Sniffer-dogs, Arrest and Charter Breaches
Police officers must have reasonable grounds to believe that someone has committed or is about to commit an indictable offence before arresting them.
The Supreme Court of Canada has rightly made clear that, "[w]ithout such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state"
The recent case of R v Rigo illustrates the difficult balancing that occurs when Charter rights are protected in a criminal case. In that case Mr. Rigo had been stopped for speeding. In his interactions with officers observations were made which gave the officer a reasonable suspicion that Mr. Rigo was committing an offence. A reasonable suspicion allows an officer to detain someone. A detention is to be brief and searches are to be limited to pat down for officer safety. It also is the standard that enable police to deploy a sniffer-dog.
In Mr. Rigo’s case the dog was deployed and provided a partial indication that there were drugs in the vehicle. The officer had never observed the dog provide this sort of partial indication and the dog was not trained to indicate in this manner. Instead of re-starting the process to get a clear indication from the dog the officer arrested the driver, searched the vehicle and found 27,500 fentanyl pills.
The court came to the only logical conclusion in the circumstances – that the officer did not have objectively reasonable grounds to arrest
The logic at work here is pretty straightforward. The dog did not display behaviour consistent with having detected drugs in the vehicle. Without the dog indicating that there were drugs in the vehicle it was unreasonable for the officer to act as though there were.
The decision has received some criticism given the evils associated to Fentanyl trafficking. The critiques appear to suggest that the ends justify the means. While this is sort of thinking may have some superficial appeal when considering only a single case, the paramount importance of the rule of law and having a justice system that is beyond reproach must shape the analysis.Or as the Supreme Court of Canada has explained, “the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards”.