Two recent companion Supreme Court of Canada judgments, R. v. Chehil [Chehil] and R. v. MacKenzie [MacKenzie] 2013 SCC 50, shed some new light on the use of the reasonable suspicion standard to justify the use of sniffer dogs in police searches. The Court elucidated the reasonable suspicion analysis five years earlier in R. v. Kang-Brown 2008 SCC 18, and R. v. A.M. 2008 SCC 19, but fleshed it out more concretely in the Chehil and MacKenzie decisions. Justice Karakatsanis in Chehil elaborated that the standard “engages the reasonable possibility, rather than probability, of crime,” which she acknowledged is a lower threshold, and may lead to the apprehension of many innocent individuals. In spite of this real likelihood, Karakatsanis J. noted that sniff searches based on reasonable suspicion “are Charter compliant in light of their minimally intrusive, narrowly targeted, and highly accurate nature.”
Both Supreme Court decisions affirmed that the reasonable suspicion standard is based upon considering the “totality” of the circumstances, including the context of the situation, the specific characteristics of the suspect, as well as balancing the suspect’s individual privacy rights with the state’s law enforcement interests. In both cases it was held that the accused’s s.8 Charter rights had not been breached because the search conducted in each case was based on reasonable suspicion. In Chehil, the holding was unanimous; however, in MacKenzie, the Court was split in a 5:4 decision. The dividing line apparently came down to the ‘constellation’ of factors relied upon in determining reasonable suspicion: in Chehil, the police were able to present uncontradicted evidence that the constellation of factors present in Mr. Chehil’s situation had almost consistently proven drug couriers in other cases, whereas the factors in MacKenzie were not similarly conclusive.
The interveners in both cases, including the Canadian Civil Liberties Association, asked the Court to rule against the reliance on drug courier profiles in grounding reasonable suspicion. Such reliance, they noted, would confer too much discretionary power to police and perpetuate stereotyping. The Court rejected the idea of stereotyping as having a place in the reasonable suspicion analysis, noting the factors considered (such as the officer’s training and experience) were “objective experiential” as opposed to “empirical” in nature.
No doubt the recent cases have important implications in the sphere of privacy rights and state security interests. What they underline, in particular, is the high degree to which the reasonable suspicion standard can be flexed in view of the ‘totality’ of the circumstances — a notion, which in itself, as the cases demonstrate, can be quite elusive.