The police were performing a general search at a bus terminal. They were suspicious of Kang-Brown because he was acting very "edgy". When the police asked him to open his bag he obliged, however he flipped out when the police went to look in it. The police called in Chevy the sniffer dog, which identified that there were drugs in the bag. Kang-Brown was charged with possession of cocaine for the purpose of trafficking, and possession of heroin.
- Did the police have "reasonable and probable" grounds to make the search?
There is an argument among the judges concerning whether the Waterfield test applies in this case. A majority of the justices state that you first have to ask if the officer was acting in a "general exercise" of his duty before you get into the Waterfield test. They state that this was not a "dangerous situation" like in Godoy, and that common law rules must not always be extended to cover gaps in the legislation, as this is a role for Parliament. The majority state that the common law duties only come into effect if the officer is acting in an emergency situation, or at least a situation where serious consequences might result. As this is not the case here, the police did not have grounds for the use of the dog. The majority is not stating that s.8 of the Charter prevents sniffer dog searches; they are saying that they can only be used in accordance with the standards set out in s.8 – reasonable search or seizure.
While four of the justices state that the search must be "allowed by law" to be permitted, the five justices not signing on to LeBel's opinion believe that the standard should only require "reasonable suspicion". Two of the justices believe that this standard was not met, whereas three do not.
"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. Because sniffer dog searches are conducted without prior judicial authorization, the after the fact judicial scrutiny of the grounds for the alleged "reasonable suspicion" must be rigorous. Here, the police action was based on speculation. The sniff in this case was an unreasonable search since the RCMP officer did not have grounds for reasonable suspicion at the time the dog was called.
- For the Waterfield test to apply, the police must first be generally acting within the course of their duty before the specific conduct is examined.
- For a sniffer-dog to be used, the police must have "reasonable suspicion" - something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.