Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Criminal law - Use of police dogs to detect drugs - Whether the police dog sniffing the Appellant’s backpack violated his right under s. 8 of the Charter to be secure against unreasonable search or seizure - Whether the trial judge erred by failing to find that the Appellant was subject to an unreasonable search and seizure and the evidence ought to have been excluded from trial pursuant to s. 24(2) of the Charter - Whether Paperny J.A. in dissent was correct that a search occurred; that the Appellant had a reasonable expectation of privacy, that, R. v. Tessling, [2004] 3 S.C.R. 432, is distinguishable from R. v. Lam & Dinh, [2003] A.J. 801 (QL), but has not overruled it; and that trial judges may not rely on the reasons used to determine there was no breach at all when assessing the seriousness of a section 8 Charter breach.

On January 25, 2002, at about 11:00 am., three RCMP officers were patrolling the Calgary Greyhound bus terminal as part of an RCMP operation that involves investigators monitoring the travelling public in order to identify and arrest drug couriers among others. The team was watching passengers disembark from the over-night bus from Vancouver. One officer noticed the Appellant and monitored his movements. In the foyer of the bus terminal, the officer started a conversation with the Appellant and identified himself as a police officer. The officer called to the police dog and she made an immediate passive indication of the presence of drugs. The Appellant was charged with possession of cocaine for the purposes of trafficking and possession of heroin. The Appellant alleged at trial that his s. 9 Charter rights were breached when the police held a conversation with him in the foyer of the bus depot and that his s. 8 Charter rights were breached when, during the course of that conversation, a sniffer dog was used to detect drugs.

The trial judge and Côté J.A., for the majority of the Court of Appeal, held that the Appellant was neither arbitrarily detained nor unlawfully searched. The majority of the Court of Appeal dismissed his appeal. Relying partly on this Court’s ruling in R. v. Tessling, [2004] 3 S.C.R. 432, the majority concluded that there was no “reasonable expectation of privacy” in relation to the odours emanating into the public sphere from the Appellant’s bag. Paperny J.A., in dissent, concluded that while the Appellant was detained “physically and psychologically”, the standard of review on appeal required deference to the trial judge’s finding in this respect. On the s.8 issue, Paperny J.A. concluded that the Appellant had a reasonable expectation of privacy in his luggage and the odours emanating from it and, therefore, the dog sniff was an unreasonable search within the meaning of s. 8 of the Charter.