Thursday, October 03, 2013

Reasonable grounds to suspect

Now that we have search on "reasonable grounds to suspect" the commission of an offence, a lesser threshold than the reasonable belief that had previously been required – and that had been replaced by stealth – it is relevant to consider the definition of reasonable suspicion developed and applied by the Supreme Court of Canada: R v Chehil, 2013 SCC 49 (27 September 2013) and R v MacKenzie, 2013 SCC 50 (27 September 2013).

There is no substitute for reading the judgments, but the essentials, set out in Chehil, are:
  • The central question is: Is the totality of the circumstances, including the specific characteristics of the suspect, the contextual factors, and the offence suspected, sufficient to reach the threshold of reasonable suspicion? [39]
  • "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. [26, citing Binnie J in R v Kang-Brown, a case discussed here on 28 April 2008]
  • Reasonable suspicion is a lower standard than reasonable belief, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard. [28]
  • The reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. [32]
  • The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting a logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of a logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer's training and experience. [46]
  • An officer's training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer's experience will suffice, or that deference is owed to a police officer's view of the circumstances based on his training or experience in the field. A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.[47]
  • While a trial judge is owed deference in relation to his factual findings, whether those factual findings support reasonable suspicion is a question of law, and as such is reviewable on the correctness standard. [60]
And, applying these principles in MacKenzie, the Court emphasised:
  • In assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person standing in the shoes of the police officer. [63]
  • The hallmark of reasonable suspicion, as distinguished from mere suspicion, is that "a sincerely held subjective belief is insufficient" to support the former (Kang-Brown, at para. 75, per Binnie J., citing P. Sankoff and S. Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123, at p. 125). Rather, as Karakatsanis J. observes in Chehil [26], reasonable suspicion must be grounded in "objectively discernible facts, which can then be subjected to independent judicial scrutiny". [41]
  • Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end. [72]
Giving "reasonable suspicion" as precise a definition as is possible runs counter to a suggestion that the statutory scheme requiring reasonable grounds to suspect the commission of a qualifying offence and reasonable grounds to believe that evidence will be found in the search creates "a regime of relativity: the differentiation simply means that above a minimum floor, more is required in relation to the location of evidence at the target place than in relation to the commission of a crime … [with] a moderated and relativistic interpretation of the thresholds."

Chehil also discusses the use of profiles [39], rejecting it as a basis for suspicion. Here the judicial reasoning is perhaps politically correct, if too subtle, if profiles are based on experience.

MacKenzie mentions facts such as nervousness, red eyes, and erratic driving. The Court split 5-4 on the facts in this case, perhaps illustrating how, notwithstanding the utmost care in being clear about the criterion of reasonable suspicion, its application to particular facts can be controversial.

The difficulties are apparent from this extract from my Misuse of Drugs text, para 1406(a) (citing cases not available online):

For an illustration of analysis of testimony asserting indicia of drug use, see R v Herlund 28/5/08, Duffy J, HC Auckland CRI-2006-004-21413. Here, a suspect's nervousness in police presence lacked significance when it was explained by his being on active charges concerning drug dealing (at [81]), and her Honour emphasised that it is necessary to tie grounds for search to the present occasion, so as to avoid subjecting suspicious looking people, or those known to have drug histories, to a lower standard for search (at [83], applying R v Anderson [2005] 21 CRNZ 393 at [33]). This is not to say that police knowledge that a suspect has active drugs related charges is to be ignored, for in the same case Duffy J held that such knowledge, coupled with the suspect's withdrawal of his consent to a search — upon the discovery of a P pipe in his pocket — did provide proper grounds for a further search: at [58]. This withdrawal of consent was likened to Mr Carroll's [R v Carroll 21/5/04, Rodney Hansen J, HC Auckland CRI–2003-004-41192] effort to conceal the cigarette packet: at [61].

But assertion of rights is not properly a basis for reasonable suspicion, as was stated in Chehil at [44]:

"Nor should the exercise of Charter rights, such as the right to remain silent or to walk away from questioning made outside the context of a detention, provide grounds for reasonable suspicion. These rights become meaningless to the extent that they are capable of forming the basis of reasonable suspicion. Individuals should not have to sacrifice privacy to exercise Charter rights."

[Update:] As this is an oft-visited posting, I should add that the Canadian definition of belief is not universally accepted. Instead of being a high level of confidence, it can be defined as thinking something is the case. If you are thinking of what belief means, without looking for a distinction from suspicion, then indeed you might think that a belief is a high level of confidence in something. But once you have to distinguish between belief and suspicion it usually makes more sense to apply the "suspect ... may, believe ... is" construction. That will be so unless an enactment itself has a "believe ... may" usage, in which case believe must mean thinking something is highly likely. The terms must always be construed in their context, subject to enacted definitions, if there are any. The "suspect ... may, believe ... is" interpretation makes for law that is more readily predictable in its application, than saying belief is a high level of likelihood, and it works against an arbitrary application of the law.