When is a police officer’s suspicion ‘reasonable’, and when it is a subjective hunch that could easily target innocent individuals – perhaps based on improper or stereotypical assumptions about ‘suspicious’ people or behaviour? Four years ago, in a 5-4 split, a majority of the Supreme Court found that the police could conduct warrantless searches using sniffer dogs so long as they had a “reasonable suspicion” that a person was engaged in a drug crime. Although the Court provided some guidance, the precise contours of what constituted a reasonable suspicion, was left to lower courts to decide on a case-by-case basis. On Tuesday, January 22, the Supreme Court of Canada will again examine sniffer dogs and the ‘reasonable suspicion’ standard as they consider a pair of cases, R. v. MacKenzie and R. v. Chehil. In each case the trial court found that the police did not have enough evidence to form a reasonable suspicion – assessments that were overturned by the respective courts of appeal.
CCLA counsel will appear before the Supreme Court to argue that a rigorous, restrictive approach must be taken when examining the content of the ‘reasonable suspicion’ standard. As Justice Binnie stated in the first Supreme Court case that considered this issue, the court’s after-the-fact examination of police conduct is the only protection an individual has against unlawful police dog searches. The police must be able to offer objectively-verifiable evidence, and a proven link between ‘suspicious’ facts they observed and crime. Over-reliance on generalized malleable ‘profiles’ of criminals or unsupported assertions of police expertise opens the door to stereotyping and profiling. And finally, the number of innocent people who could be falsely caught up in warrantless searches must also be taken into consideration: even if it is true that all drug couriers travel from Vancouver to Halifax, that does not mean that it is reasonable to suspect all individuals taking those flights.
To read CCLA’s factum click here.
In the MacKenzie case currently on appeal, the trial judge concluded that there was not enough to support a ‘reasonable suspicion’ that Mr. MacKenzie was trafficking drugs. The trial court’s summary of the officer’s reasons for suspicion included “the driver’s “very high level of nervousness”; … the pinkish hue of the driver’s eyes, which in the police officer’s opinion is consistent with the use of marihuana; and the course of travel of the driver, which was from Calgary to Regina.” Although the officer testified that Calgary was a known source of narcotics and Regina was a known destination of sale, no evidence was offered to support that opinion. The BC Court of Appeal overturned the trial court, ruling that the officer’s observations were enough to support a “reasonable suspicion” that Mr. MacKenzie was trafficking drugs. Similarly, in the Chehil case, the “reasonable suspicion” was based on the observations that Mr. Chehil was travelling alone, that he had bought a one-way ticket from Vancouver to Halifax at the airline counter using cash, and that he had checked a relatively new, locked suitcase. Again, the trial judge found there was not enough objective evidence to support a reasonable suspicion, and the Nova Scotia Court of Appeal overturned the ruling.