The reasonable suspicion standard which permits using a drug sniffing dog is about possibilities, not probabilities.
In R. v. Navales, 2014 ABCA 70 the accused arrived in Calgary on an overnight bus from Vancouver. A plain-clothes police officer with the "Operation Jetway" program, which targets drug trafficking and regularly monitors the bus route because Vancouver is a major drug supply hub, saw him disembark and enter the bus depot.
Navales headed to the exit, then changed direction to the washroom area, where police dogs were training. Noticing them he stopped, turned back toward the exit, then turned again and headed back the way he had come. A police dog crossed his path and he stopped and again turned toward the exit. The officer followed Navales outside and spoke to him, hoping he would agree to a luggage search.
Navales showed the officer his bus ticket, which was purchased with cash 35 to 45 minutes before the bus departed and in a name different than on Navales' identification, which he provided from his wallet. The officer also noted that Navales had a large quantity of $100 bills in his wallet. When asked how long he was staying in Calgary, Navales gave two different responses within a minute or two.
His behaviour became increasing nervous. The officer asked if he had packed his bags and Navales hesitated for three to four seconds before replying "For the most part." A police dog indicated a drug scent on his luggage. Navales was arrested and 10 one kilogram bricks of cocaine were found inside his bag.
In the Alberta Court of Queen's Bench Navales argued that he was subjected to an unreasonable search under s. 8 of the Charter because the dog sniff wasn't based on a reasonable suspicion. The judge disagreed, noting that the reasonable suspicion standard required more than a sincerely held subjective belief by the officer. It must be supported by factual elements that can be adduced into evidence and permit an independent judicial assessment.
"Trial judges need to look at the totality of the circumstances and review all the relevant factors collectively," she said. In determining that the search met the reasonable suspicion standard for a dog sniff, she identified the following relevant factors, none of which individually would support a reasonable suspicion, but when taken together supported "an objective suspicion by a reasonable person that (Navales) was in possession of contraband":
- The bus was from Vancouver.
- Navales said he was from Vancouver.
- Navales' changes of direction in the bus depot and his attention to the police dogs.
- Navales' bus ticket was purchased last minute and he paid cash.
- Navales used what appeared to be a false name when buying his ticket.
- Navales' wallet contained $100 bills, a denomination the officer testified is used in the drug business.
- Navales gave two different versions of how long he planned to stay in Calgary within one or two minutes.
- Navales' increased nervousness.
- Navales delay in answering when asked if he packed his bags, then replying, "for the most part."
The officer testified that he had 26 years of experience with the drug unit, including eight years with the Jetway program. He noted the team had found the Vancouver route very productive for drug seizures and that drug couriers had told him they would purchase bus tickets at the last minute. There was no s. 8 breach, the evidence was admitted and Navales was convicted of trafficking in cocaine.
Navales appealed to Alberta's top court, again asserting his s. 8 right to be free from unreasonable search and seizure was violated.
The appeal court noted that a dog sniff of a traveller's luggage in a public terminal is a search within the meaning of s 8, however police have a common law power to use it to investigate drug offences if they have a "reasonable suspicion" a person is involved in drug related offences.
"The reasonable suspicion standard addresses the possibility of uncovering criminality, not the probability of doing so," said Justice Paperny for the majority. "The assessment of the constellation of factors must be done in a flexible and common sense manner, through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer."
Reasonable suspicion must be assessed against the totality of the circumstances; the inquiry must consider the constellation of objectively discernible facts said to give the investigating officer reasonable cause to suspect that the individual is involved in criminal activity.
The suspicion must be sufficiently particularized and not amount merely to a generalized suspicion that would include too many presumably innocent persons within its purview. For this reason, factors that apply broadly to innocent people and those that may "go both ways," cannot, on their own, support a reasonable suspicion. However, exculpatory, neutral or equivocal information cannot be disregarded when assessing the constellation of factors.
The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion (references omitted, para. 19).
The trial judge properly examined the totality of the circumstances, rather than assessing the factors individually. Some of the circumstances were general, such as Navales traveling from Vancouver and being from there, while others were particular to him, such as his ticket purchase under a false name, two different versions of his plans when questioned, possession of several $100 bills, his increasing nervousness, actions to avoid the police dogs and delayed response and answer to the question of packing his own bags.
"The trial judge rightly noted that no one circumstance on its own would support a finding of reasonable suspicion, but she judged that, taken together, the evidence was capable of supporting a logical inference that the (accused) was in possession of contraband," said Paperny.
The trial judge was also entitled to take the officer's experience into account in assessing those factors that might otherwise be considered as too general to support a reasonable suspicion.
There was no reason to interfere with the trial judge's analysis. The majority dismissed Navales' appeal.
Same result, own reasons
Justice Berger also would dismiss the appeal, but gave his own reasons. In his view, recent Supreme Court of Canada decisions have "dramatically (lowered) the threshold for searches by police officers on the basis of 'reasonable suspicion'."
This standard engages the mere "possibility" of crime, which he felt had been "transformed into nothing more than a generalized suspicion." Since the standard was now so markedly diminished, he opined that the outcome of the appeal was inevitable.