R. v. Nolet,

• Jurisdiction: Saskatchewan
• Judge: Jackson, Smith and Wilkinson, JJ.A.
• Neutral Citation: 2009 SKCA 8
• Court: Court of Appeal (Saskatchewan)
• Date: 07 November 2007
• Citation: (2009), 320 Sask.R. 179 (CA),2009 SKCA 8,[2009] 4 WWR 604,245 CCC (3d) 419,[2009] CarswellSask 39,[2009] SJ No 40 (QL),183 CRR (2d) 138,320 Sask R 179,444 WAC 179,74 MVR (5th) 1,320 SaskR 179,444 W.A.C. 179,320 Sask.R. 179,(2009), 320 SaskR 179 (CA),[2009] S.J. No 40 (QL)

R. v. Nolet (R.) (2009), 320 Sask.R. 179 (CA);

    444 W.A.C. 179

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JA.076

Her Majesty the Queen (appellant) v. Regent Nolet and John Vatsis (respondents)

(No. 1259; 2009 SKCA 8)

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

Saskatchewan Court of Appeal

Jackson, Smith and Wilkinson, JJ.A.

January 21, 2009.

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, allowed the appeal, set aside the acquittals, and ordered a new trial.

Editor's Note: A subsequent version of this case containing footnotes and an appendix were received after the headnote and original version of the decision were published in print. This did not affect the summary or topics contained in the headnote. In some instances, the footnotes referred to neutral citations and/or parallel citations for some of the cases referred to in the decision that were not found in the Cases Noticed portion of the headnote. The combined citations from the headnote and the footnotes are now reflected in the footnotes.

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 Saskatchewan Court of Appeal allowed the Crown's appeal - The accused's status, and the nature of their relationship to the registered owner of the vehicle and/or the commercial carrier, was in a confused state and they made no attempt to clarify it - To establish a reasonable expectation of privacy in the duffel bag required some evidentiary nexus between the accused and duffel bag itself - There was no assertion of a right or interest respecting the duffle bag - Rather, there was unchallenged evidence suggesting that the accused had actively disclaimed any interest in the bag and attributed sole ownership of it to a third party - See paragraphs 35 to 77.

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See 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 trial judge held that the accused's ss. 8 and 9 Charter rights were breached - The Saskatchewan Court of Appeal allowed the Crown's appeal - There was no arbitrary detention in relation to the regulatory stop - The police officer did not exploit the regulatory scheme in the rapidly unfolding circumstances that characterized this roadside inspection - From beginning to end, it was a nine minute episode - The search of the duffle bag fell within the scope of the officer's powers conferred explicitly by the Highways and Transportation Act, 1997 for securing and advancing the purposes and objectives of the Act in the context of the larger regulatory scheme - That power was not exploited, or used as a pretext, ruse or subterfuge - The Crown met the onus of establishing in the totality of circumstances that the search was: (a) authorized by law; (b) the law was reasonable; and (c) the manner of the search was reasonable - The officer was entitled to detain the accused until his investigation of the log books and supporting documents was complete - The issue of arbitrary detention did not come into play in the circumstances of the case until the point of arrest - See paragraphs 78 to 121.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - 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 and taken to the police detachment - The police later found a hidden compartment in the trailer containing 392 pounds of marijuana (valued at $1.1M to $1.5 M) - The accused were charged with the proceeds offence and two drug offences - The trial judge held that the accused's ss. 8 and 9 Charter rights were violated and, inter alia, excluded the evidence respecting the marijuana under s. 24(2) - The Saskatchewan Court of Appeal allowed the Crown's appeal and held that the accused's Charter rights were not violated - Alternatively, the court opined that the seized marijuana was not conscriptive evidence and should have been admitted under s. 24(2) - The marijuana existed independently of the Charter breach and thus its discovery had no impact on trial fairness - The searches took place in an environment where the expectation of privacy was extremely low - The administration of justice could be brought into disrepute by the exclusion of the marijuana - The vehicle was subject to being impounded for the regulatory violations - Therefore, the hidden compartment and the marijuana would have been discovered in any event - See paragraph 153.

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 circumstances of the empty load, the admittedly "rare" situation of a commercial vehicle operating without appropriate registration, and the presence of a third occupant along for the ride were more "neutral" factors than indicative of criminal activity - The trial judge concluded that those circumstances, coupled with the discovery of $115,000 in cash, did not provide objectively reasonable grounds for arrest for possessing proceeds of crime - The Saskatchewan Court of Appeal allowed the Crown's appeal - The trial judge's analysis imposed too high a standard - There were sufficient circumstantial evidence to provide reasonable grounds for the arrest - Other unusual circumstances that the officer had relied on included expired decals, the deficient log books, and the officer's suspicion respecting alterations to the cargo hold area, the accused's admission to the officer that the vehicle was operating far outside its normal jurisdiction, irregular documentation, and the officer's experience and training respecting the seizure of cash comprised of small denominations and distinctive packaging - See paragraphs 122 to 142.

Police - Topic 3109

Powers - Investigation - Motor vehicles - [See 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 Saskatchewan Court of Appeal held that the trial judge erred - A search for evidence related to the offence for which an individual had been arrested constituted a lawful purpose - The trial judge gave no consideration to the question whether the officer was lawfully engaged in a search for evidence related to the offence of possessing proceeds of crime - See paragraphs 143 to 152.

Cases Noticed:

Johnson v. Ontario (Minister of Revenue) (1990), 41 O.A.C. 129 (C.A.), refd to. [para. 12].

R. v. Caprara (R.) (2006), 211 O.A.C. 211 (C.A.), refd to. [paras. 15, 193].

R. v. Diep (K.T.) (2005), 363 A.R. 321; 343 W.A.C. 321 (C.A.), refd to. [para. 16].

R. v. Ladouceur (M.J.) (2002), 223 Sask.R. 161; 277 W.A.C. 161 (C.A.), refd to. [paras. 17, 189].

R. v. Mellenthin (1992), 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1 (S.C.C.), refd to. [paras. 18, 161].

R. v. Belnavis (A.) and Lawrence (C.) (1996), 91 O.A.C. 3 (C.A.), affd. (1997), 216 N.R. 161; 103 O.A.C. 81 (S.C.C.), refd to. [paras. 19, 161].

R. v. Bolczak (P.) (2005), 198 Man.R.(2d) 1 (Q.B.), refd to. [para. 21].

R. v. Perello (E.F.) (2005), 257 Sask.R. 46; 342 W.A.C. 46 (C.A.), refd to. [paras. 24, 206].

R. v. I.D.D. (1987), 60 Sask.R. 72 (C.A.), refd to. [para. 26].

R. v. Bulmer (D.L.) (2005), 269 Sask.R. 137; 357 W.A.C. 137 (C.A.), refd to. [para. 27].

R. v. Stillman (W.W.D.) (1997), 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1 (S.C.C.), refd to. [paras. 30, 165].

R. v. Cheung (M.K.B.) et al. (2007), 293 Sask.R. 80; 397 W.A.C. 80 (C.A.), refd to. [paras. 34, 161].

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291 (S.C.C.), refd to. [para. 35].

R. v. Edwards (C.) (1996), 192 N.R. 81; 88 O.A.C. 321 (S.C.C.), refd to. [paras. 38, 161].

R. v. Tessling (W.) (2004), 326 N.R. 228; 192 O.A.C. 168 (S.C.C.), refd to. [para. 39].

R. v. Kang-Brown (G.) (2008), 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1 (S.C.C.), refd to. [para. 39].

British Columbia Securities Commission v. Branch and Levitt (1995), 180 N.R. 241; 60 B.C.A.C. 1; 99 W.A.C. 1 (S.C.C.), refd to. [para. 44].

R. v. Khuc (T.A.) et al. (2000), 132 B.C.A.C. 139; 215 W.A.C. 139 (C.A.), refd to. [para. 55].

Minnesota v. Carter, Wayne Thomas (1998), 142 L. Ed.2d 373 (U.S.S.C.), refd to. [para. 56].

R. v. Guiboche (G.F.) (2004), 180 Man.R.(2d) 276; 310 W.A.C. 276 (C.A.), refd to. [para. 57].

R. v. Williams, 2002 BCPC 164, refd to. [para. 61].

R. v. Buhay (M.A.) (2003), 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72 (S.C.C.), dist. [paras. 68, 215].

R. v. Harrison (B.) (2008), 233 O.A.C. 211 (C.A.), refd to. [paras. 72, 230].

R. v. L.B. (2007), 227 O.A.C. 132 (C.A.), refd to. [para. 72].

R. v. Luc (S.Q.) (2004), 254 Sask.R. 98; 336 W.A.C. 98 (C.A.), refd to. [paras. 75, 180].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1 (S.C.C.), refd to. [paras. 80, 187].

R. v. Rutten (G.) (2006), 279 Sask.R. 201; 372 W.A.C. 201 (C.A.), refd to. [para. 82].

R. v. Sewell (E.E.) (2003), 232 Sask.R. 210; 294 W.A.C. 210 (C.A.), refd to. [para. 84].

R. v. Annett (1984), 6 O.A.C. 302 (C.A.), refd to. [paras. 86, 194].

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

R. v. 2821109 Canada Inc. et al. (2002), 281 N.R. 267; 245 N.B.R.(2d) 270; 636 A.P.R. 270 (S.C.C.), refd to. [para. 87].

R. v. Duong (T.B.) (2007), 240 B.C.A.C. 104; 398 W.A.C. 104 (C.A.), refd to. [para. 87].

R. v. Yue (K.K.) (1995), 61 B.C.A.C. 215; 100 W.A.C. 215 (C.A.), refd to. [para. 87].

R. v. Daigle (J.R.) (1994), 49 B.C.A.C. 257; 80 W.A.C. 257 (C.A.), refd to. [para. 87].

R. v. Orbanski (C.); R. v. Elias (D.J.) (2005), 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161 (S.C.C.), refd to. [para. 88].

R. v. Mackie (S.D.) (2004), 248 Sask.R. 247 (Q.B.), refd to. [para. 111].

Ritchie v. Rayner, [1933] 4 D.L.R. 808 (S.C.C.), refd to. [para. 112].

R. v. Jarvis (W.J.) (2002), 295 N.R. 201; 317 A.R. 1; 284 W.A.C. 1 (S.C.C.), dist. [para. 116]; refd to. [para. 197].

R. v. Mercer (D.A.) et al. (2005), 245 Nfld. & P.E.I.R. 50; 730 A.P.R. 50 (N.L.C.A.), refd to. [para. 119].

R. v. Mouland (L.L.) (2007), 304 Sask.R. 129; 413 W.A.C. 129 (C.A.), refd to. [para. 125].

R. v. Drury (L.W.) et al. (2000), 150 Man.R.(2d) 64; 230 W.A.C. 64 (C.A.), refd to. [para. 127].

R. v. M.A.L. (2003), 170 O.A.C. 25 (C.A.), refd to. [para. 128].

R. v. Storrey (1990), 105 N.R. 81; 37 O.A.C. 161 (S.C.C.), refd to. [para. 130].

R. v. Golub (D.J.) (1997), 102 O.A.C. 176 (C.A.), refd to. [para. 133].

R. v. Feeney (M.) (1997), 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1 (S.C.C.), refd to. [para. 139].

R. v. Golden (I.V.) (2001), 279 N.R. 1; 153 O.A.C. 201 (S.C.C.), refd to. [para. 140].

R. v. Munro (B.L.) (2005), 220 B.C.A.C. 102; 362 W.A.C. 102 (C.A.), refd to. [para. 146].

R. v. Caslake (T.L.) (1998), 221 N.R. 281; 123 Man.R.(2d) 208; 159 W.A.C. 208 (S.C.C.), refd to. [paras. 149, 165].

R. v. Ladouceur (1990), 108 N.R. 171; 40 O.A.C. 1 (S.C.C.), refd to. [para. 161].

R. v. Clayton (W.) et al. (2007), 364 N.R. 199; 227 O.A.C. 314 (S.C.C.), refd to. [para. 167].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126 (C.A.), refd to. [para. 190].

R. v. Harris (M.) (2007), 228 O.A.C. 241 (C.A.), refd to. [para. 196].

R. v. Anderson (D.) et al. (2003), 232 Sask.R. 250; 294 W.A.C. 250 (C.A.), refd to. [para. 197].

R. v. Duguay, Murphy and Sevigny (1989), 91 N.R. 201; 31 O.A.C. 177 (S.C.C.), refd to. [para. 215].

R. v. Laliberte, [1989] 6 W.W.R. 459; 76 Sask.R. 285 (C.A.), refd to. [para. 215].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 217].

R. v. Grant (D.) (1993), 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1 (S.C.C.), refd to. [para. 228].

R. v. Duncanson (1991), 93 Sask.R. 193; 4 W.A.C. 193 (C.A.), refd to. [para. 236].

R. v. Yelle (J.) et al. (2006), 397 A.R. 287 (C.A.), refd to. [para. 236].

Counsel:

Douglas G. Curliss, for the Crown;

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

This appeal was heard on November 7, 2007, by Jackson, Smith and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered on January 21, 2009, when the following opinions were filed:

Wilkinson, J.A. (Smith, J.A., concurring) - see paragraphs 1 to 154;

Jackson, J.A., dissenting - see paragraphs 155 to 236.