Supreme Court stands by existing rules for police searches using sniffer dogs

OTTAWA – The Supreme Court of Canada has given police officers the OK to search people’s belongings with sniffer dogs as long as they have “reasonable suspicion” they may find illegal drugs.

In a pair of decisions released Friday, the high court upheld the current threshold police must meet to use the dogs to ferret out illegal drugs — a standard that some civil-liberties groups argue is already too low.

The B.C. Civil Liberties Association, which was an intervener in the cases, has asked the Supreme Court to refer questions about the use of sniffer dogs to Parliament, which it declined to do.

But Michael Feder, a lawyer representing the group, said while they were disappointed by the court’s decision, there were still positives that arose from the ruling.

“The court has made abundantly clear that while police can use sniffer dogs to a so-called reasonable suspicion standard, reasonable suspicion means objective, verifiable facts about a particular individual giving rise to a reasonable possibility that that person possesses or is trafficking in drugs,” Feder said.

“It does not mean a generalized suspicion about types of people or all types of people in one place. It doesn’t mean a hunch, it doesn’t mean police intuition. It means something much more than that.”

The two cases involve the use of sniffer dogs to search the checked baggage of an airline passenger in Nova Scotia and the car of a man pulled over for speeding in Saskatchewan.

In one case, Mandeep Chehil was arrested at the Halifax airport after a sniffer dog singled out his bag.

Chehil had taken an overnight flight from Vancouver. He was one of the last passengers on the flight to purchase a ticket, which he paid for with cash. He only checked one bag.

The combination of all those factors caught the attention of the RCMP as they were looking at the passenger manifest for Chehil’s flight. When he landed in Halifax, the Mounties decided to deploy a sniffer dog named Boris to check Chehil’s bag.

They found Chehil’s bag and lined it up with nine others on the secure side of the airport. The dog twice indicated the scent of drugs in Chehil’s bag. Boris also sat in front of a cooler next to Chehil’s bag. The cooler was later searched and no drugs were found.

When Chehil collected his bag at the airport, the Mounties approached him and told him the sniffer dog had indicated there were drugs in his bag. They brought Chehil to a room and searched his bag, in which they found a backpack containing three kilograms of cocaine.

The trial judge ruled that Chehil had a reasonable expectation of privacy in his checked luggage and that the RCMP officers did not have reasonable suspicion to search his bag. The trial judge also found that only the cash purchase of the ticket was suspicious.

An appeals court agreed that Chehil had a reasonable expectation of privacy in his suitcase, but disagreed with the trial judge that the factors that led the Mounties to search his bag could be looked at in isolation. The appeals court overruled the trial judge.

In a 9-0 decision, the Supreme Court upheld the appeals court decision.

“In this case, given the strength of the constellation, the reliability of the dog and the absence of exculpatory explanations, the positive identification raised the reasonable suspicion generated by the constellation to the level of reasonable and probable grounds to arrest the appellant,” Justice Andromache Karakatsanis wrote for the court.

In the second case, the RCMP pulled over Benjamin MacKenzie as he was driving to Regina from Calgary because he was travelling two kilometres over the speed limit.

They said he looked nervous because his hands were shaking and he was sweating and breathing quickly. They also claimed his eyes had a pinkish hue.

The Mounties ran a police check on MacKenzie and found nothing, but they still deployed a sniffer dog which found marijuana in his trunk.

One of the officers later testified that of the 5,000 of so traffic stops he’d been involved in, MacKenzie was one of the most nervous people he’d encountered.

The trial judge found MacKenzie not guilty, which an appeals court set aside.

In a 5-4 split decision, the majority of the Supreme Court justices found police indeed had reasonable suspicion to deploy the sniffer dog.

Four of them disagreed with their colleagues, saying the appeals court was wrong to overturn the trial judge’s decision.

Looking for more?

Get the Best of Maclean's sent straight to your inbox. Sign up for news, commentary and analysis.