws with alcohol — but police generally can’t just search every car at a RIDE stop checking for impaired driving, Jordan said.
In any case, Lewin said he expects to see many cases where “false positives” are tested in court. “The Charter frowns on searches for no good reason,” he said. “There’s really some serious rights at stake here.”
To make sure you stay on the right side of the law as much as possible, make sure your cannabis stays fair away from airports and border crossings, Jordan said.
“Don’t try to take your stuff out of the country, or into the country, because that’s where you’re most likely to encounter a sniffer dog,” he said.
“It’s absolutely pointless. It’d be like a tomatodetecting dog. (The dogs) aren’t going to tell us if it’s illicit cannabis.” PAUL LEWIN TORONTO LAWYER