R. v. MacKenzie (B.C.), (2013) 448 N.R. 246 (SCC)

R. v. MacKenzie (B.C.) (2013), 448 N.R. 246 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] N.R. TBEd. SE.017

Benjamin Cain MacKenzie (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, British Columbia Civil Liberties Association, Canadian Civil Liberties Association and Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (intervenors)

(34397; 2013 SCC 50; 2013 CSC 50)

Indexed As: R. v. MacKenzie (B.C.)

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

September 27, 2013.

Summary:

The accused's vehicle was stopped for speeding (112 kmph in a 110 kmph zone). The officer testified that the accused was extremely nervous (shaky hand, sweating forehead, rapid breathing and pulsating carotid artery), which led him to believe that he was illegally transporting drugs. The officer conceded that he was not an expert in physiology, but relied on his R.C.M.P. training to conclude that the accused was illegally transporting drugs. The officer detained the accused for a drug investigation based solely on his nervousness. The accused was advised of his Charter rights and declined to submit to a consensual search. The officer then used a drug sniffing dog. The dog indicated the presence of drugs in the vehicle. The officer then conducted a warrantless search and found 31.5 pounds of marijuana in the vehicle's trunk. The accused was charged with possession of marijuana for the purpose of trafficking. The accused sought exclusion of the evidence under s. 24(2) of the Charter on the basis of an unreasonable search and seizure (s. 8).

The Saskatchewan Court of Queen's Bench, in a judgment reported (2009), 342 Sask.R. 281, held that the accused had a reasonable expectation of privacy in the air surrounding his vehicle where the use of the sniffer dog gave the police an opportunity to "see through" the vehicle to the contents inside. The use of a sniffer dog constituted a "search" under s. 8, which was reasonable only if based on "reasonable suspicion". The officer was acting on a "hunch", which did not constitute "reasonable suspicion". The search violated s. 8 of the Charter. The court noted that stopping an accused driving 112 kmph in a 110 kmph speed zone gave rise to a concern that the police were conducting random traffic stops for the purpose of drug searches. The evidence was excluded under s. 24(2) of the Charter. The Crown appealed.

The Saskatchewan Court of Appeal, in a judgment reported (2011), 371 Sask.R. 291; 518 W.A.C. 291, allowed the appeal and ordered a new trial. The police had objectively reasonable grounds to believe that the accused was illegally transporting drugs. Accordingly, the use of the sniffer dog did not constitute an unreasonable search and seizure contrary to s. 8. Absent a Charter breach, there were no grounds to exclude the evidence. The accused appealed.

The Supreme Court of Canada, McLachlin, C.J.C., LeBel, Fish and Cromwell, JJ., dissenting, dismissed the appeal. The police had reasonable grounds to suspect that the accused was involved in a drug-related offence. There was no unreasonable search and seizure.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See first Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The accused was driving 112 kmph in a 110 kmph zone when he saw the police - The accused abruptly reduced his speed by 20 kmph, then pulled over without being directed to do so - The accused was extremely nervous (shaky hand, sweating forehead, rapid breathing, pulsating carotid artery) - The nervousness did not abate when told he was being investigated for only a minor traffic violation - The officer noted pinkish eye colour and trembling hands - His training and experience led him to suspect marijuana use - The accused was travelling from Calgary and Regina and back and initially misstated the time spent in Regina, then finally admitted to a quick turn around - The officer suspected that the accused might be involved in the illegal transportation of drugs - The officer detained the accused for a drug investigation, advised him of his Charter rights, then used his drug-sniffing dog when the accused refused a consensual search - The dog indicated the presence of drugs in the vehicle - A warrantless search found 31.5 pounds of marijuana in the vehicle's trunk - The accused was charged with possession of marijuana for the purpose of trafficking - The trial judge found that the officer had a subjectively reasonable suspicion, but also stated that he acted on "hunch" and that there was no objectively reasonable suspicion that the accused might be involved in a drug offence - Accordingly, the drug-sniffing constituted an unreasonable search and seizure (Charter, s. 8) and the evidence was excluded - The appellate court remitted the matter for trial on the ground that on the facts accepted by the trial judge, there was both a subjective and objective reasonable suspicion of involvement in a drug offence - The Supreme Court of Canada dismissed the accused's appeal - Whether the facts as found by the trial judge constituted a reasonable suspicion was a question of law - The court agreed that "the trial judge failed as a matter of law to appreciate the significance of [the police officer's] training and experience when evaluating the worth of the factors he considered in forming his belief that the appellant might be involved in an offence" - Considering all of the factors together, the police had the requisite reasonable suspicion to justify an investigative detention and use of the drug-sniffing dog - There was no unreasonable search and seizure - See paragraphs 31 to 89.

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The Supreme Court of Canada stated that "the police may use sniffer dogs for routine crime prevention in contexts where individuals have a reasonable, but lesser, expectation of privacy, such as bus terminals and schools, and the police have reasonable and probable grounds to believe that a search will reveal evidence of a criminal offence" - Motor vehicles on a public highway and airports were analogous to bus terminals and schools - The requisite reasonable suspicion to use a sniffer dog must be based on "objectively discernible facts, which can be subjected to independent judicial scrutiny" - Whether the facts as found by the trial judge amount to reasonable suspicion was a question of law - The court stated that "police officers need not be trained pharmacologists or toxicologists or medical doctors before they can give evidence on the factors that their training and experience has taught them provide reasonable grounds to suspect that someone is engaged in the use of drugs. ... in assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person 'standing in the shoes of the police officer'" - The court stated that "while it is critical that the line between 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. ... the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met." - See paragraphs 2, 41, 54, 63. 64, 72.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See first Civil Rights - Topic 1641.4 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See first Civil Rights - Topic 1641.4 ].

Narcotic Control - Topic 2062

Search and seizure - Warrantless searches - Reasonable grounds - [See first Civil Rights - Topic 1641.4 ].

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - [See second Civil Rights - Topic 1641.4 ].

Police - Topic 3189

Powers - Search - Use of dogs - [See first Civil Rights - Topic 1641.4 ].

Cases Noticed:

R. v. Chehil (M.S.) (2013), 335 N.S.R.(2d) 1; 1060 A.P.R. 1; 448 N.R. 370; 2013 SCC 49, refd to. [para. 2].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 2].

R. v. A.M., [2008] 1 S.C.R. 569; 373 N.R. 198; 236 O.A.C. 267; 2008 SCC 19, refd to. [para. 2].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 31].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 31].

R. v. Evans (C.R.) et al., [1996] 1 S.C.R. 8; 191 N.R. 327; 69 B.C.A.C. 81; 113 W.A.C. 81, refd to. [para. 32].

Florida v. Jardines (2013), 133 S. Ct. 1409, refd to. [para. 32].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask.R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 33].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 34].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 36].

R. v. Schrenk (C.A.) (2010), 255 Man.R.(2d) 12; 486 W.A.C. 12; 2010 MBCA 38, refd to. [para. 36].

R. v. Aucoin (B.D.), [2012] 3 S.C.R. 408; 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 2012 SCC 66, refd to. [para. 39].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 43].

R. v. Turpin (G.S.J.) (2010), 365 Sask.R. 67; 2010 SKQB 444, affd. (2012), 393 Sask.R. 184; 546 W.A.C. 184; 2012 SKCA 50, refd to. [para. 45].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 45].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 45].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 54].

R. v. Tran (L.V.) (2007), 247 B.C.A.C. 109; 409 W.A.C. 109; 2007 BCCA 491, refd to. [para. 63].

R. v. Whyte (M.) (2011), 272 O.A.C. 317; 2011 ONCA 24, refd to. [para. 63].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 104].

R. v. Dinardo (J.), [2008] 1 S.C.R. 788; 374 N.R. 198; 2008 SCC 24, refd to. [para. 109].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 22 O.R.(3d) 514 (C.A.), refd to. [para. 109].

R. v. Bramley (R.L.) et al. (2009), 324 Sask.R. 286; 451 W.A.C. 286; 2009 SKCA 49, refd to. [para. 109].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 130].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 130].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 130].

Authors and Works Noticed:

Sankoff, Peter, and Perrault, Stéphane, Suspicious Searches: What's so Reasonable About Them? (1999), 24 C.R.(5th) 123, p. 125 [para. 41].

Counsel:

Barry P. Nychuk, for the appellant;

Douglas G. Curliss, Q.C., for the respondent;

Amy Alyea, for the intervener, the Attorney General of Ontario;

Michael A. Feder and H. Michael Rosenberg, for the intervener, the British Columbia Civil Liberties Association;

Mahmud Jamal, David Mollica and W. David Rankin, for the intervener, the Canadian Civil Liberties Association;

Written submissions only by Tamir Israel, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.

Solicitors of Record:

Richmond Nychuk, Regina, Saskatchewan, for the appellant;

Public Prosecution Service of Canada, Saskatoon, Saskatchewan, for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

McCarthy Tétrault, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

University of Ottawa, Ottawa, Ontario, for the intervener, the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic.

This appeal was heard on January 22, 2013, before McLachlin, C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On September 27, 2013, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Moldaver, J. (Abella, Rothstein, Karakatsanis and Wagner, JJ., concurring) - see paragraphs 1 to 92;

LeBel, J. (McLachlin, C.J.C., Fish and Cromwell, JJ., concurring), dissenting - see paragraphs 93 to 136.