R. v. Chehil (M.S.), (2013) 335 N.S.R.(2d) 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 22, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 335 N.S.R.(2d) 1 (SCC);2013 SCC 49

R. v. Chehil (M.S.) (2013), 335 N.S.R.(2d) 1 (SCC);

    1060 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.S.R.(2d) TBEd. OC.020

Mandeep Singh Chehil (appellant) v. Her Majesty the Queen (respondent) and Attorney General of Ontario, Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic and British Columbia Civil Liberties Association (interveners)

(34524; 2013 SCC 49; 2013 CSC 49)

Indexed As: R. v. Chehil (M.S.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

September 27, 2013.

Summary:

Members of the RCMP's Criminal Interdiction Team analyzed the passenger manifest for an overnight Vancouver to Halifax flight. They observed that the accused was one of the last passengers to purchase a ticket, he paid for his one-way ticket in cash, and he checked one bag, which they testified were indicators of illegal drug trafficking. They decided to verify the accused's checked bag for the presence of drugs using a drug detection dog, Boris. The accused's bag and nine other bags from the same flight were removed. Boris gave a positive indication on the accused's bag and on a cooler next to it. The owner of the cooler consented to a search, and no drugs were found. The accused was arrested for possession of a narcotic. Upon forcing open his locked bag, the police found a backpack containing three kilograms of cocaine. The accused was charged with possession of cocaine for the purpose of trafficking.

The Nova Scotia Supreme Court, in a decision reported at (2010), 300 N.S.R.(2d) 28; 950 A.P.R. 28, held that the accused had a reasonable expectation of privacy in his checked luggage. The court also held that the police did not have reasonable suspicion when they deployed Boris. In particular, the failure of the police to conduct further investigation or consider exculpatory explanations meant that they did not undertake the global assessment of the facts required to establish reasonable suspicion. The court found that yearly validation performance was not an adequate indicator of a sniffer dog's reliability, and that Boris's performance in the field was not sufficiently reliable for the search to be reasonable. The court excluded the evidence under s. 24(2) of the Charter. The Crown appealed.

The Nova Scotia Court of Appeal, in a decision reported at (2011), 308 N.S.R.(2d) 122; 976 A.P.R. 122, allowed the appeal and ordered a new trial, finding that there was no Charter breach. The accused appealed.

The Supreme Court of Canada dismissed the appeal. The reasonable suspicion standard required that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there were objective ascertainable grounds to suspect that an individual was involved in criminal behaviour. It did not require the police to investigate to rule out exculpatory circumstances. The Court of Appeal correctly concluded that the trial judge erred in assessing the factors individually rather than in their entirety and in finding the sniffer dog to be unreliable. Viewed in their entirety, the factors in this case justified a reasonable suspicion of illegal drug activity. After the positive indication by Boris, the police had reasonable and probable grounds to arrest the accused.

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - [See second Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Supreme Court of Canada stated that "The intervener the Attorney General of Ontario suggested that travellers do not have a reasonable expectation of privacy in their checked luggage in an airport setting, given the security screening that such luggage is subjected to as a condition of travel. However, as this Court has found in the past, an individual's reasonable expectation of privacy must be assessed contextually, and may vary depending on the nature of the circumstances ... The trial judge found that while the appellant was aware of and implicitly consented to the security screening that his bag would undergo, this did not undermine his reasonable expectation of privacy in his checked luggage with regard to general police investigations. The Court of Appeal agreed. The Crown does not contest these findings before this Court, and I see no reason to disturb them" - See paragraph 59.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See ninth Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See second Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada stated that "The deployment of a single-profile narcotic dog (a dog trained to detect certain kinds of illegal drugs using its sense of smell) is a search that does not require prior judicial authorization. However, in order for a sniff search to be Charter-compliant, it must meet the criteria for unauthorized searches laid out in R. v. Collins, [1987] 1 S.C.R. 265. As such, when sniffer dogs are engaged by the police, the deployment must be authorized by a reasonable law (in this case, the common law), and the manner in which the sniff search was conducted must be reasonable. In Kang-Brown, a majority of the Court found that the decision to deploy a sniffer dog meets the Collins test where the police have a reasonable suspicion based on objective, ascertainable facts that evidence of an offence will be discovered ... In my view, there is no need to reformulate the 'reasonable suspicion' test; it is a common standard that arises in a number of contexts" - The court discussed (1) the nature of reasonable suspicion; (2) the role of "profiles" as grounds for reasonable suspicion; and (3) the nature of rigorous judicial scrutiny - See paragraphs 19 to 47.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - Members of the RCMP's Criminal Interdiction Team analyzed the passenger manifest for an overnight Vancouver to Halifax flight - The observed that the accused was one of the last passengers to purchase a ticket, he paid for his one way ticket in cash, and he checked one bag, which they testified were indicators of illegal drug trafficking - They decided to verify the accused's checked bag for the presence of drugs using a drug detection dog, Boris - The accused's bag and nine other bags from the same flight were removed - Boris gave a positive indication on the accused's bag and on a cooler next to it - The owner of the cooler consented to a search, and no drugs were found - The accused was arrested for possession of a narcotic - Upon forcing open his locked bag, the police found a backpack containing three kilograms of cocaine - The trial judge held that the police did not have reasonable suspicion when they deployed Boris - In particular, the failure of the police to conduct further investigation or consider exculpatory explanations meant that the police did not undertake the global assessment of the facts required to establish reasonable suspicion - The trial judge also found that yearly validation performance was not an adequate indicator of a sniffer dog's reliability, and that Boris's performance in the field was not sufficiently reliable for the search to be reasonable - The trial judge excluded the evidence under s. 24(2) of the Charter - The Nova Scotia Court of Appeal allowed a Crown appeal and ordered a new trial, finding that there was no Charter breach - The accused appealed - The Supreme Court of Canada dismissed the appeal - The reasonable suspicion standard required that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there were objective ascertainable grounds to suspect that an individual was involved in criminal behaviour - It did not require the police to investigate to rule out exculpatory circumstances - The trial judge erred in assessing the factors individually rather than in their entirety - Viewed in their entirety, the factors in this case justified a reasonable suspicion of illegal drug activity - The trial judge also erred in finding that the search was unreasonable as the sniffer dog used was not reliable - The trial judge erred in principle by discounting the RCMP's controlled yearly validations and by failing to consider evidence of contamination from the recent presence of drugs that explained indications where no drugs were found - Boris was reliable and the sniff search was reasonable - After Boris's positive indication, the police had reasonable and probable grounds to arrest the accused - See paragraphs 59 to 77.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada discussed the reasonable suspicion standard in a case involving a decision by the police to deploy a drug sniffer dog - The court stated that the police were not under a duty to investigate alternative explanations for the constellations of factors giving rise to reasonable suspicion - However, they had to account for information received between the time of the decision to deploy the sniffer dog and the performance of the sniff search - Further, the constellation of factors giving rise to a reasonable suspicion had to be assessed at the time of the dog sniff search and not after - See paragraphs 67 to 68.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada discussed the reasonable suspicion standard in a case involving a decision by the police to deploy a drug sniffer dog - The court stated that "while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. ...The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. In spite of this reality, properly conducted sniff searches that are based on reasonable suspicion are Charter-compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature ... However, the suspicion held by the police cannot be so broad that it descends to the level of generalized suspicion, which was described by Bastarache J., at para. 151 of A.M., as suspicion 'that attaches to a particular activity or location rather than to a specific person'. 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 ... A police officer's grounds for reasonable suspicion cannot be assessed in isolation" - See paragraphs 27 to 29.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada discussed the reasonable suspicion standard in a case involving a decision by the police to deploy a drug sniffer dog - The court stated that "While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act. ... In sum, when single-profile narcotic dogs are deployed on the basis of reasonable suspicion, the police intrusion must be connected to factors indicating a drug-related offence. Reasonable suspicion does not, however, require the police to point to a specific ongoing crime, nor does it entail the identification of the precise illegal substance being searched for. The reasonable suspicion held by the police need only be linked to the possession, traffic, or production of drugs or other drug-related contraband" - See paragraphs 35 to 37.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada discussed the reasonable suspicion standard in a case involving a decision by the police to deploy a drug sniffer dog - The court stated that "Characteristics identified by a police profile can be considered when evaluating reasonable suspicion; however, profile characteristics are not a substitute for objective facts that raise a reasonable suspicion of criminal activity. Profile characteristics must be approached with caution precisely because they risk undermining a careful individualized assessment of the totality of the circumstances. In this case, the profiling alleged consisted of a set of factors that the officers had been taught to look for and had learned through experience to look for in order to detect drug couriers. Whether or not these factors give rise to reasonable suspicion will depend upon a police officer's reasons for relying on specific factors, the evidence connecting these factors to criminal activity, and the entirety of the circumstances of the case. ... I caution that courts must be wary that factors arising out of police experience are not in fact stereotypical or discriminatory. Furthermore, the elements considered as part of the reasonable suspicion analysis must respect Charter principles. The factors considered under the reasonable suspicion analysis must relate to the actions of the subject of an investigation, and not his or her immutable characteristics. Nor should the exercise of Charter rights, such as the right to remain silent or to walk away from questioning made outside the context of a detention, provide grounds for reasonable suspicion. These rights become meaningless to the extent that they are capable of forming the basis of reasonable suspicion" - See paragraphs 38 to 43.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada discussed the reasonable suspicion standard in a case involving a decision by the police to deploy a drug sniffer dog - The court stated that "The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that a reasonable person, standing in the shoes of the police officer, would have held a reasonable suspicion of criminal activity. Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on 'factual elements which can be adduced in evidence and permit an independent judicial assessment' ... An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on her training or experience in the field ... A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality. The more general the constellation relied on by the police, the more there will be a need for specific evidence regarding police experience and training. To the extent that specific evidence of the investigating officer's experience and training supports the link the Crown asks the court to draw, the more compelling that link will be" - See paragraphs 45 to 47.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada stated that "In Kang-Brown, the high accuracy of sniffer dogs who were properly trained and deployed was key to endorsing a reasonable suspicion standard for sniff searches. Further, in light of the consequences of a false indication, the reliability of a particular dog is also relevant to determining whether a particular sniff search was conducted reasonably in the circumstances ... In the absence of legislated standards, trial judges must continue to scrutinize the evidence before them in order to determine whether the particular sniff search meets the Collins criteria. Thus, even though indicia like a dog's past performance and the risk of cross-contamination can be relevant to determining a dog's reliability, no specific evidentiary requirements will apply mechanically to every case. The prosecution does not have to prove that the dog is infallible, just as it does not have to prove that an informer's tip is infallible. Dog reliability is also important to determining whether a positive indication provides the reasonable and probable grounds required to justify further police action. The reviewing court will make this determination armed with the results of the sniff search and evidence regarding the reliability of the dog" - See paragraphs 48 to 54.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada stated that "The intervener the CCLA argued that a positive indication for drugs by a sniffer dog should only justify a verification search, which is less intrusive than an arrest. This position echoes Binnie J.'s observation in Kang-Brown ... and A.M. ... that it would be preferable that no arrest be made until a verification search has confirmed the presence of drugs ... it seems to me that the minimal intrusion on privacy interests posed by a sniff search was key to this Court's decision in Kang-Brown and A.M. to recognize a common law power to sniff search without prior judicial authorization. The same would not hold true for verification searches, which involve the actual inspection of a hiding place's contents and pose a greater interference with privacy interests. I note as well that Binnie J. did not speak for a majority of the Court in Kang-Brown and A.M., and did not provide a basis for the new common law power regarding verification searches. ... I would also observe that, in cases like this one, where the police deploy a sniffer dog to sniff an item in the absence of its owner, the police should generally provide notice to the owner of the item searched, even in the event of a negative indication. ... the rigour of the reasonable suspicion standard is derived from the fact that it is based on objective facts that are subject to judicial review. Without a notice requirement, judicial review of a search conducted in the absence of an item's owner may not be possible ... after-the-fact notice of searches that are not subject to prior judicial authorization is an important safeguard against the abuse of such powers" - See paragraphs 55 to 58.

Civil Rights - Topic 1653.2

Property - Search and seizure - Warrantless search and seizure - General - [See first, second and ninth Civil Rights - Topic 1641.4 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See all Civil Rights - Topic 1641.4 ].

Cases Noticed:

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 1].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 1].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 3].

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246; 2013 SCC 50, refd to. [para. 4].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 19].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 22].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 23, footnote 1].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272, refd to. [para. 23, footnote 1].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 23, footnote 1].

R. v. M.R.M., [1998] 3 S.C.R. 393; 233 N.R. 1; 171 N.S.R.(2d) 125; 519 A.P.R. 125, refd to. [para. 23, fotnote 1].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 24].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 29].

United States v. Gooding (1982), 695 F.2d 78 (4th Cir.), refd to. [para. 30].

Reid v. Georgia (1980), 448 U.S. 438, refd to. [para. 30].

Terry v. Ohio (1968), 392 U.S. 1, refd to. [para. 30].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176; 34 O.R.(3d) 743 (C.A.), refd to. [para. 33].

United States v. Sokolow (1989), 490 U.S. 1, refd to. [para. 34].

Illinois v. Gates (1983), 462 U.S. 213, refd to. [para. 34].

R. v. Payette (S.) (2010), 291 B.C.A.C. 289; 492 W.A.C. 289; 259 C.C.C.(3d) 178; 2010 BCCA 392, refd to. [para. 36].

Florida v. Harris (2013), 133 S. Ct. 1050, refd to. [para. 54].

R. v. Borden (J.R.), [1994] 3 S.C.R. 145; 171 N.R. 1; 134 N.S.R.(2d) 321; 383 A.P.R. 321, refd to. [para. 55].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 55].

R. v. Lozano, 2013 ONSC 1871, refd to. [para. 55, footnote 3].

R. v. Nguyen (M.J.T.X.) (2013), 412 Sask.R. 284; 2013 SKQB 36, refd to. [para. 55, footnote 3].

R. v. Jarvis (D.L.) (2012), 550 A.R. 71; 270 C.R.R.(2d) 154; 2012 ABQB 602, refd to. [para. 55, footnote 3].

R. v. Gowing (S.A.) et al. (2012), 532 A.R. 312; 2012 ABPC 38, refd to. [para. 55, footnote 3].

R. v. Earle (T.F.) (2012), 315 N.S.R.(2d) 123; 998 A.P.R. 123; 2012 NSPC 27, refd to. [para. 55, footnote 3].

R. v. Krafczyk (J.J.) (2011), 511 A.R. 211; 2011 ABQB 107, refd to. [para. 55, footnote 3].

R. v. Imani, [2012] N.B.J. No. 120 (T.D.), refd to. [para. 55, footnote 3].

R. v. Ryan (A.J.) (2011), 300 N.S.R.(2d) 97; 950 A.P.R. 97; 2011 NSSC 102, refd to. [para. 55, footnote 3].

R. v. Hoy (D.Y.) (2010), 534 A.R. 58; 2010 ABQB 575, refd to. [para. 55, footnote 3].

R. v. Hoang (2010), 206 C.R.R.(2d) 127; 2010 BCPC 24, refd to. [para. 55, footnote 3].

R. v. Frieburg (T.) (2013), 294 Man.R.(2d) 1; 581 W.A.C. 1; 2013 MBCA 40, refd to. [para. 57, footnote 4].

R. v. Tse (Y.F.A.), [2012] 1 S.C.R. 531; 429 N.R. 109; 321 B.C.A.C. 1; 547 W.A.C. 1; 2012 SCC 16, refd to. [para. 58].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 2009 SCC 17, refd to. [para. 59].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 60].

R. v. Wong (2005), 127 C.R.R.(2d) 342; 2005 BCPC 24, refd to. [para. 65].

R. v. Calderon (2004), 188 C.C.C.(3d) 481 (Ont. C.A.), refd to. [para. 65].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 55].

Authors and Works Noticed:

Sankoff, Peter, and Perrault, Stéphane, Suspicious Searches: What's So Reasonable About Them? (1999), 24 C.R.(5th) 123, p. 125 [para. 46].

Shapiro, Jonathan, Confusion and Dangers in Lowering the Hunter Standards (2008), 55 C.R.(6th) 396, p. 399 [para. 57].

Tanovich, David M., A Powerful Blow Against Police Use of Drug Courier Profiles (2008), 55 C.R.(6th) 379, p. 391 [para. 65].

Counsel:

Stanley W. MacDonald, Q.C., for the appellant;

Mark Covan, for the respondent;

Amy Alyea, for the intervener, the Attorney General of Ontario;

Mahmud Jamal, David Mollica and W. David Rankin, for the intervener, the Canadian Civil Liberties Association;

Written submissions only by Tamir Israel, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

Michael A. Feder and H. Michael Rosenberg, for the intervener, the British Columbia Civil Liberties Association.

Solicitors of Record:

Garson MacDonald, Halifax, Nova Scotia, for the appellant;

Public Prosecution Service of Canada, Halifax, Nova Scotia, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

University of Ottawa, Ottawa, Ontario, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic;

McCarthy Tétrault, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association.

This appeal was heard on January 22, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Karakatsanis, J., on September 27, 2013.