Monthly Archives: October 2013

Street Checks 101

Following a week-long in-service course with the Cape Breton Regional Police Service (police members of Kentville, Truro, and Stellarton also in attendance), several questions arose concerning the legal implications of conducting street checks.  As a reminder to this years police cadet graduates, street checks are where people are asked to identify themselves and, to the extent the police officers receive information, they would do a brief report which is called a “street check”, which would end up on the record management system for the information of other officers; street checks can be of pedestrians or occupants of a vehicle.

Street checks can also occur whereby the officer recognizes the person they interact with or observe on the street and simply records the name of the person(s), location seen, and date and time of the observation.  This discussion will not focus on those because there will be no legal implications since there was no officer-pedestrian/vehicle occupant interaction.

For years, R. v. Grafe, (1987) 36 C.C.C. (3d) 267 (Ont. C.A.) remained the leading case on police questioning of pedestrians on the street.  Grafe affirmed the right of the police to ask questions of pedestrians, so long as the person was not detained nor compelled to reply. This jurisprudence indicated that, absent physical constraint, or some evidence of a sense of compulsion from the accused, a mere stopping or a mere questioning will not amount to a “detention” sufficient to invoke Charter protections. 

With regards to vehicle stop cases, it is now well-established that random stops of vehicles are an arbitrary detention under s. 9 of the Charter, but justified under s. 1 of the Charter because of their utility in promoting road safety under certain provincial Highway Traffic Acts (R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hufsky, (1988) 40 C.C.C. (3d) 398)).  The definition of “detention” applied in those cases is that the police have assumed control over the movement of the accused by a demand or direction that might have legal consequences, and there are penal consequences for the refusal to comply with the demand or direction.

As noted in Ladouceur, the “ordinary right of movement of the individual,” the right to move about in the community on foot without interference, is a fundamental right. It is more significant than “the liberty” or “the qualified right” to drive a motor vehicle which is “a licensed activity that is subject to regulation and control for the protection of life and property.”

R. v. Esposito (1985) 24 C.C.C. (3d) 88 (Ont.CA):

A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police must allow him to proceed on his way…

The Supreme Court in R. v. Mellenthin, [1992] 3 S.C.R. 615 found that, rather than the applicant being required to show that he felt oppressed, the burden shifted to the crown to provide evidence that he was aware of his rights to refuse to answer the questions or to consent to the search.  This marked a dramatic shift in the approach.

In R. v. Mann, [2004] 3 S.C.R. 59,the SCC ruled that:

The police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

Fast forward to 2009 and we now have a new benchmark in these situations. In R. v. Grant, [2009] S.C.J. No. 32, the SCC addressed the sometimes difficult task of determining when a detention commences:

As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focused suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer’s request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.

In summary, Grant concluded that:

Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

So, what does all this mean for the officer?  Street checks provide an often overlooked, underutilized tool in the investigative process and they can be very valuable if they are undertaken correctly.  It is not improper for police, provided that they are in the exercise of their general police duties, to make general inquiries of individuals or seek to identify individuals, but whether a detention occurs and whether it is justified depends on the circumstances of the case.  Street checks could inquire identification of a person, but whatever answer is provided to such a question, if any, is not going to provide a nexus to anything other than a possible street check report. Such a nexus cannot support an investigative detention.  Whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation will be considered by the courts. In addition, the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter all become important in deciding whether a street check will amount to a detention.

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Can a purse be searched during the execution of a search warrant because of its presence in the residence?

R. v. Le 2013 BCCA 442 – this was an appeal by the accused from conviction for possession of crack cocaine. The appellant was an occupant in her sister’s home police searched for drugs pursuant to a warrant. The appellant was not a suspect. As she proceeded to leave, she picked up her purse from a table. Police searched her purse and found crack cocaine. At trial, the appellant alleged the search was illegal. The trial judge found the search was lawful and, even if unlawful, the evidence should not be excluded. The judge concluded that because the purse fell within the scope of the prior judicial authority to search, the appellant could not establish she held an objective reasonable expectation of privacy in the purse. The appellant argued the judge erred in concluding she did not have a reasonable expectation of privacy in her purse and the scope of the search warrant extended to her purse. She also asserted the judge erred in failing to exclude the evidence.

Police obtained a search warrant pursuant to s. 11 of the Controlled Drugs and Substances Act to search for “Cocaine, Ecstacy (MDMA), money, documents including score sheets and tenancy documents, drug packaging material and equipment and cell phones.”

The police arrested the appellant’s sister when she left the premises and executed the warrant. The appellant, another woman and three children were in the premises. The appellant was in bed. The police obtained the identity of these people. They were not suspects and arrangements were made for them to leave the premises while it was searched.  As the appellant was departing, she picked up her purse that was on a kitchen table. An officer asked whether the purse had been searched. It had not. The officer in charge directed that the purse be obtained from the appellant and it was.  On searching the purse, the police found a quantity of crack cocaine. The appellant was arrested. At trial, she contended that the search of her purse was illegal. This position was rejected on a voir dire.

This case referred to and quoted Hunter v. Southam, [1984] 2 S.C.R. 145 at para. 52:

“It was not unreasonable for the police officers to search the purse while it was on the table (based on their unchallenged search warrant), and therefore Thao Le could have no objectively reasonable expectation of privacy in that purse had they done so before she picked it up. If that is so, it seems difficult to understand how Thao Le could gain an objectively reasonable expectation of privacy simply by picking up the purse.”

And at para. 53:

“the legal authority to search, created by the warrant, eliminated any objectively reasonable expectation of privacy”

In the present case, it was clear that the appellant had a reasonable expectation of privacy in her purse because of the nature of the object in issue.  The Appeal Court ruled that despite the appellant’s reasonable expectation of privacy, a search of the purse while it was on the table was not unreasonable, because it was a “thing” as listed in the search warrant. At the time the search warrant initially was executed, it was merely an object in the premises.

The Appeal Court ruled once it was established that an object is a “thing” that the police are authorized to search, in its view, the authorization did not end merely because a person picked up the “thing” declaring ownership. On the narrow facts of this case, the court concluded that the appellant’s Charter rights were not violated by the search of her purse. She had a reasonable expectation of privacy in the purse, but the search was authorized by law and was reasonable. It did not become unreasonable simply because the appellant picked up her purse.  The accused’s appeal was dismissed.

“It is easy to conclude that a person has a subjective right to privacy in a purse or wallet belonging to that person. These items are commonly known to contain private items, as well as in identifying information and money and credit cards, and it is socially unacceptable for any person to rummage through these items without permission of the owner….the accused had no objectively reasonable expectation of privacy in the purse while it was on the table….the police could have searched it under authority of the warrant.”

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Informations that were sworn by a police officer with no knowledge of the case are nullities and must be quashed

How many of us have been asked by a supervising or fellow officer to “swear” an Information for them or another officer’s file?  I have been one of those officers asked to do so.  Well, this latest case out of a Nova Scotia Provincial Court should serve as a reminder to us if and when you are requested to do so.

R. v. Awad 2013 NSPC 82 – As a result of cross-examination of a police officer in an unrelated matter, defence counsel subsequently pursued an issue regarding the practice followed by a police agency in swearing Informations.  In this case, the officer swore 9 Informations in relation to this file.  Officers were directed to take the “court bag and get Informations sworn” (it would be no different if it was just 1-2 files).  The officer, unfortunately, although they always read the “Information and charges”, did not review the Crown Sheet, Occurrence Reports or any Supplemental Reports; nor did the officer speak to the Investigating Officer.

As stated in R. v. Southwick (1967), 2 C.R.N.S. 546 (Ont.C.A.), “Criminal proceedings commence when an Information is sworn before a justice.”  Section 504 of the Criminal Code states, inter alia:

“Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged…”

In R. v. Pilcher and Broadberry, 1981 CarswellMan 76, Prov. J. Minuk held that:

“The police officer’s belief in the truth of what he was told by his superiors was not sufficient to establish reasonable and probable grounds for believing that the accused committed the offences charged. As the police officer merely  read the information without apprising himself of the circumstances giving rise to the charges, the accused discharged the onus of proving on a preponderance of evidence that the police officer failed to satisfy the mandatory requirements for swearing an information.”

Section 601 of the Criminal Code states:

“An objection to an indictment preferred under this Part or to a count in an indictment, for a defect apparent on its face, shall be taken by motion to quash the indictment or count before the accused enters a plea, and, after the accused has entered a plea, only by leave of the court before which the proceedings take place. The court before which an objection is taken under this section may, if it considers it necessary, order the indictment or count to be amended to cure the defect….”

Based on the evidence before the Judge, there were 9 Informations comprising this application for 8 defendants. Each Information was on the proper Form 2; each had been signed by an Informant; each was sworn before a Justice of the Peace who dated, signed and stamped the jurat; each Information had all the essential “averments” which advised the defendant of charges; each Information appeared valid “on it’s face;” each Promise to Appear appeared to be completed properly and valid on it’s face which required each defendant to appear in court and atone to the court’s jurisdiction.  Prior to signing or swearing the Information(s), the officer did not read the Crown Sheet, Occurrence Report, Supplementary Report or the Investigating Officer’s notes;  the officer did not speak to the Investigating Officer or any other officer involved in the investigation; the officer was not involved in the investigation(s) in any way; the officer did not receive any specific instructions regarding the swearing of Informations; the officer was “directed” as part of their duties to “take the court bag and get Informations sworn;” the officer had no personal knowledge nor reasonable and probable grounds to believe an offence had been committed by each of the defendants prior to swearing the Information(s); the officer relied on a “process” in that they believed the Investigating Officer or the Sergeant who had the file prior to them had reasonable and probable grounds.

The Judge said that the onus is on the accused to satisfy the court, on a balance of probabilities, that the Information is defective and in this case ruled the applicants had rebutted the presumption of regularity on the balance of probabilities.  The Judge said the officer had no personal knowledge, nor reasonable and probable grounds to believe an offence had been committed. In essence, the officer swore a “false information” and by doing so misled the Justice of the Peace.  The Judge said the ruling was not meant to impugn the reputation of the officer, but that the officer should bear in mind that it is their oath that is being committed, not the oath of a senior officer, supervisor or investigating officer. And, while they may not have personal knowledge of the allegations to which they deposed, they must have reasonable and probable grounds to believe those allegations were true.  Officers should not blindly follow the instructions of a superior. At the same time, those superior officers who issue instructions for Informations to be laid should bear in mind the obligation they are imposing upon the informant and should provide them with all of the information they need.  Based on all of this, the Judge found each Information a nullity and they were quashed.  The Judge closed the ruling by quoting Henry, J., in R. v. Peavoy 15 C.C.C.  (2d) 97, at para. 39:

“Recognizing that the pressure of duties and administration upon police forces may quite naturally cause them, when under pressure, to manage the laying of informations as a form of routine “paperwork”, I feel obliged to add the following comments. A person swearing an information, particularly a law enforcement officer, is not at liberty to swear the information in a perfunctory or irresponsible manner with a reckless disregard as to the truth of his assertion. To do so is clearly an affront to the Courts and is at variance with the right of the citizen to be left alone by the authorities unless there is reasonable and probable grounds for invading his liberty by compelling his attendance before the Courts. The police officer who does not satisfy himself that he can personally swear to the truth of the information according to its terms (i.e. personal knowledge or reasonable and probable grounds), yet does so, jeopardizes his personal position and also does a disservice to the upholding of law in the community. His oath must be beyond reproach. He need not, of course, have personal knowledge of all the facts or even most of the facts that support the allegation; indeed much of what would be available to him will, so far as he is concerned, be hearsay. He must however, be satisfied, even if it be on the basis of reliable reports made by other persons in the course of an investigation, that there is some evidence to support the charge, that that evidence in fact constitutes reasonable and probable grounds for believing that the accused committed the offence and that he believes that the accused did so. Moreover, he must be prepared to so satisfy the Justice of the Peace who, in turn, has an obligation judicially, not arbitrarily, to hear and consider the allegations before endorsing the information.”

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Officer Breached the Accused’s s. 10(b) of Charter Right Where Officer Undertook to Make Phone Calls for the Accused, but Refused to Leave Voicemail Messages at the Numbers Called and Evidence of ‘Refusal’ Excluded

R. v. O’Connor 2013 SKQB 292 – a constable observed the accused leaving a bar in a vehicle and noted an unusual route and difficulty steering. When stopped, the accused admitted to having several drinks, there was an odour of alcohol, he had glassy eyes, was speaking slowly, and also seemed to have difficulty understanding ASD directions and controlling his breathing. The accused requested a lawyer, and at the detachment asked to call his father to obtain information on a lawyer. The constable attempted to call the accused’s family, but received no answer. The accused continued to insist on contacting his father. The accused subsequently failed to provide a sufficient breath sample. The accused argued he was arbitrarily detained, as the arresting officer did not have reasonable and probable grounds for his arrest, flowing from this the requirement to provide a breath sample was a breach of s. 8 of the Charter, and he had also been denied his s 10(b) right in not being permitted to contact his parents to obtain information for the family lawyer. The accused further submitted there was not sufficient evidence to prove he was driving while impaired and he had a reasonable excuse for failing to provide a breath sample. The accused submitted he was unfamiliar with the vehicle he was driving, which was having steering problems, and was speaking deliberately to avoid inappropriate language.

The Saskatchewan Provincial Court acquitted the accused on the charge of impaired operation, but convicted him on a charge of failure to comply with a breath demand without reasonable excuse. The factors relied on by the constable were satisfactory that he had a subjective belief the accused had committed the offence and that this belief was objectively reasonable. The constable had grounds to make the arrest and there were no breaches of ss. 8 or 9 of the Charter. With regard to the alleged breach of s. 10(b), the constable had fulfilled his obligation to attempt to contact the accused’s father. That the constable did not leave a telephone message did not breach the accused’s rights. Even if the constable’s efforts were deficient, the accused was not diligent in exercising his right to counsel, as he had not contacted other counsel when informed his family could not be reached. On the issue of impairment, there were concerns with the credibility of the accused’s evidence of alcohol consumption, which was not accepted, or the expert evidence based on that consumption. However, there was a reasonable doubt as to the accused’s impairment. The indicia were consistent with alcohol consumption, but signs of impairment were lacking: the accused’s evidence was accepted as to driving and speaking irregularities, he had stopped his vehicle safely and had no difficulty with balance. The accused had not raised a valid excuse for his refusal to provide a breath sample. As there had been no violation of the accused’s s. 10(b) rights, the argument that the breach of such resulted in his failure to comply with the breath demand could not be advanced. The accused was guilty of failure to comply with a breath demand, but acquitted on the charge of impaired operation.

The accused appealed his convictions to the SKQB.  The Judge ruled that the accused’s S. 10(b) Charter rights were breached because the officer undertook to make phone calls for the accused drinking driver, but refused to leave voicemail messages at the numbers called and evidence of ‘refusal’ were excluded.  Quoting the Judge: “… First, the evidence “as to why these matters transpired as they did” was clear: what transpired took place because the investigating police officer took it upon himself to take control of the contact process. Second, the conclusions did not take into account the reality that Mr. O’Connor himself would surely have left a message for his parents to return the call. Third, the conclusion that “no return phone call was reasonably anticipated” ignored the reality that there could be no return phone call from the parents unless the police officer left a message for them to call. It also ignored the reality that the parents were themselves trying to contact Mr. O’Connor, and were being turned away from the police detachment by being told, wrongly, that their son was not there.

On the hearing of this appeal, both counsel referred to suggestions at trial that the constable did not leave a message for Mr. O’Connor’s parents because he had “privacy concerns”. I will not attempt to assess, on appeal, whether those concerns were genuinely held. From an objective perspective, however, I find that they were not reasonable. A few of the reasons for that finding are that (1) The constable, having decided to place the calls, could have easily dealt with any privacy concern by asking Mr. O’Connor if he wished to have a message left for his parents; (2) a simple request to call back with a telephone number would not have breached any privacy issues; and (3) if privacy was an issue, it was an issue of the officer’s own making: all he had to do to resolve it was to allow the appellant to place his own phone call.  For all of these reasons I find that the appellant was denied the right to consult with his counsel of choice in breach of s. 10(b) of the Charter.”

“Although the case for excluding the evidence of refusal is not overpowering, given the need to underline the importance of ensuring that accused persons are afforded their right to counsel the exclusion of the evidence of refusal under s. 24(2) of the Charter would be in the best interests of the administration of justice. It would also be in keeping with a Grant analysis and consistent with the ultimate conclusions reached by the majority of the Supreme Court of Canada in Bartle.  Accordingly, I find that the evidence of refusal must be excluded pursuant to s. 24(2) of the Charter.”

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Two Latest Supreme Court of Canada Decisions on Drug Sniffer Dog Searches

The next two updates are on drug sniffer dog searches out of the SCC and as such, are quite in-depth.  I have provided briefs on each of them for the blog, but if any of you want more details on the actual decisions, send me an email and I will forward more details to you.

R. v. Chehil 2013 SCC 49 – Police analyzed the passenger manifest for an overnight flight from Vancouver to Halifax. They suspected that the accused was trafficking drugs on the basis of a number of indicators: the accused’s travel was on a one-way ticket, he was one of the last passengers to purchase a ticket, he was travelling alone, he paid for his ticket in cash and checked one bag. The police verified the accused’s checked bag for the presence of drugs using a drug detection dog. As the dog gave a positive indication for the scent of drugs, the accused was arrested for possession of a narcotic. On searching the bag, police found three kilograms of cocaine. The trial judge held that the police did not have reasonable suspicion when they deployed the sniffer dog and further, the dog’s performance in the field was not sufficiently reliable for the search to be reasonable. The trial judge excluded the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms. The Court of Appeal allowed the appeal, holding that the search was reasonable and the accused’s arrest was justified. It ordered a new trial.

The accused appealed to the SCC from the decision that the deployment of a drug detection dog to check his luggage did not breach his Charter rights.  The SCC dismissed the accused’s appeal, ruling that the deployment of a dog trained to detect illegal drugs using its sense of smell is a search that may be carried out without prior judicial authorization where the police have a reasonable suspicion based on objective, ascertainable facts that evidence of an offence will be discovered. The reasonable suspicion threshold respects the balance struck under s. 8 of the Charter by permitting law enforcement to employ legitimate but limited investigative techniques. This balance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with an individual’s reasonable expectation of privacy. The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter compliant in light of their minimally intrusive, narrowly targeted and highly accurate nature.

Reasonable suspicion must be assessed against the totality of the circumstances. This inquiry must be fact-based, flexible and grounded in common sense and practical, every day experience. A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion that would capture too many innocent people. Exculpatory, neutral or equivocal information cannot be disregarded when assessing a constellation of factors. However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. While the police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, such evidence need not itself consist of unlawful behaviour or evidence of a specific known criminal act.

Characteristics identified by a police profile can be considered when evaluating reasonable suspicion; however, profile characteristics are not a substitute for objective facts that raise a reasonable suspicion of criminal activity. The analysis must remain focused on one central question: is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion?

The onus is on the Crown to show that objective and ascertainable facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to a police officer’s view of the circumstances based on her training or experience in the field. A police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.

The reliability of a particular dog is relevant to determining whether a particular sniff search was conducted reasonably. In the absence of legislated standards, trial judges must scrutinize the evidence before them in making this assessment. Both the results of testing in a controlled setting and the results of deployment in the field are helpful in assessing the reliability of a positive indication as a sign of the actual presence of drugs.

The accused in this case had a reasonable expectation of privacy in his checked luggage with regard to general police investigations. However, the sniff search was reasonable. The trial judge erred in principle in the manner of applying the reasonable suspicion standard by assessing the factors individually. Viewed in their entirety, the factors in this case justified a reasonable suspicion of illegal drug activity such that the sniff search was consistent with the Charter. Given the strength of the constellation of factors that led to the decision to deploy the dog, the reliability of the dog, and the absence of exculpatory explanations, the positive indication raised the reasonable suspicion generated by the constellation to the level of reasonable and probable grounds to arrest the accused.

R. v. MacKenzie 2013 SCC 50 – this was an Appeal by the accused from a Saskatchewan Court of Appeal judgment setting aside a decision granting the accused’s motion to exclude evidence found during a police sniffer-dog search. The accused took issue with a police sniffer-dog search of his vehicle that occurred during a highway traffic stop. The accused said the police lacked reasonable suspicion he was involved in a drug-related offence when the police’s dog sniffed-searched the accused’s vehicle. Asserting the sniff was an unconstitutional search, the accused sought to have 31.5 lbs of marihuana found in the rear hatch of his car excluded, which would have left the Crown without a case. The trial judge agreed with the accused and excluded the evidence, but the Saskatchewan Court of Appeal reversed the decision. The officer who proceeded with the search noted the accused’s erratic driving, extreme nervousness, physical signs consistent with marihuana use and the fact the accused was travelling on a known drug pipeline.

The SCC dismissed the accused’s appeal, ruling that police may use sniffer dogs for routine crime prevention in contexts where individuals have a reasonable, but lesser expectation of privacy and the police have reasonable grounds to suspect that a search will reveal evidence of a criminal offence. The use of sniffer dogs as a police investigative technique should be approached one case at a time, in each instance having regard to the context of the situation, balancing the extent of any privacy interest and the state’s countervailing interest in law enforcement.

Reasonable suspicion must be grounded in objectively discernible facts, which can then be subjected to independent judicial scrutiny. While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron-microscope.

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer. Expert qualifications are not required as a precondition for police testimony on matters properly within the realm of officer training and experience. However, police training and experience should not be accepted uncritically by the courts. Hunches or intuition grounded in an officer’s experience will not suffice, nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field. Essentially, a trial judge must appreciate the significance of police training and experience when evaluating the worth of the factors considered in forming a belief that an accused might be involved in a drug-related offence.

Reasonable suspicion must be assessed against the totality of the circumstances. Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. The police need not have evidence indicative of a reasonable probability of finding drugs under a reasonable suspicion standard. To require more would render the distinction between reasonable and probable grounds and reasonable suspicion all but illusory. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end. While more innocent persons will be caught under a reasonable suspicion standard than under the reasonable and probable grounds standard, that is the logical consequence of the way these standards have been defined. This cost to individual privacy is accepted as a reasonable one in part because properly conducted sniff searches are minimally intrusive, narrowly targeted and highly accurate.

Here, the trial judge did not reject the officers’ evidence as to the nature of their detail on the day in question and he declined to make an adverse finding of credibility. Therefore, it is accepted that the officer’s testimony was credible. The factors identified by the officer provide the objective basis needed to support his belief that the accused might be involved in a drug-related offence. Looking at the totality of the evidence through the lens of an officer with training and field experience in the transportation and detection of drugs, the officer’s subjective belief that the accused might be involved in a drug-related offence was objectively substantiated. Accordingly, the officer had reasonable suspicion that the accused was engaged in a drug-related offence such that the police could enlist the sniffer-dog to perform a sniff search of the accused’s vehicle. The accused’s s. 8 privacy rights were not breached and the marihuana seized from the rear hatch of his car was thus admissible at trial.

It is important that the detention and search issues be kept distinct because they stem from different police powers and must respect different Charter rights. The detention and the sniff must be independently justified, even if both are based on the same underlying facts that led police to reasonably suspect that the accused was involved in a drug-related offence. The conclusion that the police had reasonable suspicion sufficient to justify the sniffer-dog search thus leads to the conclusion that the police had reasonable grounds to detain the accused. There is no suggestion here that the manner in which the accused was detained was not reasonably necessary in the circumstances. Accordingly, there was no breach of the accused’s right against arbitrary detention.

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