R. v. Chehil (M.S.), (2011) 308 N.S.R.(2d) 122 (CA)

JudgeMacDonald, C.J.N.S., Saunders and Farrar, JJ.A.
CourtCourt of Appeal of Nova Scotia (Canada)
Case DateMay 10, 2011
JurisdictionNova Scotia
Citations(2011), 308 N.S.R.(2d) 122 (CA);2011 NSCA 82

R. v. Chehil (M.S.) (2011), 308 N.S.R.(2d) 122 (CA);

    976 A.P.R. 122

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. SE.041

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

(CAC 339413; 2011 NSCA 82)

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

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Farrar, JJ.A.

September 16, 2011.

Summary:

A special RCMP team was tasked to detect the flow of illegal drugs into the Halifax International Airport. It consulted with local airline agents in an effort to identify travellers displaying suspicious patterns. The officers noticed that the accused matched several of their established indicia (a Vancouver-Halifax overnight flight, a walk up passenger travelling alone, a one-way ticket paid for with cash, the last ticket purchased for that flight, one locked suitcase). When the flight arrived in Halifax, the accused's bag and nine other randomly selected bags were set aside for sniffing by a police dog. The dog indicated the presence of drugs in the accused's bag. He also made an indication with respect to a cooler, which was next to the accused's bag. No drugs were found in the cooler. The team arrested the accused and searched his suitcase. Cocaine was discovered. The accused was charged with possession of cocaine for the purpose of trafficking. The accused brought a Charter application asserting 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 not have reasonable grounds to arrest the accused and to search his bag incidental to the arrest. The court concluded that the accused's ss. 7, 8 and 9 Charter rights were violated. The court excluded the seized evidence, resulting in an acquittal. The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial. The court held that the police had the requisite reasonable grounds for suspicion for the dog sniff search. Further, the suspicious indicators justifying the sniff search, together with the added results from that search, gave the police reasonable and probable grounds to believe that the accused was in possession of illegal drugs. His arrest was therefore justified, thus making it reasonable for the police to search his suitcase. There was therefore no breach of the accused's Charter rights.

Civil Rights - Topic 1214

Security of the person - Lawful or reasonable search - Searches incidental to arrest or detention - [See Civil Rights - Topic 1262 ].

Civil Rights - Topic 1262

Security of the person - Lawful arrest - What constitutes - A special RCMP team was tasked to detect the flow of illegal drugs into the Halifax International Airport - It consulted with local airline agents in an effort to identify travellers displaying suspicious patterns - The officers noticed that the accused matched several of their established indicia (a Vancouver-Halifax overnight flight, a walk up passenger travelling alone, a one-way ticket paid for with cash, the last ticket purchased for that flight, one locked suitcase) - When the flight arrived in Halifax, the accused's bag and nine other randomly selected bags were set aside for sniffing by a police dog - The dog indicated the presence of drugs in the accused's bag - He also made an indication with respect to a cooler, which was next to the accused's bag - No drugs were found in the cooler - The team arrested the accused and searched his suitcase - Cocaine was discovered - The accused was charged - The trial judge held that the police did not have the requisite reasonable suspicion with respect to the dog sniff search and they did not have reasonable grounds to arrest the accused and to search his bag incidental to the arrest - The accused's ss. 7, 8 and 9 Charter rights were therefore violated - The seized evidence was excluded, resulting in an acquittal - The Crown appealed - The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial - When the court viewed the "constellation of objectively discernable facts", it saw the requisite reasonable grounds for suspicion for the dog sniff search - The court had to ask whether those factors coalesced into reasonable suspicion, despite a potential innocent explanation for each one - With respect to the requisite reasonable and probable grounds for the arrest and incidental suitcase search, the police dog's positive indication in addition to the accused's other suspicious travel patterns represented a strong indication that the accused was transporting illegal drugs - The court also considered the judge's concern regarding the police dog's reliability arising from the fact that the dog had indicated on the cooler when it contained no drugs - The judge had also questioned Cpl. Daigle's records that suggested the dog was 87.6% accurate in the field with actual deployments, because the statistic included indications where no drugs were found, and he was sceptical about what Cpl. Daigle touted as the dog's 99% accuracy in controlled testing - The court stated that the challenge to Cpl. Daigle's expert evidence appeared to be based on conjecture and represented a misapprehension of the evidence serious enough to warrant the court's interference - The court concluded that "the police, armed with the suspicious indicators justifying the sniff search, together with the added results from this search, had reasonable and probable grounds to believe that [the accused] was in possession of illegal drugs. His arrest was therefore justified, thus making it reasonable for the police to search his suitcase. There was therefore no Charter breach" - See paragraphs 27 to 59.

Civil Rights - Topic 1524

Property - Personal property - Search and seizure by police - [See Civil Rights - Topic 1262 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 3147

Special powers - Power of search - Search incidental to arrest or detention - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - [See Civil Rights - Topic 1262 ].

Criminal Law - Topic 4860

Appeals - Indictable offences - Grounds of appeal - Question of law or error of law - The Crown appealed from the accused's acquittal on a charge of possession of cocaine for the purpose of trafficking - The Nova Scotia Court of Appeal held that the issues of whether the police met the requisite standards for a dog sniff search of the accused's suitcase and the arrest of the accused and incidental search of his suitcase were questions of law reviewable on appeal on a correctness standard - See paragraphs 19 to 26.

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - [See Civil Rights - Topic 1262 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - [See Civil Rights - Topic 1262 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See Civil Rights - Topic 1262 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 21].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 21].

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. 23].

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. 24].

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. 25].

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. 25].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 12 O.R.(3d) 182 (C.A.), refd to. [para. 29].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 31].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 33 C.C.C.(3d) 1, refd to. [para. 43].

Counsel:

Mark J. Covan, for the appellant;

Stanley W. MacDonald, Q.C., for the respondent.

This appeal was heard on May 10, 2011, at Halifax, N.S., before MacDonald, C.J.N.S., Saunders and Farrar, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by MacDonald, C.J.N.S., on September 16, 2011.

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7 practice notes
  • R. v. Chehil, 2013 SCC 49
    • Canada
    • Supreme Court (Canada)
    • September 27, 2013
    ...(2008), 55 C.R. (6th) 379. APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Saunders and Farrar JJ.A.), 2011 NSCA 82, 308 N.S.R. (2d) 122, 278 C.C.C. (3d) 445, 243 C.R.R. (2d) 109, 88 C.R. (6th) 300, 976 A.P.R. 122, [2011] N.S.J. No. 499 (QL), 2011 CarswellN......
  • R. v. Chehil (M.S.), (2013) 335 N.S.R.(2d) 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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 The Supreme Court......
  • R. v. Chehil (M.S.), (2013) 448 N.R. 370 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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 The Supreme Court......
  • R. v. Hiscoe (J.S.), (2011) 310 N.S.R.(2d) 142 (PC)
    • Canada
    • Nova Scotia Provincial Court of Nova Scotia (Canada)
    • October 3, 2011
    ...v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 18, footnote 8]. R. v. Chehil (M.S.) (2011), 308 N.S.R.(2d) 122; 976 A.P.R. 122; 2011 NSCA 82, refd to. [para. 19, footnote Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.......
  • Request a trial to view additional results
7 cases
  • R. v. Chehil, 2013 SCC 49
    • Canada
    • Supreme Court (Canada)
    • September 27, 2013
    ...(2008), 55 C.R. (6th) 379. APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Saunders and Farrar JJ.A.), 2011 NSCA 82, 308 N.S.R. (2d) 122, 278 C.C.C. (3d) 445, 243 C.R.R. (2d) 109, 88 C.R. (6th) 300, 976 A.P.R. 122, [2011] N.S.J. No. 499 (QL), 2011 CarswellN......
  • R. v. Chehil (M.S.), (2013) 335 N.S.R.(2d) 1 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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 The Supreme Court......
  • R. v. Chehil (M.S.), (2013) 448 N.R. 370 (SCC)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • January 22, 2013
    ...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 The Supreme Court......
  • R. v. Hiscoe (J.S.), (2011) 310 N.S.R.(2d) 142 (PC)
    • Canada
    • Nova Scotia Provincial Court of Nova Scotia (Canada)
    • October 3, 2011
    ...v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, refd to. [para. 18, footnote 8]. R. v. Chehil (M.S.) (2011), 308 N.S.R.(2d) 122; 976 A.P.R. 122; 2011 NSCA 82, refd to. [para. 19, footnote Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.......
  • Request a trial to view additional results

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