Reasonable Suspicion Part Two: Business As Usual At the Supreme Court of Canada

The much-anticipated Chehil case seems to disappoint. Why? Is it because the case fails to deliver the legal community a clear and workable standard of reasonable suspicion? Or perhaps the decision disappoints because it adds nothing new to legal discourse? I believe it is the latter as the Supreme Court of Canada attempts to invoke the “kiss” or “keep it simple & straightforward” principle.

Instead of breaking new ground on the concept of reasonable suspicion, the Court opts for consistency. No question the Court is consistent when they admonish trial judges to look at a “constellation of factors” in determining the presence of reasonable suspicion: this warning to take into account the “totality of the circumstances” is an accustomed refrain in many of the SCC’s criminal decisions. It has even been referred to as “the totality of the circumstances test” as in the SCC cases of Tessling or, more recently, Cole in determining “reasonable expectation of privacy.” Of interest, this test was also referred to in the SCC Garafoli decision on wiretap authorizations where the “source” of the test is found in the American Illinois v. Gates case from 1983 on “probable cause,” which states:

The elements under the "two-pronged test" concerning the informant's "veracity," "reliability," and "basis of knowledge" should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. This flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Pp. 462 U. S. 230-241. (emphasis added)

As indicated from the excerpt above, the Chehil decision feels like a paraphrasing of a tried and true standard. The only difference is the “reasonable suspicion” standard must be down-graded to a search for “possibilities” as opposed to “probabilities” as required for RPG.

What is familiar is the court’s penchant for the “common-sense” approach. In my previous post on Is the Supreme Court of Canada Kicking It Old School, I suggested Justice Moldaver’s decisions were a flash from the past as he relied on his experience as a trial judge where common sense ruled. So too Madame Justice Karakatsantis is reliving old times when she emphasizes how the inquiry “must be fact-based, flexible, and grounded in common sense and practical, everyday experience.” In the SCC universe, the judicial lens is not rose coloured neither is judicial decision making “rocket science” either.

Also familiar in Chehil is the “tweaking” of the Kang-Brown case by requiring sufficiently probative evidence that specifically links this accused to the crime alleged as opposed to relying on generalities. This seemingly new approach is really just an old approach as the SCC renders another decision in support of the “contextual approach.” The real and only question to be answered by the trial judge is the an old one: “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?” Thus, context is everything and everywhere in the realm of judicial possibilities.

Even Madame Justice Karakatsantis’s caution not to base the assessment on investigative profiling is no different than the SCC’s earlier positions on racial profiling and gender-based stereotyping. Thus, we are reminded that “stereotyping and discriminatory factors” are not a justification for intrusive investigative techniques. Yet, a police officer’s “knowledge, training, and experience” are appropriate justifications even though such knowledge is gleaned from profile training.

Another “been there, done that” aspect to this decision is a throw back to my previous post Is Reasonable Suspicion Going To The Dogs? in which I speculate on the forthcoming Chehil case, hoping it will not simply be a re-working of the modified objective standard so popular in the judicial assessment of defences. Unfortunately, this is the case as the trial judge is urged to consider the objective standard in context and in light of the circumstances of the case. Such modification, when done contextually, does not advance the legal issues but obfuscates them. It is difficult enough to use an objective standard based on an artificially designed reasonable person but to use it in the context of real facts and real people is mind boggling at the very least. It would be like taking the facsimile of the reasonable person and pasting it into a personal photo album. The result? Consistent artifice. Now isn’t that contrary to common sense?

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

Is “Reasonable Suspicion” Going to the Dogs?

What do Levi, Boris, and Max have in common? They are both “single-profile narcotic detector dogs,” commonly known as “sniffer” dogs. These highly trained canines are able to detect controlled substances in bus station lockers, luggage at airports, and in motor vehicles travelling west to east across the drug courier “pipeline,” which we call the Trans Canada Highway. Although typically part of the investigation of drug offences, these investigators do not make it onto the witness list, however, they too will soon have their day in court when the Supreme Court of Canada hears two “sniffer” cases – the MacKenzie case from Saskatchewan Court of Appeal and the Chehil case from the Nova Scotia Court of Appeal – on January 22. 2013.

At issue is the standard of “reasonable suspicion” required before using the dogs for a warrantless search. Although, previous case law has discussed the differences between “reasonable suspicion” and "reasonable and probable grounds,” the discussion has failed to provide the needed direction to trial judges when faced with the issue. When does an “educated guess” become “reasonable suspicion?” Although, trial judges list the evidence in support or lacking on the issue, the subjectiveness of such a finding has left any precedent in this area ephemeral at best. Of course, one difficulty is the requirement for the trial judge to subjectively assess the evidence on an objective basis. For example, in the MacKenzie case, the trial judge was decidedly unimpressed with the police officer’s evidence that the accused’s eyes were of a “pinkish hue” and therefore consistent with someone using marijuana. In the trial judge’s view, this evidence seemed more consistent with hindsight than providing reasonable grounds for a sniffer search.

The other difficulty with “reasonable suspicion” is also highlighted by both Court of Appeal cases – not in a legal sense, but in a practical one. Both Appeal Courts, allowed Crown appeals against acquittals, meaning that these appellate courts disagreed with the findings of the trial judges and substituted their opinion for the trial decision. Instead of deference, these cases exemplify the difficulty in assessing factors with no real guideline on the appropriate legal application. As every law student understands, to know the law is one thing but to apply it to a set of facts is another. Certainly, this is an issue which calls out for a clear SCC decision. My “educated guess” would be that help will be forthcoming and such a decision will most likely be written by Justice Moldaver, the purveyor of common sense decisions, or by Justice Fish, who was a member of the majority decision in the previous sniffer dog case R v Kang-Brown.

The one area that I hope the Supreme Court of Canada will touch upon is an interesting comment made by Saskatchewan Court of Appeal Justice Caldwell in the MacKenzie decision. In that case, the accused was pulled over for speeding 2 km over the posted speed limit, although the accused had rapidly slowed down his vehicle when he realized the police were at the roadside. Although the police officers maintained they were on traffic duty at the time and therefore had a legitimate reason for pulling over the accused, they also just happened to be trained drug officers from a different part of Saskatchewan with their sniffer dog, Levi.

Coincidence? I think not said the wily trial judge. This “innocent” explanation for their presence was not accepted by the trial judge who was therefore concerned that in fact the targeting of the vehicle was really for

the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is a common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.

Conversely, on appeal, Justice Caldwell quickly dismissed this concern as, in his view, whether “reasonable suspicion existed does not involve a search for motive.” The trial judge thereby erred by not placing enough emphasis on the police officers’ training as the objective assessment must be done in the context of the officer’s background, knowledge, and training. If the SCC accepts this, the concept of an “objective” assessment would be diminished. In my view, such an assessment would be more akin to a “modified’ objective assessment as seen in the assessment of defences such as necessity and duress.

In the end, the days of sniffers may be at a close as Harper’s government has already reduced the sniffer force by nineteen with fifty-three dogs remaining across Canada. According to the dog handlers, this reduction has nothing to do with effectiveness but everything to do with money as it costs about one hundred thousand dollars to start up a sniffer team. Despite this, the cases will go far, hopefully, in crystallizing the meaning of “reasonable suspicion,” an area which impacts not just sniffer dogs but other investigative searches and arrests as well. For further information on the appeals read the factums for MacKenzie and for Chehil.