R. v. Sandhu (A.S.),

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Simmons and Watt, JJ.A.
• Neutral Citation: 2011 ONCA 124
• Citation: (2011), 274 O.A.C. 278 (CA),2011 ONCA 124,103 OR (3d) 561,268 CCC (3d) 524,[2011] OJ No 619 (QL),274 OAC 278,103 O.R. (3d) 561,274 O.A.C. 278,(2011), 274 OAC 278 (CA),[2011] O.J. No 619 (QL)
• Date: 08 November 2010
• Court: Court of Appeal (Ontario)

R. v. Sandhu (A.S.) (2011), 274 O.A.C. 278 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. FE.025

Her Majesty the Queen (appellant) v. Avtar Singh Sandhu (respondent)

(C51140; 2011 ONCA 124)

Indexed As: R. v. Sandhu (A.S.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Simmons and Watt, JJ.A.

February 11, 2011.

Summary:

Police and a Ministry of Transportation enforcement officer searched, without a warrant, the trailer of a transport truck the accused was driving and found 205 kg of cocaine concealed in nine plastic wrapped bales. The accused was charged with possession of cocaine for the purposes of trafficking. The accused alleged that his s. 8 Charter rights were violated and sought an exclusion of the evidence of the discovery of the cocaine under s. 24(2).

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. N89, allowed the application. The Crown called no evidence at the trial and the accused was acquitted. The Crown appealed, arguing that the trial judge erred in excluding the evidence.

The Ontario Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - Police and a Ministry of Transportation enforcement officer (Officer Leaman) searched, without a warrant, the trailer of a transport truck the accused was driving and found 205 kg of cocaine concealed in nine plastic wrapped bales - The accused was charged with possession of cocaine for the purposes of trafficking - He alleged that his s. 8 Charter rights were violated - The Crown conceded that a police officer breached the accused's s. 8 rights by cutting into one of the bales in which the cocaine was sealed without first obtaining a search warrant - However, the Crown argued that the three officers were entitled to open the rear doors of the trailer and inspect the interior of the trailer relying on Officer Leeman's authority to conduct regulatory inspections under s. 216.1 of the Highway Traffic Act - The trial judge rejected this argument, concluding that Officer Leeman never had a simple Highway Traffic Act motivation for searching the tractor-trailer or, alternatively, such intention was quickly superseded by criminal law concerns - The Ontario Court of Appeal held that the trial judge erred when assessing the officers' evidence relating to whether opening the trailer doors amounted to a s. 8 Charter breach by failing to advert to the principles that the presence of a criminal law purpose did not, in itself, preclude the existence of a valid regulatory search purpose or make a search that was otherwise authorized by law unreasonable under the Charter - The trial judge's reasons reflected an either/or approach to assessing the evidence concerning the officers' motivations when the trailer doors were opened - See paragraphs 48 to 65.

Civil Rights - Topic 1651

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

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - The Ontario Court of Appeal held that a trial judge, in relying on R. v. Bartle (SCC) erred in holding that evidence seized as a result of a warrantless search was presumptively inadmissible under s. 24(2) of the Charter and in placing an onus on the Crown to rebut this presumption - Bartle did not stand for the proposition that the Crown bore the burden of persuasion under s. 24(2) - Rather, Bartle reaffirmed it was the applicant for exclusion under s. 24(2) who had to ultimately satisfy the court on a balance of probabilities that the admission of the evidence could bring the administration of justice into disrepute - Bartle simply confirmed the common sense proposition that in cases involving an unreasonable search, unless the Crown could show the police had a reasonable basis for acting as they did, as a practical matter, a presumption could arise that the Charter-infringing state conduct was serious - However, this practical consideration relating to but one aspect of the s. 24(2) analysis did not have the effect of transforming the onus of proof under s. 24(2) so as to require the Crown to demonstrate that admission of evidence obtained under the search would not bring the administration of justice into disrepute - See paragraphs 41 to 44.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police and a Ministry of Transportation enforcement officer searched, without a warrant, the trailer of a transport truck the accused was driving and found 205 kg of cocaine concealed in nine plastic wrapped bales - The accused was charged with possession of cocaine for the purposes of trafficking - A trial judge held that the accused's s. 8 Charter rights were violated and excluded the evidence of the discovery of the cocaine under s. 24(2) - The Ontario Court of Appeal allowed the Crown's appeal - The trial judge recognized that he was required by R. v. Grant (SCC) to balance the assessments under each of the three lines of inquiry to determine whether admission of the evidence of the discovery of the cocaine would bring the administration of justice into disrepute - However, he erred by failing to engage in any meaningful balancing of the three lines of inquiry - The trial judge determined that the evidence should be excluded based on his assessment that the Charter-infringing state conduct fell at the most serious end of the spectrum - Even accepting that the Charter-infringing state conduct was very serious, the trial judge was required to balance that against the fact that, in the circumstances of this case, the impact of the misconduct on Charter-protected rights was minimal and against the further fact that exclusion of the evidence would put an end to the prosecution of a very serious charge - See paragraphs 66 to 75.

Cases Noticed:

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. 26].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161; 92 C.C.C.(3d) 289, refd to. [para. 41].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 42].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 42].

R. v. Duarte - see R. v. Sanelli, Duarte and Fasciano.

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 42].

R. v. Nolet (R.) et al., [2010] 1 S.C.R. 851; 403 N.R. 1; 350 Sask. R. 51; 487 W.A.C. 51; 2010 SCC 24, refd to. [para. 48].

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. 48].

Counsel:

Morris Pistyner, for the appellant;

John Collins, for the respondent.

This appeal was heard on November 8, 2010, by O'Connor, A.C.J.O., Simmons and Watt, JJ.A., of the Ontario Court of Appeal. Simmons, J.A., filed the following written reasons for judgment of the court on February 11, 2011.