Barry Nychuk and Stan MacDonald QC are criminal lawyers from opposite sides of the country. But they came together in Ottawa for the combined hearings of MacKenzie and Chehil where they asked the Supreme Court of Canada for some much needed guidance on the standard of “reasonable suspicion” necessary to animate a police sniffer-dog search. After the hearing, Moira had a chance to talk to Barry and Stan about their experiences bringing these cases before the Court.
Q: What issue was before the Court in MacKenzie and Chehil?
Barry: We were arguing the “reasonable suspicion” standard in the dog sniffer context. My case involved a roadside stop in Saskatchewan where my client was subject to a dog sniffer search and marijuana was found in his trunk. Basically, we were arguing that we need some clarity and guidelines as to what is a “reasonable suspicion”. Right now, the law is so uncertain that we don’t know what it is.
Stan: My case involves a different setting–it’s in an airport context which has some implications for expectation of privacy. But it goes back to the same issue. What animates a dog-sniff search? What really adds up to “reasonable suspicion”?
Q: Why do you think leave to appeal was granted on this issue?
Stan: This sniffer dog concept is relatively new in terms of how the police can deploy a dog on “reasonable suspicion”. And, as mentioned by Chief Justice McLachlin today, the “reasonable suspicion” standard is not being applied uniformly. Hopefully the Court can give some clear direction on this because it implicates a lot of people–travellers on the roadway, on buses, in airports–thousands and thousands of people every day.
Barry: I think we got leave because there was so much confusion on this issue. I think the Supreme Court looked at a whole constellation of things and said we’ve got to fix this.
Q: You both had the rare opportunity to argue your leave applications before the Court. Do you have any suggestions for other lawyers who may have this opportunity?
Barry: Yes. It’s important to argue the leave application if you have the chance. And if I had any advice to give it’s that you want to be present at the hearing, as opposed to appearing by video conference. Being in Court was a big advantage. You can make an impression. You can see what the judges are thinking. It doesn’t have the same impact if you appear on a video screen.
Q: How did the leave application hearing help you prepare for the appeal?
Barry: At the first hearing, I was able to get a sense of where some of the judges might be on the issues. Chief Justice McLachlin seemed to recognize our concern that there’s no evidence of criminality in these cases–that we’ve gone from a high standard of reasonable and probable ground to no evidence of criminality at all.
Stan: The leave application hearing really helped me to focus the issues for the appeal factum. And the other thing about coming up to Ottawa and arguing the leave application is that you develop a degree of comfort with the surroundings–because they are imposing surroundings. So if you can get here and argue the application in person, it really makes a big difference with your comfort level in being here–which of course helps you argue your case better on appeal if leave is granted.
Q: How does arguing a case before the Supreme Court of Canada compare to arguing at the court of appeal?
Stan: We’ve all been to court–we go to court all the time. But it’s a different court. There’s no other way to say it. It’s a different level of pressure. In the court of appeal, you try to argue the law, of course, but there’s a lot more emphasis on the facts. It’s much more case-oriented. Whereas here it’s much more issue-oriented. It’s about the big picture. This means you have to stretch yourself out and do more reading to try to get a better understanding of the broader issues.
Q: What did you find most challenging about this experience?
Barry: The most challenging thing for me was getting bombarded with motions and intervener factums in the last week before the hearing. On top of that, I had a busy court schedule last week. So if I were to do this again, especially if you have interveners and can expect a lot of paper in the week leading up to your hearing, make sure you don’t have a busy schedule so you can dedicate the time to reading that paper work.
Stan: That’s exactly right. There were four interveners in this case. You can’t just disregard them. You really have to take them into account. So with all this, it’s important to try to stay focused as the hearing approaches and when you get inside the courtroom and the hearing begins. It’s a big, big effort to stay focused. It’s so easy to get dragged in all these different directions.
Q: Your appeals were heard together, and you had to share the 60 minutes allowed for argument by the Appellant. Was it difficult having only 30 minutes each to present your argument?
Stan: I found it a huge challenge. It was extremely difficult to cut the argument down to 30 minutes, and that doesn’t leave time for questions. If you’re coming up here for a 30 minute argument, make sure your argument would only be 15 or 20 minutes, and work off that, because you’re going to get questions.
Barry: Half an hour is a short time frame. I only scheduled 15 or 20 minutes of talking, and I still didn’t get through it because you’re getting questions and you’re going through your stuff. So yes, there were challenges. But there were also benefits to having the appeals heard together. I was able to review Stan’s materials, and he was able to review mine. We actually got together when I was in Nova Scotia to discuss the case and divide up some of the tasks. I relied on Stan to get most of the American jurisprudence, and he relied on me to deal with the question of judicial deference.
Q: Do you have any final words of advice for a lawyer who is preparing to appear before the Supreme Court of Canada?
Stan: Yes. Make sure you have a good agent who can answer all your questions.
Barry: And get a big retainer. It’s a lot of work, and you would never feel comfortable coming before this Court and taking a lot of shortcuts.
The reasons of the Supreme Court of Canada in R v Chehil, 2013 SCC 49 and R v MacKenzie, 2013 SCC 50 were released on September 27, 2013.