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?

Reasonable And Probable Grounds and Philosophy’s Theory of Knowledge

In an effort to increase my knowledge, I decided to take a MOOC or Massive Open On-line Course offered by Coursera. I chose Introduction of Philosophy taught through the University of Edinburgh. Admittedly, I am finding the course a bit elementary but what did interest me was the lecture on Epistemology and the Theory of Knowledge, a philosophical area concerned with “knowledge-that” as opposed to “knowledge-how.” “Knowledge how” is how we know to do certain tasks – how to build a birdhouse, for instance. “Knowledge that” or propositional knowledge involves knowing that birds fly or knowing that s.265 is the assault section in the Criminal Code.

Plato was the first philosopher to detail the requirements of propositional knowledge, which is known as the “traditional” analysis of knowledge. Propositional knowledge or how someone knows a proposition is true, according to Plato, is based on three criteria. First, the knowledge must be believed by the person proposing it, meaning that one can only know something if they believe it. Second, the knowledge must be true. Thus, even if we believe in a state of facts, if that belief state is not true, there is no knowledge. This criterion requires objective truth. Third and lastly, there must be a justification for believing the knowledge is true. In other words, we must be able to articulate, based on “sound reasoning and solid evidence,” why we believe the knowledge to be true. If all three criteria are present, then the knowledge is accepted as true knowledge as opposed to “random” knowledge, which is based on a “lucky guess.”

All of this sounds very familiar and it should sound familiar as indeed in the legal arena, this Theory of Knowledge is used. For example, in criminal procedure, before a police officer can arrest an accused he must have reasonable and probable grounds or RPG for the arrest. There is no “fixed” definition of rpg, primarily due to the Charter, which prefers a contextual approach to determining whether or not an officer has RPG in the circumstances of each case. However, there are descriptions of rpg in differing areas of the law, which seem to be consistent. For instance, RPG is similar to the traditional English concept of “reasonable and probable cause” required for prosecuting a malicious prosecution case. The term is defined in the 1938 English House of Lords case Herniman v. Smith where Lord Atkin described it as

… an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed.

In the Supreme Court of Canada, the Court came to similar conclusions in Bernshaw when Madame Justice L’Heureux-Dube commented on previous decisions, which called rpg “credibility-based probability” and “reasonable probability.” Despite, no single definition for the concept, there seems to be a very good general understanding of what RPG means. This differs from the concept of “reasonable suspicion,” which, according to Kang-Brown “means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.” As discussed in a previous blog, the SCC will clarify “reasonable suspicion,” hopefully, when they release the judgments on two sniffer dog cases, MacKenzie and Chehil.

Clearly, the concept of RPG is Plato’s propositional knowledge, which is fulfilled when the person has a sincere belief in a true set of facts based on justifiable reasons.

However, not all philosophers have agreed with Plato’s Theory of Knowledge. Edmund Gettier did not agree that justified true belief was knowledge. To support his dissent, he created what is known as Gettier Counterexamples or Gettier Cases, which present situations where Plato’s Theory fails.

Two Gettier Counterexamples were given in the lecture I watched. One counterexample was called The Stopped Clock Case. In this case, every day you pass by a clock and check the time. One morning you pass by the clock, which shows the time as 7:00 a.m. As you have taken time from this clock countless of times before, you sincerely believe the time is correct and your objective belief is justified, as the clock has been correct every other time you have used the clock. Indeed, it is 7:00 a.m. However, the clock is not working and had stopped at 7:00 a.m. the previous morning. It is just luck that you happened to glance at the clock when it apparently showed the correct time. Although on the surface, Plato’s Theory was fulfilled, in actuality the sincere belief was not premised on truth.

These fallacies show that knowledge is not necessarily justifiable true belief. Yet, it is this very premise – that knowledge can be justified if it is based on a true belief – which lies at the heart of reasonable and probable grounds. It is possible, therefore, that what is accepted as RPG is merely a Gettier Case and should not form the basis of a criminal charge. Perhaps, it is time to rethink even the basic propositions of criminal law to ensure we have a relevant and viable system.

Not only, did this MOOC make me think, but it also left me wondering; does the law need fewer lawyers and more philosophers?