By Mike Novakowski
The standard of reasonable suspicion is something more than mere suspicion, a hunch or feeling, but something less than a belief based on reasonable grounds.
In R. v. Sahouli, 2019 PECA 14, the police began a drug trafficking investigation, code named “Project Lurid,” in Prince Edward Island and New Brunswick. It started with informer tips. The drug trafficking operation was fairly high-level and involved moving drugs between Montreal and the Maritimes. During the investigation the police obtained Criminal Code judicial authorizations, including tracking warrants (s. 492.1), data number recorders (s. 492.2), general warrants (487.01) and a wiretap authorization.
When police raided an apartment where Sahouli was present, they seized—among other things—$44,840 in cash, marihuana, ammunition, numerous cell phones, a money counter and zip lock bags. As a result of the investigation, Sahouli was charged, among other people, with conspiracy to traffic in a controlled substance.
In P.E.I. Supreme Court, Sahouli sought to excise all evidence obtained from two data number recorder warrants because, he argued, the requisite reasonable suspicion on which they could issue was not met. Further, he submitted that once the information from the data number recorder warrants was excised from the wiretap authorization, it too should not have been granted.
The judge dismissed the applications to exclude the evidence from the two data number recorder warrants. In assessing the reasonable suspicion standard, the judge referred to dictionary definitions that included “reasonable” as meaning “not irrational or absurd” and the word “suspicion” as meaning:
“1) imagination of something
that is possibly likely,
2) a faint belief that something is the case,
3) a notion,
4) an inkling,
5) a hint,
6) an intuitive feeling.”
He also described the reasonable suspicion standard “as a hunch, even a hunch based on experience.”
The judge also found that the information in the ITO (information to obtain) was credible, compelling and corroborated. He described this as, in part, a “hindsight-based test.” Because the informers were credible (the information was 100 per cent accurate), the information was compelling (the police found the drugs as expected) and the information was corroborated (every police source or informer agreed Sohouli and others were trafficking in marihuana), Sahouli was convicted and he was sentenced to two years in prison.
Sahouli appealed his conviction to P.E.I.’s top court, contending, among other things, that the trial judge erred in his application of the “reasonable suspicion” standard. He suggested that the judge also used hindsight reasoning in finding that the ITO established reasonable suspicion.
Justice Mitchell, authoring the opinion for the Court of Appeal, first noted that “a justice may issue a warrant authorizing a peace officer to obtain transmission data, commonly called data number recorder, where a justice is satisfied on information on oath that there are reasonable grounds to suspect that the transmission data will assist in the investigation of an offence.”
In Mitchell’s view, the trial judge clearly misunderstood the application of the reasonable suspicion test. “Reasonable grounds to suspect means reasonable suspicion,” Mitchell said. “Reasonable suspicion is not the same thing as reasonable grounds to believe. Both concepts must be grounded in objective facts and stand up to independent scrutiny. However, reasonable suspicion is a lower standard as it engages reasonable possibility rather than probability.”
The trial judge incorrectly interpreted reasonable suspicion. “The law is quite clear that reasonable suspicion is not simply a suspicion nor is it a hunch, a notion or a feeling,” Mitchell said. “It means … ‘something more than a mere suspicion and something less than a belief based on reasonable and probable grounds.’ A sincerely held subjective belief is not sufficient.
A reasonable suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.”
In determining whether information in an ITO is credible, compelling and/or corroborated, an after-the-fact analysis is inappropriate.
“The fruits of a search can never be used, ex poste facto, to justify the search,” Mitchell said. “The grounds for the search must exist before the search is carried out, and in this case, the reasonable suspicion must exist prior to the data number recorder warrant being issued. The trial judge’s focus ought to have been on whether the reasonable suspicion existed before the search was carried out, not afterwards.”
Sahouli’s appeal was allowed and the matter was sent back to Supreme Court for a new trial.
At the new trial, a judge can rule about whether the information obtained from the two data number recorders should be excised from wiretap authorization and whether the evidence obtained from the wiretap authorization is admissible.
*Additional details were taken from R. v. Sahouli, 2018 PECA 8.
Mike Novakowski is Blue Line’s case law columnist.