R. v. Dick, 2020 NLSC 104

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Dick , 2020 NLSC 104 Date : July 24, 2020 Docket : 201901G2181 Her Majesty The Queen v. Anthony Dick Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: July 14, 2020 Appearances: R. Neil Smith Appearing on behalf of the Crown Timothy P. O'Brien Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Chehil , 2013 SCC 49 ; R. v. M.(A.) , 2008 SCC 19 ; R. v. Kang-Brown, 2008 SCC 18 ; R. v. Molnar , 2018 MBCA 61 ; R. v. Bailey , 2017 NLTD(G) 16 .

STATUTES CONSIDERED: Controlled Drugs and Substances Act , S.C. 1996 c. 19 ; Canadian Charter of Rights and Freedoms , s. 11 ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 . REASONS FOR JUDGMENT Knickle, J. : INTRODUCTION [ 1 ] Anthony Dick is charged with two counts of possession of a substance for the purposes of trafficking under section 5(2) of the Controlled Drugs and Substances Act , S.C. 1996 c. 19 . The contraband was discovered after a police dog checked his luggage at St. John’s International Airport on February 3, 2018. The “sniffer” dog checked the outside of the luggage and identified the luggage as potentially containing contraband by sitting beside it. [ 2 ] Mr.

Dick alleges that the use of the sniffer dog to check his luggage violated his right to be secure from unreasonable search or seizure under

section 8 of the Canadian Charter of Rights and Freedoms , s. 11,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the “ Charter ”). While Mr. Dick takes no issue that there may be circumstances in which the use of sniffer dogs is permissible and may be in compliance with

section 8 of the Charter , the necessary circumstances to authorize the search were not present when the dog sniffed his luggage. For this reason, he now seeks to have the evidence ultimately obtained as a result of this search be excluded under section 24(2) of the Charter . [ 3 ] Many of the facts are in agreement and are summarized in the written briefs of the parties. There is also agreement on the applicable law and how these agreed facts should be characterized under the law. For example, there is no dispute that when Mr. Dick travelled from Vancouver, British Columbia to St.

John’s, Newfoundland and Labrador with two checked pieces of luggage, he held an expectation of privacy in the contents of that luggage, as per R. v. Chehil , 2013 SCC 49 , at paragraph 59 , and R. v. M.(A.) , 2008 SCC 19 . [ 4 ] Nor is there any dispute that the use of the sniffer dog as occurred in these circumstances constituted a search within the meaning of

section 8 of the Charter . There is also no dispute that the search was a “warrantless search” and, as such, the search is presumed to be unreasonable unless the Crown can establish that the search was authorized by law. A warrantless search, authorized by law, includes authorization under the common law. That is the situation here.

The use of a sniffer dog by state authorities without a warrant may be authorized under the common law if, at the time of conducting the search, the authorities possessed a reasonable suspicion that the individual to whom the search relates was involved in criminal activity. [ 5 ] The issue to be decided in these circumstances is whether the investigating officer, Inspector Steve Knight of the Royal Newfoundland Constabulary, possessed the necessary information to justify forming a reasonable suspicion that Mr.

Dick was involved in criminal activity – namely the transport of illegal substances for the purpose of trafficking. The test for “reasonable suspicion” [ 6 ] The test for whether a reasonable suspicion exists in the context of a search of luggage by way of a sniffer dog was discussed in M.(A.) , and the companion decision in R. v. Kang-Brown , 2008 SCC 18 . At paragraph 75 of Kang-Brown , the Supreme Court of Canada stated that a reasonable suspicion is something more than a ‘mere’ suspicion, but something less than reasonable and probable grounds (see also Chehil at paragraph 27 ).

The police officer must possess a subjective belief that criminal activity is occurring that is supported by “objectively verifiable” indicia ( M.(A.) at paragraph 80 ). [ 7 ] In Chehil , the Supreme Court of Canada stated that in assessing whether there is “objective and verifiable indicia ” that support the officer’s subjective belief, the court must assess the totality of the circumstances known to the officer at the time.

The court stated at paragraph 6: … the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. [ 8 ] The police need not rule out individual exculpatory factors, and the court must not assess the factors individually. The court must assess the totality of the information known to the officer(

s) at the time of the search. The court further stated at paragraph 46: … The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality… [ 9 ] The court went on to state that the type of evidence that might provide the necessary link could be based upon “the investigating officer’s training and experience”.

The court was careful to explain that an officer’s experience did not mean relying on a “hunch” or “intuition”. An educated guess may not be enough. The court stated at paragraph 47: … Evidence as to the specific nature and extent of such experience and training is required so that the court may make an objective assessment of the probative link between the constellation of factors relied on by the police and criminality… [ 10 ] The complaint here is that the investigating officer lacked sufficient objective indicia to form a reasonable suspicion that Mr.

Dick was involved in criminal activity. He may have held a subjective belief, but there was insufficient indicia that in totality could objectively verify that that suspicion was reasonable. The information known to Inspector Knight at the time of the search [ 11 ] The information on which the officer relied to ground his reasonable suspicion was detailed in the written briefs of the parties (paragraph 28 of the Respondent’s brief and paragraph 32 of the Applicant’s brief). Inspector Knight also testified as to the basis for his belief that Mr.

Dick was involved in criminal activity. [ 12 ] There were slight differences between the description of the grounds and Inspector Knight’s testimony.

Where his testimony differs from what was summarized in the written briefs, I have relied on Inspector Knight’s testimony. [ 13 ] The investigating officer testified, and as was described in the facts of both briefs, that up to the point where the searches were conducted by the sniffer dog Edge, one of the pieces of information the officer possessed was that: A known confidential source had advised another officer that: “Tony Dick flew to Vancouver yesterday and is flying back to St. John’s tomorrow night. Dick didn’t take any bags with him but will be coming back to St.

John’s with two bags”. [ 14 ] There was no dispute that in this context, the reference to “yesterday” had meant January 31, 2018. Further investigation revealed that there was a person with the name of Anthony Dick who possessed a driver’s licence in both British Columbia and Newfoundland and Labrador. [ 15 ] On February 2, 2018 the same confidential source provided further information that “Tony Dick is on his way back from Vancouver today and will be getting into St. John’s Airport shortly after midnight”. [ 16 ] Inspector Knight also satisfied himself, and there was no dispute, that Mr.

Dick possessed a prior conviction for “trafficking” from British Columbia. Inspector Knight then confirmed that there were two flights arriving in St. John’s that could have originated from Vancouver. Inspector Knight testified that from his training and experience in investigating drug trafficking, a short turnaround trip to British Columbia and back with no outbound luggage, but luggage on the return trip, was consistent with drug trafficking behaviour. [ 17 ] Inspector Knight testified that he had been a police officer for 23 years.

He had spent seven of those years investigating “drug” offences, and he was also an educational officer, meaning he taught other more junior officers about investigating such offences for two years. [ 18 ] Inspector Knight testified that British Columbia was a “known” location from where drugs were brought to Newfoundland and Labrador. The search and results [ 19 ] Inspector Knight testified that with the above information, while he did not believe he had sufficient information to arrest Mr. Dick, that is to believe on reasonable probable grounds that Mr.

Dick had, was committing or was about to commit an offence, he did believe he had sufficient grounds to form a reasonable suspicion that Mr. Dick was involved in ongoing criminal activity and could search Mr. Dick’s luggage. Inspector Knight stated he reached out to the police dog handler, and arranged to have him, along with several other officers, stationed at the airport around midnight when the two flights known to be coming from Vancouver were to arrive. The officers possessed a photograph of Mr. Dick from his driver’s licence to assist them in identifying him upon his arrival.

The dog handler took the dog who would conduct the search to the secure area in the airport where luggage was transferred and readied to be put on the luggage carousel for pick-up. Other officers were stationed in the carousel area where they could observe arriving passengers retrieving their luggage. [ 20 ] Upon arrival of the luggage from the first flight to the secure area, a search was conducted by the dog. The dog did not indicate that drugs were present. Nor was anyone who retrieved their luggage from the first flight identified as resembling Mr. Dick.

The officers waited for the second flight which arrived moments later. When the luggage from the second flight arrived at the secure area, the dog again was directed to conduct a search of the outside of the luggage by sniffing. The dog sat down beside a blue bag that had a luggage tag with the name “Anthony, NL” on it, and a phone number. Inspector Knight explained the dog communicated that it had detected drugs by sitting beside the luggage.

A second search was conducted and the dog again confirmed the presence of drugs. [ 21 ] Inspector Knight also testified that one of the officers communicated to him that they observed Mr. Dick arriving. Inspector Knight was candid that he could not be sure whether this occurred prior, at the same time or shortly after the dog was directed to sniff the luggage. The bags were allowed to go to the carousel where Mr. Dick was observed to retrieve the blue bag that had been identified by the sniffer dog. Mr. Dick also retrieved a second white hard shell bag. [ 22 ] Mr.

Dick, at that point, was arrested and detained by Inspector Knight. Mr. Dick was advised that he was being arrested for trafficking in an illegal substance and that a warrant would be sought to search his bag. Inspector Knight described that Mr. Dick was cooperative and polite. Mr. Dick was provided the opportunity, and did exercise, his right to counsel. He was taken into custody but was released pending the outcome of the search. He was escorted to his residence. He was identified by his girlfriend. The two suitcases, as well as a grey backpack, were seized and retained by the police.

A warrant was obtained and the luggage was searched. Inside the blue hard shell case were located 15 separate vacuum sealed bags of marijuana totaling 15,590 grams in weight. The white hard shell case also contained 15 separate vacuum sealed bags of marijuana weighing in total 12,830 grams. There was also located 990 grams of cannabis resin (hash). ANALYSIS

[ 23 ] As stated in Chehil , in assessing whether the evidence supports a reasonable suspicion, the constellation of facts must be “based in the evidence, tied to the individual, and capable of supporting the logical inference of criminal behavior”. I am satisfied that there is a constellation of facts that is based in the evidence, and tied to the individual Mr. Dick. At the time the police conducted the search the constellation of facts was that Mr.

Dick, who has a prior conviction for trafficking, made a short turnaround trip from Newfoundland to British Columbia, departing without luggage, and returning with two pieces of luggage. The information that he was travelling came from a known confidential source and I am satisfied the officer was entitled to rely on this information. [ 24 ] The difficulty is with the third criteria: that the constellation is capable of supporting a logical inference of criminal behavior. I am not satisfied the Crown has established there is a logical inference of criminal behavior from this constellation of facts.

The only evidence that explicitly connected Mr. Dick to the transportation of drugs was the fact that he possessed a prior conviction for trafficking. The confidential informant made no reference to drugs and there was no other evidence indicating that Mr.

Dick was transporting drugs. [ 25 ] The evidence led by the Crown to establish the link between the conduct and criminal behavior here is Inspector Knight’s testimony that from his 23 years as a police officer and seven years in drug investigations, the short turnaround trip to Vancouver, departing with no bags and returning with bags, was indicia of drug trafficking.

Unfortunately, there was no explanation as to how or why this experience and training supported the inference that this conduct is consistent with drug trafficking. [ 26 ] In my view, further evidence was required beyond the mere statement that Inspector Knight was an experienced investigator of drug offences to justify drawing the inference that the conduct was consistent with criminal behavior.

Put another way, I am not satisfied that evidence solely that the officer spent seven years in drug investigations, and two years as an educational officer, without more, is adequate to explain why the link between the conduct and criminality is an inference that can be logically drawn in the circumstances. [ 27 ] In Chehil , like the circumstances here, there was reliance by the police on the fact that the accused had behaved in a particular way: he had purchased a one way ticket and paid in cash.

At paragraph 41 of Chehil the Court stated: In this case, the profiling alleged consisted of a set of factors that the officers had been taught to look for and had learned through experience to look for in order to detect drug couriers.

Whether or not these factors give rise to reasonable suspicion will depend upon a police officer’s reasons for relying on specific factors, the evidence connecting these factors to criminal activity, and the entirety of the circumstances of the case. [ 28 ] Chehil speaks of “specific experience and training” in reference to an officer’s basis for forming a belief based on a set of factors. At paragraph 64 of Chehil , the court reviewed the evidence from the officers explaining why the conduct in those circumstances, which was similar to the conduct here, was consistent with drug trafficking.

Unlike the circumstances here, the police elaborated as to why they believed this conduct was consistent with criminal activity. [ 29 ] There was no such evidence here. It may have been an easy matter to explain, but unfortunately the necessary evidence was not elicited from the officer. [ 30 ] Here, the testimony was sparse and general as to Inspector Knight’s training and experience. The belief that there was a link between the conduct and the trafficking was little more than one sentence, that based on his experience the circumstances were consistent with drug trafficking.

In my view, this kind of assertion without more is insufficient to be satisfied the belief was objectively verifiable. There is no ability to scrutinize the assertion, as required by Chehil , because there is nothing to explain why or how his experience and training underpins the officer’s belief. [ 31 ] It is not for the Court to assume, or worse speculate, that conduct such as a short turnaround trip by Mr. Dick to British Columbia, departing without luggage and returning the next day with luggage, is consistent with criminality.

These circumstances are equivocal without an evidentiary basis beyond the assertion that the conduct is consistent with criminal activity. [ 32 ] In contrast for example, in R. v. Molnar , 2018 MBCA 61 , similar circumstances resulted in a search, but information received by the officers included that the offender was travelling with luggage emanating an odour of “marijuana”. Likewise, in R. v. Bailey , 2017 NLTD(G) 16 , the officer not only testified how the manner of the packaging he observed was consistent with drug trafficking, an odour consistent with drugs was also emanating from the package.

This is not to suggest that it will always be necessary for the officer to have information that specifically identifies drugs, such as an odour. But in these circumstances, where there is nothing beyond the conduct to support that drugs were being trafficked, in my view the Crown was obliged to provide further evidence as to why and how the police officer’s training and experience supported that the conduct in these circumstances was consistent with drug trafficking.

The burden lay with the Crown to call the necessary evidence to overcome the presumption that the search was not authorized by law and was reasonable. [ 33 ] In the absence of evidence explaining why the conduct was consistent with drug trafficking, in my view the totality of the circumstances are insufficient to support that there was an objectively verifiable basis to believe Mr. Dick was so involved in criminal activity.

It was Inspector Knight’s subjective belief, and he was an experienced officer, but without evidence explaining why and how his training and experience led him to this belief, there is no objective evidence to support why the belief was reasonable. [ 34 ] For these reasons I am satisfied the Applicant has established that at the point the dog conducted the sniffer search of Mr. Dick’s luggage, there was insufficient evidence to support a reasonable suspicion that Mr. Dick was involved in criminal activity. The search by the use of the sniffer dog was therefore not authorized by law, and not in compliance with

section 8 of the Charter . The Crown has not overcome the presumption that the search was unreasonable. [ 35 ] I will now hear arguments as to whether or not the evidence should be excluded under section 24(2).

_____________________________ Frances J. Knickle Justice