Court headnote

R. v. Kang-Brown
Collection
Supreme Court Judgments
Date
2008-04-25
Neutral citation
2008 SCC 18
Report
[2008] 1 SCR 456
Case number
31598
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Alberta
Subjects
Constitutional law
Professional law
Notes
SCC Case Information: 31598
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Kang‑Brown,
[2008] 1 S.C.R. 456, 2008 SCC 18
Date: 20080425
Docket: 31598
Between:
Gurmakh Kang-Brown
Appellant
and
Her Majesty The Queen
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of Quebec, Attorney General
of British Columbia, Criminal Lawyers’ Association (Ontario) and
Canadian Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 17)
Partially Concurring
Reasons: (paras. 18 to 105)
Dissenting Reasons:
(paras. 106 to 211)
Dissenting Reasons:
(paras. 212 to 256)
LeBel J. (Fish, Abella and Charron JJ. concurring)
Binnie J. (McLachlin C.J. concurring)
Deschamps J. (Rothstein J. concurring)
Bastarache J.
______________________________
R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18
Gurmakh Kang‑Brown Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Ontario, Attorney General of
Quebec, Attorney General of British Columbia, Criminal
Lawyers’ Association (Ontario) and Canadian Civil
Liberties Association Interveners
Indexed as: R. v. Kang‑Brown
Neutral citation: 2008 SCC 18.
File No.: 31598.
2007: May 22; 2008: April 25.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for alberta
Constitutional law — Charter of Rights — Search and seizure — Sniffer dogs — Bus stations — Police officer involved in special operation designed to detect drug couriers at bus stations observing suspicious passenger disembarking from bus — Officer approaching passenger and asking to inspect contents of his bag — Passenger starting to open bag when officer reached hand out — Passenger pulling bag back and acting nervously — Officer signaling to another officer with sniff dog to approach — Dog indicating presence of drugs in passenger’s bag — Passenger arrested and drugs found on him and in his bag upon search — Whether dog sniff constituted search — If so, whether search reasonable — If search unreasonable, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Police — Police powers — Investigative tools — Sniffer dogs — Whether common law powers of police to investigate crime include use of sniffer dogs.
An RCMP officer involved in a special operation designed to detect drug couriers at bus stations observed a bus arriving at the station and the accused getting off. The accused gave the officer an elongated stare and went into the station lobby. He then turned and looked back at the officer, who found this behaviour suspicious. The officer eventually approached the accused, identified himself and told him that he was not in any trouble and was free to go at any time. The officer asked the accused if he was carrying narcotics. The accused said no. The officer then asked to look in the accused’s bag. The accused put his bag down and was unzipping it when the officer went to touch the bag. The accused pulled it away, looking nervous. At that point, the officer signaled another officer with a sniffer dog to approach. The dog sat down, indicating the presence of drugs in the bag. The accused was arrested for possession of and/or trafficking in drugs. The accused was searched and drugs were found on his person and in his bag. The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and entered a conviction. She held that the odours from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy and that s. 8 of the Canadian Charter of Rights and Freedoms was accordingly not engaged. The Court of Appeal upheld the conviction.
Held (Bastarache, Deschamps and Rothstein JJ. dissenting): The appeal should be allowed.
1. Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion.
Per Bastarache J.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of generalized suspicion.
Per LeBel, Fish, Abella and Charron JJ.: There was no authority at common law for the sniffer‑dog search in this case.
2. Per curiam: The dog sniff of the passenger’s bag at the bus station amounted to a search within s. 8 of the Charter .
3. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: The sniffer‑dog search of the passenger’s bag at the bus station violated s. 8 of the Charter .
Per Bastarache, Deschamps and Rothstein JJ.: The sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8 of the Charter .
4. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: In the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter .
Per Bastarache, Deschamps and Rothstein JJ.: There is no need to determine whether the evidence should be excluded pursuant to s. 24(2) of the Charter because the sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8 .
_______________
Per LeBel, Fish, Abella and Charron JJ.: The use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter , and absent justified authority for such a search in a statute or at common law, the sniffer‑dog search breached s. 8 . Given the seriousness of the breach, the evidence should be excluded under s. 24(2) of the Charter . [1] [17]
It is undisputed that the search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime, the threshold for the exercise of police powers should not be lowered to one of “reasonable suspicion” since, to do so, would impair the important safeguards found in s. 8 against unjustified state intrusion. The existing and well‑established standard of “reasonable and probable grounds” should be applied. In this case, the search did not meet this standard. [1]
Any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. Jurisprudence‑based solutions which would openly or implicitly advocate the creation of new common law rules reducing the standard of scrutiny of state intrusion into privacy do not represent an appropriate exercise of judicial power in the circumstances of this case. When rights and interests as fundamental as personal privacy and autonomy are at stake, the constitutional role of the Court suggests that the creation of a new and more intrusive power of search and seizure should be left to Parliament to set up and justify under a proper statutory framework. [4] [6] [11] [13]
Per McLachlin C.J. and Binnie J.: A “sniff” amounts to a s. 8 search under the Charter because of the significance and quality of the information obtained about concealed contents, whether such contents are in a suspect’s belongings or carried on his or her person. (In the present case, the positive “sniff” was itself considered sufficient by the RCMP to arrest the accused before even physically checking his bag to confirm the present of illegal drugs.) However, because of the minimal intrusion, contraband‑specific nature and pinpoint accuracy of a sniff executed by a trained and well‑handled dog, a proper balance between an individual’s s. 8 rights and the reasonable demands of law enforcement would be struck by permitting such “sniff” searches on a “reasonable suspicion” standard without requiring prior judicial authorization. The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called. [26] [58] [97]
Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog. [21]
The difficult issue raised by this appeal is not the existence of a police power to investigate crime using sniffer dogs or any other lawful devices or technology in places where the police are lawfully entitled to be, but the extent to which the use of such devices or techniques or animals is permitted by s. 8 of the Charter and, if so, in what circumstances. It is emphatically the duty of the courts, not Parliament, to resolve the issue of Charter compliance. [23]
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. Because sniffer‑dog searches are conducted without prior judicial authorization, the after‑the‑fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. Here, the police action was based on speculation. [26] [75]
It is common ground that what occurred at the bus station was a warrantless search, and therefore presumptively unreasonable. However, had the dog‑sniff search been based on reasonable suspicion, the dog’s positive alert would have given the police the grounds to proceed on the spot with a warrantless search of the accused’s bag because of the dog’s demonstrated accuracy 90 to 92 percent of the time. The RCMP accept that different dogs possess different abilities and track records and that “sniffer dogs” are not interchangeable. Proof must be made of the accuracy of a particular animal before police reliance is justified. This is another matter that should be established in the evidence (as it was here). In any event, given the dog alerts to the odour of narcotics, not to their actual presence, the arrest of the accused in this case was premature. The police should first have confirmed the presence of narcotics by a hand search of the bag. If reasonable cause had existed, and given the positive alert and the dog’s history of accuracy, the RCMP would have been entitled to perform such a verification search on the spot and without prior judicial authorization. [48] [99] [101]
The trial judge erred in principle by incorporating and relying on much of her s. 8 privacy analysis in her s. 24(2) analysis, thereby engaging in a species of double‑counting, and undermining the deference that would otherwise be owed to her conclusion to admit the evidence. The trial judge having been reversed on that aspect of her privacy analysis (for the reasons set out in R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19), the trial judge’s continuing denial of a serious privacy interest should not be resuscitated as an independent ground to help the Crown over its s. 24(2) hurdle. While the evidence obtained in the illegal search was non‑conscriptive, and was found by the trial judge to have been obtained by the RCMP in good faith, the evidence should nonetheless be excluded. The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public. In the sniffer‑dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization. The only effective check on that authority is the after‑the‑fact independent assessment and, on the facts here, the police initiated a warrantless search on inadequate grounds. [103-104]
Per Deschamps and Rothstein JJ. (dissenting): The use of a sniffer dog to check the accused’s bag in a public bus terminal on the basis of a reasonable suspicion that evidence of an offence would be discovered was proper and did not constitute an unreasonable search or seizure. [107]
The accused had a reasonable expectation of privacy that engaged s. 8 of the Charter . Where the applicability of s. 8 is at issue, failure to consider whether the claimant had a reasonable expectation of privacy that engages s. 8 may constitute an error of law. If the trial judge carries out the reasonable expectation of privacy analysis, however, deference will be owed to his or her finding. Here, the trial judge erred in analysing the reasonableness of the accused’s expectation of privacy by incorrectly finding that the purpose of the use of the sniffer dog was to identify odours outside of his bag. It is significant that the odours in and emanating from the accused’s bag were imperceptible to humans; hence the need for a dog to detect the narcotics. This is not a case in which the police were relying on their own senses. Rather, they used the dog to obtain information about the possible presence of a controlled substance inside the accused’s bag. By detecting what was in the air in the vicinity of the accused’s bag, the dog functioned as an investigative tool that allowed the police to conclude, in light of the dog’s 90 to 92 percent success rate, that there was a controlled substance inside the bag. [143] [173-174] [210]
The dog’s positive indication allowed for a strong, immediate and direct inference to be made about the contents of the accused’s bag, and this involved a certain intrusion on informational privacy. The right to informational privacy protects biographical information, including the very nature of the information. In a case involving this right, the relevant elements of informational privacy include intimate personal details about an accused, such as his or her having come into contact with a controlled substance. The sniffer dog’s intrusion on the accused’s right to informational privacy thus suggests that the accused had an objectively reasonable expectation of privacy. Other factors support that conclusion. The accused owned and used the bag, he was present at the time of the search, the bag was one that could be carried close to the body, and he did not abandon it or leave it unattended. The conduct of the police in this case also intruded to a certain extent on the accused’s right to territorial privacy: members of the public have historically used bus terminals to travel as a means of exercising their freedom of mobility, security screening was not done routinely in this terminal and there were no signs indicating that a luggage search was possible. Nevertheless, the accused’s objectively reasonable expectation of privacy in this case was not high. The search in the present case was conducted in a public place. Moreover, the search technique employed by the police was only minimally intrusive. The accused also showed that he had a subjective expectation of privacy as evidenced by the facts that he had carried his bag close to his body and that he had sought, both verbally and physically, to control access to it. [175‑178]
The search in this case was justified on the basis of the reasonable suspicion standard. This standard can be applicable only where there are circumstances that serve as safeguards against unreasonable intrusions on privacy and ensure a balance that affords proper protection. Consequently, a reasonable suspicion standard may be sufficient where the investigative technique is relatively non‑intrusive and the expectation of privacy is not high. To determine whether the reasonable suspicion standard is met in a given case, the totality of the circumstances must be considered. [168] [195]
Here, the police were clearly acting in pursuit of their common law duty to investigate and prevent crime when they observed and questioned the accused and, subsequently, when they used the dog to detect the presence of narcotics. The powers associated with this duty were used in a way that met the standard of what is reasonably necessary in light of the totality of the circumstances. Given that the accused had a reasonable expectation of privacy that engaged s. 8 , it would not have been reasonable for the police to use a sniffer dog to check his bag if they had no grounds for doing so. Although the trafficking of illegal drugs via public transportation is a serious problem, no evidence was adduced in this case that would support the random use of a sniffer dog to check the luggage of all bus travellers. However, with respect to the accused, the police had grounds for using the dog. The observation and questioning of the accused by the police officer resulted in “objectively discernible facts” that, in combination, aroused a reasonable suspicion that he was in possession of a controlled substance. It was only once the officer entertained reasonable suspicion that the well‑trained and highly accurate sniffer dog became involved and was used as an investigative tool in furtherance of the police law enforcement duty. Not only did the accused have a lower expectation of privacy in the context of this case, but a number of safeguards were in place that limited the intrusiveness of the use of the sniffer dog. The dog was used in a public place and could only detect drugs that were identified as posing serious problems. It was used as a last resort in a progressive investigation and as a minimally intrusive investigative tool. Moreover, the police would not have been able to obtain a warrant, as the accused’s behaviour suggested that he was growing increasingly nervous and was preparing to exit the terminal. In these circumstances, the reasonable suspicion standard constitutes a reasonably necessary, and therefore justifiable, use of police powers because it strikes an appropriate balance between the accused’s reasonable privacy interest and society’s interest in interdicting illicit substances carried on public transportation. [182-183] [185] [187] [189] [191]
The sniffer‑dog search was conducted in a reasonable manner. In light of the totality of the circumstances, the police made limited and prudent use of a law enforcement tool that was available to them. Accordingly, the use of the sniffer dog in this case was in full compliance with s. 8 of the Charter . [197-199]
It is clear from the evidence of the high accuracy rate of the dog in question that its positive indication of the presence of narcotics provided the police with reasonable grounds to arrest the accused and to search his bag by hand in a search incidental to arrest. Therefore, the accused’s s. 8 rights were not infringed. [200]
Per Bastarache J. (dissenting): The dog sniff search constituted a search within the meaning of s. 8 of the Charter . The accused had a reasonable, but limited, expectation of privacy in his luggage at the time the dog sniff occurred. Here, both a subjective and an objective expectation of privacy have been established. A subjective expectation of privacy is evidenced by the protective manner in which the accused carried his bag and his refusal to allow a voluntary search to occur. From an objective perspective, it is significant that the odour identified by the dog was not accessible to humans and that its detection provided immediate information about the contents of the accused’s luggage. Although the accused did have a reasonable expectation of privacy in his luggage, it was significantly reduced owing to the location at which the search occurred. In a bus depot, a passenger is voluntarily using the terminal to access a public mode of transportation, and he or she is aware that the state has an interest in ensuring that that transportation system is both secure and not being used to further criminal activity. Nonetheless, privacy interests do not have to be of the highest form to attract s. 8 protection. [227-228] [231]
In this case, the requisite balancing of individual rights with the state interest in preventing and investigating crime supports a finding that a sniff search of luggage using a police dog will not be in violation of s. 8 of the Charter where the police are acting on a reasonable suspicion about the committal of a crime. The reduced expectation of privacy at public terminals, the minimal intrusion caused by the search itself, and the effectiveness of sniffer‑dog searches all support a standard of “reasonable suspicion”. In some situations, like this one, reasonable suspicion will relate to a particular individual, and the police will have gathered, through observation or other means, sufficient information about a specific person to justify a sniff search of his or her bags. Although the police in this case based their search on individualized suspicion, it would have been equally permissible for them to use sniffer dogs to search the luggage of all of the passengers at the bus station that day, providing that the police had a reasonable suspicion that drug activity might be occurring at the terminal, and reasonably informed passengers were aware of the fact that their baggage may be subject to a sniffer‑dog search. [215] [243-244]
Because the accused’s baggage was subjected to a sniffer‑dog search as a result of individualized suspicion, it is unnecessary to determine conclusively whether a random search of his bag would have been constitutional. The trial judge found that the officer’s suspicion with respect to the accused was in place before the sniff occurred and was based on objective facts. There is no reason to interfere with her finding on that point, and the search was therefore reasonable within the meaning of s. 8 of the Charter . [255]
Cases Cited
By LeBel J.
Referred to: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Oakes, [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Wong, [1990] 3 S.C.R. 36; Illinois v. Caballes, 543 U.S. 405 (2005).
By Binnie J.
Applied: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; referred to: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Dinh (2003), 330 A.R. 63, 2003 ABCA 201; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Waterfield, [1963] 3 All E.R. 659; Dedman v. The Queen, [1985] 2 S.C.R. 2; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney, [1999] 1 S.C.R. 652; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Mercer (2004), 45 Alta. L.R. (4th) 144, 2004 ABPC 94; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Cahill (1992), 13 C.R. (4th) 327; Alabama v. White, 496 U.S. 325 (1990); R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Ferris (1998), 126 C.C.C. (3d) 298; R. v. Lal (1998), 113 B.C.A.C. 47; Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1; Reid v. Georgia, 448 U.S. 438 (1980); R. v. Dinh (2001), 284 A.R. 304, 2001 ABPC 48; United States v. Sokolow, 490 U.S. 1 (1989); Sibron v. New York, 392 U.S. 40 (1968); Florida v. Royer, 460 U.S. 491 (1983); United States v. Eustaquio, 198 F.3d 1068 (1999); R. v. McCarthy (2005), 239 N.S.R. (2d) 23, 2005 NSPC 49; R. v. Schrenk (2007), 215 Man. R. (2d) 212, 2007 MBQB 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30.
By Deschamps J. (dissenting)
R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Questions of Law Reserved (No. 3 of 1998) (1998), 71 S.A.S.R. 223; Illinois v. Caballes, 543 U.S. 405 (2005); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, rev’g (2005), 196 O.A.C. 16; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Boersma, [1994] 2 S.C.R. 488; R. v. Stillman, [1997] 1 S.C.R. 607; United States v. Place, 462 U.S. 696 (1983); R. v. Jacques, [1996] 3 S.C.R. 312 ; R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Woods, [2005] 2 S.C.R. 205, 2005 SCC 42; R. v. Monney, [1999] 1 S.C.R. 652; Knowlton v. The Queen, [1974] S.C.R. 443; R. v. Truong (2002), 168 C.C.C. (3d) 132, 2002 BCCA 315; People v. Dunn, 564 N.E.2d 1054 (1990); State v. Pellicci, 580 A.2d 710 (1990); McGahan v. State, 807 P.2d 506 (1991); Commonwealth v. Johnston, 530 A.2d 74 (1987); R. v. Murray (1999), 136 C.C.C. (3d) 197.
By Bastarache J. (dissenting)
R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Monney, [1999] 1 S.C.R. 652; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; United States v. Place, 462 U.S. 696 (1983).
Statutes and Regulations Cited
Australian Federal Police Act 1979 (Cth.), s. 12A.
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 9 , 10 , 24(2) .
Customs Act, R.S.C. 1985, c. 1 (2nd Supp .), s. 99(1) (f).
Immigration Act, R.S.C. 1985, c. I‑2.
Law Enforcement (Powers and Responsibilities) Act 2002 (N.S.W.), ss. 145 to 150, 193 to 196.
Police Act, R.S.A. 2000, c. P‑17, s. 38(1).
Police Powers and Responsibilities Act 2000 (Qld.), 2000, No. 6, ss. 34 to 39.
Police Powers and Responsibilities (Drug Detection Dogs) Amendment Act 2005 (Qld.), 2005, No. 63.
Royal Canadian Mounted Police Act, R.S.C. 1985, c. R‑10, s. 18 .
Authors Cited
Australia. New South Wales. Discussion Paper: Review of the Police Powers (Drug Detection Dogs) Act. Sydney: NSW Ombudsman, 2004.
Chevrette, François, and Hugo Cyr. “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non‑rétroactivité de l’infraction et la peine la plus douce”, in Gérald‑A. Beaudoin and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms , 3rd ed. Scarborough, Ont.: Carswell, 1996, 10‑1.
Davis‑Barron, Sherri. “The Lawful Use of Drug Detector Dogs” (2007), 52 Crim. L.Q. 345.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007.
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vols. 1 and 4, 4th ed. St. Paul, Minn.: Thomson/West, 2004.
La Forest, Gérard V. “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985‑1997. Winnipeg: Canadian Legal Historic Project, Faculty of Law, University of Manitoba, 2000, 3.
Pollack, Kenneth L. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard” (1994), 47 Vand. L. Rev. 803.
Sankoff, Peter, and Stéphane Perrault. “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123.
Sharpe, Robert J., and Kent Roach. Brian Dickson: A Judge’s Journey. Toronto: University of Toronto Press, 2003.
Shaw, Trevor. “The Law on the Use of Police Dogs in Canada” (2004), 48 Crim. L.Q. 337.
APPEAL from a judgment of the Alberta Court of Appeal (Côté, O’Leary and Paperny JJ.A.) (2006), 60 Alta. L.R. (4th) 223, 391 A.R. 218, 377 W.A.C. 218, 210 C.C.C. (3d) 317, 39 C.R. (6th) 282, [2006] 9 W.W.R. 633, 144 C.R.R. (2d) 338, [2006] A.J. No. 755 (QL), 2006 CarswellAlta 794, 2006 ABCA 199, dismissing the accused’s appeal from conviction (2005), 386 A.R. 48, 203 C.C.C. (3d) 132, 31 C.R. (6th) 231, [2005] A.J. No. 1110 (QL), 2005 CarswellAlta 1217, 2005 ABQB 608. Appeal allowed, Bastarache, Deschamps and Rothstein JJ. dissenting.
James M. Lutz and Alias A. Sanders, for the appellant.
Kenneth J. Yule, Q.C., Jolaine Antonio and Lisa Matthews, for the respondent.
Robert W. Hubbard and Alison Wheeler, for the intervener the Attorney General of Ontario.
Dominique A. Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec.
Kenneth D. Madsen, for the intervener the Attorney General of British Columbia.
Frank Addario and Emma Phillips, for the intervener the Criminal Lawyers’ Association (Ontario).
Jonathan C. Lisus, Christopher A. Wayland and Sarah Corman, for the intervener the Canadian Civil Liberties Association.
The reasons of LeBel, Fish, Abella and Charron JJ. were delivered by
LeBel J. —
I. Introduction
[1] I have had the opportunity of reading the reasons of Binnie J. in this appeal and in the companion appeal R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19. Like him, I would allow the appeal, find that there was a violation of s. 8 of the Canadian Charter of Rights and Freedoms and exclude the evidence under s. 24(2) . However, I reach this conclusion for different reasons. I agree that the use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter . The question on this appeal is whether the sniffer-dog search conducted in this case was “authorized by law”. It is undisputed that the search was not specifically authorized by statute. The question becomes whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime. Binnie J. concludes that, in the circumstances of this case, they were not so authorized. I agree. In answering this question, however, I would not lower the threshold for the exercise of police powers to one of “reasonable suspicion” since to do so would impair the important safeguards found in s. 8 of the Charter against unjustified state intrusion. I would apply the existing and well-established standard of “reasonable and probable grounds” to hold that the search did not meet this standard. In so holding, I acknowledge that the Charter does not prohibit the use of sniffer dogs or other investigative techniques by police; it does require, however, that they be used in accordance with the standards established by s. 8 .
II. Analysis
[2] Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities.
[3] It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted. The issue is therefore whether this Court, in the absence of any legislative regime, should attempt to itself craft a lower standard than that set out in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, to govern the use of sniffer dogs by the police in public places such as a bus terminal or, as in A.M., a school. This appears to be the suggestion of my colleague Binnie J. when he proposes a new standard of “reasonable belief or suspicion”, the application of which would depend on the degree of intrusiveness of the investigative technique used in a particular case.
[4] Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search (factum, at para. 63). The Criminal Lawyers’Association of Ontario submitted that the constitutional requirements of reasonable and probable cause set out in Hunter v. Southam had to be met. Reasonable suspicion was raised at most as an alternative solution and not the preferred one. Even one of the Crown counsel, who was arguing that the dog sniff was not a search, in answer to a question from a member of our Court, stated that, if it was a search, “we’re in uncharted waters”. He added that “one has to strain to think of situations where the Court has said that something less than reasonable grounds suffices where it’s a Section 8 search” (transcript, at p. 55). In A.M., one of the grounds adopted by the Ontario Court of Appeal to quash the search of school premises was that the search was not authorized by the criminal law or by the Education Act or subsidiary school policies.
[5] Courts make and change the law (Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10, at paras. 83-87). Much of what is recognized as “law” is actually, in one form or another, judge-made law (G. V. La Forest, “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985-1997 (2000), 3). The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power.
[6] This question becomes particularly delicate when, in matters which engage key constitutional values and rights, courts decide to act as lawmakers because of perceived gaps in the law. Should the common law be used to fill such gaps? This Court has used it to do so in certain circumstances in the area of the law we are now considering, in cases like R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 (investigative detentions), and, quite recently, R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32. These precedents do not mean that the Court should always expand common law rules, in order to address perceived gaps in police powers or apprehended inaction by Parliament, especially when rights and interests as fundamental as personal privacy and autonomy are at stake.
[7] Courts form part of the institutions of a democratic state where democratically elected legislatures debate and enact laws in an open public process. Courts are vital institutions particularly because the Constitution itself protects fundamental human rights. The Constitution does not belong to the courts, as McLachlin J. (as she then was) wisely said in her dissent in Cooper, but courts must remain alive and sensitive to the fact that they are ultimately the guardians of constitutional rules, principles and values when all else fails (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 70).
[8] Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of s. 8 . It may be said that our Charter jurisprudence was born with Hunter v. Southam, which remains one of the seminal judgments that, like R. v. Oakes, [1986] 1 S.C.R. 103, and Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, laid the groundwork for the interpretation of the Charter (see R. J. Sharpe and K. Roach, Brian Dickson: A Judge’s Journey (2003), at pp. 312-16). Although the word “privacy” does not appear in the Charter , from the first days of its application, s. 8 evolved into a shield against unjustified state intrusions on personal privacy (Hunter v. Southam, at p. 160).
[9] Even before the Charter came into force, the courts were protective of privacy rights, although they tended to ground that protection in the notions of territoriality and of the relative sanctity of property interests (P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 2, at p. 455). They modified this approach under the Charter , defining privacy interests as personal rights (Hogg, at p. 456; Hunter v. Southam, at pp. 158‑59). This shift underscores the crucial importance of privacy interests in the interpretation of s. 8 (see La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 426-27; Bastarache J. in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16; F. Chevrette and H. Cyr, “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non-rétroactivité de l’infraction et la peine la plus douce”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 10-1, at pp. 10-72 and 10-94).
[10] The protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of s. 8 and by the courts in applying that section. The needs of law enforcement have to be taken into consideration and to be balanced with reasonable expectations of privacy. Nevertheless, in the leading cases on s. 8 , the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because, as our Court found in Hunter v. Southam, “to determine the balance of the competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would . . . be seriously at odds with the purpose of s. 8 ”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (p. 160 (emphasis deleted)). Those constraints were _ and in general still are, since this Court has never resiled from them _ that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. La Forest J. strongly stated the view that, as a matter of principle, common law police powers were narrow and their extension is better be left to Parliament (R. v. Wong, [1990] 3 S.C.R. 36, at pp. 56-57). My con

Court headnote

R. v. Kang-Brown Collection Supreme Court Judgments Date 2008-04-25 Neutral citation 2008 SCC 18 Report [2008] 1 SCR 456 Case number 31598 Judges McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall On appeal from Alberta Subjects Constitutional law Professional law Notes SCC Case Information: 31598 Decision Content SUPREME COURT OF CANADA Citation: R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18 Date: 20080425 Docket: 31598 Between: Gurmakh Kang-Brown Appellant and Her Majesty The Queen Respondent ‑ and ‑ Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario) and Canadian Civil Liberties Association Interveners Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. Reasons for Judgment: (paras. 1 to 17) Partially Concurring Reasons: (paras. 18 to 105) Dissenting Reasons: (paras. 106 to 211) Dissenting Reasons: (paras. 212 to 256) LeBel J. (Fish, Abella and Charron JJ. concurring) Binnie J. (McLachlin C.J. concurring) Deschamps J. (Rothstein J. concurring) Bastarache J. ______________________________ R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18 Gurmakh Kang‑Brown Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario) and Canadian Civil Liberties Association Interveners Indexed as: R. v. Kang‑Brown Neutral citation: 2008 SCC 18. File No.: 31598. 2007: May 22; 2008: April 25. Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. on appeal from the court of appeal for alberta Constitutional law — Charter of Rights — Search and seizure — Sniffer dogs — Bus stations — Police officer involved in special operation designed to detect drug couriers at bus stations observing suspicious passenger disembarking from bus — Officer approaching passenger and asking to inspect contents of his bag — Passenger starting to open bag when officer reached hand out — Passenger pulling bag back and acting nervously — Officer signaling to another officer with sniff dog to approach — Dog indicating presence of drugs in passenger’s bag — Passenger arrested and drugs found on him and in his bag upon search — Whether dog sniff constituted search — If so, whether search reasonable — If search unreasonable, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) . Police — Police powers — Investigative tools — Sniffer dogs — Whether common law powers of police to investigate crime include use of sniffer dogs. An RCMP officer involved in a special operation designed to detect drug couriers at bus stations observed a bus arriving at the station and the accused getting off. The accused gave the officer an elongated stare and went into the station lobby. He then turned and looked back at the officer, who found this behaviour suspicious. The officer eventually approached the accused, identified himself and told him that he was not in any trouble and was free to go at any time. The officer asked the accused if he was carrying narcotics. The accused said no. The officer then asked to look in the accused’s bag. The accused put his bag down and was unzipping it when the officer went to touch the bag. The accused pulled it away, looking nervous. At that point, the officer signaled another officer with a sniffer dog to approach. The dog sat down, indicating the presence of drugs in the bag. The accused was arrested for possession of and/or trafficking in drugs. The accused was searched and drugs were found on his person and in his bag. The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and entered a conviction. She held that the odours from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy and that s. 8 of the Canadian Charter of Rights and Freedoms was accordingly not engaged. The Court of Appeal upheld the conviction. Held (Bastarache, Deschamps and Rothstein JJ. dissenting): The appeal should be allowed. 1. Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion. Per Bastarache J.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of generalized suspicion. Per LeBel, Fish, Abella and Charron JJ.: There was no authority at common law for the sniffer‑dog search in this case. 2. Per curiam: The dog sniff of the passenger’s bag at the bus station amounted to a search within s. 8 of the Charter . 3. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: The sniffer‑dog search of the passenger’s bag at the bus station violated s. 8 of the Charter . Per Bastarache, Deschamps and Rothstein JJ.: The sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8 of the Charter . 4. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: In the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter . Per Bastarache, Deschamps and Rothstein JJ.: There is no need to determine whether the evidence should be excluded pursuant to s. 24(2) of the Charter because the sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8 . _______________ Per LeBel, Fish, Abella and Charron JJ.: The use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter , and absent justified authority for such a search in a statute or at common law, the sniffer‑dog search breached s. 8 . Given the seriousness of the breach, the evidence should be excluded under s. 24(2) of the Charter . [1] [17] It is undisputed that the search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime, the threshold for the exercise of police powers should not be lowered to one of “reasonable suspicion” since, to do so, would impair the important safeguards found in s. 8 against unjustified state intrusion. The existing and well‑established standard of “reasonable and probable grounds” should be applied. In this case, the search did not meet this standard. [1] Any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. Jurisprudence‑based solutions which would openly or implicitly advocate the creation of new common law rules reducing the standard of scrutiny of state intrusion into privacy do not represent an appropriate exercise of judicial power in the circumstances of this case. When rights and interests as fundamental as personal privacy and autonomy are at stake, the constitutional role of the Court suggests that the creation of a new and more intrusive power of search and seizure should be left to Parliament to set up and justify under a proper statutory framework. [4] [6] [11] [13] Per McLachlin C.J. and Binnie J.: A “sniff” amounts to a s. 8 search under the Charter because of the significance and quality of the information obtained about concealed contents, whether such contents are in a suspect’s belongings or carried on his or her person. (In the present case, the positive “sniff” was itself considered sufficient by the RCMP to arrest the accused before even physically checking his bag to confirm the present of illegal drugs.) However, because of the minimal intrusion, contraband‑specific nature and pinpoint accuracy of a sniff executed by a trained and well‑handled dog, a proper balance between an individual’s s. 8 rights and the reasonable demands of law enforcement would be struck by permitting such “sniff” searches on a “reasonable suspicion” standard without requiring prior judicial authorization. The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called. [26] [58] [97] Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog. [21] The difficult issue raised by this appeal is not the existence of a police power to investigate crime using sniffer dogs or any other lawful devices or technology in places where the police are lawfully entitled to be, but the extent to which the use of such devices or techniques or animals is permitted by s. 8 of the Charter and, if so, in what circumstances. It is emphatically the duty of the courts, not Parliament, to resolve the issue of Charter compliance. [23] 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. Because sniffer‑dog searches are conducted without prior judicial authorization, the after‑the‑fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. Here, the police action was based on speculation. [26] [75] It is common ground that what occurred at the bus station was a warrantless search, and therefore presumptively unreasonable. However, had the dog‑sniff search been based on reasonable suspicion, the dog’s positive alert would have given the police the grounds to proceed on the spot with a warrantless search of the accused’s bag because of the dog’s demonstrated accuracy 90 to 92 percent of the time. The RCMP accept that different dogs possess different abilities and track records and that “sniffer dogs” are not interchangeable. Proof must be made of the accuracy of a particular animal before police reliance is justified. This is another matter that should be established in the evidence (as it was here). In any event, given the dog alerts to the odour of narcotics, not to their actual presence, the arrest of the accused in this case was premature. The police should first have confirmed the presence of narcotics by a hand search of the bag. If reasonable cause had existed, and given the positive alert and the dog’s history of accuracy, the RCMP would have been entitled to perform such a verification search on the spot and without prior judicial authorization. [48] [99] [101] The trial judge erred in principle by incorporating and relying on much of her s. 8 privacy analysis in her s. 24(2) analysis, thereby engaging in a species of double‑counting, and undermining the deference that would otherwise be owed to her conclusion to admit the evidence. The trial judge having been reversed on that aspect of her privacy analysis (for the reasons set out in R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19), the trial judge’s continuing denial of a serious privacy interest should not be resuscitated as an independent ground to help the Crown over its s. 24(2) hurdle. While the evidence obtained in the illegal search was non‑conscriptive, and was found by the trial judge to have been obtained by the RCMP in good faith, the evidence should nonetheless be excluded. The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public. In the sniffer‑dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization. The only effective check on that authority is the after‑the‑fact independent assessment and, on the facts here, the police initiated a warrantless search on inadequate grounds. [103-104] Per Deschamps and Rothstein JJ. (dissenting): The use of a sniffer dog to check the accused’s bag in a public bus terminal on the basis of a reasonable suspicion that evidence of an offence would be discovered was proper and did not constitute an unreasonable search or seizure. [107] The accused had a reasonable expectation of privacy that engaged s. 8 of the Charter . Where the applicability of s. 8 is at issue, failure to consider whether the claimant had a reasonable expectation of privacy that engages s. 8 may constitute an error of law. If the trial judge carries out the reasonable expectation of privacy analysis, however, deference will be owed to his or her finding. Here, the trial judge erred in analysing the reasonableness of the accused’s expectation of privacy by incorrectly finding that the purpose of the use of the sniffer dog was to identify odours outside of his bag. It is significant that the odours in and emanating from the accused’s bag were imperceptible to humans; hence the need for a dog to detect the narcotics. This is not a case in which the police were relying on their own senses. Rather, they used the dog to obtain information about the possible presence of a controlled substance inside the accused’s bag. By detecting what was in the air in the vicinity of the accused’s bag, the dog functioned as an investigative tool that allowed the police to conclude, in light of the dog’s 90 to 92 percent success rate, that there was a controlled substance inside the bag. [143] [173-174] [210] The dog’s positive indication allowed for a strong, immediate and direct inference to be made about the contents of the accused’s bag, and this involved a certain intrusion on informational privacy. The right to informational privacy protects biographical information, including the very nature of the information. In a case involving this right, the relevant elements of informational privacy include intimate personal details about an accused, such as his or her having come into contact with a controlled substance. The sniffer dog’s intrusion on the accused’s right to informational privacy thus suggests that the accused had an objectively reasonable expectation of privacy. Other factors support that conclusion. The accused owned and used the bag, he was present at the time of the search, the bag was one that could be carried close to the body, and he did not abandon it or leave it unattended. The conduct of the police in this case also intruded to a certain extent on the accused’s right to territorial privacy: members of the public have historically used bus terminals to travel as a means of exercising their freedom of mobility, security screening was not done routinely in this terminal and there were no signs indicating that a luggage search was possible. Nevertheless, the accused’s objectively reasonable expectation of privacy in this case was not high. The search in the present case was conducted in a public place. Moreover, the search technique employed by the police was only minimally intrusive. The accused also showed that he had a subjective expectation of privacy as evidenced by the facts that he had carried his bag close to his body and that he had sought, both verbally and physically, to control access to it. [175‑178] The search in this case was justified on the basis of the reasonable suspicion standard. This standard can be applicable only where there are circumstances that serve as safeguards against unreasonable intrusions on privacy and ensure a balance that affords proper protection. Consequently, a reasonable suspicion standard may be sufficient where the investigative technique is relatively non‑intrusive and the expectation of privacy is not high. To determine whether the reasonable suspicion standard is met in a given case, the totality of the circumstances must be considered. [168] [195] Here, the police were clearly acting in pursuit of their common law duty to investigate and prevent crime when they observed and questioned the accused and, subsequently, when they used the dog to detect the presence of narcotics. The powers associated with this duty were used in a way that met the standard of what is reasonably necessary in light of the totality of the circumstances. Given that the accused had a reasonable expectation of privacy that engaged s. 8 , it would not have been reasonable for the police to use a sniffer dog to check his bag if they had no grounds for doing so. Although the trafficking of illegal drugs via public transportation is a serious problem, no evidence was adduced in this case that would support the random use of a sniffer dog to check the luggage of all bus travellers. However, with respect to the accused, the police had grounds for using the dog. The observation and questioning of the accused by the police officer resulted in “objectively discernible facts” that, in combination, aroused a reasonable suspicion that he was in possession of a controlled substance. It was only once the officer entertained reasonable suspicion that the well‑trained and highly accurate sniffer dog became involved and was used as an investigative tool in furtherance of the police law enforcement duty. Not only did the accused have a lower expectation of privacy in the context of this case, but a number of safeguards were in place that limited the intrusiveness of the use of the sniffer dog. The dog was used in a public place and could only detect drugs that were identified as posing serious problems. It was used as a last resort in a progressive investigation and as a minimally intrusive investigative tool. Moreover, the police would not have been able to obtain a warrant, as the accused’s behaviour suggested that he was growing increasingly nervous and was preparing to exit the terminal. In these circumstances, the reasonable suspicion standard constitutes a reasonably necessary, and therefore justifiable, use of police powers because it strikes an appropriate balance between the accused’s reasonable privacy interest and society’s interest in interdicting illicit substances carried on public transportation. [182-183] [185] [187] [189] [191] The sniffer‑dog search was conducted in a reasonable manner. In light of the totality of the circumstances, the police made limited and prudent use of a law enforcement tool that was available to them. Accordingly, the use of the sniffer dog in this case was in full compliance with s. 8 of the Charter . [197-199] It is clear from the evidence of the high accuracy rate of the dog in question that its positive indication of the presence of narcotics provided the police with reasonable grounds to arrest the accused and to search his bag by hand in a search incidental to arrest. Therefore, the accused’s s. 8 rights were not infringed. [200] Per Bastarache J. (dissenting): The dog sniff search constituted a search within the meaning of s. 8 of the Charter . The accused had a reasonable, but limited, expectation of privacy in his luggage at the time the dog sniff occurred. Here, both a subjective and an objective expectation of privacy have been established. A subjective expectation of privacy is evidenced by the protective manner in which the accused carried his bag and his refusal to allow a voluntary search to occur. From an objective perspective, it is significant that the odour identified by the dog was not accessible to humans and that its detection provided immediate information about the contents of the accused’s luggage. Although the accused did have a reasonable expectation of privacy in his luggage, it was significantly reduced owing to the location at which the search occurred. In a bus depot, a passenger is voluntarily using the terminal to access a public mode of transportation, and he or she is aware that the state has an interest in ensuring that that transportation system is both secure and not being used to further criminal activity. Nonetheless, privacy interests do not have to be of the highest form to attract s. 8 protection. [227-228] [231] In this case, the requisite balancing of individual rights with the state interest in preventing and investigating crime supports a finding that a sniff search of luggage using a police dog will not be in violation of s. 8 of the Charter where the police are acting on a reasonable suspicion about the committal of a crime. The reduced expectation of privacy at public terminals, the minimal intrusion caused by the search itself, and the effectiveness of sniffer‑dog searches all support a standard of “reasonable suspicion”. In some situations, like this one, reasonable suspicion will relate to a particular individual, and the police will have gathered, through observation or other means, sufficient information about a specific person to justify a sniff search of his or her bags. Although the police in this case based their search on individualized suspicion, it would have been equally permissible for them to use sniffer dogs to search the luggage of all of the passengers at the bus station that day, providing that the police had a reasonable suspicion that drug activity might be occurring at the terminal, and reasonably informed passengers were aware of the fact that their baggage may be subject to a sniffer‑dog search. [215] [243-244] Because the accused’s baggage was subjected to a sniffer‑dog search as a result of individualized suspicion, it is unnecessary to determine conclusively whether a random search of his bag would have been constitutional. The trial judge found that the officer’s suspicion with respect to the accused was in place before the sniff occurred and was based on objective facts. There is no reason to interfere with her finding on that point, and the search was therefore reasonable within the meaning of s. 8 of the Charter . [255] Cases Cited By LeBel J. Referred to: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; R. v. Oakes, [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Wong, [1990] 3 S.C.R. 36; Illinois v. Caballes, 543 U.S. 405 (2005). By Binnie J. Applied: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; referred to: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Dinh (2003), 330 A.R. 63, 2003 ABCA 201; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51; R. v. Waterfield, [1963] 3 All E.R. 659; Dedman v. The Queen, [1985] 2 S.C.R. 2; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Monney, [1999] 1 S.C.R. 652; R. v. M. (M.R.), [1998] 3 S.C.R. 393; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Mercer (2004), 45 Alta. L.R. (4th) 144, 2004 ABPC 94; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; R. v. Mack, [1988] 2 S.C.R. 903; R. v. Cahill (1992), 13 C.R. (4th) 327; Alabama v. White, 496 U.S. 325 (1990); R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Ferris (1998), 126 C.C.C. (3d) 298; R. v. Lal (1998), 113 B.C.A.C. 47; Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1; Reid v. Georgia, 448 U.S. 438 (1980); R. v. Dinh (2001), 284 A.R. 304, 2001 ABPC 48; United States v. Sokolow, 490 U.S. 1 (1989); Sibron v. New York, 392 U.S. 40 (1968); Florida v. Royer, 460 U.S. 491 (1983); United States v. Eustaquio, 198 F.3d 1068 (1999); R. v. McCarthy (2005), 239 N.S.R. (2d) 23, 2005 NSPC 49; R. v. Schrenk (2007), 215 Man. R. (2d) 212, 2007 MBQB 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30. By Deschamps J. (dissenting) R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Questions of Law Reserved (No. 3 of 1998) (1998), 71 S.A.S.R. 223; Illinois v. Caballes, 543 U.S. 405 (2005); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, rev’g (2005), 196 O.A.C. 16; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Boersma, [1994] 2 S.C.R. 488; R. v. Stillman, [1997] 1 S.C.R. 607; United States v. Place, 462 U.S. 696 (1983); R. v. Jacques, [1996] 3 S.C.R. 312 ; R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Woods, [2005] 2 S.C.R. 205, 2005 SCC 42; R. v. Monney, [1999] 1 S.C.R. 652; Knowlton v. The Queen, [1974] S.C.R. 443; R. v. Truong (2002), 168 C.C.C. (3d) 132, 2002 BCCA 315; People v. Dunn, 564 N.E.2d 1054 (1990); State v. Pellicci, 580 A.2d 710 (1990); McGahan v. State, 807 P.2d 506 (1991); Commonwealth v. Johnston, 530 A.2d 74 (1987); R. v. Murray (1999), 136 C.C.C. (3d) 197. By Bastarache J. (dissenting) R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; R. v. Evans, [1996] 1 S.C.R. 8; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Plant, [1993] 3 S.C.R. 281; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Monney, [1999] 1 S.C.R. 652; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; United States v. Place, 462 U.S. 696 (1983). Statutes and Regulations Cited Australian Federal Police Act 1979 (Cth.), s. 12A. Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 9 , 10 , 24(2) . Customs Act, R.S.C. 1985, c. 1 (2nd Supp .), s. 99(1) (f). Immigration Act, R.S.C. 1985, c. I‑2. Law Enforcement (Powers and Responsibilities) Act 2002 (N.S.W.), ss. 145 to 150, 193 to 196. Police Act, R.S.A. 2000, c. P‑17, s. 38(1). Police Powers and Responsibilities Act 2000 (Qld.), 2000, No. 6, ss. 34 to 39. Police Powers and Responsibilities (Drug Detection Dogs) Amendment Act 2005 (Qld.), 2005, No. 63. Royal Canadian Mounted Police Act, R.S.C. 1985, c. R‑10, s. 18 . Authors Cited Australia. New South Wales. Discussion Paper: Review of the Police Powers (Drug Detection Dogs) Act. Sydney: NSW Ombudsman, 2004. Chevrette, François, and Hugo Cyr. “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non‑rétroactivité de l’infraction et la peine la plus douce”, in Gérald‑A. Beaudoin and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms , 3rd ed. Scarborough, Ont.: Carswell, 1996, 10‑1. Davis‑Barron, Sherri. “The Lawful Use of Drug Detector Dogs” (2007), 52 Crim. L.Q. 345. Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007. LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vols. 1 and 4, 4th ed. St. Paul, Minn.: Thomson/West, 2004. La Forest, Gérard V. “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985‑1997. Winnipeg: Canadian Legal Historic Project, Faculty of Law, University of Manitoba, 2000, 3. Pollack, Kenneth L. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard” (1994), 47 Vand. L. Rev. 803. Sankoff, Peter, and Stéphane Perrault. “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123. Sharpe, Robert J., and Kent Roach. Brian Dickson: A Judge’s Journey. Toronto: University of Toronto Press, 2003. Shaw, Trevor. “The Law on the Use of Police Dogs in Canada” (2004), 48 Crim. L.Q. 337. APPEAL from a judgment of the Alberta Court of Appeal (Côté, O’Leary and Paperny JJ.A.) (2006), 60 Alta. L.R. (4th) 223, 391 A.R. 218, 377 W.A.C. 218, 210 C.C.C. (3d) 317, 39 C.R. (6th) 282, [2006] 9 W.W.R. 633, 144 C.R.R. (2d) 338, [2006] A.J. No. 755 (QL), 2006 CarswellAlta 794, 2006 ABCA 199, dismissing the accused’s appeal from conviction (2005), 386 A.R. 48, 203 C.C.C. (3d) 132, 31 C.R. (6th) 231, [2005] A.J. No. 1110 (QL), 2005 CarswellAlta 1217, 2005 ABQB 608. Appeal allowed, Bastarache, Deschamps and Rothstein JJ. dissenting. James M. Lutz and Alias A. Sanders, for the appellant. Kenneth J. Yule, Q.C., Jolaine Antonio and Lisa Matthews, for the respondent. Robert W. Hubbard and Alison Wheeler, for the intervener the Attorney General of Ontario. Dominique A. Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec. Kenneth D. Madsen, for the intervener the Attorney General of British Columbia. Frank Addario and Emma Phillips, for the intervener the Criminal Lawyers’ Association (Ontario). Jonathan C. Lisus, Christopher A. Wayland and Sarah Corman, for the intervener the Canadian Civil Liberties Association. The reasons of LeBel, Fish, Abella and Charron JJ. were delivered by LeBel J. — I. Introduction [1] I have had the opportunity of reading the reasons of Binnie J. in this appeal and in the companion appeal R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19. Like him, I would allow the appeal, find that there was a violation of s. 8 of the Canadian Charter of Rights and Freedoms and exclude the evidence under s. 24(2) . However, I reach this conclusion for different reasons. I agree that the use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter . The question on this appeal is whether the sniffer-dog search conducted in this case was “authorized by law”. It is undisputed that the search was not specifically authorized by statute. The question becomes whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime. Binnie J. concludes that, in the circumstances of this case, they were not so authorized. I agree. In answering this question, however, I would not lower the threshold for the exercise of police powers to one of “reasonable suspicion” since to do so would impair the important safeguards found in s. 8 of the Charter against unjustified state intrusion. I would apply the existing and well-established standard of “reasonable and probable grounds” to hold that the search did not meet this standard. In so holding, I acknowledge that the Charter does not prohibit the use of sniffer dogs or other investigative techniques by police; it does require, however, that they be used in accordance with the standards established by s. 8 . II. Analysis [2] Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities. [3] It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted. The issue is therefore whether this Court, in the absence of any legislative regime, should attempt to itself craft a lower standard than that set out in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, to govern the use of sniffer dogs by the police in public places such as a bus terminal or, as in A.M., a school. This appears to be the suggestion of my colleague Binnie J. when he proposes a new standard of “reasonable belief or suspicion”, the application of which would depend on the degree of intrusiveness of the investigative technique used in a particular case. [4] Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search (factum, at para. 63). The Criminal Lawyers’Association of Ontario submitted that the constitutional requirements of reasonable and probable cause set out in Hunter v. Southam had to be met. Reasonable suspicion was raised at most as an alternative solution and not the preferred one. Even one of the Crown counsel, who was arguing that the dog sniff was not a search, in answer to a question from a member of our Court, stated that, if it was a search, “we’re in uncharted waters”. He added that “one has to strain to think of situations where the Court has said that something less than reasonable grounds suffices where it’s a Section 8 search” (transcript, at p. 55). In A.M., one of the grounds adopted by the Ontario Court of Appeal to quash the search of school premises was that the search was not authorized by the criminal law or by the Education Act or subsidiary school policies. [5] Courts make and change the law (Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10, at paras. 83-87). Much of what is recognized as “law” is actually, in one form or another, judge-made law (G. V. La Forest, “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985-1997 (2000), 3). The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power. [6] This question becomes particularly delicate when, in matters which engage key constitutional values and rights, courts decide to act as lawmakers because of perceived gaps in the law. Should the common law be used to fill such gaps? This Court has used it to do so in certain circumstances in the area of the law we are now considering, in cases like R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 (investigative detentions), and, quite recently, R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32. These precedents do not mean that the Court should always expand common law rules, in order to address perceived gaps in police powers or apprehended inaction by Parliament, especially when rights and interests as fundamental as personal privacy and autonomy are at stake. [7] Courts form part of the institutions of a democratic state where democratically elected legislatures debate and enact laws in an open public process. Courts are vital institutions particularly because the Constitution itself protects fundamental human rights. The Constitution does not belong to the courts, as McLachlin J. (as she then was) wisely said in her dissent in Cooper, but courts must remain alive and sensitive to the fact that they are ultimately the guardians of constitutional rules, principles and values when all else fails (Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854, at para. 70). [8] Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of s. 8 . It may be said that our Charter jurisprudence was born with Hunter v. Southam, which remains one of the seminal judgments that, like R. v. Oakes, [1986] 1 S.C.R. 103, and Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, laid the groundwork for the interpretation of the Charter (see R. J. Sharpe and K. Roach, Brian Dickson: A Judge’s Journey (2003), at pp. 312-16). Although the word “privacy” does not appear in the Charter , from the first days of its application, s. 8 evolved into a shield against unjustified state intrusions on personal privacy (Hunter v. Southam, at p. 160). [9] Even before the Charter came into force, the courts were protective of privacy rights, although they tended to ground that protection in the notions of territoriality and of the relative sanctity of property interests (P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 2, at p. 455). They modified this approach under the Charter , defining privacy interests as personal rights (Hogg, at p. 456; Hunter v. Southam, at pp. 158‑59). This shift underscores the crucial importance of privacy interests in the interpretation of s. 8 (see La Forest J. in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 426-27; Bastarache J. in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16; F. Chevrette and H. Cyr, “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non-rétroactivité de l’infraction et la peine la plus douce”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 10-1, at pp. 10-72 and 10-94). [10] The protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of s. 8 and by the courts in applying that section. The needs of law enforcement have to be taken into consideration and to be balanced with reasonable expectations of privacy. Nevertheless, in the leading cases on s. 8 , the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because, as our Court found in Hunter v. Southam, “to determine the balance of the competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would . . . be seriously at odds with the purpose of s. 8 ”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (p. 160 (emphasis deleted)). Those constraints were _ and in general still are, since this Court has never resiled from them _ that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. La Forest J. strongly stated the view that, as a matter of principle, common law police powers were narrow and their extension is better be left to Parliament (R. v. Wong, [1990] 3 S.C.R. 36, at pp. 56-57). My con

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