R. v. Nolet

R. v. Nolet
Collection
Supreme Court Judgments
Date
2010-06-25
Neutral citation
2010 SCC 24
Report
[2010] 1 SCR 851
Case number
33032
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Saskatchewan
Subjects
Constitutional law
Professional law
Notes
SCC Case Information: 33032
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851
Date: 20100625
Docket: 33032
Between:
Regent Nolet and John Vatsis
Appellants
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 55)
Binnie J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)
______________________________
R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851
Regent Nolet and John Vatsis Appellants
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Nolet
2010 SCC 24
File No.: 33032.
2009: December 14; 2010: June 25.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Search and seizure — Warrantless searches conducted in conjunction with random roadside stop — Police officer finding regulatory violations after random stop of truck of accused and discovering large amount of cash bundled in small bills during search of truck cab while looking for truck’s documents — Accused subsequently arrested for possession of proceeds of crime — Search of truck trailer two hours after arrest revealing hidden compartment with large quantity of marijuana — Additional documentation relevant to provincial offences discovered next day during inventory search of truck cab — Whether truck stopped for legitimate highway purposes — Whether “predominant purpose” test is applicable to invalidate regulatory search when police look in truck cab expecting to find evidence of criminal activity as well as contraventions of commercial trucking regulations — Whether police had reasonable and probable grounds to arrest accused — Whether long‑haul truckers have reasonable expectation of privacy in truck cab — Whether searches of truck infringed constitutional rights of accused to be secure against unreasonable search and seizure — If so, whether evidence gathered during these searches should be excluded — Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) — The Highways and Transportation Act, 1997, S.S. 1997, c. H‑3.01, s. 63(5)(b).
Constitutional law — Charter of Rights — Arbitrary detention — Random roadside stops — Whether random stop of truck of accused by police related to legitimate highway purposes — Whether random stop infringed constitutional rights of accused not to be arbitrarily detained — Canadian Charter of Rights and Freedoms, s. 9 — The Highway Traffic Act, S.S. 1986, c. H‑3.1, s. 40.
Police — Powers — Search powers — Warrantless searches conducted in conjunction with random roadside stop — Police officer finding regulatory violations after random stop of truck of accused and discovering large amount of cash bundled in small bills during search of truck cab while looking for truck’s documents — Accused subsequently arrested for possession of proceeds of crime — Search of truck trailer two hours after arrest revealed large quantity of marijuana in hidden compartment — Additional documentation relevant to provincial regulatory offences discovered next day during inventory search of truck cab — Whether police search powers exercised in manner that infringed right of accused to be secure against unreasonable search and seizure — Canadian Charter of Rights and Freedoms, s. 8 .
The accused were travelling along the Saskatchewan portion of the Trans‑Canada Highway in an empty commercial tractor‑trailer truck licensed in Quebec when they were stopped by an RCMP officer engaged in a random check under the provincial Highways and Transportation Act (“H&TA”). The officer noticed an expired fuel sticker on the outside of the truck and, after requesting the vehicle registration, noted that it was not registered for commercial driving in Saskatchewan. These constituted provincial regulatory offences. The logbook also did not correspond to the stops listed in the proffered bills of lading. The officer was given permission to inspect the trailer. It was empty, but it “didn’t appear right” to the officer. Being alone, he decided not to enter the trailer but to pursue the issue of the defective trucking documents. He advised the accused that he would be inspecting the truck cab, but did not seek consent for the search. He found a small duffle bag immediately behind the driver’s seat in the sleeping compartment. As relevant documents were often kept in that manner, and as, at a touch, it appeared to contain paper, he opened it to find $115,000 bundled in small denominations. As this was typical of drug transactions, he immediately placed the accused under arrest for possession of the proceeds of crime. The officer summoned back‑up and a roadside search of the trailer confirmed the likelihood of a hidden compartment. The truck was then driven to the nearest RCMP detachment where, about an hour and a half later, a hidden compartment containing 392 pounds of marijuana was found. The following day, during an inventory search of the contents of the truck cab, a different officer discovered considerable additional documentation relevant to the H&TA offences. The accused were charged with trafficking, possession of marijuana for the purposes of trafficking, and possession of proceeds of crime. The trial judge concluded that the searches were unreasonable, excluded the money and the marijuana, and acquitted the accused. In a majority decision, the Court of Appeal found no infringement of the Charter , set aside the acquittals and ordered a new trial.
Held: The appeal should be dismissed.
The courts must proceed step by step through the interactions of the police and the accused from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Such information as it emerges may entitle the police to proceed further, or, as the case may be, require them to end their enquiries and allow the vehicle to resume its journey.
If the Charter is violated, it makes little difference that the police in searching the truck had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.
Random roadside checks of vehicles for highway traffic purposes must be limited to their intended purpose and cannot be turned into an unfounded general inquisition or an unreasonable search.
Here, the random stop was directly related to legitimate highway purposes and was valid. As such, this initial stop under s. 40 of The Highway Traffic Act did not violate s. 9 of the Charter . The H&TA power of search and seizure was then properly invoked because the officer quickly obtained reasonable grounds to believe that the accused were operating the truck in various violations of the H&TA. At the time the officer began to investigate the truck cab, it was within his statutory authority to search for further evidence related to H&TA offences. In these circumstances, the continued detention of the accused was not arbitrary, and the search for relevant papers was authorized by s. 63(5)(b) of the H&TA and, at least initially, was not unreasonable.
While much of the debate on the appeal focussed on whether the search of the duffle bag was or was not covered by s. 63(5), this inquiry is important but not sufficient. A distinction must be drawn between the existence of a police power and the further issue of whether a power, otherwise legal, is exercised in violation of s. 8 of the Charter , having regard to a trucker’s reasonable expectation of some privacy in the sleeping area of the cab, including the space behind the front seats where the duffle bag with the money was found. While the accused did not testify about their subjective belief, a court may presume that individuals would expect a measure of privacy in what, for a long‑distance trucker, suffices as a temporary mobile home. Even rudimentary living quarters are subject to an objectively reasonable expectation of privacy. In the case of truck cabs, the level of expectation is necessarily low. Commercial trucking is a highly regulated industry and commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions.
The trial judge found, and the accused contend, that the officer’s search of the duffle bag should be attributed predominantly to his interest in illegal criminal activity and, as such, fell outside any valid regulatory purpose. The question, however, is not which purpose is predominate or subordinate. As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the proper issue is whether the power was exercised in such a way as to violate s. 8 of the Charter by infringing the reasonable expectations of privacy of the accused.
In this case, as events progressed from the police stop to the initial regulatory search of the cab, there was no police invasion of the minimal privacy interest that existed. The officer did not proceed immediately to open the duffle bag without some preliminary evaluation of its likely relevance to the regulatory search. He pushed down on the outside of the bag and felt and heard what seemed like paper, suggesting the existence of items connected to the H&TA inquiry. In the circumstances, it was not unreasonable, given the very limited privacy interest of the accused, for the officer to open the bag. At that point, the cash was in plain view.
The arrest for possession of the proceeds of crime was also valid. While the discovery of a large sum of cash may not on its own constitute objective, reasonable and probable grounds to arrest for possession of proceeds of crime, the factual elements of this case, viewed cumulatively rather than in isolation, provided objective support for the officer’s subjective belief that he had reasonable and probable grounds to make the arrests.
The seizure of the marijuana was Charter ‑compliant as the search was incidental to a valid arrest for possession of the proceeds of crime. The officer was justified in searching the vehicle in which the cash was found for evidence of the criminal activity to which the money related. The trial judge correctly found an absence of “exigent circumstances”, but the justification for the warrantless search was the link between the location and purpose of the search and the grounds for the arrest, not exigent circumstances. The lapse of about two hours between the roadside arrest and the search of the trailer’s secret compartment is not significant and did not undermine the close causal and spatial connection between the arrest and the search. The truck was impounded in the RCMP yard. This delay resulted in no prejudice to the accused. In these circumstances, no distinct and separate demonstration of reasonable and probable grounds was required.
The inventory search of the cab later in the morning was, however, invalid. That search was pursuant to RCMP administrative procedures rather than incidental to the arrest of the accused. As a result, it did not meet the requirements of a warrantless search, and the fruits of the “inventory” search were thus harvested in breach of s. 8 . Nevertheless, the evidence ought not to be excluded under s. 24(2) of the Charter . The RCMP officers would have discovered it had they continued the regulatory search. In any event, the subsequent inventory search for administrative purpose of an impounded truck that has already been searched previously to discover evidence of a crime is a technical breach with a minimal impact on Charter ‑protected interests.
Cases Cited
Distinguished: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494; R. v. Ladouceur, 2002 SKCA 73, 165 C.C.C. (3d) 321; Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757; referred to: R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Caslake, [1998] 1 S.C.R. 51; Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214; R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Edwards, [1996] 1 S.C.R. 128; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Kang‑Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Annett (1984), 17 C.C.C. (3d) 332, leave to appeal refused, [1985] 1 S.C.R. v; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227; R. v. Sewell, 2003 SKCA 52, 175 C.C.C. (3d) 242; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Perello, 2005 SKCA 8, 193 C.C.C. (3d) 151; R. v. Franks, 2003 SKCA 70, 176 C.C.C. (3d) 488; R. v. Marin, [1994] O.J. No. 1280 (QL); R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679; R. v. Rao (1984), 12 C.C.C. (3d) 97; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Caprara (2006), 144 C.R.R. (2d) 287; R. v. Chubak, 2009 ABCA 8, 243 C.C.C. (3d) 202; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 9 , 24(2) .
Dangerous Goods Transportation Act, S.S. 1984‑85‑86, c. D‑1.2.
Highway Traffic Act, S.S. 1986, c. H‑3.1, s. 40(8), (9).
Highways and Transportation Act, 1997, S.S. 1997, c. H‑3.01, ss. 63(5), (6), 64(1), (2), (3), 66(1), 69(1).
Motor Carrier Act, S.S. 1986, c. M‑21.2, s. 32.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Jackson, Smith and Wilkinson JJ.A.), 2009 SKCA 8, 320 Sask. R. 179, 444 W.A.C. 179, 183 C.R.R. (2d) 138, 245 C.C.C. (3d) 419, 74 M.V.R. (5th) 1, [2009] 4 W.W.R. 604, [2009] S.J. No. 40 (QL), 2009 CarswellSask 39, setting aside the acquittals of the accused and ordering a new trial. Appeal dismissed.
Mark Brayford, Q.C., and Glen E. Luther, for the appellants.
Douglas G. Curliss and Mark Covan, for the respondent.
The judgment of the Court was delivered by
[1] Binnie J. — This appeal is concerned with police search powers incident to random stops under the Saskatchewan Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01 (“H&TA”), and, in particular, whether the police conduct in this case amounted to an abuse of their statutory stop and search powers so as to render evidence of drug dealing and the “proceeds of crime” inadmissible under s. 8 or s. 9 of the Canadian Charter of Rights and Freedoms .
[2] The appellants were travelling eastward along the Saskatchewan portion of the Trans-Canada Highway with a passenger (now deceased) in an empty 53-foot commercial tractor-trailer unit licensed in Quebec. When pulled over by an RCMP officer in a “spot check”, it emerged the truck’s registration was not prorated to include the province. The appropriate fuel sticker had expired. The appellant Nolet produced a logbook that was incomplete but indicated that the truck normally operated east of the Manitoba border. One discovery led to another and in the end the police found $115,000 in cash in the truck and 392 pounds of marijuana, valued at somewhere between $1.1 million to $1.5 million, concealed in a secret compartment in the trailer. The appellants were charged in a multi-count indictment alleging (1) trafficking, (2) possession of marijuana for the purposes of trafficking, and (3) possession of proceeds of crime in excess of $5,000. The trial judge found Charter breaches and excluded the evidence (2006 SKQB 393, 283 Sask. R. 159 ). She acquitted the appellants. The Court of Appeal, Jackson J.A. dissenting in part, reversed (2009 SKCA 8, 320 Sask. R. 179 ).
[3] Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”: R. v. Mellenthin, [1992] 3 S.C.R. 615, at p. 624.
[4] Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for a court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Analysed in this way, I believe the majority reached the correct conclusion. I would dismiss the appeal.
I. Facts
[5] On February 16, 2004, a little after 11:00 p.m., the appellants and passenger Marc Blain were stopped by an RCMP officer engaged in a random check under the H&TA. The appellant Vatsis was driving the Quebec-licensed commercial tractor-trailer unit. Nolet was in the passenger seat. Blain, now deceased, was behind the front seats in a sleeping compartment. The officer noticed the expired IFTA fuel sticker on the outside of the vehicle. Driving without a current sticker is a provincial offence. He requested the driver’s licence, logbook (which should indicate, e.g., whether the drivers had been too long on the road) and vehicle registration. The documents produced by Vatsis listed Nolet as a co-driver. Blain was not mentioned (it was later explained that he was just a passenger). Nolet told the officer they were now travelling empty having unloaded cargo in Edmonton and Moose Jaw. These stops were not recorded in the logbook, which equally did not correspond to the stops listed in the proffered bills of lading covering the westbound portion of the trip. There seemed to the officer to have been some fiddling with the odometer numbers.
[6] The failure to prorate the vehicle registration for commercial driving in Saskatchewan is also a provincial infraction. Questioned about the registration, Nolet said that the vehicle did not usually go any further west than Ontario. A commercial vehicle without the requisite permits can immediately be prohibited from further travel within the province (s. 66(1) of the H&TA).
[7] The officer asked whether he could inspect the trailer. Nolet agreed. The trailer was empty. The police officer thought it “looked odd” but “at that point I couldn’t put my finger on it . . . it didn’t appear right” (A.R., vol. 2, at p. 178).
[8] The officer, being alone, decided not to enter the trailer but to pursue the issue of defective trucking documents. He testified as follows:
A. I determined that there were a number of concerns with this vehicle and its documents. I returned to the tractor with Mr. Nolet. I advised them that I would be inspecting the interior of the tractor amongst other things, documents as well.
Q. And what was the nature of the documents you hoped to obtain from the interior of the tractor?
A. I had hoped to obtain documents to confirm or dispute the contents of the log books, . . . previous bills of ladin[g], tickets, those types of documents. I also wanted to see if they were running with multiple log books, whether or not the third person, Mr. Blain had a log book, whether there was another log book for Mr. Vatsis. Hopefully finding older log books, those were the sorts of documents that I was interested in. [A.R., vol. 2, at pp. 179-80]
[9] The officer did not seek consent from the appellants for this search — he testified it was because the occupants had cooperated so far. Immediately behind the driver’s seat in the sleeping compartment, he found a small Roots blue and white duffle bag. The officer testified that when he touched the bag its contents crackled like paper, so he opened it, assuming (he said) it contained old logbooks or travel documents. He testified that in his experience “often truck drivers will collect or keep various documents over long periods of time in a bag or in a box similar to that size I suppose, so I would be expecting to find documents in a briefcase or a bag or a box or even loose amongst the various areas of the tractor” (A.R., vol. 2, at pp. 181-82). However the duffle bag contained money — $115,000 — bundled in small denominations, mainly $20 bills. The officer testified that in his experience this sort of packaging of cash was typical of drug transactions and he immediately placed the appellants and Blain under arrest for possession of the proceeds of crime. Nine minutes had elapsed since the initial stop.
[10] Police back-up was summoned. The trailer was inspected again. At this point the officers discovered that the interior measurement of the trailer was about three feet shorter than the exterior length, indicating the presence of a hidden compartment. The officers directed the appellants to drive the rig about 10 kilometres to the nearest RCMP detachment, where they arrived just before midnight.
[11] About an hour and a half later, the officers opened up the hidden compartment. It contained 392 pounds of packaged cannabis marijuana valued at between $1.1 and $1.5 million (C.A., at para. 1).
[12] The following day around 1:00 p.m., RCMP Corporal Caroline Houston of the Integrated Proceeds of Crime Unit made an inventory of the contents of the tractor-trailer pursuant to the policy of the RCMP Seized Property Management Directorate. She discovered considerable additional documentation relevant to the H&TA offences, including factory decals, registration papers and permits for different companies, etc. (C.A., at paras. 6 and 48-50). This paraphernalia when applied to the exterior would make the truck look like “a completely different truck” (A.R., vol. 3, at p. 87).
[13] At no time during this series of inspections, searches and seizures did the police obtain a search warrant.
II. Relevant Statutory Provisions
[14] Canadian Charter of Rights and Freedoms
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
The Highway Traffic Act, S.S. 1986, c. H-31
40 . . .
(8) A peace officer who:
(a) is readily identifiable as a peace officer; and
(b) is in the lawful execution of his or her duties and responsibilities;
may require the person in charge of or operating a motor vehicle to stop that vehicle.
(9) A person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (8), immediately bring that vehicle to a safe stop.
The Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01
63 . . .
(5) Where the peace officer or the person appointed by the minister has reasonable grounds to believe that a vehicle is being operated in contravention of . . . a regulation made pursuant to clauses 69(1)(v) to (oo), the peace officer or person appointed by the minister may:
(a) request or signal to the person in charge of or operating the vehicle to stop the vehicle;
(b) search the vehicle for evidence of an offence; and
(c) seize anything that may be evidence of an offence.
(6) The person in charge of or operating a vehicle, when requested or signalled to stop pursuant to subsection (5), shall:
(a) immediately bring the vehicle to a safe stop;
(b) permit the peace officer or the person appointed by the minister to search the vehicle; and
(c) provide any information that the peace officer or person appointed by the minister requires in the fulfilment of his or her duties pursuant to this Act or the regulations.
64(1) Where a justice of the peace or judge of the Provincial Court of Saskatchewan is satisfied by information on the oath of a peace officer or a person appointed by the minister that there are reasonable grounds to believe that an offence against this Act has occurred and that evidence of that offence is likely to be found, the justice of the peace or the judge of the Provincial Court of Saskatchewan may issue a warrant to do all or any of the following:
(a) enter and search any place or premises named in the warrant;
(b) search any vehicle described in the warrant;
(c) seize anything that may be evidence of an offence against this Act.
(2) With a warrant issued pursuant to subsection (1), the peace officer or person appointed by the minister may:
(a) enter and search any place or premises named in the warrant;
(b) search any vehicle described in the warrant;
(c) open and examine any trunk, box, bag, parcel, closet, cupboard or other receptacle that the peace officer or person appointed by the minister finds in the place, premises or vehicle;
(d) require the production of and examine any records or property that the peace officer or person appointed by the minister believes, on reasonable grounds, may contain information related to an offence against this Act;
(e) remove, for the purpose of making copies, any records examined pursuant to this section; and
(f) seize and remove from any place, premises or vehicle searched anything that may be evidence of an offence against this Act.
(3) Subject to subsection (4), the peace officer or person appointed by the minister may exercise all or any of the powers mentioned in subsection (2) without a warrant issued pursuant to this section if:
(a) the conditions for obtaining a warrant exist; and
(b) the peace officer or person appointed by the minister has reasonable grounds to believe that the delay necessary to obtain a warrant would result:
(i) in danger to human life or safety; or
(ii) in the loss, removal or destruction of evidence.
66(1) A peace officer, without a warrant, may seize any vehicle that the peace officer has reasonable grounds to believe is being driven in contravention of . . . regulations made pursuant to clauses 69(1)(v) to (oo) and may retain it in his or her possession or store it in a suitable place.
The Motor Carrier Act, S.S. 1986, c. M-21.2
32(1) A peace officer or a person appointed by the board may order the driver or owner of a vehicle to submit the vehicle or any combination of vehicles or the cargo being carried on such a vehicle to any examination and tests that the peace officer considers necessary.
(2) If, in the opinion of the peace officer or a person appointed by the board, the vehicle or combination of vehicles or the cargo being carried on such a vehicle is found to be unfit for transportation or dangerous to passengers or the public or for any other reason results in a contravention of this Act or the regulations, he may:
(a) order the driver or the owner of the vehicle to take any steps that are necessary to eliminate the contravention; and
(b) order that the vehicle be removed from the highway until compliance with this Act and the regulations is established.
(3) Every occupant of a vehicle which is being examined or tested or the cargo of which is being examined or tested pursuant to this Act shall, when requested, provide reasonable assistance to the person who is conducting the examination.
III. Judgments
A. Court of Queen’s Bench of Saskatchewan (Pritchard J.), 2006 SKQB 393, 283 Sask. R. 159
[15] The trial judge held that the police inspection powers under legislation governing commercial vehicles on the highway did not extend to permit a warrantless search of the small duffle bag located in the sleeping compartment of a tractor unit in circumstances where the officer had no reasonable or probable grounds to believe that criminal offences had been committed. While the expectation of privacy in a commercial vehicle is generally less than in a private vehicle, which itself is generally less than in a private home or office, even this lesser privacy interest was entitled to Charter protection. She stated:
Is it reasonable to conclude that the officer had bona fide regulatory concerns that prompted him to further investigate this commercial vehicle? On the one hand, he had found sufficient irregularities in a very short span of time to be concerned that there could be more. He had already found breaches of provincial legislation that justified at least one if not more tickets. And, given that the unit was not registered for commercial use in Saskatchewan, the officer was entitled to immediately prohibit the vehicle from any further travel within the province until the proper permit was obtained. Given these considerations and nothing more, it might be reasonable to conclude that the officer continued his investigation to check for further regulatory infractions. Nevertheless, given the totality of the circumstances, it does appear that the officer was more interested in looking for evidence of criminal activity than for contraventions of commercial trucking regulations. I come to this conclusion based on the “irregularities” that were concerning the officer and in particular, his suspicion that there may have been some alterations done to the trailer. Such a concern does not relate primarily to commercial trucking regulations. It relates to suspected criminal activity. [Emphasis added; para. 19.]
[16] In the trial judge’s view, the warrantless searches were unreasonable and the evidence of the money and the marijuana was excluded. The appellants were acquitted.
B. Court of Appeal for Saskatchewan, 2009 SKCA 8, 320 Sask. R. 179
(1) Wilkinson J.A. (Smith J.A. Concurring)
[17] In the majority view, a mere hunch or speculation that a trailer had been altered or refabricated, even if hidden contraband was the suspected reason for the alteration, did not taint an otherwise lawful regulatory search. The appellants had not established that the police were exploiting the highway regulatory inspection as a convenient pretext in the rapidly unfolding circumstances that confronted the officers at the roadside.
[18] The detention was not arbitrary. The search for documents was authorized by law. The police had not violated the appellants’ reasonable expectation of privacy. There was no infringement of s. 8 . The money found in the duffle bag should not have been excluded from evidence. The marijuana was located in a search incidental to a lawful arrest. This is an exception to the principle that warrantless searches are prima facie unreasonable. In the majority view, the two items of evidence, namely the marijuana and the cash, ought both to have been admitted into evidence. A new trial was ordered.
(2) Jackson J.A. (Dissenting in Part)
[19] Jackson J.A. concluded that the trial judge did not err in holding that the police officer could not rely on a regulatory search power once his “focus” became criminal activity. A police officer could not search for contraband with that as the purpose or one of the defined purposes of the search, because the search authority extended to regulatory matters only. However, Jackson J.A. agreed with the majority that if the arrest had been lawful, the searches undertaken as incident to that arrest would have been lawful as well.
[20] Applying s. 24(2) of the Charter , Jackson J.A. drew a distinction between the money and the marijuana. In her view, the cash was rightly excluded, but the marijuana ought to have been admitted. Thus, in the result, she would have sustained the acquittal on the “proceeds of crime” charge, but set aside the acquittals in relation to the possession and trafficking of drugs charges, and ordered a new trial in relation to the drug charges only.
IV. Analysis
[21] At the heart of this appeal lies the thorny issue of warrantless searches conducted in conjunction with random roadside stops. A warrantless search is presumptively unreasonable and contrary to s. 8 of the Charter , which guarantees to everyone “the right to be secure against unreasonable search or seizure”. In the absence of a warrant, the Crown must establish on a balance of probabilities that the search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at p. 278, and R. v. Caslake, [1998] 1 S.C.R. 51, at para. 10.
[22] The appeal also engages s. 9 of the Charter (“the right not to be arbitrarily detained or imprisoned”). A random vehicle stop on the highway is, by definition, an arbitrary detention: Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257 (hereinafter “Ladouceur (Ont.)”); Mellenthin; and R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214. The detention will only be justified under s. 1 of the Charter (Hufsky, at p. 637) if the police act within the limited highway-related purposes for which the powers were conferred (Ladouceur (Ont.), per Cory J., at p. 1287).
A. The Initial Stop
[23] Random roadside stops must be limited to their intended purposes. “A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over”, per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana a couple of hours later as well as the follow-up “inventory search” the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. 8 or s. 9 of the Charter . A roadside stop is not a static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey.
[24] Much of the debate on the appeal focussed on whether the search of the duffle bag was or was not covered by s. 63(5) of the H&TA. This inquiry is important but not sufficient. A distinction must be drawn between the existence of a police power and the further issue of whether that power, otherwise legal, is exercised in violation of s. 8 of the Charter , having regard to a trucker’s reasonable expectation of some privacy in the sleeping area of the cab. An exclusive focus on police powers under the H&TA may not give adequate weight to Charter concerns. Equally, restricting the Court’s focus to the Charter may distract attention from the important preliminary question of whether the police possessed the power to conduct a search in the first place.
[25] The Court has ruled on a number of occasions that pursuant to statutory authority, the police officers can randomly stop persons for “reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: Ladouceur (Ont.), at p. 1287. See also R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41; Mellenthin, at p. 624. The courts below held that the appellants’ truck was stopped for the valid purpose of carrying out an H&TA document check, and this issue is no longer seriously in dispute. The stop was valid. On this basis, the case is readily distinguishable from our Court’s recent ruling in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, where the accused had been pulled over for no valid purpose. The police equally exceed their powers in the Saskatchewan case of R. v. Ladouceur, 2002 SKCA 73, 165 C.C.C. (3d) 321 (hereinafter “Ladouceur (Sask.)”), where the officers set up a random stop program called “Operation Recovery” specifically to detect not only highway infractions but to “locate contraband being transported on our highways” (para. 69). For that purpose the Saskatchewan checkpoint was staffed not only with police, but on occasion customs and immigration officials, “tobacco people”, wildlife officials and sniffer dogs (para. 44). The random stop program in Ladouceur (Sask.) was designed as a “comprehensive check for criminal activity” (para. 43) and was therefore fatally flawed from the outset.
[26] In the present case, by contrast, the random stop program was directly related to legitimate highway purposes. Commercial trucking is regulated in every aspect from loads and load safety under The Motor Carrier Act to potentially dangerous cargo under The Dangerous Goods Transportation Act, S.S. 1984-85-86, c. D-1.2. As such, the initial stop, in this case under s. 40 of The Highway Traffic Act, did not violate the s. 9 rights of the appellants: Ladouceur (Ont.), at p. 1287; Orbanski, at para. 41.
B. The Regulatory Search
[27] Section 32(1) of The Motor Carrier Act authorizes a peace officer to “order the driver or owner of a vehicle to submit the vehicle . . . or the cargo being carried on such a vehicle to any examination and tests that the peace officer considers necessary”. In the same vein, s. 63(5) of the H&TA provides that if a police officer “has reasonable grounds to believe that a vehicle is being operated in contravention” of regulatory requirements, he may conduct a warrantless search of “the vehicle for evidence of an offence” and “seize anything that may be evidence of an offence”. In such cases, of course, “an offence” refers to H&TA provisions that include regulation of the manner in which any part of a vehicle or its load is to be marked or labelled; the contents of a driver’s log and the manner in which a driver’s log is to be kept and maintained; the number of hours a driver can be on duty or drive; and, the classes or types of vehicles for which a trip inspection report is to be completed (s. 69(1)).
C. The Highways and Transportation Act Power of Search and Seizure Was Properly Invoked
[28] There is no doubt that, after the initial stop, the officer quickly obtained reasonable grounds to believe that the appellants were operating the truck in violation of the H&TA, having regard to the lack of a truck licence valid in Saskatchewan, the display of an expired fuel sticker and inconsistent entries in the driver’s logbook. At the time the officer began to investigate the cab of the tractor unit, it was quite within his statutory authority to search for further evidence related to H&TA offences.
[29] In these circumstances, the continued detention of the appellants was not arbitrary and the search of the tractor-trailer rig for relevant papers was authorized by s. 63(5)(b). At least initially, they were not unreasonable.
D. The Appellants’ Limited Expectation of Privacy in the Sleeping Area of the Cab
[30] I agree with the trial judge that drivers ordinarily have some expectation of privacy in the sleeping area of a cab of the tractor-trailer, including the space behind the front seats where the duffle bag with the money was found. Whether or not an individual has a subjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made having regard to the totality of the circumstances: R. v. Edwards, [1996] 1 S.C.R. 128, at para. 45; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 8-10 and 48. The onus of proof of such reasonable expectation, to a probability standard, lies on the Charter claimant.
[31] While the appellants did not testify about their subjective belief, the court may presume that individuals would expect a measure of privacy in what, for a long-distance trucker, suffices as a temporary mobile home. The expectation is objectively reasonable because living quarters, however rudimentary, should not be classified as a Charter -free zone: Johnson v. Ontario (Minister of Revenue) (1990), 75 O.R. (2d) 558 (C.A.), and R. v. Belnavis, [1997] 3 S.C.R. 341. Nevertheless, the level of expectation is necessarily low because the cab of a tractor-trailer rig is not only a place of rest but a place of work, and