The much-anticipated Chehil case seems to disappoint. Why? Is it because the case fails to deliver the legal community a clear and workable standard of reasonable suspicion? Or perhaps the decision disappoints because it adds nothing new to legal discourse? I believe it is the latter as the Supreme Court of Canada attempts to invoke the “kiss” or “keep it simple & straightforward” principle.
Instead of breaking new ground on the concept of reasonable suspicion, the Court opts for consistency. No question the Court is consistent when they admonish trial judges to look at a “constellation of factors” in determining the presence of reasonable suspicion: this warning to take into account the “totality of the circumstances” is an accustomed refrain in many of the SCC’s criminal decisions. It has even been referred to as “the totality of the circumstances test” as in the SCC cases of Tessling or, more recently, Cole in determining “reasonable expectation of privacy.” Of interest, this test was also referred to in the SCC Garafoli decision on wiretap authorizations where the “source” of the test is found in the American Illinois v. Gates case from 1983 on “probable cause,” which states:
The elements under the "two-pronged test" concerning the informant's "veracity," "reliability," and "basis of knowledge" should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place. The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. This flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. Pp. 462 U. S. 230-241. (emphasis added)
As indicated from the excerpt above, the Chehil decision feels like a paraphrasing of a tried and true standard. The only difference is the “reasonable suspicion” standard must be down-graded to a search for “possibilities” as opposed to “probabilities” as required for RPG.
What is familiar is the court’s penchant for the “common-sense” approach. In my previous post on Is the Supreme Court of Canada Kicking It Old School, I suggested Justice Moldaver’s decisions were a flash from the past as he relied on his experience as a trial judge where common sense ruled. So too Madame Justice Karakatsantis is reliving old times when she emphasizes how the inquiry “must be fact-based, flexible, and grounded in common sense and practical, everyday experience.” In the SCC universe, the judicial lens is not rose coloured neither is judicial decision making “rocket science” either.
Also familiar in Chehil is the “tweaking” of the Kang-Brown case by requiring sufficiently probative evidence that specifically links this accused to the crime alleged as opposed to relying on generalities. This seemingly new approach is really just an old approach as the SCC renders another decision in support of the “contextual approach.” The real and only question to be answered by the trial judge is the an old one: “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?” Thus, context is everything and everywhere in the realm of judicial possibilities.
Even Madame Justice Karakatsantis’s caution not to base the assessment on investigative profiling is no different than the SCC’s earlier positions on racial profiling and gender-based stereotyping. Thus, we are reminded that “stereotyping and discriminatory factors” are not a justification for intrusive investigative techniques. Yet, a police officer’s “knowledge, training, and experience” are appropriate justifications even though such knowledge is gleaned from profile training.
Another “been there, done that” aspect to this decision is a throw back to my previous post Is Reasonable Suspicion Going To The Dogs? in which I speculate on the forthcoming Chehil case, hoping it will not simply be a re-working of the modified objective standard so popular in the judicial assessment of defences. Unfortunately, this is the case as the trial judge is urged to consider the objective standard in context and in light of the circumstances of the case. Such modification, when done contextually, does not advance the legal issues but obfuscates them. It is difficult enough to use an objective standard based on an artificially designed reasonable person but to use it in the context of real facts and real people is mind boggling at the very least. It would be like taking the facsimile of the reasonable person and pasting it into a personal photo album. The result? Consistent artifice. Now isn’t that contrary to common sense?