Howling for Justice: Evaluating Police Searches and the Sniffer-Dog in Canada - Robert Johnstone

Matters of personal privacy are heavily impacted through proceedings detailing the continual struggle between efficient law enforcement and constitutional guarantees provided to the individual. Specifically, s. 8 of the Charter recognizes that the Canadian public requires protection from government intrusion to the degree that it encroaches on the individual’s “reasonable expectation of privacy.”[1] However, as demonstrated through the case of R v Tessling, the court has suggested that safety, security, and the suppression of crime are legitimate countervailing concerns for the protection of privacy.[2] The Supreme Court even stated that searches do not offend s. 8 of the Charter if they are carried out in a reasonable manner and through reasonable law.[3] Ultimately, I see this broad requirement as a “fine line” for the courts to walk, especially when considering the subjective factor of inherent human bias. To balance the powers afforded to law enforcement, two factors are considered when allocating the degree of privacy:

1) The existence of a subjective expectation of privacy.

2) The objective reasonableness of the expectation.[4]

This reasonable expectation of privacy is dependant on external factors regarding the environment and the type of privacy (physical, informational, or territorial).[5] Nonetheless, Canadian courts have historically struggled to determine whether the use of the sniffer-dog can ultimately be defined as a prima facie “search.” Importantly, any violation of the s. 8 Charter provision will result in the exclusion of such evidence from any criminal proceeding.[6]

R v Kang-Brown

A landmark case that set the standards for sniff-searches is R v Kang-Brown. In this case, a RCMP officer was tasked with patrolling a bus stop for the transport of narcotics. He approached Mr. Kang-Brown, and after a suspicious discussion, had a fellow officer bring their detection dog “Chevy” close to his bag.[7] The dog approached the bag and sat upon sniffing it, which was the trained behavior used to indicate that the bag potentially contained contraband.[8] They arrested Mr. Kang-Brown and incidentally opened his travel bag, where the officers found 17 grams of cocaine stashed in a brown packet.[9] Mr. Kang-Brown attempted to exclude the evidence in court by stating that the manner in which he was searched violated his s. 8 rights.[10] The officers argued that his suspicious travel-route, “antsy behavior,” and wide-berth of the dog at the bus station door had given them reasonable suspicion to justify a search. These factors, in my opinion, are all quite objective, evidence-based, and therefore meet an appropriate standard for reasonable suspicion. The trial judge convicted Kang-Brown on the grounds that the officer’s arguments held merit and therefore he was not unreasonably searched. The Supreme Court majority ruled that a dog-sniff constituted a search under s. 8 and Kang-Brown would be afforded at least some unreasonable search and seizure protections.[11] Binnie J. commented that dog “sniffing” cannot be treated as an isolated phenomenon and be detached from the broader police conduct. I do not believe it is plausible or sensible for the Crown to argue the utility of a sniffer-dog in the quick and accurate identification of contents concealed inside a backpack, but the result is not a search.[12] This decision, along with R v A.M., create the fundamental basis for dog-sniffing rulings in Canada, specifically that:

1) The use of a dog-sniff constitutes a search under the classification of s. 8.

2) The use of a dog-sniff is lawful through the common-law police power to investigate criminal activity.[13]

Correspondingly, I am of the opinion that the approach taken from both McLachlin C.J. and Binnie J. is one that holds this fundamental evidence-gathering approach closer to the appropriate baseline set in Hunter v Southam. The use of a trained animal is no different than a machine or any piece of technology; it is a tool provided for law enforcement to take away privacy. If such tools are held to an extremely low standard of deployment, this detracts from protections afforded through s. 8. Further, the test applied by Binnie J. using the reasonable suspicion standard to limit the use of sniffer-dogs in Canada certainly has merit on an individualized basis. It is essential that police are held to a high standard when determining if any type of search is justified when the distinguishment between reasonable or probable grounds and reasonable suspicion is blurred.[14] An important detail resulting from the majority decision is that police should not be relying on hunches, which I view as instruments for masking discriminatory practices against suspected individuals.[15]

Further Developments: R v Chehil

A more recent case, R v Chehil, explored the premise of sniffer-dogs at a common point of deployment, the airport. The use of dogs for border and airport security is reasonable due to the heightened safety risk and prevalence of transit in the drug trade. In this case, Mr. Chehil had paid for a last-minute ticket in cash, checked one bag, and was leaving from Vancouver airport (a noted departure point for narcotics).[16] This alerted the airport’s Criminal Interdiction Team, and as a result, they went to check the bag using “Boris,” the squadron’s dog trained for drug detection. Upon sniffing a group of ten bags, Boris sat in front of the bag belonging to Mr. Chehil, indicating the presence of narcotics.[17] They arrested Mr. Chehil for drug possession and subsequently opened the bag, revealing three kilograms of cocaine.[18] Building upon the precedence set in Kang-Brown, Karakatsanis J. stated that authorities can deploy sniffer-dogs without acquiring a warrant if an objectively reached “reasonable suspicion” standard is present.[19] This standard will be judged by the court based upon objective facts that demonstrate evidence if an offence will be obtained through the use of a sniff-search.[20] The fact pattern must be examined “in the entirety of the circumstances” to determine if grounds permit the reasonable suspicion of criminal activity.[21]

Is the Sniff Up to Snuff?

Although the dog-sniff now constitutes a legal search under s. 8 of the Charter, does the court truly allocate more protection to the individual against unreasonable search and seizure? I would argue the protection is very limited in scope. In Chehil, the majority concluded that individuals were afforded privacy even in airport settings surrounding luggage, but that the privacy expectations were “lower than the privacy interests attached to the contents of [their] home[s].”[22] However, because there is no Canadian precedent for sniff-searches in the home, the privacy “limits” cannot be drawn. The court also argues that a dog-sniff search is held to be reasonable on a much lower threshold of suspicion than other searches. Understandably, this comes down to the nature of a dog search. When compared to X-ray, pat-downs, and certainly a body cavity search, sniffer-dogs are much less intrusive, narrowly targeted, and highly accurate.[23] Dogs on law enforcement squadrons are only deployed after thorough testing, years of training, and certain reliability is established. The court emphasizes that a dog’s reliability to detect certain chemical compounds and avoid others is relevant to determining if the search is reasonable and violates s. 8 protections.[24] Therefore, the officer’s dependence on a specific dog is quite similar to the high standard of reliance placed on a fellow officer in the field. The last step in the formulization of reasonable suspicion is for a “nexus” to be present between the criminal conduct observed and the type of search deployed.[25] For example, a sniff-search is only useful if the individual is suspected to be in the possession of drugs or compounds that can be detected by a service dog. In the decision of Chehil, the majority ruled that the initial conglomeration of particular facts, nexus of the searches’ purpose for a narcotic-related crime, and Boris’ historic reliability led to a proper deployment of reasonable suspicion to conduct a sniffer-dog search.[26]

Final Thoughts:

The Canadian courts have concluded that the use of the dog-sniff corresponds to a valid expression of search according to s. 8 of the Charter. As a non-invasive, highly accurate, and reliable member of the team, sniffer-dogs represent an effective way for law enforcement to obtain information based upon the undemanding criteria for reasonable suspicion. Once this information is established, the police can make an arrest based on reasonable and probable grounds, while also incidentally conducting an invasive search.[27] The issue between dog-sniffs and s. 8 unreasonable search and seizure protections involves the chain of allowances afforded to law enforcement after the sniff is deemed conclusive. The result: an invasive search of one’s person or belongings by the officer is granted without the justification of judicial authorization. This constitutional search power is not unlimited, but in my opinion, the scope of its magnitude is far greater than what the action appears to represent on the surface level. In R v Urban, Alberta’s Court of Appeal noted that the reasonable suspicion standard had been “held to a low bar” since the Chehil decision, and that objective evidence must undoubtedly support the subjective belief of the state agent in order for the use of a sniff-search to not violate s. 8.[28] I agree with this sentiment, for if the Canadian courts are to hold the Charter’s constitutional status to the extent that it is deserved, then reasonable suspicion must be met with adequate criticism and appropriate application. This cannot be achieved without the consideration of search techniques such as sniff-searches, whose actions can spark a chain of unwarranted violations.

[1] Wayne K. Gorman, “The Law of Sniffer-Dog Searches in Canada” (2019) 55 AJA 55 at 1. [2] Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, (Vancouver: UBC Press, 2019) at 35. [3] Ibid. [4] Ibid. [5] Ibid. [6] Supra note 1. [7] R v Kang-Brown, 2005 ABQB 608 [Kang-Brown] at para 22. [8] Ibid at para 23. [9] Ibid at para 26. [10] Ibid at para 35. [11] Don Stuart, “Revitalising Section 8: Individualised Reasonable Suspicion is a Sound Compromise for Routine Dog Sniffer Use” (2008) 55 CR (6th) 376 at para 2. [12] Supra note 2 at 40. [13] Supra note 1 at 2. [14] Supra note 11 at para 7. [15] Ibid at para 7. [16] R v Chehil, 2013 SCC 49 [Chehil] at para 8. [17] Ibid at para 9. [18] Ibid at para 11. [19] Supra note 1 at 2. [20] Ibid. [21] Chehil, supra note 16 at para 6. [22] Supra note 2 at 42. [23] Supra note 1 at 2. [24] Ibid. [25] Ibid. [26] Ibid. [27] Ibid at 3. [28] Ibid at 3.