Assessing an officer's grounds requires a totality of the circumstances approach, not looking at each ground individually and dismissing it as innocuous.
In R. v. Tran, 2012 NBCA 74, the accused was stopped in a vehicle checkpoint campaign on the TransCanada Highway. The veteran police officer had 21 years experience, including eight with a roving traffic unit which conducts major checkpoints, and noticed "indicators" that made him suspicious Tran was transporting contraband:
- He had a British Columbia driver's license – a contraband-source province;
- He was driving a car rented in Montreal – in the officer's experience those who transport contraband do not want to have their personal vehicles seized;
- He said he had moved from BC to Montreal because of the Olympics trouble;
- He was travelling to Moncton because he believed he could more easily win at a newly opened casino there than established casinos;
- The passenger in the front right seat was extremely nervous;
- There was a pillow and blanket in the back seat – if there is contraband in a vehicle, the occupants often sleep in the car to protect it; and
- A CPIC check revealed Tran had a BC firearm prohibition, a Manitoba drug trafficking charge and an outstanding warrant for a Quebec impaired driving charge, showing frequent moves.
A subsequent search of Tran's vehicle uncovered 20 pounds of cannabis in a suitcase in the trunk. He was charged with possession for the purpose of trafficking.
At trial in New Brunswick Provincial Court the officer testified the constellation of indictors matched patterns he had seen repeatedly during his career and were consistent with a person travelling with contraband. Although he testified no single indicator by itself was indicative of Tran being involved in criminal activity, the trial judge found the indicators cited were capable of innocuous explanation and collectively inappropriate to give rise to reasonable and probable grounds. Police were on a "fishing expedition," the judge found, and the search was unreasonable. The detention was also found to be arbitrary since Tran was detained on the pretence of questioning him on his CPIC record. The evidence was excluded under s. 24(2) and Tran was acquitted.
The Crown appealed to the New Brunswick Court of Appeal arguing, among other grounds, that police did not lack the necessary "reasonable grounds to suspect" before detaining Tran. In the Crown's view, the judge focused on the individual grounds as opposed to using a "totality of circumstances" assessment. Justice Larlee, delivering the unanimous ruling, agreed.
Determining whether police had "reasonable grounds to suspect" a person was involved in criminal activity involves both an objective and subjective standard. The objective reasonableness of the detaining officer's grounds "must be assessed from the standpoint of the reasonable person 'standing in the shoes of the police officer.'"
"There are no hard and fast rules concerning investigative detention and the assessment of articulable cause and no fixed checklist of factors," said Larlee. "The matter of sufficiency of grounds must be resolved on a case by case basis." He continued:
Reasonable suspicion is a lower standard than that of reasonable and probable grounds. It does not demand absolute certainty or even reasonable probability. It means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. The standard is often contrasted with indiscriminate police conduct based on a hunch, intuition or speculation, none of which are sufficient to support an objectively reasonable suspicion (para. 8).
The trial judge explained away each of the individual grounds instead of considering the totality of the circumstances (grounds or indicators). "Rather than asking whether the existing grounds were sufficient to establish reasonable suspicion, the trial judge erred in law by taking each and every indicator given by the police officer and speculating about its potential interpretation without considering the global context," said Larlee. For example, the trial judge speculated on, trivialized and attempted to explain away the indicators.
"The cumulative effect of the indicators noted by this experienced police officer met the threshold of reasonable grounds to suspect."
Tran's detention wasn't arbitrary and the evidence was admissible. The Crown's appeal was allowed, Tran's acquittal set aside and a new trial ordered.