Thursday, May 22, 2014

Supreme Court Rules in Favour of Roadside Police Searches

In September of 2006, two police constables were in a marked police cruiser monitoring traffic on the Trans-Canada highway just west of Caronport, Saskatchewan.  They observed a car driven by Benjamin MacKenzie traveling toward them.  The police radar indicated that the car was traveling at a speed of 112 km per hour, only 2 km per hour over the posted limited.  However, the constables saw that the front end of the car was “pitching forward like it was slowing down very fast”.  They attributed this to a sudden and rapid deceleration of the car from 112 km per hour to 89 km per hour – the speed at which the car was traveling when it passed their police cruiser. 

The officers pursued Mr. MacKenzie.  Two kilometers down the road they spotted his car parked on the side of the highway.  They had not signaled for him to stop.  They wanted to give him a warning about speeding, even though they were unsure how fast he had been driving. 

Mr. MacKenzie was the only occupant of the car.  As one of the constables approached his window, Mr. MacKenzie, unprompted, said he was sorry, he knew he was speeding  and that he would slow down in future.  When Mr. MacKenzie handed over his license and registration documents the police noticed that his hands were shaking.  Mr. MacKenzie appeared to be sweating, with beads of sweat forming on his forehead and his breathing was very rapid.   His carotid artery was pulsing very rapidly.  In addition, the police noted that Mr. MacKenzie’s eyes had a pinkish colour to them.  

Mr. MacKenzie’s level of nervousness was extremely high.  When questioned about the details of his trip he gave contradictory answers in a short period of time.  As a result, the police asked him to step out of the car on the basis that they believed that he was under the influence of drugs.   They then advised Mr. MacKenzie of his Charter rights, including his right to counsel.  Mr. MacKenzie said he understood his rights but declined to call a lawyer.  

The police asked Mr. MacKenzie if he would consent to a search of his car.  When Mr. MacKenzie refused to consent, the police used Levi, a “single-profile” narcotic detector dog, who had been assigned to them.  Levi conducted a perimeter search of the car and by his actions indicated the scent of drugs was in the rear hatch area.  The police arrested Mr. MacKenzie and began a manual search of the car.  They found several gift-wrapped boxes in the rear hatch which ultimately led to the discovery that they contained marijuana.  The police arrested Mr. MacKenzie for possession for the purpose of trafficking.

At trial, the police testified that there were a number of factors that led them to believe that Mr. MacKenzie might be involved in trafficking marijuana:

  1. his erratic driving;
  2. his extreme nervousness;
  3. physical signs consistent with the use of marijuana; and
  4. Mr. MacKenzie was traveling on a known drug pipeline.

Mr. MacKenzie’s case did not proceed to  trial.  In a pre-trial motion he moved to have the marijuana excluded from evidence on the basis of arguments grounded in his right under Section 8 of the Canadian Charter of Rights and Freedoms (“Charter”) against unreasonable search and seizure.  Mr. MacKenzie argued that the police lacked reasonable suspicion that he was involved in a drug-related offence when they had their dog sniff his vehicle.

The trial judge agreed with Mr. MacKenzie and excluded the evidence and directed that a verdict of not guilty be entered against him.   The Saskatchewan Court of Appeal reversed the decision, finding that “the constellation of objective factors” was sufficient to meet the reasonable suspicion standard.  The Court of Appeal set aside the acquittal and remitted the matter to trial.

In a 5 – 4 decision, the Supreme Court of Canada agreed with the Court of Appeal and dismissed Mr. MacKenzie’s appeal.  The majority decision was written by Mr. Justice Moldaver.  

Justice Moldaver found that reasonable suspicion for the police must be grounded in objectively discernible facts.  While it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out  their duties without undue skepticism or the requirement that their every move be placed under a "scanning electron-microscope".

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met.  Therefore in assessing whether a case for reasonable suspicion has been made out, the court should analyze the objective reasonableness through the lens of a reasonable person standing in the shoes of the police officer.  Police training and experience should not be accepted uncritically by the courts.  The courts don’t owe deference to a police officer’s view of the circumstances because of his or her training or experience in the field.  Essentially a trial judge must appreciate the significance  of police training and experience when evaluating the worth of the factors considered in forming the belief that the accused might be involved in a drug-related offence.   

In this case, the trial judge accepted the that the police officers' testimony was credible.  The factors identified by the officers provided the objective basis needed to support his belief that Mr. MacKenzie might be involved in a drug-related offence.  Looking at the totality of the evidence through the lens of an officer with training and field experience in the transportation and detection of drugs, the officers’ subjective belief that Mr. MacKenzie might be involved in a drug-related offence was objectively substantiated.

The dissenting judges held a much difference view.  They held that judges must scrutinize dog-sniff searches and that courts must remain vigilant and not shirk their role in evaluating police conduct for Charter compliance, particularly where the only effective check on that action is after the fact independent judicial assessment.   

The dissenters (decision written by Justice LeBel) held that police cannot simply draw on their experience in the field to create broad categories of “suspicious” behaviour into which almost anyone could fall.  Such an approach risks transforming the already flexible standard of reasonable suspicion into the generalized suspicion standard that has been rejected in the past.  The "constellation of facts" grounding reasonable suspicion must be based in the evidence tied to the individual and capable of supporting a logical inference of criminal behaviour.  While undertaking an objective assessment of the evidence from the police officers perspective, a court should not show that police officer’s testimony any particular deference.  The danger of placing undue emphasis on an officer’s testimony is that a court may inadvertently subvert the objective component of the reasonable suspicion standard.

Justice LeBel, held that in this case the police lacked the requisite reasonable suspicion to conduct the dog-sniff search.   Specifically, the police lacked objective grounds on which to justify deploying a sniffer dog to search Mr. MacKenzie’s car.  He found that the trial judge had not committed an error of law or a palpable and over-riding error of fact.   He understood the reasonable suspicion standard.  The police in this case relied on markers that applied broadly to innocent people or markers only of generalized suspicion that were at best highly equivocal.  The dissenting judges would have allowed Mr. MacKenzie's appeal and restored the decision of the trial judge.



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