Docket: 1797 -CR Her Majesty the Queen Appellant - v. -, 2011 SKCA 65

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 65 Date: 20110525 Between: Docket: 1797 -CR Her Majesty the Queen Appellant - and - Michael Robert Savage Respondent Coram: Richards, Smith and Ottenbreit JJ.A. Counsel: Douglas G. Curliss for the Appellant Darin C. Chow for the Respondent

Appeal: From: 2009 SKPC 145 Heard: October 15, 2010 Disposition: Appeal allowed Written Reasons: May 25, 2011 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Smith J.A. [ 1 ] The respondent was charged with possession of marijuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19.

The charge was based on the discovery by RCMP officers of eight pounds of marijuana in the respondent’s vehicle following a positive “hit” by a sniffer dog after the respondent had been stopped for speeding on Highway #1 near Moose Jaw.

As a result of the positive response of the sniffer dog, the respondent was arrested for possession of a controlled substance and his vehicle was searched, revealing the concealed marijuana. [ 2 ] At trial, the respondent asserted that the police officers had violated his rights under sections 9 and 8 of the Charter to be free from arbitrary detention and not to be subject to unreasonable search and seizure.

At the conclusion of a voir dire , at which two of the investigating officers testified, the trial judge found that the Crown had failed to establish that the officers had a reasonable suspicion that the respondent was in possession of drugs and that the investigative detention of the respondent and the subsequent sniffer dog search were therefore unreasonable and in violation of his Charter rights. It followed that his arrest was unlawful as was the physical search of the vehicle, which was without warrant and was therefore justified only if it could be found to be incidental to a lawful arrest.

The trial judge excluded evidence of the seized marijuana pursuant to s. 24(2) of the Charter . [ 3 ] The appeal raises two issues. First is the question of whether, on the facts as found by the trial judge, the circumstances observed by the investigating officer were objectively sufficient to justify reasonable suspicion that the respondent was in possession of contraband, so as to justify his investigation detention and the use of the sniffer dog.

If not, then the issue is whether in any case the evidence ought to have been excluded pursuant to s. 24(2) of the Charter . [ 4 ] The facts, set out in more detail in the written judgment rendered by the trial judge following the voir dire , are essentially as follows. [ 5 ] At approximately 4:30 p.m. on December 13, 2006, Cst. Wilson, riding with Cst. Sperlie, observed an eastbound truck driven by the respondent exceeding the speed limit, detected at approximately 116 kilometres an hour on radar.

These officers were performing traffic duties that day, following a program designed to reduce fatalities and deaths on the highway by detecting impaired driving and other dangerous driving as well as determining vehicle safety. They had with them Levi, a dog trained to detect the presence of drugs. [ 6 ] The officers decided to stop the respondent. As both approached the vehicle, Cst. Wilson noted that the passenger side window, in addition to the driver’s window, was down and believed the driver of the truck did not notice him approaching on the driver’s side until he was almost at the vehicle.

He observed that the interior of the vehicle was somewhat cluttered with food wrappers, drink bottles and maps, that there was a very strong, almost overpowering, odour of air freshener emitting from the vehicle and that the driver, the respondent, was extremely nervous in that his hands were shaking, he was trembling and breathing rapidly, his carotid artery was visibly pulsating and his voice was cracking. The officer noted that the vehicle was from Ontario and the driver had an address in Thunder Bay, Ontario.

The respondent told the police he was employed part-time in Alberta and was travelling back and forth for that purpose. The officers apparently thought this explanation for travel a bit odd, as it involved long distance travel for part-time work. [ 7 ] The officers testified that at this point they did not believe they had grounds to detain the respondent for further investigation, although they had noted a number of “flags” that alerted them to the possibility that the respondent might be transporting contraband.

These were: his extreme nervousness; the cluttered appearance of the interior of the truck; the somewhat odd explanation of why he was

travelling; the very strong smell of air freshener and the opened passenger side window, suggesting it could be being used to mask the smell of contraband; and the fact that he was travelling west to east, with the destination of a large urban centre. [ 8 ] Both officers returned to the police vehicle and conducted a computer check on the driver. They discovered he had a criminal record, including a conviction, approximately 18 years before, for trafficking in drugs. Cst.

Wilson testified that, while he did not believe he had sufficient grounds to detain the respondent until he learned of his criminal record, this was, in effect, the tipping point so that the accumulation of suspicious factors gave rise to a reasonable suspicion that the respondent might be transporting drugs. He returned to the vehicle and advised the respondent he was being detained for investigation that he might be transporting drugs and informed him of his right to counsel. He then indicated to Cst. Sperlie that he should deploy Levi.

When Levi made a positive hit at the rear of the vehicle, the respondent was arrested and charged with possession of drugs. [ 9 ] Two other RCMP officers arrived at the scene and one of them, Cst. Donison conducted a search of the vehicle and discovered four pounds of cannabis marijuana divided in eight half pound bags, rolled up in a sleeping bag and tucked in the box of the truck.

The officers testified that the physical search of the truck was a search incidental to the arrest of the respondent. [ 10 ] The trial judge was of the view that the factors relied upon by Officers Wilson and Sperlie did not support a reasonable suspicion that would entitle the officers to detain the respondent and deploy the sniffer dog. She noted the absence of positive indications of drug possession such as a smell of marijuana or the presence of drug paraphernalia and that the respondent was not driving a vehicle owned by a third party.

She viewed each individual factor, relied upon by the officers, taken alone, as “innocuous”, and concluded as follows: [46] I conclude that the police officer did not have a reasonable suspicion that the accused was guilty of an on-going criminal offence. The officers admitted that, alone, each of the indicators was innocuous, but taken together they are somehow elevated to satisfying the objective component of reasonable grounds for detention. Therefore, the facts of this case do not satisfy the test for investigative detention as outlined in R. v.

Mann [2004 SCC 52 , [2004] 3 S.C.R. 59] and cited with approval, albeit in obiter dicta in R. v. Nguyen [2008 SKCA 160 , 240 C.C.C. (3d) 39]. The police officer admitted that, alone, each of the indicators was innocuous, but taken together they are somehow elevated to satisfying the objective component of reasonable suspicion for detention. There must be a clear Nexus between the individual detained and ongoing criminal activity. A hunch is not good enough, even though in hindsight, the police were right.

In this case, all of the relevant evidence, considered collectively, does not satisfy the reasonable suspicion test of criminal activity. Therefore, I am satisfied the applicant has established a breach of his rights under

section 9 of the Charter . [ 11 ] In relation to the sniffer dog search, the trial judge concluded that since he was the owner and operator of the truck in question, the respondent had a reasonable expectation of privacy in its contents. She noted that the deployment of the sniffer dog involved a warrantless search and therefore, in accordance with the decision of the Supreme Court in R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, and this Court’s decision in R. v.

Bramley and Schiller , 2009 SKCA 49 , [2009] 7 W.W.R. 226, it was unreasonable unless the Crown established reasonable suspicion of criminal activity. [ 12 ] The trial judge then reconsidered the factors present that the investigating officers considered: extreme nervousness of the respondent, very strong, even overpowering odour of air freshener from the vehicle; clutter in the vehicle; the respondent’s criminal recording including a conviction for drug trafficking; and, the vehicle was from Thunder Bay, Ontario and the travel plans seemed odd.

She reiterated, twice, that the officers admitted that any one of these factors, take alone was susceptible to an innocent explanation. She noted that, “Courts have held that clutter, maps and a certain destination are not sufficient to elevate the officers’ concerns to a reasonable suspicion from a route (sic) traffic violation.” (para. 62) She concluded: [63] Can the eighteen year old criminal drug conviction elevate the indicators, which are not sufficient to detain and search, to the necessary threshold of reasonable suspicion?

I accept in some circumstances, depending on the physical, verbal and behavioural indicators observed the cumulative effect could result in the Court concluding the reasonable suspicion threshold had been met. I am satisfied on the evidence before me, on a balance of probabilities, breaches of the accused’s rights pursuant to sections 8 and 9 of the Charter of Rights and Freedoms have occurred.

The indicators relied upon, even when considered “collectively” or in their “totality”, are not sufficient to meet the test of reasonable suspicion. [ 13 ] Since the grounds for the arrest of the respondent arose from the indication by the sniffer dog of the presence of drugs, it followed that the arrest was unlawful, as was the search incidental to the arrest, which yielded the evidence of the marijuana. [ 14 ] The trial judge was of the view that the two breaches of the respondent’s Charter rights were serious, and excluded the evidence of the discovered marijuana pursuant to s. 24(2) of the Charter . [ 15 ] As this is a Crown appeal from an acquittal, it can succeed only if the Crown establishes that the trial judge erred in law in excluding the evidence at issue.

[ 16 ] It is my view that the trial judge erred by imposing an unduly high standard in evaluating the facts relied upon by the investigating officers to justify a reasonable suspicion that the respondent might be transporting illegal drugs, with the result that she misconstrued the legal significance of these factors. Three aspects of reasons given on the voir dire lead me to this conclusion. [ 17 ] First, the trial judge emphasized that in this case the officers could point to none of the “positive indicia” of drug possession such as the presence of an odour of marijuana or drug paraphernalia in plain view.

While it is not entirely clear in the judgment what weight the trial judge placed on this observation, in my respectful view, any weight on it would, in this context, be misplaced. [ 18 ] Although neither requires proof beyond a reasonable doubt, there is a significant distinction between the test of objectively reasonable and probable grounds to believe that a crime has been committed and the test of objectively reasonable suspicion that a crime is being or has been committed.

The former requires that the factors relied upon have enough probative value to establish the probability that the suspect is implicated in criminal activity. This is the threshold required for a lawful arrest and a physical search incident to arrest. The standard for reasonable suspicion, the threshold for investigative detention and for the deployment of a sniffer dog, is less stringent. This requires that the police have more than a mere hunch, based on intuition gained by experience. They must be able to point to objective facts that support the suspicion.

However, the lower standard does not require that the officers be able to point to factors sufficient to establish the probability of the crime. Reasonable suspicion is a lower standard and can be established by less evidence, with less probative value, than reasonable and probable cause. See R. v. Kang-Brown and this Court’s decisions in R. v. Bramley and Schiller and R. v. Yeh , 2009 SKCA 112 , 248 C.C.C. (3d) 125. [ 19 ] The missing factors, lamented by the trial judge, could well have provided reasonable and probable grounds for arrest.

Their absence is therefore not determinative in relation to the test for reasonable suspicion. This test would be superfluous if the police had reasonable and probable grounds for arrest. [ 20 ] The second point relates to the assessment by the trial judge of the relevance of the factors relied upon by the officers. More than once in her judgment, the trial judge indicated that, taken individually, each of the factors relied upon by the police officers was “innocuous”.

While she credited this view to the police officers, it is apparent that she was referring to the officers’ concession that each of these factors relied upon by the officers was consistent with innocent, or non-criminal activity. The officers were not suggesting that these facts were void of any probative value. [ 21 ] In my view, the trial judge erred in failing to assess or to appreciate the probative value, or the relevance, of the factors cited by the officers as grounding their suspicion. The test is not whether there might be an innocent explanation.

It is whether the presence of such a fact enhances or makes more likely the possibility of the crime at issue. In my respectful view, each of the factors relied upon by the officers was objectively relevant to and logically probative of their ultimate suspicion. [ 22 ] At the top of this list, in my view, is the strong and almost over powering smell of air freshener. While this is by no means inconsistent with innocent activity, and is therefore far from conclusive, the officers were able to point to their experience that air freshener is often used by those transporting drugs to mask the smell of the contraband.

Thus, the presence of this factor makes it more likely, than would its absence, that contraband is present. More than that, however, an innocent use of a very strong masking agent, while possible, is improbable. It is, in fact, an unusual circumstance that distinguishes the truck of the respondent from the vast majority of trucks traveling at the same time on the same highway. Accordingly, the probative value of this factor is of some considerable significance.

It is not “innocuous”. [ 23 ] The untidy appearance of the interior of the vehicle is less probative, because less unusual, but it is not devoid of probative value. Again, the officers were able to point to their experience that the vehicles of those transporting drugs over a long distance often have a “lived in” look, with evidence of eating and often sleeping in the vehicle. This is because drug couriers generally do not wish to stop for meals or hotels and leave the vehicle unattended. At the same time, of course, many travelers eat in their car and are untidy.

Nonetheless, this factor is not entirely “innocuous”. [ 24 ] Similarly, many people not guilty of criminal activity might exhibit signs of nervousness when stopped by the police, even for minor traffic violations, and some might show signs of extreme nervousness. Nonetheless, nervousness beyond what the police would normally expect, while far from conclusive, is not an irrelevant or completely innocuous factor.

It has probative value making more likely the possibility of criminal activity. [ 25 ] The travelling direction, destination, and travel explanation of the occupants are often cited by the police in these circumstances.

Clearly, the fact that a vehicle is traveling from west to east has very weak probative value. Probably half the vehicles on the road are traveling in this direction. Nonetheless, it is not entirely devoid of relevance, since this is, in the officers’ experience, the normal direction for drug traffic. That the travel destination is an urban centre demands a similar analysis. Its probative value is very weak, but not non-existent, since drugs are more likely to be destined to a large urban centre where drug use would be higher than in a small centre or rural area.

Finally, whether an explanation of the reasons for the travel or the itinerary is odd, inconsistent or unusual is often a matter of debate, but it does require some analysis by the trial judge, because it can be an indication that it is an invented story to cover a more nefarious purpose for the trip.

These factors are often of limited significance, considered alone, but may nonetheless be of some relevance when taken together with other factors considered. [ 26 ] A criminal record of a previous conviction for drug trafficking, even a record 18 years old, clearly has some probative value, making the possibility that the respondent is carrying drugs more likely than it would be had he no record at all in this regard.

That it is far from conclusive does not make it innocuous. [ 27 ] It is my view that the trial judge in this case erred in failing to give any consideration to the probative value of the facts relied upon by the officers, under the mistaken view that if they were susceptible to an innocent explanation they could be accorded no weight.

The effect of this error is to confound the threshold of reasonable suspicion with that of reasonable and probable cause. [ 28 ] Finally, it is my view that the trial judge erred in this case in failing to give appropriate consideration to the probative value of the factors when considered collectively. In para. 46, quoted above, the trial judge did refer to the significance of the factors, even when “considered collectively”.

However, this followed the comment on the officers’ view, in the same paragraph, that, considered individually, each of the indicators was innocuous, “but taken together they are somehow elevated to satisfying the objective component of reasonable grounds for detention.” (emphasis added) [ 29 ] The point of considering the factors collectively is that, to pass the threshold for reasonable suspicion, no one factor is likely to have compelling probative value, and the value of some may be very weak, having significance at all only when considered together with other factors.

In addition, while a generalized suspicion of something wrong cannot justify a search using a sniffer dog, some of these factors may operate to focus the suspicion on a particular criminal activity. The use of the word “somehow” by the trial judge in this sentence indicates that she failed to appreciate this point. [ 30 ] To establish the threshold for reasonable suspicion the police needed only to point to objectively discernible facts which support a reasonable suspicion that the respondent was transporting drugs.

In this case, on a proper consideration of the relevance and probative value of the factors relied upon by the police, it is my view that that threshold was clearly crossed. Of particular significance, and of strongest probative value, were the use of an odour masking agent and the respondent’s criminal record, for these both served to distinguish him sharply from the average traveler and to relate his nervousness to the particular activity of transporting illegal drugs. The respondent’s nervousness, insofar as it was unusual was also relevant to heighten suspicion.

The untidy interior of the vehicle and the travel destination and explanation for travel were in this particular case significantly less probative, but nonetheless relevant factors in the overall constellation of factors considered by the police officers. [ 31 ] I conclude that the trial judge erred in imposing an unreasonably high threshold to establish reasonable suspicion and failed to analyze or appreciate the relevance of the factors relied upon by the police officers.

These errors led her to err in her conclusion that the investigative detention of the respondent and the sniffer dog search were unreasonable and violated the respondent’s Charter rights. [ 32 ] As the investigative detention of the respondent and the deployment of the sniffer dog did not violate the respondent’s Charter rights, it is clear that his arrest, following the positive hit by the sniffer dog, was based on reasonable and probable grounds to believe that he was transporting illegal drugs. Indeed, that point is not challenged on this appeal. It was therefore a lawful arrest.

It follows that the search of the vehicle that uncovered the concealed marijuana, at the scene of the arrest, was a lawful search incident to arrest. Accordingly, the search and seizure of the marijuana did not violate any of the respondent’s Charter rights. [ 33 ] In light of this conclusion, it is not necessary to consider the decision of the trial judge to exclude this evidence pursuant to s. 24(2). [ 34 ] The appeal is allowed and a new trial is ordered. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of May, A.D. 2011.

“Smith J.A.” __________________________ Smith J.A. I concur. “Richards J.A.” _____________________ Richards J.A. “Ottenbreit J.A.” _____________ Ottenbreit J.A.