Although requiring objective facts, the threshold for a reasonable suspicion justifying an investigative detention is not as stringent as the standard required for an arrest.
In R. v. Savage, 2011 SKCA 65 police in Saskatchewan stopped the accused for speeding. The officers were performing traffic duties and had a drug sniffing dog with them. The truck’s interior was somewhat cluttered with food wrappers, drink bottles and maps, both windows were down and there was a very strong, almost overpowering, odour of air freshener. Savage was extremely nervous, trembling and breathing rapidly, his hands shaking, carotid artery visibly pulsating and voice cracking.
The vehicle and Savage were from Ontario and he said he was employed part-time in Alberta and travelled back and forth for that purpose. Police thought this explanation a bit odd, as it involved long distance travel for parttime work. Although they had noted a number of “flags” that alerted them to the possibility the accused might be transporting contraband, the officers did not yet believe they had grounds to detain the accused for further investigation. These flags were: • extreme nervousness; * cluttered appearance of the truck’s interior; * the somewhat odd explanation of why he was travelling; * very strong smell of air freshener and the open passenger side window, suggesting it could be used to mask the smell of contraband; and * Savage was travelling west to east, bound for a large urban centre.
A computer check revealed Savage had a criminal record, including a conviction about 18 years prior for trafficking in drugs. At this point an officer opined that he now had sufficient grounds to detain. The criminal record was the tipping point so that the accumulation of suspicious factors gave rise to a reasonable suspicion that Savage might be transporting drugs.
The drug dog made a positive hit at the rear of the vehicle. Savage was arrested and the truck searched as an incident to arrest. Four pounds of marijuana divided in eight half pound bags were found, rolled up in a sleeping bag and tucked in the box of the truck. Savage was charged with possession of marijuana for the purpose of trafficking.
A Saskatchewan Provincial Court judge determined that the factors the officers relied upon did not support a reasonable suspicion to detain Savage nor deploy the sniffer dog. She noted the absence of positive indications of drug possession, such as a smell of marijuana or the presence of drug paraphernalia, and that Savage wasn’t driving someone else’s vehicle. Each individual factor was innocuous when taken alone.
“(T)he police officer did not have a reasonable suspicion that the accused was guilty of an on-going criminal offence,” she said. “A hunch is not good enough, even though in hindsight, the police were right. In this case, all of the relevant evidence, considered collectively, does not satisfy the reasonable suspicion test of criminal activity.”
Since the grounds for the arrest arose from the sniffer dog hit, the arrest was unlawful and the vehicle search unreasonable. The evidence was excluded under s. 24(2) and Savage was acquitted.
The Crown appealed to the Saskatchewan Court of Appeal, which found the trial judge imposed an unduly high standard in evaluating the facts the officers relied upon to justify a reasonable suspicion Savage might be transporting illegal drugs. She confounded the threshold of reasonable suspicion with that of reasonable and probable grounds:
Although neither requires proof beyond a reasonable doubt, there is a significant distinction between the test of objectively reasonable and probable grounds to believe that a crime has been committed and the test of objectively reasonable suspicion that a crime is being or has been committed. The former requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity. This is the threshold required for a lawful arrest and a physical search incident to arrest.
The standard for reasonable suspicion, the threshold for investigative detention and for the deployment of a sniffer dog, is less stringent. This requires that the police have more than a mere hunch, based on intuition gained by experience. They must be able to point to objective facts that support the suspicion. However, the lower standard does not require that the officers be able to point to factors sufficient to establish the probability of the crime. Reasonable suspicion is a lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause (para. 18).
A “positive indication” of drug possession, such as the presence of an odour of marijuana or drug paraphernalia in plain view, could well provide reasonable grounds for an arrest but their absence is not determinative in relation to the test for reasonable suspicion. Moreover, “the trial judge erred in failing to assess or to appreciate the probative value, or the relevance, of the factors cited by the officers as grounding