R. v. Chehil (M.S.), 2010 NSSC 255

JudgeCacchione, J.
CourtSupreme Court of Nova Scotia (Canada)
Case DateMay 05, 2010
JurisdictionNova Scotia
Citations2010 NSSC 255;(2010), 300 N.S.R.(2d) 28 (SC)

R. v. Chehil (M.S.) (2010), 300 N.S.R.(2d) 28 (SC);

    950 A.P.R. 28

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MR.006

Her Majesty the Queen (respondent) v. Mandeep Singh Chehil (applicant)

(CRH319974; 2010 NSSC 255)

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

Nova Scotia Supreme Court

Cacchione, J.

August 26, 2010.

Summary:

The accused arrived at the Halifax International Airport on a Westjet overnight flight from Vancouver. He travelled with one suitcase as checked baggage. Prior to the flight's arrival, members of the RCMP Criminal Interdiction Team examined the Westjet passenger manifest for a flight arriving from Vancouver, a city known by the police to be a source for drugs entering Nova Scotia, and noted the accused's name as being the last or near last passenger to purchase a ticket for the flight. It was a one-way ticket purchased with cash. A decision was made to have the drug detection dog sniff the accused's bag. The accused's suitcase was searched by the drug detection dog. The dog indicated the presence of drugs. The accused was arrested for possession of a controlled substance. His locked suitcase was forced open. It contained three kilograms of cocaine. The accused was charged with possession of cocaine for the purpose of trafficking. The accused applied to exclude the evidence pursuant to s. 24(2) of the Charter. He alleged that his s. 8 Charter rights were violated because the police did not have the required reasonable suspicion before using a drug detection dog to sniff search his checked luggage. He submitted that he had a reasonable expectation of privacy in his checked luggage and that the search was warrantless and unreasonable.

The Nova Scotia Supreme Court held as follows: the accused had a reasonable expectation of privacy in his checked baggage; the police did not have an objectively reasonable suspicion that the accused's luggage contained narcotics; the accused was subjected to an unreasonable search and seizure when his checked luggage was sniff searched by the sniffer dog; as the search was not lawful, the arrest which followed was unlawful and forcing open the accused's suitcase was not a search incident to a lawful arrest; as the search was not authorized by law it was unreasonable and a violation of the accused's s. 8 Charter rights; as the police had no lawful authority to arrest and search the accused his rights under ss. 7 and 9 of the Charter were also violated. The court concluded that the evidence should be excluded under s. 24(2).

Editor's Note: For other decisions involving this accused see (2008), 273 N.S.R.(2d) 168; 872 A.P.R. 168 (S.C.) and (2009), 284 N.S.R.(2d) 130; 901 A.P.R. 130 (C.A.).

Civil Rights - Topic 1289

Security of the person - Unlawful arrest - Resulting from illegal search - The accused arrived at the Halifax International Airport on a Westjet overnight flight from Vancouver - He travelled with one suitcase as checked baggage - Prior to the flight's arrival, members of the RCMP Criminal Interdiction Team examined the Westjet passenger manifest for a flight arriving from Vancouver, a city known by the police to be a source for drugs entering Nova Scotia, and noted the accused's name as being the last or near last passenger to purchase a ticket for the flight - It was a one-way ticket purchased with cash - A decision was made to have the drug detection dog sniff the accused's bag - The accused's suitcase and nine other randomly selected pieces of luggage were searched by the drug detection dog - The dog indicated the presence of drugs on the accused's bag (and on a cooler belonging to another passenger which was searched with negative results) - The accused was arrested for possession of a controlled substance - His locked suitcase was forced open - It contained three kilograms of cocaine - The accused was charged with possession for the purpose of trafficking - He alleged that his s. 8 Charter rights were violated - The Nova Scotia Supreme Court held as follows: the accused had a reasonable expectation of privacy in his checked baggage; the police did not have an objectively reasonable suspicion that the accused's luggage contained narcotics; the accused was subjected to an unreasonable search and seizure when his checked luggage was sniff searched by the sniffer dog; as the search was not lawful, the arrest which followed was unlawful and forcing open the accused's suitcase was not a search incident to a lawful arrest; as the search was not authorized by law it was unreasonable and a violation of the accused's s. 8 Charter rights; as the police had no lawful authority to arrest and search the accused his rights under ss. 7 and 9 of the Charter were also violated - The court concluded that the evidence should be excluded under s. 24(2) - See paragraphs 147 to 221.

Civil Rights - Topic 1444

Security of the person - Right to privacy - Expectation of privacy - [See first Civil Rights - Topic 1508 ].

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The Nova Scotia Supreme Court stated that "It is important to distinguish between the legislated authority of airport screeners on the one hand and the common law powers of the police on the other when determining whether a passenger, in an airport has a reasonable expectation of privacy. While I accept that security at an airport is visible and high and that a traveller's expectation of privacy in the airport context is reduced in comparison to a bus terminal or train station, it is not, for the following reasons, extinguished. A traveller consents to searches at an airport knowing these are done to ensure passenger safety. A traveller understands this as a pre-requisite for boarding a flight. A traveller does not consent to these searches for purposes of general police investigation. It is untenable to accept that simply because one is in an airport that therefore one is consenting to a police search of their person or baggage for general investigative purposes without the police having the legal grounds to conduct the search" - See paragraphs 118 to 120.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Following the accused's arrival at the Halifax International Airport on a flight from Vancouver, police used a drug detection dog to sniff his checked bag - The dog indicated the presence of drugs - The accused was arrested for possession of a controlled substance - His locked suitcase was forced open - It contained three kilograms of cocaine - The accused alleged that his s. 8 Charter rights were violated - The Nova Scotia Supreme Court did not agree with the Crown's submission that because this was a search at an airport the accused could not have a reasonable expectation of privacy in his checked baggage - Travellers did not lose their privacy interest in their belongings simply because they were in an airport and submitted themselves and their baggage to security screening - A reasonable inference could be drawn that the accused knew and intended that his luggage be subjected to the security measures in place in an airport - However, it could not be inferred that by doing that he consented to his bag being searched by the police - Security measures at an airport were meant to ensure passenger and aircraft safety, not as a method of general police investigation - The accused had both a subjectively and objectively reasonable expectation of privacy in his checked luggage - See paragraphs 72 to 146.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See Civil Rights - Topic 1289 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1289 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1289 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1289 ].

Civil Rights - Topic 8380

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Status or standing - [See Civil Rights - Topic 8583 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - Following the accused's arrival at the Halifax International Airport on a flight from Vancouver, police used a drug detection dog to sniff his checked bag - The dog indicated the presence of drugs - The accused was arrested for possession of a controlled substance - His locked suitcase was forced open - It contained three kilograms of cocaine - The accused was charged with possession for the purpose of trafficking - The accused applied to exclude the evidence, alleging that his s. 8 Charter rights were violated - The Nova Scotia Supreme Court stated that "The following facts are relevant to a determination of whether the applicant has standing to bring this application. The applicant flew from Vancouver to Halifax with one locked piece of checked baggage. He flew under his own name and had a baggage claim ticket for the piece of luggage which he had checked. The bag had attached to it an identification tag bearing the applicant's name and a partial address of Surrey, B.C. The applicant claimed this bag from the baggage carousel. As he was leaving the airport with the bag in tow he was arrested. It was the applicant's bag that was searched and found to contain cocaine. The applicant has been charged as a result of possessing the bag which contained a controlled substance. The applicant did not testify nor did he call evidence on this application. This in and of itself does not deprive the applicant of standing to bring this application. On the totality of the evidence presented I am satisfied that the applicant has standing to bring this application" - See paragraphs 67 to 71.

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1289 ].

Cases Noticed:

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 4].

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. 4].

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. 4].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 230 C.C.C.(3d) 289; 2008 SCC 18, refd to. [para. 56].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 230 C.C.C.(3d) 377; 2008 SCC 19, refd to. [para. 56].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 68].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 73].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 74].

R. v. Patrick (R.S.), [2009] 1 S.C.R. 579; 387 N.R. 44; 454 A.R. 1; 455 W.A.C. 1; 242 C.C.C.(3d) 158; 2009 SCC 17, refd to. [para. 75].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 79].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 81].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 82].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 83].

R. v. Truong (S.H.) (2002), 169 B.C.A.C. 97; 276 W.A.C. 97; 168 C.C.C.(3d) 132; 2002 BCCA 315, refd to. [para. 121].

R. v. Crisby (B.R.) (2008), 281 Nfld. & P.E.I.R. 117; 863 A.P.R. 117; 2008 NLTD 185, consd. [para. 126].

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 134].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 153].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 67 C.R.(6th) 293; 2009 SKCA 49, refd to. [para. 155].

R. v. Sekhon (A.S.) (2009), 270 B.C.A.C. 81; 454 W.A.C. 81; 2009 BCCA 187, refd to. [para. 160].

R. v. Juan (J.P.) (2007), 243 B.C.A.C. 259; 401 W.A.C. 259; 222 C.C.C.(3d) 289; 2007 BCCA 351, refd to. [para. 160].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 161].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 175].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241; 53 C.C.C.(3d) 257, refd to. [para. 177].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 203].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 252 C.C.C.(3d) 273; 2010 SCC 8, refd to. [para. 219].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 9, sect. 24(2) [para. 1].

Authors and Works Noticed:

Stuart, Don, Revitalizing Section B: Individualized Reasonable Suspicion is a Sound Compromise for Routine Dog Sniff Use (2008), 55 C.R.(6th) 376, generally [para. 150].

Counsel:

Susan Y. Bour, for the Crown;

Stanley W. MacDonald, Q.C., for Mr. Chehil.

This application was heard on April 7-9 and May 5, 2010, at Halifax, N.S., before Cacchione, J., of the Nova Scotia Supreme Court, who delivered the following decision on August 26, 2010.

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7 practice notes
  • R. v. Chehil, 2013 SCC 49
    • Canada
    • Supreme Court (Canada)
    • September 27, 2013
    ...(2d) 109, 88 C.R. (6th) 300, 976 A.P.R. 122, [2011] N.S.J. No. 499 (QL), 2011 CarswellNS 646, setting aside a decision of Cacchione J., 2010 NSSC 255, 300 N.S.R. (2d) 28, 268 C.C.C. (3d) 249, 950 A.P.R. 28, [2010] N.S.J. No. 712 (QL), 2010 CarswellNS 906, and ordering a new trial. Appeal St......
  • R. v. Chehil (M.S.), (2013) 335 N.S.R.(2d) 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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......
  • R. v. Chehil (M.S.), (2013) 448 N.R. 370 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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......
  • R. v. Chehil (M.S.), (2011) 308 N.S.R.(2d) 122 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 10, 2011
    ...that both the dog sniff and subsequent suitcase search were unlawful. 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 police did not have the requisite reasonable suspicion with respect to the dog sniff search and they did n......
  • Request a trial to view additional results
7 cases
  • R. v. Chehil, 2013 SCC 49
    • Canada
    • Supreme Court (Canada)
    • September 27, 2013
    ...(2d) 109, 88 C.R. (6th) 300, 976 A.P.R. 122, [2011] N.S.J. No. 499 (QL), 2011 CarswellNS 646, setting aside a decision of Cacchione J., 2010 NSSC 255, 300 N.S.R. (2d) 28, 268 C.C.C. (3d) 249, 950 A.P.R. 28, [2010] N.S.J. No. 712 (QL), 2010 CarswellNS 906, and ordering a new trial. Appeal St......
  • R. v. Chehil (M.S.), (2013) 335 N.S.R.(2d) 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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......
  • R. v. Chehil (M.S.), (2013) 448 N.R. 370 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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......
  • R. v. Chehil (M.S.), (2011) 308 N.S.R.(2d) 122 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • May 10, 2011
    ...that both the dog sniff and subsequent suitcase search were unlawful. 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 police did not have the requisite reasonable suspicion with respect to the dog sniff search and they did n......
  • Request a trial to view additional results

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