Her Majesty the Queen v. Sandhu [Indexed as: R. v. Sandhu]

103 O.R. (3d) 561

2011 ONCA 124

Court of Appeal for Ontario,

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

February 11, 2011

Charter of Rights and Freedoms -- Exclusion of evidence -- Search and seizure -- Trial judge erring in holding that evidence obtained by unauthorized search is presumptively inadmissible and that burden on Crown to overcome presumption -- Onus on person seeking to exclude evidence to demonstrate on balance of probabilities that admission of evidence would bring administration of justice into disrepute -- Trial judge failing to meaningfully balance all three Grant factors and instead determining that evidence should be excluded based on seriousness of Charter--infringing state conduct -- Commercial trucking heavily regulated and trucks subject to periodic random searches reducing driver's expectation of privacy in cargo area of truck -- Driver not owning truck and having no permission to place anything into trailer -- Driver's reasonable expectation of privacy in trailer minimal -- Trial judge failing to consider impact on prosecution of serious offence if cocaine found inadmissible -- Crown's appeal from acquittal allowed and new trial ordered -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

Charter of Rights and Freedoms -- Search and seizure -- Statutory power of search -- Trial judge erring in finding that inspection of commercial trailer was not authorized under Highway Traffic Act as Ministry of Transportation enforcement officer had criminal law concerns from outset of inspection -- Concurrent criminal law purpose permissible if officer formed legitimate intention to search trailer for regulatory purposes and trial judge need not determine which purpose predominating -- Officer not requiring articulable basis for invoking his authority under Highway Traffic Act -- Highway Traffic Act, R.S.O. 1990, c. H.8, s. 216.1.

Charter of Right and Freedoms -- Search and seizure -- Trial judge erring in holding that search unreasonable if search having criminal law purpose in addition to regulatory purpose -- Otherwise statutorily authorized search not rendered breach of s. 8 of Charter if person searching having concurrent criminal law purpose -- Trial judge erring by imposing burden on Crown to show that admission of evidence obtained by unauthorized search would not bring administration of justice into disrepute -- Onus on party seeking to exclude evidence to demonstrate admission of evidence would bring administration of justice into disrepute -- Error regarding onus on s. 24(2) requiring new trial -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The accused was charged with possession of 205 kg of cocaine for the purpose of trafficking. He was employed as a tractor- trailer driver. He did not own the truck that he was driving. The owner of a transport terminal became suspicious when he saw items being loaded from a passenger vehicle into the back of the accused's trailer, which was parked in a private area of the terminal. He followed the accused when he left the terminal and forced the tractor-trailer to stop. A [page562] Ministry of Transportation enforcement officer was driving by and stopped to see if he could help. The owner described what had taken place. The enforcement officer called for police assistance. When police officers arrived at the scene, the accused aroused suspicions by saying that someone had put a gun to his head and told him to put things in the back of the tractor-trailer. The enforcement officer inspected the trailer and saw plastic-wrapped bales. Based on his training and prior experience, he believed that the bales contained narcotics. A police officer opened one of the bales and saw that it contained cocaine. The accused was arrested, and the police applied for a search warrant. The accused applied to exclude the evidence of the cocaine under s. 24(2) of the Canadian Charter of Rights and Freedoms. The trial judge found that the initial search was not authorized under s. 216.1 of the Highway Traffic Act and that the Crown bore the onus of demonstrating that the evidence of the discovery of the cocaine was admissible under s. 24(2) of the Charter. He found that the police conduct was at the more serious end of the spectrum and excluded the evidence. As a result, the accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that evidence obtained by an unauthorized search is presumptively inadmissible and that the Crown bore the onus of demonstrating that admission of the evidence would not bring the administration of justice into disrepute. 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. That practical consideration relates to only one aspect of the s. 24(2) analysis. The burden remains on the party seeking to exclude the evidence to show on a balance of probability that admission of the evidence would bring the administration of justice into disrepute.

The trial judge erred in finding that the initial inspection of the trailer was not authorized under s. 216.1 of the Highway Traffic Act as the enforcement officer "never articulated a reason that would have permitted him to engage his authority" and because any regulatory enforcement intention that he might originally have had was quickly superseded by criminal law concerns. The existence of a concurrent criminal law purpose does not, in itself, preclude the existence of a valid regulatory search purpose and there is no need for the Crown to show which purpose predominated. Moreover, the officer did not require an articulable basis for invoking his authority under s. 216.1 of the Highway Traffic Act.

The trial judge erred by failing to engage in any meaningful balancing of the three Grant lines of inquiry. Rather, he determined that the evidence should be excluded based on his assessment that the Charter-infringing state conduct fell at the more serious end of the spectrum. He 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. Trucking is a highly regulated industry in which drivers must expect that their cargo will sometimes be subject to random inspection. The accused did not own the truck, had no right to decide what it carried, was not permitted to add anything into the trailer without the owner's permission and the trailer doors were not locked. Thus, to the extent that the accused had a reasonable expectation of privacy in the trailer, his Charter-protected interest could only be described as minimal. Finally, the judge failed to consider the impact on the prosecution of a serious criminal offence if the evidence obtained in the search was excluded.

As one cannot say that the outcome would have been the same but for these errors in the s. 24(2) analysis, a new trial must be ordered. [page563]

APPEAL by the Crown from the acquittal entered by M.G. Quigley J., 2009 55322 (ON SC), [2009] O.J. No. 4106, 69 C.R. (6th) 137 (S.C.J.).

Cases referred toR. v. Nolet, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, 2010 SCC 24, 213 C.R.R. (2d) 52, 76 C.R. (6th) 1, 403 N.R. 1, 320 D.L.R. (4th) 1, 95 M.V.R. (5th) 1, EYB 2010-175730, 2010EXP- 2088, 256 C.C.C. (3d) 1, J.E. 2010-1151, 350 Sask. R. 51, [2010] 8 W.W.R. 1, apld R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 172 N.R. 1, J.E. 94-1528, 74 O.A.C. 161, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 23 C.R.R. (2d) 193, 6 M.V.R. (3d) 1, 24 W.C.B. (2d) 539; R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, consd Other cases referred to R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, 155 D.L.R. (4th) 19, 221 N.R. 281, [1999] 4 W.W.R. 303, J.E. 98-217, 123 Man. R. (2d) 208, 121 C.C.C. (3d) 97, 13 C.R. (5th) 1, 48 C.R.R. (2d) 189, 37 W.C.B. (2d) 81; R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 15 W.C.B. (2d) 387; R. v. Duarte (1990), 1990 150 (SCC), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, 65 D.L.R. (4th) 240, 103 N.R. 86, J.E. 90-263, 37 O.A.C. 322, 53 C.C.C. (3d) 1, 74 C.R. (3d) 281, 45 C.R.R. 278, 9 W.C.B. (2d) 230; R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 55 D.L.R. (4th) 673, 89 N.R. 1, J.E. 89-78, 30 O.A.C. 241, 45 C.C.C. (3d) 296, 66 C.R. (3d) 297, 38 C.R.R. 252, 2 T.C.T. 4102, 6 W.C.B. (2d) 74 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 [as am.] Dangerous Goods Transportation Act, R.S.O. 1990, c. D.1 [as am.] Fuel Tax Act, R.S.O. 1990, c. F.35 [as am.] Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], s. 216.1 Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01 [as am.], s. 63(5) Public Vehicles Act, R.S.O. 1990, c. P.54 [as am.]

Morris Pistyner, for appellant. John Collins, for respondent.

The judgment of the court was delivered by

SIMMONS J.A.: -- Overview

[1] The Crown appeals from the respondent's 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. [page564]

[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 Canadian Charter of Rights and Freedoms 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, R.S.O. 1990, c. H.8. He conceded that the police violated the respondent's 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 judge's 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 respondent's 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 respondent's assignment on February 4, 2007 was to deliver a load of carrots to stores in the Greater Toronto Area.

[9] Just after 9:00 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. [page565]

[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 respondent's 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. Dorken's vehicle and the respondent's 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. [page566]

[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 owner's 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. [page567] 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 Judge's Reasons

[25] Given that the trial Crown conceded that the respondent's 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 [at para. 4]:

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 [page568] 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 s. 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), 1994 64 (SCC), 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 SCC 32, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, the trial judge turned to his analysis.

[27] As a preliminary matter, the trial judge rejected the trial Crown's 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 [at para. 59] 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 Leeman's testimony that he radioed for police backup within seconds of speaking to the respondent, the trial judge found [at para. 60] 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 [at paras. 60-61]:

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 [page569] 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 Kent's version of the events. He found [at para. 64] 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 [at para. 65] 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 [at para. 66] "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 [at para. 67] that while the trial Crown conceded that the breach was at "the more serious end of the spectrum", he nonetheless argued [at para. 68] 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 [at para. 70] that the officers engaged in "an intrusive and invasive warrantless search of [the respondent's] 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 [at para. 70] 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 Crown's concession that the respondent had [page570] a reasonable expectation of privacy in the trailer, albeit at "the lower end of the scale". However, the trial judge also commented [at para. 76] 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 prosecution's case.

[38] After noting that Grant requires that a trial judge [at para. 80] "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 [at paras. 80-81]:

. . . 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 recharacterized 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. [page571] (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 [1994 64 (SCC), [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74], 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 S.C.R., Bartle reaffirms the proposition set out in R. v. Collins, 1987 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at pp. 284-86 S.C.R.; R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, at p. 532 S.C.R.; and R. v. Duarte (1990), 1990 150 (SCC), 71 O.R. (2d) 575, [1990] 1 S.C.R. 30, [1990] S.C.J. No. 2, at p. 59 S.C.R. 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 S.C.R., 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 [page572] 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 judge's 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 judge's decision on the s. 24(2) analysis would necessarily have been the same. The trial judge's 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 SCC 24, [2010] 1 S.C.R. 851, [2010] S.C.J. No. 24, at para. 21, citing Collins, at p. 278 S.C.R., and R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 10.

[49] As set out above, in this case, although the Crown conceded that Constable Kent breached the respondent's 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 [at para. 60] that "Officer Leeman never had a simple Highway Traffic Act inspection 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 [page573] the respondent spoke about a gun. The trial judge also found [at para. 61] 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 unit's 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 Saskatchewan's 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 officer's suspicion that there may have been some alterations done to the trailer, the trial judge concluded [at para. 15, Nolet] 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 [page574] officer's 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 their 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 officer's 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 [at para. 41] 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 officer's 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 officer's concurrent interest in contraband (even if it was "predominant") rendered the H & TA 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 judge's 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. [page575]

[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 [at paras. 60-61]:

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 [page576] 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 [page577] 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 [See Note 1 below] 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 respondent's 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 [page578] 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 judge's 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.

Appeal allowed.

Notes

Note 1: In Ontario, a number of statutes govern commercial trucking, including the Highway Traffic Act; 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.