COURT FILE NO.: 18/09
DATE: 2012-01-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AVTAR SANDHU
Kevin Wilson, for the Crown
John Collins, for Mr. Sandhu
HEARD: October 3 & 4, 2011
REASONS FOR JUDGMENT
GRAY J.
[1] This is the second trial of Mr. Sandhu. At the first trial, Quigley J. held that approximately 500 pounds of cocaine that were found in a tractor-trailer operated by Mr. Sandhu were not admissible in evidence, as a result of a Charter violation by the police. As a consequence, Mr. Sandhu was acquitted: see R. v. Sandhu (2009), 2009 CanLII 55322 (ON SC), 69 C.R. (6th) 137 (Ont. S.C.J.).
[2] The Court of Appeal ordered a new trial. The Court held that Quigley J. erred in his approach to the Charter issue, and erred in balancing the factors regarding admissibility under s. 24(2) of the Charter: see R. v. Sandhu (2011), 2011 ONCA 124, 268 C.C.C. (3d) 524 (Ont. C.A.).
[3] Mr. Sandhu again challenges the admissibility of the cocaine. In addition, there is an issue as to the admissibility of certain utterances made by Mr. Sandhu.
[4] For the reasons that follow, I hold that the cocaine is admissible in evidence, and Mr. Mr. Sandhu’s utterances are admissible in evidence.
Background
[5] At the times material to this matter, Mr. Sandhu was the operator of a tractor-trailer, transporting baby carrots from California to points in Ontario. On February 4, 2007, he was observed by the owner of a truck stop near Highway 401 east of Milton, engaging in what the owner thought were suspicious circumstances. As a result, the owner followed Mr. Sandhu westbound on Steeles Avenue, and confronted him just as Mr. Sandhu was about to make a left turn onto James Snow Parkway, southbound. After some discussion, Mr. Sandhu proceeded southbound on James Snow Parkway, and was stopped just as he was about to enter the westbound access ramp to Highway 401.
[6] While Mr. Sandhu and the owner of the truck stop were having their discussion on Steeles Avenue, they were observed by Mr. Leeman of the Ontario Ministry of Transportation, and Mr. Leeman turned around and followed the truck to where it was stopped at the exit ramp to Highway 401. Ultimately, the police were called, the trailer was searched, a significant quantity of drugs was found, and Mr. Sandhu was arrested.
[7] Ultimately, the matter came before Quigley J. and a jury. In a ruling made after a voir dire, Quigley J. held that the drugs were not admissible in evidence, and Mr. Sandhu was acquitted.
[8] Quigley J. held that while Mr. Leeman may have had an intention to search the trailer pursuant to his authority under the Highway Traffic Act, at the time of the actual search there was no such intention. At the time of the search, the police were concerned that criminal activity had occurred and that was what motivated the search. No search warrant had been obtained, and Quigley J. held that since there was no actual intention to conduct an inspection pursuant to the Highway Traffic Act, the search was unauthorized by law and warrantless.
[9] Quigley J. held that, upon application of the factors discussed in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), the evidence should be excluded. He held that the breach of Mr. Sandhu’s Charter rights was at the serious end of the scale and, even though Mr. Sandhu’s interest in privacy in the circumstances was at the lower end of the scale, nevertheless, the admission of the evidence would have caused damage to the administration of justice.
[10] On appeal to the Court of Appeal, that Court held that Justice Quigley had erred in his approach to the matter, by holding that the onus was on the Crown to demonstrate that the evidence was admissible under s. 24(2) of the Charter. The Court held that, instead, the onus was on Mr. Sandhu. The Court also held that Quigley J. had not properly balanced the factors discussed in Grant, and had given conclusory reasons for finding that the evidence should be excluded.
[11] Instead of holding that the evidence was admissible, the Court of Appeal ordered a new trial.
[12] I conducted a voir dire to determine the admissibility of the cocaine, and the admissibility of certain utterances by Mr. Sandhu. I heard viva voce evidence as to the circumstances.
[13] Mr. Singh, the owner of the company for whom Mr. Sandhu worked, was the Crown’s first witness. He testified that Mr. Sandhu, on February 4, 2007, was to deliver a load of carrots from California to points in Ontario, namely, Cambridge and Mississauga. Mr. Sandhu was to deliver a load to Cambridge at 1:30 a.m., and to Mississauga at 6:30 a.m. Mr. Singh was advised by the customers in Cambridge and Mississauga that the goods were not delivered.
[14] Mr. Singh testified that he was the owner of the trailer that was hooked up to the tractor being operated by Mr. Sandhu that day. He testified that Mr. Sandhu was not permitted to pick up goods except with the permission of Mr. Singh’s company. He certainly did not have permission to put more than 200 kilograms of cocaine in the trailer. He testified that the shipper is responsible for the safe loading of the trailer. The driver would simply observe. Normally, the shipper puts a seal on the trailer, and if the shipper is not available to do that, then the driver puts on his own lock.
[15] The second witness called by the Crown was Jason Leeman. He is a Transportation Enforcement Officer with the Ministry of Transportation. Among other things, his duties include enforcement of the Highway Traffic Act in relation to commercial vehicles.
[16] On the day in question, he exited the westbound Highway 401 at James Snow Parkway, and upon looking north towards Steeles Avenue saw a silver car sitting in the westbound left turn lane on Steeles Avenue, in the middle of the intersection at James Snow and Steeles, with a transport truck parked directly behind it. He saw an older gentleman standing outside the car. He learned that that gentleman’s name was Mike Dorkin.
[17] Mr. Leeman observed Mr. Dorkin and the transport truck make a left hand turn onto James Snow Parkway, to head southbound. Mr. Leeman thought that possibly the vehicles had been involved in an accident, it and just seemed strange, so he made a turn to investigate. He testified that for the most part, persons in his position perform random inspections of commercial vehicles, including document checks, checks of the vehicle to ensure mechanical fitness, and verifying the load or contents of the trailer.
[18] That day, Mr. Leeman was observing vehicles on a route that truckers typically use to bypass an inspection station on Highway 401. He was heading out to get set up to intercept vehicles of that sort.
[19] On the day in question, after the vehicles had turned left to proceed southbound on James Snow Parkway, Mr. Leeman pulled a U-turn on Steeles, and then approached the lights at Steeles and James Snow Parkway to turn left. He observed the truck was stopped directly in the middle of the on ramp to the westbound 401, blocking the lane, and Mr. Dorkin’s car was parked close by. Mr. Leeman turned left on James Snow Parkway and pulled in behind the tractor-trailer.
[20] Mr. Leeman testified that his reason for pulling in behind the tractor-trailer was that he was intending to do an inspection of the vehicle, and investigate what he thought were strange circumstances. He said, “And I figured I was there, I might as well inspect it as well, too.” Asked about his motivation for inspecting it, he said, “Just no different than any other time. Just ensuring compliance with various pieces of legislation, whether it’s hours of service or the driver’s properly licenced or the vehicle’s fit for the road. No, no different than any other time.” He said his legal authority for doing so was s. 216.1(1) of the Highway Traffic Act.
[21] Mr. Leeman testified that he approached and spoke to Mr. Dorkin, who identified himself as the owner of the Truck Town Terminal, which is approximately one kilometre east of the site. Mr. Dorkin advised that he had observed the truck and another car on his property acting in a suspicious manner. Mr. Leeman asked if Mr. Dorkin wanted him to advise the police, to which he said “yes”. As a result, Mr. Leeman contacted his Ministry’s communication centre, who asked the police to attend.
[22] Mr. Leeman then asked Mr. Sandhu to produce his driver’s licence, which he did. He asked Mr. Sandhu, “What’s going on?” to which Mr. Sandhu stated, “They put a gun to my head.” At that point, Mr. Leeman contacted the Ministry’s communications centre again and asked them to expedite the arrival of Halton Police.
[23] Mr. Sandhu was not under arrest, he had not been advised of his right to counsel, and he had not been advised that he was detained or was not free to leave.
[24] Mr. Leeman testified that normally, in the course of performing an inspection, he would instruct a driver to surrender other documents that are typically kept in the truck, such as the registration, insurance, and a log book. At that point, Mr. Leeman did not go further with the inspection, because he was not sure what was happening.
[25] Approximately six to seven minutes later, two police officers arrived, Constable Kent and Constable Clarke, from Halton Police. Mr. Leeman related to them the circumstances, including Mr. Dorkin’s belief that the truck had been stolen, and also the statement made by Mr. Sandhu that a gun had been put to his head.
[26] Mr. Leeman testified that after Constable Kent asked Mr. Sandhu a couple of questions, he asked Mr. Sandhu to go to the rear of the trailer and to open the doors so that Mr. Leeman could verify the load that was in the back of the trailer and then continue on with his inspection. He testified that there was no seal or a lock on the doors. He testified that when he directed Mr. Sandhu to open the doors, they were opened by Mr. Sandhu.
[27] When Mr. Sandhu opened the doors, Mr. Leeman observed a couple of black bales sitting there, and then he could see the rest of the black bales at the edge of the trailer, that would have been stacked against the door. The bales were wrapped in black plastic with clear tape around them.
[28] Mr. Leeman testified that the trailer was approximately three-quarters full of its load, which appeared to be carrots or some type of produce. It was palletized, meaning that it was put onto skids, and was neatly stacked and wrapped with shrink wrap.
[29] The bales were large, black plastic and were very different from how the load itself was neat and palletized. As soon as he saw the bales, he immediately believed it to be some type of narcotics. At that point, Constable Kent and Constable Clarke took over the investigation.
[30] On cross-examination, Mr. Leeman testified that when he first observed the tractor-trailer, he did not have the present intention to investigate it for avoiding the scales on Highway 401. He confirmed that he called the police because Mr. Dorkin had asked him to, because of a suspicion that the vehicle may have been stolen.
[31] Mr. Leeman insisted that when he pulled up behind the tractor-trailer, he had already made up his mind that he was going to inspect it. After Mr. Sandhu said that someone had put a gun to his head, he called and asked that the police attend a second time.
[32] Mr. Leeman confirmed that he never asked the driver for his log book, bills of lading or any other documents associated with the trailer, and that was because something of a criminal nature was involved, something that needed to be handled by the police. He did not say to Officer Kent that he needed assistance to conduct a Ministry of Transportation inspection, rather, what he said was that there was a suspicion that the truck was stolen and the driver had mentioned a gun. He confirmed that he never did conduct a Ministry of Transportation inspection.
[33] Mr. Leeman testified that he may have told Constable Kent that he had the authority to search the trailer as a Ministry of Transportation officer. He testified that he did not recall Officer Kent saying to him, “Let’s do it,” or words to that effect. He denied that he and Officer Kent had opened the doors, and he insisted that Mr. Sandhu had opened them.
[34] The next witness was Officer Paul Kent, with the Halton Regional Police Service. He testified that he was dispatched at 9:54 a.m. on February 4, 2007, after a request that came from the Ministry of Transportation.
[35] Officer Kent testified that he approached Mr. Sandhu and asked to see the Commercial Vehicle Operator Registration along with his permit, which Mr. Sandhu provided. Mr. Sandhu had an accent, but Officer Kent felt he was able to communicate with him.
[36] Officer Kent testified that Mr. Sandhu told him that two guys came to him with a gun and told him to put bags in the back. Officer Kent did not remember asking a question, and believed that Mr. Sandhu just offered the information. Officer Kent was in uniform, and had a weapon, but it was not drawn. Mr. Sandhu repeated the story while they were at the back of the truck.
[37] At the back of the truck, Officer Kent did not see any seals or any lock. He testified that at some point he and Officer Leeman had a conversation about the authority that he had under his Ministry of Transportation powers under the Highway Traffic Act, and Officer Kent assisted Officer Leeman in opening the trailer. He testified that he and Mr. Leeman jointly opened the trailer.
[38] Upon the doors being opened, Officer Kent observed nine black garbage bags that were wrapped in clear packing tape. The bags were two feet by two feet by one foot high. There were nine bags, and there were also skids of baby carrots piled from floor to ceiling, and some juice.
[39] Officer Kent testified that he was standing approximately one foot away from the opening at the back of the trailer. He reached into the trailer and opened the farthest right bag with the knife on his duty belt. At that time, he felt that he was assisting Officer Leeman with his authority under the Highway Traffic Act to verify the load. It did not occur to him at that point that he might not have the authority to open the bag with the knife.
[40] On opening the bag, he discovered a sort of dense green leafy type substance, which he believed was marijuana. At that point, Constable Clarke placed Mr. Sandhu under arrest for possession of a controlled substance.
[41] Officer Kent testified on cross-examination as follows:
QUESTION: Now, having spoken to both Mr. Dorkin and Mr. Leeman, and now having spoken to Mr. Sandhu and having received information about suspicious circumstances and the possibility of a firearm, as a police officer you formed the intention to search the tractor-trailer as part of your police investigations?
ANSWER: I felt that we, we needed to know the contents of that tractor-trailer.
QUESTION: Yes. And that was in relation to your police investigation.
ANSWER: I wanted to do it as a police officer, but I know that Officer Leeman also wanted to do that.
QUESTION: Okay. Well, I’m gonna put it to you, Officer, that Ministry of Transportation Officer Leeman never informed you that he had the intention to conduct a Ministry of Transportation inspection of that tractor-trailer and he never asked for your assistance for that purpose. Do I have that right?
ANSWER: He never asked for my assistance. He did inform me he had the authority to inspect the contents.
QUESTION: All right. We’ll get to that. Am I right that MTO Officer Leeman never informed you that he wanted to conduct a Ministry of Transportation inspection of that tractor-trailer?
ANSWER: I don’t remember him saying those words. No.
QUESTION: Well, he’s testified here today that he never told you that he had an intention or desire to conduct a Ministry of Transportation inspection of that trailer. So, I take it you don’t disagree with his testimony?
ANSWER: No, I don’t disagree with that. No.
[42] He also testified as follows:
QUESTION: And I, therefore, put it to you, Officer Kent, that you knew you did not have the lawful authority to search the trailer portion of the truck without a warrant and you specifically had a discussion with Officer Leeman as to his authority to do that. And when he told you he did have that authority, you relied on that authority to search the truck?
ANSWER: Yes.
[43] He also testified as follows:
QUESTION: Just to finish with you, Officer Kent, Ministry of Transportation Officer Leeman has testified that he never asked you to assist him in an MTO inspection of the trailer, he never asked you to assist him in opening the trailer doors, he never asked Officer Clarke to enter into the trail and inspect it and he never asked you to open one of the bales that were found inside the trailer. Do you agree with that testimony?
ANSWER: I would have to agree.
[44] He also testified as follows:
QUESTION: And I put it to you, Officer Kent, that you cut that bale open on your own motion, out of your concern as a police officer, that for those reasons, the suspicious circumstances and the firearm, the trailer portion of this commercial vehicle needed to be searched?
ANSWER: I felt that I was still assisting Officer Leeman.
QUESTION: Despite the fact that you had no directions from him whatsoever or even information from him that he was conducting a Ministry of Transportation Inspection?
ANSWER: He, he told me that he had the authority, so I felt I was assisting him, in my mind.
[45] The next witness called by the Crown was Officer Geoff Clarke, of the Halton Regional Police Service.
[46] Officer Clarke testified that his understanding was that he and Officer Kent were there to assist the Ministry of Transportation, and that the doors of the trailer were opened under their authority. He testified that Mr. Sandhu physically opened the doors, and that he had been directed to do so by Officer Leeman.
[47] Officer Clarke testified that as Mr. Sandhu was in the process of opening the doors, he made a statement that said they put a gun to his head and made him put it in the back. That was not in response to a question.
[48] Officer Clarke testified that he entered the trailer to ensure that there was not any danger for those standing at the back of the trailer, to make sure that there was not, in fact, anybody in the back of the trailer with a gun. He examined the empty space behind the pallets at the front of the trailer. He had no direct involvement with the bale shaped objects in the truck. He observed Officer Kent cut into one of the bales, and there appeared to be a sort of green, leafy substance which he thought was compressed marijuana.
[49] Once he saw the green, leafy substance, Officer Clarke placed a telephone call to his supervisor, and placed Mr. Sandhu under arrest for possession of a controlled substance.
[50] On cross-examination, Officer Clarke testified that the Ministry of Transportation had asked for the police attendance about a gun call, not about an inspection of a tractor-trailer to see if it had carrots in it rather than potatoes. He testified as follows:
QUESTION: And I put this to you, Officer Clarke: at the scene and prior to the trailer doors being opened, you had not spoken to Ministry of Transportation Officer Leeman about any Ministry of Transportation inspection that was going on or that he wanted to engage in. Do I have that right?
ANSWER: I don’t believe there was a conversation about that.
QUESTION: And more specifically, Ministry of Transportation Officer Leeman had not asked you, as a police officer, to assist him in executing any Ministry of Transportation responsibilities pertaining to that tractor-trailer? Do I have that right?
ANSWER: That’s correct.
QUESTION: So, when you made the decision to enter the trailer, you did so as you’ve testified, because of your concern over the driver’s reference to a gun and as you’ve put it squarely to the judge, it was out of concern for the safety of those persons at the scene that you wanted to ensure there was nobody, for instance, hiding in the trailer armed with a firearm?
ANSWER: That’s correct.
QUESTION: That’s why you went in?
ANSWER: That’s correct.
QUESTION: And not, to use the anecdote, not to wear it out, but when you went in for that purpose, again, you could care less whether that transport trailer contained potatoes when it was supposed to contain carrots? That’s not what was on your mind?
ANSWER: No, sir, it wasn’t.
QUESTION: But you knew, Officer Clarke, that as far as your authority at that point in time as a Halton Regional Police Officer to conduct a search, a criminal investigative search of the trailer, you knew that you had no authority to do so without a search warrant?
ANSWER: That’s correct.
QUESTION: But on your evidence, the circumstances from a safety point of view dictated that you satisfy yourself there were no safety concerns in relation to a firearm. And your purpose, therefore, was limited to that focus when you went in the rear of the trailer, is that right?
ANSWER: That’s correct.
QUESTION: Now, you made a sufficiently thorough inspection. And I, I say to you inspection as opposed to search. Do I have that right? Yes?
ANSWER: Okay.
QUESTION: A sufficiently thorough inspection that you were confident in your conclusion that there were no safety concerns, that there was nobody hiding in the trailer and that there was no firearm and nobody armed with a firearm?
ANSWER: That’s correct.
QUESTION: So, you exited the trailer and you gave to those gathered at the rear doors of the trailer some type of all clear to indicate that your inspection for any safety concerns was negative.
ANSWER: That’s correct. I don’t know exactly how or what was said, but....
QUESTION: And having done that inspection and having made that all clear, you exited the trailer?
ANSWER: That’s correct.
QUESTION: And at that point in time did not harbour a suspicion that there were any narcotics present in the trailer?
ANSWER: That’s correct.
QUESTION: And in any event, not to underscore it overly, but in any event, that in respect even if you had had the suspicion that there were narcotics present in the trailer, you knew that you would need a search warrant to conduct that type of search of the trailer?
ANSWER: That’s correct.
QUESTION: And then without Officer Kent engaging you in any conversation after you gave the all clear, and indeed despite your giving the all clear, you observed Officer Kent on his own motion cut into one of the bales located by the rear doors of the trailer to inspect – to search the contents of that bale? Is that what happened?
ANSWER: That’s correct.
QUESTION: You received information from Officer Kent that he suspected what was secreted inside the bale that he had cut open with a knife was a narcotic. And on that information being conveyed to you, you were the one who arrested Mr. Sandhu for possession of a controlled substance? Do I have that right?
ANSWER: That’s correct.
[51] Detective Brad Murray was the last witness. He testified that after being briefed by Constable Clarke, he decided that the police needed a search warrant to continue. A telewarrant was applied for, and granted, and it was executed. What was ultimately found was nine separate bales of what turned out to be cocaine. There were 205 packages, amounting to 255 kilograms.
Submissions
[52] Mr. Collins, counsel for Mr. Sandhu, submits that the 255 kilograms of cocaine should not be admitted into evidence.
[53] Mr. Collins accepts that the Court of Appeal allowed an appeal from the decision of Quigley J., who had decided that the drugs should not be admitted into evidence. However, the Court did not decide that the drugs should be admitted into evidence. Rather, the Court of Appeal simply ordered a new trial. Accordingly, the issue of the admissibility of the cocaine remains open.
[54] Mr. Collins submits that the search was a warrantless search from start to finish, and is presumptively unreasonable. He submits that the search was not authorized by s. 216.1 of the Highway Traffic Act, as there was no intention to perform an inspection under that Act. If there was ever a fleeting thought that an inspection under that Act might be performed, it was never part of the thought process of the police at the time the search was conducted. Indeed, the only relevance of the authority to inspect under the Highway Traffic Act was that it served as a pretext to conduct a warrantless search for evidence of criminal activity.
[55] Mr. Collins made extensive reference to R. v. Nolet (2010), 2010 SCC 24, 256 C.C.C. (3d) 1 (S.C.C.), a case referred to by the Court of Appeal in Sandhu, but which was decided after the decision of Quigley J. In that case, the Supreme Court of Canada held that a search of a commercial vehicle can be motivated by both regulatory and criminal law concerns, and the discovery of evidence that is relevant to a criminal charge can be validly discovered pursuant to a regulatory inspection. However, Mr. Collins submits that this is so as long as the intention to conduct a regulatory inspection prevails throughout the process.
[56] At para. 3 of Nolet, delivered for a unanimous Court by Binnie J., the following is stated:
Clearly, random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”.
[57] At para. 4, Binnie J. stated:
It is necessary for a court to proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.
[58] Mr. Collins submits that it cannot be contended that Officer Leeman, or the police, stayed within the regulatory authority under the Highway Traffic Act at each step. At no time was Mr. Sandhu requested to produce his way bills or anything else to do with the load of carrots. At no time did Officer Leeman request the police to assist him in conducting an inspection under the Highway Traffic Act. Rather, the police proceeded to conduct a warrantless search upon being told by Officer Leeman that he had the authority to inspect the trailer under the Highway Traffic Act. Officer Leeman never did conduct an inspection under the Highway Traffic Act.
[59] In the final analysis, what occurred was a warrantless search, using the pretext of the authority under the Highway Traffic Act. This is presumptively unreasonable, and the evidence can be admitted only if the Crown succeeds on an analysis of the factors outlined in Grant, supra.
[60] Pursuant to Grant, the following factors must be examined:
the seriousness of the Charter-infringing state conduct;
the impact on the Charter-protected interests of the accused;
the interest of society in an adjudication of the case on its merits.
[61] Mr. Collins submits that the conduct of the police falls at the most serious end of the scale. The police knew that they required a warrant in order to search the trailer for evidence of criminal activity, and simply used the regulatory authority of Officer Leeman as a pretext. The Court must disassociate itself from such conduct.
[62] While the interest of Mr. Sandhu in privacy as it related to the interior of the trailer is at the lower end of the scale, nevertheless he has an interest that requires protection.
[63] While the offence is serious, and society would undoubtedly have a strong interest in an adjudication on the merits, this factor cannot trump the other two factors. Moreover, the seriousness of the offence has the potential to cut both ways, and will not always weigh in favour of admission: see Grant, at para. 84.
[64] As far as the utterances by Mr. Sandhu are concerned, Mr. Collins submits that they should be inadmissible. It is for the Crown to prove, beyond a reasonable doubt, that such utterances were voluntary, and, while it is for Mr. Sandhu to prove a violation of s. 10 of the Charter, he has done so.
[65] Mr. Sandhu was confronted with police officers in uniform, who were armed, and who were apparently determined to violate his Charter rights. Any statement made by Mr. Sandhu in such circumstances would be highly suspect in terms of its voluntariness. At no time did the police advise him of his right to counsel, or that anything he said might be used against him. In the circumstances, he was clearly not in a position to leave the scene if he had tried to do so, and he must be considered to have been detained.
[66] Mr. Wilson, for the Crown, submits that the cocaine should be admitted into evidence.
[67] Mr. Wilson submits that if Mr. Sandhu had a reasonable expectation of privacy it was in the tractor only, but not in the trailer. Thus, he has no standing to attack the validity of a search of the trailer. He relies on R. v. Edwards (1996), 1996 CanLII 255 (SCC), 104 C.C.C. (3d) 136 (S.C.C.); R. v. Tessling (2004), 2004 SCC 67, 189 C.C.C. (3d) 129 (S.C.C.); and R. v. Patrick (2009), 2009 SCC 17, 242 C.C.C. (3d) 158 (S.C.C.). Mr. Wilson observes that in R. v. Nolet, relied on by Mr. Sandhu, the Supreme Court of Canada was careful to note that the accused, in that case, had a limited expectation of privacy in the sleeping area of the truck, and there is no evidence of that here. Mr. Wilson submits that Mr. Sandhu would not have had any expectation of privacy in the trailer, when he had no authority over what was placed in the trailer; was not involved in loading the trailer; and would not have been involved in sealing or locking the trailer. He was not the owner of the trailer.
[68] Mr. Wilson submits that the application of the Nolet decision to the circumstances of this case has already been determined by the Court of Appeal on appeal from the decision of Quigley J. The Court of Appeal has clearly held that the search of the trailer was motivated by both regulatory and criminal law concerns, and thus the police were entitled to open the rear doors of the trailer.
[69] Mr. Wilson acknowledges that the opening of one of the bales with a knife violated s. 8 of the Charter, but he submits that, on an analysis of the Grant factors, the evidence should be admitted.
[70] Mr. Wilson submits that the seriousness of the Charter-infringing conduct falls at the lower end of the scale. The opening of the trailer was authorized under the Highway Traffic Act, and at the very least the police believed that there was such authority under the Highway Traffic Act. If there was a violation of the Charter by the police, it was committed in good faith and was not serious.
[71] Mr. Wilson submits that, while the trial Crown during the first trial conceded that Mr. Sandhu had a reasonable expectation of privacy in the trailer, the Crown no longer makes that concession. Mr. Wilson submits that Mr. Sandhu had no expectation of privacy in the trailer, and indeed, as submitted earlier, he has no standing to attack the search of the trailer. He did not own the tractor-trailer, he had no authority to decide what was loaded into it, he required the owner’s permission to load it, he was not responsible for sealing or locking it, and he did not have permission to put anything in the trailer other than its proper load. The trailer was subject to being inspected at any time.
[72] As far as society’s interest in an adjudication on the merits is concerned, the charge is a very serious one, and society’s interest is self-evident.
[73] As far as the utterances by Mr. Sandhu are concerned, they should be admitted into evidence. The utterances were entirely spontaneous, and were made at a time when Mr. Sandhu was not under arrest or detained. There was no need, in the circumstances, for the police to caution him or advise him as to his right to counsel. Mr. Wilson relies on R. v. Suberu (2009), 2009 SCC 33, 245 C.C.C. (3d) 112 (S.C.C.); and R. v. Sinclair (2010), 2010 SCC 35, 259 C.C.C. (3d) 443 (S.C.C.).
Analysis
[74] The admissibility of the cocaine has not been definitively determined by the Court of Appeal. While it was open to the Court of Appeal to have decided, based on the record before it, that the evidence should have been admitted, the Court did not do so. Instead, the Court ordered a new trial. I have heard fresh evidence, and it is my task to determine the admissibility issue based on the evidence and submissions before me.
[75] That is not to say that the decision of the Court of Appeal will not have an influence on my ultimate decision. Of course, it will. However, it is for me to decide whether the opening of the trailer was authorized because it was motivated, in part, by regulatory concerns under the Highway Traffic Act, or whether the apparent regulatory authority was simply a pretext for a warrantless search for evidence of criminal activity.
[76] In the final analysis, I must determine whether the evidence is admissible based on a balancing of the Grant factors.
[77] Finally, I must determine the admissibility of the utterances made by Mr. Sandhu, an issue that was not dealt with by Quigley J. or by the Court of Appeal.
[78] In my view, the evidence does not justify a conclusion that the search of the trailer was motivated by any regulatory concerns under the Highway Traffic Act. What is required, according to Binnie J., at para. 4 of Nolet, supra, is for the Court to proceed step-by-step from the initial stop onwards to determine whether, as the situation developed, Officer Leeman and the police stayed within their authority, having regard to the information lawfully obtained at each stage of the inquiry.
[79] I accept that when Officer Leeman first approached the tractor-trailer as it was stopped at the entrance to Highway 401 from James Snow Parkway, his intention was to conduct a regulatory inspection. He had been tasked, that day, with looking for trucks that were intent on bypassing the inspection station on Highway 401. There was every reason to believe that this particular truck was so engaged.
[80] However, shortly after Officer Leeman’s arrival, regulatory issues became entirely secondary. He learned that the truck may have been stolen. He was told by Mr. Sandhu that someone had put a gun to his head. He made two calls to the police, and they arrived shortly.
[81] Things moved quickly thereafter. It is significant, in my view, that Officer Leeman did not ask for any way bills or any other documents that he would typically ask for when he does an inspection. The police, upon learning that there had been discussion of a gun, were intent upon looking into the trailer. Any discussion of Officer Leeman’s authority under the Highway Traffic Act was not directed towards an inspection of carrots, but rather was directed towards giving apparent authority to search for evidence of criminal activity. Officer Leeman never did perform an inspection under the Highway Traffic Act.
[82] It matters not, in my view, whether Mr. Sandhu opened the doors of the trailer at the direction of Mr. Leeman, or whether Officer Leeman and Officer Kent opened the doors. The intent was to search for evidence of criminal activity.
[83] When Officer Clarke entered the trailer, he was not intent on examining the contents of the trailer to assist Officer Leeman in any regulatory inspection; rather, he was looking for someone with a gun. After he gave the all clear, Officer Kent took a knife and opened one of the packages that clearly did not contain carrots. There was no regulatory intent.
[84] In the result, I hold that both the opening of the doors of the trailer and the cutting open of one of the bales with a knife constituted a warrantless search that was not authorized by law, and was thus unreasonable.
[85] The evidence can be admitted only if its admission is permissible after an examination of the Grant tests. The onus is on Mr. Sandhu to show that the admission of the evidence would bring the administration of justice into disrepute.
[86] I must examine the three Grant factors:
the seriousness of the Charter-infringing state conduct;
the impact on the Charter-protected interests of the accused;
the interest of society in an adjudication of the case on its merits.
[87] With respect to the first factor, while the Charter-infringing state conduct is serious, it is not at the most serious end of the spectrum. While the opening of the trailer based on the apparent regulatory authority under the Highway Traffic Act can, in some respects, be considered a pretext, I do not necessarily see it that way. The situation developed very quickly, and Mr. Sandhu had said something about a gun being put to his head. Indeed, as soon as the doors of the trailer were open, Officer Clarke considered it necessary to see if someone was hiding in the trailer with a gun. The police thought it important to obtain quick entry into the trailer for that purpose. Being aware that they did not have a warrant, they inquired as to some alternate authority and were advised by Officer Leeman that he had the authority to open the trailer under the Highway Traffic Act. While that authority did not validate what occurred, I accept that the police thought it did.
[88] While serious, I do not put this at the highest end of the scale. The police looked for authority to do what they did and they believed, wrongly as it turned out, that they had it.
[89] With respect to the second Grant factor, assuming Mr. Sandhu had any interest in privacy in the trailer, it was at the most minimal end of the scale. He did not own the trailer; he had no control over what went into the trailer; he was not involved in sealing or locking the trailer. Unlike Nolet, there is no evidence that he slept in any portion of the trailer. The trailer could be inspected at any time.
[90] With respect to the third Grant factor, the charge is a very serious one. In particular, the quantity of drugs at issue here takes this case out of the ordinary trafficking case. The potential impact of the distribution of drugs of this quantity is staggering: see Cory J., dissenting, in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982, at paras. 83-119. See also R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 104 and 105, and R. v. Rashidi-Alavije (2007), 2007 ONCA 712, 229 O.A.C. 365 (C.A.), at para. 33. Exclusion of the evidence will put an end to the Crown’s case.
[91] I recognize, as noted in R. v. Grant, supra, at para. 85, and in R. v. Côté, 2011 SCC 46, at para. 53, that the seriousness of the offence has the potential to cut both ways. However, no matter which way it cuts in this case, in the final analysis, in my view, the evidence should be admitted.
[92] The balancing of the Grant factors is not simply an arithmetical exercise. In this case, there is no factor that points strongly towards exclusion of the evidence. The Charter-infringing state conduct, while serious, is not at the highest end of the scale. Mr. Sandhu’s interest in privacy in the interior of the trailer is minimal, if it exists at all. The societal interest in an adjudication on the merits is high.
[93] After balancing the Grant factors, I am of the view that the evidence should be admitted. Mr. Sandhu has not established that admission of the evidence would bring the administration of justice into disrepute.
[94] With respect to the utterances of Mr. Sandhu, they were clearly voluntary. They were spontaneous utterances and were not preceded by any promises, threats or attempts at undue influence. Indeed, they were not preceded by any police conduct at all, except an inquiry to the effect of “What’s going on?”
[95] The situation had not developed to the point where Mr. Sandhu was entitled to be informed of his right to counsel, or given any caution. At the time he was asked “what’s going on?”, he was not detained.
Disposition
[96] For the foregoing reasons, I conclude that the cocaine seized from the trailer is admissible in evidence, and the utterances made by Mr. Sandhu are admissible in evidence.
GRAY J.
Released: January 5, 2012
COURT FILE NO.: 18/09
DATE: 2012-01-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
AVTAR SANDHU
REASONS FOR JUDGMENT
GRAY J.
Released: January 5, 2012