R. v. MacKenzie (B.C.), (2009) 342 Sask.R. 281 (QB)

R. v. MacKenzie (B.C.) (2009), 342 Sask.R. 281 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. NO.011

Her Majesty The Queen v. Benjamin Cain MacKenzie

(2007 CR 9; 2009 SKQB 415)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Moose Jaw

McLellan, J.

October 20, 2009.

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 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.

Civil Rights - Topic 1508

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

Civil Rights - Topic 1641.4

Property - Search and seizure - Drug-sniffing dogs - The accused's vehicle was stopped for speeding (112 kmph in a 110 kmph zone) - The officer testified that his training led him to believe that the accused's extreme nervousness (shaky hand, sweating forehead, rapid breathing and pulsating carotid artery) indicated the illegal transportation of drugs - The officer conceded that he was not an expert in physiology - 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 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 - In these circumstances, the use of a sniffer dog constituted a "search" under s. 8, which was reasonable only if based on "reasonable suspicion" - The officer's "hunch" 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.

Civil Rights - Topic 1646

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

Civil Rights - Topic 1651

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1641.4 ].

Narcotic Control - Topic 2062

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

Police - Topic 3189

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

Cases Noticed:

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 17].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 17].

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

R. v. Plant (R.S.), [1993] 3 S.C.R. 281; 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104, refd to. [para. 20].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168, refd to. [para. 21].

R. v. Lynds (C.J.) (2007), 264 N.S.R.(2d) 24; 847 A.P.R. 24; 2007 NSPC 47, refd to. [para. 21].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1, refd to. [para. 23].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 30].

R. v. Crisby (B.R.) (2008), 281 Nfld. & P.E.I.R. 117; 863 A.P.R. 117; 2008 NLTD 185, refd to. [para. 36].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 38].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 43].

R. v. Grant (D.) (2009), 391 N.R. 1; 253 O.A.C. 124; 245 C.C.C.(3d) 1; 2009 SCC 32, refd to. [para. 49].

Counsel:

Roger L. Arendt, for the Crown;

Barry P. Nychuk, for the accused.

This application was heard before McLellan, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Moose Jaw, who delivered the following judgment on October 20, 2009.