Friday, September 27, 2013

Sniffer dog searches

R. v. Chehil, 2013 SCC 49 deals with when "reasonable suspicion" exists so as to justify a search by a drug detection dog.  The Court holds:


[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 Circ. 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.


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