Sniffer dogs OK’d if suspicion ‘reasonable’

With shaky hands, a sweaty brow, and a rapid pulse, a driver hands over his licence after going two kilometres over the speed limit near Caronport.

The man’s nervousness and confusion plus his pinkish eyes raise the RCMP officer’s suspicions during the routine traffic stop.

The officer puts Benjamin Cain MacKenzie’s return trip to Regina from Calgary temporarily on hold. When MacKenzie doesn’t agree to a search of his car, drug dog Levi sniffs around — and alerts the Mounties to 31 pounds of pot stashed in gift-wrapped boxes packed in the hatch. Busted. MacKenzie argued his Charter rights were violated during that Sept. 12, 2006, traffic stop — but a majority of the Supreme Court ruled Friday that the search and seizure passed the smell test. A 5-4 split decision concluded the police had a “reasonable suspicion” sufficient to justify the sniffer-dog search and detaining MacKenzie.

The case turned on “reasonable suspicion” — a lower legal standard than “reasonable grounds to believe,” the higher standard needed for such things as a search warrant and arrest.

Regina lawyer Barry Nychuk took MacKenzie’s case to the country’s highest court in hopes of clarity, explaining the law needs more than “mere” suspicion. Originally a judge had tossed out the evidence seized in MacKenzie’s case after finding his rights had been violated. But that was overturned by the Saskatchewan Court of Appeal.

Nychuk believes the issue may still not be quite cut and dried — noting the country’s highest court was closely divided.

“This net is cast so broadly that many innocent people will be caught in it,” he said. It’s a view shared by some civil liberties groups that intervened in the case. Even the court admits, “more innocent persons will be caught under a reasonable suspicion standard than under the reasonable and probable grounds standard.”

“I’m saying define it so less innocent people are caught,” said Nychuk.

But federal Crown prosecutor Doug Curliss noted the law constantly balances liberty and security.

“While the Supreme Court says the law will authorize the police, in the context of reasonable suspicion, to do some things, we’re not going to authorize the police to do very much. So that’s the trade-off — it means that sometimes it won’t pan out, but on the other hand the police can’t do very much. For example, they can’t take people off to jail based on suspicions,” he said. The majority ruling found that based on reasonable suspicion, police could temporarily detain a person and use a drug dog for a perimeter search.

The court said the trade-off between privacy and security is acceptable in such circumstances “because properly conducted sniff searches are minimally intrusive, narrowly targeted, and highly accurate.”

Curliss added that while the decision clarifies the principles of reasonable suspicion, “the devil is in the details” and the guidelines then have to be applied to each case.

At the same time the court released its ruling in MacKenzie, it brought down a similar decision regarding the use of a sniffer dog for a suspected drug courier at an airport in Nova Scotia.

In assessing reasonableness, the court said a judge should consider what a reasonable person “standing in the shoes of the police officer” would do.

“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 skepticism or the requirement that their every move be placed under a scanning electron microscope,” says the decision.

The Supreme Court isn’t the end of the road for MacKenzie, who still faces a trial.