Supreme Court of Canada re-approves use of dogs in searches without consent or warrant.

DRUG SNIFFER DOG SEARCHES approved of again by the Supreme Court of Canada.  In two decisions released on Thursday, the Court has allowed the use of drug dogs to conduct searches in the absence of consent or search warrant.

A tale of two cases…

In Regina v Chehil, the Court allowed drug dogs in restricted areas of the Halifax airport to do a sniff search on a traveller’s bags, finding 3 kilos of cocaine in the subsequent search, after the dog indicated the smell of narcotics.

In Regina v McKenzie the Court authorized the use of the drug dog, after a traffic detention between Calgary and Regina, who located several pounds of marihuana.

In both cases the Court authorized both the sniff search, and the subsequent arrest based on the positive indication by the drug dog.

The Supreme Court has authorized the use of the sniffer dogs, in cases where there is a lesser expectation of privacy,  ie. airports, automobiles, if a police officer has a ‘reasonable suspicion’ of a criminal offense – in these cases, drug possession.  To arrest someone there must be reasonable and probable grounds to believe they have committed a crime.

The Court reiterated that the test for a reasonable suspicion is based on a constellation  of  objectively verifiable facts. In particular, the police only need facts supporting a ‘possibility’ of a crime.   Would be drug traffickers should know that one way tickets on Westjet, paid for last minute with cash, can amount to, and did amount to reasonable grounds for a drug sniff search in the case of CHEHIL.  Further, even though the dog indicated the presence of drugs in another piece of luggage, (a cooler) where none was found, the Court still found that the subsequent arrest of the defendant was based on ‘reasonable and probable grounds’, and was therefore lawful.

In McKenzie, the sniff search was based on the fact that the defendant had quickly slowed down his car when being monitored for speeding, and parked the car on the side of the road before being pulled over by the police; he exhibited extreme nervousness, had pink eyes, and jerky hand movements, and changed his story about his travel between Calgary and Regina.  Surprisingly, the officer testified that Calgary was a source of drugs and Regina a destination for same. The defendant had been acquitted because the trial judge found a lack of reasonable suspicion for the drug dog search, but the Supreme Court found in split decision that he did not give proper weight to the officer’s training and experience, which led to the officer’s opinion.

In short, if an officer can justify his opinion based on his experience and training, the Courts are bound to consider that in determining whether there is a ‘reasonable suspicion’ to justify the dog sniff search.

Both cases left upon the possibility that if there had been better and more probing cross – examination, of the officer’s conclusions, and the dogs training, the results may have been different.

Stan Tessmer