R. v. Kang-Brown
Encyclopedia
R. v. Kang-Brown, , is a constitutional decision by the Supreme Court of Canada
on the limits of police powers for search and seizure
. The Court found that police
do not have the right to perform a sniffer-dog
search (to use dogs to conduct random searches) of public space
s when such search is not specifically authorized by statute
. In this case, a suspect
's section 8
rights under the Canadian Charter of Rights and Freedoms
were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession
.
The officers arrested the accused for possession of and/or trafficking in drugs, searched him and found drugs on his person and in his bag.
nor searched unlawfully and that the odors from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy. Accordingly, s. 8 of the Canadian Charter of Rights and Freedoms was not implicated.
The Court concluded that there was no reasonable expectation of privacy for that limited information in that public place and that there was no search. He agreed with the trial judge that even if there had been a Charter breach, the evidence ought not to be excluded under s. 24(2) of the Charter.
. Hence, the conviction was set aside.
The following issues were put to the Court:
McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ. agreed that the sniffer dog search of the passenger’s bag at the bus station violated s. 8 of the Charter and that in the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter.
According to Lebel, Fish, Abella and Charon JJ, the sniffer-dog search breached s. 8 because such a search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfillment of their general duty to investigate crime, the threshold for the exercise of police powers should not be lowered to one of “reasonable suspicion” since, to do so, would impair the important safeguards found in s. 8 against unjustified state intrusion. The existing and well established standard of “reasonable and probable grounds” should be applied. In this case, the search did not meet this standard.
According to McLachlin CJ and Binnie J, 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.
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the limits of police powers for search and seizure
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
. The Court found that police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
do not have the right to perform a sniffer-dog
Detection dog
A detection dog or sniffer dog is a dog that is trained to and works at using its senses to detect substances such as explosives, illegal drugs, or blood. Hunting dogs that search for game and search dogs that search for missing humans are generally not considered detection dogs...
search (to use dogs to conduct random searches) of public space
Public space
A public space is a social space such as a town square that is open and accessible to all, regardless of gender, race, ethnicity, age or socio-economic level. One of the earliest examples of public spaces are commons. For example, no fees or paid tickets are required for entry, nor are the entrants...
s when such search is not specifically authorized by statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. In this case, a suspect
Suspect
In the parlance of criminal justice, a suspect is a known person suspected of committing a crime.Police and reporters often incorrectly use the word suspect when referring to the...
's section 8
Section Eight of the Canadian Charter of Rights and Freedoms
Section Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
rights under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
were violated when a police officer stopped him at a bus station and sniffer-dog searched his bag finding drugs in his possession
Drug possession
Drug possession is the crime of having one or more illegal drugs in one's possession, either for personal use, distribution, sale or otherwise. Illegal drugs fall into different categories and sentences vary depending on the amount, type of drug, circumstances, and jurisdiction.A person has...
.
Background
On January 25, 2002 at about 11:00 a.m. at the Calgary bus terminal, three police officers were involved in a special operation designed to detect drug couriers. While observing a bus arriving at the station, they spotted the accused, Gurmakh Kang-Brown, disembarking. The accused gave the officers an elongated stare. The officers found the accused’s behavior suspicious, stopped him, and asked him if he was carrying narcotics. The accused said no. Then, one of the officers asked to look in the accused’s bag. The accused put his bag down and unzipped it. When the accused was unzipping the bag, the officer went to touch the bag. The accused pulled it away, looking nervous. The officer signaled another officer to have a drug-sniffing dog sniff the man's bag. The dog indicated the presence of drugs in the bag.The officers arrested the accused for possession of and/or trafficking in drugs, searched him and found drugs on his person and in his bag.
Trial Court
At trial, the judge found that the accused was neither detainedDetention of suspects
The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to...
nor searched unlawfully and that the odors from the bag, which emanated freely in a public transportation facility, did not constitute information in which the accused had a reasonable expectation of privacy. Accordingly, s. 8 of the Canadian Charter of Rights and Freedoms was not implicated.
Court of Appeal
On appeal, the Alberta Court of Appeal agreed with the trial judge that there had been no detention and that the question was whether the ordinary citizen who has committed no offence has a reasonable expectation of privacy which would be significantly invaded by the police action in question. To determine whether or not the accused had a reasonable expectation of privacy, the following factors were considered:- that the police were in a purely public place (not the yard of a home)
- that the dog only yielded a crude piece of information (yes or no to the presence of an unknown quantity of an unknown illegal drug)
- that no intimate details of private lives could possibly be revealed
- that the odors came out passively
- and that they were detected by something similar to (but more sensitive than) an ordinary human nose.
The Court concluded that there was no reasonable expectation of privacy for that limited information in that public place and that there was no search. He agreed with the trial judge that even if there had been a Charter breach, the evidence ought not to be excluded under s. 24(2) of the Charter.
Supreme Court Ruling
The accused appealed to the Supreme Court. The Court found that the search and detention violated section 8 of the Charter and that evidence should be excluded as it would interfere with the fairness of justice under section 24(2) of the CharterSection Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
. Hence, the conviction was set aside.
The following issues were put to the Court:
- whether dog sniff constituted search
- if so, whether the search was reasonable.
- if the search was unreasonable and the appellant's rights were violated, whether the evidence ought to be excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms;
- whether common law powers of police to investigate crime include use of sniffer dogs.
Opinion of the Court
All the nine judges agreed that the dog sniff of the passenger's bag at the bus station amounted to a search within s. 8 of the Charter.McLachlin C.J. and Binnie, LeBel, Fish, Abella and Charron JJ. agreed that the sniffer dog search of the passenger’s bag at the bus station violated s. 8 of the Charter and that in the circumstances of this case, the evidence should be excluded pursuant to s. 24(2) of the Charter.
According to Lebel, Fish, Abella and Charon JJ, the sniffer-dog search breached s. 8 because such a search was not specifically authorized by statute. In determining whether the police were authorized at common law to conduct the search in fulfillment of their general duty to investigate crime, the threshold for the exercise of police powers should not be lowered to one of “reasonable suspicion” since, to do so, would impair the important safeguards found in s. 8 against unjustified state intrusion. The existing and well established standard of “reasonable and probable grounds” should be applied. In this case, the search did not meet this standard.
According to McLachlin CJ and Binnie J, 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.