Last Friday, the Supreme Court of Canada released two decisions dealing with police use of sniffer dogs: R. v. Chehil and R. v. MacKenzie. Both cases concerned the question of when police can use sniffer dogs to conduct searches of personal items (a bag and a car, in these cases) without prior judicial authorization. This is important because if an unlawful search is performed, the court can decide not to admit any evidence found during the search. When you're trying to convict someone for possession of narcotics, the evidence that you found narcotics on their person tends to be rather important.
The issue had already been addressed by the SCC in earlier cases and it had held that such searches are authorized by law where, based on objective and ascertainable facts, the police officer has a "reasonable suspicion" that the search will reveal evidence of an offense (typically drugs). The standard only requires that there is a possibility that such evidence will be found, not that it is probable. This is considered acceptable because sniff tests are "minimally intrusive, narrowly targeted, and highly accurate". However, the standard cannot be interpreted so broadly as to permit large numbers of innocent people to be searched merely for being in a certain location or engaging in a certain activity. What exactly constitutes reasonable suspicion can be hard to pin down:
 Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, 324 Sask. R. 286, at para. 60. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation: see Monney, at para. 50.
In Chehil, the accused was flying from Vancouver to Halifax. He was arrested in Halifax after a sniffer dog detected the presence of drugs in his checked luggage. The police forced his bag open and found 3 kilograms of cocaine. The reasonable suspicion needed to check his bags arose because he fit the profile of a drug courier:
 The presence of reasonable suspicion must be assessed in the context of a specific case. The officers testified that no indicator by itself was determinative, that the decision to deploy a sniffer dog was made based on the following factors: (1) the travel was on a one-way ticket; (2) the flight originated in Vancouver; (3) the appellant was travelling alone; (4) the ticket was purchased with cash; (5) the ticket was the last one purchased before the flight departed; (6) the appellant checked one piece of luggage; (7) the flight was overnight; (8) the flight took place mid- to late-week; and (9) drug couriers prefer less expensive airlines, such as WestJet. In her cross-examination, Constable Ruby gave evidence that most people meeting this constellation had been proven to be drug couriers...
Aspiring drug couriers: don't do those things. That's a tip from me to you.
The question in Chehil was whether the factors above were enough to support reasonable suspicion. After all, it's obvious from looking at that list that a lot of innocent people will check at least a few of those boxes. Hell, one of the items is just the bare fact that you are flying out of Vancouver. The YVR web site states that in 2012, more than 296,000 aircraft flew out of the airport. That's a lot of potential drug couriers. However, the evidence of Constable Ruby was that when someone ticks ALL of those boxes, in the Constable's experience, they are more likely than not a drug courier. All nine SCC justices accepted this and found that the factors above were enough to support a reasonable suspicion that Chehil was transporting drugs.
Having sung the virtues of the reasonable suspicion standard in Chehil, the SCC had another opportunity to apply it in MacKenzie. MacKenzie was pulled over on the Trans-Canada Highway while travelling from Regina to Calgary, so that the police could issue him a warning about speeding (he was going 2 km/h over the posted 110 km/h limit). Just as in the Chehil case, the police had a profile of a drug courier and he fit it:
- Erratic driving
- Extreme nervousness
- Physical signs consistent with the use of marihuana
- Travel on a known drug pipeline
Once again, we have a set of factors which, taken individually, could cast suspicion on a lot of people. Except for maybe the third one. (And on the topic of the third one: MacKenzie, you should be embarrassed. I'm embarrassed for you. I'm as fierce a defender of the right to be free from unreasonable search and seizure as you're likely to find, but it's hard to feel sympathy for a guy who decides, while transporting drugs, that it's a good idea to smoke his own stash. I mean, jesus christ, that is just babytown frolics)
The police had a dog perform a sniff test of the car, during which the dog indicated that the car had drugs in the trunk. Following the positive sniff test, the police searched the car by hand and found several gift-wrapped boxes which MacKenzie admitted contained marihuana. All of which eventually led to the SCC considering the following question: "Was Cst. Sperlie’s subjective belief that the appellant might be involved in a drug-related offence objectively reasonable?". This time around though, the Court struggles a bit more. Clearly these factors are not as compelling as the paid-in-cash, last-minute plane ticket from Chehil. Five of the justices found that the Cst. Sperlie's suspicion was reasonable; four of them found it was unreasonable.
Some people had high hopes that these cases would offer more guidance on how to apply the reasonable suspicion standard. These people were disappointed. As Lisa Silver points out, these cases offer no new guidance on how the reasonable suspicion standard will be applied. Instead, they demonstrate how subjective the application of an objective standard can be.