• Lewis Waring

100 Problems - Justin Paulic

In 2003, Shawn Carter, better known professionally as Jay-Z (“Jay-Z”), released The Black Album. Included in that album was one of Mr. Carter’s most popular and well-known songs of all time, “99 Problems”. The song describes Jay-Z’s interactions with numerous antagonists. Specifically, in the second verse of the song, Jay-Z describes an interaction with the police where he is pulled over while driving for seemingly no reason. During this interaction, the police officer attempts to search Jay-Z’s vehicle. Jay-Z knew a “little bit” about the law, however, and denied the officer consent from searching the vehicle without a warrant. The police officer then suggested that the use of a sniffer dog may reveal incriminating evidence against Jay-Z, but, before a sniffer dog is used, Jay-Z is able to leave. Although Jay-Z may have many problems in his everyday life, the sniffer dog was not one of them, prompting him to state the notable line “I got ninety-nine problems, but a bitch ain’t one.” Unfortunately for Jay-Z, at least in present day Canada, he may want to add sniffer dogs to his list of problems.

A trend towards curtailing sniffer searches

In 2008, two cases involving sniffer dogs came before the Supreme Court of Canada (“the Court”) and initially shaped the rules around using sniffer dogs to aid in searches. R v Kang-Brown (“Kang-Brown”) involved a sniffer dog search at a bus station while R v AM (“AM”) involved a sniffer dog search at a school. In Kang-Brown, the accused exited a bus at a bus station, where police were waiting. The police eventually approached the accused and attempted to get consent to search the accused’s bag. The accused complied and began to open his bag until the police officer reached out to grab the bag. The accused then began to act more erratically, which caused the police to engage in a sniffer dog search, alerting the police to drugs located in the accused’s bag. Although the Court held that a warrantless sniffer dog search is authorized by common law where reasonable suspicion exists, the police did not have reasonable suspicion in Kang-Brown. Thus, the search was unreasonable according to section 8 of the Canadian Charter of Rights and Freedoms (“the Charter”).

In AM, sniffer dogs were brought into a high school without a warrant to search students’ bags while the students were in class. The sniffer dogs eventually alerted the police to drugs in a student’s backpack. Similarly to in Kang-Brown, the Court in AM held that the police did not have a reasonable suspicion to conduct a search since the officer’s belief was not backed by an objectively verifiable indication of drugs. Although Kang-Brown and AM appear to rule in a manner that would favour Jay-Z, the Court began to reduce privacy expectations in two later cases, in turn diminishing Jay-Z’s ability to seek protection from sniffer dogs and unreasonable searches.

A more recent trend towards expanding sniffer searches

In 2013, two cases that came before the Court, R v MacKenzie (“MacKenzie”) and R v Chehil (“Chehil”), lowered the standard for warrantless searches. The case of MacKenzie is quite similar to Jay-Z’s interaction with the police in “99 Problems”. MacKenzie involved a highway traffic stop, but, instead of getting pulled over for “doing fifty-five in a fifty-four,” the accused was doing 112 kilometers per hour on a 110 kilometer-per-hour highway. Additionally, in MacKenzie, the accused pulled over without being prompted by the police, acted more nervously than Jay-Z, and appeared to be under the influence of drugs. The accused in MacKenzie denied the police permission to search the vehicle but nevertheless a sniffer dog was used to search the vehicle, indicating the presence of drugs. The Court held that, based on the facts, the police had a reasonable suspicion that the accused was conducting a drug related offence and that the police officer’s subjective belief was objectively verifiable.

In Chehil, the accused paid for a one-way flight from Vancouver to Halifax in cash, was one of the last passengers to purchase a ticket, and checked one bag. Based on these actions, the police were suspicious of the accused and conducted a sniff search on the accused’s bag when it arrived in Halifax. The sniffer dog indicated the presence of drugs and, after arresting the accused and opening the bag, the police found drugs. The Court held that, while on their own the facts may not justify reasonable suspicion, when viewed together the facts did justify reasonable suspicion.

MacKenzie and Chehil identify the state’s willingness to sacrifice privacy in the hopes of increasing security. Based upon an analysis of this recent case law on sniffer dog searches, the standard for reasonable suspicion in Kang-Brown and AM seems to be lowered in MacKenzie and Chehil.

Since Jay-Z’s 2003 run-in with the police in “99 Problems”, the Court has explicitly maintained a lower standard of privacy, at least in relation to sniffer dog searches. In MacKenzie, the Court stated that it is important that the reasonable suspicion standard does not shift to the higher threshold of a standard of reasonable and probable grounds. This reasonable suspicion standard conveys the possibility, not the probability, of finding criminal conduct. Although individual privacy will be lost as a result, the added security of “minimally intrusive, narrowly targeted, and highly accurate” sniff searches provide an acceptable trade-off. Furthermore, instead of viewing the use of sniffer dogs as the expansion of police powers, sniffer dogs have been compared to tools or devices used by the police. Courts are willing to maintain the ability to create laws and allow police to adopt new techniques as criminals are getting more advanced in conducting criminal activity. The development of these laws would reduce Jay-Z’s expectation of privacy by lowering search standards and introducing subjectivity into search qualifiers, which would affect Jay-Z’s constitutional protection that could be provided in a search.

A reduction in expectation of privacy

The sniffer dog cases heard by the Court have trended toward a reduced expectation of privacy. Police no longer need a warrant or prior authorization to perform searches, contrary to Jay-Z’s belief in “99 Problems”. As long as the police have a reasonable suspicion of criminal conduct, sniffer dogs can be used to identify whether illegal substances may be present. The reasonable suspicion standard leaves only a barrier of subjectivity in front of an intrusion into privacy as long as objectively verifiable indicators can be proven after the fact. Additionally, the reasonable suspicion standard does not address the likeliness of criminal conduct, but rather the possibility of criminal conduct. All of this being considered, the outcomes of recent sniffer-dog case law has given the state more power over individual rights and privacy in hopes of improving individual security. Luckily for Jay-Z, he resides in the United States. If he decides to travel to Canada, he may want to add sniffer dogs to his long list of problems.

Check out the Robson Crim MLJ
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