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.