R. v. Kang-Brown

Take the test now.

Link to the original Supreme Court decision (April 25, 2008).

Case summary: A police officer observed a man acting oddly in a bus terminal and informally questioned him as to whether he was carrying illegal drugs in his bag or would consent to a voluntary search of it. He said no. The officer signalled another officer to have a drug-sniffing dog sniff the man's bag. The dog signalled the odour of drugs, at which point the officers arrested the man on suspicion of drug possession, searched his person and bag, and did find drugs. The trial judge found that the accused was not unlawfully detained or searched and that he did not have a reasonable expectation of privacy regarding the odour of his bag in a public transportation facility, and found him guilty of drug possession. All nine Justices agree that the dog-sniff was a search within the meaning of section 8 of the Charter. At issue is whether that search, and the resulting evidence and conviction, were legal. No majority opinion, but six of the nine judges voted to set aside the conviction.

Opinions:

(LeBel, Fish, Abella, and Charron): There is no specific statute or common law authorizing sniffer-dog searches, and without one, the accused has a reasonable expectation of privacy regarding the odour of his bag, as imperceptible to a human being. Thus the search was illegal on general grounds and the resulting evidence should be excluded. Parliament must provide enabling legislation for this type of search to be permitted.

(Binnie and McLachlin): Dog sniffing is a reasonable search because of "the minimal intrusion" involved, its "contraband-specific nature[,] and pinpoint accuracy[.]" Police can make such a search without a warrant if they have "reasonable suspicion" of a crime; however, they did not have reasonable suspicion in this specific case, and the dog's signal (when the dog-sniff was used with reasonable suspicion) should only have been enough to justify a hand search, not an immediate arrest.

(Deschamps and Rothstein): The accused had a reasonable expectation of privacy regarding his bag and its odour, but that expectation was satisfied in this case and the police did have reasonable grounds to conduct the dog sniff search and arrest him.

(Bastarache): Although the accused had a reasonable expectation of privacy regarding his bag's odour, that expectation was very limited in a public place like a bus terminal. The police could have conducted a dog sniff of his bag in particular on the suspicion they had, or even of all passengers' baggage on "generalized suspicion" that there might be drug activity going on, if "reasonably informed passengers were aware of the fact[.]"