





CITATION:
R. v.
Sandhu
, 2011 ONCA 124



DATE: 20110211



DOCKET: C51140



COURT OF APPEAL FOR ONTARIO



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



BETWEEN



Her Majesty the Queen



Appellant



And



Avtar Singh Sandhu



Respondent



Morris Pistyner, for the appellant



John Collins, for the respondent



Heard: November 8, 2010



On appeal from the acquittal entered by Justice Michael G.
          Quigley of the Superior Court of Justice on September 24, 2009.



Simmons J.A.:



Overview

[1]

The Crown appeals from the respondents acquittal on a
    charge of possession of cocaine for the purposes of trafficking.

[2]

The respondent was arrested after police and a Ministry
    of Transportation enforcement officer searched, without a warrant, the trailer
    of a transport truck the respondent was driving and found 205 kg of cocaine
    concealed in nine plastic wrapped bales.

[3]

At trial, following jury selection, the respondent
    applied to have the evidence of the discovery of the cocaine excluded under s.
    24(2) of the
Charter
on the basis
    that the warrantless search of the trailer violated his rights under s. 8 of
    the
Charter
to be secure against
    unreasonable search or seizure.

[4]

Crown counsel at trial argued that the initial inspection
    of the trailer was authorized under s. 216.1 of the
Highway Traffic Act
. He conceded that the police violated the
    respondents s. 8 rights by cutting into one of the bales in which the cocaine
    was secreted without first obtaining a search warrant. However, he submitted
    that the circumstances of that violation did not warrant exclusion of the
    evidence under s. 24(2).

[5]

The trial judge concluded that the initial search was
    not authorized under s. 216.1 and also held that the Crown bore the onus of
    demonstrating that the evidence of the discovery of the cocaine was admissible
    under s. 24(2). He found that the police conduct was at the most serious end of
    the spectrum and excluded the evidence.  As
    a result of the trial judges ruling, the Crown called no evidence at the trial
    proper and a not guilty verdict was entered.

[6]

The main issues on appeal concern whether the trial
    judge erred by excluding the evidence of the discovery of the cocaine under s.
    24(2) of the
Charter
.

[7]

For the reasons that follow, I would allow the appeal,
    set aside the respondents acquittal and order that a new trial be conducted
    before a different judge of the Superior Court.

Background

[8]

On February 4, 2007, the respondent was employed as a
    tractor-trailer driver by Kandola Brothers Carriers. The respondent did not own
    the truck that he was driving and his duties involved picking up goods from
    suppliers and delivering them to receivers as instructed by his employer. The
    respondents assignment on February 4, 2007 was to deliver a load of carrots to
    stores in the Greater Toronto area.

[9]

Just after 9 a.m. that morning, Mike Dorken, the owner
    of Trucktown Transport Terminal on Steeles Avenue in Milton, spotted the respondent's
    tractor trailer parked beside a passenger vehicle in a private area of the
    transport terminal lot. Mr. Dorken noticed items being loaded from the
    passenger vehicle into the back of the trailer. He drove over to the vehicles
    to find out if the truck driver had a permit to park in that area of the
    transport terminal.

[10]

As Mr. Dorken approached, both the tractor-trailer and
    the passenger vehicle drove away. The vehicles left the lot and then travelled in
    opposite directions on Steeles Avenue. Mr. Dorken followed the respondent.
    After a number of failed attempts, Mr. Dorken was able to block the
    respondents access to the westbound Highway 401 ramp and force the
    tractor-trailer to stop.

[11]

Coincidentally, Officer Jason Leeman, an employee of
    the Ministry of Transportation, was driving in the area at the time. Officer
    Leeman first noticed Mr. Dorkens vehicle and the respondents
    tractor-trailer at the intersection of Steeles Avenue and the James Snow
    Parkway. He thought the vehicles might have been involved in an accident so he
    drove towards them to see if he could help. When he got to the intersection he
    saw no debris or other signs of an accident and thought about driving away.
    However, he watched the vehicles for a few more minutes and observed them come
    to a stop in a strange manner on the access ramp to Highway 401 westbound. He
    drove up behind the tractor-trailer and activated his flashing lights. He said
    it was at that point that he decided he was going to inspect the transport
    truck.

[12]

Officer Leeman spoke initially to Mr. Dorken and then
    to the respondent. Mr. Dorken described what had taken place and expressed
    suspicions about the tractor-trailer. Officer Leeman asked if Mr. Dorken wanted
    the police to be called. Mr. Dorken confirmed that he did but said he had to
    return to his business. Officer Leeman called his dispatcher in order to
    request assistance from the Halton Regional Police.

[13]

When Officer Leeman spoke to the respondent, the
    respondent said something about a gun. After hearing about a gun, Officer Leeman
    contacted his dispatcher to ask that Halton Regional Police expedite his
    request for assistance and took no further steps to inspect the tractor-trailer.

[14]

Shortly thereafter, two police officers arrived at the
    scene. The first officer to arrive was Constable Paul Kent, a fairly new
    officer with about 21 months experience. Constable Kent spoke to Officer
    Leeman as well as to the respondent. During his conversation with the
    respondent, the respondent again made reference to a gun, saying that someone
    had put a gun to his head and told him that he had to put things into the back
    of his tractor-trailer truck.

[15]

The second officer to arrive was Constable Geoff Clarke,
    an eight-year veteran of the Halton Regional Police. Soon after Constable Clarke
    arrived, the rear doors of the tractor-trailer were opened.

[16]

Officer Leeman and the two police officers gave
    conflicting accounts concerning when and how the tractor-trailer doors were
    opened and concerning what happened after the doors were opened.

[17]

Officer Leeman testified that after Constable Kent had
    finished speaking with the respondent, he (Officer Leeman) asked the respondent
    to open the doors of the tractor-trailer so he could examine the contents of
    the trailer. He said it was not his practice to open a trailer himself. Once
    the doors were opened, in addition to shrink-wrapped pallets of baby carrots, he
    observed nine two and a half foot square bales wrapped in dark plastic. Based
    on the packaging and his prior experience and training, Officer Leeman believed
    the bales contained narcotics and stepped back to permit the police officers to
    proceed with the investigation. One of the officers got up into the trailer
    while the other, Constable Kent, opened one of the dark plastic bales with a
    knife to examine the contents. In cross-examination, Officer Leeman denied that
    he had any conversation with the police officers concerning his authority to
    search the truck.

[18]

According to Constable Kent, Officer Leeman claimed to
    have the authority to search the truck under s. 216.1 of the
Highway Traffic Act
. On hearing that, Constable
    Kent said, [t]hen let's do it. The rear doors of the tractor-trailer were not
    locked, and he and Officer Leeman opened them together.

[19]

Constable Kent confirmed that once the respondent spoke
    about the possibility of a gun he thought the contents of the trailer needed to
    be verified. He testified that, in his view, he was assisting Officer Leeman 
    he said it did not occur to him to ask for the owners consent to conduct a
    search and the requirement for a search warrant did not register with him.

[20]

Once the doors were opened, Constable Kent initially
    thought the nine bales may have contained CD-ROM players or computers. He
    inserted his knife into one of the bales to see what the bales contained. He
    had no recollection of Constable Clarke jumping into the back of the trailer to
    check for weapons or other people. Constable Kent acknowledged in his evidence
    that he now realized he was exceeding his authority when he inserted his knife
    into one of the bales.

[21]

Constable Clarke testified that Officer Leeman directed
    the respondent to open the back doors of the truck for inspection. The
    respondent repeated his story about being threatened and then opened the trailer
    doors. Because of safety concerns, Officer Clarke jumped up into the trailer
    and conducted a quick search for guns and other people. Constable Clarke did
    not speak to Constable Kent about opening up one of the bales with his knife. However,
    once the content of the bales became apparent, Constable Clarke arrested the
    respondent and charged him with possession of a controlled substance.

[22]

Officer Brad Murray arrived at the scene sometime after
    9:30 a.m. After speaking to the other officers, he determined that a search
    warrant was required and applied for a tele-warrant, which was approved and
    executed before the end of the day.

Section 216.1 of the
Highway Traffic Act

[23]

Although not a police officer or a peace officer,
    Officer Leeman is an enforcement officer authorized to act under the

Highway
    Traffic Act

and other provincial
    transport legislation.

[24]

Section 216.1 of the
Highway Traffic Act
permits an enforcement officer to examine, at
    any time, a commercial vehicle, its contents and all documents relating to the
    ownership and operation of the vehicle to determine whether legislation
    relevant to commercial vehicles is being complied with. The relevant portions
    of s. 216.1 provide as follows:

216.1(1)
Any
    officer
appointed for carrying out the provisions of this Act
may, at any time, examine any commercial
    vehicle and its contents and equipment for the purpose of ascertaining whether
    this Act, the Compulsory Automobile Insurance Act or the Dangerous Goods
    Transportation Act, or the regulations under any of them, are being complied
    with
, and the driver, operator or other person in control of the vehicle
    shall assist in the examination.

...

(3)  Where a commercial vehicle and its contents
    and equipment are examined under this section, the officer conducting the
    examination may require the driver, operator or other person in control of the
    vehicle to surrender all documents relating to the ownership and operation of
    the vehicle and to the carriage of the goods, and to furnish all information
    within that person's knowledge relating to the details of the current trip.

[Emphasis added.]

The Trial Judges Reasons

[25]

Given that the trial Crown conceded that the
    respondents rights under s. 8 of the
Charter
had been violated, the trial judge focused his analysis on the question of
    whether the evidence of discovery of the cocaine should be excluded under s.
    24(2) of the
Charter
. At the outset
    of his reasons, the trial judge indicated that because the violation occurred
    in the context of a warrantless search, the Crown bore the onus of
    demonstrating that admission of the evidence would not bring the administration
    of justice into disrepute:

Clearly the Crown has assisted the applicant by
    admitting, quite properly I might observe, that a
Charter
violation of his rights occurred in the course of obtaining
    the impugned evidence through a warrantless search. This imposes a duty on the
    Crown, given the absence of legal authority for the search and thus the
    presumptive inadmissibility of that evidence, to show through the evidence
    advanced at this
voir dire
that the
    admission of the evidence under section 24(2) would not bring the
    administration of justice into disrepute, notwithstanding that the burden of
    persuasion would normally lie on the defendant: see
R. v. Bartle
(1994), 92 C.C.C. (3d) 289 (S.C.C.).

[26]

After reviewing the factual background and the revised analytical
    framework mandated by the recent decision in
R. v. Grant
, [2009] 2 S.C.R. 353, the trial judge turned to his
    analysis.

[27]

As a preliminary matter, the trial judge rejected the
    trial Crowns argument that Officer Leeman was acting under s. 216.1 of the
Highway Traffic Act
in directing the
    respondent to open the trailer doors and that no
Charter
breach occurred until after the doors were opened.

[28]

The trial judge noted that this was not a random stop
    by Officer Leeman and that Officer Leeman never articulated a reason that
    would have permitted him to engage his authority.

[29]

Further, in the light of Officer Leemans testimony
    that he radioed for police backup within seconds of speaking to the respondent,
    the trial judge found that Officer Leeman never had a simple
Highway Traffic Act
inspection
    motivation.

[30]

In addition, the trial judge concluded that even if
    Officer Leeman had a regulatory enforcement intention when he originally
    stopped at the scene, that intention was quickly superseded by criminal law
    concerns after the respondent spoke about a gun.

[31]

Further, the trial judge found it incredible that the
    three officers could have believed that their actions were in furtherance of an
    enforcement inspection rather than a criminal investigation:

I find that
    Officer Leeman never had a simple Highway Traffic Act inspection motivation.
Within seconds of stopping his vehicle and speaking to [the respondent], he
    radioed in for police assistance, and then made a second call out of concern
    for his own fear and safety when the issue of the possible presence of a gun
    arose.
Even if he had a regulatory
    enforcement intention at the time that he originally stopped behind the white
    transport truck, it is clear on his own evidence that that intention was very
    soon superseded by the criminal law concern of the possibility of guns being
    present at the site
.

I accept the proposition that
Highway Traffic Act
enforcement officers have been given the powers
    by the Legislature to stop and inspect commercial vehicles as described in s.
    216.1 of the
Highway Traffic Act
, but
    it is plain and obvious that that power is not given to the officer, and could
    not be given to the officer, for any purpose beyond the limited regulatory
    purposes of ensuring compliance with the
Highway
    Traffic Act
and the two other statutes referenced in s. 216.1.
It is disingenuous, and astonishing to me
    that it could be suggested that an inspection power of this type granted for
    simple commercial vehicle regulatory purposes could be relied upon by Officer
    Leeman, or Constables Kent or Clarke as providing valid legal authority to
    permit the rear doors of the truck to be opened at a point in time when the
    focus of the investigation that was unfolding on James Snow Parkway had changed
    dramatically from a simple regulatory one, to one involving potential Criminal
    Code infractions
. [Emphasis added.]

[32]

Ultimately, the trial judge accepted Constable Kents
    version of the events. He found that the trailer doors were opened by Officer
    Leeman and Constable Kent acting together seconds after they had had a
    discussion which showed that a mere regulatory power of inspection ... was to
    be relied upon ... to undertake what was clearly a warrantless search directed
    towards the detection of potential criminality. Moreover, the trial judge
    concluded that this conduct occurred at a point in time when both police
    officers testified that they knew that they needed to have search warrants to
    actually proceed as they did.

[33]

Turning to the s. 24(2) analysis, the trial judge considered
    the three separate lines of inquiry that
Grant
requires be addressed in determining whether th[e] illegally obtained evidence
    ought to be admissible: (i) the seriousness of the
Charter
-infringing state conduct; (ii) the impact of the breach on
    the
Charter
-protected interests of
    the accused; and (iii) society's interest in the adjudication of the case on
    its merits.

[34]

Concerning the seriousness of the
Charter
-infringing state conduct, the trial judge noted that while
    the trial Crown conceded that the breach was at the more serious end of the
    spectrum, he nonetheless argued that the police officers conduct was not
    egregious and brazen.

[35]

The trial judge rejected the trial Crown's argument in
    this regard and held that the officers conduct was at the most serious end of
    the spectrum. He found that the officers engaged in an intrusive and invasive
    warrantless search of [the respondents] trailer with full knowledge and
    consciousness that they would only have the legal authority to proceed in that
    way if they had first obtained a search warrant. He said the officers chose
    instead to simply rely on the questionable authority that cloaked Officer
    Leeman as derived from s. 216.1 of the
Highway
    Traffic Act
.

[36]

Concerning the impact of the breach on the
Charter
-protected interests of the
    respondent, the trial judge expressed concerns about the adequacy of counsel's submissions
    but nonetheless accepted the Crowns concession that the respondent had a
    reasonable expectation of privacy in the trailer, albeit at the lower end of
    the scale. However, the trial judge also commented that this finding would not
    have a material effect on the result of [his] analysis for reasons that he
    would explain.

[37]

Finally, concerning society's interest in an
    adjudication of the case on its merits, the trial judge noted that the evidence
    of the discovery of the cocaine was real and totally reliable evidence, that
    the charge faced by the respondent was very serious, and that exclusion of the
    evidence would put an end to the prosecutions case.

[38]

After noting that
Grant
requires that a trial judge weigh the various indications arising from each of
    the three inquiries, the trial judge concluded that the evidence of the
    discovery of the cocaine must be excluded:

when I endeavour in this case to balance the
    interests of truth with the integrity of the justice system, and I consider
    whether the admissibility of the illegally obtained evidence in this case,
    evidence obtained by the Crown's own admission in a reckless manner that
    amounted to an illegal fishing expedition, I reach the inevitable conclusion
    that this evidence must be excluded.

I conclude, based on the evidence in this
    application, that it ought to be evident to any fair and right thinking person
    who seeks to uphold the core values of our judicial system, that the admission
    of the illegally obtained evidence in this case extracts a small, albeit
    meaningful, toll on the truth seeking goal of the criminal trial, as compared
    to the damage that would be caused to the long-term respect and belief of
    Canadians in the rule of law and their confidence that it binds both citizen
    and state in equal measure, as would be the case if that evidence were to be
    admitted in the face of such arrogant and abhorrent state conduct.

Analysis

[39]

The Crown submits that the trial judge made several errors
    of law in his s. 24(2) analysis. I have re-characterized these submissions
    somewhat as follows:

1. The trial
    judge erred in holding that evidence seized as a result of a warrantless search
    is presumptively inadmissible under s. 24(2) of the
Charter
and in placing an onus on the Crown to rebut this
    presumption.

2. In assessing
    the evidence relating to the nature and extent of the s. 8
Charter
breach, the trial judge erred by failing to advert to the
    principle that the existence of a concurrent criminal law purpose does not, of
    itself, make a search that is otherwise authorized by law unreasonable under
    the
Charter
.

3. The trial
    judge failed to engage in any meaningful balancing of the three
Grant
factors and instead relied on his
    finding concerning the seriousness of the s. 8
Charter
breach to exclude the evidence of the discovery of the
    cocaine under s. 24(2) of the
Charter
.

[40]

For reasons that I will explain, I would accept these
    submissions. As I am unable to conclude that the decision would necessarily
    have been the same in the absence of such errors, I would allow the appeal and
    order a new trial before a different judge of the Superior Court.

(i) The
    Onus of Proof under s. 24(2) of the
Charter

[41]

As I have said, relying on
Bartle
, the trial judge held that evidence obtained by an
    unauthorized search is presumptively inadmissible and that the Crown therefore bore
    the onus of demonstrating that admission of such evidence would not bring the
    administration of justice into disrepute. In my opinion, the trial judge erred
    in this conclusion.

[42]

Bartle
does
    not stand for the proposition that the Crown bears the burden of persuasion
    under s. 24(2). Rather, at p. 209,
Bartle
reaffirms the proposition set out in
R. v.
    Collins
, [1987] 1 S.C.R. 265 at pp. 284-86,
R. v. Simmons
, [1988] 2 S.C.R. 495 at p. 532, and
R. v. Duarte
, [1990] 1 S.C.R. 30, at p. 59,
    that it is the applicant for exclusion under s. 24(2) who must ultimately
    satisfy the court on a balance of probabilities that the admission of the
    evidence could bring the administration of justice into disrepute.

[43]

Moreover, at p. 210,
Bartle
simply confirms the common sense proposition that in cases
    involving an unreasonable search, unless the Crown can show the police had a reasonable
    basis for acting as they did, as a practical matter, a presumption may arise
    that the
Charter
-infringing state conduct
    was serious.

[44]

However, this practical consideration relating to but
    one aspect of the s. 24(2) analysis does 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.

[45]

Even if one presumes in certain circumstances that
Charter
-infringing state conduct is
    serious, that does not determine the s. 24(2) analysis. Rather, it remains
    necessary to consider the other lines of inquiry in the
Grant
analytical framework, and to balance the assessments under
    each of these lines of inquiry to determine whether, considering all the
    circumstances, admission of the evidence would bring the administration of
    justice into disrepute: see
Grant
at
    para. 71.

[46]

As I have said, contrary to the trial judges
    conclusion,
Bartle
confirms that the
    onus of proving the latter proposition is on the applicant.

[47]

I find it impossible to say that, absent his erroneous
    conclusion about the burden of proof, the trial judges decision on the s.
    24(2) analysis would necessarily have been the same. The trial judges error
    means that he approached the s. 24(2) issue from the wrong perspective.
    Moreover, it may well explain why he placed so much emphasis on the perceived
    seriousness of the
Charter
violation
    in this case, while essentially ignoring the minimal impact of the violation on
    any
Charter
protected interests of
    the respondent. I will return to this point when addressing the Crown's third
    submission.

(ii) The existence of a concurrent
    criminal law purpose does not of itself  make
    a search that is otherwise authorized by law unreasonable under the
Charter
.

[48]

Where police (or enforcement officers) have conducted a
    warrantless search, the onus is on the Crown to 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.
Nolet
,
    [2010] 1 S.C.R. 851, at para. 21, citing
Collins
at p. 278, and
R. v. Caslake
,
    [1998] 1 S.C.R. 51, at para. 10.

[49]

As set out above, in this case, although the Crown
    conceded that Constable Kent breached the respondents s. 8
Charter
rights by cutting into one of
    the bales in which the cocaine was sealed without first obtaining a search
    warrant, the Crown maintained 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
.

[50]

The trial judge rejected this argument and concluded
    that Officer Leeman never had a simple
Highway
    Traffic Act
motivation for searching the tractor-trailer. In addition, the
    trial judge found that even if Officer Leeman initially had a legitimate
    regulatory intention, that intention was quickly superseded by criminal law
    concerns after the respondent spoke about a gun. The trial judge also found it unbelievable
    that the three officers could have relied on s. 216.1 of the
Highway Traffic Act
to open the trailer
    doors at a point in time when the focus of the investigation  ... had changed dramatically from a simple
    regulatory one, to one involving potential
Criminal
    Code
infractions.

[51]

However, the existence of a concurrent criminal law search
    purpose does not, in itself, preclude the existence of a valid regulatory search
    purpose  nor does it, in itself, make a search that is otherwise authorized by
    law unreasonable under the
Charter
:

see
Nolet
.
    In my view, the trial judge erred in failing to advert to these principles when
    assessing the evidence relating to whether opening the trailer doors amounted
    to a s. 8
Charter
breach. In fairness
    to the trial judge, I wish to note that he did not have the benefit of the
    Supreme Court of Canada's decision in

Nolet
.

[52]

In
Nolet
, the
    tractor-trailer the appellants were driving was stopped by an RCMP officer
    engaged in a random check under the Saskatchewan
Highways and Transportation Act
,
1997
, S.S. 1997, c. H-3.01. After discovering some irregularities
    in the units licensing and documentation, the RCMP officer inspected the interior
    of the truck and found $115,000 in a duffel bag located in a sleeping
    compartment immediately behind the driver's seat.

[53]

The RCMP officer testified that he opened the duffel
    bag because its contents crackled like paper when he touched it and he thought
    it might contain travel documents. On finding the money, he arrested the
    appellants for possession of the proceeds of crime. RCMP officers eventually
    found 392 pounds of marijuana concealed in a secret compartment in the trailer.

[54]

The trial judge found that the initial stop of the
    tractor-trailer was lawful. However, even though s. 63(5) of Saskatchewans
Highways and Transportation Act
permits
    a warrantless search of a vehicle for evidence of a regulatory offence where a peace
    officer has reasonable grounds to believe that a vehicle is being operated in
    contravention of regulatory requirements, the trial judge held the warrantless
    search of the duffel bag was unlawful.

[55]

Particularly in the light of the officers suspicion that
    there may have been some alterations done to the trailer, the trial judge
    concluded that the officer was more interested in looking for evidence of
    criminal activity than for contravention to commercial trucking regulations.
    She said, [s]uch a concern does not relate primarily to commercial trucking
    regulations. It relates to suspected criminal activity. Moreover, the trial
    judge held that once the focus of [the police officers inquiry] shifted from
    a regulatory inspection to a criminal investigation, the warrantless search
    became unlawful.

[56]

Writing for the Supreme Court of Canada in
Nolet
, Binnie J. emphasized at paras. 3
    and 4 that while random checks of vehicles for highway purposes must be
    limited to their intended purpose  roadside stops sometimes develop in unpredictable
    ways. At para. 4, he went on to note that, accordingly, reviewing courts must be
    careful to proceed step by step through the interactions of [officers] and [an
    accused] from the initial stop onwards to determine whether, as the situation
    developed, the [officers] stayed within their authority, having regard to the
    information lawfully obtained at each stage of the inquiry.

[57]

In
Nolet
, the
    fact that the random stop occurred in furtherance of a valid regulatory purpose
    was not disputed at the Supreme Court of Canada. Rather, the appellants main
    argument was that the police officers search of the duffel bag was
    predominantly attributable to his interest in illegal criminal activity and, as
    such, was beyond the scope of any valid regulatory purpose.

[58]

Binnie J. agreed with the Saskatchewan Court of Appeal
    that the question [was] not determining which purpose [was] predominant or
    subordinate. As long as there [was] a continuing regulatory purpose on which
    to ground the exercise of the regulatory power, the issue [was] whether the
    officers search of the duffel bag infringed the reasonable expectations of privacy
    of the appellants: see
Nolet
at
    para. 43. Further, he said:

I do not agree that the officers concurrent
    interest in contraband (even if it was predominant) rendered the 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 search vehicles for
    evidence of infractions ... 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
    did not convert a
Charter
-compliant
    regulatory search into a
Charter
violation [citations omitted].

[59]

In this case, in my view, when considered as a whole,
    the trial judges reasons reflect an either/or approach to assessing the
    evidence concerning the officers motivations when the trailer doors were
    opened and fail to reflect an appreciation that the presence of the criminal
    law search purpose does not, of itself, preclude the presence of a valid
    regulatory search purpose.

[60]

In particular, the trial judge's conclusions about the
    officers motivations for conducting a search appear to be driven solely by the
    fact that there were criminal law concerns in this case from the outset and
    that such concerns intensified and became predominant after the respondent
    mentioned a gun. I will repeat the relevant portion of his reasons as set out
    above for ease of reference:

I find that
    Officer Leeman never had a simple Highway Traffic Act inspection motivation.
Within seconds of stopping his vehicle and speaking to [the respondent], he
    radioed in for police assistance, and then made a second call out of concern for
    his own fear and safety when the issue of the possible presence of a gun arose.
Even if he had a regulatory enforcement
    intention at the time that he originally stopped behind the white transport
    truck, it is clear on his own evidence that that intention was very soon
    superseded by the criminal law concern of the possibility of guns being present
    at the site
.

I accept the proposition that Highway Traffic Act
    enforcement officers have been given the powers by the Legislature to stop and
    inspect commercial vehicles as described in s. 216.1 of the
Highway Traffic Act
, but it is plain and
    obvious that that power is not given to the officer, and could not be given to
    the officer, for any purpose beyond the limited regulatory purposes of ensuring
    compliance with the
Highway Traffic Act
and the two other statutes referenced in s. 216.1.
It is disingenuous, and astonishing to me that it could be suggested
    that an inspection power of this type granted for simple commercial vehicle
    regulatory purposes could be relied upon by Officer Leeman, or Constables Kent
    or Clarke as providing valid legal authority to permit the rear doors of the
    truck to be opened at a point in time when the focus of the investigation that
    was unfolding on James Snow Parkway had changed dramatically from a simple
    regulatory one, to one involving potential Criminal Code infractions
.
    [Emphasis added.]

[61]

However, as
Nolet
demonstrates, the presence of a criminal law purpose for conducting a
    search does not, of itself, preclude the existence of a valid regulatory
    purpose.

[62]

Accordingly, the issue for the trial judge was not simply
    whether Officer Leeman had

a criminal
    law purpose -- even a predominant criminal law purpose -- as events progressed.
    Rather, the issues were whether Officer Leeman actually formed a legitimate
    intention initially to search the tractor-trailer for regulatory purposes (whether
    he possessed a concurrent criminal law purpose or not), and if he did, whether
    that legitimate intention was still subsisting when Officer Leeman opened the
    trailer doors.

[63]

In his reasons, the trial judge also observed that
    Officer Leeman never articulated a basis for invoking his
Highway Traffic Act
inspection authority. However, Officer Leeman
    did not require an articulable basis for invoking his authority under s. 216.1.
    He was entitled to conduct an inspection to confirm regulatory compliance even
    in the absence of reasonable and probable grounds for believing that some
    infraction had been committed.

[64]

In the end, I conclude 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
    does not, in itself, preclude the existence of a valid regulatory search
    purpose or make a search that is otherwise authorized by law unreasonable under
    the
Charter
.

[65]

Although this conclusion does not undermine the
    validity of the finding that Officer Kent breached the respondent's
Charter
rights when he cut into one of
    the bales, it impacts the question of the extent and seriousness of the
Charter
breach. Given the nature of this
    issue, in my opinion, a new trial is necessary to permit a proper assessment of
    the relevant evidence.

(iii) No
    Meaningful
Balancing
of the Three
Grant
Lines of Inquiry

[66]

Although the trial judge recognized that he was
    required to balance the assessments under each of the three
Grant
lines of inquiry to determine
    whether admission of the evidence of the discovery of the cocaine would bring
    the administration of justice into disrepute, in my opinion, he erred by
    failing to engage in any meaningful balancing of the three lines of inquiry.

[67]

As I read his reasons, 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. While he acknowledged that excluding the
    evidence would result in the Crown being unable to prosecute a various serious
    charge, he failed to attribute any significance to the impact of the violation
    on the
Charter
protected interests of
    the respondent.

[68]

As set out above, the trial Crown conceded that the
    respondent had a reasonable expectation of privacy in the trailer, albeit a
    relatively minimal one. The trial judge accepted this concession and found that
    the impact of the s. 8 breach on the
Charter
-protected
    interests of the respondent was at the lower end of the scale. He went on to
    say that this conclusion would not have a material effect on the result of
    [his] analysis for reasons he would explain. In my view, the trial judge never
    gave any real explanation of this conclusion.

[69]

Even accepting the trial judge's finding that the
Charter
-infringing state conduct fell at
    the most serious end of the spectrum, that factor alone does not determine the
    s. 24(2) inquiry. It is still necessary to balance that assessment with
    the assessments arising from the other two
Grant
lines of inquiry.

[70]

In this case, the trial judge failed to take any
    account of the fact that the assessment under the second
Grant
line of inquiry pointed strongly towards admission of the
    evidence.

[71]

To the extent that the respondent had a reasonable
    expectation of privacy in the trailer, his
Charter
-protected
    interest could only be described as minimal. I say that for two reasons.

[72]

First, commercial trucking is a highly regulated
    industry
[1]
and truckers can expect to be subject to random inspections from time to time:
Nolet
, at para. 31.

[73]

Second, the evidence of the owner of the
    tractor-trailer demonstrated the extremely low level of the respondents
    privacy interest in the trailer in this particular case:

·

the respondent did not own the tractor-trailer;

·

the respondent had no authority to determine
    what was loaded into the trailer;

·

the respondent was not allowed to place anything
    in the trailer without the owner's permission;

·

the respondent generally did not load goods into
    the trailer himself;

·

the suppliers, and not the respondent, often
    secured the back of the trailer;

·

on February 4, 2007, the respondent did not have
    permission from the owner to put any items into the trailer other than the load
    he was supposed to deliver; and

·

although the respondent may have put his own
    lock on the back of the trailer from time to time, on February 4, 2007 there
    was no lock on the trailer doors.

[74]

Accordingly, 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.

[75]

Apart from the conclusory statements set out in para.
    38 above, the trial judge failed to engage in any meaningful balancing of the
    three
Grant
lines of inquiry. Once
    again, I am unable to say that in the absence of this error, the trial judges
    decision on the s. 24(2) analysis would necessarily have been the same.

Conclusion

[76]

Based on the foregoing reasons, I would allow the
    appeal, set aside the respondent's acquittal and order a new trial before a
    different judge of the Superior Court.


Signed: Janet
    Simmons J.A.

I agree D. OConnor
    ACJO

I agree David Watt
    J.A.

RELEASED:  JS
    February 11, 2011





[1]
In
    Ontario, a number of statutes govern commercial trucking, including the
Highway Traffic Act
, R.S.O. 1990,
    c. H.8; the
Dangerous Goods
    Transportation Act
, R.S.O. 1990, c. D.1; the
Public Vehicles Act
, R.S.O. 1990, c. P.54; the
Compulsory Automobile Insurance Act
, R.S.O. 1990, c. C.25; the
Fuel Tax Act
, R.S.O. 1990, c. F.35.


