R. v. Nolet (R.) et al., (2010) 350 Sask.R. 51 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 14, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 350 Sask.R. 51 (SCC);2010 SCC 24;[2010] SCJ No 24 (QL);76 CR (6th) 1;403 NR 1;350 Sask R 51;[2010] 1 SCR 851;[2010] EXP 2088;EYB 2010-175730;[2010] 8 WWR 1;256 CCC (3d) 1;AZ-50648991;213 CRR (2d) 52;JE 2010-1151;320 DLR (4th) 1;95 MVR (5th) 1

R. v. Nolet (R.) (2010), 350 Sask.R. 51 (SCC);

    487 W.A.C. 51

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] Sask.R. TBEd. JN.071

Regent Nolet and John Vatsis (appellants) v. Her Majesty The Queen (respondent)

(33032; 2010 SCC 24; 2010 CSC 24)

Indexed As: R. v. Nolet (R.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

June 25, 2010.

Summary:

The accused, two out-of-province truck drivers, were charged with trafficking in marijuana, possession of marijuana for the purposes of trafficking and possession of proceeds of crime in excess of $5,000, following a random stop of a commercial transport tractor-trailer unit. They applied to exclude evidence from their trial on the basis that the arresting officer violated ss. 8, 9 and 10 of the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at 283 Sask.R. 159, allowed the application and excluded the evidence. The accused were acquitted. The Crown appealed.

The Saskatchewan Court of Appeal, Jackson, J.A., dissenting in part, in a decision reported at 320 Sask.R. 179; 444 W.A.C. 179, allowed the appeal, set aside the acquittals, and ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A police officer made a random stop of a transport tractor-trailer on the highway in Saskatchewan to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - One of the two co-drivers acknowledged that the vehicle was not registered for commercial use in Saskatchewan - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it and found $115,000 in cash - The drivers (accused) were arrested for possessing the proceeds of crime - The police later found a hidden compartment in the trailer and 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The Crown offered evidence that neither accused owned the vehicle - The accused alleged an expectation of privacy based on their presumptive possession and control of the vehicle as drivers and argued that an expectation of privacy extended to the duffel bag - The Supreme Court of Canada stated 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 had a subjective expectation of privacy, and whether or not that expectation was objectively reasonable, was an assessment to be made having regard to the totality of the circumstances - While the accused did not testify about their subjective belief, the court could presume that individuals would expect a measure of privacy in what, for a long-distance trucker, sufficed as a temporary mobile home - The expectation was objectively reasonable because living quarters, however rudimentary, should not be classified as a Charter-free zone - Nevertheless, the level of expectation was necessarily low because the cab of a tractor-trailer rig was not only a place of rest but a place of work, and the whole of the cab was therefore vulnerable to frequent random checks in relation to highway transport matters - A stop could quickly precipitate a search, and the occupants either would know or ought to know of that reality and govern themselves accordingly - See paragraphs 30 and 31.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - A police officer made a random stop of a transport tractor-trailer on the highway in Saskatchewan to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - One of the two co-drivers acknowledged that the vehicle was not registered for commercial use in Saskatchewan - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it and found $115,000 in cash - The drivers (accused) were arrested for possessing the proceeds of crime - The police later found a hidden compartment in the trailer and 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The Crown offered evidence that neither accused owned the vehicle - The accused alleged an expectation of privacy based on their presumptive possession and control of the vehicle as drivers and argued that an expectation of privacy extended to the duffel bag - The trial judge held that the warrantless search of the duffel bag breached the accused's s. 8 Charter rights - The Supreme Court of Canada held that the officer's concurrent or predominant interest in contraband did not render the search pursuant to the Highways and Transportation Act, 1997 unlawful or unreasonable within the scope of s. 8 of the Charter - Commercial drivers were well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions - Commercial trucking was a highly regulated industry - 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 expectation that the search might also uncover drugs did not convert a Charter-compliant regulatory search into a Charter violation - 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 a regulatory inquiry under the Act 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 accused's very limited privacy interest, for the officer to open the bag - At that point, the cash was in plain view - The warrantless search was authorized by s. 63(5) of the Act - The manner in which the search was carried out was reasonable - See paragraphs 42 to 46.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor and discovered a small duffel bag behind the passenger seat containing $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police later found 392 pounds of marijuana inside a hidden compartment in the trailer - The accused were charged with the proceeds offence and two drug offences - The accused argued that the investigation became unlawful (fell outside any valid regulatory purpose) when the officer began to suspect criminal activity - The Supreme Court of Canada rejected the argument - It was to be expected that RCMP officers patrolling the Trans-Canada Highway were interested in any number of potential infractions including criminal offences as well as provincial matters - The 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 - Police power, whether conferred by statute or at common law, was abused when it was exercised in a manner that violated the Charter rights of an accused - This was a better framework of analysis, than the "predominant purpose" test applied here by the trial judge - If the Charter was violated, it made little difference that the police had in mind multiple purposes - A valid regulatory purpose, whether predominant or not, would not sanitize or excuse a Charter violation - As long as there was a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue in this case was whether the officer's search of the duffle bag infringed the accused's reasonable expectations of privacy - See paragraphs 32 to 41.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor and discovered a small duffel bag behind the passenger seat containing $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police later found 392 pounds of marijuana inside a hidden compartment in the trailer - The following day an officer from the Integrated Proceeds of Crime Unit searched the tractor-trailer rig for the purpose of creating an inventory - The accused were charged with the proceeds offence and two drug offences - The Supreme Court of Canada stated that an inventory search per se did not serve a "valid objective in pursuit of the ends of criminal justice" because its purposes related to concerns extraneous to the criminal law - If the police wished to tender the fruits of that inventory search into evidence at a criminal trial, the search had to be conducted under some lawful authority - The inventory here was incidental to RCMP administrative procedures rather than to the accused's arrest - 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 of the Charter - However, the court declined to exclude the evidence (additional trucking documents plus the potentially misleading decals) under s. 24(2) - 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 accused's Charter-protected interests - The evidence ought to be available for whatever relevance it might have to assist in the resolution of the outstanding charges on their merits - See paragraphs 53 and 54.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See both Civil Rights - Topic 1646 and both Civil Rights - Topic 3603 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it, allegedly expecting to find documents, but found $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police determined that the trailer probably had a hidden compartment at the front - The police later found a hidden compartment and 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The Supreme Court of Canada stated that the random stop program was directly related to legitimate highway purposes - Commercial trucking was regulated in every aspect from loads and load safety under the Motor Carrier Act to potentially dangerous cargo under the Dangerous Goods Transportation Act - 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 accused - See paragraphs 23 to 26.

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it, allegedly expecting to find documents, but found $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police determined that the trailer probably had a hidden compartment at the front - The police later found a hidden compartment and 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The Supreme Court of Canada stated that the initial random stop, in this case under s. 40 of the Highway Traffic Act, did not violate the s. 9 rights of the accused - After the initial stop, the officer quickly obtained reasonable grounds to believe that the accused were operating the truck in violation of the Highways and Transportation Act, 1997 (H and T Act), 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 log-book - 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 offences under the H and T Act - In these circumstances, the continued detention of the accused was not arbitrary and the search of the tractor-trailer rig for relevant papers was authorized by s. 63(5)(b) of the H and T Act - See paragraphs 28 and 29.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See second Civil Rights - Topic 1646 ].

Police - Topic 3063

Powers - Arrest and detention - Without warrant - Reasonable and probable grounds - A police officer made a random stop of a transport tractor-trailer to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it, allegedly expecting to find documents, but found $115,000 in cash - The accused were arrested for possessing the proceeds of crime - The police later found a hidden compartment in the trailer containing 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The trial judge found that the officer did not have reasonable grounds for arrest for possessing proceeds of crime - The Supreme Court of Canada held that the discovery of a large sum of cash might not on its own constitute objective, reasonable and probable grounds to arrest for possession of proceeds of crime - However, evidence existed that created a reasonable inference that the money was proceeds of crime - The police discovered 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 - The cumulative effect of the factual elements provided objective support for the officer's subjective belief that he had reasonable and probable grounds to make the arrests - See paragraphs 47 and 48.

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See both Civil Rights - Topic 1646 and both Civil Rights - Topic 3603 ].

Police - Topic 3185

Powers - Search - Following arrest or detention - A police officer made a random stop of a transport tractor-trailer on the highway in Saskatchewan to conduct a safety check, inspect documents, etc. - The officer noticed an expired sticker, improper log book entries and improper vehicle registration - One of the two co-drivers acknowledged that the vehicle was not registered for commercial use in Saskatchewan - The trailer appeared empty but the officer was concerned that there had been alterations to it - The officer searched the interior of the tractor for multiple log books and possible cargo - The officer discovered a small duffel bag behind the passenger seat - He opened it and found $115,000 in cash - The drivers (accused) were arrested for possessing the proceeds of crime - The officer performed two searches incident to the arrest - First, the officer measured the trailer unit at the scene which bolstered the arresting officer's concern that there was a secret compartment in the cargo hold - The police later searched the trailer at the police detachment and found a secret compartment containing 392 pounds of marijuana - The accused were charged with the proceeds offence and two drug offences - The trial judge held that the searches were not a reasonable search incident to arrest - The Supreme Court of Canada stated that the accused 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 - 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 was 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 was not significant and did not undermine the close causal and spatial connection between the arrest and the search - The seizure of the marijuana was Charter compliant as it was discovered during a valid search for evidence incidental to a valid arrest - See paragraphs 49 to 52.

Police - Topic 3185

Powers - Search - Following arrest or detention - [See second Civil Rights - Topic 1646 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See both Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 3].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 21].

R. v. Caslake (T.L.), [1998] 1 S.C.R. 51; 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208, refd to. [para. 21].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 22].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 22].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 22].

R. v. Harris (M.) (2007), 228 O.A.C. 241; 87 O.R.(3d) 214; 2007 ONCA 574, refd to. [para. 22].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 25].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, dist. [para. 25].

R. v. Ladouceur (M.J.) (2002), 223 Sask.R. 161; 277 W.A.C. 161; 165 C.C.C.(3d) 321; 2002 SKCA 73, refd to. [para. 25].

R. v. Edwards (C.), [1996] 1 S.C.R. 128; 192 N.R. 81; 88 O.A.C. 321, refd to. [para. 30].

R. v. Tessling (W.), [2004] 3 S.C.R. 432; 326 N.R. 228; 192 O.A.C. 168; 2004 SCC 67, refd to. [para. 30].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 30].

Johnson v. Ontario (Minister of Revenue) (1990), 41 O.A.C. 129; 75 O.R.(2d) 558 (C.A.), refd to. [para. 31].

R. v. Belnavis (A.) and Lawrence (C.), [1997] 3 S.C.R. 341; 216 N.R. 161; 103 O.A.C. 81, refd to. [para. 31].

R. v. Annett (1984), 6 O.A.C. 302; 17 C.C.C.(3d) 332 (C.A.), leave to appeal refused [1985] 1 S.C.R. v; 58 N.R. 239; 9 O.A.C. 80, refd to. [para. 37].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 43 O.R.(3d) 223 (C.A.), refd to. [para. 38].

R. v. Law - see R. v. 2821109 Canada Inc. et al.

R. v. 2821109 Canada Inc. et al., [2002] 1 S.C.R. 227; 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270; 2002 SCC 10, refd to. [para. 40].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210; 175 C.C.C.(3d) 242; 2003 SKCA 52, refd to. [para. 43].

R. v. Jarvis (W.J.), [2002] 3 S.C.R. 757; 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1; 2002 SCC 73, dist. [para. 45].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 48].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46; 193 C.C.C.(3d) 151; 2005 SKCA 8, refd to. [para. 48].

R. v. Franks (G.G.) (2003), 238 Sask.R. 1; 305 W.A.C. 1; 176 C.C.C.(3d) 488; 2003 SKCA 70, refd to. [para. 48].

R. v. Marin, [1994] O.J. No. 1280 (Gen. Div.), refd to. [para. 48].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161, refd to. [para. 48].

R. v. Golden (I.V.), [2001] 3 S.C.R. 679; 279 N.R. 1; 153 O.A.C. 201; 2001 SCC 83, refd to. [para. 49].

R. v. Rao (1984), 4 O.A.C. 162; 12 C.C.C.(3d) 97 (C.A.), refd to. [para. 49].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 49].

R. v. Caprara (R.) (2006), 211 O.A.C. 211; 144 C.R.R.(2d) 287 (C.A.), refd to. [para. 51].

R. v. Chubak (M.J.) (2009), 446 A.R. 283; 442 W.A.C. 283; 243 C.C.C.(3d) 202; 2009 ABCA 8, refd to. [para. 51].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 54].

Counsel:

Mark Brayford, Q.C., and Glen E. Luther, for the appellants;

Douglas G. Curliss and Mark Covan, for the respondent.

Solicitors of Record:

Brayford Shapiro Law Office, Saskatoon, Saskatchewan, for the appellants;

Public Prosecution Service of Canada, Saskatoon, Saskatchewan, for the respondent.

This appeal was heard on December 14, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the court was delivered in both official languages on June 25, 2010, by Binnie, J.