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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Filed under Recent Case Law, Search and Seizure

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