Top court split on whether police had sufficient grounds

Mike Novakowski
October 08, 2013
By Mike Novakowski
Although a reasonable suspicion justifies deploying a drug-sniffing dog, it is not so easy to determine whether police have satisfied that standard. In R. v. MacKenzie, 2013 SCC 50 the accused was clocked on radar travelling 112 km/h in a 110 km/h zone over the crest of a hill. Police saw the car front end pitch forward and it slowed to 89 km/h. Wanting to warn about speeding, the officers made a u-turn and found the car already parked on the roadside two kilometers down the highway. Without apparent prompting MacKenzie said he was "sorry" and knew he had been speeding. The officer confirmed speeding as the reason for the stop and asked MacKenzie for his driver's licence and vehicle registration. His hands were shaky and trembling, he was sweating, breathing very rapidly, his carotid artery was pulsing very rapidly and his eyes were pinkish. When asked if he was all right, he sought and took some asthma medication, which did not result in any noticeable breathing decrease.

Although a reasonable suspicion justifies deploying a drug-sniffing dog, it is not so easy to determine whether police have satisfied that standard.

In R. v. MacKenzie, 2013 SCC 50 the accused was clocked on radar travelling 112 km/h in a 110 km/h zone over the crest of a hill. Police saw the car front end pitch forward and it slowed to 89 km/h. Wanting to warn about speeding, the officers made a u-turn and found the car already parked on the roadside two kilometers down the highway.

Without apparent prompting MacKenzie said he was "sorry" and knew he had been speeding. The officer confirmed speeding as the reason for the stop and asked MacKenzie for his driver's licence and vehicle registration. His hands were shaky and trembling, he was sweating, breathing very rapidly, his carotid artery was pulsing very rapidly and his eyes were pinkish. When asked if he was all right, he sought and took some asthma medication, which did not result in any noticeable breathing decrease.

When asked, MacKenzie said he was going home to Regina from Calgary, but seemed to be somewhat confused on when he had traveled to Calgary. Even though a computer check came back negative, the officer suspected that MacKenzie was involved in a Controlled Drugs and Substances Act (CDSA) offence. He based this on observations and experience, which included a standardized field sobriety-testing (SFST) course, pipeline and advanced pipeline training and more than 5,000 traffic stops involving 150 discoveries of drugs.

He asked MacKenzie to step out of the vehicle, advised he was detaining him for further investigation and told of his Charter rights. After he refused consent to search, a drug sniffing dog sniffed around the vehicle exterior and indicated on the back hatch area. MacKenzie was arrested and again given his rights.

Three gift wrapped packages of marijuana weighing 31.5 pounds (street valued at $57,000 to $95,000) were found in the rear hatch area during a search. MacKenzie was charged with possessing marijuana for the purpose of trafficking.

In the Saskatchewan Court of Queen's Bench an officer testified, based on his training and experience, of the factors leading him to believe MacKenzie might be involved in a CDSA offence:

1) Erratic driving (an overreaction to police presence (20 km/h below the speed limit and then parking before police activated their lights).

2) Extreme nervousness (the highest he'd seen in a traffic stop, which did not diminish despite the relatively minor reason).

3) Physical signs consistent with marijuana use (a pinkish eye colour and muscle tremors).

4) Travel on a known drug pipeline (Calgary was a well known source of drugs, which are typically moved from west to east, and MacKenzie appeared somewhat confused about his trip – indicative of trying to make up a story very quickly).

The judge concluded the officer was, at best, acting on a hunch and his "opinions" did not meet the reasonable suspicion standard required for a valid dog search. Since the marijuana was obtained from a warrantless search based on inadequate grounds, MacKenzie rights under s. 8 of the Charter were breached and the evidence was excluded under s. 24(2). Without the marijuana as evidence, he was found not guilty.

The Saskatchewan Court of Appeal, on urging by the Crown, found the trial judge erred in discounting the officer's inferences as mere "opinion" in determining he didn't have reasonable suspicion. In finding this case was "very close to the line," the court was satisfied that the "constellation of objective factors" was sufficient to meet the "reasonable suspicion standard." The dog search was reasonable and the marijuana was lawfully obtained and therefore admissible. MacKenzie's acquittal was set aside and a new trial was ordered.

MacKenzie appealed to the Supreme Court of Canada. Although acknowledging that police could detain him to investigate speeding under Saskatchewan's Traffic Safety Act, he suggested they could not further detain him to investigate because they didn't have reasonable grounds to suspect he was connected to a drug-related offence.

The court was split (5:4) on the application of the reasonable suspicion standard. Five judges concluded that police had reasonable grounds to suspect MacKenzie.

Reasonable suspicion standard satisfied

Justice Moldaver, writing for himself and four other justices, concluded police had reasonable suspicion sufficient to independently justify both detaining MacKenzie for further investigation and the dog search. The basis for detention and search were the same – reasonable grounds to suspect that he was involved in a drug related offence.

The majority recognized, once again, that the "analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer." Part of this meaningful analysis includes an officer's training or experience.

Officer training and experience can play an important role in assessing whether the reasonable suspicion standard has been met. Police officers are trained to detect criminal activity. That is their job. They do it every day. And because of that, "a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of the police".

Sights, sounds, movement, body language, patterns of behaviour and the like are part of an officer's stock in trade and courts should consider this when assessing whether their evidence, in any given case, passes the reasonable suspicion threshold (reference omitted, para. 62).

However, courts should not uncritically accept police training and experience. Nor is deference necessarily owed to an officer's view of the circumstances because of training or field experience. On the other hand, "the police (must) be allowed to carry out their duties without undue skepticism or the requirement that their every move be placed under a scanning electron microscope." Matters within realm of police training and experience should not require expert qualifications before their testimony is accepted.

Police officers need not be trained pharmacologists or toxicologists or medical doctors before they can give evidence on the factors that their training and experience has taught them provide reasonable grounds to suspect that someone is engaged in the use of drugs (para. 57).

In finding the officer's subjective belief was objectively reasonable, Moldaver outlined a summary of applicable principles attaching to the reasonable suspicion analysis:

  • Reasonable suspicion must be assessed against the totality of the circumstances.
  • Characteristics that apply broadly to innocent people and "no-win" behaviour – he looked at me, he did not look at me – cannot, on their own, support a finding of reasonable suspicion, although they may take on some value as part of a constellation of factors.
  • Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it support an innocent explanation.
  • Reasonable suspicion looks to possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
  • Assessing whether a particular constellation of facts gives rise to a reasonable suspicion must not devolve into a scientific or metaphysical exercise. Common sense, flexibility and practical everyday experience are the bywords and are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.
  • The reasonable and probable grounds standard is more demanding than the reasonable suspicion standard. It follows inexorably from this that more innocent persons will be caught under it than the reasonable and probable grounds standard. That is the logical consequence of the way these standards have been defined.
  • The courts, under the banner of rigorous judicial oversight, must guard against upping the ante for reasonable suspicion to the point that it virtually mirrors the test for reasonable and probable grounds. Police need not have evidence indicative of a reasonable probability of finding drugs under a reasonable suspicion standard. To require more would render the distinction between the standards all but illusory.

The majority rejected MacKenzie's attempts to isolate and examine each indicator by itself and thereby dismiss them in the reasonable suspicion analysis. For example, he suggested:

(1) Erratic driving (speeders commonly slow down quickly when they spot a police radar unit).

(2) Nervousness (innocent people are nervous when police stop them.

(3) Hand tremors (as consistent with nervousness as marijuana use).

(4) Pinkish-coloured eyes (many reasons apart from marijuana use).

(5) Route (many innocent people drive from Calgary to Regina every day).

The majority found the factors identified, through the lens of an officer with training and field experience in the transportation and detection of drugs, provided the objective basis to support his belief that MacKenzie might be involved in a drug-related offence:

  • MacKenzie's noticeable and pronounced sudden decrease in speed.
  • He pulled over on his own without being directed to do so.
  • His level of anxiety was "some of the highest nervousness" the officer had ever seen in thousands of traffic stops. It was so pronounced that he asked the accused if he was "all right".
  • The asthma medication did not abate the extreme degree of nervousness, even though he knew he was being investigated for a relatively minor speeding infraction. That seemed unusual especially in the context that a record search revealed MacKenzie had no outstanding tickets or violations that might account for his abnormal state of anxiety.
  • From his police training and experience, the pinkish eye colour and trembling hands were symptoms consistent with a marijuana user – hence the link to drugs and the possibility MacKenzie was concealing them in his car.
  • MacKenzie was travelling on the Trans-Canada Highway from Calgary to Regina. From training and experience, the officer knew this stretch was a drug route – and MacKenzie slipped-up on what day he had left Regina to go to Calgary.
  • The officer knew drug traffickers tend to do fast turnarounds – which is precisely what MacKenzie admitted to – before attempting to change his initial response to indicate he had spent more time in Calgary.

Since police had reasonable suspicion that MacKenzie was involved in a drug-related offence, they could use a drug dog for the vehicle sniff search. There was no s. 8 breach and MacKenzie's appeal was dismissed.

Standard not satisfied

Justice Lebel, authoring a four member dissenting decision, opined that police lacked the requisite reasonable suspicion to conduct the dog search for lack of objective grounds. In her view, even taking into account the officer's training and experience, the constellation of factors available to police, including neutral and equivocal factors, were insufficient to ground reasonable suspicion:

The police in this case relied on markers that apply broadly to innocent people, or markers only of generalized suspicion, which were at best highly equivocal: slowing down upon sight of the police and pulling over after speeding; acting highly nervous when confronted by the police; sweating on a warm day; breathing rapidly as an asthmatic; having pinkish eyes; using the primary highway route to make a quick turnaround trip between two major cities; correcting an initial response when asked about travel dates; and lacking a criminal record (para. 124).

Since the factors, when viewed collectively, did not support a finding that police had objective grounds for reasonable suspicion for detention and the dog-sniff, the search and post-traffic stop breached s. 8 and 9 of the Charter. The minority would have upheld the trial judge's decision to exclude the marijuana as evidence.

Although the reliability and importance of the evidence to the Crown's case favoured admission, the seriousness of police conduct and the impact of the breach on MacKenzie's Charter-protected interests favoured exclusion. The minority would have allowed MacKenzie's appeal.

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