Chehil/MacKenzie v. Her Majesty the Queen (Reasonable Suspicion & Sniffer Dogs)

Chehil/MacKenzie v. Her Majesty the Queen (Reasonable Suspicion)

CIPPIC has intervened [1] in two joint appeals before the Supreme Court of Canada: Chehil v. Her Majesty the Queen, S.C.C. File No. 34524 [2] and MacKenzie v. Her Majesty the Queen, Supreme Court File No. 34397 [3]. These appeals call on our highest court to clarify the parameters of what constitutes a 'reasonable suspicion'. The reasonable suspicion standard forms the basis of an increasing panoply of state surveillance powers. The crown is arguing for a 'reasonable suspicion' standard that effectively rubber stamps law enforcement 'intuition'. If adopted, courts will ask to defer to law enforcement 'expertise' in assessing whether suspicions are reasonable. In addition, police will be able to systematically apply 'suspicious' profiles to mine data repositories and invade the privacy of many Canadians.

The cases under appeal involve sniffer dogs. Individuals were deemed 'suspicious' on the basis of a confluence of innocuous factors such as: travelling from known drug centres (Vancouver and Calgary, respectively), purchasing a last minute ticket (Chehil), travelling two kilometres above the speed limit (MacKenzie), checking just one bag on a flight (Chehil), appearing nervous (MacKenzie) and buying a plane ticket with cash (Chehil). The ultimate constituent elements of this standard will have far-reaching implications, as what is considered 'reasonably suspicious' will form the basis of many surveillance powers. Under Bill C-30 alone [4], if it passes, the government will be able to force service providers to hand over cell phone location data, traffic data (such as what websites you visit), and interaction data (such as who you speak to or who you interact with online) if they are able to convince a judge that they have 'reasonable suspicion'.

Resources

• CIPPIC's Filings
  • Factum [1]
  • Intervention Application [5]
• Lower Court Decisions:
  • R. v. Chehil, 2011 NSCA 82 [6]
  • R. v. MacKenzie, 2011 SKCA 64 [7]
• Appellant's Factums
  • Mandeep Singh Chehil [8]
  • Benjamin Cain MacKenzie [9]
• Respondent's Factums
  • Public Prosecution Service of Canada (Chehil [10])
  • Public Prosecution Service of Canada (MacKenzie [11])
• Additional Reading:
  • R. Calo, "Drones, Dogs & the Future of Privacy [12]", March 18, 2012, WIRED.com
  • J. Bailey, "Across the Rubicon and into the Apennines: Privacy and Common Law Police Powers after A.M. and Kang-Brown" (2009) 55(2) Crim L. Q. 219 [13]
  • I. Kerr & J. McGill, "Emanations, Snoop Dogs & Reasonable Expectations of Privacy", (2007) 52(3) Crim. L. Q. 392 [14]