Introduction: The Flux of Law

This article illustrates how quickly and remarkably the common law can adjust when judicial principles change and when new judges are appointed to the Supreme Court of Canada.

The common law is generally intended to endure.  Judges describe what they do as not making the law as much as declaring what the law has always been.  They see themselves in terms of Lady Justice – as neutral experts loyal to principle and reason, unencumbered by personal ideologies and biases.

Judges will adapt the common law to reflect social change over time.  However, occasionally, a radical change in the law can be traced to nothing more than a shift in thinking or putting new judges on the Supreme Court of Canada.  To illustrate, we profile the abrupt five-year change to sniffer dog law.

Kang-Brown, 2008

In the last “Whatever Happened to . . .” column in LawNow, we highlighted the Kang-Brown, [2008] 1 SCR 456 decision from the Supreme Court of Canada.  At the Calgary Greyhound bus terminal, a trained sniffer dog detected a large quantity of illegal drugs in Kang-Brown’s bag.

According to the law, a dog conducts a search when it sniffs.  Since the dog is an extension of the police who are state agents, the legal and factual groundwork for the sniff search must exist before any illegal things discovered can be used in evidence at a criminal trial.

One judge in the top court said police who form a generalized suspicion that one is in possession of illegal drugs can use sniffer dogs to search.  This standard would have encompassed the suspicious eye contact with Kang-Brown.  Four judges declared a more onerous reasonable suspicion to apply.  The other four judges upheld the existing even higher standard of reasonable and probable grounds.  These last four judges said sniffer dog searches are illegal unless a statute authorizes them.   In the end, six of the nine judges said this sniff search was unconstitutional and none of the illegal drugs possessed by Kang-Brown could be used as evidence against him.  He was not guilty. Note that Kang-Brown was decided at the same time as R. v. A.M., 2008 SCC 19 (CanLII) by the identical Court with the same outcome.  In A.M., sniffer dog detection of drugs in a student’s backpack in the gymnasium was ruled an unconstitutional search.

The following illustration shows how these standards relate to the extent  of freedom from unreasonable search.

Sniffer dog detections have been used by law enforcement for a long time and are highly reliable, low tech, non-invasive and low cost.  One would think their legality (or illegality) should be a simple, well established issue by now.  Police need to know whether the evidence will be admissible in court.  It is the difference between guilt and innocent for the accused.

The Supreme Court’s Kang-Brown decision in 2008 confirmed that sniffer dog searches are permitted only after police have reasonable and probable grounds to believe someone is bearing illegal drugs.

Chehil and MacKenzie, 2013

The Supreme Court of Canada saw a turnover of four judges between 2008 and 2013. Justices Binnie, Bastarache, Deschamps and Charron had retired. The Supreme Court’s unanimous blessing of the sniff search in Chehil  lies at odds to Kang-Brown only five years earlier in the same Court. Justices Cromwell, Moldaver, Karakatsanis and Wagner had joined the Court to replace them. The 2013 Court, with the four new judges, abandoned the Kang-Brown precedent in favour of the lower standard of reasonable suspicion (R. v. Chehil (2013), SCC 49; R. v. MacKenzie (2013), SCC 50).

In what serves as the binding majority judgment in the earlier case, three judges (LeBel, Fish and Abella) had stated authoritatively in Kang-Brown (para.1):

[We] would not lower the threshold for the exercise of police powers to one of “reasonable suspicion” since to do so would impair the important safeguards found in s. 8 of the Charter against unjustified state intrusion. [We] would apply the existing and well-established standard of “reasonable and probable grounds” to hold that the search did not meet this standard.

They feared the “the Court would create a new common law rule on the basis of little more than unverified and…unverifiable assumptions” and further that “a downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion…might lead to an even looser test of generalized suspicion.”  They also said there was no legal authority for sniffer dog searches.

Nevertheless, five years later in Chehil and MacKenzie they signed on, without comment, to the now-unanimous reasonable suspicion standard.  Legal authority for such searches – nonexistent in 2008 – was apparently by now assumed by the same three judges to exist in 2013.  Only two of the five judges who decided both the 2008 and 2013 cases were consistent on this critical constitutional principle that usually represents the evidentiary difference between guilt and innocence.

The four new judges, unhobbled by the Kang-Brown precedent, all embraced the reasonable suspicion standard.  Indeed one of the new appointees to the Court (Karakatsanis) wrote the unanimous Chehil decision and in her first paragraph arguably mis-stated the Kang-Brown holding:

[1]     In R. v. Kang-Brown . . . the Court balanced the travelling public’s privacy interests against the public interest in apprehending those who transport and traffic drugs.  The Court concluded that the use of a properly deployed drug detection dog was a search that was authorized by law and reasonable on a lower threshold of “reasonable suspicion”.

The following chart illustrates the division of the Court on each standard in 2008 vs. 2013:

Similar Facts – Different Liability Outcomes

The facts in Chehil were similar to Kang-Brown.  The RCMP dispatched a sniffer dog to an airport terminal to investigate Chehil, who they found suspicious based on their interpretation of the flight passenger manifest.  What was suspicious?  Chehil was travelling alone, had only checked one bag, and bought his ticket last minute with cash (essentially how Kang-Brown had travelled).  According to the experience of the RCMP officers, these were telltale signs of a drug courier.  The sniffer dog gave a positive indication that drugs were present, Chehil was arrested, and the RCMP found three kilograms of cocaine.

The Supreme Court’s unanimous blessing of the sniff search in Chehil lies at odds to Kang-Brown only five years earlier in the same Court.  All nine justices applied the standard of reasonable suspicion, found that the officers were reasonable in their suspicion of Chehil and ruled the dog sniff a legal search.  The resulting contraband evidence was admitted at trial.  Chehil’s objections were dismissed.  Now dog sniff searches in public places are legal across Canada after a police officer is possessed of a reasonable suspicion, a significant change from five years ago.

There is no explanation for the change in the law.  Sniff searches and dogs, illegal drugs and the methods of transporting them have not undergone revolutionary social or technological change in the last five years.  The recent unanimous Chehil decision changes the decision in Kang-Brown and no explanation was thought to be necessary.

How can the Supreme Court of Canada, on a matter as important as police searches under the Charter, change the law within five years?  Part of that can be explained by four new judges on the bench.  But three judges who carried the day five years earlier also retreated from the conclusions they had held.

Conclusion

The common law system is not easy for most Canadians to understand, perhaps because it is not always coherent.Now dog sniff searches in public places are legal across Canada after a police officer is possessed of a reasonable suspicion, a significant change from five years ago.  These dog sniffer cases, decided by the same top court five years apart, are difficult to reconcile.

It used to be that a departure from an entrenched common law principle, especially at the venerable Supreme Court of Canada, came with an explanation that balanced doctrinal stability and the need to accommodate social change.  But, changes to the composition of the Supreme Court of Canada and  an inclination to overturn precedent can lead to rapid and dramatic change to judge-made law.

When does a sniff amount to an illegal search?  The Supreme Court of Canada recently weighed in on this question and the decision changes the law in Canada from what it had previously been. What was the law prior to the recent decision?

Assume you are walking along the street or are on public transit.  Perhaps you are at the Greyhound bus depot where the police believe illegal drugs are being brought in and moved.  Normally not much privacy would be expected in such public places.

If a police dog walks alongside someone and indicates (usually by sitting down) that this person has illegal drugs in his pocket or bag, that is an illegal search in Canada.  Any drugs found will not be admissible in evidence if drug possession charges are laid.

This ruling emerges from a 2008 case from the Supreme Court of Canada called R. v. Kang-Brown, [2008] 1 SCR 456. As we will see, it was out of step with our American, British and Australian cousins.

The Kang-Brown Facts

On the morning of January 25^th, 2002, Mr. Gurmakh Kang-Brown disembarked from an all-night Greyhound bus trip from Vancouver at the Calgary bus terminal, a route that the Calgary police suspected of being frequented by drug couriers.  Several plainclothes officers were present as part of the Calgary Police Service’s Operation Jetway, to observe passengers for suspicious behaviour that might indicate illegal courier activity.

Alighting the bus with his bag slung over his shoulder, Kang-Brown made sustained eye contact with plain clothes officer Sergeant Macphee, who returned his stare. Walking through the terminal, Kang-Brown turned and looked again at officer Macphee several times.  Just before Kang-Brown exited the building, Macphee walked up and introduced himself as a police officer, showing his badge.  He told Kang-Brown that he was not in any trouble and that he was free to go at any time, but that he would like to ask him some questions.  Kang-Brown responded that that was fine with him.

After more small talk, Macphee noticed that Kang-Brown was becoming increasingly nervous. Macphee asked if Kang-Brown was carrying any illegal drugs.  Kang-Brown answered that he was not.  Macphee requested to peek into Kang-Brown’s bag.

Kang-Brown put the bag on the ground and began to open it.  Macphee knelt down, with his hands about to touch the bag.  He said, “just an officer safety thing here, do you mind?”  Before Macphee could touch the bag, Kang-Brown jerked it away and exclaimed “what are you doing?”

At this point, Macphee signaled another officer to approach with Chevy, a dog trained to sit when it detected narcotics.  Chevy sat next to Kang-Brown’s bag.  Macphee arrested Kang-Brown for the possession of narcotics.  A search of the bag turned up a box containing approximately $90 000 worth of cocaine and a small amount of heroin.

An Unconstitutional Search?

It is challenging to unpack the four separate opinions from the nine judges, but all agreed that the dog’s sniff at the bus depot was a search subject to “reasonable search and seizure” principles under section 8 of the Charter.

At trial, despite handler evidence that sniffer dog Chevy had historically enjoyed an accuracy rate of about 90% on detections (and was obviously accurate in this case), Kang-Brown’s lawyer argued that the use of a sniffer dog was an unlawful search.  Under the Charter, all the evidence obtained as a result would be inadmissible at trial.  Without any admissible evidence, there could be no conviction for the drug possession charge.

The case went to the Supreme Court of Canada in 2008.  It is challenging to unpack the four separate opinions from the nine judges, but all agreed that the dog’s sniff at the bus depot was a search subject to “reasonable search and seizure” principles under section 8 of the Charter.  A minority of four judges said Canadian police can, even in the absence of legislative authority (i.e. under the common law) search using drug sniffing dogs on a reasonable suspicion.  Another judge said the standard was generalized suspicion, which would have covered the facts of this case.  The other four judges said the standard was the same as it has always been: the higher standard of reasonable and probable grounds.  One will recall that the only reason the police officer approached Kang-Brown in the bus depot was because of his suspicious eye contact and the dog was summoned later after he was reluctant to open his bag.

Six judges said this sniff search violated section 8 of the Charter and the evidence of all the illegal drugs found were inadmissible against Kang-Brown.  The other three judges disagreed.

Impact

As a result of the Supreme Court decision in Kang-Brown, sniffer dog searches were permitted only after police had reasonable and probable grounds to believe someone was bearing illegal drugs.  This rendered sweeps and general monitoring by canines essentially unconstitutional in Canada in public spaces such as bus depots and streets.

There was flexibility in the application of Kang-Brown based on the nature of the public venue in which the search was conducted.  For example, there was a lower expectation of privacy in airports, where security is more pervasive and people are subject to repeated searches (R v. Chehil, 2009 NSCA 111 (CanLII)), or even on a public highway (R v. MacKenzie, 2013 SCC 50 (CanLII)).  Posting signs indicating that people and their bags may be randomly searched (which was the case at the Calgary bus depot, but some of the evidence on that was equivocal) may also reduce general privacy expectations.

Different Jurisdictions – Different Breeds of Sniffer Dog Law

Sniffer dogs have had to pass constitutional muster in other jurisdictions as well.  The United States Supreme Court has decided four cases related to sniffer dogs.  Basically, they say that the use of dogs in a public place does not amount to a search, so the equivalent Fourth Amendment right of the Constitution is not offended (United States v. Place (1983), 462 U.S. 696). The U.S. Supreme Court has also concluded that dog sniffs during routine traffic stops are permissible and are not searches, provided the traffic stop itself is legal.  However, the Court classifies a dog sniff as a search – requiring probable cause and a warrant – on private property (Florida v. Jardines (2013), 133 S.Ct. 1409).

Sniffer dogs have had to pass constitutional muster in other jurisdictions as well.  The United States Supreme Court has decided four cases related to sniffer dogs.

British law also refuses to define a dog sniff in a public place as a search.  Peace officers often rely on sniffer dog indications as their basis for reasonable suspicion required for a further physical search.  No legislation specifically governs the use of sniffer dogs by law enforcement and the practice has never been challenged in the courts. (“Sniffer Dogs”, Release Legal Emergency & Drugs Service (London) 2013)

A study by the Ombudsman of New South Wales in Australia reported that drugs were found in only 27% of searches conducted after a dog had given a positive indication of their presence.  The study, coupled with sustained public outcry led to the 2005 repeal of the Drug Dogs Act, the legislation that enabled warrantless dog sniffs. Besides legal legitimacy, any police investigation tactic should have functional legitimacy.

Conclusion

The law of sniffer dogs, as in most areas of the criminal law, strives to balance the duty of law enforcement to detect and investigate crimes with our Charter right to be “secure against unreasonable search or seizure.”  There was a long-standing threshold that police must possess reasonable and probable grounds in order to conduct any search and this largely consigned technology-free sniffer dogs to the kennel.

However, the legal landscape with regard to sniffer dogs changed significantly with the release of the September 27, 2013 Supreme Court of Canada decision in the case of R. v. Chehil. In that decision, which was unanimous, the judges examined in great detail the concept of “reasonable suspicion”, which differs from “reasonable and probable grounds”. We will examine that decision and its impact on the Canadian law on sniffer dogs in our next column.