R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312

R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 SCR 312

Joseph Ronald Jacques

and Mary Maurene Mitchell Appellants

v.

Her Majesty The Queen in Right of Canada Respondent

Indexed as: R. v. Jacques

File No.: 24558.

1996: February 2; 1996: October 3.

Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

on appeal from the court of appeal for new brunswick

Constitutional law ‑‑ Charter of Rights ‑‑ Search or seizure ‑‑ Police officer stopping and searching appellants’ truck several kilometres from Canada‑U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry ‑‑ Report containing no description of vehicle or passengers ‑‑ Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling ‑‑ Whether officer had reasonable grounds to stop appellants ‑‑ Whether appellants subjected to unreasonable search or seizure ‑‑ Canadian Charter of Rights and Freedoms, s. 8 ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).

Constitutional law ‑‑ Charter of Rights ‑‑ Arbitrary detention ‑‑ Police officer stopping and searching appellants’ truck several kilometres from Canada‑U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry ‑‑ Report containing no description of vehicle or passengers ‑‑ Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling ‑‑ Whether officer had reasonable grounds to stop appellants ‑‑ Whether appellants arbitrarily detained ‑‑ Canadian Charter of Rights and Freedoms, s. 9 ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).

An RCMP officer received a radio report from the U.S. border patrol informing him that a single vehicle had crossed the Canada‑U.S. border at a nearby uncontrolled point of entry. No description of the vehicle or of its passengers, contents or licence plates was given. The officer proceeded to the intersection of the road from the border and the Trans‑Canada highway. He testified that it would take approximately three minutes to drive from the border to the intersection, a distance of some four to five kilometres, and that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived he noticed two vehicles waiting. The first in line was a car with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle, which was occupied by the appellants, was stopped by the officer, who stated at trial that he had a choice between the two vehicles and picked the one he felt was more suspicious. When asked where he had been, the driver replied, “I’m coming from across”. He was then asked what he had in the back of the vehicle, and replied that it was whisky. On request, he opened the back of the truck and the officer noted several Wal‑Mart bags and some boxes with liquor markings on them. The officer then placed the appellants under arrest and confiscated their truck. The appellants were charged with failing to report to customs and smuggling. The trial judge found that since the stopping of the appellants' vehicle was based on the officer's hunch, which was insufficient to constitute reasonable grounds, it was arbitrary, and thus a violation of s. 9 of the Canadian Charter of Rights and Freedoms. He also held that the statements by the driver and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter. The Crown called no further evidence and the appellants were acquitted. The Court of Appeal found that the stopping of the appellants' vehicle was permitted under s. 99(1)(f) of the Customs Act, concluding that the officer had reasonable grounds to suspect a contravention of the Act because the truck was on the road leading from the border and did not fit into the surroundings. It set aside the acquittals and ordered new trials.

Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.

Per Gonthier, Cory and Iacobucci JJ.: Having failed to refer explicitly to s. 99(1)(f) of the Customs Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1)(f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto, but the trial judge referred to a probability of illegal smuggling. In assessing the officer's actions, the trial judge also adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances. Since the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act, the appellants were not arbitrarily detained contrary to s. 9 of the Charter. The appellants' right to be secure against unreasonable search and seizure was also not violated. The search carried out met the criteria set out in Collins: it was authorized by law, that law is itself reasonable, and the search was carried out in a reasonable manner. The Crown’s failure to adduce further evidence after the adverse voir dire ruling, thereby necessitating an acquittal, falls far short of an abuse of process. The ruling rendered virtually meaningless any other evidence which the Crown might have been in a position to call. Since it would be absurd to expect the Crown to have proceeded with the trial in those circumstances, its failure to do so does not affect the availability of a new trial. A new trial is warranted here. The excluded evidence, together with the evidence already of record, constitutes circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same.

Per Major J. (dissenting): The trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. While the requirements of s. 99(1)(f) of the Customs Act are not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Here the appellants' vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer also thought the fact that the vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Act. The arbitrary nature of the stop is evidenced by the officer's testimony; he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. He never explained why the truck was the more likely of the two vehicles to have crossed the border. There is nothing illegal per se about crossing the border at an uncontrolled checkpoint. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred. The officer acted on a hunch based on his experience. While experience should not be discounted in evaluating grounds to stop and search a vehicle, allowing police to exercise their considerable powers of detention and arrest based on their experience has the potential to permit ex post facto justification of police action. In assessing the officer's experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. Because there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter. In addition, the subsequent search was unreasonable and violated s. 8. Finally, the trial judge did not make an error as to the applicable principles of law governing the exclusion of evidence under s. 24(2), nor was his finding that the admission of the evidence would render the trial unfair unreasonable.

Sopinka J.’s reasons were agreed with.

Per Sopinka J. (dissenting): Major J.’s conclusion and reasons were agreed with. However, even if the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal should be allowed. In an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred. In order to satisfy this burden, which is a heavy one, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty. Here, the evidence of the search is the only evidence in the record. This evidence itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border, and as there were no customs offices on the road they were on, it would have been impossible for them to have reported to a customs office before they were stopped.

Cases Cited

By Gonthier J.

Distinguished: R. v. Montour and Longboat (1992), 1992 CanLII 2437 (NB PC), 129 N.B.R. (2d) 361; referred to: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254; R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182; R. v. Marin, [1994] O.J. No. 1280 (QL); R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.

By Major J. (dissenting)

R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621; R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257; R. v. Montour and Longboat (1992), 1992 CanLII 2437 (NB PC), 129 N.B.R. (2d) 361, rev’d (1994), 1994 CanLII 17447 (NB CA), 150 N.B.R. (2d) 7, rev’d 1995 CanLII 96 (SCC), [1995] 2 S.C.R. 416; R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265; R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615; R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93; R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206.

By Sopinka J. (dissenting)

Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 8, 9, 24(2).

Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), ss. 11(1), 99(1)(f), 159.

APPEAL from a judgment of the New Brunswick Court of Appeal (1995), 1995 CanLII 5578 (NB CA), 157 N.B.R. (2d) 195, 404 A.P.R. 195, 95 C.C.C. (3d) 238, 37 C.R. (4th) 117, overturning the acquittal of the appellants by Harper Prov. Ct. J. (1993), 1993 CanLII 15546 (NB PC), 143 N.B.R. (2d) 64, 366 A.P.R. 64, on charges under the Customs Act. Appeal dismissed, Sopinka and Major JJ. dissenting.

Norville T. Getty, for the appellants.

S. R. Fainstein, Q.C., and Theodore K. Tax, for the respondent.

//Sopinka J.//

The following are the reasons delivered by

Reasons of Sopinka J. (Dissenting)

1Sopinka J. (dissenting) -- I agree with the conclusion reached by Justice Major and with his reasons. In my opinion, however, even if, as found by the Court of Appeal and Justice Gonthier, the trial judge erred in excluding the evidence produced by the search of the appellants’ vehicle, the appeal must be allowed.

2In my opinion, the Crown and the majority of the Court of Appeal have misapprehended the obligation of the Crown in an appeal from acquittal based on an error of law at trial.

3In an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred (Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277). In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374, this Court held that “the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty”.

4In order to satisfy this burden, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty.

5In this appeal, we have the evidence of the search and no other evidence in the record. What transpired at trial, after the ruling excluding the evidence of the search, is summarized in the following extracts from the trial transcript:

MR. JOHNSON: . . . At this time I would simply advise the Court that we -- if -- if your decision had been different on your interlocutory judgement or if we had otherwise proceeded with the matter, it would have been my intention to have some more viva voce evidence from Corporal Ed Paquet who was giving evidence at the time we concluded the matter in October and adjourned. It was also my intention to call evidence from Constable Joseph Oliver and it was also my intention to call evidence from Mr. Gary Von Ritchter, who is --

COURT: Well nobody --

MR. JOHNSON: An employee of the --

COURT: Nobody is stopping you from doing that.

MR. JOHNSON: No well I say it was my intention to call those two -- or those three, Mr. Von Ritchter being the third from the New Brunswick Liquor Corporation. But in the -- light of your decision, I believe it would --

COURT: Their -- their evidence, if -- if it --

MR. JOHNSON: Be futile to --

COURT: Constable Ward’s evidence is the main evidence. If I am correct, then the Crown’s rights of detention rise or fall on Constable Ward’s testimony. The other testimony would be collateral and really not -- not material to -- to any court coming to a decision on it I don’t think. If I’m wrong of course the other -- the other evidence may be of great help but --

MR. JOHNSON: Well in light of the ruling that you have made, Your Honour, what I have as Crown counsel agreed to do at this point is to terminate our case and not call further evidence for the Crown.

6The evidence of the search alone is insufficient to discharge this burden. While Gonthier J. finds that it meets the standard set by the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), to authorize a search, this is a very low standard. As Gonthier J. states (at para. 14):

Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices. [Emphasis added.]

This hardly enables the Court to conclude with a reasonable degree of certainty that based on this evidence the verdict might well result in a conviction.

7Apparently, the Court of Appeal did not think so but seemed to be of the view that this was not of concern to them but a matter for the new trial. After referring to s. 11(1), the Chief Justice of New Brunswick states ((1995), 1995 CanLII 5578 (NB CA), 157 N.B.R. (2d) 195, at pp. 208-9):

It is my view that this section does not oblige a person to enter Canada only at manned or open border crossings. If that had been Parliament’s intention, it could have been expressed in such terms. Rather, s. 11(1) obliges every person arriving in Canada, with some exceptions that have no application here, to “forthwith present himself at the nearest customs office designated for that purpose that is open for business”.

Mr. Jacques and Ms. Mitchell did not have an opportunity to go to the “nearest” open customs office before they were apprehended by Cst. Ward. While this may become relevant in a new trial, it does not determine the issues in this appeal . . . . [Emphasis added.]

8Counsel for the Crown in this Court was of the same view. When asked how, in the circumstances, the Crown expected to meet the standard, counsel replied:

That is a matter to be determined at the new trial where all the evidence will be heard by a trier of fact.

As observed by the Chief Justice of New Brunswick, the evidence of the search itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border. As there were no customs offices on Brown Road, it would have been impossible for the appellants to have reported to a customs office before they were stopped by Constable Ward. As a result, apart from the evidence of the search, we have nothing to indicate what the evidence is that the Crown could adduce at a new trial other than the names of several witnesses. The Crown has therefore failed to discharge its duty as required by Vézeau.

9This requirement is quite separate from and unaffected by what was said in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, to which my colleague Gonthier J. makes reference. Quite apart from the Crown’s obligation arising from Vézeau, if the Crown shuts down its case in order to test an adverse ruling by the trial judge, it may be precluded from appealing if such conduct amounts to an abuse of process. In these circumstances, the Crown is disqualified from appealing. This does not mean, however, that if the Crown does not adduce evidence but no abuse of process is made out, the Crown is relieved of its obligation under Vézeau. Accordingly, it is insufficient for my colleague Gonthier J. to dispose of this point on the basis that there was no abuse of process. It is necessary to explain how the Crown has discharged its duty under Vézeau.

10Since writing the above, Gonthier J. has amended his reasons to deal with the application of Vézeau. I can find no evidence in the record that together with the excluded evidence could reasonably result in a conviction.

11I would dispose of the appeal as proposed by Major J.

//Gonthier J.//

The judgment of Gonthier, Cory and Iacobucci JJ. was delivered by

Reasons of Gonthier J. (Majority)

12Gonthier J. -- I have had the benefit of reading the reasons of my brother, Justice Major, but I am unable to agree with him that Constable Ward, the RCMP officer who stopped the appellants, lacked reasonable grounds to do so under the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and that they were therefore arbitrarily detained and subjected to an unreasonable search and seizure in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. It follows that I would dismiss the appeal.

13I agree, generally, with my colleague's recitation of the facts. With respect to the officer's use of the phrase "illegal entry" in relation to the report he received from the U.S. Border Patrol, I note that the trial judge also used this expression in reference to border crossings. I take it that in both cases, the term "illegal entry" was used merely as the vernacular for a crossing at an unstaffed port of entry. I give no weight to its use.

14The analysis of this case necessarily focuses on the Customs Act, specifically s. 99(1)(f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159. With respect to the words "might be" in s. 99(1)(f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.

15That this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.

16This legitimate interest of the state is reflected in the scheme and substance of the Customs Act, notably Parts II and VI concerning importation and enforcement respectively. The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory.

17The standard set by s. 99(1)(f) is not stringent but it is not illusory. It has not been argued, and I do not suggest, that s. 99(1)(f) of the Act authorizes an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.

18The unique context that border crossings present was recognized by this Court in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528):

National self-protection becomes a compelling component in the calculus.

I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.

Travellers arriving in Canada, whether at an airport or through any other point of entry, expect, if they do not relish, routine questioning and inspection. It is not surprising, therefore, that the appellant Jacques in the instant appeal answered Constable Ward's questions about where he had come from and what goods he was carrying just as he would have, had he been questioned at the point of entry three minutes' drive away.

19In Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, Iacobucci J. observed, at p. 1072:

. . . at a border the state has an interest in controlling entry into the country. Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.

20This passage from Iacobucci J. highlights the need for a contextual approach, which, in Dehghani and in the instant appeal, recognizes the significance of the border situation. Contextual analysis of Charter rights and freedoms is well established in this Court. As L'Heureux-Dubé J. observed, concurring, in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, at pp. 304-6, in which the appellant challenged the admissibility of breathalyser evidence under s. 8 of the Charter:

Even under the Charter, "reasonable and probable grounds" can mean different things in different contexts. This Court has previously referred to the standard of "reasonable and probable grounds" as one of "credibly-based probability": Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145, at p. 167; Baron v. Canada, 1993 CanLII 154 (SCC), [1993] 1 S.C.R. 416, at p. 446, and, on another occasion, of "reasonable probability" or "reasonable belief": R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166 (per Wilson J.). These different formulations are, themselves, unhelpful for the purpose of deciding what "reasonable and probable grounds" mean in the case at bar. What is more important is an examination of the context in which that phrase, and the values underlying that phrase, arise.

Notably, this Court has recognized on numerous occasions that what constitutes "reasonableness" and what constitutes a "reasonable expectation of privacy" may vary from one context to the other, depending upon the competing considerations at the heart of the issue: Hunter v. Southam Inc., supra, at p. 155; R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at pp. 526-28. "[T]he standard of review of what is ‘reasonable’ in a given context must be flexible if it is to be realistic and meaningful": McKinlay Transport Ltd., supra, at p. 645 (per Wilson J.). [Emphasis added.]

21It is against this backdrop that the language of s. 99(1)(f) of the Customs Act must be understood and the actions of the police officer who stopped and searched the appellants' vehicle weighed. In reaching the conclusion that the appellants' ss. 8 and 9 rights were violated, the trial judge erred in placing the case in the context of arbitrary vehicle checks of the kind considered by this Court in R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257. Although an analogy may be drawn between these cases and the instant appeal to the extent that in each the state's compelling interest either in highway safety and compliance in the case of the former, or in sovereignty, in the case of the latter, is relevant in the constitutional calculus, the random stop cases do not govern this appeal. Section 99(1)(f) of the Customs Act does and the trial judge erred by overlooking it.

22Having failed to refer explicitly to s. 99(1)(f) of the Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1)(f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto. However, with respect to the officer's observation of bags bearing the name "Wal-Mart", Harper Prov. Ct. J. said ((1993), 1993 CanLII 15546 (NB PC), 143 N.B.R. (2d) 64, at p. 75), "such a statement, without more, is hardly evidence supporting any probability of illegal smuggling", and at the end of the same paragraph, referring to the officer's evidence that he saw liquor boxes and U.S. department store items, the trial judge said, "[the evidence] is hardly more helpful to a court attempting to decide whether such statements without more indicate the probable presence of smuggled goods" (emphasis added).

23This passage, notably the repeated references to evidence "without more", demonstrates another problem with the trial judge's analysis. In assessing the officer's actions, Harper Prov. Ct. J. adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances.

24A sound approach to the assessment of evidence was canvassed by Doherty J.A. of the Ontario Court of Appeal in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, albeit in a different context, one in which the officer lacked statutory authority unlike in the present case. In determining whether or not a police officer's detention of a vehicle and its driver and passenger could be authorized by common law in the absence of statutory authority, Doherty J.A. reviewed U.S. jurisprudence on the doctrine of articulable cause and stated (at p. 202): "These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

25Viewing the facts and circumstances as a whole, rather than isolating each in turn, is an approach which commends itself beyond the fact situation in Simpson. As Belleghem J. observed in R. v. Marin, [1994] O.J. No. 1280 (Gen. Div.), with respect to the facts (or "indicators") warranting a detention and search for narcotics under the Customs Act (at para. 16):

The "indicators" are to be seen as a constellation, or cluster, leading or tending to a general conclusion. Looked at individually no single one is likely sufficient to warrant the grounds for the detention and seizure. The whole is greater than the sum of the individual parts viewed individually.

26Turning to the facts in the present appeal, I recall Hoyt C.J.N.B.'s succinct summary in the Court of Appeal ((1995), 1995 CanLII 5578 (NB CA), 157 N.B.R. (2d) 195, at pp. 205-6):

Three minutes before stopping Mr. Jacques' vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. In such circumstances, in my opinion, Cst. Ward's actions were not arbitrary and he was acting on reasonable grounds when he stopped and searched Mr. Jacques' vehicle.

The three-minute time span is particularly important because not only did Constable Ward receive the information of a single vehicle entry into Canada three minutes before stopping the appellants' car, but also Constable Ward estimated that at the point he stopped the appellants' vehicle, it was three minutes' drive from the border.

27To the extent that the officer's experience is relevant in the circumstances, it is noteworthy that at the time of trial, Constable Ward had been employed by the RCMP for three-and-a-half years and that the senior officer, in charge of the Customs and Excise Section in Woodstock, which covers the Perth-Andover detachment where Constable Ward was based, was also an RCMP officer. The senior officer testified that the double garage in the RCMP's office had been renovated to seal off one bay as a bondroom to accommodate the quantity of items seized. This evidence suggests no dearth of customs investigations.

28The circumstances of this case are very different than those of R. v. Montour and Longboat (1992), 1992 CanLII 2437 (NB PC), 129 N.B.R. (2d) 361 (Prov. Ct.), in which the officer had "no particular reason for stopping [the] vehicle" (p. 365). It is significant that in Montour and Longboat, the officer did not purport to proceed under s. 99(1)(f) of the Act. He conducted an arbitrary check of the vehicle and found contraband tobacco; however, the detention exceeded the purposes justified in Hufsky, supra, and Ladouceur, supra, and the evidence was excluded.

29This Court's decision in R. v. Wilson, 1990 CanLII 109 (SCC), [1990] 1 S.C.R. 1291, a companion case to Ladouceur, supra, is more apropos to the instant appeal than Montour and Longboat, supra. In describing the circumstance of the detention of a motor vehicle by a floating checkpoint, Cory J. said (at p. 1297):

. . . the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from a hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping a vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of a rural community. In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As a result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter.

In Wilson, there was arguably less information on which the officer could justify detention of the motor vehicle than in the present appeal. Nonetheless, the facts, when viewed in their entirety, justified the detention.

30In the instant appeal, the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act. It follows that the appellants were not arbitrarily detained contrary to s. 9 of the Charter.

31The circumstances which permitted the stop also permitted the search of the appellants' vehicle. Constable Ward's search met the criteria set out by this Court in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265: it was authorized by law, namely s. 99(1)(f) of the Act; that law is itself reasonable as I have previously elaborated; and the search was carried out in a reasonable manner. On this third point, I can add nothing to the summary in the court below (at p. 207):

Cst. Ward's actions amounted to a cursory search of the truck and its contents sufficient to confirm his suspicions. The circumstances of the search themselves do not indicate that it was unreasonable. Cst. Ward was not abusive or overbearing. Although Cst. Ward could have searched the truck in any event, he sought and received Mr. Jacques' permission to do so. He disturbed the contents of the truck only slightly and sufficiently to confirm his suspicions that an offence may have occurred.

The appellants' right to be secure against unreasonable search and seizure was not violated. The appeal also fails on this ground.

32Having concluded that there was no violation of the appellants' rights under ss. 8 or 9 of the Charter, I would dismiss the appeal. However, it is necessary to address first the failure of the Crown to adduce further evidence after the voir dire ruling, thereby necessitating an acquittal. The relevant jurisprudence was canvassed in this Court's decision in R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601, concerning an appeal from a directed verdict of acquittal where the Crown, upon receiving an adverse interlocutory ruling, declined to introduce any other evidence. Writing for the majority, L'Heureux-Dubé J. stated (at p. 615):

I, therefore, conclude that, in criminal cases, courts have a residual discretion to remedy an abuse of the court's process but only in the "clearest of cases", which, in my view, amounts to conduct which shocks the conscience of the community and is so detrimental to the proper administration of justice that it warrants judicial intervention.

The Crown's actions in the instant appeal fall far short of an abuse of process. According to the trial transcript, the other evidence which the Crown declined to adduce consisted of further police testimony, the expert evidence of a technician who analyzed the contents of the seized bottles to confirm the presence of alcohol and the evidence of the head of purchasing of the New Brunswick Liquor Control Commission to establish that the seized bottles were not sold in the province. The trial judge's ruling on the voir dire, however, rendered virtually meaningless any other evidence which the Crown might have been in a position to call and particularly that of the technician and the Liquor Control Commission official. It would be absurd to expect the Crown to have proceeded with the trial under those circumstances. Its failure to do so does not affect the availability of a new trial.

33I have found that although the appellants were detained, their detention was not arbitrary and although their vehicle was searched, the search was not unreasonable. Accordingly, there was no violation of the appellants' rights under ss. 8 or 9 of the Charter.

34Since writing the above, I have had the benefit of the reasons of Justice Sopinka. I appreciate that the issue he raises has not been expressly addressed. I am satisfied that the excluded evidence, together with the evidence already of record, constitute circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same or, stated otherwise, that such evidence could reasonably result in a conviction. A new trial is warranted. The appeal should be dismissed.

//Major J.//

The following are the reasons delivered by

Reasons of Major J. (Dissenting)

35Major J. (dissenting) -- This appeal raises the narrow issue of whether an RCMP officer, acting under the authority of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), had the requisite grounds to stop and search the appellants' vehicle away from the border. The appellants submit that the officer in question lacked reasonable grounds to suspect that the Customs Act had been or might be infringed, and that they were therefore arbitrarily stopped and subjected to an unreasonable search and seizure, in contravention of ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The respondent, relying on the decision of the Court of Appeal of New Brunswick, submits that the officer had the proper grounds to stop and search the vehicle in question.

I. Relevant Statutory Provisions

Relevant Statutory Provisions

36 Customs Act, R.S.C., 1985, c. 1 (2nd Supp.)

11. (1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, forthwith present himself at the nearest customs office designated for that purpose that is open for business and answer truthfully any questions asked by an officer in the performance of his duties under this or any other Act of Parliament.

12. (1) An officer may

(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.

159. Every person commits an offence who smuggles or attempts to smuggle into Canada, whether clandestinely or not, any goods subject to duties, or any goods the importation of which is prohibited, controlled or regulated by or pursuant to this or any other Act of Parliament.

II. Facts

Facts

37 On March 9, 1993, at 12:56 p.m., Constable Ward, an RCMP officer attached to the Perth-Andover, New Brunswick detachment, received a radio report informing him that a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled border crossing. It is worth noting that while the officer testified that the report was in respect of an “illegal entry into Canada”, the parties agreed before that there is no law prohibiting entry into Canada at an uncontrolled border crossing. The radio report originated from the U.S. Border Patrol. There was no description of the vehicle, its passengers, contents or licence plates.

38 The same officer proceeded to the intersection of Brown Road and the Trans-Canada Highway. Brown Road is a road which runs parallel to the border on the U.S. side, then turns across the border and intersects with the Trans-Canada Highway, approximately four to five kilometres from the border. Constable Ward testified that it would take approximately three minutes to drive from the border to the intersection. There are residences along, but no exits from Brown Road until one reaches the Trans-Canada Highway.

39 The constable testified that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived at the intersection, he noticed two vehicles waiting to enter the Trans-Canada Highway. The first in line was a Chrysler Dynasty with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a Dodge pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle was occupied by the appellants.

40 The constable stopped the appellants’ truck. The following portion from the transcript of his direct examination summarizes his reasons for stopping the appellants.

Court: And they were both on the Brown Road as it approached the Trans-Canada.

A: That’s correct, Your Honour. The first vehicle that I noticed was the Chrysler Dynasty and I noticed that there were New Brunswick plates on the car and there was one lady in the car, and she looked approximately I’d say sixty years old and it appeared at that time that the -- it didn’t look like as -- like your suspicious vehicle. It wasn’t something that sparked my attention, I would rather say, like it wasn’t like -- she didn’t look like somebody that would be smuggling or jumping the border.

Court: What does -- do they have a look about them, Constable?

A: Pardon.

Court: Does a smuggler have a look about him?

A: Well, the equipment used sometimes is rather uniform as to the way it happens. Sometimes they use four wheel drive or cars that are loaded down, like in the rear of the vehicle, you could notice that the vehicle is loaded down with merchandise sometimes if it's a large load, and . . .

Court: And sometimes they’re smuggling and you don't see anything, isn’t that right?

A: That’s -- that’s correct, yes. Every -- sometimes things go unnoticed.

Court: Sometimes a nice 60 or 70 year old lady is maybe sitting on a nice load of hash under the front seat.

A: It’s possible, Your Honour.

Q: And continue your narrative, please, Constable, what happened, you noted the two vehicles and described what you saw and what you did from that point, please?

A: Okay, I, at this time, I was alone in my marked police car, so I had a choice which vehicle I could stopped. So what I did was I looked at both vehicles and I noticed that the truck had a cellular antenna on the roof and there was a cab on -- a cap on the pickup truck and there was no license plate in the front and I thought to myself, well, this vehicle it looks more likely because it doesn’t fit into the surroundings of the village. So when I got behind the truck, I noticed that the license plate was from Quebec, so what I -- I had a choice I could either take the car or the truck so I picked the truck because it was from out of the province and it likely wasn’t supposed to be in the area or didn’t fit into the area.

Court: Why, why do you say likely it wasn’t supposed to be in the area, that makes it -- that’s a very peculiar statement for a person who’s giving me evidence. Why do you say that?

A: Because the Chrysler Dynasty had New Brunswick license plates on it and it seemed like the vehicle was a local car and that the pickup truck was more likely from another area. It had a Quebec license plate on it and it didn't look like a familiar vehicle.

Court: Did the Dodge Dynasty look like a familiar vehicle?

A: No, it didn’t but it had New Brunswick plates on it.

41 During cross-examination, the constable again stated that he stopped the appellants’ truck because he had a choice between the two vehicles and he picked the one he felt was more suspicious.

A. My reasonable belief was the fact that there was an entry into Canada at an unmanned port and my immediate patrol to the area spotted two vehicles. I had a choice between one or the other and one vehicle had Quebec plates on it and one had New Brunswick plates on it, so I had to stop one or the other because the road coming out of Brown Road connects with the Trans-Canada and any vehicles that may have been on that road were suspects to this offence.

Q. Why did you not stop both vehicles?

A. Because one was from Quebec which is out of the province and as mentioned before it -- it -- the vehicle didn’t look like it was -- it looked like it was out of place and my grounds or my knowledge as a police officer came into effect at that point and I used all -- I used sound judgement to check well, if the vehicle is out of the province, then this is the one I’ll check.

Q. So your sound police judgement is that vehicles that come out of province are suspect vehicles?

A. What I’m saying is that the car from New Brunswick is -- was more likely to be from the local area than to be from Quebec.

Q. What you said before was that a vehicle with an out of province license was suspect? Isn’t that what you said? Because it had an out of province license?

A. What’s your question?

Q. My question is in your sound police opinion, you feel that an out of province licensed vehicle is always the suspect vehicle?

A. At an unmanned port, yes, if there -- if there’s other factors involved such as information received from the United States Border Patrol stating that there was an entry into Canada at that specific location. Then I have no choice but to gather enough evidence and belief that this may possibly be the vehicle.

Q. So you thought this may possibly be the vehicle?

A. Yes, I did.

Q. You were suspicious of the vehicle?

A. Yes, I was.

Q. But you had nothing to indicate that this was the vehicle?

A. No, I didn’t.

42 Constable Ward approached the truck on foot and saw, through the window, several Wal-Mart bags. The only Wal-Mart stores in the area at the time were in the United States. He proceeded to ask the driver of the truck, the appellant Jacques, where he had been. Jacques replied, “I’m coming from across”. Jacques was asked what he had in the back of the vehicle, and replied that it was whisky. On request, the appellant Jacques opened the back of the truck. The constable noted the previously mentioned bags, as well as some boxes with liquor markings on them.

43 The constable then placed the appellants under arrest and confiscated their truck. The appellants were taken to the RCMP detachment in Perth-Andover, where they were permitted to contact counsel. They were subsequently searched and interviewed at Woodstock.

44 The appellants were charged with failing to report to customs and smuggling, under ss. 11(1) and 159 of the Customs Act. In Provincial Court ((1993), 1993 CanLII 15546 (NB PC), 143 N.B.R. (2d) 64), Harper Prov. Ct. J. found that the stopping of the appellants’ vehicle was based on the officer’s hunch, which was insufficient to constitute reasonable grounds. Relying on this Court's decisions in R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] 1 S.C.R. 621, and R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 S.C.R. 1257, the trial judge held that the stop was arbitrary, and thus a violation of s. 9 of the Charter. He said that in conducting his search, the officer was attempting to find evidence to justify his initial illegal detention of the appellants. Harper Prov. Ct. J. also held that the statements by Jacques and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter. The Crown called no further evidence and the appellants were acquitted.

45 The acquittal was overturned by the Court of Appeal for New Brunswick: (1995), 1995 CanLII 5578 (NB CA), 157 N.B.R. (2d) 195. The Chief Justice held that the trial judge had erred in considering the stop only in relation to the common law power of the police to perform random stops to investigate driving offences. He found that the stopping of the appellants’ vehicle was permitted under s. 99(1)(f) of the Customs Act. The Court of Appeal concluded that the officer had reasonable grounds to suspect a contravention of the Customs Act because the truck was on the road leading from the border and did not fit into the surroundings.

III. Issues

Issues

46 The appellants submit that the stop and search of their vehicle was an unreasonable search and seizure, and thus a violation of s. 8 of the Charter. Further, the appellants submit that they were arbitrarily detained, in violation of s. 9 of the Charter. These submissions both rest on what is the main issue in this case: whether Constable Ward suspected on reasonable grounds that the truck occupied by the appellants had been or might be in contravention of the Customs Act.

IV. Analysis

Analysis

47 While two Charter rights are alleged to have been infringed in this case, they both center on the same issue, whether the RCMP had reasonable grounds to suspect that the truck in question had been or might be involved in a contravention of the Customs Act. The trial judge felt the officer did not have reasonable grounds, while the Court of Appeal had the opposite view.

48 If the officer did not have reasonable grounds for his suspicion, as required under s. 99(1)(f) of the Act, the detention of the appellants’ truck was arbitrary. Random stopping of vehicles was held to be a violation of s. 9 of the Charter in Hufsky and Ladouceur. In those cases, the violation of s. 9 was justified under s. 1 of the Charter, as the violation occurred pursuant to a valid statutory goal, i.e., highway safety. If the stop was arbitrary it cannot be authorized by the Customs Act, as that Act requires suspicion on reasonable grounds, and does not authorize random stops. It was common ground that the appellants were not violating any traffic laws, nor were they stopped for a safety inspection.

49 In my opinion, the trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. The Court of Appeal noted that the trial judge did not refer specifically to the requirements of s. 99(1)(f). While this is true, the trial judge clearly realized that the police require reasonable grounds to stop vehicles except under the authority provided by Hufsky and Ladouceur. He stated that the facts of the case did not “constitute reasonable grounds to suspect that [the appellants’ truck] may be carrying contraband goods” (p. 74).

50 The requirements of s. 99(1)(f) are not stringent, perhaps because of the obvious difficulties in controlling the long undefended border between Canada and the United States. The officer need only suspect, on reasonable grounds, that the vehicle in question is or might be involved in a breach of the Customs Act. I take the phrase “might be” in the section to mean merely that there is a possibility that an offence is taking place, not implying suspicion of a future offence. While the requirement is not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Without such a connection, customs officers would have power to stop arbitrarily. Had Parliament intended customs officers to have such power, it would have said so, and not enacted s. 99(1)(f).

51 The case of R. v. Montour and Longboat (1992), 1992 CanLII 2437 (NB PC), 129 N.B.R. (2d) 361, while not concerned with s. 99(1)(f), is of assistance. There, a police officer stopped a van because it was an older vehicle bearing out-of-province plates. He had a “hunch” and “suspicion” about the van. Upon approaching the van, he spotted what appeared to be American tobacco products in the back of the van. The occupants were charged with a violation under the Excise Act. The trial judge found that the van had been arbitrarily stopped, and that the stop was not pursuant to the goals justified in Hufsky and Ladouceur. The trial judge found a violation of s. 9 and excluded the evidence under s. 24(2). The New Brunswick Court of Appeal overturned the decision (1994), 1994 CanLII 17447 (NB CA), 150 N.B.R. (2d) 7, but this Court restored the trial judge’s verdict, 1995 CanLII 96 (SCC), [1995] 2 S.C.R. 416.

52 In R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 12 O.R. (3d) 182, the Ontario Court of Appeal held that in the absence of statutory authority to stop a vehicle, stopping a vehicle for the purpose of determining if the occupants were involved in criminal activity can only be justified if the police have some “articulable cause” for the detention. The Court of Appeal held that there must be a constellation of objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is implicated in the activity under investigation. Of particular importance to this case, the Ontario Court of Appeal stated that a hunch based on intuition gained by experience cannot suffice as articulable cause. “[A]rticulable cause” is a standard equivalent to the requirements of s. 99(1)(f).

53 In this case, the constable based his actions on factors similar to those relied on by the officer in Montour and Longboat. He listed a number of random factors which he said indicated that the vehicle was suspicious. The appellants’ vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer thought the fact that the appellants’ vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Customs Act.

54 The first factor, which the appellants’ vehicle shared with the New Brunswick licensed car, was that the vehicle was at a point the officer identified as being three minutes away from the border. The trial judge in the absence of evidence gave this factor little weight, as it required unwarranted assumptions about the speed of the vehicles in question.

55 The second factor was the type of vehicle driven by the appellants. The officer stated that he was suspicious because the vehicle was a truck with a cap on the back and a cellular phone antenna. He offered an opinion that smugglers commonly use four-wheel drive trucks or “loaded-down” cars but did not state the basis for this opinion. There was no evidence, for example, that the officer had arrested any smugglers using similar vehicles.

56 The third factor was the presence of a Quebec licence plate on the appellants’ truck. In my opinion, there was no articulable reason to suggest that vehicles from out of the province are more likely to be involved in an offence under the Customs Act.

57 The arbitrary nature of the stop is evidenced by the officer’s testimony: he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. The officer stated that the appellants’ truck looked more likely to be involved in an offence than the other vehicle stopped at the intersection, the Dynasty, which had New Brunswick licence plates and was driven by a woman of approximately sixty years of age. The officer stated, “I had a choice I could either take the car or the truck so I picked the truck because it was from out of province and it likely wasn’t supposed to be in the area or didn’t fit into the area”.

58 The officer did not explain why a truck with a cellular phone antenna fit in less with the rural surroundings than did the Dynasty car which was also stopped at the intersection. In fact, he admitted that the Dynasty was not a “familiar” vehicle. Even assuming the officer was correct in concluding the appellants’ truck was not from the area, none of the officer’s evidence points to a reason why the appellants’ truck was likely to have been involved in a contravention of the Customs Act.

59 Constable Ward never explained why the truck was the more likely of the two vehicles to have crossed the border. It should be remembered that there was no information as to the description, occupants, licence plates or contents of the vehicle that had crossed the border. It appears that any vehicle crossing at the uncontrolled border point trips an electronic signal, leading to the type of report relayed to Constable Ward. In his testimony, the police officer admitted that he “had nothing to indicate that this was the vehicle”.

60 As mentioned above, there must be something that connects the vehicle to an alleged breach of the Customs Act for the requirements of s. 99(1)(f) to be satisfied. None of the factors listed by the officer have any connection with an infringement of the Customs Act, or any other law. It is unreasonable to suggest that because a vehicle is from Quebec, a neighbouring province, or even “not from the area”, it is more likely to be involved in an illegal activity.

61 The respondent cites R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, which held that people have a lower expectation of privacy when crossing the border, to argue that the search in this case was reasonable. At the same time, the respondent relies on s. 99(1)(f) as the authority for the search. In doing so, the respondent must be arguing that crossing the border, at least at an uncontrolled border crossing, can create a reasonable suspicion that an illegal activity is occurring. Without additional evidence, such as the existence of a manned border crossing nearby that was avoided, it is unreasonable to suggest that by performing a perfectly legal act one can become a suspect under the Customs Act. It is important to note that Simmons was concerned with whether a person undergoing a routine search in the customs office at a point of entry into Canada is detained for the purposes of s. 10(b) of the Charter, and not with the grounds for searches under the Customs Act.

62 Even if it is assumed, for the moment, that crossing the border provides “reasonable grounds” to suspect sufficient to ground a search under the Act, in this case there was nothing to indicate that the appellants’ truck had crossed the border, except that it was on Brown Road, a coincidence which the truck shared with at least one, and possibly other, vehicles. The fact that a vehicle has Quebec plates rather than New Brunswick plates is not an indication that the vehicle has likely just crossed the border from the United States. In fact, it is arguable that a resident of the area would be more likely to be aware of the presence of an uncontrolled border crossing in the neighbourhood. In any event, the officer admitted that he did not know if the appellants’ vehicle had, in fact, crossed the border.

63 That there is nothing illegal per se about crossing the border at an uncontrolled checkpoint is significant. Section 99(1)(f) refers to a suspicion on reasonable grounds that a contravention of the Customs Act or its regulations has occurred or might be occurring. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred.

64 The constable acted on a hunch based on his experience in this case, a fact recognized by the Court of Appeal. At p. 205, Hoyt C.J.N.B. refers to actions of Constable Ward as follows:

Three minutes before stopping Mr. Jacques’ vehicle, Cst. Ward had received precise and reliable information of a single vehicle entry into Canada at an unmanned border point on a secondary paved road in a rural area. He went to the mouth of the road leading from the border where, calling on his experience of three years of police work in the area, he found a vehicle that, in his opinion, did not fit into the surroundings. He came to that conclusion after observing a covered half-ton truck with a cellular phone antenna and, more significantly, with no front licence plate, a requirement for New Brunswick vehicles, and an out-of-province plate at the rear of the vehicle. [Emphasis added.]

65 The “precise and reliable information” referred to by the appeal court was a report that a single vehicle had crossed the border at Four Falls, New Brunswick. There was no evidence regarding type, model, or colour of the vehicle, nor was there any information about licence numbers or province.

66 Basing a detention on “experience as a police officer” is precisely the justification that was disapproved in Simpson and Montour. The experience of police officers should not be discounted in evaluating grounds to stop and search a vehicle. However, allowing police to exercise their considerable powers of detention and arrest based on such experience has the potential to permit ex post facto justification of police action. It is of some significance that here the peace officer’s experience was in general police work as an RCMP constable and not as a regular customs official. In assessing the constable’s experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. That mistake could have influenced his actions.

67 Because there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter. The search was without warrant, and thus a prima facie unreasonable search: see Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145. To be reasonable, a warrantless search must be authorized by law, the law must be reasonable, and the search carried out must be reasonable: see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265. As mentioned, s. 99(1)(f) does not authorize a warrantless search unless the officer has reasonable grounds to suspect that a vehicle has contravened the Act. So in this case, where such grounds were absent, there is no legal authority for a warrantless search. For this reason, s. 8 was breached.

68 It remains to determine whether the evidence, which consisted of the contents of the truck and the personal effects of the appellants, should be excluded under s. 24(2) of the Charter. The Court of Appeal did not deal with this issue, as they found that no breach of the Charter had occurred.

69 The trial judge held that the admission of the evidence would render the trial unfair. Despite the fact that it was “real” evidence, the trial judge felt that it would not have been obtained but for the breach of the appellants’ Charter rights. On the authority of R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 S.C.R. 615, the trial judge excluded the evidence.

70 This case is similar to Mellenthin. In that case, the police stopped a car at a check stop. The police, without grounds to search the car, asked the driver to open a bag, which was found to contain narcotics. In this case, the police stopped the appellants without reasonable grounds, and requested that the driver open up the rear of the truck. In Mellenthin this Court found that the evidence would not have been found but for the accused’s participation, brought on by a breach of his Charter rights. The evidence was excluded.

71 Even if I disagreed with the trial judge on the effect of the evidence on the fairness of the trial, his decision should be upheld. The test is not one of correctness. In R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93, it was held that a trial judge’s decision regarding s. 24(2) should not be overturned absent an error as to the applicable principles of law or a finding that is unreasonable. The trial judge was not in error as to the applicable principles, and his finding was not unreasonable.

72 The evidence would not have been found but for the Charter breach. R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, held such evidence would affect trial fairness if admitted, notwithstanding the fact that it is real evidence. Based on Mellenthin and Burlingham, the trial judge was correct in excluding the evidence.

73 The trial judge did not comment on the second and third Collins categories. In my opinion the breach of the Charter was not serious, given the officer’s apparent good faith, and the fact that he thought he had some basis (albeit insufficient) for stopping the appellants.

74 In assessing the third category, the effect on the reputation of the administration of justice, it is of interest that the offence alleged is not a crime of violence or loss of property. However, smuggling contraband such as alcohol is a serious offence.

75 The seriousness of the alleged crime notwithstanding, this offence was not demonstrated on the facts. The actus reus is failing to report to the nearest customs office. It was conceded, as it had to be, that the appellants had not driven past any customs offices, nor were they driving away from the nearest customs office. The officer arrested the appellants before they had a chance to report to customs as required. An analogy might be a person being arrested in the hallway between an airplane off-ramp and the customs office and charged for failing to report to customs before he or she had a chance to do so.

76 In summary, the trial judge was correct in finding that the RCMP officer had no reasonable grounds to suspect that the truck driven by the appellants had contravened the Customs Act. Because of this, the detention of the appellants was arbitrary, in violation of s. 9 of the Charter. In addition, the subsequent search was unreasonable and violated s. 8 of the Charter. Lastly, the trial judge did not make an error as to the applicable principles of law under s. 24(2), nor was his finding unreasonable.

77 Since writing the above reasons I have reviewed the reasons of Justice Sopinka and agree with him.

78 The appeal should be allowed.