SCC addresses the line between hunch and suspicion

28 Sep

The Supreme Court of Canada issued two decisions today that attempt to define the “reasonable suspicion” standard – a relaxed standard that allows for searches in the absence of prior judicial authorization in certain investigative contexts, including sniffer dog searches and school searches, for example.

The more principled of the two decisions is R v Chehil, which involves a sniffer dog search at an airport that the police conducted after determining that the accused fit the profile of a drug carrier: (1) he was traveling on a one-way plane ticket; (2) his flight originated in Vancouver; (3) he was traveling alone; (4) he purchased his ticket with cash; (5) his ticket was the last one purchased before the flight departed; (6) he checked one piece of luggage; (7) his flight was overnight; (8) his flight took place mid- to late-week; and (9) he flew on a WestJet flight. These factors, based on their training and experience, led the police to form a suspicion that the Court unanimously held was reasonable.

Justice Karakatsanis wrote the decision in Chehil. She held that the existence of a reasonable suspicion must be assessed against the totality of the circumstances. The police must assess all the objective factors that weigh for and against the possibility of criminal behavior and may have a reasonable suspicion even if the factors (each on their own or together) could support an innocent explanation.

Though the ratio of Chehil is therefore permissive, Justice Karakatsanis does state that the police must be subject to “rigorous judicial scrutiny”:

The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience.

Evidence of police training and experience was a prominent feature of the dialogue in R v MacKenzie, a case in which the Court split five to four in affirming a police search.

MacKenzie is about a sniffer dog search that the police executed after conducting a highway traffic stop. The factors at issue were about guilty appearance and demeanor and more equivocal than in Chehil: the accused slowed down and pulled over upon sight of the police; he was nervous when confronted, he was sweating (on a warm day); he was breathing rapidly; he had pinkish eyes; he was driving west to east; he corrected an initial response given about travel dates. The police evidence about the probity of the factors was also more qualified; the police testified that the factors were associated with drug carrying, but not strongly.

The majority and minority in MacKenzie differ on how much weight to give a police opinion that is based on training and experience. Both accept that police opinions based on training and experience should be considered in assessing the probity of the factors. Justice Moldaver (for the majority) says that deference is not “necessarily owed to a police officer’s view of the circumstances” but that that police should be “allowed to carry out their duties without undue skepticism.” Justice LeBel (for the minority) says quite clearly that the police are owed no deference.

R v Chehil, 2013 SCC 49 (CanLII).

R v MacKenzie, 2013 SCC 50 (CanLII).

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