



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. A.B.
,









2021 BCCA 20   REDACTED




Date: 20210121

Docket: CA45531

Between:

Regina

Respondent

And

A.B.

Appellant

Restriction
on publication:  A publication ban has been imposed under s. 486.5(1)
of the
Criminal Code
restricting the publication, broadcasting, or
transmission in
any way of information that could identify the appellant, referred to in these
reasons for judgment as A.B.

SEALED
FILE

An
order has been made by this Court sealing all materials in the court file
and directing that the appeal proceed under the style of cause,
Regina v.
A.B.,
2019 BCCA 387. This published judgment has been redacted from the original
reasons for judgment, which have been sealed. These redacted reasons set out
the background to the case and explain, in as much detail as is appropriate in
the circumstances, the legal issues raised in the appeal and the resolution of
those issues.




Before:



The Honourable Mr. Justice Goepel

The Honourable Mr. Justice Hunter

The Honourable Mr. Justice Voith




On appeal from:  An
order of the Supreme Court of British Columbia, dated February 28, 2018 (
R.
v. [A.B.]
, 2018 BCSC 1371, Revelstoke Docket 22872-2).




Counsel for the Appellant:



T.M. Arbogast
K.A. Kirkpatrick





Counsel for the Respondent:



J.N. Walker





Place and Date of Hearing:



Vancouver, British
  Columbia

September 29, 2020





Place and Date of Judgment:



Vancouver, British
  Columbia

January 21, 2021









Written Reasons by:





The Honourable Mr. Justice Hunter





Concurred in by:





The Honourable Mr. Justice Goepel
The Honourable Mr. Justice Voith








Summary:

The appellant appeals his
conviction for possession of cocaine for the purpose of trafficking. He argues
that the search of his truck that uncovered the drugs violated his Charter
right to be secure from an unreasonable search and seizure. He further submits
that the trial judge erred in assessing whether the Crown had proved the mens
rea element of the offence beyond a reasonable doubt. Held: Appeal dismissed.
The search was authorized by statute and was not unreasonable. There was no
error in the trial judges finding that the mens rea

was proved beyond a
reasonable doubt.

Reasons for Judgment of the Honourable
Mr. Justice Hunter:

[1]

The appellant was convicted of possession of three kilograms of cocaine
for the purpose of trafficking. The cocaine was discovered in a duffel bag
found during a search of the commercial tractor-trailer the appellant was
driving, after the appellant was pulled over for erratic driving. The location
of the duffel bag was variously described by the parties in a toolbox (by the
Crown) or the sleeping compartment in the cab (by the appellant).

[2]

The appellant appeals on two grounds. First, the appellant submits that
the search that uncovered the cocaine was unlawful, and the trial judge erred
in admitting the evidence resulting from the search. Second, he argues that the
judge erred in concluding that the Crown had established that the appellant had
the requisite
mens rea
to commit the offence.

[3]

As this Court explained in
R. v. Bacon
, 2020 BCCA 140, there are
rare cases that demand protection of privileged and confidential information to
the degree that the reasons must be sealed to allow the issues engaged to be adjudicated.
This is such a case. Due to the sensitive nature of certain information in this
appeal, a sealing order and publication ban are in place. The unredacted
reasons are sealed. The analysis of the appellants second ground of appeal,
relating to the trial judges approach to proof of
mens rea
, is redacted
to be suitable for publication. These redacted reasons set out the background
to the case and explain, in as much detail as we are allowed, the legal issues
raised in the appeal and the resolution of those issues.

[4]

The characterization of the location of the cocaine drives the first
issue raised by the appellant, who contends that the warrantless search that
led to the discovery of the drugs exceeded the authority of the arresting
officer. The appellant submits that an accused person has a protected
expectation of privacy in the sleeping compartment of a commercial truck, and
in any event, the intended purpose of the stop had already been satisfied. This
issue turns largely on the findings of fact made by the trial judge, assessed
in light of the principles explained by the Supreme Court of Canada in
R. v.
Nolet
, 2010 SCC 24.

[5]

In my view, for the reasons that follow, the principles in
Nolet
govern this appeal. I am not persuaded that the trial judge erred in his
application of those principles.

[6]

The second issue raised by the appellant arises from his testimony at
trial providing exculpatory evidence about whether the
mens rea
element
of the offence was satisfied. The trial judge rejected the appellants
explanation and concluded that the Crown had proved the requisite
mens rea
beyond a reasonable doubt. The appellant submits that in coming to this
conclusion, the trial judge failed to properly apply the principles set out in
R.
v. W.(D.)
, [1991] 1 S.C.R. 742.

[7]

For the reasons that follow, I do not agree that the trial judge failed
to follow the principles in
W.(D.)
in finding that the appellant had the
requisite
mens rea
for the offence.

Admissibility of the Evidence of Cocaine Possession

[8]

The question of admissibility of the cocaine found in the
tractor-trailer the appellant was driving was addressed at a
voir dire
. The
judges restricted reasons are indexed at 2017 BCSC 2672.

[9]

During the
voir dire
, the arresting officer, Constable Coleman, testified
that after he pulled over the appellant, he asked the appellant to produce his
logbook, licence and fuel receipts, required under the
Motor Vehicle Act
Regulations,
B.C. Reg. 26/58 [
Regulations
]. The appellant produced
his logbook, but there were no entries within the prior four days, which is an
offence under the
Regulations
.

[10]

Constable Coleman advised the appellant that he was going to be placed
out of service for a minimum of eight hours and possibly up to 72 hours. The
appellant asked to be able to drive the truck about three kilometers up the
road to a parking lot at a motel. At the parking lot, Constable Coleman
conducted a search of the vehicle. He located the duffel bag containing the
cocaine in what he described as a jockey box or toolbox. The judge described
the location of the toolbox in this way:

[9]        Constable Coleman was aware that evidence of log
books might be concealed in the toolbox area. The toolbox was used to store
items required for the operation and maintenance of the tractor-trailer unit.
Included in the items typically carried in the toolbox was lubrication oil,
tie-on straps, windshield washer fluid, road flares, and dirty rags.

[10]      The toolbox was divided
off in a separate compartment from the sleeping area. The officer was aware
that the driver had an expectation of privacy with respect to the bed and the
closet. He did not search the bed, the bedding, or clothing.

[11]

Constable Coleman testified that the toolbox was also accessible from
the exterior of the truck, but that the easiest way to search the toolbox area
was to lift the bed and look down on the toolbox.

[12]

The judge described the discovery of the drugs in this way:

[3]        Constable Coleman
lifted up the bed in the sleeping berth of the truck and looked into the
toolbox area. He saw a bag partially open and showing a brick of cocaine. In
the bag there were other two similar-sized bricks of cocaine weighing about
1,065 grams respectively. The officer arrested [A.B.] for possession of drugs
for the purposes of trafficking.

[13]

The judge accepted Constable Colemans evidence that he was searching
for the missing logbooks when he searched the truck. He concluded that the
search was authorized by statute and was carried out lawfully. The evidence of
the cocaine was admitted.

[14]

In this Court, the appellant alleges that the judge erred in admitting
the evidence on the basis that the search was unreasonable and violated the
appellants
Charter
rights. He raises two issues in relation to the
search, which he frames as follows:

1.       Did Constable Coleman have
the authority to engage in a further search of the vehicle after he had
determined that the appellant was non-compliant and had issued him a violation
ticket?

2.       If Constable Coleman had
the authority to engage in a further search, was that search properly conducted
or did Constable Coleman step out of bounds when he searched the sleeping
compartment of the truck and lifted up the bed?

Authority to Search

[15]

The power to search commercial vehicles is set out in s. 239(1) of
the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318 [
MVA
], as
follows:

A peace officer may, without a
warrant, search a business vehicle on a highway to determine whether this Act
and the regulations are being complied with in the operation of that business
vehicle, and for that purpose may require the driver of the business vehicle to
stop the business vehicle and permit the search to be made.

[16]

The appellant submits that once Constable Coleman was presented with
incomplete logbooks and had decided to issue a ticket, there was no further
reason (nor further authority) for any search. He further submits that apart
from accepting Constable Colemans evidence that he was looking for logbooks,
the judge did not address the issue of why a search for missing logbooks was
necessary when the appellant had been unable to produce them when requested to
do so. He concludes that the judge erred in interpreting s. 239 to permit
a further search in these circumstances.

[17]

In my opinion, the judgment in
Nolet
provides a complete answer
to this ground of appeal. In
Nolet
, a commercial truck was pulled over
by a police officer for a random spot check. The officer noticed an expired
fuel sticker on the outside of the vehicle. Driving without a current sticker was
a provincial offence. The officer asked for the logbook and vehicle
registration. The logbook was incomplete, and the vehicle registration had not
been prorated for commercial driving in Saskatchewan, which was also a
provincial offence. The officer conducted an initial search of the trailer,
looking for documents to confirm or dispute the contents of the logbooks.
Instead he found a duffle bag containing more than $100,000 in small
denominations. After police back-up was summoned, the officer conducted a
further search of the trailer, and discovered a hidden compartment containing
significant volumes of prohibited drugs. The question for the Court was whether
this sequence of searches violated Mr. Nolets
Charter
right to be
secure from unreasonable search or seizure. The Court held that it did not.

[18]

The statutory authority at issue in
Nolet
was s. 63(5)(b) of
the
Highways and Transportation Act, 1997,
S.S. 1997, c. H-3.01 [
H&TA
],
which read as follows:

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:



(b) search the
vehicle for evidence of an offence

[19]

The Supreme Court held that, armed with this statutory authority, the
police officer was authorized to search for further evidence of provincial
offences:

[28]      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 drivers 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.

[20]

The Court concluded that the search of the tractor-trailer rig for
relevant papers was authorized by s. 63(5)(b): para. 29.

[21]

The appellant seeks to distinguish
Nolet
from the circumstances
at bar on the basis that the Saskatchewan statute has preconditions for a
warrantless search, whereas the
MVA
does not. The only precondition for
a search contained in s. 63(5)(b) is that the police officer must have
reasonable and probable grounds for believing that the vehicle was being
operated in contravention of regulation. Section 239 of the
MVA
does not
contain such precondition, but in my view it does not follow that the statutory
authority granted is less broad than the Saskatchewan statute under
consideration in
Nolet
. I note that, as in
Nolet
, the
reasonableness of the law itself is not challenged on this appeal.

[22]

The appellant also argues that Constable Coleman was acting on a good
hunch rather than on reasonable grounds because appellant had a history of
criminal activity and had admitted his failure to comply with the logbook
regulations. However, the trial judge specifically considered, and rejected,
the defence argument that the officers reliance on the
MVA
and the
Regulations
to search the vehicle was merely a ruse to uncover drugs or guns. He
accepted Constable Colemans evidence that he was searching the toolbox to look
for logbooks: at paras. 16, 24, 26, 30. There is no basis to disturb this
conclusion on appeal.

[23]

The Supreme Court of Canada in
Nolet
went on to address whether
the specific search was reasonable, as I will discuss in the next section of
this judgment, but in my view the conclusion of the Court that the officer in
Nolet
was justified in conducting a search once he was aware of a provincial
infraction is not materially distinguishable from the conclusion reached by the
trial judge in the case at bar. I would not give effect to the first ground in
relation to the initial decision to search the truck.

The Location of the Search

[24]

The second objection to the search raised by the appellant is the
location of the search, near the sleeping compartment of the truck. The
appellant submits that he had an expectation of privacy in the sleeping
compartment of the truck, which was violated when Constable Coleman accessed
the toolbox by lifting the sleeping berth from within the cab of the truck.

[25]

The Court in
Nolet
dealt with this issue as well and concluded
that in light of the possibility of mandatory inspections and searches, there
could be little expectation of privacy, even in the sleeping area of the truck:

[31]      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.

[Emphasis added.]

[26]

Thus the search of the toolbox, located below the sleeping berth, was not,
without more, a violation of the appellants right to be secure from
unreasonable search or seizure.

[27]

The appellant submits, however, that this principle cannot apply if the
statutory authorization for the search prohibits entry to the sleeper area of the
truck. He relies on s. 37.19.02(1) of the
Regulations
, which reads
as follows:

A peace officer may at any reasonable time enter or stop and
enter a commercial motor vehicle,
except for its sleeper berth
, for the
purpose of inspecting the daily logs and supporting documents.

[Emphasis added.]

[28]

The trial judge addressed this argument in his
voir dire
ruling. After
reviewing s. 239 and s. 37.19.02(1), as well as the definition of sleeper
berth found in Schedule 1 of the
Regulations
, the judge concluded as follows:

[22]      Based on those provisions, I am also satisfied that
Constable Coleman was entitled to search the toolbox.
It was not part of the
sleeper berth
.

[23]      The mere fact that [A.B.] may have stored some of
his personal items in the toolbox does not change the character of that area to
become part of the sleeper berth. It is apparent from looking at the contents
of the toolbox that the items stored in it were to be used for the operation
and maintenance of the truck.

[Emphasis added.]

[29]

I conclude that on the findings of fact by the trial judge, the toolbox
where the drugs were located was not part of the sleeper berth such that the
search of the toolbox can be said to have been in violation of s. 37.19.02(1)
of the
Regulations
.

[30]

The secondary argument of the appellant is that the entry to the area of
the sleeper berth was itself contrary to s. 37.19.02(1), rendering the
subsequent search illegal. The implication of this argument is that the
regulation limits the scope of the general statutory authority in s. 239
of the
MVA
to search a business vehicle on a highway to determine
whether this Act and the regulations are being complied with in the operation
of that business vehicle. I cannot agree that the regulation has the effect of
qualifying the general power contained in the statute.

[31]

On its face, s. 37.19.02(1) relates to an inspection of the daily
logs and supporting documents, not the search for undisclosed logbooks. To the
extent that there may be overlap between the authority to inspect daily logs of
commercial motor vehicles and the authority to search business vehicles for
documents evidencing non-compliance with regulations, I do not consider that
the regulation could be read as prevailing over the general power expressed in
the statute: see
Friends of the Oldman River Society v. Canada (Minister of
Transport)
, [1992] 1 S.C.R. 3 at 3839.

[32]

Accordingly, it is my view that s. 239 of the
MVA
authorized
the search of the toolbox, notwithstanding that the police officer located the
toolbox beneath the sleeper berth of the truck and notwithstanding the
provisions of s. 37.19.02(1) of the
Regulations
. The law recognizes
broad powers for search of commercial vehicles when the purpose of the search
is regulatory oversight:
R. v. Kenyon
, 2010 MBCA 70 at para. 7. The
trial judge did not err in admitting the evidence of the cocaine that was
seized pursuant to this search.

Proof of the
Mens Rea
Requirement

[33]

At trial, the appellant gave exculpatory evidence relating to the
mens
rea
element of the offence. Two other witnesses gave evidence relevant to
this issue, and certain parts of their evidence were contradictory. I will
refer to these witnesses as Witness A and Witness B. The appellants
position was that his evidence, combined with contradictory evidence given by the
other two witnesses, raised a reasonable doubt about whether the Crown had
proved
mens rea
.

[34]

The trial judge recognized that the issue was whether the appellant had
the requisite
mens rea
to commit the offence, which engaged the
principles set out in
W.(D.)
. He summarized the question before him in
this way:

[7]        The Crown must prove the case against [A.B.] beyond
a reasonable doubt. The burden of proof remains with the Crown throughout the
case. The burden never shifts to [A.B.]. [A.B.] has testified. Where an accused
testifies, the convenient manner of analyzing the issues is set out in the
W.(D.)
(
R. v. S. (W.D
.), [1994] 3 S.C.R. 521 line of cases. It requires the
trier of fact to follow the following principles:

1)   if I believe the testimony of [A.B.]
that he did not commit the offence charged, I must find him not guilty;

2)   if I do not believe the
testimony of [A.B.], but if it leaves me with a reasonable doubt about his
guilt, I must find him not guilty;

3)   if I do not know whom to
believe, it means I have a reasonable doubt and I must find [A.B.] not guilty;
and

4) even if the testimony of [A.B.]
does not raise a reasonable doubt about his guilt, if, after considering all of
the evidence, I am not satisfied beyond a reasonable doubt of his guilt, I must
acquit.

[8]        These four principles
are simply a convenient way of describing the courts duty to consider the
whole of the evidence on every issue.

[35]

The appellant takes no issue with this statement of principle, but
argues that in his assessment of the evidence, the judge did not apply the
W.(D.)
principles properly.

[36]

The judge reviewed the testimony of the three witnesses. He held that
the evidence of the appellant was not reliable, and identified some specific
contradictions in his testimony. With respect to the other two witnesses, the
judge found Witness A to be reliable and specifically accepted his version of
the evidence where it contradicted that of Witness B. The judge also accepted
Witness Bs testimony, except where it contradicted Witness As evidence. Part
of the evidence from Witness A and Witness B that the judge accepted tended to contradict
the exculpatory evidence the appellant gave relating to his
mens rea
.

[37]

It is this part of the judges reasoning that the appellant submits
demonstrates error in assessing his
mens rea
. The appellant submits that
the judge failed to grapple with the significance of the inconsistency between
the evidence of the two witnesses, which in turn undermined the strength of the
Crowns case. He relies on the judgment of the Ontario Court of Appeal in
R.
v. M.G.
(1994), 93 C.C.C. (3d) 347 (Ont. C.A.), for the proposition that if
there is a significant inconsistency in a witnesss testimony then the trial
judge must pay careful attention to it when assessing the reliability of the
witnesss evidence.

[38]

In my view, the judges reasons addressing the inconsistency in Witness
Bs evidence demonstrate that he paid careful attention to the inconsistency,
and explain why he did not consider it sufficiently significant to affect the
reliability of the evidence that related more directly to the issue at hand,
the appellants
mens rea
to commit the offence.

[39]

The judge went on to conclude that he was satisfied the appellant had
the requisite
mens
rea to commit the offence of drug trafficking. In
particular, he found the Crown had proved beyond a reasonable doubt that the
appellant had the intention of transporting or delivering cocaine. He therefore
found the appellant guilty as charged.

[40]

The judge was entitled to accept all, part or none of Witness Bs
testimony. He accepted the witnesss testimony that was most relevant to the
appellants
mens rea
, which tended to contradict the appellants
evidence
.
It was unnecessary for the judge to go further and expressly
state that he did not have a reasonable doubt about the appellants guilt:
R.
v. R.E.M
., 2008 SCC 51 at para. 56.

[41]

The judge correctly articulated the principles from
W.(D.)
that
he was to follow. I can see no error in his application of these principles in
his judgment.

[42]

For the foregoing reasons, I would dismiss the appeal.

The
Honourable Mr. Justice Hunter

I AGREE:

The Honourable
Mr. Justice Goepel

I AGREE:

The Honourable
Mr. Justice Voith


