SUPREME COURT OF CANADA

[2008] 1 S.C.R. 456, 2008 SCC 18

Date: 20080425

Docket: 31598

Between:

Gurmakh Kang-Brown

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario) and Canadian Civil Liberties Association

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment: (paras. 1 to 17) LeBel J. (Fish, Abella and Charron JJ. concurring)

Partially Concurring Reasons: (paras. 18 to 105) Binnie J. (McLachlin C.J. concurring)

Dissenting Reasons: (paras. 106 to 211) Deschamps J. (Rothstein J. concurring)

Dissenting Reasons: (paras. 212 to 256) Bastarache J.

R. v. Kang‑Brown, [2008] 1 S.C.R. 456, 2008 SCC 18

Gurmakh Kang‑Brown Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Criminal Lawyers’ Association (Ontario) and Canadian Civil Liberties Association Interveners

Indexed as: R. v. Kang‑Brown

Neutral citation: 2008 SCC 18.

File No.: 31598.

2007: May 22; 2008: April 25.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for alberta

Constitutional law — Charter of Rights — Search and seizure — Sniffer dogs — Bus stations — Police officer involved in special operation designed to detect drug couriers at bus stations observing suspicious passenger disembarking from bus — Officer approaching passenger and asking to inspect contents of his bag — Passenger starting to open bag when officer reached hand out — Passenger pulling bag back and acting nervously — Officer signaling to another officer with sniff dog to approach — Dog indicating presence of drugs in passenger’s bag — Passenger arrested and drugs found on him and in his bag upon search — Whether dog sniff constituted search — If so, whether search reasonable — If search unreasonable, whether evidence should be excluded — Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Police — Police powers — Investigative tools — Sniffer dogs — Whether common law powers of police to investigate crime include use of sniffer dogs.

An RCMP officer involved in a special operation designed to detect drug couriers at bus stations observed a bus arriving at the station and the accused getting off. The accused gave the officer an elongated stare and went into the station lobby. He then turned and looked back at the officer, who found this behaviour suspicious. The officer eventually approached the accused, identified himself and told him that he was not in any trouble and was free to go at any time. The officer asked the accused if he was carrying narcotics. The accused said no. The officer then asked to look in the accused’s bag. The accused put his bag down and was unzipping it when the officer went to touch the bag. The accused pulled it away, looking nervous. At that point, the officer signaled another officer with a sniffer dog to approach. The dog sat down, indicating the presence of drugs in the bag. The accused was arrested for possession of and/or trafficking in drugs. The accused was searched and drugs were found on his person and in his bag. The trial judge found that the accused was neither arbitrarily detained nor unlawfully searched and entered a conviction. She held that the odours from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy and that s. 8 of the Canadian Charter of Rights and Freedoms was accordingly not engaged. The Court of Appeal upheld the conviction.

Held (Bastarache, Deschamps and Rothstein JJ. dissenting): The appeal should be allowed.

1. Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of reasonable suspicion.

Per Bastarache J.: The police possess a common law power to search using drug sniffer dogs on the basis of a Charter compliant standard of generalized suspicion.

Per LeBel, Fish, Abella and Charron JJ.: There was no authority at common law for the sniffer‑dog search in this case.

2. Per curiam: The dog sniff of the passenger’s bag at the bus station amounted to a search within s. 8 of the Charter.

3. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: The sniffer‑dog search of the passenger’s bag at the bus station violated s. 8 of the Charter.

Per Bastarache, Deschamps and Rothstein JJ.: The sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8 of the Charter.

4. Per McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ.: In the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter.

Per Bastarache, Deschamps and Rothstein JJ.: There is no need to determine whether the evidence should be excluded pursuant to s. 24(2) of the Charter because the sniffer‑dog search of the passenger’s bag at the bus station did not violate s. 8.

Per LeBel, Fish, Abella and Charron JJ.: The use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter, and absent justified authority for such a search in a statute or at common law, the sniffer‑dog search breached s. 8. Given the seriousness of the breach, the evidence should be excluded under s. 24(2) of the Charter. [1] [17]

It is undisputed that the search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime, the threshold for the exercise of police powers should not be lowered to one of “reasonable suspicion” since, to do so, would impair the important safeguards found in s. 8 against unjustified state intrusion. The existing and well‑established standard of “reasonable and probable grounds” should be applied. In this case, the search did not meet this standard. [1]

Any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. Jurisprudence‑based solutions which would openly or implicitly advocate the creation of new common law rules reducing the standard of scrutiny of state intrusion into privacy do not represent an appropriate exercise of judicial power in the circumstances of this case. When rights and interests as fundamental as personal privacy and autonomy are at stake, the constitutional role of the Court suggests that the creation of a new and more intrusive power of search and seizure should be left to Parliament to set up and justify under a proper statutory framework. [4] [6] [11] [13]

Per McLachlin C.J. and Binnie J.: A “sniff” amounts to a s. 8 search under the Charter because of the significance and quality of the information obtained about concealed contents, whether such contents are in a suspect’s belongings or carried on his or her person. (In the present case, the positive “sniff” was itself considered sufficient by the RCMP to arrest the accused before even physically checking his bag to confirm the present of illegal drugs.) However, because of the minimal intrusion, contraband‑specific nature and pinpoint accuracy of a sniff executed by a trained and well‑handled dog, a proper balance between an individual’s s. 8 rights and the reasonable demands of law enforcement would be struck by permitting such “sniff” searches on a “reasonable suspicion” standard without requiring prior judicial authorization. The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called. [26] [58] [97]

Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog. [21]

The difficult issue raised by this appeal is not the existence of a police power to investigate crime using sniffer dogs or any other lawful devices or technology in places where the police are lawfully entitled to be, but the extent to which the use of such devices or techniques or animals is permitted by s. 8 of the Charter and, if so, in what circumstances. It is emphatically the duty of the courts, not Parliament, to resolve the issue of Charter compliance. [23]

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Because sniffer‑dog searches are conducted without prior judicial authorization, the after‑the‑fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. Here, the police action was based on speculation. [26] [75]

It is common ground that what occurred at the bus station was a warrantless search, and therefore presumptively unreasonable. However, had the dog‑sniff search been based on reasonable suspicion, the dog’s positive alert would have given the police the grounds to proceed on the spot with a warrantless search of the accused’s bag because of the dog’s demonstrated accuracy 90 to 92 percent of the time. The RCMP accept that different dogs possess different abilities and track records and that “sniffer dogs” are not interchangeable. Proof must be made of the accuracy of a particular animal before police reliance is justified. This is another matter that should be established in the evidence (as it was here). In any event, given the dog alerts to the odour of narcotics, not to their actual presence, the arrest of the accused in this case was premature. The police should first have confirmed the presence of narcotics by a hand search of the bag. If reasonable cause had existed, and given the positive alert and the dog’s history of accuracy, the RCMP would have been entitled to perform such a verification search on the spot and without prior judicial authorization. [48] [99] [101]

The trial judge erred in principle by incorporating and relying on much of her s. 8 privacy analysis in her s. 24(2) analysis, thereby engaging in a species of double‑counting, and undermining the deference that would otherwise be owed to her conclusion to admit the evidence. The trial judge having been reversed on that aspect of her privacy analysis (for the reasons set out in R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19), the trial judge’s continuing denial of a serious privacy interest should not be resuscitated as an independent ground to help the Crown over its s. 24(2) hurdle. While the evidence obtained in the illegal search was non‑conscriptive, and was found by the trial judge to have been obtained by the RCMP in good faith, the evidence should nonetheless be excluded. The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public. In the sniffer‑dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization. The only effective check on that authority is the after‑the‑fact independent assessment and, on the facts here, the police initiated a warrantless search on inadequate grounds. [103-104]

Per Deschamps and Rothstein JJ. (dissenting): The use of a sniffer dog to check the accused’s bag in a public bus terminal on the basis of a reasonable suspicion that evidence of an offence would be discovered was proper and did not constitute an unreasonable search or seizure. [107]

The accused had a reasonable expectation of privacy that engaged s. 8 of the Charter. Where the applicability of s. 8 is at issue, failure to consider whether the claimant had a reasonable expectation of privacy that engages s. 8 may constitute an error of law. If the trial judge carries out the reasonable expectation of privacy analysis, however, deference will be owed to his or her finding. Here, the trial judge erred in analysing the reasonableness of the accused’s expectation of privacy by incorrectly finding that the purpose of the use of the sniffer dog was to identify odours outside of his bag. It is significant that the odours in and emanating from the accused’s bag were imperceptible to humans; hence the need for a dog to detect the narcotics. This is not a case in which the police were relying on their own senses. Rather, they used the dog to obtain information about the possible presence of a controlled substance inside the accused’s bag. By detecting what was in the air in the vicinity of the accused’s bag, the dog functioned as an investigative tool that allowed the police to conclude, in light of the dog’s 90 to 92 percent success rate, that there was a controlled substance inside the bag. [143] [173-174] [210]

The dog’s positive indication allowed for a strong, immediate and direct inference to be made about the contents of the accused’s bag, and this involved a certain intrusion on informational privacy. The right to informational privacy protects biographical information, including the very nature of the information. In a case involving this right, the relevant elements of informational privacy include intimate personal details about an accused, such as his or her having come into contact with a controlled substance. The sniffer dog’s intrusion on the accused’s right to informational privacy thus suggests that the accused had an objectively reasonable expectation of privacy. Other factors support that conclusion. The accused owned and used the bag, he was present at the time of the search, the bag was one that could be carried close to the body, and he did not abandon it or leave it unattended. The conduct of the police in this case also intruded to a certain extent on the accused’s right to territorial privacy: members of the public have historically used bus terminals to travel as a means of exercising their freedom of mobility, security screening was not done routinely in this terminal and there were no signs indicating that a luggage search was possible. Nevertheless, the accused’s objectively reasonable expectation of privacy in this case was not high. The search in the present case was conducted in a public place. Moreover, the search technique employed by the police was only minimally intrusive. The accused also showed that he had a subjective expectation of privacy as evidenced by the facts that he had carried his bag close to his body and that he had sought, both verbally and physically, to control access to it. [175‑178]

The search in this case was justified on the basis of the reasonable suspicion standard. This standard can be applicable only where there are circumstances that serve as safeguards against unreasonable intrusions on privacy and ensure a balance that affords proper protection. Consequently, a reasonable suspicion standard may be sufficient where the investigative technique is relatively non‑intrusive and the expectation of privacy is not high. To determine whether the reasonable suspicion standard is met in a given case, the totality of the circumstances must be considered. [168] [195]

Here, the police were clearly acting in pursuit of their common law duty to investigate and prevent crime when they observed and questioned the accused and, subsequently, when they used the dog to detect the presence of narcotics. The powers associated with this duty were used in a way that met the standard of what is reasonably necessary in light of the totality of the circumstances. Given that the accused had a reasonable expectation of privacy that engaged s. 8, it would not have been reasonable for the police to use a sniffer dog to check his bag if they had no grounds for doing so. Although the trafficking of illegal drugs via public transportation is a serious problem, no evidence was adduced in this case that would support the random use of a sniffer dog to check the luggage of all bus travellers. However, with respect to the accused, the police had grounds for using the dog. The observation and questioning of the accused by the police officer resulted in “objectively discernible facts” that, in combination, aroused a reasonable suspicion that he was in possession of a controlled substance. It was only once the officer entertained reasonable suspicion that the well‑trained and highly accurate sniffer dog became involved and was used as an investigative tool in furtherance of the police law enforcement duty. Not only did the accused have a lower expectation of privacy in the context of this case, but a number of safeguards were in place that limited the intrusiveness of the use of the sniffer dog. The dog was used in a public place and could only detect drugs that were identified as posing serious problems. It was used as a last resort in a progressive investigation and as a minimally intrusive investigative tool. Moreover, the police would not have been able to obtain a warrant, as the accused’s behaviour suggested that he was growing increasingly nervous and was preparing to exit the terminal. In these circumstances, the reasonable suspicion standard constitutes a reasonably necessary, and therefore justifiable, use of police powers because it strikes an appropriate balance between the accused’s reasonable privacy interest and society’s interest in interdicting illicit substances carried on public transportation. [182-183] [185] [187] [189] [191]

The sniffer‑dog search was conducted in a reasonable manner. In light of the totality of the circumstances, the police made limited and prudent use of a law enforcement tool that was available to them. Accordingly, the use of the sniffer dog in this case was in full compliance with s. 8 of the Charter. [197-199]

It is clear from the evidence of the high accuracy rate of the dog in question that its positive indication of the presence of narcotics provided the police with reasonable grounds to arrest the accused and to search his bag by hand in a search incidental to arrest. Therefore, the accused’s s. 8 rights were not infringed. [200]

Per Bastarache J. (dissenting): The dog sniff search constituted a search within the meaning of s. 8 of the Charter. The accused had a reasonable, but limited, expectation of privacy in his luggage at the time the dog sniff occurred. Here, both a subjective and an objective expectation of privacy have been established. A subjective expectation of privacy is evidenced by the protective manner in which the accused carried his bag and his refusal to allow a voluntary search to occur. From an objective perspective, it is significant that the odour identified by the dog was not accessible to humans and that its detection provided immediate information about the contents of the accused’s luggage. Although the accused did have a reasonable expectation of privacy in his luggage, it was significantly reduced owing to the location at which the search occurred. In a bus depot, a passenger is voluntarily using the terminal to access a public mode of transportation, and he or she is aware that the state has an interest in ensuring that that transportation system is both secure and not being used to further criminal activity. Nonetheless, privacy interests do not have to be of the highest form to attract s. 8 protection. [227-228] [231]

In this case, the requisite balancing of individual rights with the state interest in preventing and investigating crime supports a finding that a sniff search of luggage using a police dog will not be in violation of s. 8 of the Charter where the police are acting on a reasonable suspicion about the committal of a crime. The reduced expectation of privacy at public terminals, the minimal intrusion caused by the search itself, and the effectiveness of sniffer‑dog searches all support a standard of “reasonable suspicion”. In some situations, like this one, reasonable suspicion will relate to a particular individual, and the police will have gathered, through observation or other means, sufficient information about a specific person to justify a sniff search of his or her bags. Although the police in this case based their search on individualized suspicion, it would have been equally permissible for them to use sniffer dogs to search the luggage of all of the passengers at the bus station that day, providing that the police had a reasonable suspicion that drug activity might be occurring at the terminal, and reasonably informed passengers were aware of the fact that their baggage may be subject to a sniffer‑dog search. [215] [243-244]

Because the accused’s baggage was subjected to a sniffer‑dog search as a result of individualized suspicion, it is unnecessary to determine conclusively whether a random search of his bag would have been constitutional. The trial judge found that the officer’s suspicion with respect to the accused was in place before the sniff occurred and was based on objective facts. There is no reason to interfere with her finding on that point, and the search was therefore reasonable within the meaning of s. 8 of the Charter. [255]

Cases Cited

By LeBel J.

Referred to: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417; R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; Illinois v. Caballes, 543 U.S. 405 (2005).

By Binnie J.

Applied: R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; referred to: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Dinh (2003), 330 A.R. 63, 2003 ABCA 201; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51; R. v. Waterfield, [1963] 3 All E.R. 659; Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652; R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654; R. v. Mercer (2004), 45 Alta. L.R. (4th) 144, 2004 ABPC 94; Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903; R. v. Cahill (1992), 1992 CanLII 2129 (BC CA), 13 C.R. (4th) 327; Alabama v. White, 496 U.S. 325 (1990); R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182; R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312; R. v. Ferris (1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298; R. v. Lal (1998), 1998 CanLII 4393 (BC CA), 113 B.C.A.C. 47; Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1; Reid v. Georgia, 448 U.S. 438 (1980); R. v. Dinh (2001), 284 A.R. 304, 2001 ABPC 48; United States v. Sokolow, 490 U.S. 1 (1989); Sibron v. New York, 392 U.S. 40 (1968); Florida v. Royer, 460 U.S. 491 (1983); United States v. Eustaquio, 198 F.3d 1068 (1999); R. v. McCarthy (2005), 239 N.S.R. (2d) 23, 2005 NSPC 49; R. v. Schrenk (2007), 215 Man. R. (2d) 212, 2007 MBQB 93; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30.

By Deschamps J. (dissenting)

R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; Questions of Law Reserved (No. 3 of 1998) (1998), 71 S.A.S.R. 223; Illinois v. Caballes, 543 U.S. 405 (2005); Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Waterfield, [1963] 3 All E.R. 659; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, rev’g (2005), 2005 CanLII 16569 (ON CA), 196 O.A.C. 16; Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311; R. v. Boersma, 1994 CanLII 99 (SCC), [1994] 2 S.C.R. 488; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607; United States v. Place, 462 U.S. 696 (1983); R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312 ; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182; R. v. Woods, [2005] 2 S.C.R. 205, 2005 SCC 42; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652; Knowlton v. The Queen, 1973 CanLII 148 (SCC), [1974] S.C.R. 443; R. v. Truong (2002), 168 C.C.C. (3d) 132, 2002 BCCA 315; People v. Dunn, 564 N.E.2d 1054 (1990); State v. Pellicci, 580 A.2d 710 (1990); McGahan v. State, 807 P.2d 506 (1991); Commonwealth v. Johnston, 530 A.2d 74 (1987); R. v. Murray (1999), 1999 CanLII 13750 (QC CA), 136 C.C.C. (3d) 197.

By Bastarache J. (dissenting)

R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19; R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32; Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2; R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311; R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67; R. v. Plant, 1993 CanLII 70 (SCC), [1993] 3 S.C.R. 281; R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30; R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; United States v. Place, 462 U.S. 696 (1983).

Statutes and Regulations Cited

Australian Federal Police Act 1979 (Cth.), s. 12A.

Canadian Charter of Rights and Freedoms, ss. 1, 8, 9, 10, 24(2).

Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 99(1)(f).

Immigration Act, R.S.C. 1985, c. I‑2.

Law Enforcement (Powers and Responsibilities) Act 2002 (N.S.W.), ss. 145 to 150, 193 to 196.

Police Act, R.S.A. 2000, c. P‑17, s. 38(1).

Police Powers and Responsibilities Act 2000 (Qld.), 2000, No. 6, ss. 34 to 39.

Police Powers and Responsibilities (Drug Detection Dogs) Amendment Act 2005 (Qld.), 2005, No. 63.

Royal Canadian Mounted Police Act, R.S.C. 1985, c. R‑10, s. 18.

Authors Cited

Australia. New South Wales. Discussion Paper: Review of the Police Powers (Drug Detection Dogs) Act. Sydney: NSW Ombudsman, 2004.

Chevrette, François, and Hugo Cyr. “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non‑rétroactivité de l’infraction et la peine la plus douce”, in Gérald‑A. Beaudoin and Errol Mendes, eds., The Canadian Charter of Rights and Freedoms, 3rd ed. Scarborough, Ont.: Carswell, 1996, 10‑1.

Davis‑Barron, Sherri. “The Lawful Use of Drug Detector Dogs” (2007), 52 Crim. L.Q. 345.

Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007.

LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, vols. 1 and 4, 4th ed. St. Paul, Minn.: Thomson/West, 2004.

La Forest, Gérard V. “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985‑1997. Winnipeg: Canadian Legal Historic Project, Faculty of Law, University of Manitoba, 2000, 3.

Pollack, Kenneth L. “Stretching the Terry Doctrine to the Search for Evidence of Crime: Canine Sniffs, State Constitutions, and the Reasonable Suspicion Standard” (1994), 47 Vand. L. Rev. 803.

Sankoff, Peter, and Stéphane Perrault. “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123.

Sharpe, Robert J., and Kent Roach. Brian Dickson: A Judge’s Journey. Toronto: University of Toronto Press, 2003.

Shaw, Trevor. “The Law on the Use of Police Dogs in Canada” (2004), 48 Crim. L.Q. 337.

APPEAL from a judgment of the Alberta Court of Appeal (Côté, O’Leary and Paperny JJ.A.) (2006), 60 Alta. L.R. (4th) 223, 391 A.R. 218, 377 W.A.C. 218, 210 C.C.C. (3d) 317, 39 C.R. (6th) 282, [2006] 9 W.W.R. 633, 144 C.R.R. (2d) 338, [2006] A.J. No. 755 (QL), 2006 CarswellAlta 794, 2006 ABCA 199, dismissing the accused’s appeal from conviction (2005), 386 A.R. 48, 203 C.C.C. (3d) 132, 31 C.R. (6th) 231, [2005] A.J. No. 1110 (QL), 2005 CarswellAlta 1217, 2005 ABQB 608. Appeal allowed, Bastarache, Deschamps and Rothstein JJ. dissenting.

James M. Lutz and Alias A. Sanders, for the appellant.

Kenneth J. Yule, Q.C., Jolaine Antonio and Lisa Matthews, for the respondent.

Robert W. Hubbard and Alison Wheeler, for the intervener the Attorney General of Ontario.

Dominique A. Jobin and Gilles Laporte, for the intervener the Attorney General of Quebec.

Kenneth D. Madsen, for the intervener the Attorney General of British Columbia.

Frank Addario and Emma Phillips, for the intervener the Criminal Lawyers’ Association (Ontario).

Jonathan C. Lisus, Christopher A. Wayland and Sarah Corman, for the intervener the Canadian Civil Liberties Association.

The reasons of LeBel, Fish, Abella and Charron JJ. were delivered by

LeBel J. —

I. Introduction

[1] I have had the opportunity of reading the reasons of Binnie J. in this appeal and in the companion appeal R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19. Like him, I would allow the appeal, find that there was a violation of s. 8 of the Canadian Charter of Rights and Freedoms and exclude the evidence under s. 24(2). However, I reach this conclusion for different reasons. I agree that the use of sniffer dogs constitutes a search within the meaning of s. 8 of the Charter. The question on this appeal is whether the sniffer-dog search conducted in this case was “authorized by law”. It is undisputed that the search was not specifically authorized by statute. The question becomes whether the police were authorized at common law to conduct the search in fulfilment of their general duty to investigate crime. Binnie J. concludes that, in the circumstances of this case, they were not so authorized. I agree. In answering this question, however, I would not lower the threshold for the exercise of police powers to one of “reasonable suspicion” since to do so would impair the important safeguards found in s. 8 of the Charter against unjustified state intrusion. I would apply the existing and well-established standard of “reasonable and probable grounds” to hold that the search did not meet this standard. In so holding, I acknowledge that the Charter does not prohibit the use of sniffer dogs or other investigative techniques by police; it does require, however, that they be used in accordance with the standards established by s. 8.

II. Analysis

[2] Of critical importance in situating the debate before this Court is the undisputed fact that the police had no reasonable and probable grounds to believe that Mr. Kang-Brown had drugs in his possession or that he had committed any other offence at the time they accosted him and effected the sniffer-dog search. The Crown seeks to rely, rather, on the fruits of the sniffer-dog search itself to establish the legality of Mr. Kang-Brown’s arrest and consequent search of his bag. In other words, it is uncontested that on the present state of the law, without the benefit of the positive sniffer-dog search, Mr. Kang-Brown ought to have been left alone by state authorities.

[3] It is common ground that no statutory provision authorizes the sniffer-dog search that was conducted at the Calgary bus terminal. Nor was there common law authority to arrest Mr. Kang-Brown prior to the search being conducted. The issue is therefore whether this Court, in the absence of any legislative regime, should attempt to itself craft a lower standard than that set out in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, to govern the use of sniffer dogs by the police in public places such as a bus terminal or, as in A.M., a school. This appears to be the suggestion of my colleague Binnie J. when he proposes a new standard of “reasonable belief or suspicion”, the application of which would depend on the degree of intrusiveness of the investigative technique used in a particular case.

[4] Contrary to what Binnie J. asserts in his reasons, the issue of the role of the courts in respect of common law police powers is squarely before us on this appeal. Unlike him, however, I conclude that any perceived gap in the present state of the law on police investigative powers arising from the use of sniffer dogs is a matter better left for Parliament. The issue was raised by the parties in this Court and in the courts below. Indeed, it lies at the heart of the present litigation. Mr. Kang-Brown raised the arbitrariness of the search (factum, at para. 63). The Criminal Lawyers’Association of Ontario submitted that the constitutional requirements of reasonable and probable cause set out in Hunter v. Southam had to be met. Reasonable suspicion was raised at most as an alternative solution and not the preferred one. Even one of the Crown counsel, who was arguing that the dog sniff was not a search, in answer to a question from a member of our Court, stated that, if it was a search, “we’re in uncharted waters”. He added that “one has to strain to think of situations where the Court has said that something less than reasonable grounds suffices where it’s a Section 8 search” (transcript, at p. 55). In A.M., one of the grounds adopted by the Ontario Court of Appeal to quash the search of school premises was that the search was not authorized by the criminal law or by the Education Act or subsidiary school policies.

[5] Courts make and change the law (Canada (Attorney General) v. Hislop, [2007] 1 S.C.R. 429, 2007 SCC 10, at paras. 83-87). Much of what is recognized as “law” is actually, in one form or another, judge-made law (G. V. La Forest, “Judicial Lawmaking, Creativity and Constraints”, in R. Johnson et al., eds., Gérard V. La Forest at the Supreme Court of Canada, 1985-1997 (2000), 3). The question is not whether this lawmaking power exists, but how and when it is appropriate to exercise the power.

[6] This question becomes particularly delicate when, in matters which engage key constitutional values and rights, courts decide to act as lawmakers because of perceived gaps in the law. Should the common law be used to fill such gaps? This Court has used it to do so in certain circumstances in the area of the law we are now considering, in cases like R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 (investigative detentions), and, quite recently, R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32. These precedents do not mean that the Court should always expand common law rules, in order to address perceived gaps in police powers or apprehended inaction by Parliament, especially when rights and interests as fundamental as personal privacy and autonomy are at stake.

[7] Courts form part of the institutions of a democratic state where democratically elected legislatures debate and enact laws in an open public process. Courts are vital institutions particularly because the Constitution itself protects fundamental human rights. The Constitution does not belong to the courts, as McLachlin J. (as she then was) wisely said in her dissent in Cooper, but courts must remain alive and sensitive to the fact that they are ultimately the guardians of constitutional rules, principles and values when all else fails (Cooper v. Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 S.C.R. 854, at para. 70).

[8] Section 8 of the Charter expresses one of the core values of our society: respect for personal privacy and autonomy. A significant proportion of Charter decisions have concerned the interpretation and application of s. 8. It may be said that our Charter jurisprudence was born with Hunter v. Southam, which remains one of the seminal judgments that, like R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, laid the groundwork for the interpretation of the Charter (see R. J. Sharpe and K. Roach, Brian Dickson: A Judge’s Journey (2003), at pp. 312-16). Although the word “privacy” does not appear in the Charter, from the first days of its application, s. 8 evolved into a shield against unjustified state intrusions on personal privacy (Hunter v. Southam, at p. 160).

[9] Even before the Charter came into force, the courts were protective of privacy rights, although they tended to ground that protection in the notions of territoriality and of the relative sanctity of property interests (P. W. Hogg, Constitutional Law of Canada (5th ed. 2007), vol. 2, at p. 455). They modified this approach under the Charter, defining privacy interests as personal rights (Hogg, at p. 456; Hunter v. Southam, at pp. 158‑59). This shift underscores the crucial importance of privacy interests in the interpretation of s. 8 (see La Forest J. in R. v. Dyment, 1988 CanLII 10 (SCC), [1988] 2 S.C.R. 417, at pp. 426-27; Bastarache J. in R. v. Law, [2002] 1 S.C.R. 227, 2002 SCC 10, at para. 16; F. Chevrette and H. Cyr, “La protection en matière de fouilles, perquisitions et saisies, en matière de détention, la non-rétroactivité de l’infraction et la peine la plus douce”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 10-1, at pp. 10-72 and 10-94).

[10] The protection of privacy interests rests on the constraints, like the requirements of prior authorization and reasonableness, imposed on those conducting searches and seizures by the wording of s. 8 and by the courts in applying that section. The needs of law enforcement have to be taken into consideration and to be balanced with reasonable expectations of privacy. Nevertheless, in the leading cases on s. 8, the courts imposed significant constraints on intrusions on personal privacy by state agents. These constraints were found necessary because, as our Court found in Hunter v. Southam, “to determine the balance of the competing interests after the search had been conducted” amounts to an “[ex] post facto analysis [that] would . . . be seriously at odds with the purpose of s. 8”. That purpose, our Court then emphasized, “requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place” (p. 160 (emphasis deleted)). Those constraints were — and in general still are, since this Court has never resiled from them — that there be a legal basis for the search or seizure in a statute or at common law, prior judicial authorization, and reasonable and probable cause. Departures from that constitutional framework had to be justified by the state. La Forest J. strongly stated the view that, as a matter of principle, common law police powers were narrow and their extension is better be left to Parliament (R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at pp. 56-57). My concern is that the approach adopted by my colleagues in this case will in practice jeopardize critical elements of the constitutional rights guaranteed by s. 8 and of that section’s underlying values. Perhaps somewhat ironically, this erosion process would derive not from state action or from the laws of Parliament, but from decisions of the courts themselves.

[11] These considerations lead me back to the central question in the present appeal: the proper performance of the courts’ lawmaking function. In my opinion, the jurisprudence-based solutions advanced in the reasons of certain of my colleagues, who openly or implicitly advocate the creation of new common law rules reducing the standard of scrutiny of state intrusion into privacy, do not represent an appropriate exercise of judicial power in the circumstances of this appeal and of the companion appeal in A.M.

[12] The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. I doubt that it should lead us to depart from the common law tradition of freedom by changing the common law itself to restrict the freedoms protected by the Constitution under s. 8 of the Charter.

[13] The standard for search and seizure operations in Canadian law has generally been reasonable and probable cause, with or without judicial preauthorization depending on the exigency of the circumstances. At paras. 77-78 of his reasons in A.M., Binnie J. mentions a number of statutory exceptions to that standard, some of which have been challenged before the courts. I have already referred to the decisions of our Court in Mann and Clayton. Other situations could arise where the constitutionality of a search and seizure operation might be upheld in the absence of statutory authority. One might think for example about exigent circumstances relating to apprehended terrorist activities. Nevertheless, given the critical nature of the privacy interests at stake and the weakness of the factual foundation in this appeal and in the companion appeal of A.M., the constitutional role of the Court suggests that the creation of a new and more intrusive power of search and seizure, as is being proposed in some of the opinions in this appeal, should be left to Parliament to set up and justify under a proper statutory framework.

[14] A statutory provision on the appropriate use of sniffer dogs in law enforcement on grounds that fall short of the standard established in Hunter v. Southam might require justification under s. 1, but state action would not be foreclosed so long as the standard for justification was met under the relevant constitutional test. A requirement that Parliament act first would put the courts in a better position to address the competing interests at play and would ensure that the justification process meets constitutional standards. The extension of common law police powers as proposed in this case would shortcut the justification process and leave the Court to frame the common law rule itself without the full benefit of the dialogue and discussion that would have taken place had Parliament acted and been required to justify its action.

[15] Moreover, this is a case where the courts are ill-equipped to develop an adequate legal framework for the use of police dogs. In determining where the proper balance lies between the protection of privacy and effective law enforcement, the courts will be hampered by the fact that little is known about investigative techniques using sniffer dogs. Indeed, the record remains singularly bereft of useful information about sniffer dogs. The available information is in essence limited to the facts that they are used for investigative purposes in a variety of circumstances and that police officers believe in their overall reliability and to the praise of a particular dog deployed at the Calgary bus station. From the record, however, and from some of the authorities cited by the parties, it appears that serious doubt has occasionally been cast on the reliability of sniffer dogs (see, for example, the dissent of Souter J. of the U.S. Supreme Court in Illinois v. Caballes, 543 U.S. 405 (2005), at pp. 410-13; see also New South Wales Ombudsman, Discussion Paper: Review of Police Powers (Drug Detection Dogs) Act (June 2004)). Despite this inadequate record, this Court is nonetheless being asked to curtail Charter rights for fear of leaving a void in the law and interfering with the use of a fairly widespread police investigative technique. The Court would create a new common law rule on the basis of little more than unverified and, for us in this appeal, unverifiable assumptions.

[16] Courts ought to avoid relying on such a weak and inadequate record as a basis for justifying an intrusion on privacy rights. A downgrading of the standard of reasonable and probable cause to a standard of reasonable suspicion in these circumstances and on the basis of this record might lead to an even looser test of “generalized suspicion”, which is in fact the standard adopted by one of the dissenting judges in this appeal. It would also tend to limit privacy rights to the possibility of obtaining some kind of remedy after the fact. Perfunctory excuses would be of little comfort to passengers and passers-by inconvenienced by an unfounded sniff and its consequences. The result would verge on honouring reasonable and probable cause in principle, while gutting it in practice through an even wider use of a standard of reasonable suspicion.

[17] For these reasons, I would not attempt to create or discover a common law police power to use sniffer dogs in investigating potential lawbreakers. Absent justified authority for such a search in a statute or at common law, I would hold that s. 8 was breached. Given the seriousness of the breach, I agree with Binnie J. that the evidence should be excluded under s. 24(2) of the Charter, the appeal should be allowed and the conviction should be set aside.

The reasons of McLachlin C.J. and Binnie J. were delivered by

Binnie J. —

I. Introduction

[18] The question raised by this appeal is whether travellers are entitled to pass through the Calgary public bus terminal without having their bags subjected to a random and speculative sniffer-dog search in pursuit of contraband. If in general they are free to do so, the question is whether the police possess the power, in fulfilment of their duty to investigate crime, to make use of sniffer dogs to search the bags for drugs. This case involves routine crime investigation. It does not involve explosives, guns or other public safety concerns.

[19] The appeal and the companion case of R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19, have polarized the Court. My colleague Bastarache J. analogizes privacy expectations in a local bus station to the reduced expectations of privacy associated with border crossings and international airports. He concludes that a “generalized suspicion” about the presence of drugs is sufficient to justify the deployment of sniffer dogs in bus stations without offending s. 8 of the Canadian Charter of Rights and Freedoms, which protects “everyone” against “unreasonable search or seizure”.

[20] My colleague LeBel J., on the other hand, would deny the existence of a police power to use sniffer dogs for searches in the circumstances of these cases in the absence of “prior judicial authorization, and reasonable and probable cause” (para. 10). Any different standard “should be left to Parliament to set up and justify under a proper statutory framework” (para. 13).

[21] For reasons to be discussed, I do not agree with either polarized position. “Generalized suspicion” would, in my respectful view, open the floodgates to sniffer dogs everywhere. On the other hand, the “leave it to Parliament” approach ducks a practical and immediate problem facing law enforcement. Sniffer dogs have been in common use by police forces in Canada for the last 30 years or more. If the police have lawful authority to use sniffer dogs only when they already have reasonable grounds to believe contraband is present, sniffer dogs would be superfluous and unnecessary, i.e. because ex hypothesi the police already have the grounds to obtain a search warrant and would not require the confirmatory evidence of a dog.

[22] Like LeBel J., I would welcome parliamentary intervention in this contentious area, but unlike LeBel J., I do not favour an approach that effectively renders sniffer dogs useless until Parliament chooses to enact legislation. In fairness to litigants, the Court ought not, in my respectful view, to waver unpredictably between the willingness of the Court to explore adjustments in the common law of detention or search and seizure based on reasonable suspicion, as in the recent cases of R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52 (investigative detention), and R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32 (detention, search and seizure), and the “hands off” or “leave it to Parliament” attitude my colleague advocates in this case. How are litigants to anticipate whether they will find the Court in a “can do” mode or a “leave it to Parliament” mode? In my view, Mann and Clayton resolved the Court’s attitude to this particular area of common law police powers in favour of the former. We have crossed the Rubicon.

[23] The police here were going about their ordinary business of investigating crime in a public bus station to which they had every right of lawful access. The police claim that their use of the sniffer dog Chevy in this case complied with s. 8 of the Charter. Accordingly, the difficult question raised by this appeal is not (in my view) the existence of a police power to investigate crime using sniffer dogs or any other lawful devices or technology in places where the police are lawfully entitled to be. The difficult question is the extent to which the use of such devices or techniques or animals is permitted by s. 8 of the Charter and, if so, in what circumstances. It is emphatically the duty of the courts, not Parliament, to resolve the issue of Charter compliance.

[24] It has been recognized since Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, that while generally speaking the s. 8 standard is reasonable and probable cause, warrantless searches may be acceptable by careful application of the s. 8 balance between the legitimate needs of law enforcement and the legitimate interest of “everyone” in privacy. The balance is calibrated according to the circumstances. The guarantee of s. 8 is not against search and seizure but against unreasonable search and seizure. The police rest their case on the minimal intrusiveness, narrowly targeted objective and high accuracy of specifically trained dogs (in this case Chevy), not on some s. 1 argument about a pandemic of drug trafficking or terrorist activity.

[25] In my view, for reasons developed in A.M., the police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband. This Charter standard of “reasonable suspicion” is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of “sniffs” by specifically trained dogs like Chevy.

[26] On the facts, the question here is whether the police at the Calgary bus station had grounds to suspect the appellant of possession of drugs sufficient to justify the use of a sniffer dog to investigate the appellant’s bag. The courts in Alberta rejected the notion that a sniffer-dog “sniff” could amount to a search, but I agree with Paperny J.A., dissenting in the Alberta Court of Appeal, that a “sniff” amounts to a s. 8 search. The constitutional question however is whether in the circumstances it was an unreasonable search. Because such searches are conducted without prior judicial authorization, the after-the-fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. The police action in this case was based on speculation. The evidence resulting from the sniffer-dog search should not have been admitted. I would therefore allow the appeal and set aside the conviction.

II. Facts

[27] On January 25, 2002, at about 11:00 a.m., three RCMP officers were staking out the Calgary Greyhound bus terminal in plain clothes. The team was watching passengers disembark from the overnight bus from Vancouver. This was part of the RCMP “Jetway” program which monitors the travelling public in an effort to identify and arrest drug couriers and other individuals participating in criminal activities.

[28] The RCMP were not investigating the possibility of terrorist activity, explosives or other threats to public safety. Their sniffer dog Chevy was not trained for anything other than detection of narcotics.

[29] RCMP Sergeant MacPhee testified that his training in the Jetway program taught him to watch for what he referred to as an “elongated stare”, a locked eye contact for a period of a few seconds. The appellant gave him such a stare. Sergeant MacPhee noted that the appellant had moved to the underbelly of the bus, but did not look at the bags that were being unloaded. Instead, he went around the bus in a direction different from the other passengers and stopped 10 to 15 feet behind Sergeant MacPhee. The officer said this conduct aroused his suspicion.

[30] The appellant was carrying a bag (described as similar to a gym bag) that had no Greyhound or other identifying tags on it. It had two handles rather than a shoulder strap. The appellant was carrying it on his shoulder. On entering the terminal he walked toward the washroom. About 10 feet before the washroom door, the appellant stopped, turned around and looked back at Sergeant MacPhee, who was about 25 feet behind him. Sergeant MacPhee described this as “rubbernecking”.

[31] When the appellant came out of the washroom, he again made eye contact with Sergeant MacPhee as he moved towards the exit doors. Sergeant MacPhee went over and introduced himself as follows: “Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they are travelling.” Sergeant MacPhee commented on the weather and asked to see the appellant’s bus ticket (which he had apparently left on the bus), and asked for identification (which the appellant produced). Sergeant MacPhee made a note of the appellant’s name and date of birth, and asked how long he would be in Calgary. The appellant seemed to Sergeant MacPhee to be getting “increasingly antsy” in the officer’s presence.

[32] At this point, Sergeant MacPhee asked to see the contents of the appellant’s bag. The appellant paused, then put his bag down on the floor and started to open it. Sergeant MacPhee said, “Thanks, sir. You’re certainly not obliged to show me, but thanks.” Sergeant MacPhee then started to kneel down and take hold of the bag himself, saying “Just an officer safety thing here, do you mind?” Before he could touch the bag, the appellant exclaimed “What are you doing?” and pulled the bag back. At that point, the appellant was said to be very agitated. Sergeant MacPhee signalled to another officer, Sergeant Bouey (then Corporal), who was accompanied by Chevy. They approached, and Chevy sat down, indicating to his handler the presence of drugs in the bag. Sergeant MacPhee then told the appellant that he was under arrest for the possession and/or trafficking of a controlled substance and advised him of his rights.

[33] Following the arrest, the appellant’s bag was searched by Constable Ritchie, and was found to contain two zip lock baggies filled with approximately 17 ounces of cocaine. The appellant also produced, from his pocket, a Starbucks mint container containing a small amount of heroin. The appellant was charged with possession of cocaine for the purposes of trafficking and possession of heroin.

[34] The trial judge held that the appellant was neither arbitrarily detained nor unlawfully searched and entered a conviction. The majority of the Court of Appeal agreed and dismissed his appeal.

III. Relevant Constitutional Provisions

[35] The relevant Charter provisions read as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. . . .

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

IV. Judicial History

A. Alberta Court of Queen’s Bench (2005), 386 A.R. 48, 2005 ABQB 608

[36] Romaine J. found that the appellant had not been physically detained during questioning. Only one officer engaged him in conversation. His exit route was not obstructed and he had been advised that he was free to go at any time. The fact that police were suspicious and asked questions of a pointed nature was not sufficient to establish psychological detention. Not every interview of a suspect is a detention. As Kang-Brown did not testify during the voir dire, there was no evidence of his subjective belief as to whether or not he was detained.

[37] Romaine J. stated that in any event she was satisfied that reasonable grounds existed for his investigative detention as required by Mann. These grounds were provided by the “suspicious behaviour” exhibited by Kang-Brown. Romaine J. remarked that “[w]hile the Jetway officers did not have a specific recent offence that they were investigating, they certainly were investigating the on-going traffic of drugs, and their detention of Mr. Kang-Brown, if it was such, could be characterized as arising from such on-going investigation” (para. 57). With respect to the dog sniff and ensuing physical search, there was no evidence that Kang-Brown had a subjective expectation of privacy in the contents of his bag, as he did not testify at trial. In the trial judge’s view, odour is a voluntary exposure of information, and no person can have a reasonable expectation of privacy in what he or she knowingly exposes to the public. She noted that the search took place in a bus terminal, not a home, and “it cannot be said that travellers choosing to use public transport in these days of random terrorist attacks have a reasonable expectation that their luggage is exempt from search” (para. 73).

[38] According to Romaine J., the evidence showed that a dog sniff was reliable over 92 percent of the time in “alerting” to the presence to drugs. The dog sniff is more reliable than the Forward Looking Infra-Red (“FLIR”) technology used in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67. Those who engage in the manufacture of and traffic in contraband drugs should not be entitled to protection for their illicit business activities through an overly broad interpretation of the personal constitutional rights of Canadian citizens. A dog sniff was relatively less intrusive than other investigative techniques. Given the seriousness of the crime it was intended to detect, the trial judge found that the use of the sniffer dog was not objectively unreasonable.

[39] However, if the trial judge was wrong on that point, she would nevertheless have allowed the evidence under s. 24(2) of the Charter. The dog sniff was relatively unintrusive, and no force was used. Any breach of Charter rights in this case was not sufficiently serious to warrant the exclusion of the evidence.

B. Court of Appeal (2006), 60 Alta. L.R. (4th) 223, 2006 ABCA 199

(1) Majority (Côté and O’Leary JJ.A.)

[40] Côté J.A., speaking for the majority, agreed with the trial judge that there had been no detention. The evidence of the police officer was that his initial request to talk, and subsequent questions, were all given in a non‑authoritarian congenial manner. He was in casual dress, and no weapons were visible.

[41] Not all information obtained by the police in a public place about contents of a private place is a search. There is no rule of law that dog sniffs of luggage in lockers are always a s. 8 search, or that they never are. Côté J.A. noted that in Tessling this Court said that court decisions in this area should be precise and more fact‑sensitive. The Alberta Court of Appeal’s earlier decision in R. v. Dinh (2003), 330 A.R. 63, 2003 ABCA 201, is distinguishable from the present case, even if it was not overruled.

[42] The question was whether the ordinary citizen who has committed no offence has a reasonable expectation of privacy which would be significantly invaded by the police action in question. The dog could detect illegal drugs and nothing else. Had the appellant not been in possession of illegal drugs, the dog’s presence would have had no effect on him.

[43] Côté J.A. considered the following factors significant in determining whether or not the appellant had a reasonable expectation of privacy in this case; that the police were in a purely public place (not the yard of a home); that the dog only yielded a crude piece of information (yes or no to the presence of an unknown quantity of an unknown illegal drug); that no intimate details of private lives could possibly be revealed; that the odours came out passively, and that they were detected by something similar to (but more sensitive than) an ordinary human nose. There was no reasonable expectation of privacy for that limited information in that public place. Côté J.A. therefore concluded that there was no search. He agreed with the trial judge that even if there had been a Charter breach, the evidence ought not to be excluded under s. 24(2) of the Charter.

(2) Dissent (Paperny J.A.)

[44] In Paperny J.A.’s view, the dog sniff was a search. The appellant’s right to be free from unreasonable search and seizure was breached, the breach was serious, and the evidence should be excluded under s. 24(2). The position taken by Côté J.A., she felt, would render a vast range of common human activities subject to police surveillance without prior judicial authorization. “Emissions” are broadly understood to include everything that can be seen, heard or smelled and may “emanate” from computers, cell phones, homes, televisions, radios, persons, luggage, handbags, etc.; in other words, from anywhere or anything. Tessling did not eradicate privacy interests in “emissions” in general. The s. 8 questions must be framed in regard to bus travellers generally and whether they have a reasonable expectation of privacy in their personal luggage. The trial judge incorrectly narrowed the scope of s. 8 in concluding that there was no privacy interest engaged because this was not the type of information that society has an interest in protecting.

[45] Luggage contains personal items and information indicative of personal choices and lifestyle. Carrying luggage through a public bus terminal does not reduce the privacy interest to the same extent as in airports. The security measures taken at airports have of necessity resulted in a diminished expectation of privacy in that setting; these measures have not been employed in bus terminals.

[46] Warrantless searches are prima facie unreasonable, absent exigent circumstances. On the facts, there were no exigent circumstances. The police did not have reasonable and probable grounds to believe that evidence of criminal activity existed until the dog gave the positive indication after sniffing the bag. Paperny J.A. concluded that the appellant’s s. 8 Charter rights were violated. Given the seriousness of the breach and the effect of admitting the evidence on the reputation of the administration of justice, the evidence ought to be excluded under s. 24(2) of the Charter.

V. Analysis

[47] “Operation Jetway” is an RCMP program designed to curtail drug trafficking. It monitors the travelling public in transportation hubs such as airports and bus depots. It appears to be modelled on drug “courier” profiles developed since 1974 by the United States Drug Enforcement Administration. Police officers contend that certain types of behaviour, demeanour, dress and other visible personal characteristics of travellers may be indicative of criminal activity. The RCMP target these individuals as they pass through a terminal and attempt to engage them in “voluntary conversation”. The aim is to have suspicious individuals consent to a search to determine whether they are carrying drugs on their person or in their luggage. In circumstances where consent is withheld or equivocal, the RCMP may decide to use a sniffer dog to try to detect any odour of narcotics around the suspect’s person or belongings.

A. Was the Sniffer-Dog Police Investigation Authorized by Law?

[48] It is common ground that what occurred at the Calgary bus station was a warrantless search, and therefore presumptively unreasonable. As Lamer J. stated in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278:

. . . once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.

(See also Mann, at para. 36; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, at paras. 10-12.)

[49] LeBel J. and I differ as to whether sniffer-dog searches are “authorized by law”. In this respect, this Court has of late become preoccupied with the pre-Charter test of police common law powers expressed by the English Court of Criminal Appeals in R. v. Waterfield, [1963] 3 All E.R. 659, and by our Court in the pre-Charter case of Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, and in the post-Charter cases of Mann and Clayton. In Dedman, Le Dain J. formulated the test for existence of a common law police power as follows:

The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]

Dickson C.J. put forward in his dissent the “leave it to Parliament” approach advocated here by LeBel J. Dickson C.J. wrote:

It is the function of the legislature, not the courts, to authorize arbitrary police action that would otherwise be unlawful as a violation of rights traditionally protected at common law. [p. 15]

Nevertheless, the contrary view espoused by Le Dain J. prevailed, and his majority view has been adopted and applied in a number of our subsequent cases, including Cloutier v. Langlois, 1990 CanLII 122 (SCC), [1990] 1 S.C.R. 158, R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, Mann and Clayton.

[50] In Clayton, writing for LeBel J., Fish J. and myself, I stated:

If (as I believe) none of these cases [referred to] provides authority for what was done in this case, the “balancing test” derived from Dedman must be applied. The Court must determine whether the common law rule, if it exists, authorized the police to do what they did here. [Emphasis added; para. 80.]

The common law is forever filling “gaps”. It relies, as it has for hundreds of years, on various judge-created methodologies to do so. In this case, the relevant methodology adopted and applied by our Court is the Waterfield/Dedman test.

[51] Abella J., writing for the other members of the full bench in Clayton, adopted the observation of Doherty J.A. in the Ontario Court of Appeal:

The powers of police constables at common law, often described as the ancillary police power, as set out in Waterfield have been accepted by the Supreme Court of Canada as part of the Canadian common law in several decisions rendered both before and after the proclamation of the Charter . . . . [para. 22]

Accordingly, it is my view that in these appeals the Court should proceed incrementally with the Waterfield/Dedman analysis of common law police powers rather than try to re-cross the Rubicon to retrieve the fallen flag of the Dedman dissent. In saying that, of course, I am not suggesting that in a particular case the outcome will always or even generally be in favour of the existence of a police power. Where a court concludes, after analysis, that the police do not have the power they claim, it will be up to Parliament to decide what law, if any, it wishes to enact on the subject.

[52] The first requirement of the Waterfield/Dedman test is the existence of a police duty. It cannot be controversial that police have a duty to solve crimes and bring the perpetrators to justice: Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, s. 18, and the Alberta Police Act, R.S.A. 2000, c. P-17, s. 38(1). If that is not a large part of their job it is difficult to know what they are getting paid for.

[53] The second common law requirement, as stated, is that the powers “ancillary” to that duty must be “reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (Dedman, at p. 35). In the pre-Charter era, the “reasonableness” limitation was important to keep police powers in balance with what was broadly acceptable in a free society. The pre-Charter justification was less demanding than the Charter. The long history of the use of police dogs in common law countries for various search purposes attests to that.

[54] Unless the Court is to adopt the view that without specific statutory support the police are restricted to the use of their unaided eyes, ears and sense of smell, it is obvious that the police must use many tools to investigate crime within the limits set by the Charter. A “sniffer dog” is an investigative tool, not a “police power” such as the powers to detain or to arrest. Is Parliament to legislate on when a police officer may use “binoculars, flashlights and night vision goggles”? (S. Davis-Barron, “The Lawful Use of Drug Detector Dogs” (2007), 52 Crim. L.Q. 345, at p. 384). As criminals become more sophisticated and devise new ways to cover their tracks, the police constantly upgrade their own techniques and equipment. In my view, it is not necessary for the police to keep returning to Parliament for authority to make use of tools deployed in full public view like sniffer dogs. It is of course critical for Parliament to keep proper control of the police, but in the case of search and seizure, the judicial control is already in place in the form of s. 8 of the Charter, which it is the Court’s constitutional duty to interpret and apply.

[55] In Tessling, the police made use of an airplane fitted with infra-red imaging technology to overfly suspected marijuana grow-ops. Nowhere did the Court suggest that the use of such equipment required specific statutory authority. The issue was whether such use violated s. 8 of the Charter.

[56] In rejecting the existence of any common law police power in this case, my colleague LeBel J., nevertheless, adds:

Other situations could arise where the constitutionality of a search and seizure operation might be upheld in the absence of statutory authority. One might think for example about exigent circumstances relating to apprehended terrorist activities. [para. 13]

Once it is concluded that the Court might (or might not) accept the existence of “exigent circumstances relating to apprehended terrorist activities”, an area of law enforcement where sniffer dogs are already in use, it seems to me, with respect, that there is no persuasive reason to refuse consideration of the use at common law of sniffer dogs in relation to other apprehended criminal activities such as trafficking of narcotics except on the basis that the balancing of the state interest in collective security and public order in a terrorist case might weigh more heavily against the individual’s interest in privacy than in a drug bust. However, the “balance” debate under the pre-Charter Waterfield/Dedman analysis also arises in a more stringent form under s. 8. We need not await parliamentary legislation to get on with the s. 8 debate and make a decision.

[57] Sniffer dogs are used in many different situations. Because their ability to communicate is limited to “alerting” a simple “yes” or “no” to the presence of the targeted substance(s), the dogs are necessarily specialized. Otherwise their handlers, with no ability to interrogate their canine helpers, wouldn’t know what the dog was alerting to. In some cases, the dog’s acute sense of smell is trained to target explosives, and they are used in airports and other places vulnerable to threats to public safety. Other dogs are trained to detect human scent and are used to locate people who are lost or to find their remains after death, or to attempt to track an abducted child to the place of concealment. Other dogs are trained to detect fire accelerants and are used in arson investigations. Still others are trained to detect illicit drugs for the purpose of everyday crime detection. It is evident that dogs assist the police in many crucial ways. In my view, where the police comply with the requirements of the Charter, they possess the common law authority to make use of sniffer dogs in places to which they have lawful access for the purpose of criminal investigations. The real question here, as it was in Mann and Clayton, is Charter compliance.

B. Is the Common Law Police Power Incompatible With Section 8 of the Charter?

[58] My colleague LeBel J. writes, at para. 1:

. . . I acknowledge that the Charter does not prohibit the use of sniffer dogs or other investigative techniques by police; it does require, however, that they be used in accordance with the standards established by s. 8.

We agree that the use of a sniffer dog amounts to a —search— because of the significance and quality of the information obtained about concealed contents, whether such contents are in a suspect’s belongings or carried on his or her person. (In the present case, the positive —sniff— was itself considered sufficient by the RCMP to arrest the appellant before even physically checking his bag to confirm the presence of illegal drugs.) However, because of the minimal intrusion, contraband-specific nature and pinpoint accuracy of a sniff executed by a trained and well-handled dog (as in the case of Chevy here), it is my view for reasons set out in A.M., released concurrently, that a proper balance between an individual’s s. 8 rights and the reasonable demands of law enforcement would be struck by permitting such “sniff” searches on a “reasonable suspicion” standard without requiring prior judicial authorization.

[59] Hunter v. Southam is the point of departure. That case involved a challenge to the constitutional validity of s. 10 of the Combines Investigation Act which authorized the Director of the government agency to order a search of “any premises [in Canada in] which [he] believes there may be evidence relevant” to one of his ongoing inquiries. There was no effective oversight of the exercise of that power. The Director issued an order that licensed combines officials “to roam at large on the premises of Southam Inc.” at the stated address and “elsewhere in Canada” (p. 150). Dickson J. declared this power, as it had been interpreted by the Federal Court of Appeal, to be “effectively unreviewable” (p. 166). He concluded:

In cases like the present, reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that there is evidence to be found at the place of the search, constitutes the minimum standard, consistent with s. 8 of the Charter, for authorizing search and seizure. [Emphasis added; p. 168.]

Dickson J. recognized that while warrantless searches are presumptively unreasonable, the presumption is rebuttable. He gave the instance of situations where prior authorization is not “feasible” (p. 161), but in subsequent cases he also accepted a lower standard of justification, e.g., for state intervention at a border crossing in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at p. 528 (see also R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652), as did our Court in respect of searches by school authorities in R. v. M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393. The jurisprudence thus accepts a measure of flexibility when the demands of reasonableness require. The presumptive requirement of prior judicial authorization remains, of course, and in the present case the onus is on the Crown to demonstrate on a balance of probabilities that the police use of the sniffer dogs in this case and in A.M. satisfied the Collins requirement for warrantless searches.

[60] For the reasons explained in A.M., I believe the Charter test is met in the case of sniffer-dog searches by proof of reasonable suspicion. I believe, therefore, that in cases where reasonable suspicion exists, the first two conditions of the Collins test are satisfied (Collins, at pp. 278-79; R. v. Kokesch, 1990 CanLII 55 (SCC), [1990] 3 S.C.R. 3, at pp. 15-16). Where reasonable suspicion exists, a sniffer-dog search is authorized by the common law, and the common law itself is reasonable on the basis of reasonable suspicion, given the minimally intrusive, narrowly targeted and high accuracy of “sniff searches” by dogs with a proven track record like Chevy. However, on the facts of this case, because of the absence of reasonable suspicion, the search fails the first and third branches of the Collins test. As there was not reasonable suspicion, the search was not authorized by law and fails the first requirement. Further, it fails on the third requirement, namely that the search be conducted reasonably. The police failed because they exercised their common law power based on speculation rather than objectively verifiable evidence supporting reasonable suspicion.

[61] Of course, it would be desirable for Parliament to enact a comprehensive scheme governing police powers. It has not done so. The Court has no mandate to dictate Parliament’s agenda. In the meantime, the police have to deal with real-world problems. As Sergeant Bouey testified:

[W]e worked in a proactive policing program and we attempted to modify our practices to do the best practice. But as in all areas of policing, one just can’t stop what they’re doing. They have to grow and progress, and so the answer to that would be yes, we continued using the police service dog in a modified approach. [Emphasis added; R.R., at pp. 140-41.]

In my view, both the defence bar and the agencies of law enforcement are entitled to have the Court deal with sniffer-dog searches under s. 8 of the Charter. To do so does not in any way preclude Parliament from enacting a more comprehensive statutory regime, should its legislative timetable permit.

C. Shirking Our Constitutional Duties?

[62] My colleague LeBel J. writes:

The common law has long been viewed as a law of liberty. Should we move away from that tradition, which is still part of the ethos of our legal system and of our democracy? This case is about the freedom of individuals and the proper function of the courts as guardians of the Constitution. [para. 12]

The common law tradition values liberty, but it has always sought to strike the proper balance (as the Waterfield/Dedman test illustrates) between the interests of the individual and the interests of society, including law enforcement. In Mann, the Court faced the issue of “reasonable suspicion” in relation to an investigative detention. We decided unanimously that rather than leave the matter to Parliament, our Court ought to (and did) exercise what Iacobucci J. called the Court’s “custodial role”:

It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. As well, Parliament may seek to legislate appropriate practice and procedural techniques to ensure that respect for individual liberty is adequately balanced against the interest of officer safety. In the meantime, however, the unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low‑visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role. [Emphasis added; para. 18.]

Without resiling from the proposition in Dedman that “[t]he police have long functioned under a regime of wide duties but limited powers” (p. 12), the Court accepted in Mann its role in developing the common law as “incremental”. It noted that it shares with legislators the “responsibility for ensuring that the common law reflects current and emerging societal needs and values”; Mann, at para. 17; R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, at p. 670. Indeed, the Court’s decision in Mann to lower the bar from reasonable and probable cause to reasonable suspicion in the context of a warrantless search is precisely the argument that is being continued in the present appeal, as it was in Clayton.

D. Long Tradition of the Use of “Sniffer Dogs”

[63] My colleague LeBel J. writes:

[In this appeal,] the record remains singularly bereft of useful information about sniffer dogs. The available information is in essence limited to the facts that they are used for investigative purposes in a variety of circumstances and that police officers believe in their overall reliability and to the praise of a particular dog deployed at the Calgary bus station. [para. 15]

In my view, the reasonableness of a sniffer-dog search will depend in part on the specific track record of the dog in question. The track record of the dog Chevy used in this case was 90 to 92 percent accurate. To the extent that LeBel J. protests against overgeneralizing about the track record of sniffer dogs in general, I believe his argument is with the reasons of our colleagues Bastarache and Deschamps JJ. respectively.

[64] Bastarache J. writes that

Chevy is not alone with this high degree of accuracy — the trial judge found that a sniffer dog’s signal that drugs have been detected is reliable over 92 percent of the time. [para. 220]

Deschamps J. writes that:

The primary reason that sniffer dogs appear to be so attractive as a law enforcement tool is their keen sense of smell and high degree of accuracy. According to Romaine J., the evidence disclosed “that a dog sniff is reliable over 92% of the time in supporting an inference of the presence of drugs” (para. 73). With such a high success rate, a sniffer dog may properly be considered comparable to a very reliable informer. [para. 132]

[65] At the trial in this case, the only evidence concerning the reliability of Chevy is to be found in the testimony of Sergeant Bouey (R.R., at pp. 118 and 135), who mentioned that Chevy’s accuracy was evaluated in a previous case as lying between 90 and 92 percent. In finding that the evidence disclosed that “a dog sniff is reliable over 92% of the time in supporting an inference of the presence of drugs” (para. 73), Romaine J. either misspoke or incorrectly extended a statistic about a particular dog to the performance of all sniffer dogs, a conclusion for which there was no evidentiary basis. Chevy was not an average dog. In fact, her nose was described by another trial judge as “notoriously accurate at detecting illegal drugs” (R. v. Mercer (2004), 45 Alta. L.R. (4th) 144, 2004 ABPC 94, at para. 11). It is statistically incorrect to extrapolate the reliability of all sniffer dogs from the track record of one single dog.

[66] The fact remains, however, that sniffer dogs have been used successfully in Canada for decades for investigative purposes. Although this case falls to be determined on the evidence of reliability specific to Chevy, the following historical background may be of interest:

In Canada, the Royal Canadian Mounted Police (RCMP) used privately owned dogs to assist in their investigations starting in 1908. The RCMP’s first official dog section was formed in 1935, but it was not until the late 1950s and 1960s that dedicated units were established by provincial and municipal forces in significant numbers. Since then, the use of police dogs has become so common that they are a routine part of most major police forces.

(T. Shaw, “ The Law on the Use of Police Dogs in Canada” (2004), 48 Crim. L.Q. 337, at p. 337)

[67] While in Quebec there is no grant of a statutory power as such for police use of sniffer dogs, the Attorney General of Quebec notes in his factum:

[translation] The Police Act now requires that each city with more than 200,000 inhabitants maintain a dog team for drug-related purposes and for guarding and tracking. [para. 15]

E. Rejection of the “Generalized Suspicion” Standard

[68] My colleague Bastarache J. writes, at para. 251:

[A] public bus terminal is precisely the type of environment where a sniffer‑dog search subsequent to generalized suspicion is appropriate. As I have mentioned, I find public depots to be analogous to airports, as in both cases the travelling public has a reduced expectation of privacy and an understanding that the state has an interest in preventing the public transportation system from being used to transport illicit substances. [Emphasis added.]

[69] In her reasons in A.M., Deschamps J. makes the following observation:

The controlled environment of a school’s property is also analogous to the customs context. In Simmons, Dickson C.J. held at p. 528 that the degree of personal privacy reasonably expected at customs is lower than in most other situations, both because the state has an important interest in enforcing customs laws in the interest of public safety and because individuals have a significantly reduced expectation of privacy. [para. 135]

[70] I do not accept these analogies as correct. In Simmons, this Court carved out an exception to the general principles of Hunter v. Southam because of the highly specific customs context. The exception is based on the view that the state has a compelling interest in the preservation of national sovereignty and the protection of its borders, an interest which underlies both the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), and the Immigration Act, R.S.C. 1985, c. I-2.

[71] In Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, the Court stated the following:

. . . at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada. [Emphasis added; p. 1072.]

Border considerations do not apply at the Calgary bus station or at the local public school in A.M. Nobody should expect to be randomly cross-examined by the police when boarding the Vancouver to Calgary bus. This is unacceptable in a free society. Nor should students be called on to justify themselves as if crossing a border just because a school is, for some purposes, a regulated environment.

[72] In Monney, the Court insisted that “border crossings represent a unique factual circumstance for the purposes of a s. 8 analysis” (para. 42). Neither Simmons nor Monney provide authority for applying less stringent conditions on physical searches conducted in a domestic context, and the reasoning developed in these cases cannot be transposed to the school setting or bus depots.

[73] None of this, in my view, provides any legal basis for a “generalized suspicion” test. This is not to say that sniffer dogs can never be deployed where for example the police have evidence that a crime has actually been committed and the police have reasonable suspicion in relation to one or more members of a group of people closely linked in proximity to the crime (as in Clayton and Mann) but cannot identify the guilty member of the group. But here the police had no evidence that any crime had been committed at all. Nor was any evidence submitted in this case to establish that bus depots in general or Calgary in particular are rampant with drug dealers. The police knew that buses going from Vancouver to Calgary were sometimes used by drug couriers, and while this is a relevant factor to consider, it is not sufficient by itself to justify submitting every passenger on every bus to a random sniff search based on a new doctrine of “generalized suspicion”.

[74] If, in future, Parliament should conclude that the problem of illegal drugs in this country is such as to require in the larger public interest searches based on “generalized suspicion” by police dogs, it will be open to the government to attempt to justify under s. 1 of the Charter such searches as a “reasonable limit” on the constitutional rights of travellers to come and go as they please. That, of course, would be a different case and the validity of such a law, if challenged, would have to be examined. Such a change is not something that should be contemplated by the Court. It would not be incremental. It would be massive.

F. What Constitutes Reasonable Suspicion?

[75] The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123:

[T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment.

What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [pp. 125-26]

Writing about “reasonable suspicion” in the context of the entrapment defence, Lamer J. in R. v. Mack, 1988 CanLII 24 (SCC), [1988] 2 S.C.R. 903, thought it unwise to elaborate “in the abstract” (p. 965). See also R. v. Cahill (1992), 1992 CanLII 2129 (BC CA), 13 C.R. (4th) 327 (B.C.C.A.), at p. 339. However, in Alabama v. White, 496 U.S. 325 (1990), the U.S. Supreme Court contrasted “reasonable suspicion” with reasonable grounds of belief (or, what the U.S. lawyers call “probable cause”):

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. [p. 330]

[76] The U.S. Fourth Amendment cases were reviewed by the Ontario Court of Appeal in connection with investigative stops based on reasonable suspicion in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, where Doherty J.A. concluded, at p. 202:

These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard . . . serves to avoid indiscriminate and discriminatory exercises of the police power. [Emphasis added.]

The Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as “articulable cause”. The Simpson description of “articulable cause” was treated as equivalent to “reasonable suspicion” in the context of s. 99(1) (f) of the Customs Act in R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, per Gonthier J., at para. 24, and Major J., at para. 52, and I conclude that it applies to “reasonable suspicion” in the present context as well. See also R. v. Ferris (1998), 1998 CanLII 5926 (BC CA), 126 C.C.C. (3d) 298 (B.C.C.A.), at para. 37.

[77] It is important to emphasize the requirement for objective “articulable” grounds, as did the B.C. Court of Appeal in R. v. Lal (1998), 1998 CanLII 4393 (BC CA), 113 B.C.A.C. 47, at para. 23:

The fundamental point is that the trial judge must be in a position to make an independent assessment of the facts upon which the suspicion is based.

[78] The importance of objective grounds in the present context, of course, is that where police initiate warrantless “sniff” searches there is no before-the-fact judicial authorization. The after-the-fact review can only truly be an “independent assessment” if there are objective grounds put forward to support the personal opinion of the police officer. As Doherty J.A. commented in Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.):

The protection against police excess rests not only in the standard itself, but in its retrospective application. [para. 65]

[79] The objective of the Jetway program and similar police operations in the U.S. is therefore to identify characteristics “generally associated with narcotics traffickers” (W. R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), vol. 4, at p. 503) without sweeping up “a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure” (Reid v. Georgia, 448 U.S. 438 (1980), at p. 441). In these cases, the Charter protection is of immediate concern not only to accused drug dealers but to the general travelling public who have every right to go about their law-abiding business without being the subject of random police searches, by dog or otherwise.

G. Applying the Reasonable Suspicion Standard in This Case

[80] For purposes of analysis, it is useful to divide the encounter between the police and the appellant into stages:

(1) From the Time the Appellant Exited the Bus Until Sergeant MacPhee Identified Himself as a Policeman

[81] There was some suggestion by Constable Ritchie that Chevy was in a position to sniff all passengers getting off the overnight bus from Vancouver and “alerted” to the appellant as he alighted, i.e. before any of the observations relied on by Sergeant MacPhee. Constable Ritchie testified as follows:

A . . . at the time that I observed Mr. Kang-Brown, I would have been to the driver’s side of -- of the bus watching the passengers go out

Q Can I just back you up a second before we get too much further. You started to mention something about going through the lineup, and I think I interrupted you, that the dog did something in the lineup with respect to someone. And I’m sorry, I think I interrupted you there.

A Yes, the dog -- actually my observation was that Chevy showed an interest in Mr. Kang-Brown and started to go towards Mr. Kang-Brown. And due to the -- the activity at the time and the people and the movement and stuff, Corporal Bouey redirected Chevy.

Q So you’re confident that you advised Sergeant MacPhee about what happened with the dog and Mr. Kang Brown?

A Yes. [Trial tr., at pp. 133, 134 and 193]

Sergeant MacPhee testified that he did not recall such a conversation and the trial judge made no finding one way or the other. If in fact the police had conducted a sniff search of everyone as they got off the bus, it would clearly have constituted a random search and would therefore have been unconstitutional. The appellant made no particular issue of this point and I therefore put it aside.

[82] Sergeant MacPhee was in plain clothes sitting on a “hitching” rail near the arriving bus. There was nothing in his appearance to identify him as a policeman. Sergeant MacPhee testified that the appellant looked at him on three occasions over a period of a few minutes, initially an —elongated stare— of a few seconds as the appellant got off the bus, subsequently a —rubberneck— look as the appellant entered the bus station washroom, and thirdly —eye contact— as the appellant came back into view and put on his winter coat. These “indicia” are part of the teaching of the Jetway program. On all three occasions, Sergeant MacPhee, to all outward appearances just a casually dressed individual, was also looking at the appellant. The appellant was given no outward sign that he was in eyeball to eyeball contact with a policeman. Innocent members of the public might find it odd that a complete stranger was sitting on a railing staring at them, and react in different ways.

[83] Exchanging looks in such circumstances may not be of much significance to the RCMP as is shown by another Alberta case, R. v. Dinh (2001), 284 A.R. 304, 2001 ABPC 48. In that case, Sergeant (then Constable) Bouey and Sergeant (then Corporal) MacPhee were again teamed up at a bus station. Constable Bouey testified in that case that she found it suspicious that the accused Lam made eye contact with her when she entered the bus; however, she later testified that she would also have found it suspicious if he had not made eye contact:

Corporal MacPhee testified that he —felt— Dinh and Lam appeared nervous. He also testified that because the other passengers appeared to have just awakened, and were therefore also delayed in departing from the bus, they did not arouse his suspicion as possible drug couriers.

Upon entering the bus, Constable Bouey had [the sniffer dog] Boh search empty seats near the front of the bus. Dinh and Lam and the other couple were at the back of the bus. Bouey stated that Lam made eye contact with her and although this enhanced her suspicions she acknowledged on cross-examination that she would also have become suspicious if he had not done so. [Emphasis added; paras. 7 and 9.]

If “eye contact” or “no eye contact” are both of concern to the RCMP, this seems an ambiguous basis for particularized suspicion. Everyone getting off the bus will either be making eye contact or not making eye contact. In Dinh, the Alberta Court of Appeal excluded the evidence.

[84] Other than —elongated stares— and —rubbernecking—, Sergeant MacPhee testified that the overnight bus from Vancouver was recognized as a courier run (although he conceded that at this point he had no idea where the appellant boarded the bus between Vancouver and Calgary). The origin and destination may well be of significance but, taken alone, of course, does not put everyone on the bus under suspicion. Although the appellant was described as an “East Indian male”, Sergeant MacPhee testified that no racial profiling was involved (R.R., at pp. 52-53). He felt that the appellant had behaved oddly in relation to luggage, firstly by circling the bus to the luggage compartment when he had nothing to retrieve, and secondly by keeping his untagged carry-on bag at shoulder height even though it had no shoulder straps. At that point, Sergeant MacPhee introduced himself to the appellant as a police officer. The most that could be said at that point in terms of objective indicia is that the appellant had been identified as a person of interest to Sergeant MacPhee.

(2) The Period After Identification of Sergeant MacPhee as a Police Officer but Before the Sniffer-Dog Search

[85] As stated earlier, Sergeant MacPhee said to the appellant —Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they are travelling.— In cross-examination, Sergeant MacPhee insisted that his statement, “You’re not in any sort of trouble” was true (A.R., at p. 79). While the statement “you’re free to go at any time” might seem a bit disingenuous, the trial judge found that even if —few people exercise their right of choice by walking away, some do— (para. 43). Sergeant MacPhee pointed out:

. . . -- there is some people that we may just have a few words with, and -- and that’s the end of it. And then we carry about our business. We thank them for their time and they carry about their business. [A.R., p. 80]

[86] Sergeant MacPhee acknowledged that his objective from the outset was to obtain the appellant’s consent to search the bag. In legal terms, what was in progress was a Mann-type investigative stop by police in the absence of any knowledge on their part that a crime had been, was being or was about to be committed, apart from the general reputation of the overnight Vancouver-Calgary bus:

Q . . . there was no tip advising you of Mr. Kang-Brown’s presence on that bus?

A No, sir.

Q Okay, and there was no crime in progress that you were investigating?

A No, there was not. [A.R., at pp. 81-82]

The appellant was not detained, as Sergeant MacPhee assured him. He was being engaged in conversation.

[87] In the U.S. cases, production of false identification or travelling under an assumed name is a marker of reasonable suspicion (United States v. Sokolow, 490 U.S. 1 (1989)), as is flight from the police or “furtive actions” (Sibron v. New York, 392 U.S. 40 (1968)). Here there was none of that. The appellant seemingly cooperated with the police officer (even to the point of starting to unzip his bag until Sergeant MacPhee moved to take control of it). The appellant produced a valid government-issued identification card. There was no attempt to conceal his true identity, a fact which distinguishes this case from Florida v. Royer, 460 U.S. 491 (1983).

[88] As its name suggests, the Jetway program originated at U.S. airports. Sergeant MacPhee received his “hands-on” training at Los Angeles International Airport (R.R., at p. 4). Some of the airport “indicia” may have doubtful application at bus stations. For example, Sergeant MacPhee considered significant the appellant’s acknowledgement that he had bought his bus ticket at the “last minute” (R.R., at p. 53). This is a factor developed in the original Jetway program at airports where ordinary travellers usually book air transportation in advance and do not pay for an expensive ticket in cash (see, e.g., Monney). I think we can take judicial notice of the fact that people travelling by bus frequently buy their tickets not long before boarding. There is no evidence that cash payments are unusual.

[89] Sergeant MacPhee asked if the appellant would have “any concerns at all to show [him] what [he was] travelling with— in the bag (R.R., at p. 24). At that point, as Sergeant MacPhee testified, he had no reasonable grounds to arrest the appellant or to obtain a search warrant to search the bag or the person. The RCMP practice is to pursue the interview to try to obtain consent. If consent is not forthcoming and suspicion rises to the requisite level, the dog is called in. Otherwise the “suspect” departs.

[90] The appellant moved as if to comply with this suggestion by placing his bag on the floor and starting to unzip it. Sergeant MacPhee then sought to take control of the bag and search it himself for —safety— reasons. Even if a police officer were truly proceeding on the basis of officer safety in a Mann-type investigative stop, it was held in Mann itself that illegal drugs found in a “safety” search were outside the scope of the permitted search. Here it seems evident that Sergeant MacPhee’s real objective was to rummage in the bag for illegal drugs, although officer safety is clearly an important consideration.

[91] As the appellant pulled back his bag, he appeared to Sergeant MacPhee to “panic” and become “very agitated, very antsy” (trial tr., at p. 36). The bag had been on the ground about a minute (R.R., at p. 90). Sergeant MacPhee explained “antsy” as follows:

Antsy was part and parcel with looking around the area, seemed to be fidgeting, seemed to be basically just very -- very nonattentive, very irritated almost, if you want to put it that way about my presence. [A.R., at p. 86]

[92] Sergeant MacPhee, in my view, did not have reasonable suspicion at the time he tried to take control of the appellant’s bag (as indeed Sergeant MacPhee tacitly accepted because he purported to proceed on consent). In fact, Sergeant MacPhee himself testified that the appellant’s “demeanour” changed after the RCMP officer reached for the bag:

. . . it was just a total change in demeanor from as soon as I even made the gesture of moving towards that bag it was night and day. It became very almost hostile. Like it was just a total change of demeanor. The super cooperative type of nature he had been, to now all of sudden being very upset. [Emphasis added; R.R., at p. 27.]

The appellant’s opposition to what Sergeant MacPhee readily acknowledged would have been a non-consensual illegal search is not something that according to the U.S. case law should be used against the appellant: United States v. Eustaquio, 198 F.3d 1068 (8th Cir. 1999). I agree. Individuals should not be penalized for asserting their constitutional rights. The after-the-fact discovery of illegal drugs does not render constitutional that which at the time was unconstitutional.

[93] The present case may usefully be compared with some of the other decided cases where “reasonable suspicion” has been found to be present. In R. v. McCarthy (2005), 239 N.S.R. (2d) 23, 2005 NSPC 49, the police and their sniffer dog stood near the entrance to the bus terminal. When the accused spotted the police and the dog, he stopped abruptly, looked behind, looked up and began muttering to himself. He continued and passed five to seven feet in front of the officers, who heard him mutter —fuck, fuck, fuck, fuck— to himself (para. 8).

[94] In R. v. Schrenk (2007), 215 Man. R. (2d) 212, 2007 MBQB 93, the police, on a traffic stop, were told by the accused that he had flown to Calgary from Vancouver and rented a car to drive to Toronto for a little holiday to visit relatives. The police officer testified that he thought it suspicious to fly a short distance to Calgary, and then rent a car to drive to Toronto, so he asked the accused if it would not have been quicker to fly. The accused said he could not afford to fly all the way, and relatives were giving him money to fly back. This was suspicious because the cost of the rental vehicle was around $1,100, and the cost of a flight from Vancouver to Toronto was considerably less.

[95] In the present case, immediately prior to the dog sniff, Sergeant MacPhee himself felt he had no grounds to further engage the appellant:

A No, I thought things were getting very agitated and I just needed basically that dog in forthwith to assist with the search.

Q Were you under the opinion that Mr. Kang-Brown is about to leave?

A Well, he would have, yes. Probably.

Q Okay, and you would have let him go?

A Yes. [A.R., at p. 95]

[96] The Crown is thus left with the argument that the search was justified because the appellant seemed nervous or “antsy” when confronted by the RCMP officer. I do not think that on its own this is a sufficient marker of unusual conduct to afford grounds of reasonable suspicion, nor taken with the other factors (or “indicia”) mentioned by Sergeant MacPhee does it, in my opinion, reach that level.

[97] Accordingly, I conclude that Sergeant MacPhee did not have grounds for reasonable suspicion at the time the dog was called. To repeat, where the citizen’s only protection against unlawful searches by police dogs is after-the-fact scrutiny of the stated grounds of “reasonable suspicion”, it is important that the after-the-fact judicial scrutiny be conducted with serious diligence and rigour.

(3) The Sniff Search

[98] The alert by the sniffer dog resulted in the immediate arrest of the appellant. The sniff search was conducted without reasonable suspicion. There were no valid grounds for the arrest.

(4) Search of the Appellant’s Bag

[99] Had I concluded that the dog-sniff search was based on reasonable suspicion, I would have agreed that Chevy’s positive alert would have given the police the grounds to proceed on the spot with a warrantless search of the appellant’s bag, as discussed in A.M., because of Chevy’s demonstrated accuracy 90 to 92 percent of the time. Sergeant MacPhee says he based his actions on

. . . a lot of factors pertaining to the history and the training and the background of the animal.

Q Of the animal?

A Yes. [A.R., at p. 83]

The RCMP accept that different dogs possess different abilities and track records and that “sniffer dogs” are not interchangeable. Proof must be made of the accuracy of a particular animal before police reliance is justified. This is another matter that should be established in the evidence (as it was here).

(5) Conclusion

[100] The accuracy of Chevy, while high, showed that in 100 searches she would register a false positive against 8 or 10 law-abiding citizens. This may seem like a modest figure unless you happen to be one of them. Neither the sniff search nor the arrest can be upheld just because we now know with the benefit of hindsight that contraband was eventually discovered by Constable Ritchie after the arrest.

[101] Sergeant Bouey acknowledged that the dog alerts to the odour of narcotics, not to their actual presence. Ordinary currency and coins sometimes carry a residual odour of cocaine or other drugs. Accordingly, I believe the arrest of the appellant in this case was in any event premature. The police should first have confirmed the presence of narcotics by a hand search of the gym bag. In my view, if reasonable cause had existed, and given the positive alert and Chevy’s history of accuracy, the RCMP would have been entitled to perform such a verification search on-the-spot and without prior judicial authorization, as discussed in A.M.

(6) Exclusion of the Evidence Under Section 24(2)

[102] The trial judge held that even if there had been a Charter violation she would have exercised her discretion to admit the evidence. Her decision in this respect should not be interfered with on appeal unless it was based on a wrong principle or had been exercised unreasonably: Collins, at p. 276; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 68; R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 48.

[103] In my view, as in the opinion of Paperny J.A., dissenting, the trial judge erred in principle by incorporating and relying on much of her privacy analysis (with which I am in disagreement) in her s. 24(2) analysis, thereby engaging in a species of double-counting, and undermining the deference that would otherwise be owed to her conclusion to admit the evidence. For example, at para. 87 of her reasons, the trial judge states:

Mr. Kang-Brown has not established that he had a high expectation of privacy in the circumstances. He did not testify to a subjective belief, and, while the Crown was not able to fix him with knowledge of the notice posted in Greyhound bus stations since 2001, it is disingenuous to suggest that a higher degree of privacy attaches to bus passengers travelling within Canada than to travellers on planes or trains. Terrorism activity is not limited to cross‑border travel, as the world has sadly learned, and there is no reasonable basis for making this distinction.

The trial judge having been reversed on that aspect of her privacy analysis (for the reasons set out in A.M.), the trial judge’s continuing denial of a serious privacy interest should not be resuscitated as an independent ground to help the Crown over its s. 24(2) hurdle.

[104] While I agree that the evidence obtained in the illegal search was non-conscriptive, and was found by the trial judge to have been obtained by the RCMP in good faith, I agree with Paperny J.A. that the evidence obtained in this case should be excluded. The administration of justice would be brought into disrepute if the police, possessing an exceptional power to conduct a search on the condition of the existence of reasonable suspicion, and having acted in this case without having met the condition precedent, were in any event to succeed in adducing the evidence. Drug trafficking is a serious matter, but so are the constitutional rights of the travelling public. In the sniffer-dog cases, the police are given considerable latitude to act in the absence of any requirement of prior judicial authorization. The only effective check on that authority is the after-the-fact independent assessment. I conclude that the police initiated a warrantless search on inadequate grounds. In my view, on the facts here, the evidence should be excluded.

[105] I would allow the appeal and set aside the conviction.

The reasons of Deschamps and Rothstein JJ. were delivered by

[106] Deschamps J. (dissenting) — For decades, trained dogs have aided the police in detecting explosives and narcotics as well as in finding fugitives and missing persons. Owing to their keen sense of smell and high degree of accuracy, they are well suited for these important tasks. However, the effectiveness of a law enforcement tool is only one of many factors to be considered in determining whether its use is constitutional. This is the first opportunity this Court has had to consider the constitutionality of the use of a sniffer dog by law enforcement authorities.

[107] The appellant, Gurmakh Kang-Brown, was charged with possession of cocaine for the purpose of trafficking, and possession of heroin. The trial judge found that the Canadian Charter of Rights and Freedoms had not been infringed, and convicted the appellant ((2005), 386 A.R. 48, 2005 ABQB 608). The majority of the Alberta Court of Appeal agreed, and affirmed the convictions ((2006), 60 Alta. L.R. (4th) 223, 2006 ABCA 199). In my view, the use of a sniffer dog to check the appellant’s bag in a public bus terminal on the basis of a reasonable suspicion that evidence of an offence would be discovered was proper and did not constitute an unreasonable search or seizure. Accordingly, I would dismiss the appeal and affirm the convictions.

[108] This case was heard together with R. v. A.M., [2008] 1 S.C.R. 569, 2008 SCC 19, in which the police used a sniffer dog to check the unattended backpack of a student in a high school with a zero-tolerance policy for drugs. There are several common issues in these two cases. Unlike in A.M., however, the facts of the instant case also raise the issues of a reasonable expectation of privacy engaging s. 8 of the Charter, and reasonable suspicion. It is thus better suited to legal analysis. In the interest of concision, therefore, the main legal propositions at issue in both cases are set out in these reasons.

1. Facts

[109] The Royal Canadian Mounted Police (“RCMP”) launched Operation Jetway to investigate and disrupt ongoing narcotics trafficking at bus terminals, train stations and airports in Canada. By observing members of the travelling public, officers attempt to identify and arrest drug couriers and people carrying weapons, proceeds of crime, or other contraband. In performing this task, they use dogs trained to detect the odours of controlled substances.

[110] The dog involved in this case, named “Chevy”, was a female Black Labrador that had at the time been in active service for 22 months. She was trained to indicate, by sitting down, that she had detected the odours of any of the following drugs: cannabis resin, methamphetamine, opium, heroin, psilocybin (“magic mushrooms”), cocaine and crack cocaine. Chevy appears to have been very successful as a sniffer dog, as she had a success rate in detecting drugs of 90 to 92 percent. By May 2003, she had discovered illicit drugs having a total street value of nearly $6 million (R.F., at p. 2).

[111] On January 25, 2002, the overnight bus from Vancouver to Calgary arrived at the Greyhound bus terminal at about 11:00 in the morning. Dressed in plain-clothes, Sergeant Iain MacPhee, a police officer with over 26 years of experience, was in charge of a three-member team from the Jetway Unit. He observed passengers disembarking from the bus, which was parked in an arrival lane of the Greyhound garage, from a railing about eight feet away. Passengers who had only hand luggage or were continuing on their trips walked to the exit doors and into the terminal lobby, while those who had stowed luggage and had reached their final destinations waited beside the bus to claim their bags.

[112] Sergeant MacPhee immediately became interested in the appellant as he got off the bus, because they made eye contact for several seconds in an “elongated stare” that Sergeant MacPhee had been trained to notice as suspicious behaviour. The appellant had a bag with two handles, but he carried it high on his shoulder. Unlike the other passengers, the appellant, although standing beside the bus, did not look at the bags being unloaded. He then went around the bus in a different direction from the other passengers to stand about 10 to 15 feet behind Sergeant MacPhee.

[113] Sergeant MacPhee signalled to the other two plain-clothes officers, Constable Gary Michael Ritchie and Sergeant Valerie L. Bouey, who were observing passengers from the front of the bus, that he was watching the appellant. As the mass of passengers entered the terminal lobby through a single door, Sergeant MacPhee periodically looked over his shoulder to observe the appellant.

[114] After momentarily losing sight of the appellant, Sergeant MacPhee, upon entering the lobby, spotted him walking towards the washroom. About 10 feet from the washroom door, the appellant stopped, turned around, and stared at Sergeant MacPhee, who was some 25 feet behind him. This “rubbernecking” was another suspicious sign Sergeant MacPhee had been trained to notice.

[115] The appellant entered the washroom and then returned to the terminal lobby. He adjusted his clothes and looked around the lobby. He again made eye contact with Sergeant MacPhee. After Sergeant MacPhee broke off eye contact with him, the appellant began to move towards the building exit. Sergeant MacPhee followed him, having decided to monitor him until he had exited the terminal.

[116] Just before reaching the exit, the appellant stopped and again turned to face Sergeant MacPhee, who went past him through the first set of exit doors, which opened automatically. As the appellant followed and entered the foyer, Sergeant MacPhee turned and, standing to one side, identified himself to the appellant, displaying his identification card and badge. Sergeant MacPhee stated: “Good morning, sir. I’m a police officer out here at the bus terminal. You’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they are travelling.” The appellant responded: “Okay.”

[117] The appellant and Sergeant MacPhee discussed where the appellant had travelled from, the length of his trip, and the weather. At some point during their conversation, the appellant put his bag down. He voluntarily produced his identification on request. Constable Ritchie joined Sergeant MacPhee and the appellant in the foyer at this point. Sergeant MacPhee asked the appellant how long he would be in Calgary. The appellant responded that he would be staying for the weekend and that his cousin had just become engaged. While the tone was cordial, Sergeant MacPhee later testified that he had noticed the appellant was becoming “increasingly antsy” and uncomfortable as the conversation continued.

[118] Sergeant MacPhee asked the appellant when he had bought his ticket and was told that it had been purchased at the last minute. Sergeant MacPhee then indicated that he worked primarily on narcotics investigations, and he told the appellant that drug couriers often come through the bus terminal with large quantities of drugs and get charges laid against them. Sergeant MacPhee asked the appellant if he was carrying any drugs and the appellant denied that he was. The appellant then picked up his bag and put it over his shoulder. Sergeant MacPhee asked if there were drugs in the bag and then asked the appellant if he would show him what was in it. The appellant put the bag down and began to open it as Sergeant MacPhee said “Thanks, sir. You’re certainly not obliged to, to show me but thanks” (A.R., at p. 90).

[119] Sergeant MacPhee knelt down as the appellant unzipped the bag and said “Just an officer safety thing here, do you mind?” as he gestured towards the bag (R.R., at pp. 24-25). Sergeant MacPhee testified that he was trying to take control of the situation to ensure that he would not face a firearm or other weapon taken out of the bag. Before Sergeant MacPhee could touch the bag, the appellant pulled it away, saying “What are you doing?” Sergeant MacPhee testified that the appellant was very agitated and panicked at this juncture.

[120] Sergeant MacPhee then signalled to the third plain-clothes officer, Sergeant Bouey, who was about 40 feet away in the terminal lobby with the dog, to come over. Sergeant MacPhee testified that the appellant was visibly upset, and shaking, as Sergeant Bouey and the dog arrived.

[121] Upon entering the foyer, the dog immediately sat down to indicate the presence of one of the narcotics she was trained to detect. Sergeant MacPhee confirmed the positive indication with the dog’s handler, Sergeant Bouey.

[122] Sergeant MacPhee then told the appellant that he was under arrest for possession of and/or trafficking in a controlled substance and advised him of his rights. After indicating that he understood his rights, the appellant said “Yeah, yeah, but there’s nothing there. I smoked a joint a while ago. That’s about it.” He then pulled a breath mint container out of his jeans pocket and took out what was later determined to be heroin, saying it was “something a guy gave me on the bus” (A.R., at p. 96.1). Meanwhile, Constable Ritchie had begun searching the appellant’s bag (which had no identification tags on it) immediately after the arrest and had found a box taped shut at the bottom of the bag under some clothing. There was a brown paper bag in the box, and in it were two plastic bags containing 17 ounces of cocaine. The appellant was charged with possession of cocaine for the purpose of trafficking, and possession of heroin.

[123] At trial, Romaine J. dismissed the appellant’s application under ss. 8, 9, 10 and 24(2) of the Charter to exclude evidence of the cocaine seized from his bag by the police. Considering the evidence as a whole in light of the totality of the circumstances, she found that the police had begun questioning the appellant at an appropriate stage of the investigation and that, if he was in fact detained, an investigative detention was justified by a reasonable suspicion. Romaine J. did not find that the use of the sniffer dog was a search incidental to an investigative detention. Rather, she held that the odours from the bag, which emanated freely in a public transportation facility, did not constitute information in which the appellant had a reasonable expectation of privacy and that s. 8 of the Charter was accordingly not engaged. It was therefore unnecessary for Romaine J. to consider excluding the evidence under s. 24(2). She nonetheless indicated that if she had found a Charter infringement, she would not have excluded the evidence.

[124] The majority of the Alberta Court of Appeal dismissed the appellant’s appeal, upholding the trial judge’s decision that there was no Charter infringement. Côté J.A., for the majority, noted that it had been conceded at trial and on appeal that if the drug evidence were to be admitted, a conviction would be proper.

[125] Paperny J.A. dissented on the basis of the trial judge’s analysis of ss. 8 and 24(2) of the Charter. She found that the appellant had had a reasonable expectation of privacy in respect of the odours emanating from his personal luggage. Paperny J.A. concluded that because the sniffer dog was used without a warrant and no exigent circumstances were established, the appellant’s s. 8 rights were infringed. She would have excluded the evidence under s. 24(2) and would thus have allowed the appeal and entered an acquittal.

2. Issues

[126] The issues in this appeal are whether the appellant’s right to be secure against unreasonable search or seizure pursuant to s. 8 of the Charter was infringed in the circumstances of this case and, if so, whether the evidence obtained should be excluded pursuant to s. 24(2) of the Charter.

[127] The Crown has not argued that there was statutory authority for the use of the sniffer dog in this case or, alternatively, that the dog was used in an incidental search (i.e., a search incidental to arrest or to an investigative detention). Therefore, we must consider whether the use of a sniffer dog by the police as an independent investigative tool in this case was authorized at common law pursuant to principles developed in accordance with the requirements of the Charter.

3. Analysis

[128] The Charter provision raised in this appeal reads as follows:

8. Everyone has the right to be secure against unreasonable search or seizure.

[129] The appellant claims that his right to be secure against unreasonable search or seizure was infringed by the police when they used a sniffer dog to search his bag in a bus terminal and the dog indicated the presence of narcotics. He seeks exclusion of the evidence of the drugs that were discovered.

[130] After briefly discussing the use of sniffer dogs by law enforcement authorities, I will review the analytical framework for s. 8 of the Charter and the limits on common law police powers. I will then apply these legal propositions to the facts of this case.

3.1 The Use of Sniffer Dogs

[131] It can be seen from the record in this case that sniffer dogs have been used in Canada for decades to fulfill numerous law enforcement functions. For example, the intervener Attorney General of Quebec submits that law enforcement authorities, including the Sûreté du Québec and municipal police forces, have used sniffer dogs to detect drugs and explosives, and to find missing persons, since the 1960s. Also, the Société de la faune et des parcs du Québec uses sniffer dogs to detect fish, meat and ammunition in order to intercept poachers.

[132] The primary reason that sniffer dogs appear to be so attractive as a law enforcement tool is their keen sense of smell and high degree of accuracy. According to Romaine J., the evidence disclosed “that a dog sniff is reliable over 92% of the time in supporting an inference of the presence of drugs” (para. 73). With such a high success rate, a sniffer dog may properly be considered comparable to a very reliable informer.

[133] Furthermore, the sniffer dogs have long been used as a law enforcement tool in other countries. See, for example, from Australia: Law Enforcement (Powers and Responsibilities) Act 2002 (N.S.W.), ss. 145 to 150 (drug detection dogs), and ss. 193 to 196 (firearms and explosives detection dogs); Police Powers and Responsibilities Act 2000 (Qld.), 2000, No. 6, ss. 34 to 39, as amended by Police Powers and Responsibilities (Drug Detection Dogs) Amendment Act 2005 (Qld.), 2005, No. 63; Australian Federal Police Act 1979 (Cth.), s. 12A; and Questions of Law Reserved (No. 3 of 1998) (1998), 71 S.A.S.R. 223 (S.C.). From the United States, see Illinois v. Caballes, 543 U.S. 405 (2005); for U.S. state court decisions, see para. 193 below. While these examples do not obviate the need to engage in a critical review of the constitutionality of the use of sniffer dogs under s. 8 of the Charter, they do suggest that the sniffer dog has served as a helpful tool for various purposes, such as ensuring public safety, being proactive in preventing and detecting crime, investigating specific crimes and dealing with exigent circumstances.

3.2 Analytical Framework for Section 8

[134] Since the first decision in which it interpreted s. 8 of the Charter, this Court has consistently held that s. 8 protects a reasonable expectation of privacy. In Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at pp. 159-60, Dickson J. (as he then was) stated:

The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement. [Emphasis in original.]

Thus, s. 8 requires balancing important societal interests against the individual claimant’s privacy interests.

[135] Cory J. further refined the analytical framework for s. 8 in R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128, at para. 33, making it clear that the evaluation of a s. 8 claim entails two distinct inquiries: “The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy.” The second inquiry is undertaken only if the first results in an affirmative answer.

[136] Regarding the first inquiry, this Court explained in R. v. Wise, 1992 CanLII 125 (SCC), [1992] 1 S.C.R. 527, at p. 533, that a police activity is a search only if it “invades a reasonable expectation of privacy”. The Court added in R. v. Evans, 1996 CanLII 248 (SCC), [1996] 1 S.C.R. 8, at para. 11, that “not every form of examination conducted by the government will constitute a ‘search’ for constitutional purposes”. In R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67, at para. 19, the Court explicitly rejected a category-based approach to determining whether specific investigative techniques engage s. 8 of the Charter. Thus, an examination conducted by the state will be a “search” within the meaning of s. 8 only if it constitutes an intrusion on an individual’s reasonable privacy interest.

[137] Therefore, the instant case does not require a category-based decision on the constitutionality of the use of sniffer dogs by the police that will apply in all circumstances. Rather, what must be determined is, first, whether the appellant had a reasonable expectation of privacy in the circumstances of this case and, if so, whether the use of a sniffer dog in these circumstances intruded unreasonably on his reasonable expectation of privacy and thereby infringed s. 8 of the Charter. This is consistent with the contextual approach to s. 8 that prevails in this Court’s jurisprudence.

3.2.1 Reasonableness of the Expectation of Privacy

[138] In analysing a s. 8 claim, the first step is to identify the alleged privacy interest. This interest must be “framed in broad and neutral terms”: R. v. Wong, 1990 CanLII 56 (SCC), [1990] 3 S.C.R. 36, at p. 50. When a court considers whether an accused had a reasonable expectation of privacy, the issue is not whether he or she was involved in criminal activity. As this Court stated in Hunter v. Southam, at p. 160, an ex post facto analysis to determine this would be at odds with the purpose of s. 8, which is to prevent unreasonable searches before they occur. Thus, to assess whether the expectation of privacy was reasonable, the court must first frame the alleged privacy interest in broad and neutral terms.

[139] It is clear from this Court’s s. 8 jurisprudence that the constitutional protection against unreasonable search or seizure is not automatic and is not engaged in all situations. In Edwards, at para. 56, Cory J. stated that “[t]he reasonable expectation of privacy concept has worked well in Canada. It has proved to be reasonable, flexible, and viable. I can see no reason for abandoning it in favour of the discredited rule of automatic standing.” This Court has indicated that s. 8 will not be engaged unless the claimant has a reasonable expectation of privacy: see, e.g., Tessling, Edwards and R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 516-17 (regarding routine questioning, a baggage search and a pat of outer clothing by customs officers). In recent cases, the Court has explicitly followed a contextual approach, considering several factors in answering the threshold question whether the accused had a reasonable expectation of privacy in respect of the subject matter of the search or seizure.

[140] To determine whether the accused had a reasonable expectation of privacy, the totality of the circumstances must be considered. The accused must establish both an objective and a subjective expectation of privacy. In Edwards, at para. 45, and Tessling, at para. 32, this Court developed a non-exhaustive list of factors to assist in making this determination. The factors for determining whether the accused had a reasonable expectation of privacy may be summarized as including:

(i) the presence of the accused at the time of the alleged search;

(ii) the subject matter of the alleged search:

(a) ownership and historical use of the subject matter;

(b) whether the subject matter was in public view;

(c) whether the subject matter had been abandoned;

(d) where the subject matter is information, whether the information was already in the hands of third parties; if so, was there a duty of confidentiality in relation to it?

(iii) the place where the alleged search occurred:

(a) ownership, possession, control or use of the place where the alleged search took place;

(b) the ability to regulate access, including the right to admit or exclude others from the place;

(c) notification of the possibility of searches being conducted in the place;

(iv) the investigative technique used in the alleged search:

(a) whether the police technique was intrusive in relation to the alleged privacy interest;

(b) whether the information obtained in the alleged search exposed any intimate details of the accused’s lifestyle, or information of a biographical nature.

[141] As in any contextual analysis, not all the factors will be relevant in a given case. The purpose of setting out a non-exhaustive list of factors stated in general terms is not to have each one considered slavishly regardless of materiality to the specific case, but to provide a helpful guide to ensure that relevant factors are not disregarded.

[142] In my view, because the requirement of a reasonable expectation of privacy is a guiding principle under s. 8, the consideration of relevant contextual factors is an integral part of the s. 8 analysis.

[143] Thus, where the applicability of s. 8 is at issue, failure to consider whether the claimant had a reasonable expectation of privacy that engages s. 8 may constitute an error of law. If the trial judge carries out the reasonable expectation of privacy analysis, however, deference will be owed to his or her finding.

3.2.2 Reasonableness of the Search

[144] Once it is determined that the accused had a reasonable expectation of privacy and that s. 8 is accordingly engaged, the next step is to determine whether the search or seizure was reasonable. In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at p. 278, this Court held that “[a] search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.” I will briefly elaborate on each of these requirements in the context of this appeal.

[145] First, a search may be authorized either by legislation or at common law. No statute has been relied upon in this case as authorizing the use of the sniffer dog. To determine whether the use of the sniffer dog was authorized by law, I will therefore consider the common law. As I will discuss in detail below, this Court’s approach to recognizing common law powers of search is based on the test set out in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.).

[146] Second, the reasonableness of the law authorizing a search must be evaluated. For legislation that authorizes a search to be reasonable, the traditional standard is reasonable grounds to believe that evidence of an offence will be discovered: Hunter v. Southam, at p. 161. This standard was established in a case involving a statutory search where the accused had a well-defined reasonable expectation of privacy, there were no exigent circumstances and the sweeping search technique in issue was clearly intrusive in relation to the claimant’s privacy interest. Where the authority for a search is a common law power, by contrast, the courts can define the scope of this power in a manner consistent with the Charter: R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, at para. 21, per Abella J. (for the majority).

[147] Third, the manner in which the search was carried out must also be reasonable. It is at this stage of the analysis that the conduct of the police is evaluated. Even if a search is authorized by a law that is reasonable, it will be vitiated and the authority for it will be lost if it is conducted in an unreasonable manner.

[148] As was mentioned above, the Crown invokes no statutory authority for the use of the sniffer dog in this case. It is therefore necessary to determine whether the use of the dog was authorized at common law pursuant to the Waterfield test and, if so, to define the scope of the power in a manner consistent with the Charter.

3.2.2.1 Development and Application of the Waterfield Test

[149] This Court’s approach to the recognition of police powers at common law was set out in Dedman v. The Queen, 1985 CanLII 41 (SCC), [1985] 2 S.C.R. 2, which concerned the power of the police to conduct random vehicle stops for impaired driving as part of the R.I.D.E. program. Le Dain J., writing for the majority, held that the police act lawfully only if they are exercising powers that are “conferred by statute or derived as a matter of common law from their duties”: p. 28.

[150] The test relied on by Le Dain J. in Dedman to determine whether a common law police power existed had been established in Waterfield, at pp. 661-62. This test has been applied in a variety of cases since Dedman. In Clayton (at para. 22), Abella J. approved of the Ontario Court of Appeal’s articulation of the Waterfield test. As Doherty J.A. had explained, the test involves two specific inquiries:

First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty . . . .

(R. v. Clayton (2005), 2005 CanLII 16569 (ON CA), 196 O.A.C. 16, at para. 37)

[151] At the first stage of the Waterfield test, the law enforcement duties traditionally recognized at common law are “the preservation of the peace, the prevention of crime, and the protection of life and property”: Dedman, at p. 32.

[152] At the second stage of the test, the court must determine whether the conduct of the police was justified by applying the standard of what is reasonably necessary in light of the totality of the circumstances. As Le Dain J. explained in Dedman, at p. 35: “[T]he correct test [is found] in the use of the words ‘reasonably necessary’. . . . The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable”. As this Court added in R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52, at para. 39, the circumstances to be considered at the second stage of the Waterfield test include “the duty being performed, the extent to which some interference with individual liberty is necessary in the performance of that duty, the importance of the performance of the duty to the public good, the nature of the liberty being interfered with, and the nature and extent of the interference”.

[153] It will be instructive to briefly review the application of the Waterfield test in several key cases. In Dedman, Le Dain J. concluded with respect to the first stage of the test that randomly stopping vehicles to deter and detect impaired driving fell within the duties of the police “to prevent crime and to protect life and property by the control of traffic”: p. 35. On the second stage of the test, Le Dain J. regarded impaired driving as a serious problem. He stated that while driving on a highway free from unreasonable interference is an important right, driving is a licensed and regulated activity, and the vehicle stops were of relatively short duration and only slightly inconvenient. He also considered it to be a significant factor that the campaign to detect impaired drivers was well publicized and served a deterrent purpose. Le Dain J. accordingly held that the random vehicle stop, as part of a program to detect and deter impaired driving, was based on common law authority.

[154] In R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311, the Court considered whether the police had the power at common law to enter a dwelling while investigating a 911 call. Lamer C.J. held that, because of the police duty to protect life, the requirement of the first stage of the Waterfield test is satisfied where a 911 caller is or may be in distress, or if the call is disconnected before the nature of the emergency is established. Regarding the second stage of the test, although residents have a privacy interest in the sanctity of their homes, the public interest in an effective emergency response system is significant enough to justify a limited intervention by the police in the house to protect life and safety. Accordingly, the Court found that the forced entry into the home of the accused was justifiable in light of the totality of the circumstances, but only to determine whether there was an emergency.

[155] In Mann, the Court considered whether the police have a common law power to detain an individual for investigative purposes and to search him or her incidentally to that investigative detention. In that case, the accused, who matched the description of a suspect in a nearby break and enter, was detained by the police. He was subjected to a pat-down search, during which the officer searching him felt a soft object in his pocket. The officer reached into the pocket and removed a small bag of marijuana, and the accused was then arrested for possession for the purpose of trafficking. The accused contended that his Charter rights under ss. 8, 9, 10(a) and 10(b) had been infringed, and sought exclusion of the evidence of the marijuana under s. 24(2). Iacobucci J., writing for the majority, applied the Waterfield test to determine whether the conduct of the police fell within the scope of their common law powers. Concerning the detention of the accused, Iacobucci J. found that the requirement of the first stage of the test was satisfied, because the police were acting in pursuit of their duty to protect life and property. As for the second stage, he held that investigative detention is permissible if there are reasonable grounds to suspect that the individual is connected with a particular crime and that such a detention is necessary (para. 45).

[156] Clayton involved a 911 call indicating that several persons were openly displaying handguns in a parking lot. The police responded within minutes and stopped the first car leaving the rear parking lot. Because the co-accused driver and passenger were behaving suspiciously, the officers searched them. Loaded prohibited firearms were found. The accused claimed that their rights under ss. 8 and 9 of the Charter had been infringed. Abella J., writing for the majority, held that the requirement of the first stage of the Waterfield test was satisfied because the police were engaged in the investigation and prevention of crime. On the second stage of the test, Abella J. found that the police search of the two accused was justified because of the seriousness of the offence, the genuine risk of serious bodily harm to the public, and the fact that, based on the behaviour of the accused, the officers had a reasonable suspicion that they might be in possession of firearms. The conduct of the police was found to be temporally, geographically and logistically responsive to the totality of the circumstances of the case.

3.2.2.2 Standards for Justifying a Search Pursuant to a Common Law Power

[157] Having reviewed the framework for determining whether a common law police power exists, I will now consider the standards for justifying a search conducted pursuant to such a power. As was mentioned above, the case at bar does not concern the use of a sniffer dog in an incidental search. Rather, the issue is whether the use of a sniffer dog by the police as an independent investigative tool in this case was authorized at common law pursuant to principles developed in accordance with the requirements of the Charter.

[158] A preliminary question arises: Should the Court develop these standards here? With respect, simply referring this matter to Parliament is not in my view an appropriate solution. The questions raised by this appeal concern the recognition of a common law power in conformity with the Constitution, a task — indeed a responsibility — historically and presently within the purview of this Court’s institutional competence. As Iacobucci J. stated in Mann, at para. 18:

Where, as in this case, the relevant common law rule has evolved gradually through jurisprudential treatment, the judiciary is the proper forum for the recognition and ordering of further legal developments, absent legislative intervention. . . . It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. As well, Parliament may seek to legislate appropriate practice and procedural techniques . . . .

[159] For the purpose of identifying the circumstances in which the police may use sniffer dogs while discharging a lawful police duty, the pivotal question is what grounds, if any, the police must have for their use of the dogs to fall within the scope of their common law powers and comply with s. 8 of the Charter. Three standards have been proposed for determining when a sniffer dog may be used. Since there is no general police power to routinely use sniffer dogs for any purpose, or at any time or place, it is necessary to determine which of the three standards is applicable. For the purpose of the second stage of the Waterfield test, the determination of the applicable standard must be based on what is reasonably necessary in light of the totality of the circumstances. Although the police have many investigative tools at their disposal, not all of them will be appropriate in every situation. Some tools are so intrusive in relation to the reasonable privacy interests of an accused that to use them will not be proper without safeguards.

[160] What are the proposed standards? The lowest one would require no grounds for the use of a sniffer dog, whereas the highest one would — absent exigent circumstances — require reasonable grounds to believe that evidence of an offence will be discovered. In between these two is the intermediate standard of reasonable suspicion that evidence of an offence will be discovered. I will discuss each of these standards in turn.

[161] In certain circumstances, the use of a given investigative technique has been approved, without a requirement of specific grounds, on the basis that the accused did not have a reasonable expectation of privacy. For example, in R. v. Boersma, 1994 CanLII 99 (SCC), [1994] 2 S.C.R. 488, the police did not infringe s. 8 by walking along a dirt road and observing the marijuana crop of the accused in plain sight on Crown land. In R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 62, Cory J., writing for the majority, stated: “where an accused who is not in custody discards a kleenex or cigarette butt, the police may ordinarily collect and test these items without any concern about consent”. Regarding sniffer dogs, the United States Supreme Court and the Supreme Court of South Australia have taken the position that no grounds are required before the police may use them: see Illinois v. Caballes; United States v. Place, 462 U.S. 696 (1983); Questions of Law Reserved (No. 3 of 1998). In Canada, however, where an accused has a reasonable expectation of privacy that engages s. 8, it may be problematic to allow the police to use a given investigative technique without requiring grounds.

[162] In the case at bar, Paperny J.A., in dissent, adopted the highest standard, that the police must have reasonable grounds to believe that evidence of an offence will be discovered before they may use a sniffer dog: para. 139. As was mentioned above, this standard was established in Hunter v. Southam, at p. 160, a case in which the accused had a well-defined reasonable expectation of privacy, there were no exigent circumstances, it was not impracticable to obtain prior judicial authorization and the search technique was clearly intrusive.

[163] The intermediate standard of reasonable suspicion that evidence of an offence will be discovered has been advanced in the instant case by the interveners the Attorney General of Quebec and the Criminal Lawyers’ Association (Ontario).

[164] Some clarification is required regarding what the reasonable suspicion standard entails. The grounds required to justify an investigative detention were defined by the majority of this Court in Mann. Iacobucci J. referred, citing the relevant cases, to a number of different formulations of the applicable standard, including “reasonable grounds to suspect”, “reasonable suspicion”, “articulable cause” and “sufficient reasonable articulable suspicion”: paras. 31-32 and 45. He expressed a preference for a new term: “reasonable grounds to detain” (para. 33). But in summarizing the standard being applied in that case, Iacobucci J. then used the expression “reasonable grounds to suspect”: para. 45. In my view, “reasonable grounds to suspect” is substantively equivalent to “reasonable suspicion”. It is clear that the standard adopted by Iacobucci J. in Mann is lower than that of “reasonable grounds to believe”, and that it was inspired by the “articulable cause” standard, which has been equated to that of reasonable suspicion: see R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, at para. 52, per Major J. In my view, the “reasonable suspicion” standard is readily applicable in practice, is meaningful to the police and trial judges, and is likely to be used in cases other than those involving detention. Thus, in the case at bar, the trial judge, after discussing Mann at length, framed her analysis of the grounds required to detain the accused in terms of reasonable suspicion: see para. 55.

[165] The reasonable suspicion standard is lower than the standard of reasonable grounds to believe required for a lawful arrest: see Mann, at para. 27. To meet the reasonable suspicion standard, the police must rely on “a constellation of objectively discernible facts”: R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182 (C.A.), at p. 202, per Doherty J.A. While no single factor can on its own ground reasonable suspicion, a number of factors taken together may cause the police to entertain a reasonable suspicion. However, a mere “hunch based on intuition gained by experience” is not enough to meet the reasonable suspicion standard: Mann, at para. 30.

[166] The reasonable suspicion standard is a pragmatic and balanced response to the realities of modern law enforcement. To combat impaired driving, for example, Parliament enacted s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46, which authorizes peace officers to require drivers to provide roadside breath samples for testing by means of an approved screening device on the basis of a reasonable suspicion of alcohol consumption. According to Fish J. in R. v. Woods, [2005] 2 S.C.R. 205, 2005 SCC 42, at para. 30, “[t]hese screening tests . . . necessarily interfere with rights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public’s interest in keeping impaired drivers off the road.”

[167] The reasonable suspicion standard has also been held to apply in the customs context, in R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, and Jacques, and where, as in Clayton, the police are confronting the pressing problem of gun crime.

[168] This standard can be applicable only where there are circumstances that serve as safeguards against unreasonable intrusions on privacy and ensure a balance that affords proper protection. Consequently, a reasonable suspicion standard may be sufficient where the investigative technique is relatively non-intrusive and the expectation of privacy is not high. To determine whether the reasonable suspicion standard is met in a given case, the totality of the circumstances must be considered.

[169] It is apparent from this review that there is a continuum of standards that the courts have recognized to be constitutionally valid. These standards range from no grounds to reasonable suspicion, to reasonable grounds to believe. Which standard should be applied to determine whether an investigative technique has been properly used in a given case will depend on what is reasonably necessary in light of the totality of the circumstances. Indeed, where common law powers of search are concerned, the Waterfield test itself provides for the balancing needed to ascertain which standard will be applicable in each case.

3.3 Application to This Appeal

[170] Having set out the analytical framework for s. 8 and for common law police powers, I will now apply it to the facts of this case. I will begin by identifying the appellant’s privacy interest and will then determine whether his expectation of privacy was reasonable. After doing so, I will consider the reasonableness of the alleged search; this analysis will involve identifying the grounds required to justify the use of the sniffer dog in the circumstances of this case and evaluating the manner in which the search was conducted.

3.3.1 Reasonableness of the Appellant’s Expectation of Privacy

[171] The first step is to determine whether the appellant had a reasonable expectation of privacy that engages the constitutional protection of s. 8 against unreasonable search or seizure. This requires a clear identification of the privacy interest in question and a contextual assessment of both the objective and subjective reasonableness of that interest.

[172] The key question at this stage of the analysis is: Did the appellant, while in a public bus terminal, have a reasonable expectation of privacy in respect of odours emanating from his bag that are imperceptible to humans? In my view, the trial judge erred in concluding that he did not.

[173] Romaine J. erred in analysing the reasonableness of the appellant’s expectation of privacy by incorrectly finding that the purpose of the use of the sniffer dog was to identify odours outside of his bag.

[174] It is significant that the odours in and emanating from the appellant’s bag were imperceptible to humans, hence the need for a dog to detect the narcotics. This is not a case in which the police were relying on their own senses. Rather, they used the dog to obtain information about the possible presence of a controlled substance inside the appellant’s bag, as opposed to something that was outside the bag. They used the dog to identify the contents of, and not merely the odours emanating from, the bag. By detecting what was in the air in the vicinity of the appellant’s bag, the dog functioned as an investigative tool that allowed the police to conclude, in light of the dog’s 90 to 92 percent success rate, that there was a controlled substance inside the bag.

[175] The dog’s positive indication allowed for a strong, immediate and direct inference to be made about the contents of the appellant’s bag, and this involved a certain intrusion on informational privacy, as defined in Tessling, at para. 23. The right to informational privacy protects biographical information, including the very nature of the information. In a case involving this right, the relevant elements of informational privacy include intimate personal details about an accused, such as his or her having come into contact with a controlled substance either as a drug trafficker, an illegal drug user or a legal drug user (such as a user of marijuana for medicinal purposes), or by being in the company of drug users. The very personal nature of this information suggests that the appellant had an objectively reasonable expectation of privacy.

[176] Other factors also indicate that the appellant had an objectively reasonable expectation of privacy. He owned and used the bag, he was present at the time of the search, the bag was one that could be carried close to the body, and he did not abandon it or leave it unattended. The conduct of the police in this case also intruded to a certain extent on the appellant’s right to territorial privacy: members of the public have historically used bus terminals to travel as a means of exercising their freedom of mobility, security screening was not done routinely in this terminal and there were no signs indicating that a luggage search was possible. Romaine J. therefore erred in finding that the appellant did not have an objectively reasonable expectation of privacy.

[177] Nevertheless, the appellant’s objectively reasonable expectation of privacy in this case is not as high as that in Hunter v. Southam. The search in the present case was conducted neither in a workplace nor in a private residence, but in a public place. Moreover, the search technique employed by the police was only minimally intrusive. Thus, the appellant’s objectively reasonable expectation of privacy in this case is low compared to the one in Hunter v. Southam.

[178] Romaine J. also erred in finding that the appellant did not have a subjective expectation of privacy, as her analysis disregarded the evidence that he had carried the bag close to his body (over his shoulder and close to his elbow) and that he had sought to control access to it. In my view, because he made it clear — both verbally and physically (by preventing Sergeant MacPhee from handling his bag when he opened it) — that he wanted to control access to his bag, the appellant showed that he had a subjective expectation of privacy.

[179] Therefore, it can in my opinion be concluded from the totality of the circumstances that the appellant had a reasonable expectation of privacy that engaged s. 8.

3.3.2 Reasonableness of the Sniffer-Dog Search

[180] Having found that the appellant had a reasonable expectation of privacy, I will now consider whether the search was reasonable. As I noted above, the use of the sniffer dog in this case has not been characterized as a search incidental to an investigative detention. The alleged authority for the search is not dependent, therefore, on the detention of the appellant.

[181] Rather, what is in issue is whether the circumstances of this case justify the recognition of a common law power to conduct a search using a sniffer dog. It must therefore be asked whether the conduct of the police in using the dog satisfied the Waterfield test.

3.3.2.1 Application of the Waterfield Test

[182] As was mentioned above, to satisfy the requirement of the first stage of the Waterfield test, the Crown must demonstrate that the police were acting in pursuit of a lawful duty when they engaged in the conduct at issue. In the case at bar, the trial judge found that