What do the police need before deploying drug sniffing dogs? Not much according to two Supreme Court of Canada decisions released in September 2013.

All the police need is a “reasonable suspicion” that evidence of a drug offence may be discovered.  The Supreme Court of Canada’s low threshold for “reasonable suspicion” and deference to the police creates a number of problems.  First, it allows for broad categories of “suspicious” behaviour into which almost anyone could fall. Second, the “reasonable suspicion” standard is almost totally dependent on a police officer’s personal opinion, which can be open to embellishment after drugs are found in order to justify a bad search.

The Chechil Case

In R. v. Chehil, 2013 SCC 49, the police used Boris the drug dog to sniff the baggage of an airline passenger.  Chechil was suspected of drug trafficking based on a limited number indicators: he had a one-way ticket from Vancouver to Halifax, he was one of the last passengers to purchase a ticket, he was travelling alone, he paid for his ticket in cash, and he checked one bag. Three kilograms of cocaine were found in Chechil’s bag.

The MacKenzie Case

In R. v. MacKenzie, 2013 SCC 50, the police stopped MacKenzie for travelling 112 km/hour in a 110 km/hour zone on the Trans-Canada highway. The arresting officer testified that MacKenzie was the most nervous person he had ever stopped for a traffic infraction. The police happened to have Levi, a drug sniffing dog, with them. Levi found 31.5 lbs. of marijuana in the car.

Unsurprisingly, the trial judge was skeptical about the police stopping someone for travelling 2 km over the limit. The trial judge also suspected that the police embellished the signs of nervousness after finding the marijuana. The trial judge found that MacKenzie’s Charter rights were violated and excluded the drugs as evidence.

The Supreme Court overturned the trial judge’s acquittal, and deferred to the arresting officer’s suspicion of drug trafficking based on MacKenzie’s nervousness. The dissenting opinion of Justice Lebel highlights the problems with the majority decision.  Justice Lebel states in dissent:

[96] 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. Some, like my colleague, worry that the police will be unduly burdened by having their activities minutely scrutinized by the courts. 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. Possession of illegal drugs is a serious matter, but so is the public’s constitutional right to be secure against unreasonable search or seizure.

[97] 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 a majority of this Court rejected in Kang-Brown. 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”