Can police use a sniffer dog to “search” someone’s bag in a public space?
A a sniffer-dog search constitutes a “search” under s. 8 of the Charter, Supreme Court holds
In R. v. Kang-Brown, the Supreme Court of Canada considered whether, and under what circumstances, police can perform sniffer-dog searches in public spaces.
The RCMP were conducting a special operation designed to detect drug couriers at bus stations. Officers stopped an individual they thought looked suspicious and their sniffer dog indicated that it could smell drugs inside the individual’s bag. He was arrested for possession and trafficking.
The trial judge held that the accused had not been arbitrarily detained or unlawfully searched. In her view, the accused was in a public place and he did not have a reasonable expectation of privacy in the odours that could be detected from the bag. Therefore, the right against unreasonable search in s. 8 of the Canadian Charter of Rights and Freedoms was not engaged. The accused was convicted, and the Court of Appeal upheld the conviction. The accused appealed to the Supreme Court of Canada.
The Supreme Court’s decision
The Supreme Court of Canada unanimously held that a sniffer-dog search constitutes a “search” under s. 8 of the Charter. Therefore, the police cannot perform sniffer-dog searches in public spaces unless the search is specifically authorized by statute, or the police have a “reasonable suspicion” that the individual targeted by the search is engaged in criminal activity.
On the facts of this case, the Court found that the suspect’s s. 8 rights were violated because the police officer stopped him based on mere speculation. As a result, the search violated the accused’s Charter rights and the evidence was excluded under s. 24(2) of the Charter.
Although the Court was unanimous in its finding that sniffer-dog searches attract Charter protection, the Court was divided as to what standard the police have to meet in order to justify the search. The majority held that the standard is “reasonable suspicion”.
“Reasonable suspicion” means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Although the standard is lower that having reasonable and probable grounds, the majority held that, because sniffer-dog searches are conducted without prior judicial authorization, judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be particularly rigorous.
Emma Phillips was co-counsel for the Intervener, Criminal Lawyers Association.