Docket: 1765 Her Majesty the Queen Appellant - v. -, 2011 SKCA 64

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 64 Date: 20110525 Between: Docket: 1765 Her Majesty the Queen Appellant - and - Benjamin Cain MacKenzie Respondent Coram: Klebuc C.J.S, Richards & Caldwell JJ.A. Counsel: Douglas G. Curliss , Q.C. for the Appellant Barry Nychuk for the Respondent Appeal:

From: QBCR 9 of 2007, J.C. of Moose Jaw Heard: September 15, 2010 Disposition: Allowed Written Reasons: May 25, 2011 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Richards Caldwell J.A. I. Introduction [ 1 ] This is a “sniffer-dog” case under s. 8 of the Canadian Charter of Rights and Freedoms (the “ Charter ”), which sets out the right to be secure against unreasonable search and seizure.

The issue in this appeal is whether peace officers violated that right by conducting a “sniff-search” of the respondent’s vehicle. [ 2 ] The Charter allows peace officers to conduct sniff-searches without prior judicial authorization on a “reasonable suspicion” standard, see: R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456 (“ Kang-Brown ”) and R. v. Yeh , 2009 SKCA 112 , 248 C.C.C. (3d) 125 (“ Yeh ”), at para. 43 .

In effect, a peace officer may deploy a sniffer-dog to search a vehicle where that officer has reasonable grounds to suspect that the presence of a “controlled substance”, within the meaning of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. The standard of “reasonable suspicion” is less demanding than that of “reasonable and probable grounds”; however, there is no comprehensive set of evolved criteria which control whether the standard has been met.

Each case turns on its own facts. [ 3 ] In this case, the Crown appealed from the acquittal of Benjamin Cain MacKenzie on the indictment that he: Did on or about the 12 th day of SEPTEMBER, A.D. 2006, at Moose Jaw District, in the Province of Saskatchewan, …: unlawfully have in his possession a controlled substance, to wit: Cannabis Marihuana in an amount exceeding three kilograms for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act .

However, the acquittal itself was a direct consequence of the exclusion from evidence of 31.5 lbs. of marijuana, which peace officers had obtained following a sniff-search. The trial judge found, on a voir dire , that the sniff-search was unreasonable and therefore breached Mr. MacKenzie’s s. 8 right to be secure against unreasonable search and seizure. The judge then excluded the marijuana from evidence pursuant to s. 24(2) of the Charter (see: 2009 SKQB 415 ). Without the marijuana as evidence, the Crown had no case against Mr.

MacKenzie. [ 4 ] The Crown appealed to this Court to review the judge’s reasons for finding that the peace officers had violated Mr. MacKenzie’s right to be secure against unreasonable search and seizure. At its core then, the Crown’s appeal asked us to find error with the judge’s reasons for concluding that the peace officers did not have a reasonable suspicion that Mr. MacKenzie had a controlled substance in his vehicle . [ 5 ] For the reasons below, I would find that the judge erred in concluding that the sniff-search was unreasonable and, therefore, I would grant the Crown’s appeal.

Given this result, my reasons below do not review the judge’s decision to exclude the evidence under s. 24(2) of the Charter . II. Evidence at the Voir Dire

[ 6 ] The evidence in this case follows from a voir dire held at the commencement of Mr. MacKenzie’s trial in the Court of Queen’s Bench on Mr. MacKenzie’s application to exclude the marijuana as evidence based on alleged denials of his right to be secure against unreasonable search and seizure. Mr. MacKenzie did not testify at the voir dire ; R.C.M.P. Constables Sperle and Warner, who arrested Mr. MacKenzie, were the only witnesses. Based on the testimony of the constables, the circumstances of the detention of Mr.

MacKenzie, the search of his vehicle, the seizure of the marijuana and his subsequent arrest for trafficking in a controlled substance were as follows. [ 7 ] On the evening of Tuesday, September 12, 2006, Mr. MacKenzie was traveling east in his own vehicle along the TransCanada Highway from Calgary to Regina. As he crested a hill to the west of Caronport, Saskatchewan, Mr. MacKenzie came upon Constables Sperle and Warner in a marked R.C.M.P. cruiser parked on an approach. Mr. MacKenzie then slowed his vehicle’s speed so suddenly that the front end of his vehicle pitched forward.

Constable Sperle testified that the Doppler traffic radar in the cruiser had emitted a high-pitched tone, which indicated to the constable that Mr. MacKenzie’s vehicle was travelling at a high rate of speed. Constable Sperle testified that the pitch of the audio Doppler tone then rapidly dropped, which indicated that Mr. MacKenzie’s vehicle was rapidly slowing. According to Constable Warner, the traffic radar initially clocked Mr. MacKenzie’s vehicle at 112 kilometers per hour and then just 89 kilometers per hour as it went by the cruiser.

The speed limit for that part of the TransCanada Highway is 110 kilometers per hour. [ 8 ] The constables waited for another car and a tractor/trailer unit to go by them and then began to follow Mr. MacKenzie, intending to stop him to warn him for speeding. When the constables caught up with Mr. MacKenzie two kilometers down the highway, he had already pulled his vehicle over to the side of the road. He did not receive any direction to do so from the constables. [ 9 ] At the roadside, Constable Sperle approached Mr. MacKenzie’s vehicle. Without apparent prompting, Mr.

MacKenzie told Constable Sperle that he was “sorry” and that he knew he had been speeding. Constable Sperle confirmed speeding as the reason for the stop and asked Mr. MacKenzie for his driver’s licence and vehicle registration. Mr. MacKenzie provided these documents and Constable Sperle gave them to Constable Warner, who returned to the cruiser to conduct a computer inquiry in respect of Mr. MacKenzie. Constable Sperle, who remained with Mr. MacKenzie at his vehicle, testified to the following observations: … When Mr. MacKenzie handed me the documents I noted his hands were shaky, they were trembling.

I also noticed that Mr. MacKenzie was – appeared to be sweating, I could see beads of sweat forming on his forehead, and his breathing was very rapid, and I could see his chest moving in and out very quickly, and I could hear that he was breathing rapidly when he was speaking. I could also see that his carotid artery was pulsing very rapidly, from where I was at the vehicle. I asked Mr.

MacKenzie if – if he was all right, referring to the breathing and the observations that I made, and he pointed down to what I believed to be asthma medication on the console of the vehicle, and he said that he has asthma and requested – asked if he could take the medication. I said yeah, you can – you can take the medication, and he did. I also noticed that Mr. MacKenzie’s eyes had a pinkish colour to them. After Mr. MacKenzie took the – the medication I didn’t see any – any noticeable decrease in his – the breathing or anything like that that I was observing. I asked Mr.

MacKenzie where he was coming from, where he was going to, and he told me that he was coming from Calgary and going to where he lives in Regina. I asked him when he went to Calgary, and he said yesterday, and at the time of this investigation yesterday would have been Monday. So I replied back saying Monday you went to Calgary? And he paused for a minute and said no, Sunday. He seemed to be somewhat confused on when he had traveled to Calgary. Constable Warner brought me back the – the driver’s licence, registration, and he told me that he – the queries that he had done were all negative.

At that point I suspected that Mr.

MacKenzie was involved in an offence under the Controlled Drugs and Substances Act , and I requested that he get – that he step out of the vehicle. [ 10 ] When examined by the prosecutor about his training and his experience with routine highway traffic stops and those involving the discovery of drugs or contraband, Constable Sperle testified as follows: Q: Now, based on your previous experiences with highway traffic stops, and the training that you have received, have you observed any differences or common elements regarding highway traffic stops where drugs or contraband are found, as opposed to those stops where that’s not the case?

A: Yeah, in – in all the traffic stops that I’ve been involved with I’ve seen different behaviours and stuff like that, nervousness being one of them. In every traffic stop there’s a certain level of nervousness, and that – that nervousness quickly diminishes early on in the stop. I’ve seen in the investigations where we’ve detected a travelling criminal, or somebody that’s involved in criminality, that nervousness does not diminish, it stays very elevated, and in some cases increases in elevation up until the point when we discover what it is the person is – is trying to hide from us.

I’ve seen driving behaviours with regards to erratic driving. Commonly when a vehicle approaches the police vehicle, if they’re exceeding the speed limit, that vehicle will generally slow down to the speed limit and continue past the police. In this case I observed a very erratic reaction, over reaction to police presence, where the vehicle actually slowed down to 20 kilometres per hour under the speed limit and then continued at that, and in fact the vehicle pulled over to the side of the road before we even got behind it and put the lights on.

Q: So perhaps I can – I can – we can come back to this particular stop that you made that day. You had mentioned a number of things that you noticed while you were – had initial contact with Mr. MacKenzie. Did any of these have any particular significance to you, and, if so, what and why? A: The erratic driving to me – excuse me. The erratic driving to me was – was certainly an overreaction, something that I have experienced in the past during the course of my – my traffic duties, as – as an overreaction with people that are trying to hide something from the police. Mr.

MacKenzie’s level of nervousness was extremely high, it was probably some of the highest nervousness that I’ve

seen in a traffic stop. And what is significant about this nervousness is when I told him the reason – the relatively minor reason for the stop, this nervousness did not diminish, it – it stayed very, very elevated. Mr. MacKenzie had a pinkish colour to his eyes, and on the SFST course, the standardized field sobriety testing course, during that half day lecture on drugs one of the – one of the symptoms that they taught us about cannabis marihuana was it will – it can cause a reddish or a pink colouration to the – to the eyes, and I did see a pink colouration in Mr. MacKenzie’s eyes.

The other thing they taught us too is that marihuana use can cause muscle tremors that you can see in the hands or the leg, eye tremors, that type of thing. And those two sym—the tremors I saw in his hand I’ve also seen as a – as an indication of a very elevated level of nervousness.

During my investigations involving drugs on the side of the highway, those primarily involved cannabis marihuana, and I’ve talked to those people that use cannabis marihuana about the effects that it has on them, things like that, and I’ve seen the pink eyes that they have, and they tell me that they’ll frequently use products like Visine to get rid of that pink colour so that nobody knows that they’ve -- they’ve used marihuana. I’ve also seen people that were high on marihuana and they did have the muscle tremors, eyelid tremors, leg tremors, finger tremors. Mr.

MacKenzie’s level of nervousness in this -- during the course of the stop was certainly very elevated, and it -- it did not diminish as it normally does. Mr. MacKenzie told me that he was coming from Calgary and that he was traveling to Regina. I do know Calgary, through my experience as a peace officer, as being a well known source of controlled drugs and substances, and that the -- the typical movement of drugs in Western Canada goes from west to east, and certainly some of those drugs come from Calgary to -- to Regina. Mr. MacKenzie also appeared somewhat confused with regards to when he went to Calgary.

He -- I’ve experienced in the past where people that are involved in criminality on the highway, they try to make up a story very quickly at the side of the road, to try to prevent being detected, to have their -- the activity that they’re involved in detected by police, and a lot of times their story will start to get messed up and they don’t -- they don’t -- they’re trying not to say that they just drove out to a place real quick, to pick up drugs and come back to Regina, they don’t want to say that to the police.

So they’ll start to try to make the story up, and I’ve seen that in the past, where they get confused on the story. [ 11 ] The prosecutor then examined Constable Sperle as to the basis for his decision to detain Mr. MacKenzie: Q: Were there – okay, so on what basis did you – did you decide then to detain Mr. – Mr. MacKenzie under the Controlled Drugs and Substances Act ? A: Based on my experience as a police officer, the observations that I was making that day, and the fact that when the queries came back there was no other reason for him – that we located, for him to be nervous.

He wasn’t a suspended driver, you know, he didn’t forget to renew his driver’s licence, or anything like that, typical things where I will see people that are nervousness – see nervousness with respect to – like I determined at that point, or I suspected at that point that Mr. MacKenzie was involved in an offence under the Controlled Drugs and Substances Act . [ 12 ] Six to eight minutes after approaching Mr. MacKenzie’s vehicle, Constable Sperle detained Mr. MacKenzie and read him his Charter rights. After an unsuccessful attempt to obtain his consent to a vehicle search, Constable Sperle turned Mr.

MacKenzie over to Constable Warner and deployed Levi, a single-profile narcotic detector dog (“sniffer-dog”), to conduct a sniff-search around the exterior of Mr. MacKenzie’s vehicle. The sniffer-dog indicated a controlled substance was present in the back hatch area of the vehicle. Constable Sperle advised Constable Warner to arrest Mr. MacKenzie and he did so under the Controlled Drugs and Substances Act and read him his Charter rights again. [ 13 ] Following the positive indication by the sniffer-dog and Mr. MacKenzie’s arrest, Constable Sperle searched Mr.

MacKenzie’s vehicle and, in the rear hatch area, found the 31.5 pounds of marijuana in three gift-wrapped packages. Consequent on the discovery, the constables arrested Mr. MacKenzie for possession of a controlled substance for the purposes of trafficking and read him his Charter rights again. The indictment is set out above. III. Queen’s Bench Decision [ 14 ] The judge identified “reasonable suspicion” as the standard for conducting a sniff-search (see R. v. A.M. , 2008 SCC 19 , [2008] 1 S.C.R. 569 (“ R. v.

A.M. ”) and Kang-Brown ) and concluded his consideration of that standard with reference to the majority decision of this Court in Yeh where Richards J.A. wrote: [44] Significantly, the Supreme Court stressed that a hunch based on intuition gained by experience does not constitute a reasonable suspicion. There must be objective grounds which support the opinion of the police officer. [ 15 ] The judge then summarized the grounds leading to the sniff-search in this case: [32] The accused was pulled over on Highway #1, just west of Moose Jaw, Saskatchewan, allegedly for speeding.

The officer, after speaking with the accused, asked him to step out of the vehicle and advised him that he was going to detain him temporarily for further investigation under the Controlled Drugs and Substances Act . The police officer testified that the basis for this detention included:

• the driver’s “very high level of nervousness”, as outlined above. • the pinkish hue of the driver’s eyes, which in the police officer’s opinion is consistent with the use of marihuana; and • the course of travel of the driver, which was from Calgary to Regina. The police officer testified that Calgary was a known source of narcotics and Regina was a known destination of sale. No evidence was offered to support that opinion. [33] There appeared to be no other signs that indicated the presence of illegal drugs such as plain sight or smell.

After having the accused exit his vehicle, the police officer explained that the accused had a choice of consenting to a search of the interior of his vehicle or that he could use the narcotics dog. The accused did not consent to a search. In addition, a consent to search form was not provided to the accused.

After the dog indicated the presence of drugs, the police officer searched the interior of the accused’s vehicle and found the marihuana in the trunk. [ 16 ] In applying the law to these factors, the judge concluded that the constable’s conduct had not been grounded by a reasonable suspicion: [47] In my view, the opinions expressed by Cst. Sperle did not meet the “reasonable suspicion” standard required for a valid sniffer dog search at best he was acting on a hunch. Furthermore, it must be pointed out that both Cst. Warner and Cst.

Sperle were from northern Saskatchewan and they claim to have been on routine traffic patrol with a “sniff dog” in the southern part of the province. The posted speed limit where the car was travelling was 110 km per hour. The radar clocked the accused as travelling at 112 km per hour which is only two km over the speed limit. I have a concern that the two officers may have been in the area with the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is a common occurrence.

It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located. [48] When I consider all of the facts in this case, I can only conclude that the search performed by the officers was unreasonable. IV. Analysis [ 17 ] The broad question in this appeal is whether the judge correctly concluded that the circumstances leading to deployment of the sniffer-dog could not have given rise to a reasonable suspicion of the presence of a controlled substance.

If Constable Sperle’s suspicion was reasonable at the time, then the constable was entitled to deploy the sniffer-dog. If the sniff-search was reasonable, then the subsequent physical search pursuant to Mr. MacKenzie’s arrest was a permitted search and the marijuana is admissible as evidence in the case against Mr. MacKenzie. [ 18 ] The judge’s findings that Mr. MacKenzie had a reasonable expectation of privacy in his vehicle and that use of a sniffer-dog constituted a search are not at issue in this appeal.

Use of a sniffer-dog as an investigative technique constitutes a search within the meaning of s. 8 of the Charter , see: Kang-Brown and R. v. A.M. This appeal is limited to the judge’s finding that the sniff-search was an unreasonable intrusion on the privacy rights of Mr. MacKenzie. [ 19 ] The assessment of the reasonableness of a sniff-search requires a thorough understanding of the standard to be met and of the circumstances leading to the search. The standard of “reasonable suspicion” is near the bottom end on the continuum of probability (with proof “beyond a reasonable doubt” at the other).

In any case, the court must undertake a subjective and objective analysis of whether the state has met its burden. For a sniff-search, this analysis would have the court ask: (

a) Did the peace officer subjectively believe that there were reasonable grounds to suspect the accused was in possession of a controlled substance? (

b) Were there sufficient objective grounds to reasonably suspect the accused was in possession of a controlled substance? A. Did Constable Sperle subjectively believe he had reasonable grounds to suspect Mr. MacKenzie was in possession of a controlled substance? [ 20 ] At para. 47 of his judgment, the judge wrote: … It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst.

Sperle were enhanced after the drugs were located. [emphasis added] [ 21 ] The foregoing sentence might be seen as calling into question the sincerity of the constable’s subjective belief, at the material time, that he had reasonable grounds for his suspicion. However, if the experienced trial judge had intended to reject the constable’s testimony, then he would have done so in clear terms. As he did not, I proceed with the analysis on the basis that the judge accepted

Constable Sperle’s testimony and that he ultimately concluded the constable believed he had proper grounds to deploy the sniffer-dog. B. Were there sufficient objective grounds to reasonably suspect Mr. MacKenzie was in possession of a controlled substance? [22] A finding by a trial judge that, objectively speaking, reasonable suspicion existed, or did not exist, results from the application ofa legal standard to the facts as found by the trial judge. The Crown asked us to find that the judge erred by misunderstanding thestandard.

The Crown also submitted that the judge’s decision warranted appellate intervention because the judge erred in principle eitherby failing to consider all of the evidence relevant to the issue of reasonable suspicion, or by failing to consider the legal significance andcollective weight of that evidence, or both. Whether the judge erred in any of these ways is a question of law reviewable on appeal on thestandard of correctness. See: Gallop v. Mulatz, 2008 SKCA 29, [2008] 5 W.W.R. 231, at para. 34; St-Jean v. Mercier, 2002 SCC 15,[2002] 1 S.C.R. 491; and ABB Inc. v.

Domtar Inc., 2007 SCC 50, [2007] 3 S.C.R. 461. [23] The Crown submitted that the judge’s conception of the standard of reasonable suspicion was too demanding. This, the Crownsubmitted, is demonstrated by the judge’s reference to the absence of “plain sight or smell” as indicators of the presence of a controlledsubstance.

The Crown asked this Court to conclude the judge’s reference to “plain sight or smell” was an indication that the judgemisinterpreted the standard of reasonable suspicion and therefore held the Crown to the onus of satisfying the higher standard ofreasonable and probable grounds. [24] The law requires evidence of the factors that ground the suspicion as being reasonable (see Yeh, at paras. 44-45).

In my judgment,the judge was merely indicating that, in his view, something more compelling than the factors summarized in para. 32 of his decisionwas required to establish a reasonable suspicion in the circumstances of this case. The judge committed no error of law with respect tothe legal meaning of the concept of reasonable suspicion itself. [25] I turn now to consider whether the trial judge erred in deciding the suspicion in this case was not reasonable.

A trial judge’sanalysis of whether reasonable suspicion existed does not involve a search for motive; rather, the judge must examine the factualcircumstances leading to the sniff-search and whether, considered with an appreciation of the peace officer’s training and experience,those circumstances could have reasonably given rise to a suspicion of possession of a controlled substance.

In the sniffer-dog cases,where peace officers conduct searches without prior judicial authorization, the trial judge must carry out this after-the-fact scrutiny of thegrounds for the alleged reasonable suspicion with rigour (see Kang-Brown, at para. 26). [26] Constable Sperle testified as to his training and experience. He said that he had received the usual standardized field sobriety-testing (SFST) course, including a half-day lecture on different types of drugs and the observable effects of those drugs on the humanbody.

Constable Sperle also testified to attending a week-long R.C.M.P. “pipeline course” in 2001, where he learned different indicatorsand behaviours of criminals travelling along a highway. He testified to attending a second week-long “advanced pipeline course” in 2005in Laughlin, Nevada, that dealt with traffic stop scenarios and training with respect to hidden compartments in vehicles. In cross-examination, Constable Sperle said that he had been qualified in court as a “drug expert”, although not a “drug recognition expert”.

Thisis evidence that Constable Sperle had some issue-specific, formal training on recognizing the indicia necessary to ground a reasonablesuspicion that an individual might have a controlled substance in his or her vehicle. As to his experience, while there was no evidence asto the constable’s rate of error (i.e., how often he subjectively believed he had reasonable grounds to suspect the presence of drugs butwas proven wrong on a search of the vehicle), Constable Sperle testified that he had been involved in over 5,000 traffic stops of which150 involved the discovery of drugs.

As such, unlike the circumstances in Yeh, in this case the Crown adduced evidence that the peaceofficer had issue-specific, first-hand training and experience with the behavioural characteristics and practices of individuals who haveconsumed controlled substances or have them in their vehicles. [27] A number of cases in Canada, including R. v.

Nolet, 2009 SKCA 8, 245 C.C.C. (3d) 419 [affirmed 2010 SCC 24, [2010] 1 S.C.R.851], and Yeh from this Court, and in the United States indicate it is important that a trial judge take into consideration the experienceand training of peace officers when determining the objective existence of a standard of probability like reasonable suspicion orreasonable and probable grounds. As examples, see: R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, per L’Heureux-Dubé J.at para 124; R. v. Schrenk, 2010 MBCA 38, 254 C.C.C. (3d) 277, at para 77; United States v. Arvizu, [2002] SCT-QL 15, per RehnquistC.J. at paras. 19 and 23.

All of these cases support what Richards J.A., in Yeh at para. 53, called the “established notion” that a trialjudge is to consider and give some weight to the training and experience of the peace officer in determining whether the officer’ssubjectively held reasonable suspicion is objectively verifiable.

Richards J.A. further noted in Yeh that the reason for this practice is that“a fact or consideration which might have no significance to a lay person can sometimes be quite consequential in the hands of thepolice.” [28] Nevertheless, the case law does not stand for the proposition that a peace officer’s testimony should not be carefully assessed.Richards J.A. also had this to say in Yeh about a peace officer’s training and experience in the context of the standard of reasonablesuspicion:

53 … This said, it is also clear that, when necessary, the courts must be prepared to look carefully at what is held out to be “experience” or “training” in order to ensure that the integrity of the reasonable suspicion concept is maintained. [emphasis added] . . . 56 Recognizing symptoms of drug use and then employing them to determine what kind of drugs have been consumed and when they were consumed is, on its face, a technical or scientific sort of endeavour. It is not the kind of skill one would readily expect a police officer to pick up outside of a formal training or educational session.

To the extent an officer might acquire information of this kind by way of self-directed reading or research, a judge should obviously be very slow to put much credit in the officer’s knowledge in the absence of a careful examination of its specific source and the reliability of that source. In this case, where Constable Wilson’s information came from an unknown and unnamed “publication,” I see no basis for giving any meaningful weight to his views about when Mr. Yeh consumed marijuana. [ 29 ] More recently, Neilson J.A., in R. v.

Payette , 2010 BCCA 392 , 259 C.C.C. (3d) 178, another sniffer-dog case, in the context of determining whether reasonable suspicion existed on the facts, wrote: [25] I agree the cumulative import of the markers governs the assessment of whether they provided an objectively reasonable basis for Sgt. Smith’s suspicion. I also agree they must be viewed in the context of his background and experience. I am not persuaded, however, that the collective picture of the six factors taken together is capable of providing grounds for any objective suspicion of criminal drug activity.

While I appreciate the objective reasonableness requirement must be viewed in the light of the investigating officer’s background and experience, deference to an officer’s intuition must not render the objective element of the inquiry meaningless. [emphasis added.] [ 30 ] A trial judge is entitled to and should assess the weight or probative value of a peace officer’s testimony. In this case, there appears to be no basis for the judge’s conclusion that the totality of the factors articulated by Constable Sperle amounted to, “at best”, a hunch.

The judge does not question the constable’s training and experience; nor does the judge set out any analysis of why the inferences drawn by the constable might be incorrect or flawed. [ 31 ] Constable Sperle’s testimony carefully articulated the factors which led him to form a suspicion that Mr. MacKenzie was involved in criminal activity and why, on the basis of those factors, he believed that that criminal activity was possession of a controlled substance. Constable Sperle was thoroughly cross-examined on this, but his grounds for belief remained consistent.

Constable Sperle testified to the following as giving rise to his suspicion that Mr. MacKenzie was in possession of a controlled substance: (

a) Mr. MacKenzie’s erratic driving and overreaction to police presence e.g. , Mr. MacKenzie slowed to 20 kilometers per hour under the speed limit and pulled over before the police signaled him to stop ( i.e. , behaviour from which the constable’s experience had taught him to infer that Mr. MacKenzie might be hiding something from the police); (

b) Mr. MacKenzie’s extremely high level of nervousness, which Constable Sperle described as “probably some of the highest nervousness that I’ve seen in a traffic stop” and that, when Mr. MacKenzie was told of the relatively minor reason for the stop, this level of nervousness did not diminish ( i.e. , behaviour which, in the constable’s experience, further indicated Mr. MacKenzie had something to hide); (

c) Mr. MacKenzie’s hands were shaky and trembling when Mr. MacKenzie handed his driver’s licence and registration to Constable Sperle ( i.e. , indicia of nervousness, but also, in the constable’s training, a symptom of marijuana use); (

d) Mr. MacKenzie was or appeared to be sweating with beads of sweat forming on his forehead ( i.e. , indicia of excessive nervousness); (

e) Mr. MacKenzie was breathing very rapidly, his chest was moving in and out very quickly, and this rapid breathing was audible when Mr. MacKenzie was speaking ( i.e. , indicia of excessive nervousness); (

f) Mr. MacKenzie’s carotid artery was pulsing very rapidly ( i.e. , a sign of a high level of nervousness and something the constable had experienced in traffic stops “where criminality was involved”); (

g) that observations (b) – (

f) were such that Constable Sperle inquired whether Mr. MacKenzie was all right ( i.e. , Mr. MacKenzie’s nervousness was significant enough to prompt the constable to inquire about Mr. MacKenzie’s health), but Mr. MacKenzie’s rate of breathing and other indicia of nervousness did not noticeably decrease after he took his asthma medication ( i.e. , absence of a discernible reason for symptoms of nervousness); (

h) Mr. MacKenzie’s eyes had a pinkish colour to them ( i.e. , a symptom known to the constable by training and experience to be associated with marijuana use); (

i) Mr. MacKenzie seemed confused as to his travel itinerary ( i.e. , a state that the constable had observed in individuals who were trying to avoid detection of a crime by hastily making up a story but then forgetting the details of the story); (

j) Mr. MacKenzie was travelling from Calgary ( i.e. , a city known to the constable as a distribution point for drugs) to Regina ( i.e. , a city known to the constable as a destination point for drugs) along the TransCanada Highway ( i.e. , a route known to the constable as being used by drug couriers);

(

k) Mr. MacKenzie was on a quick turnaround trip ( i.e. , in the constable’s experience, drug couriers make quick turnaround trips); and (

l) neither the Canadian Police Information Centre (CPIC) database nor the Police Information Retrieval System (PIRS) database contained any record of Mr. MacKenzie ( i.e. , there was no discernible reason for the extreme degree of nervousness exhibited by Mr. MacKenzie). [ 32 ] In sum, Constable Sperle testified to a number of factors which synergistically caused him to suspect the presence of a controlled substance. The judge, by way of a

summary, reduced these factors to three ( i.e. , “very high level of nervousness”, “pinkish hue of the driver’s eyes”, and “course of travel”), and in doing so characterized the latter two as the constable’s “opinion” or as an “opinion” that was unsupported by evidence. [ 33 ] By discounting the inferences drawn by Constable Sperle as his “opinion”, the judge failed to appreciate the constable’s issue- specific knowledge, training and experience and thereby ignored the probative value of the constable’s evidence as informed opinion.

The constable’s testimony about the factors that led him to draw the overall inference that drugs might be present in Mr. MacKenzie’s vehicle must be seen and weighed not in terms of unsubstantiated opinion, but with an appreciation of Constable Sperle’s training and experience. Rosenberg J.A. recently made a similar point in R. v.

Whyte , 2011 ONCA 24 , 272 O.A.C. 317, in the context of objectively assessing the reasonableness of grounds for arrest, as follows: [31] … This sequence of events had to be measured against the knowledge and experience that the police officers brought to the investigation in informing the inferences to be drawn from the observations. That experience included knowledge of the trafficking in firearms in the Windsor area and the use of rental cars in illegal trafficking of drugs and firearms. As Levine J.A. said in R v.

Tran , 2007 BCCA 491 at para 12 , the objective reasonableness of the arresting officer’s grounds “must be assessed from the standpoint of the reasonable person ‘standing in the shoes of the police officer’”. [ 34 ] Applying the aforementioned standard to the facts of this matter, the nervousness required an

interpretation by Constable Sperle of Mr. MacKenzie’s emotional state and is, perhaps, less objectively verifiable than physical evidence, for example. Nevertheless, nervousness is a natural human condition observable, describable and appreciable (or objectively verifiable), to a greater or lesser extent, by anyone. The sum of Constable Sperle’s evidence was that Mr. MacKenzie was “extremely nervous”, and he described a number of specific indicia of the nervousness that he observed. Importantly, the constable said Mr.

MacKenzie’s nervousness “was probably some of the highest nervousness that I’ve seen in a traffic stop.” The judge accepted that Mr. MacKenzie was extremely nervous based on the constable’s testimony; however, that does not end the inquiry. As a factor unto itself, nervousness alone might not ground a reasonable suspicion of criminal activity; but, here, the constable grounded his suspicion on more than the existence of nervousness. Constable Sperle also testified to Mr. MacKenzie’s erratic driving (an overreaction to police presence), to the extreme degree of Mr.

MacKenzie’s nervousness, to the absence of abatement in the degree of nervousness given the relatively insignificant reason for the traffic stop, and to the absence of any apparent reason for such a high degree of nervousness. In this sense, Constable Sperle drew upon his experience and training to contextualize Mr. MacKenzie’s nervousness, which lent a tenor to that nervousness; one with the shade of potential criminal wrongdoing on the part of Mr.

MacKenzie. [ 35 ] Furthermore, the constable said his experience and training suggested that an individual with a “pinkish” eye colour might have recently consumed marijuana.

On cross-examination, the constable testified that while use of marijuana does not necessarily mean an individual is transporting marijuana, in his experience, “people that use marihuana usually have marihuana.” Logically, however, not everyone who exhibits pinkish eye colour has recently used marijuana, let alone is in the process of transporting drugs, and the constable did not suggest otherwise; nor is it likely that everyone who has recently used marijuana is in possession of it.

But, when the standard is reasonable suspicion, the law does not require hard certainty as to the inferences drawn by a peace officer. Even where equally or even more persuasive inferences may be drawn from the observations, a judge may find that the peace officer’s inferences, when considered with an appreciation of the officer’s training and experience, are reasonably supported by the factors articulated.

A trial judge should be reluctant to discard such inferences as wrongly drawn without some analysis of why they were not appropriate. [ 36 ] In this case, it was also reasonable to place all of the constable’s observations and inferences within the context of his knowledge that drug couriers use the TransCanada Highway for quick turnaround trips when transporting drugs from Calgary to Regina.

While the circumstances might not have suggested the presence of drugs to someone not having Constable Sperle’s training and experience, and while there may be other plausible and innocent explanations for the pinkish eyes and trembling hands observed by the constable, those factors support a suspicion of potential criminal wrongdoing and, more importantly, wrongdoing involving drugs. [ 37 ] The constellation of objective factors in this case is such that I am satisfied it could have been reasonably suspected that Mr. MacKenzie was unlawfully in possession of a controlled substance.

In making this determination, I would say this case is very close to the line but, in my view, the reasonable suspicion standard is satisfied.

[ 38 ] The warrantless search of the exterior of Mr. MacKenzie’s vehicle by the sniffer-dog was reasonable and conformed to the requirements of s. 8 of the Charter . I would grant the Crown’s appeal and remit the matter to a judge of the Court of Queen’s Bench for a trial on the evidence. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of May, A.D. 2011. “Caldwell J.A.” ___________________ Caldwell J.A. I concur. “Richards J.A.” for Klebuc C.J.S. as per authorization “Richards J.A.” Richards J.A.