Pubdate: Fri, 11 May 2012
Source: Regina Leader-Post (CN SN)
Section: Front Page
Copyright: 2012 The Leader-Post Ltd.
Contact: http://www.leaderpost.com/opinion/letters/letters-to-the-editor.html
Website: http://www.leaderpost.com/
Details: http://www.mapinc.org/media/361
Author: Heather Polischuk

TOP COURT TO HEAR SNIFFER DOG CASE

The Supreme Court of Canada will hear a Saskatchewan case involving
the use of "sniffer dogs" by police, the court said on Thursday.

The case of Benjamin Cain Mackenzie was one of three similar cases
decided by the Saskatchewan Court of Appeal heard last May, with the
court finding the police had the appropriate grounds in the three
separate instances to use sniffer dogs.

Those rulings overturned previous findings by lower court
judges.

The cases all involved incidents where motor vehicles had been stopped
on the Trans-canada Highway initially for traffic-related offences
with officers soon suspecting the occupants were in possession of
drugs. The dogs were subsequently brought in to check for the presence
of drugs, which were then located.

In Mackenzie's case, he was charged in September 2006 following a
search near Caronport. While he'd initially been pulled over for
speeding, officers became suspicious Mackenzie had drugs in his
possession and brought in a dog to do a sniff search. As a result, a
large quantity of marijuana was found in the vehicle's trunk.

The case came down to whether police had sufficient objective grounds
to reasonably suspect Mackenzie possessed drugs. A lower court judge
had found there wasn't reasonable suspicion, making the subsequent
search unreasonable and any evidence located unusable in court. The
Court of Appeal found otherwise, deciding the reasonable suspicion
standard was met and subsequently ordering a new trial.

The Crown had argued the trial judges had placed too high a standard
on police in determining reasonable suspicion. (Police typically look
for evidence that can include combinations of nervousness,
intoxication and use of third-party vehicles when trying to determine
whether drugs might be present.)

"When the standard is reasonable suspicion, the law does not require
hard certainty as to the inferences drawn by a peace officer," wrote
Court of Appeal Justice Neal Caldwell in the decision allowing the
Crown appeal in the Mackenzie case.

In a decision involving one of the other two individuals, Court of
Appeal Justice Gene Anne Smith wrote standards for reasonable
suspicion and the threshold for deploying sniffer dogs are "less
stringent" than requirements for establishing reasonable or probable
grounds that a crime has been committed.

Following those findings, Mackenzie's defence lawyer Barry Nychuk took
his client's case one step further, appearing before the Supreme Court
earlier this year to ask leave to appeal. The court's decision to hear
the appeal was made public Thursday.

The Mackenzie case will be heard in conjunction with a similar case
out of Nova Scotia involving Mandeep Singh Chehil. A date for the
hearing hasn't yet been set.

"Basically what I'm seeking is some clarification on the standard of
reasonable suspicion and what is a reasonable suspicion, what is a
mere suspicion and when can you deploy a drug-sniffing dog ...,"
Nychuk said. "It's just another step in the law, another progression
to provide defence counsel and Crown prosecutors some assistance in
differentiating between what is a mere suspicion and what is a
reasonable suspicion." 
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