R. v. Jacques

R. v. Jacques
Collection
Supreme Court Judgments
Date
1996-10-03
Report
[1996] 3 SCR 312
Case number
24558
Judges
Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.
On appeal from
New Brunswick
Subjects
Constitutional law
Notes
SCC Case Information: 24558
Decision Content
R. v. Jacques, [1996] 3 S.C.R. 312
Joseph Ronald Jacques
and Mary Maurene Mitchell Appellants
v.
Her Majesty The Queen in Right of Canada Respondent
Indexed as: R. v. Jacques
File No.: 24558.
1996: February 2; 1996: October 3.
Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for new brunswick
Constitutional law ‑‑ Charter of Rights ‑‑ Search or seizure ‑‑ Police officer stopping and searching appellants’ truck several kilometres from Canada‑U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry ‑‑ Report containing no description of vehicle or passengers ‑‑ Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling ‑‑ Whether officer had reasonable grounds to stop appellants ‑‑ Whether appellants subjected to unreasonable search or seizure ‑‑ Canadian Charter of Rights and Freedoms, s. 8 ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), s. 99(1) (f).
Constitutional law ‑‑ Charter of Rights ‑‑ Arbitrary detention ‑‑ Police officer stopping and searching appellants’ truck several kilometres from Canada‑U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry ‑‑ Report containing no description of vehicle or passengers ‑‑ Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling ‑‑ Whether officer had reasonable grounds to stop appellants ‑‑ Whether appellants arbitrarily detained ‑‑ Canadian Charter of Rights and Freedoms, s. 9 ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), s. 99(1) (f).
An RCMP officer received a radio report from the U.S. border patrol informing him that a single vehicle had crossed the Canada‑U.S. border at a nearby uncontrolled point of entry. No description of the vehicle or of its passengers, contents or licence plates was given. The officer proceeded to the intersection of the road from the border and the Trans‑Canada highway. He testified that it would take approximately three minutes to drive from the border to the intersection, a distance of some four to five kilometres, and that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived he noticed two vehicles waiting. The first in line was a car with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle, which was occupied by the appellants, was stopped by the officer, who stated at trial that he had a choice between the two vehicles and picked the one he felt was more suspicious. When asked where he had been, the driver replied, “I’m coming from across”. He was then asked what he had in the back of the vehicle, and replied that it was whisky. On request, he opened the back of the truck and the officer noted several Wal‑Mart bags and some boxes with liquor markings on them. The officer then placed the appellants under arrest and confiscated their truck. The appellants were charged with failing to report to customs and smuggling. The trial judge found that since the stopping of the appellants' vehicle was based on the officer's hunch, which was insufficient to constitute reasonable grounds, it was arbitrary, and thus a violation of s. 9 of the Canadian Charter of Rights and Freedoms . He also held that the statements by the driver and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter . The Crown called no further evidence and the appellants were acquitted. The Court of Appeal found that the stopping of the appellants' vehicle was permitted under s. 99(1) (f) of the Customs Act , concluding that the officer had reasonable grounds to suspect a contravention of the Act because the truck was on the road leading from the border and did not fit into the surroundings. It set aside the acquittals and ordered new trials.
Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.
Per Gonthier, Cory and Iacobucci JJ.: Having failed to refer explicitly to s. 99(1) (f) of the Customs Act , the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1) (f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto, but the trial judge referred to a probability of illegal smuggling. In assessing the officer's actions, the trial judge also adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances. Since the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act, the appellants were not arbitrarily detained contrary to s. 9 of the Charter . The appellants' right to be secure against unreasonable search and seizure was also not violated. The search carried out met the criteria set out in Collins: it was authorized by law, that law is itself reasonable, and the search was carried out in a reasonable manner. The Crown’s failure to adduce further evidence after the adverse voir dire ruling, thereby necessitating an acquittal, falls far short of an abuse of process. The ruling rendered virtually meaningless any other evidence which the Crown might have been in a position to call. Since it would be absurd to expect the Crown to have proceeded with the trial in those circumstances, its failure to do so does not affect the availability of a new trial. A new trial is warranted here. The excluded evidence, together with the evidence already of record, constitutes circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same.
Per Major J. (dissenting): The trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. While the requirements of s. 99(1) (f) of the Customs Act are not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Here the appellants' vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer also thought the fact that the vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Act. The arbitrary nature of the stop is evidenced by the officer's testimony; he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. He never explained why the truck was the more likely of the two vehicles to have crossed the border. There is nothing illegal per se about crossing the border at an uncontrolled checkpoint. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred. The officer acted on a hunch based on his experience. While experience should not be discounted in evaluating grounds to stop and search a vehicle, allowing police to exercise their considerable powers of detention and arrest based on their experience has the potential to permit ex post facto justification of police action. In assessing the officer's experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. Because there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter . In addition, the subsequent search was unreasonable and violated s. 8 . Finally, the trial judge did not make an error as to the applicable principles of law governing the exclusion of evidence under s. 24(2) , nor was his finding that the admission of the evidence would render the trial unfair unreasonable.
Sopinka J.’s reasons were agreed with.
Per Sopinka J. (dissenting): Major J.’s conclusion and reasons were agreed with. However, even if the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal should be allowed. In an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred. In order to satisfy this burden, which is a heavy one, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty. Here, the evidence of the search is the only evidence in the record. This evidence itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border, and as there were no customs offices on the road they were on, it would have been impossible for them to have reported to a customs office before they were stopped.
Cases Cited
By Gonthier J.
Distinguished: R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361; referred to: R. v. Simmons, [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053; R. v. Bernshaw, [1995] 1 S.C.R. 254; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Marin, [1994] O.J. No. 1280 (QL); R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Power, [1994] 1 S.C.R. 601.
By Major J. (dissenting)
R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361, rev’d (1994), 150 N.B.R. (2d) 7, rev’d [1995] 2 S.C.R. 416; R. v. Simpson (1993), 12 O.R. (3d) 182; R. v. Simmons, [1988] 2 S.C.R. 495; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Burlingham, [1995] 2 S.C.R. 206.
By Sopinka J. (dissenting)
Vézeau v. The Queen, [1977] 2 S.C.R. 277; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Power, [1994] 1 S.C.R. 601.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 8 , 9 , 24(2) .
Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), ss. 11(1) , 99(1) (f), 159 .
APPEAL from a judgment of the New Brunswick Court of Appeal (1995), 157 N.B.R. (2d) 195, 404 A.P.R. 195, 95 C.C.C. (3d) 238, 37 C.R. (4th) 117, overturning the acquittal of the appellants by Harper Prov. Ct. J. (1993), 143 N.B.R. (2d) 64, 366 A.P.R. 64, on charges under the Customs Act . Appeal dismissed, Sopinka and Major JJ. dissenting.
Norville T. Getty, for the appellants.
S. R. Fainstein, Q.C., and Theodore K. Tax, for the respondent.
//Sopinka J.//
The following are the reasons delivered by
1 Sopinka J. (dissenting) -- I agree with the conclusion reached by Justice Major and with his reasons. In my opinion, however, even if, as found by the Court of Appeal and Justice Gonthier, the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal must be allowed.
2 In my opinion, the Crown and the majority of the Court of Appeal have misapprehended the obligation of the Crown in an appeal from acquittal based on an error of law at trial.
3 In an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred (Vézeau v. The Queen, [1977] 2 S.C.R. 277). In R. v. Morin, [1988] 2 S.C.R. 345, at p. 374, this Court held that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty”.
4 In order to satisfy this burden, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty.
5 In this appeal, we have the evidence of the search and no other evidence in the record. What transpired at trial, after the ruling excluding the evidence of the search, is summarized in the following extracts from the trial transcript:
MR. JOHNSON: . . . At this time I would simply advise the Court that we -- if -- if your decision had been different on your interlocutory judgement or if we had otherwise proceeded with the matter, it would have been my intention to have some more viva voce evidence from Corporal Ed Paquet who was giving evidence at the time we concluded the matter in October and adjourned. It was also my intention to call evidence from Constable Joseph Oliver and it was also my intention to call evidence from Mr. Gary Von Ritchter, who is --
COURT: Well nobody --
MR. JOHNSON: An employee of the --
COURT: Nobody is stopping you from doing that.
MR. JOHNSON: No well I say it was my intention to call those two -- or those three, Mr. Von Ritchter being the third from the New Brunswick Liquor Corporation. But in the -- light of your decision, I believe it would --
COURT: Their -- their evidence, if -- if it --
MR. JOHNSON: Be futile to --
COURT: Constable Ward’s evidence is the main evidence. If I am correct, then the Crown’s rights of detention rise or fall on Constable Ward’s testimony. The other testimony would be collateral and really not -- not material to -- to any court coming to a decision on it I don’t think. If I’m wrong of course the other -- the other evidence may be of great help but --
MR. JOHNSON: Well in light of the ruling that you have made, Your Honour, what I have as Crown counsel agreed to do at this point is to terminate our case and not call further evidence for the Crown.
6 The evidence of the search alone is insufficient to discharge this burden. While Gonthier J. finds that it meets the standard set by the Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), to authorize a search, this is a very low standard. As Gonthier J. states (at para. 14):
Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices. [Emphasis added.]
This hardly enables the Court to conclude with a reasonable degree of certainty that based on this evidence the verdict might well result in a conviction.
7 Apparently, the Court of Appeal did not think so but seemed to be of the view that this was not of concern to them but a matter for the new trial. After referring to s. 11(1), the Chief Justice of New Brunswick states ((1995), 157 N.B.R. (2d) 195, at pp. 208-9):
It is my view that this section does not oblige a person to enter Canada only at manned or open border crossings. If that had been Parliament’s intention, it could have been expressed in such terms. Rather, s. 11(1) obliges every person arriving in Canada, with some exceptions that have no application here, to “forthwith present himself at the nearest customs office designated for that purpose that is open for business”.
Mr. Jacques and Ms. Mitchell did not have an opportunity to go to the “nearest” open customs office before they were apprehended by Cst. Ward. While this may become relevant in a new trial, it does not determine the issues in this appeal . . . . [Emphasis added.]
8 Counsel for the Crown in this Court was of the same view. When asked how, in the circumstances, the Crown expected to meet the standard, counsel replied:
That is a matter to be determined at the new trial where all the evidence will be heard by a trier of fact.
As observed by the Chief Justice of New Brunswick, the evidence of the search itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border. As there were no customs offices on Brown Road, it would have been impossible for the appellants to have reported to a customs office before they were stopped by Constable Ward. As a result, apart from the evidence of the search, we have nothing to indicate what the evidence is that the Crown could adduce at a new trial other than the names of several witnesses. The Crown has therefore failed to discharge its duty as required by Vézeau.
9 This requirement is quite separate from and unaffected by what was said in R. v. Power, [1994] 1 S.C.R. 601, to which my colleague Gonthier J. makes reference. Quite apart from the Crown’s obligation arising from Vézeau, if the Crown shuts down its case in order to test an adverse ruling by the trial judge, it may be precluded from appealing if such conduct amounts to an abuse of process. In these circumstances, the Crown is disqualified from appealing. This does not mean, however, that if the Crown does not adduce evidence but no abuse of process is made out, the Crown is relieved of its obligation under Vézeau. Accordingly, it is insufficient for my colleague Gonthier J. to dispose of this point on the basis that there was no abuse of process. It is necessary to explain how the Crown has discharged its duty under Vézeau.
10 Since writing the above, Gonthier J. has amended his reasons to deal with the application of Vézeau. I can find no evidence in the record that together with the excluded evidence could reasonably result in a conviction.
11 I would dispose of the appeal as proposed by Major J.
//Gonthier J.//
The judgment of Gonthier, Cory and Iacobucci JJ. was delivered by
12 Gonthier J. -- I have had the benefit of reading the reasons of my brother, Justice Major, but I am unable to agree with him that Constable Ward, the RCMP officer who stopped the appellants, lacked reasonable grounds to do so under the Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), and that they were therefore arbitrarily detained and subjected to an unreasonable search and seizure in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . It follows that I would dismiss the appeal.
13 I agree, generally, with my colleague's recitation of the facts. With respect to the officer's use of the phrase "illegal entry" in relation to the report he received from the U.S. Border Patrol, I note that the trial judge also used this expression in reference to border crossings. I take it that in both cases, the term "illegal entry" was used merely as the vernacular for a crossing at an unstaffed port of entry. I give no weight to its use.
14 The analysis of this case necessarily focuses on the Customs Act , specifically s. 99(1) (f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159 . With respect to the words "might be" in s. 99(1) (f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.
15 That this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.
16 This legitimate interest of the state is reflected in the scheme and substance of the Customs Act , notably Parts II and VI concerning importation and enforcement respectively. The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory.
17 The standard set by s. 99(1)(f) is not stringent but it is not illusory. It has not been argued, and I do not suggest, that s. 99(1)(f) of the Act authorizes an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.
18 The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528):
National self-protection becomes a compelling component in the calculus.
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.
Travellers arriving in Canada, whether at an airport or through any other point of entry, expect, if they do not relish, routine questioning and inspection. It is not surprising, therefore, that the appellant Jacques in the instant appeal answered Constable Ward's questions about where he had come from and what goods he was carrying just as he would have, had he been questioned at the point of entry three minutes' drive away.
19 In Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, Iacobucci J. observed, at p. 1072:
. . . at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.
20 This passage from Iacobucci J. highlights the need for a contextual approach, which, in Dehghani and in the instant appeal, recognizes the significance of the border situation. Contextual analysis of Charter rights and freedoms is well established in this Court. As L'Heureux-Dubé J. observed, concurring, in R. v. Bernshaw, [1995] 1 S.C.R. 254, at pp. 304-6, in which the appellant challenged the admissibility of breathalyser evidence under s. 8 of the Charter :
Even under the Charter , "reasonable and probable grounds" can mean different things in different contexts. This Court has previously referred to the standard of "reasonable and probable grounds" as one of "credibly-based probability": Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of "reasonable probability" or "reasonable belief": R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what "reasonable and probable grounds" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise.
. . .
Notably, this Court has recognized on numerous occasions that what constitutes "reasonableness" and what constitutes a "reasonable expectation of privacy" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, [1988] 2 S.C.R. 495, at pp. 526-28. "[T]he standard of review of what is ‘reasonable’ in a given context must be flexible if it is to be realistic and meaningful": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.). [Emphasis added.]
21 It is against this backdrop that the language of s. 99(1) (f) of the Customs Act must be understood and the actions of the police officer who stopped and searched the appellants' vehicle weighed. In reaching the conclusion that the appellants' ss. 8 and 9 rights were violated, the trial judge erred in placing the case in the context of arbitrary vehicle checks of the kind considered by this Court in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257. Although an analogy may be drawn between these cases and the instant appeal to the extent that in each the state's compelling interest either in highway safety and compliance in the case of the former, or in sovereignty, in the case of the latter, is relevant in the constitutional calculus, the random stop cases do not govern this appeal. Section 99(1) (f) of the Customs Act does and the trial judge erred by overlooking it.
22 Having failed to refer explicitly to s. 99(1)(f) of the Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1) (f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto. However, with respect to the officer's observation of bags bearing the name "Wal-Mart", Harper Prov. Ct. J. said ((1993), 143 N.B.R. (2d) 64, at p. 75), "such a statement, without more, is hardly evidence supporting any probability of illegal smuggling", and at the end of the same paragraph, referring to the officer's evidence that he saw liquor boxes and U.S. department store items, the trial judge said, "[the evidence] is hardly more helpful to a court attempting to decide whether such statements without more indicate the probable presence of smuggled goods" (emphasis added).
23 This passage, notably the repeated references to evidence "without more", demonstrates another problem with the trial judge's analysis. In assessing the officer's actions, Harper Prov. Ct. J. adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances.
24 A sound approach to the assessment of evidence was canvassed by Doherty J.A. of the Ontario Court of Appeal in R. v. Simpson (1993), 12 O.R. (3d) 182, albeit in a different context, one in which the officer lacked statutory authority unlike in the present case. In determining whether or not a police officer's detention of a vehicle and its driver and passenger could be authorized by common law in the absence of statutory authority, Doherty J.A. reviewed U.S. jurisprudence on the doctrine of articulable cause and stated (at p. 202): "These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."
25 Viewing the facts and circumstances as a whole, rather than isolating each in turn, is an approach which commends itself beyond the fact situation in Simpson. As Belleghem J. observed in R. v. Marin, [1994] O.J. No. 1280 (Gen. Div.), with respect to the facts (or "indicators") warranting a detention and search for narcotics under the Customs Act (at para. 16):
The "indicators" are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole is greater than the sum of the individual parts viewed individually.
26 Turning to the facts in the present appeal, I recall Hoyt C.J.N.B.'s succinct summary in the Court of Appeal ((1995), 157 N.B.R. (2d) 195, at pp. 205-6):
Three minutes before stopping Mr. Jacques' vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. In such circumstances, in my opinion, Cst. Ward's actions were not arbitrary and he was acting on reasonable grounds when he stopped and searched Mr. Jacques' vehicle.
The three-minute time span is particularly important because not only did Constable Ward receive the information of a single vehicle entry into Canada three minutes before stopping the appellants' car, but also Constable Ward estimated that at the point he stopped the appellants' vehicle, it was three minutes' drive from the border.
27 To the extent that the officer's experience is relevant in the circumstances, it is noteworthy that at the time of trial, Constable Ward had been employed by the RCMP for three-and-a-half years and that the senior officer, in charge of the Customs and Excise Section in Woodstock, which covers the Perth-Andover detachment where Constable Ward was based, was also an RCMP officer. The senior officer testified that the double garage in the RCMP's office had been renovated to seal off one bay as a bondroom to accommodate the quantity of items seized. This evidence suggests no dearth of customs investigations.
28 The circumstances of this case are very different than those of R. v. Montour and Longboat (1992), 129 N.B.R. (2d) 361 (Prov. Ct.), in which the officer had "no particular reason for stopping [the] vehicle" (p. 365). It is significant that in Montour and Longboat, the officer did not purport to proceed under s. 99(1)(f) of the Act. He conducted an arbitrary check of the vehicle and found contraband tobacco; however, the detention exceeded the purposes justified in Hufsky, supra, and Ladouceur, supra, and the evidence was excluded.
29 This Court's decision in R. v. Wilson, [1990] 1 S.C.R. 1291, a companion case to Ladouceur, supra, is more apropos to the instant appeal than Montour and Longboat, supra. In describing the circumstance of the detention of a motor vehicle by a floating checkpoint, Cory J. said (at p. 1297):
. . . the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter .
In Wilson, there was arguably less information on which the officer could justify detention of the motor vehicle than in the present appeal. Nonetheless, the facts, when viewed in their entirety, justified the detention.
30 In the instant appeal, the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act. It follows that the appellants were not arbitrarily detained contrary to s. 9 of the Charter .
31 The circumstances which permitted the stop also permitted the search of the appellants' vehicle. Constable Ward's search met the criteria set out by this Court in R. v. Collins, [1987] 1 S.C.R. 265: it was authorized by law, namely s. 99(1)(f) of the Act; that law is itself reasonable as I have previously elaborated; and the search was carried out in a reasonable manner. On this third point, I can add nothing to the summary in the court below (at p. 207):
Cst. Ward's actions amounted to a cursory search of the truck and its contents sufficient to confirm his suspicions. The circumstances of the search themselves do not indicate that it was unreasonable. Cst. Ward was not abusive or overbearing. Although Cst. Ward could have searched the truck in any event, he sought and received Mr. Jacques' permission to do so. He disturbed the contents of the truck only slightly and sufficiently to confirm his suspicions that an offence may have occurred.
The appellants' right to be secure against unreasonable search and seizure was not violated. The appeal also fails on this ground.
32 Having concluded that there was no violation of the appellants' rights under ss. 8 and 9 of the Charter , I would dismiss the appeal. However, it is necessary to address first the failure of the Crown to adduce further evidence after the voir dire ruling, thereby necessitating an acquittal. The relevant jurisprudence was canvassed in this Court's decision in R. v. Power, [1994] 1 S.C.R. 601, concerning an appeal from a directed verdict of acquittal where the Crown, upon receiving an adverse interlocutory ruling, declined to introduce any other evidence. Writing for the majority, L'Heureux-Dubé J. stated (at p. 615):
I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.
The Crown's actions in the instant appeal fall far short of an abuse of process. According to the trial transcript, the other evidence which the Crown declined to adduce consisted of further police testimony, the expert evidence of a technician who analyzed the contents of the seized bottles to confirm the presence of alcohol and the evidence of the head of purchasing of the New Brunswick Liquor Control Commission to establish that the seized bottles were not sold in the province. The trial judge's ruling on the voir dire, however, rendered virtually meaningless any other evidence which the Crown might have been in a position to call and particularly that of the technician and the Liquor Control Commission official. It would be absurd to expect the Crown to have proceeded with the trial under those circumstances. Its failure to do so does not affect the availability of a new trial.
33 I have found that although the appellants were detained, their detention was not arbitrary and although their vehicle was searched, the search was not unreasonable. Accordingly, there was no violation of the appellants' rights under ss. 8 or 9 of the Charter .
34 Since writing the above, I have had the benefit of the reasons of Justice Sopinka. I appreciate that the issue he raises has not been expressly addressed. I am satisfied that the excluded evidence, together with the evidence already of record, constitute circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same or, stated otherwise, that such evidence could reasonably result in a conviction. A new trial is warranted. The appeal should be dismissed.
//Major J.//
The following are the reasons delivered by
35 Major J. (dissenting) -- This appeal raises the narrow issue of whether an RCMP officer, acting under the authority of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), had the requisite grounds to stop and search the appellants' vehicle away from the border. The appellants submit that the officer in question lacked reasonable grounds to suspect that the Customs Act had been or might be infringed, and that they were therefore arbitrarily stopped and subjected to an unreasonable search and seizure, in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . The respondent, relying on the decision of the Court of Appeal of New Brunswick, submits that the officer had the proper grounds to stop and search the vehicle in question.
I. Relevant Statutory Provisions
36 Customs Act, R.S.C., 1985, c. 1 (2nd Supp .)
11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, forthwith present himself at the nearest customs office designated for that purpose that is open for business and answer truthfully any questions asked by an officer in the performance of his duties under this or any other Act of Parliament.
99. (1) An officer may
(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.
159. Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament.
II. Facts
37 On March 9, 1993, at 12:56 p.m., Constable Ward, an RCMP officer attached to the Perth-Andover, New Brunswick detachment, received a radio report informing him that a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled border crossing. It is worth noting that while the officer testified that the report was in respect of an “illegal entry into Canada”, the parties agreed before that there is no law prohibiting entry into Canada at an uncontrolled border crossing. The radio report originated from the U.S. Border Patrol. There was no description of the vehicle, its passengers, contents or licence plates.
38 The same officer proceeded to the intersection of Brown Road and the Trans-Canada Highway. Brown Road is a road