SUPREME
COURT OF CANADA
Citation: R. v. Chehil, 2013 SCC 49, [2013]
3 S.C.R. 220
|
Date: 20130927
Docket: 34524
|
Between:
Mandeep
Singh Chehil
Appellant
and
Her
Majesty The Queen
Respondent
-
and -
Attorney
General of Ontario, Canadian Civil Liberties Association,
Samuelson-Glushko
Canadian Internet Policy and Public Interest Clinic and
British
Columbia Civil Liberties Association
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell,
Moldaver, Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 77)
|
Karakatsanis J. (McLachlin C.J. and
LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver and Wagner JJ. concurring)
|
R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220
Mandeep Singh Chehil Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
Canadian Civil Liberties Association,
Samuelson‑Glushko Canadian
Internet Policy and
Public Interest Clinic and British
Columbia
Civil
Liberties Association Interveners
Indexed as: R. v. Chehil
2013 SCC 49
File No.: 34524.
2013: January 22;
2013: September 27.
Present: McLachlin C.J. and LeBel, Fish, Abella, Rothstein,
Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for nova scotia
Constitutional law — Charter of Rights — Search
and seizure — Sniffer dogs — Airplane luggage — Police suspecting accused,
airline passenger, of transporting drugs — Police verifying accused’s checked
bag using drug detection dog — Whether police had reasonable grounds to suspect
accused was involved in drug‑related offence — Whether drug detection dog
was sufficiently reliable for sniff search to be reasonable — Canadian Charter
of Rights and Freedoms, s. 8 .
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.
Held: The appeal
should be dismissed.
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, everyday 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.
Cases Cited
Referred
to: R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R.
v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569; R. v. Simpson (1993), 12
O.R. (3d) 182; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250; R.
v. Collins, [1987] 1 S.C.R. 265; Hunter v. Southam Inc., [1984] 2
S.C.R. 145; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney,
[1999] 1 S.C.R. 652; R. v. Mann, 2004 SCC 52,
[2004] 3 S.C.R. 59; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v.
Caslake, [1998] 1 S.C.R. 51; R. v. Bramley, 2009 SKCA 49, 324 Sask.
R. 286; United States v. Gooding, 695 F.2d 78 (1982); Reid v. Georgia,
448 U.S. 438 (1980); Terry v. Ohio, 392 U.S. 1 (1968); R. v. Golub
(1997), 34 O.R. (3d) 743; United States v. Sokolow, 490 U.S. 1 (1989); R.
v. Payette, 2010 BCCA 392, 291 B.C.A.C. 289; Florida v. Harris, 133
S.Ct. 1050 (2013); R. v. Borden, [1994] 3 S.C.R. 145; R. v. Storrey,
[1990] 1 S.C.R. 241; R. v. Lozano, 2013 ONSC 1871, [2013] O.J.
No. 1432 (QL); R. v. Nguyen, 2013 SKQB 36 (CanLII); Alberta v.
Jarvis, 2012 ABQB 602, 270 C.R.R. (2d) 154; R. v. Gowing, 2012 ABPC
38, 532 A.R. 312; R. v. Earle, 2012 NSPC 27, 315 N.S.R. (2d) 123; R.
v. Krafczyk, 2011 ABQB 107, 511 A.R. 211; R. v. Imani, [2012] N.B.J.
No. 120 (QL); R. v. Ryan, 2011 NSSC 102, 300 N.S.R. (2d) 97; R.
v. Hoy, 2010 ABQB 575, 534 A.R. 58; R. v. Hoang, 2010 BCPC 24, 206
C.R.R. (2d) 127; R. v. Frieburg, 2013 MBCA 40 (CanLII); R. v. Tse,
2012 SCC 16, [2012] 1 S.C.R. 531; R. v. Patrick, 2009 SCC 17, [2009] 1
S.C.R. 579; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v.
Wong, 2005 BCPC 24, 127 C.R.R. (2d) 342; R. v. Calderon (2004), 188
C.C.C. (3d) 481.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms,
ss. 8 , 9 , 24(2) .
Corrections and Conditional Release Act,
S.C. 1992, c. 20, s. 49 .
Criminal Code, R.S.C. 1985, c. C-46,
ss. 254(2) , 492.2 .
Customs Act, R.S.C. 1985, c. 1 (2nd
Supp .), s. 98 .
Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, ss. 15(1) , 17(1) .
Authors Cited
Sankoff, Peter, and Stéphane Perrault. “Suspicious Searches:
What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123.
Shapiro, Jonathan. “Confusion and Dangers in Lowering the Hunter
Standards” (2008), 55 C.R. (6th) 396.
Tanovich, David M. “A Powerful Blow Against Police Use of Drug
Courier Profiles” (2008), 55 C.R. (6th) 379.
APPEAL
from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and
Saunders and Farrar JJ.A.), 2011 NSCA 82, 308 N.S.R. (2d) 122, 278 C.C.C. (3d)
445, 243 C.R.R. (2d) 109, 88 C.R. (6th) 300, 976 A.P.R. 122, [2011] N.S.J.
No. 499 (QL), 2011 CarswellNS 646, setting aside a decision of Cacchione
J., 2010 NSSC 255, 300 N.S.R. (2d) 28, 268 C.C.C. (3d) 249, 950 A.P.R. 28,
[2010] N.S.J. No. 712 (QL), 2010 CarswellNS 906, and ordering a new
trial. Appeal dismissed.
Stanley W. MacDonald, Q.C., for the appellant.
Mark Covan, for the
respondent.
Amy Alyea, for the
intervener the Attorney General of Ontario.
Mahmud Jamal, David
Mollica and W. David Rankin, for the intervener the Canadian
Civil Liberties Association.
Written
submissions only by Tamir Israel, for the intervener the Samuelson‑Glushko
Canadian Internet Policy and Public Interest Clinic.
Michael A. Feder and H. Michael Rosenberg, for the intervener the
British Columbia Civil Liberties Association.
The judgment of the Court was
delivered by
[1]
Karakatsanis J. — In R. v. Kang-Brown, 2008 SCC 18,
[2008] 1 S.C.R. 456, and R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569,
the Court balanced the travelling public’s privacy interests against the public
interest in apprehending those who transport and traffic drugs. The Court
concluded that the use of a properly deployed drug detection dog was a search
that was authorized by law and reasonable on a lower threshold of “reasonable
suspicion”. Because they are minimally intrusive, narrowly targeted, and can
be highly accurate, sniff searches may be conducted without prior judicial
authorization. These appeals require the Court to elaborate on the principles
underlying the reasonable suspicion standard and its application.
[2]
Some of the interveners urge the Court to find
there is no reasonable expectation of privacy in luggage in an airport setting;
or to elevate the standard for authorizing a sniff search to reasonable and
probable grounds. However, they provided no compelling reason to revisit the
balance struck in Kang-Brown and A.M. between society’s interest
in routine crime prevention and an individual’s interest in her own privacy.
[3]
In my view, there is no need to revise the reasonable suspicion
standard. It is a robust standard determined on the totality of the
circumstances, based on objectively discernible facts, and is subject to
independent and rigorous judicial scrutiny. As Doherty J.A. said in R. v.
Simpson (1993), 12 O.R. (3d) 182 (C.A.), at p. 202,
the standard prevents the indiscriminate and discriminatory exercise of police
power.
[4]
However, the application of the reasonable
suspicion standard continues to raise concerns, particularly when individual
factors relied upon by police are neutral and capable of innocent explanation.
The appellant submits that the characteristics identified by the police as
forming part of the “drug courier profile” should not be used to ground
reasonable suspicion, as they do not provide particularized evidence of
criminal activity. In the companion appeal, R. v. MacKenzie, 2013 SCC
50, [2013] 3 S.C.R. 250, the appellant in that case also challenges the use of
drug courier profiles.
[5]
In addition, the appellant asks the Court to
affirm the trial judge’s finding that the dog deployed in this case was not
reliable and to require and establish national standards to determine
reliability of sniffer dogs.
[6]
For the reasons that follow, I would dismiss the
appeal. The reasonable suspicion standard requires that the entirety of the
circumstances, inculpatory and exculpatory, be assessed to determine whether there
are objective ascertainable grounds to suspect that an individual is involved
in criminal behaviour. It does not require the police to investigate to rule
out exculpatory circumstances. The Court of Appeal correctly concluded that
the trial judge erred in assessing the factors individually rather than in
their entirety and in finding the sniffer dog to be unreliable.
I.
Facts
[7]
Late on a Tuesday evening in November 2005, Mr.
Chehil departed from Vancouver International Airport on WestJet’s overnight
flight to Halifax.
[8]
The next morning, Corporal Fraser and Constable
Ruby, of the RCMP’s Criminal Interdiction Team (CIT), attended WestJet’s
offices in Halifax and analyzed the passenger manifest for the flight on the
overnight Vancouver-Halifax run. They observed that the appellant was one of
the last passengers to purchase a ticket, paid for his ticket in cash, and
checked one bag. The officers testified that, in their experience, these
characteristics were indicators of the illegal traffic of narcotics.
[9]
As a result, they decided to verify the
appellant’s checked bag for the presence of drugs using a drug detection dog,
Boris. When the appellant’s flight arrived, the officers located his bag on
the secure side of the airport. Nine other bags from the same flight were also
removed and lined up with the appellant’s bag. Boris was deployed by Officer
Daigle and walked down the line of bags. On his first run, he turned and
looked at the appellant’s bag. On the second pass, Boris indicated that he had
detected the scent of drugs by sitting in front of the appellant’s bag, and
then on the next item in the line-up, a cooler. The owner of the cooler
subsequently consented to a search, and no drugs were found.
[10]
After the appellant collected his bag, he was
approached by another police officer, who informed him that there had been a
positive indication for drugs on his bag and arrested him for possession of a
narcotic.
[11]
The appellant was taken to a secure location.
Upon forcing open his locked bag, the police found a backpack containing three
kilograms of cocaine. The appellant was arrested for possession of a narcotic
for the purpose of trafficking.
II.
Judicial History
A. Supreme Court of Nova Scotia (2010 NSSC 255, 300 N.S.R.
(2d) 28)
[12]
The trial judge held that Mr. Chehil had a
reasonable expectation of privacy in his checked luggage and that there was no
reason to lower constitutional protections in an airport. He drew a
distinction between a traveller’s expectation of privacy in relation to flight
safety as opposed to general police investigations.
[13]
Finding that only the
purchase of the ticket with cash, perhaps at the last minute, could be viewed
as suspicious, and that the rest of the factors relied upon were open to
several neutral explanations that were not explored, the
trial judge held that the police did not have reasonable suspicion when they
deployed Boris. In particular, the CIT’s failure to conduct further
investigation or consider exculpatory explanations meant that the police did
not undertake the global assessment of the facts required to establish
reasonable suspicion. At best, they were operating on intuition or an educated
guess, and thus the search was not authorized at common law.
[14]
The trial judge also found that yearly
validation performance was not an adequate indicator of a sniffer dog’s
reliability, and that Boris’s performance in the field was not sufficiently
reliable for the search to be reasonable.
[15]
The trial judge excluded the evidence under s.
24(2) of the Canadian Charter of Rights and Freedoms .
B. Nova Scotia Court of Appeal (2011 NSCA 82, 308 N.S.R. (2d)
122)
[16]
The Court of Appeal agreed that the appellant
retained a privacy interest in his suitcase and that heightened efforts to
combat terrorism in airports cannot circumvent protections guaranteed in
relation to the investigation of crime generally. However, the Court of Appeal
held that the trial judge erred by considering the factors relied upon by the
police in isolation, rather than determining whether they coalesced to form a
reasonable suspicion despite potential innocent explanations for each. Whether
additional steps could have been taken to buttress the grounds of reasonable
suspicion was irrelevant; the police need only demonstrate they have done
enough to establish reasonable suspicion.
[17]
The Court of Appeal found that reliability
assessments cannot ignore the fact that sniffer dogs are trained to detect the
smell of drugs, not drugs themselves. The trial judge erred by rejecting
Corporal Daigle’s expert opinion that the false indication on the cooler likely
resulted from scent emanating from the appellant’s adjacent bag. Given that
the police had reasonable and probable grounds to believe the appellant was in
possession of illegal drugs following Boris’s positive indication, his arrest
was justified and the search of his suitcase reasonable. There was no Charter
breach.
III.
Issues/Outline
[18]
The outline is as follows:
A. General Principles
(1) Nature of Reasonable Suspicion
(2) Profiling and Reasonable
Suspicion
(3) Nature of Judicial Scrutiny
(4) Reliability of Individual Dogs
(5) Actions Following Positive Indication
B. Application to This Case
(1) Reasonable Suspicion of the Police
(2) Reasonableness of the Search
(3) Arrest Subsequent to
Positive Indication
IV. Analysis
A. General Principles
[19]
The deployment of a single-profile narcotic dog
(a dog trained to detect certain kinds of illegal drugs using its sense of
smell) is a search that does not require prior judicial authorization.
However, in order for a sniff search to be Charter -compliant, it must
meet the criteria for unauthorized searches laid out in R. v. Collins,
[1987] 1 S.C.R. 265. As such, when sniffer dogs are engaged by the police, the
deployment must be authorized by a reasonable law (in this case, the common
law), and the manner in which the sniff search was conducted must be
reasonable. In Kang-Brown, a majority of the Court found that the
decision to deploy a sniffer dog meets the Collins test where the police
have a reasonable suspicion based on objective, ascertainable facts that
evidence of an offence will be discovered: see Kang-Brown, para. 60, per
Binnie J.; paras. 188-94, per Deschamps J.; and para. 244, per
Bastarache J. Further, as I will explain, a sniff search is conducted
reasonably where the sniffer dog used was properly trained and handled.
[20]
The appellant submits that the police applied
the reasonable suspicion standard in a way that authorizes random generalized
searches of a very large number of innocent travellers. The appellant and
certain interveners are concerned that profile characteristics, applied
mechanically, capture a high percentage of innocent travellers or racially
marginalized groups. They suggest that if the factors are individually
innocent or innocuous, police should be required to conduct further
investigation to seek out any exculpatory factors.
[21]
In my view, there is no need to reformulate the
“reasonable suspicion” test; it is a common standard that arises in a number of
contexts. However, in light of the concerns raised, I propose to clarify (1)
the nature of reasonable suspicion; (2) the role of “profiles” as grounds for
reasonable suspicion; and (3) the nature of rigorous judicial scrutiny.
(1) Nature of Reasonable Suspicion
[22]
In Hunter v. Southam Inc., [1984] 2
S.C.R. 145, the Court laid out the underlying principles of the s. 8 framework,
which balances privacy interests and the public interest in providing law
enforcement with the means to investigate crime. First, s. 8 does not protect
against all encroachments on an individual’s privacy interests. Its primary
goal is to protect individuals from arbitrary state action by balancing their
interest in being left alone, against the public interest in providing the
state with the means to investigate crime (pp. 159-60). This balance must be
struck on objective grounds (pp. 166-67), and, where possible, should be
assessed before the search occurs (p. 160). In most cases, “[t]he state’s
interest in detecting and preventing crime begins to prevail over the
individual’s interest in being left alone at the point where credibly-based
probability replaces suspicion” (p. 167).
[23]
Both the impact on privacy interests and the
importance of the law enforcement objective play a role in determining the
level of justification required for the state to intrude upon the privacy
interest in question. In Hunter, this Court also recognized that this
balancing of interests can justify searches on a lower standard where privacy
interests are reduced, or where state objectives of public importance are
predominant (p. 168). Thus, the Court has found reasonable suspicion to be a
sufficient threshold in certain investigative contexts, and Parliament has
employed this standard when authorizing certain searches in legislation.
[24]
In the case of sniff searches, the use of the
reasonable suspicion standard reflects, in part, the minimal intrusion of a dog
sniff. For a physical search of luggage incident to arrest, which will be more
intrusive, the more exacting reasonable and probable grounds standard is
engaged, as the arrest must be justified: see R. v. Caslake, [1998] 1
S.C.R. 51. This mirrors the continuum established under s. 9 of the Charter
to justify detentions, ranging from reasonable suspicion (for investigative
detentions) to reasonable and probable grounds (for arrests): see R. v.
Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.
[25]
The reasonable suspicion threshold respects the
balance struck under s. 8 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.
[26]
Reasonable suspicion derives its rigour from the
requirement that it be based on objectively discernible facts, which can then
be subjected to independent judicial scrutiny. This scrutiny is exacting, and
must account for the totality of the circumstances. In Kang-Brown,
Binnie J. provided the following definition of reasonable suspicion, at para.
75:
The
“reasonable suspicion” standard is not a new juridical standard called into
existence for the purposes of this case. “Suspicion” is an expectation that
the targeted individual is possibly engaged in some criminal activity. A
“reasonable” suspicion means something more than a mere suspicion and something
less than a belief based upon reasonable and probable grounds.
[27]
Thus, while reasonable grounds to suspect and
reasonable and probable grounds to believe are similar in that they both must
be grounded in objective facts, reasonable suspicion is a lower standard, as it
engages the reasonable possibility, rather than probability, of crime. As a
result, when applying the reasonable suspicion standard, reviewing judges must
be cautious not to conflate it with the more demanding reasonable and probable
grounds standard.
[28]
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: see Kang-Brown,
at para. 60, per Binnie J., and A.M., at paras. 81-84, per
Binnie J. However, the suspicion held by the police cannot be so broad that it
descends to the level of generalized suspicion, which was described by
Bastarache J., at para. 151 of A.M., as suspicion “that attaches to a
particular activity or location rather than to a specific person”.
[29]
Reasonable suspicion must be assessed against
the totality of the circumstances. The inquiry must consider the constellation
of objectively discernible facts that are said to give the investigating
officer reasonable cause to suspect that an individual is involved in the type
of criminal activity under investigation. This inquiry must be fact-based,
flexible, and grounded in common sense and practical, everyday experience: see
R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police
officer’s grounds for reasonable suspicion cannot be assessed in isolation:
see Monney, at para. 50.
[30]
A constellation of factors will not be
sufficient to ground reasonable suspicion where it amounts merely to a
“generalized” suspicion because it “would include such a number of presumably
innocent persons as to approach a subjectively administered, random basis” for
a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p.
83. The American jurisprudence supports the need for a sufficiently
particularized constellation of factors. See Reid v. Georgia, 448 U.S.
438 (1980), and Terry v. Ohio, 392 U.S. 1 (1968). Indeed, the
reasonable suspicion standard is designed to avoid indiscriminate and
discriminatory searches.
[31]
While some factors, such as travelling under a
false name, or flight from the police, may give rise to reasonable suspicion on
their own (Kang-Brown, at para. 87, per Binnie J.), other
elements of a constellation will not support reasonable suspicion, except in
combination with other factors. Generally, characteristics that apply broadly
to innocent people are insufficient, as they are markers only of generalized
suspicion. The same is true of factors that may “go both ways”, such as an
individual’s making or failing to make eye contact. On their own, such factors
cannot support reasonable suspicion; however, this does not preclude reasonable
suspicion arising when the same factor is simply one part of a constellation of
factors.
[32]
Further, reasonable suspicion need not be the
only inference that can be drawn from a particular constellation of factors.
Much as the seven stars that form the Big Dipper have also been interpreted as
a bear, a saucepan, and a plough, factors that give rise to a reasonable
suspicion may also support completely innocent explanations. This is
acceptable, as the reasonable suspicion standard addresses the possibility
of uncovering criminality, and not a probability of doing so.
[33]
Exculpatory, neutral, or equivocal information
cannot be disregarded when assessing a constellation of factors. The totality
of the circumstances, including favourable and unfavourable factors, must be
weighed in the course of arriving at any conclusion regarding reasonable
suspicion. As Doherty J.A. found in R. v. Golub (1997), 34 O.R. (3d)
743 (C.A.), at p. 751, “[t]he officer must take into account all information
available to him and is entitled to disregard only information which he has
good reason to believe is unreliable”. This is self-evident.
[34]
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. As
was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10
(citing Illinois v. Gates, 462 U.S. 213 (1983), at p. 244, footnote 13),
“the relevant inquiry is not whether particular conduct is ‘innocent’ or
‘guilty,’ but the degree of suspicion that attaches to particular types of
noncriminal acts”. In conducting this inquiry to ascertain whether reasonable
suspicion was present, the court will assess the circumstances the police were
aware of at the time of the execution of the search, including those learned
after the decision to deploy the sniffer dog was made if there is a delay in deployment,
as there was in this case. However, it would not be permissible for the
reasonable suspicion inquiry to assess circumstances learned after the
execution of the search: see Kang-Brown, at para. 92.
[35]
Finally, the objective facts must be indicative
of the possibility of criminal behaviour. While I agree with the appellant’s
submission that police must point to particularized conduct or particularized
evidence of criminal activity in order to ground reasonable suspicion, I do not
accept that the evidence must itself consist of unlawful behaviour, or must
necessarily be evidence of a specific known criminal act.
[36]
A nexus must exist between the criminal conduct
that is suspected and the investigative technique employed: see Mann,
at para. 34. In the context of drug detection dogs, this nexus arises by way
of a constellation of facts that reasonably supports the suspicion of
drug-related activity that the dog deployed is trained to detect. For
instance, in R. v. Payette, 2010 BCCA 392, 291 B.C.A.C. 289, the Court
of Appeal for British Columbia stated that in order to justify the deployment
of a sniffer dog, the constellation must be “capable of providing the required
objectively discern[i]ble nexus between the [accused] and illegal drug
activity” (para. 22). Binnie J. was of a similar view in Kang-Brown,
where he cast reasonable suspicion broadly, linking it to the presence of
contraband (para. 25). The particularized indicia of drug couriering
have been documented by the police and can be established by objective
evidence.
[37]
In sum, when single-profile narcotic dogs are
deployed on the basis of reasonable suspicion, the police intrusion must be
connected to factors indicating a drug-related offence. Reasonable suspicion
does not, however, require the police to point to a specific ongoing crime, nor
does it entail the identification of the precise illegal substance being
searched for. The reasonable suspicion held by the police need only be linked
to the possession, traffic, or production of drugs or other drug-related
contraband.
(2) Profiling and Reasonable Suspicion
[38]
The appellants in this case and in the companion
appeal, MacKenzie, as well as the interveners the Canadian Civil
Liberties Association (“CCLA”) and the Samuelson-Glushko Canadian Internet Policy
and Public Interest Clinic (“CIPPIC”) ask this Court to rule that drug courier
profiles cannot ground reasonable suspicion in and of themselves. They say
that reliance on profiles replaces rigorous judicial scrutiny with the police
view of the circumstances. The CCLA highlights various dangers related to the
use of profiles, even as an investigative tool to identify persons of interest,
such as inconsistent application or after-the-fact modification by the police,
unanticipated impacts on bystanders, disproportionate harm to visible
minorities, and stereotyping.
[39]
In my view, it is unhelpful to speak of
profiling as generating reasonable suspicion. The term itself suggests an
assessment based on stereotyping and discriminatory factors, which have no place
in the reasonable suspicion analysis. Rather, 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?
[40]
The application of the reasonable suspicion
standard cannot be mechanical and formulaic. It must be sensitive to the
particular circumstances of each case. 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. Profile characteristics must be
approached with caution precisely because they risk undermining a careful
individualized assessment of the totality of the circumstances.
[41]
In this case, the profiling alleged consisted of
a set of factors that the officers had been taught to look for and had learned
through experience to look for in order to detect drug couriers. Whether or
not these factors give rise to reasonable suspicion will depend upon a police
officer’s reasons for relying on specific factors, the evidence connecting
these factors to criminal activity, and the entirety of the circumstances of
the case.
[42]
It is not alleged in this case, or in the
companion appeal, that any form of discriminatory profiling took place. Even
though we are not concerned with these issues here, I caution that courts must
be wary that factors arising out of police experience are not in fact
stereotypical or discriminatory.
[43]
Furthermore, the elements considered as part of
the reasonable suspicion analysis must respect Charter principles. The
factors considered under the reasonable suspicion analysis must relate to the
actions of the subject of an investigation, and not his or her immutable
characteristics.
[44]
Nor should the exercise of Charter
rights, such as the right to remain silent or to walk away from questioning
made outside the context of a detention, provide grounds for reasonable
suspicion. These rights become meaningless to the extent that they are capable
of forming the basis of reasonable suspicion. Individuals should not have to
sacrifice privacy to exercise Charter rights.
(3) Nature of Judicial Scrutiny
[45]
The requirement for objective and ascertainable
facts as the basis for reasonable suspicion permits an independent
after-the-fact review by the court and protects against arbitrary state
action. Under the Collins framework, the onus is on the Crown to show
that the objective 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.
[46]
Rigorous judicial scrutiny is an independent
review that ensures that the suspicion relied on by the police is supported by
factors that are objectively ascertainable, meaning that the suspicion is based
on “factual elements which can be adduced in evidence and permit an independent
judicial assessment”: P. Sankoff and S. Perrault, “Suspicious Searches:
What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 125. The
constellation of facts must be based in the evidence, tied to the individual,
and capable of supporting a logical inference of criminal behaviour. If the
link between the constellation and criminality cannot be established by way of
a logical inference, the Crown must lead evidence to connect the circumstances
to criminality. This evidence may be empirical or statistical, or it may be
based upon the investigating officer’s training and experience.
[47]
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: see Payette, at para. 25. A
police officer’s educated guess must not supplant the rigorous and independent
scrutiny demanded by the reasonable suspicion standard. Evidence as to the
specific nature and extent of such experience and training is required so that
the court may make an objective assessment of the probative link between the
constellation of factors relied on by the police and criminality. The more
general the constellation relied on by the police, the more there will be a
need for specific evidence regarding police experience and training. To the
extent that specific evidence of the investigating officer’s experience and
training supports the link the Crown asks the court to draw, the more
compelling that link will be.
(4) Reliability of Individual Dogs
[48]
Concerns about the reliability and accuracy of a
drug detection dog may arise at each level of the Collins inquiry. In Kang-Brown,
the high accuracy of sniffer dogs that were properly trained and deployed was
key to endorsing a reasonable suspicion standard for sniff searches. Further,
in light of the consequences of a false indication, the reliability of a
particular dog is also relevant to determining whether a particular sniff
search was conducted reasonably in the circumstances: see Kang-Brown,
at paras. 63-65.
[49]
The consequences of a false indication by a
sniffer dog can be severe. As discussed below, a positive indication for the
presence of the smell of narcotics by a reliable dog may, depending on the
circumstances, lead to reasonable and probable grounds for an arrest. If the
police make use of a dog whose indications cannot be taken as a reliable sign
of the presence of the smell of drugs, the false positive resulting from the
dog’s unreliable nose could lead to unnecessary arrests. Because dogs are
trained to indicate for smell and thus may indicate even in the absence of
drugs, validations in controlled settings are important, as it is only in such
environments that a false positive can truly be identified.
[50]
However, evidence of the searching dog’s
performance during past deployments is also relevant. Because the dog’s
ability is to detect the smell of drugs, a sniffer dog will be unable to
distinguish between a smell emanating from contaminated items rather than
actual drugs. If the smell of drugs from contaminated property becomes
pervasive, the utility of an indication by smell is diminished. In
environments with high contamination rates, a dog may be inherently unreliable;
however, this should not count against a dog’s performance record in general.
Information about deployment may also demonstrate whether a particular dog is
exceptionally prone to false alerts or detecting residual odours.
[51]
A method of searching that captures an
inordinate number of innocent individuals cannot be reasonable, due to the
unnecessary infringement of privacy and personal dignity that an arrest would
bring. Accordingly, both the capacity of the individual dog and the potential
for the dog to be less accurate in certain settings due to environmental
cross-contamination must factor into the contextual analysis of reliability.
In order to assist in analyzing an individual dog’s susceptibility for
providing false positives, handlers should keep records of the dog and team’s
performance. 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.
[52]
The appellant urges the Court to insist on
national testing standards in order to ensure consistent reliability of sniffer
dogs. However, while standards to regulate the use of sniffer dogs would be
desirable, they must be implemented through legislative action by Parliament.
[53]
In the absence of legislated standards, trial
judges must continue to scrutinize the evidence before them in order to
determine whether the particular sniff search meets the Collins criteria.
Thus, even though indicia like a dog’s past performance and the risk of
cross-contamination can be relevant to determining a dog’s reliability, no specific
evidentiary requirements will apply mechanically to every case. The
prosecution does not have to prove that the dog is infallible, just as it does
not have to prove that an informer’s tip is infallible.
[54]
Dog reliability is also important to determining
whether a positive indication provides the reasonable and probable grounds
required to justify further police action. The reviewing court will make this
determination armed with the results of the sniff search and evidence regarding
the reliability of the dog. If a sniff search is conducted lawfully, the
officer already has reasonable grounds to suspect criminal conduct based on the
totality of the circumstances that existed prior to the sniff search. With all
these elements in mind, the court must determine whether the totality of
the circumstances reached the reasonable and probable grounds threshold. I
note that a similar approach was recently endorsed by the Supreme Court of the
United States in Florida v. Harris, 133 S.Ct. 1050 (2013), albeit in the
context of the “probable cause” test, which is specific to American law.
(5) Actions Following Positive Indication
[55]
Once a sniffer dog has delivered a positive
indication, the police often seek consent for a verification search. Provided
that the consent is properly sought and obtained, the search will respect s. 8
of the Charter : see R. v. Borden, [1994] 3 S.C.R. 145.
Alternately, the police may determine that they have the grounds required under
the Charter to proceed with a warrantless arrest, namely reasonable and
probable grounds to believe that the accused has committed an offence: see R.
v. Storrey, [1990] 1 S.C.R. 241, at pp. 249-51. If the arrest is validly
made, the police may conduct a search incident to arrest in order to secure
evidence that could be used at the accused’s trial: see Caslake. That
is what occurred in this case, and in the majority of reported cases dealing
with sniff searches occurring post-Kang-Brown in which the police
conducted a search to confirm the presence of drugs.
[56]
The intervener the CCLA argued that a positive
indication for drugs by a sniffer dog should only justify a verification
search, which is less intrusive than an arrest. This position echoes Binnie
J.’s observation in Kang-Brown (at para. 101) and A.M. (at para.
14) that it would be preferable that no arrest be made until a verification
search has confirmed the presence of drugs.
[57]
Given the fact that the use of verification
searches, as opposed to arrests, to respond to positive indications for drugs
from sniffer dogs was not raised by the parties or addressed by the courts
below, I would leave this issue for another day.
However, it seems to me that the minimal intrusion on privacy interests posed
by a sniff search was key to this Court’s decision in Kang-Brown and A.M.
to recognize a common law power to sniff search without prior judicial
authorization. The same would not hold true for verification searches, which
involve the actual inspection of a hiding place’s contents and pose a greater
interference with privacy interests. I note as well that Binnie J. did not
speak for a majority of the Court in Kang-Brown and A.M., and did
not provide a basis for the new common law power regarding verification
searches: see J. Shapiro, “Confusion and Dangers in Lowering the Hunter
Standards” (2008), 55 C.R. (6th) 396, at p. 399.
[58]
I would also observe that, in cases like this
one, where the police deploy a sniffer dog to sniff an item in the absence of
its owner, the police should generally provide notice to the owner of the item
searched, even in the event of a negative indication. For example, it would be
practical in such circumstances to simply add a tag or other notice to the item
searched indicating that it had been sniffed for drugs by a dog trained to
detect the smell of drugs. Indeed, as I have explained, the rigour of the
reasonable suspicion standard is derived from the fact that it is based on
objective facts that are subject to judicial review. Without a notice
requirement, judicial review of a search conducted in the absence of an item’s
owner may not be possible. Further, as this Court noted in R. v. Tse,
2012 SCC 16, [2012] 1 S.C.R. 531, at paras. 82-84, after-the-fact notice of
searches that are not subject to prior judicial authorization is an important
safeguard against the abuse of such powers. However, the appellant in this
case clearly had notice of the sniff search conducted in his absence.
B. Application to This Case
[59]
The intervener the Attorney General of Ontario
suggested that travellers do not have a reasonable expectation of privacy in
their checked luggage in an airport setting, given the security screening that
such luggage is subjected to as a condition of travel. However, as this Court
has found in the past, an individual’s reasonable expectation of privacy must
be assessed contextually, and may vary depending on the nature of the
circumstances: see R. v. Patrick, 2009 SCC 17, [2009] 1 S.C.R. 579, at
paras. 26 and 38. The trial judge found that while the appellant was aware of
and implicitly consented to the security screening that his bag would undergo,
this did not undermine his reasonable expectation of privacy in his checked
luggage with regard to general police investigations. The Court of Appeal
agreed. The Crown does not contest these findings before this Court, and I see
no reason to disturb them. Accordingly, the appellant’s interests under s. 8
of the Charter were engaged in this case.
(1) Reasonable Suspicion of the Police
(a) Standard of Review
[60]
A trial judge’s determination as to whether a
constellation of factors relied on by the police in making the decision to
deploy a sniffer dog gave rise to a reasonable suspicion is a question of mixed
fact and law. While a trial judge is owed deference in relation to her factual
findings, whether those factual findings support reasonable suspicion is a
question of law, and as such is reviewable on the correctness standard: see R.
v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.
(b) The Constellation in This Case
[61]
The trial judge found that the appellant
travelled alone, on an overnight one-way flight from Vancouver to Halifax, that
he was one of the last passengers to purchase a ticket for this flight, and
that he had paid for his ticket with cash. The trial judge considered
potential innocent explanations for individual factors that could have been
dealt with through further investigation, and found that absent such
investigation, there could be no reasonable suspicion of involvement in drug
crimes.
[62]
The Court of Appeal found that the trial judge
erred by looking at each factor individually. In their view, it was not
determinative that each factor, viewed in isolation, was capable of innocent
explanation. They found that the circumstances must be looked at in their totality,
which precludes a divide and conquer approach that finds each factor
individually equivocal.
[63]
The appellant argues that none of the factors
highlighted by the police in this case involve particularized evidence of
criminal activity, and that they capture large groups of innocent travellers.
He also submits that, in order to raise reasonable suspicion, the use of cash
must be paired with particularized conduct that raises a reasonable suspicion
of criminal activity.
[64]
The presence of reasonable suspicion must be
assessed in the context of a specific case. The officers testified that no
indicator by itself was determinative, that the decision to deploy a sniffer
dog was made based on the following factors: (1) the travel was on a one-way
ticket; (2) the flight originated in Vancouver; (3) the appellant was
travelling alone; (4) the ticket was purchased with cash; (5) the ticket was
the last one purchased before the flight departed; (6) the appellant checked
one piece of luggage; (7) the flight was overnight; (8) the flight took place
mid- to late-week; and (9) drug couriers prefer less expensive airlines, such
as WestJet. In her cross-examination, Constable Ruby gave evidence that most
people meeting this constellation had been proven to be drug couriers:
Q: Now, Constable Ruby,
yesterday you testified about some indicators that you, as a police officer,
look at when you go to look at the manifest.
A: Yes, sir.
Q: Okay? And including
things like how the ticket was purchased; you know, whether it was last minute,
walk-up, paid for cash, et cetera, right?
A: Yes, sir.
Q: Now would you agree with
me that not all people who purchase tickets in this manner are drug couriers?
A: Yes, sir.
Q: Okay. Would you agree
with me that, in fact, most probably are not?
A: I wouldn’t be able to agree
to that, because what I look at, and it’s been my experience that when there’s
a cluster, and in -- taken in their totality, our experience has been that
those persons that we have spoken to, or end up in arresting, have been in
possession of narcotics. [A.R., vol. V, at pp. 64-65]
The officers testified
they had seen this constellation in Halifax, and knew that it was common to
drug couriers. The constellation had been noted in their training and observed
by them in their prior investigations. It was not common to innocent
travellers. This assertion was not challenged on cross-examination.
[65]
In some cases, evidence has been adduced that
challenges the probative value of the factors relied upon by the police: see R.
v. Wong, 2005 BCPC 24, 127 C.R.R. (2d) 342, or R. v. Calderon
(2004), 188 C.C.C. (3d) 481 (Ont. C.A.). In those cases, a poor track record
undermined the police’s reliance on the particular constellations involved. As
Professor Tanovich has noted, “evidence of an unreasonably high false positive
rate can impact on the ability of the police to rely on a profile, for example,
in establishing the requisite constitutional threshold for an investigative
detention or search”: “A Powerful Blow Against Police Use of Drug Courier
Profiles” (2008), 55 C.R. (6th) 379, at p. 391. No such evidence was adduced
in this case.
[66]
The appellant also argues that the police had a
duty to investigate in order to exclude innocent explanations for the
constellation giving rise to reasonable suspicion, and that the Court of Appeal
erred by considering the relatively new condition of his suitcase, as this
factor was not known to the police at the time of the decision to deploy the
sniffer dog.
[67]
As I have outlined above, the police are not
under a duty to investigate alternative explanations for constellations of
factors giving rise to reasonable suspicion. However, they must account for
information received between the time of the decision to deploy the sniffer dog
and the performance of the sniff search. In this case, there was evidence that
the police practice was to take such information into account, and that factors
such as being met by grieving family members or a comment on the reservation
record noting a bereavement rate would likely exclude an individual from
suspicion. The police are also entitled to account for information obtained
that strengthens the inference of reasonable suspicion.
[68]
However, I agree that the Court of Appeal erred
by including the relatively new condition of the suitcase in the constellation
of factors. Constable Pattison and Constable Ruby did not remark on the
relatively new condition of the appellant’s luggage until after Boris’s
sniff search. The constellation of factors must be assessed at the time
of the search and not after: see Kang-Brown, at para. 92.
[69]
For these reasons, I agree with the Court of
Appeal that 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.
(2) Reasonableness of the Search
[70]
The trial judge found that the search was
unreasonable, as the sniffer dog used was not reliable. He focused on the fact
that in this case, Boris indicated on a cooler containing no drugs, as well as
the appellant’s bag, finding this gave a reliability rating of 50 percent on
the day in question. He also looked to actual deployments, including Boris’s
indications where no drugs were found. The trial judge concluded that the RCMP
training assessment was unreliable, as it was not conducted by an independent
agency and was not based on national standards. He was also of the view that
the lack of instruction given by the RCMP to dog handlers with regard to the
way in which a sniffer dog’s reliability should be evaluated led to highly
subjective accuracy assessments.
[71]
The Court of Appeal overturned these findings,
saying that they were based on speculation and misapprehension of the evidence.
[72]
Corporal Daigle provided detailed evidence of
Boris’s validation performance and records of 178 deployments in the field from
May 2003 to November 2005. As well, his evidence established that Boris had
never given a “false sit” in a controlled environment. Through four validation
exercises Boris was 99 percent accurate in detecting hidden drugs.
[73]
Further, the evidence established that 87.6
percent of Boris’s indications for the smell of drugs led to the discovery of
drugs or drug residue or involved circumstances that demonstrated the likely
recent presence of drugs, such as admitted recent drug use by the owner of the
luggage, the discovery of drug-related paraphernalia in the luggage, or the
discovery of large amounts of cash (in amounts varying between $9,000 and
$84,775).
[74]
In my view, the trial judge erred in principle
by discounting the RCMP’s controlled yearly validations and by failing to
consider evidence of contamination from the recent presence of drugs that
explained indications where no drugs were found, an explanation that would
equally apply to the indication on the cooler in this case. As a result, and
based on the record, the trial judge committed a palpable and overriding error
in finding that Boris was only 50 percent reliable.
[75]
I agree with the Court of Appeal that the trial
judge erred and that Boris was reliable. Given the reliability of the dog, the
sniff search was reasonable in these circumstances.
(3) Arrest Subsequent to Positive
Indication
[76]
The appellant was arrested following Boris’s
positive indication on his bag. When the police officer arrested the
appellant, he knew of the constellation of factors that led to the decision to
deploy Boris, and that Boris had in fact indicated on the appellant’s bag. In
this case, given the strength of the constellation, 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 appellant.
V. Conclusion
[77]
The police had a reasonable suspicion that they
would discover evidence of a drug-related crime in Mr. Chehil’s luggage. The
sniff search was conducted reasonably. It is unnecessary to consider the fresh
evidence tendered by the Crown in light of my conclusion and I would dismiss
the appeal.
Appeal
dismissed.
Solicitors
for the appellant: Garson MacDonald, Halifax.
Solicitor
for the respondent: Public Prosecution Service of Canada, Halifax.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General
of Ontario, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Osler,
Hoskin & Harcourt, Toronto.
Solicitor
for the intervener the Samuelson‑Glushko Canadian Internet Policy and
Public Interest Clinic: University of Ottawa, Ottawa.
Solicitors for the
intervener the British Columbia Civil Liberties
Association: McCarthy Tétrault, Vancouver.