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R. v. Nolet

2010 SCC 24 [2010] 1 SCR 851 Court SCC Decision date 2010-06-25 Docket 33032 English

PartiesRegent Nolet and John Vatsis Appellants·Her Majesty The Queen Respondent

Judges McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert

Delivered by Binnie J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)

On appeal from Saskatchewan

Subjects Constitutional law Professional law

Contents

Reasons for Judgment — Binnie J. (McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. concurring)

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 .
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).
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.
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

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.
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).
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).
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]
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.
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.
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).
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).
At no time during this series of inspections, searches and seizures did the police obtain a search warrant.

II. Relevant Statutory Provisions

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

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.]
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)

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.
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)

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.
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

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.
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

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.
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.
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.
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

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)).
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.
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.
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.
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 the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters. As Wilkinson J.A. pointed out, “[k]nowledge of the transportation legislation is a requirement to be licensed as a driver. The [appellants] would be well aware of the possibility of mandatory inspections and searches, whether for documents or for potential violation of any one of the countless obligations imposed by the regulatory scheme” (para. 70). Accordingly, there can be little expectation of privacy, even in the sleeping area of a truck (particularly one which is travelling in violation of relevant highway regulations). A stop may quickly precipitate a search, and the occupants either know or ought to know of that reality and govern themselves accordingly.
As stated, this is not a case where the random stop was constitutionally flawed from the outset. The argument of the appellants is that an investigation lawful at the outset became unlawful when the police officer, based on information lawfully obtained from the appellants and the appearance of their vehicle, began to suspect criminal activity. The trial judge found, and the appellants contend, that the policeman’s search of the duffle bag should be attributed predominantly to his interest in illegal criminal activity, and as such, they say it fell outside any valid regulatory purpose.
The officer made no secret at trial of his interest in finding contraband. It was part of his job to take an interest in contraband. In the nature of things, contraband is a bigger issue for police than trucking documents. However, he testified that it was only “at that point” of finding the money that he believed “there was a good possibility there was a secret compartment in the trailer” (A.R., vol. 2, at p. 204).
The first question is whether the police officer, in continuing the search, exceeded his s. 63(5) authority when he reached the point of suspicion. The second question is whether what he did, despite the authority of s. 63(5) to pursue regulatory offences, was unreasonable in relation to the protected Charter privacy interests of the accused in the sleeping area of the cab. The statutory authority for the search and the reasonableness of its exercise are two distinct issues.
As to the police powers issue, the trial judge agreed that notwithstanding that the officer had found “sufficient irregularities in a very short span of time to be concerned that there could be more” and that “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” (para. 19 (emphasis added)). This led to a discussion about “dual purpose” searches, and whether a “dominant” criminal law purpose would invalidate an otherwise valid regulatory search or, on the contrary, a legitimate regulatory purpose could “sanitize” or “cleanse” an unlawful criminal law purpose.
Wilkinson J.A., for the majority in the court below, found the dual purpose debate unhelpful and succinctly expressed the view that
the lawful aim cannot be used as a pretext, ruse, or subterfuge to perpetuate the unlawful aim. That, ultimately, is the focal point of the inquiry. It is not a question of degree, or determining which purpose is predominate or subordinate. Rather, it is a question whether a lawful purpose is being exploited to achieve an impermissible aim. [para. 85]

What happened here, in her view, is not within the mischief contemplated by the late Chief Justice Bayda in Ladouceur (Sask.) that “it is important not to encourage the establishment of checkstops where a nominally lawful aim is but a plausible facade for an unlawful aim” (para. 66).

It is to be expected that RCMP officers patrolling the Trans-Canada Highway are interested in any number of potential infractions including criminal offences as well as provincial matters. It could hardly be otherwise. However, as pointed out by Martin J.A., “[t]he lawful search was not converted into an unlawful or an unreasonable search because the officers, in addition, had the expectation that the search might also uncover drugs”: R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), at p. 335, leave to appeal refused, [1985] 1 S.C.R. v.
In Brown v. Durham Regional Police Force (1998), 43 O.R. (3d) 223 (C.A.), the police used the Ontario equivalent H&TA powers to stop and question bikers attending a gathering of the Paradise Riders Motorcycle Club, suspected to be a criminal organization. The police took advantage of the stop to gather information about the individuals and the gathering. Doherty J.A., for the court, while upholding as valid the police conduct in that particular case, stated:
While I can find no sound reason for invalidating an otherwise proper stop because the police used the opportunity afforded by that stop to further some other legitimate interest, I do see strong policy reasons for invalidating a stop where the police have an additional improper purpose. Highway safety concerns are important, but they should not provide the police with a means to pursue objects which are themselves an abuse of the police power or are otherwise improper. [p. 238]
Police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused. This is a better framework of analysis, in my opinion, than the “predominant purpose” test applied here by the trial judge. If the Charter is violated, it makes little difference, I think, that the police had in mind multiple purposes. A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation.
This position is consistent with what the Court said about Annett in R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227:
The distinguishing feature of Annett, however, is that the full scope of the officers’ search was authorized by statute; thus, the only issue was whether their hidden intentions rendered the search unreasonable. [Emphasis added; para. 24.]

Law involved a theft investigation. The police recovered a stolen security safe, and decided to look at the contents for the totally unrelated purpose of investigating potential tax evasion by the complainant in the theft case. We held that the evidence obtained from the safe was properly excluded in the resulting tax prosecution. Of interest for present purposes, however, is the distinction noted by the Court between police powers and Charter compliance.

I agree with Wilkinson J.A. that the question is not “determining which purpose is predominate or subordinate” (para. 85). As long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officer’s search of the duffle bag infringed the reasonable expectations of privacy of the appellants. I do not think that it did, having regard to the totality of the circumstances as they had progressed to the time of that search.

F. Did Discovery of the Cash in the Duffle Bag Violate Section 8?

The trial judge, with respect, set the barrier to the ongoing police investigation too high when she wrote:
In this case, I have no difficulty in concluding that the initial stop and detention were lawful and did not infringe s. 9. Likewise, the initial search did not violate s. 8. However, once the officer became suspicious that alterations had been made to the trailer, the focus of his inquiry shifted from a regulatory inspection to a criminal investigation. Given this change in focus, he required either informed consent or reasonable and probable grounds to continue searching for evidence to support his suspicions, neither of which existed. [para. 28]
I do not agree that the officer’s concurrent interest in contraband (even if it was “predominant”) rendered the H&TA search unlawful or unreasonable within the scope of s. 8 of the Charter . As already stated, knowledge of transportation legislation is a requirement to be licensed as a driver. Commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions. Commercial trucking is a highly regulated industry. Breaching a law will not in itself reduce an individual’s legitimate privacy expectations (otherwise, it would be argued that offenders would always forfeit s. 8 protection relevant to evidence of the offence), but here, 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. As was the case in Annett, “the expectation that the search might also uncover drugs” (p. 335) did not convert a Charter-compliant regulatory search into a Charter violation: R. v. Sewell, 2003 SKCA 52, 175 C.C.C. (3d) 242.
The trial judge did not express any doubt about the officer’s evidence that relevant papers were frequently dispersed around a cab, often collected in a bag similar to the one at issue here, and that when he “pushed down on the duffel bag, [he] felt and heard paper products inside” (A.R., vol. 2, at p. 181). In other words, the officer did not proceed immediately to open the bag without some preliminary evaluation of its likely relevance to the regulatory search. The paper contents felt more like items connected to the H&TA inquiry than if the contents had felt solid in a way that might have indicated personal clothing (or drugs). In the circumstances, it was not unreasonable, given the appellants’ very limited privacy interest, for the officer to open the bag. At that point, the cash was in plain view.

G. The Appellants’ Reliance on the Jarvis Case Is Misplaced

The decision in R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, does not support the trial judge’s “predominant purpose” test in this situation. In that case, a taxpayer defending a prosecution for tax evasion objected to the admission of self-incriminating information and documents obtained by Revenue Canada in the course of a civil audit that, he was led to believe, might (or might not) lead to a reassessment. The taxpayer’s cooperation at the reassessment stage was of course compulsory. In the course of the inquiry, the subject matter did not change at any time. It remained the documents and information relevant to Mr. Jarvis’ tax matters. The question arose at the point where material came to be viewed by Revenue Canada from a different perspective. The Court agreed with the taxpayer that “there must be some measure of separation between the audit and [penal] investigative functions” (para. 84) and held that officials “cross the Rubicon” when the “predominant purpose of a particular inquiry is the determination of penal liability” (para. 88). In other words, “when the inquiry in question engages the adversarial relationship between the taxpayer and the state” (para. 88), the taxpayer is entitled to Charter protection appropriate to the penal context. The present case is wholly different. We are not “crossing the Rubicon” from a civil dispute into penal remedies. Here the context was always penal. The Charter applies to provincial offences as well as to criminal offences. The shifting focus argument was appropriate in Jarvis, but I do not think it helps in the solution of this appeal. The issue here is whether the police search of the duffle bag did “in the totality of the circumstances” invade the reasonable privacy interest of the appellants. I would hold that it did not.
In summary, the Crown established on a balance of probabilities that the warrantless search was authorized by s. 63(5) of the H&TA, the reasonableness of the law itself is not challenged, and the manner in which the search was carried out was reasonable. The Collins test is therefore satisfied.

H. The Arrest of the Appellants for Possession of the Proceeds of Crime Was Valid

The trial judge concluded that the arrest was invalid. The existence of reasonable and probable grounds is a legal standard and is subject to appellate review: R. v. Feeney, [1997] 2 S.C.R. 13.
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 but the existence of the cash may contribute to such reasonable grounds when “‘circumstances or evidence’ . . . exist that create a reasonable inference that the money is proceeds of crime” (trial judgment, at para. 35): see R. v. Perello, 2005 SKCA 8, 193 C.C.C. (3d) 151; R. v. Franks, 2003 SKCA 70, 176 C.C.C. (3d) 488. Here, the context was sufficient to supply the officer with the “something more”: three men in an empty, improperly licensed truck making a run across the prairies at midnight on a highway where the truck was not entitled to be. The explanation for where the cargo had gone, and why the truck was apparently empty as it headed east, did not correspond to the documents, which were riddled with multiple discrepancies. The unexplained $115,000 was in bills of small denominations wrapped in bundles which the police officer believed to be typical of drug dealings:
Q. So in your mind was there any question that these were proceeds of crime?
A. Given my observations of the money and the amount of money, the circumstances surrounding its transportation and the subjects and the vehicle, there was no doubt in my mind that this was proceeds of crime.
Q. Have you had an opportunity to observe how money is packaged in your experience?
A. Based on my experience as well as research I have done and the sessions I have had with experts and people who have been involved in this type of activity, the type of bundling that was observed there with the elastic bands and the small denominations is indicative of it being involved in proceeds of crime and in particular of the drug trade in my mind. [A.R., vol. 2, at pp. 210-11]

While the Crown did not attempt to qualify the officer as an expert on drug monies, the officer’s experience and training supported the probative value of his evidence on this point. The cumulative effect of the factual elements previously described provides objective support for the officer’s subjective belief that he had reasonable and probable grounds to make the arrests. As stated in R. v. Marin, [1994] O.J. No. 1280 (QL) (Gen. Div.), at para. 16, and approved in R. v. Jacques, [1996] 3 S.C.R. 312, at para. 25, “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.”

I. The Search of the Trailer After the Arrest

A search is properly incidental where the police attempt to “achieve some valid purpose connected to the arrest” including “ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee’s trial”: Caslake, at para. 19 (emphasis added); R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at paras. 74-75. The appellants were under arrest for possession of the proceeds of crime. It was clearly “incidental” to this arrest to search the vehicle in which the cash was found for evidence of the criminal activity to which the money related: R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), and Cloutier v. Langlois, [1990] 1 S.C.R. 158. The officers’ belief that this purpose would be served by a search of the trailer (given their previous roadside observation of the discrepancy in the dimensions) was itself reasonable. The important consideration is the link between the location and purpose of the search and the grounds for the arrest.
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, in my view, undermine the close causal and spatial connection between the arrest and the search. In Caslake, the search of the vehicle did not occur until six hours after the arrest, but the Court concluded that such a delay “is not, in and of itself, problematic in the case at bar” (para. 28). Nor is the temporal gap of two hours problematic in this case. The lack of quick action by the police may be explained by the fact that the truck was impounded in the RCMP yard in the middle of the night. It could not, at the time, be legally driven in Saskatchewan. No particular purpose would have been served by shortening the delay from two hours to, say, fifteen minutes. In neither case would such a delay have worked to the prejudice of the appellants.
In these circumstances, no distinct and separate demonstration of reasonable and probable grounds was required: Caslake, at para. 25; R. v. Caprara (2006), 144 C.R.R. (2d) 287 (Ont. C.A.); and R. v. Chubak, 2009 ABCA 8, 243 C.C.C. (3d) 202.
The trial judge held the arrest to be invalid, but added, “If I am wrong about the arrest, I would nevertheless find that once the arrest was made, there were no exigent circumstances that required the officers to further search the trailer without first obtaining a search warrant” (para. 32). However, the basis of the warrantless search was not “exigent circumstances” but connection or relatedness, i.e. to trigger the common law authority to search for evidence of the crime to which the arrest related: Cloutier v. Langlois, at p. 186. In my view, the seizure of the 392 pounds of marijuana was Charter compliant as it was discovered during a valid search for evidence incidental to a valid arrest.

J. The Subsequent “Inventory” Search of the Cab by Corporal Houston Was Invalid

The following day an RCMP officer from the Integrated Proceeds of Crime Unit searched the tractor-trailer rig for the purpose of creating an inventory. Caslake ruled that “an inventory search per se does not serve a ‘valid objective in pursuit of the ends of criminal justice’” because its purposes “relate to concerns extraneous to the criminal law. If the police feel the need to inventory a car in their possession for their own purposes, that is one thing. However, if they wish to tender the fruits of that inventory search into evidence at a criminal trial, the search must be conducted under some lawful authority” (para. 30). Corporal Houston’s work was incidental to RCMP administrative procedures rather than to the arrest of the appellants. 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.
In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, this Court revised the approach to s. 24(2) and held that the analysis should be reoriented towards:
(i) the seriousness of the Charter-infringing state conduct;
(ii) the impact upon the Charter-protected interests of the accused; and
(iii) society’s interest in having criminal matters adjudicated on their merits.

The task for courts remains one of achieving a balance between individual and societal interests with a view to determining whether the administration of justice would be brought into disrepute by admission of the evidence. In my view, the evidence found in the “inventory search” which consists largely of additional trucking documents plus the potentially misleading “decals” ought not to be excluded. Had the RCMP officers continued their post-midnight search incident to arrest they would have been within their rights to do so, and the subject evidence would have been readily discoverable at that time. The subsequent inventory search for administrative purposes of an impounded truck that has already been searched (though less meticulously) should be classified as a technical breach with a minimal impact on the Charter-protected interests of the appellants. The evidence ought to be available for whatever relevance it may have to assist in the resolution of the outstanding charges on their merits.

V. Conclusion

I would dismiss the appeal.

Cases cited

Statutes and regulations cited