Background
On January 25, 2002, at about 11:00 a.m. at the Calgary, Alberta, bus terminal, three police officers were involved in a special operation designed to detect drug couriers. While observing a bus arriving at the station, they spotted the accused, Gurmakh Kang-Brown, disembarking from the all-night Greyhound bus from Vancouver. The accused gave the officers an elongated stare. The officers found the accused's behaviour suspicious, stopped him and asked him if he was carrying narcotics. The accused said no. Then, one of the officers asked to look in the accused's bag. The accused put his bag down and unzipped it. When the accused was unzipping the bag, the officer went to touch the bag. The accused pulled it away, looking nervous. The officer signaled another officer to have a drug-sniffing dog sniff the man's bag. The dog indicated the presence of drugs in the bag.
The officers arrested the accused for possession of and/or trafficking in drugs, searched him and found drugs on his person and in his bag.
Supreme Court ruling
The accused appealed to the Supreme Court. The Court found that the search and detention violated section 8 of the Charter and that the evidence should be excluded because it would interfere with the fairness of justice under section 24(2) of the Charter. Hence, the conviction was set aside.
The following issues were put to the Court:
- whether dog sniff constituted search
- if so, whether the search was reasonable.
- if the search was unreasonable and the appellant's rights were violated, whether the evidence ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms;
- whether common law powers of police to investigate crime include use of sniffer dogs.
Opinion of the Court
All nine judges agreed that the dog sniff of the passenger's bag at the bus station amounted to a search within section 8 of the Charter.
McLachlin CJ and Binnie, LeBel, Fish, Abella and Charron JJ agreed that the sniffer dog search of the passenger’s bag at the bus station violated section 8 of the Charter and that in the circumstances of this case, the evidence should be excluded pursuant to section 24(2) of the Charter.
According to LeBel, Fish, Abella and Charon JJ, the sniffer-dog search breached section 8 because such a search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfillment 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 section 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.
According to McLachlin CJ and Binnie J, a proper balance between an individual's section 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.
Reasonable suspicion standard
"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. 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. However, because of R. v. MacKenzie, [2013] 3 SCR 250, 2013 SCC 50 (CanLII), police can now 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.
Dissent
Bastarache, Deschamps and Rothstein JJ dissented. They found that the dog sniff of the passenger's bag at the bus station amounted to a search under section 8 of the Charter. However, there is no need to determine whether the evidence should be excluded pursuant to section 24(2) of the Charter because the sniffer dog search of the passenger’s bag at the bus station did not violate section 8 of the Charter.
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. It is also the standard by which grand juries issue criminal indictments. The principle behind the standard is to limit the power of authorities to perform random or abusive searches, and to promote lawful evidence gathering and procedural form during criminal arrest and prosecution. The standard also applies to personal or property searches.
R v Clay [2003] 3 S.C.R. 735, 2003 SCC 75 is a decision by the Supreme Court of Canada on the constitutionality of the prohibition to possess marijuana. The accused claimed that his section 7 Charter rights were violated. The Court dismissed the claim.
R v Collins [1987] 1 S.C.R. 265 1987 SCC 11 is a leading decision of the Supreme Court of Canada on section 8 and was a leading case on section 24(2) of the Constitution Act, 1982 which allowed for the exclusion of evidence upon infringing the Charter. The Collins test for section 24(2) was developed for determining if the administration of justice was brought into disrepute by the inclusion of the evidence. The test was later replaced in R. v. Grant.
R v Stillman [1997] 1 SCR 607, 1997 SCC 32 was a leading decision of the Supreme Court of Canada on section 24(2) of the Constitution of Canada which allowed for the exclusion of evidence that is obtained in a manner that infringes the Charter. The two-step Stillman test was developed for determining whether the admission of evidence that was obtained through a breach of a Charter right would affect the fairness of the trial. The issue of trial fairness comes into play when applying the first step of the Collins test to exclude evidence under section 24(2).
R v Buhay [2003] 1 S.C.R. 631, 2003 SCC 30 is a leading Supreme Court of Canada decision on the Charter rights protecting against unreasonable search and seizure and the criteria for the exclusion of evidence under section 24(2). The court held that for evidence to be excluded on the Collins test, the seriousness of the breach must be determined by looking at factors such as good faith and necessity. On the facts, marijuana found in a bus station locker was excluded from evidence because the police had insufficient reason to search it without a warrant.
Section 8 of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state. Typically, this protects personal information that can be obtained through searching someone in pat-down, entering someone's property or surveillance.
R v Tessling [2004] 3 S.C.R. 432, is a leading Supreme Court of Canada decision where the Court held that the use of thermal imaging by police in the course of an investigation of a suspect's property did not constitute a violation of the accused's right to a reasonable expectation of privacy under section 8 of the Canadian Charter of Rights and Freedoms.
R v Wong, [1990] 3 S.C.R. 36, is a leading decision of the Supreme Court of Canada on the evidence obtained by electronic video surveillance conducted without authorization. The Court held that individuals have a reasonable expectation of privacy in a hotel room. This expectation does not depend on whether those persons were engaging in illegal activities. Therefore, individuals can expect that agents of the state will not engage in warrantless video surveillance. Electronic surveillance without authorization violates Section Eight of the Canadian Charter of Rights and Freedoms. However, for this particular case, the Supreme Court held that the police acted in good faith and had reasonable and probable ground to believe criminal activities were committed. The surveillance without authorization was a result of misunderstanding. Hence, acceptance of the surveillance as evidences will not bring the administration of justice into disrepute under Section Twenty-four of the Canadian Charter of Rights and Freedoms.
Expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution. It is related to, but is not the same as, a right to privacy, a much broader concept which is found in many legal systems. Overall, expectations of privacy can be subjective or objective.
Illinois v. Caballes, 543 U.S. 405 (2005), was a United States Supreme Court case in which the Court held that the Fourth Amendment is not violated when the use of a drug-sniffing dog during a routine traffic stop does not unreasonably prolong the length of the stop.
R v Belnavis, [1997] 3 S.C.R. 341, is a leading Supreme Court of Canada decision on the right against unreasonable search and seizure under section 8 of the Canadian Charter of Rights and Freedoms. The Court held that there is no reasonable expectation of privacy in the backseat of a car.
R v Grant, 2009 SCC 32 is a leading decision of the Supreme Court of Canada on section 9, section 10 and section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of the Charter. The Court also created a new test for determining whether evidence obtained by a Charter breach should be excluded under section 24(2) of the Charter, replacing the Collins test.
R v Harrison, 2009 SCC 34 is a decision of the Supreme Court of Canada on section 24(2) of the Canadian Charter of Rights and Freedoms. The decision was a companion case of R v Grant, and applied the Supreme Court's new test to determine when evidence obtained from a Charter breach should be excluded.
R v Patrick, [2009] 1 S.C.R. 579, 2009 SCC 17, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police have the right to take garbage bags placed for collection at edge of a property without warrant. In this case, the accused abandoned his privacy interest when he placed his garbage for collection at the rear of his property where it was accessible to any passing member of the public. His section 8 rights under the Canadian Charter of Rights and Freedoms were not violated when a police officer seized bags of garbage at the rear of his property and used the contents of seized bags as evidence of criminal activity.
R v AM, [2008] 1 S.C.R. 569, 2008 SCC 19, is a constitutional decision by the Supreme Court of Canada on the limits of police powers for search and seizure. The Court found that police do not have the right to perform a sniffer-dog search of public spaces when such search is not specifically authorized by statute. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were violated when a police officer sniffer-dog searched his unattended backpack in the gymnasium of his school finding drugs in his possession.
R v M (MR), [1998] 3 SCR 393 is a leading decision of the Supreme Court of Canada on search and seizure by teachers and principals in Canadian schools. In this case, a student's section 8 rights under the Canadian Charter of Rights and Freedoms ("Charter") were not violated by being searched by a school principal with a police constable present.
Michael Moldaver is a Canadian judge. He has been a puisne justice on the Supreme Court of Canada since his 2011 appointment by former Prime Minister Stephen Harper. Before his elevation to the nation's top court, he served as a judge at the Ontario Superior Court of Justice and the Court of Appeal for Ontario for over 20 years. A former criminal lawyer, Moldaver is considered an expert in both Canadian criminal law and the Canadian Charter of Rights and Freedoms.
Florida v. Jardines, 569 U.S. 1 (2013), was a United States Supreme Court case which resulted in the decision that police use of a trained detection dog to sniff for narcotics on the front porch of a private home is a "search" within the meaning of the Fourth Amendment to the United States Constitution, and therefore, without consent, requires both probable cause and a search warrant.
R v Spencer is a Canadian constitutional law decision of the Supreme Court of Canada, concerning search and seizure law under section 8 of the Canadian Charter of Rights and Freedoms. At issue was whether the police could request subscriber information associated with an IP address from an Internet service provider, on a voluntary basis under the Personal Information Protection and Electronic Documents Act, and without prior judicial authorisation. The Supreme Court unanimously ruled that the request for internet subscriber information infringed the Charter's guarantee against unreasonable search and seizure.
R v Fearon, 2014 SCC 77 is a leading section 8 Canadian constitutional law case, concerning the constitutionality of warrantless law enforcement searches of the contents of a cell phone incident to arrest.
