R. v. Schrenk (C.A.), 2010 MBCA 38

Citation: R. v. Schrenk (C.A.), 2010 MBCA 38 Date: 20100426 Docket: AR 07-30-06739 IN THE COURT OF APPEAL OF MANITOBA Coram : Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Richard J. Chartier B E T W E E N : HER MAJESTY THE QUEEN ) S. E. Pinx, Q.C. ) for the Appellant Respondent ) ) C. J. Mainella and ) S. C.

Cawley - and - ) for the Respondent ) ) Appeal heard: CLINT ARTHUR SCHRENK ) June 2, 2009 ) (Accused) Appellant ) Judgment delivered: ) April 26, 2010 STEEL J.A. 1 I can introduce this case in no better fashion than to quote from the introductory paragraph of the Crown’s factum. “Eighteen minutes of interaction between police and a motorist on a cold winter’s day has kept the hearth of the justice system burning for over five years.

This appeal is another case about finding the balance between individual liberty and society’s interest in the effective investigation of crime.” 2 In this appeal, the court is asked to consider the scope of police powers during a routine traffic stop and the common law powers of police to investigate possible criminal activity revealed during the course of such a stop. The principal legal issues on this appeal are: (1) the parameters of roadside screening of motorists; (2) psychological detention; (3) investigative detention; and (4) the use of sniffer dogs.

BACKGROUND 3 In January 2004, Constables Broda and Karsin of the Winnipeg Police Service (the WPS) were on general patrol just outside the perimeter highway to the west of Winnipeg in a marked police vehicle. Karsin is a member of the Canine Unit of the WPS. His dog Jazmin, a specialty dog trained to detect drugs, was in the back of his vehicle. 4 The police officers observed a car with Alberta rental plates being driven by the accused. They knew from experience that

these cars are sometimes driven by suspended or unlicenced drivers. They decided to stop the car to determine whether the driver had a valid licence, the vehicle was properly registered and the rental documents were in order. The accused pulled over to the side of the highway while Broda approached the passenger side of the vehicle. Karsin remained in the police car. 5 Broda asked for the accused’s driver’s licence and insurance for the vehicle. His interaction with the accused lasted three to four minutes. During that period of time, the officer made a number of observations which caused him some concern.

Those observations consisted of the following facts. 6 The accused had a British Columbia driver’s licence, and the contract for the car revealed that it had been rented approximately 24 hours earlier in Calgary and was required to be delivered to the Montreal airport less than 24 hours later. When asked if he was still living in British Columbia, the accused said that he was, but explained that he had flown to Calgary from Vancouver and rented the car to drive to Toronto for a little holiday to visit relatives.

When asked why he would fly from Vancouver to Calgary, but then drive to Toronto, the accused explained he could not afford the flight from Vancouver to Toronto and his family was going to pay for him to get back to Vancouver.

The rental agreement set out the total cost of the one-way car rental to be $235.90 per day or $1,140 per week before taxes, which was considerably more than a one-way flight from Vancouver to Toronto. 7 In response to Broda’s questions about his occupation, the accused said he worked for “the ministries,” which Broda interpreted incorrectly to mean a church ministry. (It turned out the accused worked for the British Columbia government.) 8 As well, inside the car the officer noticed various food wrappers, an open box of bottled water, some other drinks, two cell phones on the console and a large suitcase in the back seat. 9 As a result of this interaction, Broda became suspicious that the accused was lying to him.

The purported purpose of the trip to see family in Toronto on a holiday, who would then pay for him to get back to Vancouver, had no relation to delivering the vehicle in less than 24 hours to Dorval airport in Montreal. Also, Broda knew that one could fly from Vancouver to Toronto for far less than it would cost to fly from Vancouver to Calgary and then rent a car to drive to Toronto/Montreal, incurring further incidental travel expenses such as gas. 10 He also wondered why a suitcase would be in the back seat of a vehicle which he knew to have a large trunk.

As well, the timing of the trip suggested that the accused was travelling very quickly and could not have stopped, except very briefly. The officer knew from his training and experience that this is a practice used by persons transporting contraband. Broda went back to the police car and did a computer check, but that revealed nothing. He discussed the situation and his observations with Karsin. 11 Karsin then attended to the passenger’s side of the car, observed the items inside the car that Broda had previously mentioned and engaged the accused in some conversation.

He confirmed with the accused that he was travelling to Toronto as opposed to going to Montreal. He then returned the driver’s licence and rental agreement to the accused. He noticed that the accused’s hands were shaking violently when he handed the papers back to him, to such an extent that the accused was unable to put his driver’s licence back in his wallet. At that point, eight minutes had passed from the time the accused was first stopped. 12 The following exchange then took place. Karsin said to the accused, “You’re free to leave, Mr.

Schrenk, have a safe trip.” The accused replied, “Thanks,” as he was trying to get his driver’s licence back in his wallet. When he could not do so, he put the licence on the console. Karsin waited eight to ten seconds and then asked the accused, “Mr. Schrenk, could I ask you a couple of questions?

You don’t have to answer if you don’t want to.” The accused replied, “Yeah, sure,” but did not make eye contact. 13 Karsin then asked the accused whether there was a big drug problem in British Columbia, and the accused answered, “I wouldn’t know anything about that.” Karsin observed the accused to look away and to sit on his hands while answering the question. 14 At this point, Karsin believed that he had reasonable grounds to detain the accused for a drug investigation based on the totality of the circumstances.

Karsin testified that the accused’s answers and mannerisms reinforced his suspicions that he was involved in illegal activity and that based upon the totality of the indicators, he believed that he was not being truthful and was involved in transporting drugs. 15 Karsin asked the accused to leave the car and notified him he was being detained for a drug investigation. He explained his right to contact a lawyer, to which the accused answered, “No, I don’t think so.” He was then read the police caution advising the accused of his right to remain silent.

Karsin asked the accused if he could search the vehicle, but the accused did not consent. When told that a drug dog would be deployed, Karsin observed the accused looked pale, panicked and unsteady on his feet. Before deploying the sniffer dog, Karsin called Constable Walkden to the scene to assist. Walkden arrived within three minutes and took custody of the accused in his police car without handcuffs. 16 The sniffer dog was then deployed around the car. The dog is trained to recognize the smell of several different illegal drugs, including marihuana.

When she came to the area near the trunk, she sat down, which is her signal that she detects the presence of drugs. Walkden then arrested the accused, advised him of his right to counsel and read the standard police caution.

After the arrest, Broda searched inside the trunk of the car and located three bags, each containing marihuana in vacuum-sealed packages amounting to a total of approximately 81.6 pounds and valued at between $89,100 and $121,500. 17 Karsin estimated that from the time the accused was stopped by the officers until he was placed under arrest, 18 minutes elapsed. 18 The accused was convicted after trial of possession for the purpose of trafficking after his application to have the drug evidence excluded for alleged violations of ss. 7 , 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms (the Charter ) was dismissed.

A conditional sentence of two years less one day and a $10,000 fine were imposed for the offence.

THE TRIAL JUDGE’S REASONS 19 The trial judge held that the accused was not arbitrarily detained when he was stopped pursuant to the provisions of The Highway Traffic Act , C.C.S.M., c. H60 (the HTA ). Broda’s questions were objectively linked to issues relevant to HTA concerns. As well, the trial judge held that the accused was not arbitrarily detained when questioned by Karsin. 20 The trial judge also found that the accused’s s. 10(

b) Charter rights were not violated during this time period. The court relied on R. v. Orbanski; R. v. Elias , 2005 SCC 37 , [2005] 2 S.C.R. 3, which held that for the duration of a detention under s. 76.1(1) of the HTA , an accused’s right to counsel is suspended. As well, the accused’s right to silence under s. 7 of the Charter was not violated. 21 The trial judge held that the accused was given an opportunity to call his lawyer, to which the accused said he did not know his lawyer’s telephone number.

Karsin asked if he wanted to call his lawyer or Legal Aid, to which the accused replied he did not think so. 22 The trial judge also held that the accused was not psychologically detained when Karsin asked him a question after he was told that he was free to go and that Karsin had reasonable grounds to detain the accused for investigative purposes. 23 Finally, she held that, in the totality of the circumstances, the dog sniff was not a breach of s. 8 of the Charter . She found that this was not a search within the meaning of s. 8 , nor was there anything inherently unreasonable in the police action.

I should point out that the trial judge’s decision was made before the Supreme Court of Canada decisions in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, and R. v. A.M. , 2008 SCC 19 , [2008] 1 S.C.R. 569. 24 The appeal focusses solely on the trial judge’s determination of whether various Charter breaches occurred. I conclude, for the reasons set out below, that the appeal must be dismissed. These cases ultimately turn on the facts.

I believe the trial judge was correct when she held that the accused was initially the subject of a routine traffic stop, was later detained on the basis of a reasonable suspicion and was subject to a dog sniff search, again on the basis of a reasonable suspicion. ARGUMENT OF PARTIES 25 It is the position of the accused that although the initial stop may have been lawful, the questions asked by Broda and Karsin went beyond legitimate highway safety concerns and turned into a drug investigation. At that point, the accused was unlawfully detained and was not given his right to counsel in breach of the Charter .

In fact, although Karsin told the accused he was free to go and did not have to answer any questions, the accused felt that he had no choice and was therefore psychologically detained at that point as well. 26 Moreover, the accused’s answer to Karsin’s question about a drug problem in British Columbia did not give rise to reasonable grounds to detain.

While Karsin may have had a subjective belief that he had a reasonable suspicion, the reasonable grounds must be both subjectively and objectively reasonable. 27 Lastly, the accused argues that the dog sniff was a breach of the accused’s right to be free from unreasonable search contrary to s. 8 of the Charter . 28 The Crown’s position is that there were three phases to the brief roadside encounter under appeal. In phase one, the accused was detained for a traffic stop that was lawful.

The routine roadside questioning did not trigger the right to counsel or the right to silence. 29 In phase two, the police ended the initial detention before pursuing their suspicions of crime. As the accused was not detained, any discussion with police did not trigger the right to counsel or the right to silence. 30 In phase three, the police decided that their reasonable suspicions gave them cause to lawfully detain the accused for a drug investigation.

This reasonable suspicion also authorized the use of the sniffer dog to sniff the outside of the accused’s car without becoming an unreasonable search. 31 Finally, the totality of circumstances, including the drug dog indication of the presence of narcotics in the car, provided reasonable grounds to arrest the accused and accordingly lawful authority to search his car for evidence incidental to the arrest. 32 In the event I find that a Charter breach did occur at the roadside, the Crown submits that the appeal should nevertheless be dismissed as the exclusion of the evidence would bring the administration of justice into disrepute.

WAS THE ACCUSED UNLAWFULLY DETAINED WHEN HE WAS STOPPED AS A RESULT OF A RANDOM TRAFFIC STOP? 33 The HTA provision relating to the detention of vehicles which was in force at the time provided: Peace officer may stop vehicles 76.1(1) A peace officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop, and the driver of the motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as such, shall immediately come to a safe stop and remain stopped until permitted by the peace officer to depart.

34 It is well accepted that random traffic stops pursuant to highway traffic legislation are a violation of s. 9 of the Charter , but ultimately reasonably and demonstrably justified under s. 1 so long as they are limited in time and scope to the purpose for which they are permitted. 35 So, the questions that may justifiably be asked on such a traffic stop are those related to driving and highway safety. Any further, more intrusive procedures can only be undertaken upon reasonable suspicion of criminal activity.

The court must be alert to the danger of allowing these traffic stops to be turned into a means of conducting either an unfounded general inquisition or an unreasonable search. See R. v. Thomsen , 1988 CanLII 73 (SCC) , [1988] 1 S.C.R. 640, R. v. Ladouceur , 1990 CanLII 108 (SCC) , [1990] 1 S.C.R. 1257, and R. v. Mellenthin , 1992 CanLII 50 (SCC) , [1992] 3 S.C.R. 615. 36 According to the Supreme Court, appropriate routine police interaction with a motorist during traffic stops will have these typical characteristics.

They will be short in duration, requiring the production of only a few documents, and will be of minimal inconvenience to the motorist. They will not constitute a danger to the safety of the motorist. There will seldom be reason to leave the roadside and attend to a police station and usually no need to intrusively search the driver or the vehicle. See Orbanski /Elias and Ladouceur . 37 The interaction in this case between the police officers and the accused during the initial part of the traffic stop had all of these characteristics.

The traffic stop was in a public place in the middle of the day, with no coercive measures taken by the police. Broda’s three to four minutes of polite questioning was directed to the information relayed to him by the accused about the vehicle and the accused’s operation of it. 38 However, the accused argues that some of the questions posed by Broda relating to the accused’s “mode of travel” were not related to highway safety, but rather to the investigation of a possible criminal offence under the Criminal Code or the Controlled Drugs and Substances Act .

The accused submits that Broda’s questioning shifted in focus from matters related to the HTA to a possible criminal offence and therefore became an arbitrary detention pursuant to s. 9 of the Charter . 39 In evaluating the interaction between the accused and the police officers during that initial traffic stop, one must allow some flexibility. In Orbanski /Elias , the Supreme Court recognized that it is impossible and impractical to predict all forms of interaction between motorists and police (see para. 45).

Moreover, given a correct statement of law, the factual and very case-specific determination of the nature of the questions in the case at hand is reviewable only for palpable and overriding error. See R. v. Grant (I.M.) , 2009 MBCA 9 , 236 Man.R. (2d) 54 at para. 25 , and R. v. Moquin , 2010 MBCA 22 . 40 I agree with the trial judge that the initial detention arising from the random traffic stop was lawful and justifiable under the Charter .

The police questions related to driver licencing, vehicle registration and permission to have care and control of the vehicle were lawful since they related to the purpose of the stop. See, for example, R. v.

Mouland , 2007 SKCA 105 , 53 M.V.R. (5 th ) 11 at para. 15 , where the court held that questions related to ownership of the vehicle, checking for sobriety, licences, insurance and mechanical fitness were appropriate, while questions about previous convictions were not. 41 In particular, I do not think Broda’s questions regarding the nature of the accused’s journey went outside the permissible parameters of traffic stop questioning. It is reasonable for such questioning to include particulars of a trip, such as destination, route and purpose.

Given that the rental car was from Alberta and the accused indicated his residency was in British Columbia, it was reasonable for the officer to establish the residency of the driver to ensure proper licencing, an area rationally connected to road safety. The answers he received legitimately raised his suspicions, leading to other questions. Like the officer in R. v. Belnavis (1996), 1996 CanLII 4007 (ON CA) , 107 C.C.C. (3d) 195 at 202-6, 225-26 (Ont.

C.A.), Broda was entitled to reasonably ascertain what he was dealing with given the accused’s strange answers and the discrepancy between his driver’s licence and the rental agreement. See also, R. v. Casselman (C.H.) , 2002 MBQB 247 , 167 Man.R. (2d) 305 at para. 7 , where the court equated asking to see the rental agreement of a car on a traffic stop to checking the insurance on a vehicle, both being valid questions on a traffic stop. And see, R. v. Pearson , 2009 ABQB 382 , 9 Alta.

L.R. (5 th ) 319, where the court held that exploratory questions about where the accused was going and the nature of his travel plans were part of legitimate questioning in a traffic stop. 42 In addition, I do not see any concerns raised by the visual observations made by the officers during the traffic stop of items which were in plain view, such as the large suitcase and the lived-in appearance of the vehicle. See Mellenthin , at pp. 623-24.

No Charter concern arises merely from police investigating criminal activity revealed by the traffic stop so long as the limits of police powers for road-safety purposes are respected. See Brown v. Durham Regional Police Force (1998), 1998 CanLII 7198 (ON CA) , 131 C.C.C. (3d) 1 at paras. 31-33 (Ont. C.A.), and R. v.

Kaddoura (M.T.) , 2009 BCCA 113 , 267 B.C.A.C. 185 at para. 23 . 43 Information gained by police from such roadside questioning can be used as an investigative tool by police to confirm or reject an officer’s suspicions so long as the questioning itself related to the vehicle or its operation and was not a general inquisition asking questions such as whether, for example, the accused took drugs or had any criminal convictions.

See Orbanski / Elias , at para. 58 . 44 There is no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest. See R. v. Byfield (2005), 2005 CanLII 1486 (ON CA) , 193 C.C.C. (3d) 139 at para. 15 (Ont. C.A.), and Mouland .

The police can use a legitimate traffic stop to avail themselves of the opportunity to further some other legitimate police interest, and the gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. 45 The accused argues further that even if the questions were objectively permissible, the officers subjectively did not believe they were asking the questions in furtherance of highway safety. He submitted that police are only permitted to utilize their powers under s. 76.1(1) of the HTA for legitimate HTA concerns.

If the police were actually investigating a possible crime, then that takes the officers’ actions outside the ambit of s. 76.1(1) of the HTA . 46 First, the evidence does not support the accused’s contentions that the police were not interested in highway safety. Broda

testified he was trying to establish the accused’s place of residence. Second, as was stated above, the fact that the questioning may have a secondary purpose does not make the highway stop unlawful so long as the questioning is restricted appropriately. A stop to check a driver’s licence is lawful even if there was a secondary purpose of drug investigation. As was stated by the court in R. v. Madill , 2005 BCSC 1564 , a case with very similar facts (at para. 32): ….

The additional aim of taking advantage of a legitimate traffic stop to take note of any clues of illegal transport of drugs did not in my view constitute the stop as one for the purposes of general investigation or turn it into an “unfounded general inquisition.” …. 47 Police are not required to give s. 10(

b) Charter warnings during a brief roadside stop made for road-safety purposes, again so long as the questioning is related to the vehicle or its operation. The exercise of the rights guaranteed by s. 10(

b) is incompatible with the brief roadside detention contemplated by such a stop. See R. v. Harris , 2007 ONCA 574 , 225 C.C.C. (3d) 193 at para. 47 . As well, the accused’s right to silence was not infringed by Broda’s roadside questioning. In Orbanski / Elias , at para. 48 , the Supreme Court held that in the roadside screening context, a claim of a violation of the right to silence is nothing more than a reassertion of the right to counsel in a different form. 48 In

summary, from the time the accused was pulled over until the time his documents were returned to him and he was told by Karsin that he was free to go, he was detained under the authority of s. 76.1(1) of the HTA and consequently any breach of s. 9 was justified by s. 1 of the Charter . WAS THE ACCUSED PSYCHOLOGICALLY DETAINED? 49 After Karsin confirmed with the accused that he was travelling to Toronto and not Montreal, he told him he was free to go and wished him a safe drive.

He waited a few seconds – he estimated eight to ten – and then asked the accused if he could ask a few questions, which he told the accused he did not have to answer if he did not want to. The accused said, “Yeah, sure.” Karsin then asked, “Is there a big drug problem in B.C.?” His responses, both verbal, and his mannerisms, as detailed earlier, were the tipping point in Karsin’s decision to detain him. 50 What was the legal nature of the situation after the accused was told he was free to go until the time Karsin told him he was being detained upon suspicion of transporting drugs?

Was this simple questioning between police and citizen or was the accused being psychologically detained in breach of s. 9 of the Charter ? 51 Detention under s. 9 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. A detention must exist before the right to counsel or the right to silence is triggered.

While it is usually clear whether someone is being physically restrained, the same cannot always be said about psychological detention. 52 When considering interactions between police and citizens, it is important to differentiate between questioning and detention. Not all communications between police and citizens will reach the threshold of psychological detention, even when a person is under investigation for criminal activity, is asked questions or is physically delayed by contact with the police.

There is no presumption of detention based merely on questioning occurring between police and a citizen. 53 The law with respect to psychological detention was recently clarified by the Supreme Court of Canada in Grant and R. v. Suberu , 2009 SCC 33 , [2009] 2 S.C.R. 460.

In Grant , McLachlin C.J.C. and Charron J., in joint reasons, described psychological detention as occurring “either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” (at para. 44). 54 This definition of psychological detention gives the police leeway to engage members of the public in non-coercive, exploratory questioning without necessarily triggering their Charter rights relating to detention.

It does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Rather, whether a reasonable person concluded that they no longer had the freedom to choose whether or not to cooperate with the police becomes an objective determination, made in light of the circumstances of an encounter as a whole.

In cases such as the one at bar, where there is no physical restraint or legal obligation, a detainee-centred, objective inquiry must be undertaken as to whether there was psychological detention. 55 To determine whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court in Suberu , at para. 25 , details some of the factors that may be considered.

They are as follows: (1) the circumstances giving rise to the encounter as would reasonably be perceived by the individual, including whether the police were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence or singling out the individual for focussed investigation; (2) the nature of the police conduct, including the language used, the use of physical contact, the place where the interaction occurred, the presence of others and the duration of the encounter; and (3) the particular characteristics or circumstances of the individual where relevant, including age, physical stature, minority status and level of sophistication. 56 In considering the above factors, I agree with the trial judge’s comments with respect to this issue (at paras. 49-50): Turning to the case at hand, I readily come to the conclusion that the accused was not psychologically detained as he alleges.

There is no

evidence of the accused’s subjective belief, and the objective evidence does not support such a conclusion. Karsin had clearly told the accused that he was free to go and wished him a safe trip. He also prefaced the question with the advice that the accused was not required to answer it. The manner in which Cst. Karsin described this exchange was pleasant and conversational.

The question was not in any way accusatory or even related to an offence; it was obviously a technique to allow Karsin to assess the accused’s reaction and demeanour, which was part of his consideration in deciding to detain him, rather than obtain specific information. In addition, the fact that minutes later the accused refused Cst.

Karsin’s request to search his vehicle, told Karsin that he knew his rights, and wanted clarification as to the effect of being detained for investigative purposes, all suggest that the accused understood what was being said, and was a relatively sophisticated individual. 57 In this case, while the accused was being singled out since he had been stopped, there was no evidence of a demand or direction by Karsin. Karsin’s uncontradicted evidence was that he asked permission of the accused before asking him a question. He made no demands or directions. His tone and voice were non-threatening.

Karsin’s intent was to release the accused if he did not cooperate. The interaction was brief and minimally intrusive. 58 Moreover, the accused in this case was mature and sophisticated. He was employed by the Government of British Columbia. As indicated by the trial judge, he knew he could say no to the police since he later on refused to consent to a search of his vehicle.

It is also important to note that all of the accused’s documents had been returned to him by the police officer at this point in time. 59 There have been several cases where police officers have questioned individuals after they were told they were free to go. In R. v. Bottle , 2004 BCSC 1667 , this factor was taken into account in finding that there was no psychological detention. The same is true of a similar factual scenario in R. v.

Delorme (J.E.) , 2003 SKPC 73 , 234 Sask.R. 193, where, after telling the accused he was free to go, the officer asked him “whether drugs were a problem where he came from” (at para. 19). 60 I am aware that in Kang-Brown , Binnie J. questioned the ingenuousness of the statement “you are free to go” coming from a police officer. However, in the end, he accepted the trial judge’s assessment of the statement in the circumstances of that case.

Binnie J. stated (at para. 85): “While the statement ‘you’re free to go at any time’ might seem a bit disingenuous, the trial judge found that even if ‘few people exercise their right of choice by walking away, some do’ ....” I would say the same of this case. The accused had had all of his documents returned, and he need not have answered the questions.

Indeed, his answer to the drug question was, “I wouldn’t know anything about that.” 61 Moreover, while the accused’s testimony on the voir dire is not legally required to establish detention, it is often important to an accused meeting their onus of proving psychological detention. See Suberu , where the court stated (at para. 28): …. The onus is on the applicant to show that in the circumstances he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application.

However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. See also, R. v. Lewis , 2007 NSCA 2 , 217 C.C.C. (3d) 82 at para. 26 . Other than the accused’s nervousness, there was little evidence here to suggest the accused reasonably believed he had no choice. 62 It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed.

Since detention issues are primarily fact-driven, the standard of review is strongly deferential. See R. v. Vandenbosch (K.A.) , 2007 MBCA 113 , 220 Man.R. (2d) 125 at para. 14 . Given this standard of review, I see no reason to interfere with the lower court’s findings. The trial judge’s decision that the accused had failed to prove on a balance of probabilities that he was psychologically detained was reasonable. Certainly there is nothing to indicate that in coming to her conclusion there was palpable and overriding error so as to justify appellate intervention.

DID THE POLICE HAVE REASONABLE GROUNDS TO DETAIN THE ACCUSED FOR INVESTIGATIVE PURPOSES? 63 After the accused replied to Karsin’s questions, the police officer testified that based on the totality of the circumstances, he believed that he had reasonable grounds to detain the accused for a drug investigation.

Therefore, he asked the accused to leave the car and notified him he was being detained for a drug investigation. 64 At that point in time did the police officer have a reasonable suspicion that the accused was involved in criminal activity so as to justify an investigative detention? 65 The present state of the law concerning investigative detentions may be traced back to the decision of the English Court of Criminal Appeal in R. v. Waterfield , [1963] 3 All E.R. 659 . That case suggested a two-stage analysis for determining the scope of common law police powers.

In circumstances where police conduct interferes with an individual’s liberty or property, it is necessary to first consider whether the conduct comes within the scope of a duty imposed on the officer by law. If it does, the analysis may move on to the issue of whether the conduct involved a justifiable use of powers associated with the duty or, to use the words of the Supreme Court in Dedman v.

The Queen et al. , 1985 CanLII 41 (SCC) , [1985] 2 S.C.R. 2, whether the power in question is “reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference” (at p. 35). 66 The investigative detention concept was developed further by the Court of Appeal of Ontario’s decision in R. v. Simpson

(1993), 1993 CanLII 3379 (ON CA) , 79 C.C.C. (3d) 482. In its decision, the Court of Appeal employed Waterfield and U.S. “stop and frisk” jurisprudence to confirm a police power to conduct investigative detentions. However, it said such detentions could be justified only if the detaining officer had “articulable cause” and the stop was reasonable in the circumstances. 67 In R. v. Mann , 2004 SCC 52 , [2004] 3 S.C.R. 59, and recently affirmed in R. v.

Clayton , 2007 SCC 32 , [2007] 2 S.C.R. 725, the Supreme Court generally endorsed the approach taken in Simpson and recognized a common law authority for police acting in the scope of their duties to lawfully detain an individual for an investigation in conformity with s. 9 of the Charter . This however is not a general police power to detain individuals whenever that detention will assist police. The Charter requires that certain criteria be met.

As the court confirmed in Clayton and in Grant , if the detention is lawful at common law because the officer had reasonable grounds to detain, then the detention is not arbitrary under s. 9 of the Charter . See Grant , at paras. 55-56. 68 The second component of a lawful investigative detention is the extent to which the interference with individual liberty is necessary in the performance of the police officer’s duty and the nature and extent of the interference itself.

Given the extent of the risk, the nature of the stop should be no more intrusive of liberty interests than is reasonably necessary to address the risk. See R. v. A.M. , at paras. 33-39 , and Clayton , at para. 31 . Accordingly, investigative detention must typically be brief and not become a de facto arrest.

As Justice Doherty explained in Simpson , lawful investigative detentions typically arise from the dynamics of unpredictable street encounters that escalate, not from mature investigations. 69 Thus, the test may be summarized as reasonable grounds to suspect the individual’s involvement in recent or ongoing criminal activity. Detention on the basis of reasonable suspicion is the minimum threshold for interference with a person’s liberty on freedom of movement. 70 This standard set out by the Supreme Court in Mann has both an objective and subjective component.

The totality of the circumstances existing at the time the detention commenced is to be considered as to whether the suspicion was reasonable. Although each factor giving rise to reasonable suspicion may appear innocent when viewed by itself, a combination of factors viewed together may warrant further investigation. Each fact or indicator ought not to be separated out for isolated assessment where the police are involved in fluid and fast-paced law enforcement, making quick decisions on limited information. As more fully described by the court in Mann (at para. 34 ): ….

The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. …. 71 The accused in this case argues that the police officer did not have a subjective belief that there were reasonable grounds to detain him until he answered the question asked of him related to the drug problem in British Columbia. Before that, the officer said he would not have detained him.

It was only on answering that question that the officer changed his subjective belief. Consequently, the accused argues, since the objective component of the test is constrained by the subjective bases of the officer’s belief, the second part of the test has not been met and the detention was not lawful and consequently was arbitrary and in breach of s. 9.

Moreover, whatever the subjective belief of the officer, it is argued, the answer to the drug question cannot objectively give rise to a reasonable suspicion. 72 I would agree with the accused that the simple answer to that question (“Is there a big drug problem in B.C.?”) by itself would not be sufficient to raise a reasonable suspicion. However, that was not the evidence. 73 First, it is true that the police officer in the case at bar initially told the accused that he was free to go, but then proceeded to ask him a general question about drugs, after which he decided to detain the accused.

However, that one question and answer were not the only subjective grounds upon which the officer relied in deciding to detain the accused. The officer testified, and the trial judge accepted, that it was not just the question and answer sequence that he relied on to determine whether there was a reasonable suspicion of criminal activity, but that question and answer layered upon everything that preceded it.

So, for example, the officer testified that he asked the accused “the drug question” because of a “bunch of indicators.” Then when the accused answered, “I wouldn’t know anything about that,” the officer observed not just the verbal response, but the body language that accompanied it, which included lack of eye contact and hands shaking violently. Finally, the officer testified several times that his decision to detain in the end was based on “the totality of, the indicators that I had observed and heard from Mr.

Schrenk,” “[i]t was based on the totality of the circumstances” and “[y]ou have to look at the whole picture.” 74 Second, it is correct that whatever the subjective belief of the officer, that belief must be objectively reasonable. However, the objective component is again dependent on the totality of the circumstances, not just on the subjective belief of the officer.

As the majority in Clayton explained (at para. 30 ): The justification for a police officer’s decision to detain … will depend on the “totality of the circumstances” underlying the officer’s suspicion that the detention of a particular individual is “reasonably necessary”. …. 75 Upon review, a court is entitled to look at all the circumstances to determine whether there was objectively reasonable suspicion, even if the officer did not articulate all those circumstances. So, for example, in R. v. Nesbeth , 2008 ONCA 579 , 238 C.C.C. (3d) 567, leave to appeal to S.C.C. refused, [2009] S.C.C.A.

No. 10 (QL), Rosenberg J.A. of the Ontario Court of Appeal held (at para. 20): … [T]he officers objectively had reasonable grounds to detain the respondent, even though none of them articulated their subjective belief as to the grounds. While it would have been helpful had the officers expressly testified to their grounds for detaining the respondent, the court is entitled to draw reasonable inferences from the circumstances. ….

76 The Saskatchewan Court of Appeal faced similar facts to those in the case at bar in the case of R. v. Bramley , 2009 SKCA 49 , 67 C.R. (6 th ) 293. In Bramley , the court indicated that all of the relevant evidence should be considered collectively in order to determine whether a reasonable suspicion existed. 77 The trial judge was entitled to and did look at the totality of the circumstances to determine whether there was an objective basis to found the reasonable suspicion.

She listed the totality of the relevant circumstances, including: the nonsensical explanation provided by the accused for his unusual travel plans; the police officer’s knowledge that drug transporters try to avoid any demonstrated connection to known source provinces like British Columbia and that rental cars are often used to transport illegal drugs; the fact that the vehicle appeared lived-in; the accused’s physical demeanour – lack of eye contact, nervousness; and the officer’s past experience and training.

A judge is entitled to consider a police officer’s training and experience in determining objective reasonableness. What may appear to be innocent to the general public may have a very different meaning to an officer experienced in drug operations. See R. v. Rajaratnam , 2006 ABCA 333 , 214 C.C.C. (3d) 547 at para. 25 . 78 As this court indicated in R. v. Drury (L.W.) et al. , 2000 MBCA 100 , 150 Man.R. (2d) 64, many indicators of potential drug couriering are innocent standing alone. So, for example, nervousness by itself would not constitute reasonable suspicion.

Some nervousness shown by individuals when stopped by police is normal. In another example, in R. v. Calderon (2004), 2004 CanLII 7569 (ON CA) , 188 C.C.C. (3d) 481 (Ont. C.A.), the presence of cell phones, a pager, a map, fast-food wrappers and two duffle bags in the back seat were held to be neutral and unreliable indicators and did not amount to reasonable grounds for detention. 79 Yet, some factors are more probative than others. Correctly, the trial judge focussed on indicators “without a logical or neutral explanation” (at para. 55).

In particular, the trial judge emphasized the “nonsensical trip” as establishing reasonable grounds to suspect the accused was a drug courier. The cost of renting the car was so much higher than the cost of airfare that the accused’s explanation that he could not afford to fly the whole way simply made no sense.

In fact, in another case based on very similar facts, a court also accepted as key in determining the existence of reasonable suspicion the “seemingly irrational cost ineffectiveness of the one- way trip to Winnipeg by rented vehicle as borne out on the Rental Agreement tendered in the place of registration and observed by Corporal Baulkham by comparison to air fare.” See Madill , at para. 36 . 80 The trial judge concluded there were reasonable grounds to suspect that the accused was involved in transporting drugs and that therefore a detention for investigative purposes was warranted, and I agree with her conclusion.

So apparently did Justice Binnie since, in Kang-Brown , he cited this decision as an example of facts amounting to a reasonable suspicion. See Kang-Brown , at para. 94 . 81 I note that in this case, unlike Mann , no crime had been reported. Rather, the police were investigating a “suspected” offence. The Saskatchewan Court of Appeal, in the case of R. v.

Yeh , 2009 SKCA 112 , 248 C.C.C. (3d) 125, recently considered the question of whether investigative detentions can be conducted in relation to what might be referred to as “suspected” offences or whether they must be conducted exclusively in respect of offences which have been reported to the police or which the police have otherwise confirmed prior to the detention.

In other words, can an investigative detention be undertaken in circumstances where the police reasonably suspect, but do not know that criminal activity has taken place or is taking place? 82 After reviewing Mann , Richards J.A., writing for the majority, concluded that it was not necessary that the detention be in relation to a known as opposed to a suspected offence. He held (at para. 83): ….

In other words, it would seem that Iacobucci J.’s reference to “recent” and “on-going” offences should not be taken as describing only crimes which the police know have been committed or which they know are being committed.

Rather, read in context, the terms used in paragraph 34 are best understood as including situations where a police officer has a reasonable suspicion that the prospective detainee is, or has been, involved in an offence, i.e. as including situations where the crime itself is only suspected . 83 This court came to the same conclusion, albeit before the Supreme Court of Canada decision in Mann , in the case of R. v. Willis (R.) , 2003 MBCA 54 , 173 Man.R. (2d) 208.

While on patrol in the early hours of the morning, two police officers saw an individual running through a clearing in a residential area carrying a white sheet with items bundled inside of it. The individual had the white sheet draped over his head, held in front around the forehead with both hands so that the majority of the weight was bearing on the head, neck and the contents inside the sheet. At that point in time, the police officers had no knowledge that any crime had been committed.

In Willis , the same argument was presented and rejected (at para. 29): The accused argues that investigative detention can only occur when there is an actual known crime under investigation. I do not agree. R. v. Waterfield , [1963] 3 All E.R. 659 (C.A.) , recognizes that, aside from investigating crimes that have occurred, there is a general common law police power to interfere with liberty when that is necessary to carry out duties such as preventing crime and preserving the peace. This was adopted by the Supreme Court of Canada in R. v.

Dedman , 1985 CanLII 41 (SCC) , [1985] 2 S.C.R. 2 ; 60 N.R. 34; 11 O.A.C. 241; 46 C.R. (3d) 193; 20 C.C.C. (3d) 97; 34 M.V.R. 1, at 32 [S.C.R.], which provided a broad definition of recognized police duties, including the preservation of the peace, the prevention of crime and the protection of life and property. This same reasoning was also applied by the United States Supreme Court in Terry v. State of Ohio (1968), 88 S. Ct. 1868 (U.S. Sup. Ct.), in recognizing a right to stop and frisk in order to prevent a crime.

The court stated (at p. 1880): One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. 84 Rosenberg J.A. of the Ontario Court of Appeal, in the recent case of Nesbeth , came to the same conclusion as the majority of the Saskatchewan Court of Appeal in Yeh , as did the British Columbia Court of Appeal in R. v.

Duong (T.) , 2006 BCCA 325 , 228 B.C.A.C. 183.

85 However, I would add that it cannot be a reasonable suspicion of any bad behaviour. It is a reasonable suspicion of specific criminal activity that gives rise to the grounds to detain. I agree with the majority of the Saskatchewan Court of Appeal when it says in Yeh (at paras. 84, 91 ): …. The reference in this passage to a “particular crime,” read in context, reflects the idea that the police may not detain an individual out of a general sense he or she might be doing something unlawful. As discussed above, police suspicions must relate to specific criminal wrongdoing. …. ….

As noted, a generalized feeling on the part of the police that an individual is doing something wrong can not serve as the basis for a lawful detention.

Thus, in this way, the prerequisites for investigative detentions help to ensure they will not be based on the sorts of hunches and intuitions which can serve as a cover for arbitrary conduct and either deliberate or unconscious profiling based on factors such as race, ethnic origin or socioeconomic status. 86 In conclusion, I am not persuaded that the trial judge, in determining that the accused’s s. 9 Charter rights had not been infringed, misdirected herself on the applicable law, misapplied the law when assessing the evidence or made any palpable and overriding errors in her findings of fact based on the totality of the circumstances.

WAS THE DEPLOYMENT OF THE DRUG SNIFFER DOG AN UNREASONABLE SEARCH AND CONSEQUENTLY A BREACH OF s. 8 OF THE CHARTER ? 87 Can the police employ a sniffer dog to search for drugs when the person has already been placed under an investigative detention? 88 Given its exceptional nature, a search incidental to an investigatory detention has been strictly circumscribed. The majority of the Supreme Court of Canada in Mann limited such searches to safety-related concerns. The court expressly rejected a search power that extended beyond safety concerns to searching for evidence or contraband.

Yet, in Kang-Brown , the court held that the police possess a common law power to search using drug sniffer dogs on the basis of a Charter -compliant standard of reasonable suspicion. How does that impact on an accused who is already detained? 89

Section 8 of the Charter provides for the right to be secure against unreasonable search and seizure. There are two separate questions to be answered in a s. 8 challenge. The first is whether the accused had a reasonable expectation of privacy. The second is whether the search was an unreasonable intrusion on that right to privacy. See R. v. Edwards , 1996 CanLII 255 (SCC) , [1996] 1 S.C.R. 128, Hunter et al. v.

Southam Inc. , 1984 CanLII 33 (SCC) , [1984] 2 S.C.R. 145, and Kang-Brown , at para. 18 . 90 Although the expectation of privacy in a motor vehicle is less than in one’s home or office, still that expectation exists for the driver of this vehicle, even if it was rented. See R. v. Wise , 1992 CanLII 125 (SCC) , [1992] 1 S.C.R. 527, and R. v. Belnavis , 1997 CanLII 320 (SCC) , [1997] 3 S.C.R. 341 at para. 38 . It is clear that the accused, the driver of the rented vehicle, had control of the vehicle and had the power to admit or exclude others.

It is reasonable to infer that he had a subjective expectation of privacy. 91 The more difficult question arises when one assesses whether the accused had a reasonable expectation of privacy in the air surrounding the outside of his vehicle, as arises when a drug sniffer dog circles the vehicle in an attempt to detect the scent of controlled drugs not detected by unaided human senses. The comments of Bastarache J., who dissented, but not on this point, in R. v. A.M. are of assistance (at para. 157): ….

As I noted in Kang-Brown , it is relevant from an objective perspective that the odour identified by the dog sniff was not accessible to humans and that its detection provided immediate information about the contents of the backpack. The sniff thus revealed a “biographical core of personal information” about A.M. and his personal choices that would otherwise have been kept secret from the state. 92 Similarly, in the present situation, the odour identified by the dog sniff provided immediate information about the contents of the vehicle. It revealed a “biographical core of personal information” about the accused.

See R. v. Plant , 1993 CanLII 70 (SCC) , [1993] 3 S.C.R. 281, and R. v. McKenzie , 2009 SKQB 415 . As in the backpack in R. v. A.M. , the use of the sniffer dog in the present situation provided the police an opportunity to “see through” the vehicle to the contents inside. It provided specific and meaningful information, intended to be private, and concealed in an enclosed space, in which the accused had a continuing expectation of privacy. 93 The leading authorities with respect to the use of drug sniffer dogs are the Supreme Court of Canada’s recent decisions in Kang-Brown and R. v. A.M.

In Kang-Brown , an RCMP officer was monitoring a bus station as part of an operation to identify and arrest drug couriers. A police officer observed Kang-Brown disembark from a bus, and based on behaviour the officer considered to be suspicious, he approached Kang-Brown and introduced himself as a police officer. He told Kang-Brown he was free to go at any time. The officer then asked Kang-Brown if he was carrying narcotics and requested permission to look in his bag. Kang-Brown put his bag down, but when the officer went to touch it, Kang-Brown pulled it away, looking nervous.

At that point, the officer signalled for a sniffer dog. The dog approached and sat down, thereby indicating the presence of drugs in the bag. Kang-Brown was arrested and ultimately convicted of possession of cocaine for purposes of trafficking and possession of heroin. All of the judges agreed that a dog sniff was a search for the purpose of s. 8 of the Charter for the reasons indicated earlier. 94 The companion case to Kang-Brown was R. v. A.M. , which dealt with the use of drug dogs in a public school. This was a

generalized random search. The police had no knowledge that drugs were present in the school, and the court held that there was no reasonable suspicion entitling them to use the sniffer dog. A majority of the judges agreed that the use of a drug dog to conduct a sniff search constituted a search for the purpose of s. 8 of the Charter . 95 Thus, it is clear that the court accepted that even minimally intrusive, directed police investigation techniques and tools such as sniff searches are subject to Charter scrutiny. However, Kang-Brown and R. v.

A.M. offer much less clarity around the issue of when such a search might be permissible. Indeed, the decisions demonstrate a deep division among the court with respect to the proper approach for regulating drug dog sniff searches in Canada. A minority of four justices concluded there was no common law authority for a sniffer dog search on the facts of the cases.

Four other justices (McLachlin C.J.C. and Binnie, Deschamps and Rothstein JJ.) concluded the police have a common law power pursuant to the ancillary powers doctrine to search using sniffer dogs so long as they have a reasonable suspicion the individual subject to the search is in possession of contraband. Bastarache J., writing for himself, was of the view that sniffer dogs could be used lawfully in some contexts on the basis of suspicion of a generalized nature.

However, at the same time, he agreed with Binnie and Deschamps JJ. that the common law allows the use of sniffer dogs where there is a reasonable suspicion of illegal activity involving drugs. Accordingly, as a bottom line, the majority of the court confirmed the authority of the police to use sniffer dogs on the basis of a standard of reasonable suspicion.

If there are no grounds for reasonable suspicion, the use of the sniffer dogs will violate the s. 8 reasonableness standard. 96 Reasonable suspicion has the same meaning for both the purposes of ss. 8 and 9 of the Charter , and reasonable suspicion in the context of investigative detention was discussed earlier in these reasons. The meaning of reasonable suspicion within the context of a search was discussed by the Supreme Court of Canada in the Kang-Brown case.

Because these types of searches are conducted without prior judicial authorization, the after-the-fact judicial scrutiny of the grounds for the alleged reasonable suspicion must be rigorous. See Kang-Brown , at para. 26 . 97 “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Significantly, the Supreme Court in Kang-Brown stressed that a hunch based on intuition gained by experience does not by itself constitute a reasonable suspicion. There must be objective grounds which support the opinion of the police officer. These objective grounds must be factual elements beyond subjective belief which can be adduced into evidence and permit an independent judicial assessment. 98 To determine whether the reasonable suspicion standard is met in a given case, the totality of the circumstances must be considered.

As the Saskatchewan Court of Appeal stated in Bramley (at para. 60 ): I note more generally that there is, of course, no fixed checklist of factors which serve as prerequisites for a reasonable suspicion of illegal drug activity and which thereby justify a sniffer dog search. Each case must be considered on its own facts and its own merits. The reasonableness of a police officer’s suspicions should be assessed through the lens of common sense and practical experience rather than by resort to pre-ordained lists of indicators deemed adequate to justify a search.

Perhaps the key general point in this case is that the potential meaning of the factors relied on as the basis for a reasonable suspicion must be assessed for their collective, as opposed to individual, significance. 99 Neither Kang-Brown nor R. v. A.M. involved a traffic stop such as the one at issue in the case at bar. Neither of the accused in those two cases was an individual detained before the dog was deployed.

As well, the restricted search power during investigative detentions in Mann was based on a presumption that there was a physical search of a person, vehicle or bag as opposed to the use of an investigative tool such as a sniffer dog. 100 Some academics have foreshadowed the difficulties that might arise. For example, Alec Fiszauf, The Law of Investigative Detention (Markham: LexisNexis Canada Inc., 2008) commented (at p. 102): In Kang-Brown and A.M. the Supreme Court developed a search power based on reasonable suspicion in the context of searches by drug detector dogs.

However … this new search power is not considered in its relationship to investigative detention, presumably because of its non-intrusive nature. …. 101 While the Supreme Court has not yet been called upon, since releasing those two decisions regarding drug dog sniff searches, to explain how that law applies when the drug dog is deployed after or as part of an investigative detention, the issue has been addressed recently by the Saskatchewan Court of Appeal in Yeh , which was decided by a seven-judge panel. 102 The minority described the issues confronting the court in the following manner (at para. 125): ….

A related question of law, raised for the first time on this appeal, is whether the police can use a sniffer dog to investigate a person who has been placed under investigative detention with respect to the crime of possession of a drug or, in other words, whether there is a stand-alone search power in such circumstances. 103 The basic facts of the case are similar to our own. The accused was travelling on the Trans-Canada Highway near Moose Jaw, Saskatchewan. The police stopped his car after they observed it drifting from side to side in the driving lane. Mr.

Yeh was questioned and asked to perform tests aimed at determining whether he was impaired by drugs. The detention led to a sniffer dog search and the discovery of a quantity of marihuana in his vehicle. Mr. Yeh was arrested. 104 Richards J.A., writing for the majority, confirmed that the applicable test regarding drug dog sniff searches was that of

reasonable suspicion and after reviewing the factual differences between Kang-Brown and the case before him concluded (at paras. 48- 49): It is true, of course, that in Kang-Brown the Supreme Court said an investigative detention does not involve any right to search the detainee beyond what is reasonably necessary for safety purposes. As a result, the police have no right to conduct a sniff search as an incident of an investigative detention.

Any such search needs to be independently justifiable in the sense that, before it is undertaken, the police must have a reasonable suspicion that the person who is the subject of the search is illegally in possession of drugs. Given that the same standard – reasonable suspicion – triggers both the right to conduct an investigative detention and the right to conduct a sniff search, there will sometimes be an overlap between detention and search in the limited sense that the same facts which justify the investigative detention will also justify the sniff search. This Court’s recent decision in R. v.

Bramley , 2009 SKCA 49 , is an illustration of that sort of situation. However, the circumstances warranting a detention obviously will not always or necessarily empower the police to conduct a dog search. For example, if an individual is detained for investigative purposes based on a reasonable suspicion that he or she is committing a weapons offence, the police will have no right to conduct a sniff search unless, in addition, the circumstances give rise to a reasonable suspicion that the detainee is also unlawfully in possession of drugs.

The right to conduct an investigative detention and the right to conduct a sniff search are not coextensive and the right to undertake a sniff search is not an incident of the right to detain for investigative purposes. 105 I agree with the majority decision in the Yeh case that the two investigative procedures must be kept analytically distinct. They concern different police powers. On the facts of this case, as in Yeh , the basis for the detention and the search relates to the same offence, drug trafficking.

Nevertheless, it is important to assess the use of both investigative techniques on their own to determine whether a Charter violation of either or both of ss. 8 and 9 has occurred. Indeed, the use of the sniffer dog in this case has not been characterized as a search incidental to an investigative detention. 106 There must be an independent, lawful basis for a search if it is to be Charter compliant. In this case, the sniff search must be independently justifiable in the sense that there is a reasonable suspicion that the accused was illegally in possession of drugs.

In other cases, that lawful basis might be, for example, a warrant, a search incident to arrest, a search incident to detention or a search by consent. In each case, the search power is not unlimited. There must be a nexus between a particular individual and the crime under investigation so there cannot be a generalized search. For example, an arrest for shoplifting would justify a search of the offender’s backpack, but not a rectal search. Similarly, a search incident to detention is not unlimited.

If detention is the legal basis for the search, then the police can only search for officer safety. 107 What the Supreme Court of Canada has done in Kang-Brown is carve out another basis for a search based on reasonable suspicion which applies to cases where the police are using investigative tools such as sniffer dogs. It is a legal basis for a search that is independent of the detention.

There may be two bases for conducting a search, a search incidental to detention and a search based on reasonable suspicion alone, which allow the use of an investigative tool. 108 It is important to remember that even if there was a reasonable suspicion to ground both the investigative detention and the search, they must both have been carried out in a reasonable manner. Where, as in this case, an investigative detention exists concurrent with the reasonable suspicion to justify the use of the sniffer dog, that sniff search may impact on the validity of the detention.

Consequently, the length of the investigative detention must be relatively brief and minimally intrusive. So, even if there is a reasonable suspicion so as to allow the dog sniff, if the detention is prolonged unreasonably in order to accommodate the dog sniff, the investigative detention may become unreasonable. 109 When attempting to determine whether a similar dog sniff search was reasonable, the Saskatchewan Court of Appeal in Bramley considered the following factors (at para. 61): …. First, there were no untoward delays.

Levi was on the scene quickly and did the “sit” only a very few minutes after the respondents were detained. Second, the manner in which the search was conducted was unremarkable and unobtrusive. Levi was simply walked around the perimeter of the respondents’ vehicle. Third, drug trafficking, the crime investigated, is a significant problem and the community has a pressing interest in suppressing the drug trade.

Overall, the dog search represented a minimal intrusion into the respondents’ privacy while, at the same time, being very important to the fulfillment of the police officers’ law enforcement responsibilities. 110 I would say the same factors were present in the case at bar. The accused’s detention was not unduly prolonged for the purpose of carrying out the search. As indicated at the beginning of these reasons, the entire interaction took approximately 18 minutes.

There were no untoward delays and the dog sniff was conducted quickly and unobtrusively. 111 The justification of the investigative tool search based on a Charter standard of “reasonable suspicion” is based on minimal intrusiveness, a narrowly targeted objective and the high accuracy of positive hits by specifically trained dogs.

As Binnie J. indicated in Kang-Brown (at para. 58 ): …. … [B]ecause of the minimal intrusion, contraband-specific nature and pinpoint accuracy of a sniff executed by a trained and well- handled dog … it is my view for reasons set out in A.M. , released concurrently, that a proper balance between an individual’s s. 8 rights and the reasonable demands of law enforcement would be struck by permitting such “sniff” searches on a “reasonable suspicion” standard without requiring prior judicial authorization. 112 The accused in this case made no issue of Jazmin’s reliability or accuracy.

Of course, since the cases of Kang-Brown and R.

v. A.M. had not been decided in the Supreme Court of Canada at the time of the trial, the importance of that point would not have been evident. However, for the purposes of this appeal, it should be noted that evidence was given at trial of Jazmin’s extremely positive record of discovering drugs. It is also interesting to note that Jazmin’s reliability was discussed in the case of R. v. Dinh (K.G.) et al. , 2008 MBQB 332 , 234 Man.R. (2d) 219 , a case decided after the Supreme Court of Canada cases in Kang-Brown and R. v.

A.M. 113 The trial decision in this case was decided before the Supreme Court cases of Kang-Brown and R. v. A.M. so considerable time was spent on the question of whether a dog sniff was a search in the context of s. 8 of the Charter .

Although the judge’s conclusion as to whether the dog sniff was a search was an error in law, she did find that she was satisfied that the police had reasonable grounds to suspect the accused was couriering drugs before they commenced the search. 114 Based on all of the above, I conclude that the warrantless search of the vehicle by the sniffer dog was in conformity with s. 8 of the Charter as, based on the totality of the circumstances, the police officer had an objectively verifiable, reasonable suspicion that the accused was involved with drug trafficking and the dog sniff was carried out in a reasonable manner.

IF A BREACH IS PROVEN, COULD THE ADMINISTRATION OF JUSTICE BE BROUGHT INTO DISREPUTE BY THE ADMISSION OF THE DRUG EVIDENCE? 115 The trial judge held that the accused was not given his full informational rights pursuant to s. 10(b). When Karsin advised the accused that he was being detained for a drug investigation, he did not inform the accused about the availability of immediate and free legal advice. Rather, he advised the accused that he had the right to contact a lawyer or Legal Aid. The trial judge held that this was a minor breach and declined to exclude the evidence under s. 24(2) of the Charter .

Once again, this decision was made before the Supreme Court of Canada decisions in Grant , R. v. Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, and R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527. However, I do not believe it is necessary to enter into an analysis of those decisions in this case. 116 A trial judge’s decision under s. 24(2) should not be interfered with by an appellate court unless it was based on a wrong principle or was unreasonable. See R. v. Stillman , 1997 CanLII 384 (SCC) , [1997] 1 S.C.R. 607 at para. 68 , R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631 at para. 48 , and R. v.

A.M. , at para. 96 . 117 I would not interfere with the decision of the trial judge. The breach was minor. Looking at whether the administration of justice would be impacted by the inclusion or exclusion of the evidence, it is important to note that the accused, upon being told of the investigative detention, was immediately advised of his s. 10(

b) Charter rights, and Walkden repeated this advice upon his arrest. These are not the actions of a police officer with a disregard for the Charter rights of an accused person. As well, the evidence obtained from the search was non-conscriptive. 118 In fact, if it were necessary, I would go further and point out that in a s. 24(2) application, a causal connection is required between the Charter breach and the evidence in question. The drugs in the trunk were not discovered through any consent given by the accused at the roadside after he was notified of the drug investigation detention.

The accused did not indicate he wanted to contact Legal Aid counsel. In fact, quite the opposite. When asked if he wanted to call his lawyer or Legal Aid, the accused replied, “No, I don’t think so.” Therefore, I fail to see the causal connection between the minor s. 10 (

b) breach and the drug evidence obtained through the sniffer dog deployment. CONCLUSION 119 The trial judge applied the correct legal principles in deciding that Broda’s questioning was proportional to the traffic stop and did not stray into unfounded general inquisition. 120 I am satisfied that no breach of s. 8 or s. 9 has been established. The detention was not arbitrary, and the search was not unreasonable. 121 The appeal is dismissed. _______________________________ J.A. I agree: _______________________________ J.A. I agree: ______________________________ J.A.