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Sniffer Dogs and Privacy after the Recent Mackenzie Case

One of the first cases I really took an interest in when I first started studying criminal law was R. v. Harrison. Back then it was just about to head to the Ontario Court of Appeal, but I remember being particularly intrigued by the discussion surrounding the privacy interests people have in their vehicles. The case involved a police officer who prematurely initiated a traffic stop which he followed through on because, as he described, the integrity of the police force would be damaged by him turning his sirens back off when he realized his mistake (para 14). The officer was only then able to discover that Mr. Harrison’s license was suspended and, following a search of the car, found 2 boxes of cocaine in the back. Mr. Harrison applied to have the drugs excluded as evidence on the basis that he had been subjected to an unreasonable search and seizure (contrary to section 8  of the Charter) and arbitrarily detained by the police (contrary to section 9).

When the eventual Supreme Court decision came out a few years later, I remember one important comment from Chief Justice McLachlin sticking out to me: “The fact that a Charter breach is less heinous than the offence charged does not advance the inquiry mandated by s. 24(2).  We expect police to adhere to higher standards than alleged criminals” (para 41).

Fast forwarding to more recent incidents of courts evaluating police conduct, the year has been a bit of a mixed bag. There’s the ongoing case involving Police Constable James Forcillo, the recent conviction of Officer Jason Nevill in Barrie, and the interesting fallout from the acquittal of a family involved in a fight with detectives in their apartment. But then on the other end of the spectrum, we had the Supreme Court’s ruling in the Mackenzie case last month.

The police in this case saw a car appear to slow down quickly when it saw them at the side of the road – it seemed to pitch forward, as if putting on the brakes suddenly. They thought they’d give the driver a warning, so they went to go follow it, only to find that the driver had already pulled over to the side of the road.

According to Police Constable Sperlie, the driver immediately apologized for speeding and seemed very nervous – some of the “highest nervousness” he’d ever seen in a traffic stop. The driver also made a mistake in detailing his trip: first he said he had left Calgary the day before, then 2 days before when asked again later. Constable Sperlie also noticed  pinkish hue to Mr. Mackenzie’s eyes. Apparently, though, Mr. Mackenzie’s greatest mistake was driving on what Constable Sperlie considered a “known drug pipeline” – drugs travel West to East in Canada, according to Constable Sperlie, and that was the direction Mr. Mackenzie was travelling.

It was this “constellation of factors” that, after over 5000 traffic stops under his belt, gave Constable Sperlie a “reasonable suspicion” that Mr. Mackenzie was involved in an offence under the Controlled Drugs and Substances Act. As a result, he had his canine companion sniff the car, leading him to focus on the trunk where he ended up finding 30lbs of marijuana.

Writing for the majority, relatively-new Justice Moldaver found that Constable Sperlie’s “reasonable suspicion” was objectively held and, consequently, Mr. Mackenzie’s section 8 right privacy rights were not violated. The reasonable suspicion standard is by its own nature a lower and more easily-shown standard than, for example, reasonable and probable grounds – all that’s required is a possibility of criminal behaviour in the totality of the circumstances. Looking at the factors that Constable Sperlie described, Justice Moldaver was satisfied that that test was met in this case. Moreover, he explained

while it is critical that the line between a hunch and reasonable suspicion be maintained to prevent the police from engaging in indiscriminate or discriminatory practices, it is equally vital that the police be allowed to carry out their duties without undue scepticism or the requirement that their every move be placed under a scanning electron microscope.

I share a lot of the concerns that Justice Lebel expressed in his dissent, though. Many parts of the “constellation of factors” that Constable Sperlie observed, when taken individually or altogether, are observations that could just as easily have been made of any particular driver after 2 days on the road. The factors are really, as Justice Lebel put it, just markers of “generalized suspicion” (para 124) – highly equivocal and general factors that don’t really lead to a “logical inference of criminal behaviour” (para 126).

More importantly, though, I share some of Justice Lebel’s frustration in the potential of losing sight of the important role that the courts play in reviewing police action. Courts are, after all, one of very few ways of holding the police accountable (to a high standard, as Justice McLachlin put it in Harrison), so they should “remain vigilant and not shirk their role in evaluating police action for Charter compliance (para 96).

As it stands now, it seems like the Supreme Court is moving in a different direction in extending the allowable use of police sniffer dogs to the realm of roadside traffic stops – just as long as  the police can point to their experience as a foundation for basing their suspicions.

This blog post was written by Ricardo Golec.  Ricardo is an articling student working for Adam Goodman.