R. v. MacKenzie

R. v. MacKenzie
Collection
Supreme Court Judgments
Date
2013-09-27
Neutral citation
2013 SCC 50
Report
[2013] 3 SCR 250
Case number
34397
Judges
McLachlin, Beverley; LeBel, Louis; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Saskatchewan
Subjects
Constitutional law
Notes
SCC Case Information: 34397
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250
Date: 20130927
Docket: 34397
Between:
Benjamin Cain MacKenzie
Appellant
and
Her Majesty The Queen
Respondent
- and -
Attorney General of Ontario,
British Columbia Civil Liberties Association, Canadian Civil Liberties Association and
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Interveners
Coram: McLachlin C.J. and LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 92)
Dissenting Reasons:
(paras. 93 to 136)
Moldaver J. (Abella, Rothstein, Karakatsanis and Wagner JJ. concurring)
LeBel J. (McLachlin C.J. and Fish and Cromwell JJ. concurring)
R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250
Benjamin Cain MacKenzie Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario,
British Columbia Civil Liberties Association,
Canadian Civil Liberties Association and
Samuelson‑Glushko Canadian Internet Policy and
Public Interest Clinic Interveners
Indexed as: R. v. MacKenzie
2013 SCC 50
File No.: 34397.
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 saskatchewan
Constitutional law — Charter of Rights — Search and seizure — Sniffer dogs — Accused seeking to exclude evidence of marihuana seized during highway traffic stop — Whether police had reasonable grounds to suspect accused was involved in drug‑related offence — Whether search was unreasonable — Whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Constitutional law — Charter of Rights — Arbitrary detention — Accused seeking to exclude evidence of marihuana seized during highway traffic stop — Whether accused was arbitrarily detained — Canadian Charter of Rights and Freedoms, s. 9 .
The accused was charged with possession of a controlled drug for the purpose of trafficking. He takes issue with a police sniffer‑dog search of his vehicle that occurred during the course of a highway traffic stop. He says the police lacked reasonable suspicion that he was involved in a drug‑related offence when they had their dog sniff his vehicle. The police relied on the accused’s erratic manner of driving, high level of nervousness, the pinkish hue of his eyes, his course of travel and contradictory answers on his travel dates in determining that the reasonable suspicion standard required for a valid sniffer‑dog search was met. Asserting that the sniff was an unconstitutional search, the accused seeks to have the marihuana found in the rear hatch of his car excluded. The trial judge agreed with the accused and excluded the evidence directing that a verdict of not guilty be entered against the accused. The Court of Appeal reversed the decision finding that the constellation of objective factors was sufficient to meet the reasonable suspicion standard. The court set aside the acquittal and remitted the matter to trial.
Held (McLachlin C.J. and LeBel, Fish and Cromwell JJ. dissenting): The appeal should be dismissed.
Per Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: Police may use sniffer dogs for routine crime prevention in contexts where individuals have a reasonable, but lesser expectation of privacy and the police have reasonable grounds to suspect that a search will reveal evidence of a criminal offence. The use of sniffer dogs as a police investigative technique should be approached one case at a time, in each instance having regard to the context of the situation, balancing the extent of any privacy interest and the state’s countervailing interest in law enforcement.
Reasonable suspicion must be grounded in objectively discernible facts, which can then be subjected to independent judicial scrutiny. While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron‑microscope.
Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. Thus, in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer. Expert qualifications are not required as a precondition for police testimony on matters properly within the realm of officer training and experience. However, police training and experience should not be accepted uncritically by the courts. Hunches or intuition grounded in an officer’s experience will not suffice, nor is deference necessarily owed to a police officer’s view of the circumstances because of his or her training or experience in the field. Essentially, a trial judge must appreciate the significance of police training and experience when evaluating the worth of the factors considered in forming a belief that an accused might be involved in a drug‑related offence.
Reasonable suspicion must be assessed against the totality of the circumstances. Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. The police need not have evidence indicative of a reasonable probability of finding drugs under a reasonable suspicion standard. To require more would render the distinction between reasonable and probable grounds and reasonable suspicion all but illusory. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end. While more innocent persons will be caught under a reasonable suspicion standard than under the reasonable and probable grounds standard, that is the logical consequence of the way these standards have been defined. This cost to individual privacy is accepted as a reasonable one in part because properly conducted sniff searches are minimally intrusive, narrowly targeted and highly accurate.
Here, the trial judge did not reject the officers’ evidence as to the nature of their detail on the day in question and he declined to make an adverse finding of credibility. Therefore, it is accepted that the officer’s testimony was credible. The factors identified by the officer provide the objective basis needed to support his belief that the accused might be involved in a drug‑related offence. Looking at the totality of the evidence through the lens of an officer with training and field experience in the transportation and detection of drugs, the officer’s subjective belief that the accused might be involved in a drug‑related offence was objectively substantiated. Accordingly, the officer had reasonable suspicion that the accused was engaged in a drug‑related offence such that the police could enlist the sniffer dog to perform a sniff search of the accused’s vehicle. The accused’s s. 8 privacy rights were not breached and the marihuana seized from the rear hatch of his car was thus admissible at trial.
It is important that the detention and search issues be kept distinct because they stem from different police powers and must respect different Charter rights. The detention and the sniff must be independently justified, even if both are based on the same underlying facts that led police to reasonably suspect that the accused was involved in a drug‑related offence. The conclusion that the police had reasonable suspicion sufficient to justify the sniffer‑dog search thus leads to the conclusion that the police had reasonable grounds to detain the accused. There is no suggestion here that the manner in which the accused was detained was not reasonably necessary in the circumstances. Accordingly, there was no breach of the accused’s right against arbitrary detention.
Per McLachlin C.J. and LeBel, Fish and Cromwell JJ. (dissenting): Rigorous judicial scrutiny of dog‑sniff searches remains a vital part of the balance struck under s. 8 of the Charter between the need for effective law enforcement and the protection of the public’s privacy rights. Without question, the police must be allowed to carry out their duties, and the reasonable suspicion standard acknowledges that innocent people may sometimes be reasonably suspected of a crime. Nevertheless, courts must remain vigilant and not shirk their role in evaluating police action for Charter compliance, particularly where the only effective check on that action is after‑the‑fact independent judicial assessment.
The police cannot simply draw on their experience in the field to create broad categories of “suspicious” behaviour into which almost anyone could fall. Such an approach risks transforming the already flexible standard of reasonable suspicion into the “generalized” suspicion standard that has been rejected in the past. In order to uphold and reinforce privacy rights, courts must not fail to hold police accountable when they stray from the proper exercise of their power and draw broad inferences of criminality without specific, individualized suspicion that can be objectively assessed. The constellation of facts grounding reasonable suspicion must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. Further, exculpatory, neutral and equivocal factors form part of the constellation of relevant factors under the reasonable suspicion standard and cannot be disregarded by either the police or the court. The reasonable suspicion determination must be made from the perspective of a reasonable person standing in the shoes of the investigating officer. However, even while undertaking its objective assessment from an officer’s perspective, a court should not show that officer’s testimony any particular deference. The danger of placing undue emphasis on an officer’s testimony is that a court may inadvertently subvert the objective component of the reasonable suspicion standard. The objective analysis of reasonable suspicion is often largely dependent on a police officer’s personal observations. Credibility is therefore pertinent not only to the officer’s subjective belief; it also affects the reasonableness of the officer’s suspicion. As a result, an appellate court should keep a trial judge’s credibility concerns in mind when undertaking its assessment of whether an officer had objective grounds on which to base his suspicion.
The police lacked the requisite reasonable suspicion to conduct the dog‑sniff search in this case. Specifically, the police lacked objective grounds on which to justify deploying a sniffer dog to search the accused’s vehicle. The trial judge committed neither an error of law nor a palpable and overriding error of fact. The trial judge understood the reasonable suspicion standard. Nothing in the trial judge’s reasons indicates that he did not know that the experience and training of police officers is an important consideration. The police in this case relied on markers that apply broadly to innocent people, or markers only of generalized suspicion which were at best highly equivocal. Taking into account the officer’s training and experience, the totality of the circumstances, including neutral and equivocal factors, and showing due deference to the trial judge’s credibility concerns with regard to the officer’s observations, the collective significance of these factors is not capable of supporting a logical inference of criminal behaviour. Therefore, the Court of Appeal had no basis on which to interfere with the trial judge’s conclusion. Ultimately, the constellation of factors available to the police was insufficient to ground reasonable suspicion and the accused’s Charter rights were breached as a result. Furthermore, the admission of the evidence would bring the administration of justice into disrepute and should be excluded.
Cases Cited
By Moldaver J.
Referred to: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220; 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. Belnavis, [1997] 3 S.C.R. 341; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Evans, [1996] 1 S.C.R. 8; Florida v. Jardines, 133 S.Ct. 1409 (2013); R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Yeh, 2009 SKCA 112, 337 Sask. R. 1; R. v. Schrenk, 2010 MBCA 38, 255 Man. R. (2d) 12; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3; R. v. Turpin, 2010 SKQB 444, 365 Sask. R. 67, aff’d 2012 SKCA 50, 393 Sask. R. 184; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527; R. v. Tran, 2007 BCCA 491, 247 B.C.A.C. 109; R. v. Whyte, 2011 ONCA 24, 272 O.A.C. 317.
By LeBel J. (dissenting)
R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Chehil, 2013 SCC 49. [2013] 3 S.C.R. 220; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Yeh, 2009 SKCA 112, 337 Sask. R. 1; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. Morrissey (1995), 22 O.R. (3d) 514; R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 10 (b), 24(2) .
Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2) .
Traffic Safety Act, S.S. 2004, c. T‑18.1.
Authors Cited
Sankoff, Peter, and Stéphane Perrault. “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Klebuc C.J. and Richards and Caldwell JJ.A.), 2011 SKCA 64, 371 Sask. R. 291, 86 C.R. (6th) 78, 239 C.R.R. (2d) 218, [2011] 12 W.W.R. 102, 518 W.A.C. 291, [2011] S.J. No. 328 (QL), 2011 CarswellSask 351, setting aside a decision of McLellan J., 2009 SKQB 415, 342 Sask. R. 281, 202 C.R.R. (2d) 11, [2009] S.J. No. 625 (QL), 2009 CarswellSask 695, and remitting the matter to trial. Appeal dismissed, McLachlin C.J. and LeBel, Fish and Cromwell JJ. dissenting.
Barry P. Nychuk, for the appellant.
Douglas G. Curliss, Q.C., for the respondent.
Amy Alyea, for the intervener the Attorney General of Ontario.
Michael A. Feder and H. Michael Rosenberg, for the intervener the British Columbia Civil Liberties Association.
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.
The judgment of Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered by
Moldaver J. —
I. Introduction
[1] In this case, Benjamin MacKenzie takes issue with a police sniffer-dog search of his vehicle that occurred during the course of a highway traffic stop. He says the police lacked reasonable suspicion that he was involved in a drug-related offence when they had their dog sniff his vehicle. Asserting that the sniff was thus an unconstitutional search, he seeks to have the 31.5 lbs of marihuana found in the rear hatch of his car excluded, leaving the Crown with no case against him. The trial judge agreed with Mr. MacKenzie and excluded the evidence, but the Court of Appeal for Saskatchewan reversed the decision. Because the police did have reasonable grounds to suspect that Mr. MacKenzie was involved in a drug-related offence, I am satisfied the sniff was lawful. I would accordingly dismiss the appeal.
[2] In this appeal, and in the companion case of R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, we seek to clarify certain principles concerning sniffer-dog searches first articulated 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. Those cases established that the police may use sniffer dogs for routine crime prevention in contexts where individuals have a reasonable, but lesser, expectation of privacy, such as bus terminals and schools, and the police have reasonable grounds to suspect that a search will reveal evidence of a criminal offence. In the present cases, which concern analogous contexts of an airport and a motor vehicle on a public highway, we consider the meaning of the term “reasonable suspicion” and the types of evidence a court can look to in deciding whether the standard of “reasonable suspicion” has been met. We also consider how the police should proceed when a dog provides a positive indication, or “alerts”, to the presence of a targeted substance.
[3] I have had the benefit of reading the reasons of Karakatsanis J. in Chehil. My colleague’s efforts have spared me the heavy lifting in this case, as the broader questions that I have just mentioned are fully canvassed in her reasons. I therefore concentrate here on the application of the reasonable suspicion standard to the facts of this case. I also address certain additional issues that arise in the context of a sniffer-dog search that occurs subsequent to a roadside stop, as occurred here. The Court did not address those issues in Kang-Brown and A.M. and the facts of this case present an occasion for clarification of the applicable principles.
II. Facts
[4] Mr. MacKenzie’s case did not proceed to trial. In a pre-trial motion, he moved to have the marihuana excluded from evidence on the basis of arguments grounded in his s. 8 right against unreasonable search and seizure and his s. 9 right against arbitrary detention under the Canadian Charter of Rights and Freedoms . The evidence at the voir dire consisted of the testimony of Constables Sperlie and Warner of the Royal Canadian Mounted Police (“RCMP”). The appellant, Mr. MacKenzie, did not testify, nor did he call evidence.
A. The Initial Stop
[5] On September 12, 2006, Constables Sperlie and Warner were in a marked police cruiser monitoring traffic on the Trans-Canada Highway just west of Caronport, Saskatchewan. At about 7:00 p.m., the constables observed the appellant’s maroon Nissan travelling in an easterly direction towards them. As the appellant’s car came over the crest of a hill, the police radar indicated that it was travelling at a speed of 112 kilometres per hour — a mere two kilometres per hour over the posted limit. At this point, however, the officers saw the front end of the appellant’s car “pitching forward like it was slowing down very fast” (A.R., vol. II, at p. 4). They attributed this to the sudden and rapid deceleration of the car from 112 kilometres per hour to 89 kilometres per hour — the speed at which the car was travelling when it passed their police cruiser.
[6] The officers pursued the appellant. Two kilometres down the road, they spotted his car parked on the side of the highway. The officers had not signalled him to stop. They wanted to give him a warning about speeding, even though they were unsure of precisely how fast he had been driving.
[7] During cross-examination, Cst. Warner explained that it was not his practice to write tickets for drivers going only two kilometres per hour above the speed limit. However, in cases like the present one where he was unable to get a reading on precisely how fast the vehicle was travelling, he would pull the driver over in order to “provide a warning of some type, either written or verbal” (A.R., vol. II, at p. 65).
[8] The appellant was the only occupant of the car. As Cst. Sperlie approached the driver’s window, the appellant — unprompted — said “he was sorry, he knew he was speeding, he would slow down” (A.R., vol. II, at p. 5). Cst. Sperlie confirmed that “the reason for the stop was [the police] believed he was speeding” (ibid.). Upon request by Cst. Sperlie, the appellant produced his licence and registration.
B. Constable Sperlie’s Observations of the Appellant
[9] When the appellant was handing over his licence and registration documents, Cst. Sperlie noticed that the appellant’s hands “were shaky, they were trembling” (A.R., vol. II, at p. 6). He further noted that the appellant “appeared to be sweating” with “beads of sweat forming on his forehead”, that “his breathing was very rapid”, and that “his carotid artery was pulsing very rapidly” (ibid.).
[10] The appellant’s strained breathing led Cst. Sperlie to ask the appellant if he was “all right”, at which point the appellant sought and received permission to take his asthma medication (A.R., vol. II, at p. 6). According to Cst. Sperlie, the medication did not result in any “noticeable decrease” in the appellant’s rapid breathing (ibid.). Cst. Sperlie further noticed that the appellant’s eyes “had a pinkish colour to them” (ibid.).
[11] According to Cst. Sperlie, the appellant’s nervous reaction continued even after he was told that he was being investigated for a minor speeding infraction. Although he had been involved in thousands of traffic stops, Cst. Sperlie stated that “Mr. MacKenzie’s level of nervousness was extremely high, it was probably some of the highest nervousness that I’ve seen in a traffic stop” (A.R., vol. II, at p. 11).
[12] When questioned about the details of his trip, the appellant replied that he was returning to Regina from Calgary. After claiming initially that he had left Regina to go to Calgary the preceding day, he corrected himself, stating instead that he had left Regina two days ago. According to Cst. Sperlie, “[h]e seemed to be somewhat confused on when he had traveled to Calgary” (A.R., vol. II, at p. 7).
[13] While Cst. Sperlie was talking to the appellant about his trip, Cst. Warner advised Cst. Sperlie that he had performed a record check on the appellant and that the result was “all negative” (A.R., vol. II, at p. 7). By now, Cst. Sperlie suspected that the appellant was involved in an offence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA ”).
[14] As a consequence, Cst. Sperlie asked the appellant to step out of the vehicle, after which he advised the appellant of the basis for his suspicions. Cst. Sperlie recalls telling the appellant that he was “going to temporarily detain him, for further investigation” (A.R., vol. II, at p. 8) and then advised him of his Charter rights, including his right to counsel under s. 10 (b). The appellant said he understood his rights and declined to call a lawyer.[1]
[15] Cst. Sperlie testified that the inferences he drew from his observations of the appellant stemmed from his training and experience. He had completed the usual standardized field sobriety testing course, including a half-day lecture on different types of drugs and their observable effects on humans. He further stated that he had attended an RCMP drug “pipeline course” where he learned about different indicators and behaviours that are commonly exhibited by highway travellers who are involved in criminal conduct, and a second week-long “advanced pipeline course”, where he gained further insight into traffic stop scenarios, including training about hidden compartments in vehicles.
[16] Added to this was Cst. Sperlie’s experience in the field. He testified that he had been involved with “probably in excess of 5,000” traffic stops and discovered drugs and other controlled substances on “about 150” occasions, “[t]he vast majority of those [being] highway traffic stops” (A.R., vol. II, at pp. 9-10). He was not questioned by the Crown or the defence about the number of times he had searched vehicles for drugs and come away empty-handed. Nor was he seriously challenged in cross-examination about his training and experience as a police officer or the factors used by the police to detect the behavioural characteristics and practices of drug users and traffickers.
[17] In line with his training and experience, Cst. Sperlie testified that there were a number of factors in the appellant’s case that led him to believe that the appellant might be involved in an offence under the CDSA . The factors upon which he relied are found in the following excerpts from his testimony:
(1) Erratic Driving
A: . . . I’ve seen driving behaviours with regards to erratic driving. Commonly when a vehicle approaches the police vehicle, if they’re exceeding the speed limit, that vehicle will generally slow down to the speed limit and continue past the police. In this case I observed a very erratic reaction, over reaction to police presence, where the vehicle actually slowed down to 20 kilometres per hour under the speed limit and then continued at that, and in fact the vehicle pulled over to the side of the road before we even got behind it and put the lights on.
. . .
A: . . . The erratic driving to me was -- was certainly an overreaction, something that I have experienced in the past during the course of my -- my traffic duties, as -- as an overreaction with people that are trying to hide something from the police. [A.R., vol. II, at pp. 10-11]
(2) Extreme Nervousness
A: Yeah, in -- in all the traffic stops that I’ve been involved with I’ve seen different behaviours and stuff like that, nervousness being one of them. In every traffic stop there’s a certain level of nervousness, and that -- that nervousness quickly diminishes early on in the stop. I’ve seen in the investigations where we’ve detected a traveling criminal, or somebody that’s involved in criminality, that nervousness does not diminish, it stays very elevated, and in some cases increases in elevation up until the point when we discover what it is the person is -- is trying to hide from us. . . .
. . .
A: . . . Mr. MacKenzie’s level of nervousness was extremely high, it was probably some of the highest nervousness that I’ve seen in a traffic stop. And what is significant about this nervousness is when I told him the reason -- the relatively minor reason for the stop, this nervousness did not diminish, it -- it stayed very, very elevated. . . .
. . .
A: . . . there was no other reason for him -- that we located, for him to be nervous. He wasn’t a suspended driver, you know, he didn’t forget to renew his driver’s licence, or anything like that, typical things where I will see people that are nervousness . . . . [A.R., vol. II, at pp. 10-12 and 14]
(3) Physical Signs Consistent With the Use of Marihuana
A: . . . Mr. MacKenzie had a pinkish colour to his eyes, and on the SFST course, the standardized field sobriety testing course, during that half day lecture on drugs one of the -- one of the symptoms that they taught us about cannabis marihuana was it will -- it can cause a reddish or a pink coloration to the -- to the eyes, and I did see a pink coloration in Mr. MacKenzie’s eyes. The other thing they taught us too is that marihuana use can cause muscle tremors that you can see in the hands or the leg, eye tremors, that type of thing. And those two sym -- the tremors I saw in his hand I’ve also seen as a -- as an indication of a very elevated level of nervousness. During my investigations involving drugs on the side of the highway, those primarily involved cannabis marihuana, and I’ve talked to those people that use cannabis marihuana about the effects that it has on them, things like that, and I’ve seen the pink eyes that they have, and they tell me that they’ll frequently use products like Visine to get rid of that pink colour so that nobody knows that they’ve -- they’ve used marihuana. I’ve also seen people that were high on marihuana and they did have the muscle tremors, eyelid tremors, leg tremors, finger tremors. [A.R., vol. II, at p. 12]
(4) Travel on a Known Drug Pipeline
A: . . . Mr. MacKenzie told me that he was coming from Calgary and that he was traveling to Regina. I do know Calgary, through my experience as a peace officer, as being a well known source of controlled drugs and substances, and that the -- the typical movement of drugs in Western Canada goes from west to east, and certainly some of those drugs come from Calgary to -- to Regina. Mr. MacKenzie also appeared somewhat confused with regards to when he went to Calgary. He -- I’ve experienced in the past where people that are involved in criminality on the highway, they try to make up a story very quickly at the side of the road, to try to prevent being detected, to have their -- the activity that they’re involved in detected by police, and a lot of times their story will start to get messed up and they don’t -- they don’t -- they’re trying not to say that they just drove out to a place real quick, to pick up drugs and come back to Regina, they don’t want to say that to the police. So they’ll start to try to make the story up, and I’ve seen that in the past, where they get confused on the story. [A.R., vol. II, at p. 13]
C. The Dog Sniff of the Appellant’s Car
[18] After the appellant confirmed that he understood the basis for his detention and his Charter rights, Cst. Sperlie asked him if he would consent to a search of his car. When the appellant declined to consent, Cst. Sperlie turned to his canine companion, Levi, a “single-profile” narcotic detector dog who had been assigned to him in his capacity as a traffic officer.
[19] Levi conducted a perimeter search of the car and by his actions, indicated the scent of drugs in the rear hatch area. Cst. Sperlie testified that Levi “became very focused on that back part of the vehicle, he became very excited, his tail was wagging” (A.R., vol. II, at p. 21). Cst. Sperlie then indicated to Cst. Warner that “it’s positive and to arrest for CDSA ” (A.R., vol. II, at p. 22).
D. The Arrest and Search Incident to Arrest
[20] Once the appellant was arrested, Cst. Sperlie began a manual search of the car. He found several gift-wrapped boxes in the rear hatch. Cst. Sperlie engaged the appellant in a conversation about what was in them, which ultimately led to the revelation that they contained marihuana. Cst. Sperlie then directed Cst. Warner to re-arrest the appellant for possession for the purpose of trafficking.
[21] Once back at the RCMP detachment, the police determined the appellant was in possession of 31.5 lbs of marihuana with a street value of between $57,000 and $95,000. The appellant was duly charged with possession of a controlled drug for the purpose of trafficking under s. 5(2) of the CDSA .
III. Relevant Constitutional Provisions
[22] The relevant Charter provisions read as follows:
Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
IV. Judicial History
A. Court of Queen’s Bench for Saskatchewan (2009 SKQB 415, 342 Sask. R. 281)
[23] On a pre-trial motion brought by the appellant to have the marihuana excluded from evidence under s. 24(2) of the Charter , the trial judge identified three factors that Cst. Sperlie relied on “to detain [the appellant] temporarily for further investigation under the [CDSA ]”: (1) the appellant’s very high level of nervousness; (2) the pinkish hue of the appellant’s eyes (consistent in the officer’s opinion with the use of marihuana); and (3) the appellant’s course of travel from Calgary, a known source of narcotics, to Regina, a known destination of sale (an opinion for which “[n]o evidence was offered” in support) (para. 32).
[24] Turning to the sniff search performed by Levi, and bearing in mind the “reasonable suspicion” standard set by this Court in Kang-Brown and A.M., the trial judge concluded: “In my view, the opinions expressed by Cst. Sperl[i]e did not meet the ‘reasonable suspicion’ standard required for a valid sniffer dog search[,] at best he was acting on a hunch” (para. 47 (emphasis added)).
[25] The trial judge further observed that although the two officers were from northern Saskatchewan, they “claim to have been on routine traffic patrol with a ‘sniff dog’ in the southern part of the province” (para. 47). Noting that the appellant was only travelling two kilometres per hour over the posted speed limit when the officers observed him, the trial judge stated:
I have a concern that the two officers may have been in the area with 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. Sperl[i]e, is a common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperl[i]e were enhanced after the drugs were located. [Emphasis added; para. 47.]
[26] Having determined that the marihuana was obtained in a manner that violated the appellant’s privacy rights under s. 8 of the Charter , the trial judge excluded it from evidence for the reasons given by Binnie J. in Kang-Brown, at para. 104. In the end, the trial judge reasoned that the police had abused the power afforded to them and initiated a warrantless search on inadequate grounds.
[27] With the marihuana excluded from evidence, the Crown could not prove its case. Hence, the trial judge directed that a verdict of not guilty be entered against the appellant.
B. Court of Appeal for Saskatchewan (2011 SKCA 64, 371 Sask. R. 291)
[28] The Court of Appeal considered the trial judge’s comment about the sincerity of Cst. Sperlie’s subjective belief when he deployed Levi and the fact that he may have “enhanced” his observations of the appellant “after the drugs were located” (para. 20). In the court’s view, if the trial judge “had intended to reject the constable’s testimony, then he would have done so in clear terms” (para. 21). But as he had not done so, the court proceeded on the basis that the trial judge was satisfied that Cst. Sperlie had the subjective belief he needed to deploy Levi.
[29] As for the trial judge’s conclusion that Cst. Sperlie did not have reasonable suspicion that the appellant was involved in a drug-related offence, the court determined that the trial judge erred in discounting the inferences drawn by Cst. Sperlie as mere “opinion”. The inferences drawn by Cst. Sperlie were based on his “issue-specific knowledge, training and experience” and their probative value was to be assessed “not in terms of unsubstantiated opinion” but as “informed opinion” in line with Cst. Sperlie’s training and experience (para. 33 (emphasis in original)).
[30] In the end, while acknowledging that the case was “very close to the line”, the court was satisfied that the “constellation of objective factors” was sufficient to meet the “reasonable suspicion standard” (para. 37). It followed that the sniffer-dog search was reasonable and conformed to the requirements of s. 8 of the Charter . Hence, the marihuana was lawfully obtained and there was no need to consider s. 24(2) . In light of this conclusion, the court set aside the appellant’s acquittal and remitted the matter to trial.
V. Analysis
A. Introduction
[31] This case concerns a sniff search by a drug-detection dog of a motor vehicle parked on the side of a public highway, having been pulled over for a regulatory infraction. That is the context against which the search in question is to be assessed. This Court has held that motor vehicles, though emphatically not Charter -free zones, are places in which individuals have a reasonable but “reduced” expectation of privacy (R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 38; see also R. v. Wise, [1992] 1 S.C.R. 527, at p. 534). The privacy context here is thus analogous to the bus terminal in Kang-Brown and the school in A.M., where the use of police sniffer dogs on the basis of reasonable suspicion was found to pass Charter muster. As a result, I am satisfied that the police here were entitled to enlist the aid of a sniffer dog for crime prevention on the same basis.
[32] Neither Chehil nor this case “require a category-based decision on the constitutionality of the use of sniffer dogs by the police that will apply in all circumstances” (Kang-Brown, at para. 137, per Deschamps J.). We continue to approach the use of this police investigative technique one case at a time, in each instance having regard to the context of the situation, balancing the extent of any privacy interest and the state’s countervailing interest in law enforcement. This case, for example, “does not involve explosives, guns or other public safety concerns” (Kang-Brown, at para. 18, per Binnie J.; see also A.M., at para. 3, per Binnie J.). Nor does it involve the use of sniffer dogs in contexts such as the home, where courts have long recognized a heightened privacy interest (see, e.g., R. v. Evans, [1996] 1 S.C.R. 8; Florida v. Jardines, 133 S.Ct. 1409 (2013)).
[33] Because the sniff, arrest, and search incident to arrest occurred after the appellant was pulled over for speeding, it is important to identify the relevant legal authority for each of these actions, having regard to what the police knew and when they knew it (R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 4). Accordingly, I propose to begin my analysis with the initial stop for speeding and will then consider both the appellant’s detention and the searches. Though the courts below did not approach the case in the same manner, I do so for purposes of clarifying the framework that guides such inquiries. Nevertheless, and as I stated at the outset, the principal question in this appeal remains whether the police had reasonable grounds to suspect that the appellant was involved in a drug-related offence.
B. The Detention
[34] Counsel for the appellant acknowledged during the voir dire that the police had the authority to detain the appellant to investigate for speeding pursuant to The Traffic Safety Act, S.S. 2004, c. T-18.1. Counsel argued, however, that the further detention of the appellant after Cst. Sperlie had delivered his warning fell afoul of this Court’s decision in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59.
[35] Mann held that the police are entitled to detain a person for investigative purposes where they have reasonable grounds to suspect that the individual is connected to particular criminal activity and that such a detention is reasonably necessary in the circumstances (para. 45). In essence, the appellant’s argument here is that there was no basis to detain him.
[36] It is important that the detention and search issues in this case be kept analytically distinct because they stem from different police powers and must respect different Charter rights (R. v. Yeh, 2009 SKCA 112, 337 Sask. R. 1 , at paras. 48-49; R. v. Schrenk, 2010 MBCA 38, 255 Man. R. (2d) 12, at para. 105). We have never suggested that a sniffer-dog search is authorized as a search incidental to a detention. On the contrary, the detention and the sniff must be independently justified, even if both are based on the same underlying facts that led police to reasonably suspect that the appellant was involved in a drug-related offence.
[37] In