Her Majesty the Queen v. Baldev Singh, 2014 ONSC 5658

COURT FILE NO.: CR-10-2123

DATE: 20141205

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Baldev Singh

Accused

Richard L. Pollock, for the Federal Crown

Maurice Mirosolin, for the Defendant

HEARD: January 27, 28, 29, 30, 2014; February 10, 11, 12, 13, 14, 18, 19, 20, 21, 2014; March 13, 2014; and May 30, 2014

ruling on the constitutional validity

of the border search

Pomerance j.:

INTRODUCTION

[1] Baldev Singh encountered some very bad luck on March 19, 2009, when he crossed the border into Canada.

[2] He was directed to secondary inspection where his cargo was offloaded. His trailer contained 54 bins of oranges from Westlake, California. Two detector dogs examined the load. The dogs’ searches were “non-resultant”, meaning that they failed to detect the presence of contraband. Ordinarily, this would have ended the story. The Border Services Officer (“BSO”) was about to send Mr. Singh on his way. But events took an unexpected turn.

[3] One of the dog handlers thought it a convenient time to run a training exercise for her dog. She spoke to BSO Fidler, who agreed to hide a training object (a “hide”) in one of the bins of oranges. While reaching into a bin to make room for the hide, BSO Fidler came upon 27 bricks of cocaine. This was fortuitous. Only 2 of the 54 bins contained drugs. Officers quickly searched the entire load at which time they discovered 69 kilograms of cocaine. They also seized suitcases, driver’s logs and a roll of duct tape from the cab of Mr. Singh’s truck.

[4] Mr. Singh and his cargo would have been free to leave, but for the impromptu dog training exercise. The question to be determined is whether the training exercise violated Mr. Singh’s rights under the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) and, if so, whether the evidence seized by the BSOs should be excluded under s. 24(2).

[5] I will deal briefly with the evidence and then turn to the legal issues.

THE EVIDENCE

Primary Inspection

[6] On March 19, 2009, the accused drove his tractor trailer into Canada at Windsor via the Ambassador Bridge. He was carrying 57 bins of oranges, picked up at a Sunkist warehouse in Woodlake, California on March 16, 2009. The load was destined for a Metro facility in Ontario.

[7] When the accused pulled up to the primary inspection booth at 9:20 a.m., BSO Langlois asked him a series of questions. The officer perceived that the accused was being evasive and therefore referred him to secondary inspection.

Secondary Inspection

[8] The accused drove to the secondary on-site location. From there, an officer escorted him and his vehicle to the secondary off-site building, where he was directed to sit on a bench in the dock area. BSOs Fidler and Smith met with the accused at 10:30 a.m. and told him to arrange for off-load of his cargo. The accused hired David Simone, a forklift driver, to do this. Upon entering the trailer, Mr. Simone saw a tractor tire and a couple of loose bags of oranges sitting near the door. This did not strike him as strange. He testified, as did BSO Fidler, that it was not unusual to find a driver’s personal belongings, such as groceries, in the back of a trailer.

[9] Mr. Simone removed the 54 bins of oranges from the trailer, keeping track of where each had been placed. The accused remained seated in the dock area.

[10] BSO Fidler called in two canine handlers to search the load. A currency detection dog, led by BSO Ransom, examined the load shortly after 1:45 p.m. The search was “non-resultant”; the dog did not detect the presence of contraband. BSO Gorman conducted a similar search with a drug/firearm detection dog. It, too, was non-resultant. The dog handlers were both satisfied with the conduct of the searches. There was no reason to believe that the load contained contraband.

[11] On this basis, BSO Fidler determined that she would release the load. Before she acted on this decision, BSO Ransom came to speak with her. Ransom asked Fidler if she was ready to release the load and Fidler said “yes”. She then asked Fidler to assist with a training exercise and Fidler agreed to do so.

The Dog Training Exercise

[12] BSO Fidler received a “training hide” from BSO Ransom – an item containing the scent of currency – for the dog to detect. Fidler chose a bin for placement of the hide, selecting one with a damaged lid because it offered easy access. As she opened the bin and removed two bags of oranges, she unexpectedly discovered 21 bricks of cocaine.

[13] BSOs then searched all of the bins, finding cocaine in one other container. The BSOs seized a total of 69 one kilogram bricks of cocaine.

[14] The BSOs did not obtain the accused’s permission before conducting the training exercise. Early on, BSO Ransom had told the accused that a detector dog would be used to search the load. The accused was not told that the searches were non-resultant, or that the load would be used for an exercise.

[15] The BSOs believed that the accused’s permission was not necessary, because he was merely the driver of the truck and not the owner of the load. BSO Fidler believed that the load could be searched up until the time it was physically released. On that basis, she believed that the training exercise was authorized by the Customs Act, R.S.C. 1985, c. 1 (2nd Supp). She was going to release the accused, but had not yet done so. BSO Fidler testified that such a training exercise was a “normal Customs process” and that it happened on a “regular basis”.

Search of the Cab

[16] Shortly after 2:00 p.m., BSOs Fidler and Ransom searched the cab of the accused’s truck. They seized several documents, including a hotel receipt, driver’s logs, cab books, and three pieces of luggage.

[17] Mr. Singh testified that he had leased the truck at the beginning of March 2009. This was confirmed by documents entered into evidence on the voir dire.

Dog Training Practices

[18] Dogs are important detection tools used at the border. Dogs are kept motivated through training exercises, which allow for the simulated detection of contraband. While dogs are trained daily, formal exercises are carried out twice a month. From time to time, officers will do training exercises “in the field”, placing hides in travellers’ personal luggage or loads from commercial vehicles.

[19] According to Michel Coderre, Manager, Detector Dog Learning Service: “it is suggested that DDH’s [detector dog handlers] ask [sic] and receive permission from the traveller prior to the training hide being used.” The Dog Detection Manual, used by BSOs, does not address whether such permission is advisable or required.

[20] The evidence established that BSOs treat commercial loads differently than they do personal luggage. BSO Ransom testified that she will obtain permission from a traveller before using personal luggage in a training exercise. She will not do that with a commercial load. As she put it, “the commodity does not belong to the driver or transportation company”. The goods do not belong to the driver and “it is not theirs to say yes or no”. According to Ransom, officers do not contact the owner of the goods – the importer or receiver – because it would be time consuming and would hold up the shipment.

[21] BSO Gorman confirmed this approach. He will seek permission of a traveller before using personal property in a training exercise, but will not seek permission before using commercial cargo. Like Ransom, Gorman believes that permission is not required because the importer of the goods is not present. BSOs have used commercial loads in the past for training exercises, without drivers’ consent.

[22] A training exercise can last anywhere from a few minutes to an hour.

THE POSITIONS OF THE PARTIES

[23] The defence argues that, once the accused’s load was cleared for release, the authority to examine goods under the Customs Act was spent. It is therefore said that the further examination of the load, to facilitate a dog training exercise, violated the accused’s rights under ss. 8, 9 and 10 of the Charter. The accused seeks, under s. 24(2) of the Charter, to exclude the cocaine seized from the trailer and the items seized from the cab of the truck.

[24] The Crown argues that the use of the load for a training exercise was a legitimate exercise of authority under the Customs Act, and therefore did not result in any Charter breach. Alternatively, the Crown argues, if the Charter was breached, the evidence seized from the trailer and the cab should be admitted under s. 24(2).

THE ISSUES

[25] The following issues must be determined:

A. The Load of Oranges

1. Does Mr. Singh have standing to challenge the search of the load?

2. Did the training exercise violate s. 8 of the Charter?

3. Did the training exercise violate s. 9 or s. 10 of the Charter?

B. The Cab of the Truck

1. Did Mr. Singh have standing to challenge the search of the cab?

2. Did the search of the cab violate s. 8 of the Charter?

C. Section 24(2)

1. Should the evidence be excluded under s. 24(2) of the Charter?

[26] The trailer search and cab search are analytically distinct. I will deal with each of them separately before turning to s. 24(2).

ANALYSIS

A. 1) Does Mr. Singh have standing to challenge the search of the load?

a) General Principles

[27] An accused may only seek Charter relief at trial where he or she has standing to do so. This flows from the language of s. 24 of the Charter, which allows a remedy to be sought by “anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied”. A s. 24 remedy requires the accused to demonstrate that his or her own personal rights have been infringed. He or she may not rely on the breach of rights of a third party.

[28] In R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, 26 O.R. (3d) 736, Cory J. summarized the principles of standing that apply in the context of a s. 8 analysis:

1. A claim for relief under s. 24(2) can only be made by the person whose Charter rights have been infringed.

2. Like all Charter rights, s. 8 is a personal right. It protects people and not places.

3. The right to challenge the legality of a search depends upon the accused establishing that his personal rights to privacy have been violated.

4. As a general rule, two distinct inquiries must be made in relation to s. 8. First, has the accused a reasonable expectation of privacy. Second, if he has such an expectation, was the search by the police conducted reasonably.

5. A reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

6. The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following:

(i) presence at the time of the search;

(ii) possession or control of the property of the place searched;

(iii) ownership of the property or place;

(iv) historical use of the property or item;

(v) the ability to regulate access, including the right to admit or exclude others from the place;

(vi) the existence of a subjective expectation of privacy; and

(vii) the objective reasonableness of the expectation.

7. If an accused establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in a reasonable manner.

[29] In Edwards, the Crown sought to introduce crack cocaine seized from the apartment of the accused’s girlfriend. While the seizure was of questionable validity, Mr. Edwards could not use it to seek a Charter remedy. He did not reside at the apartment; rather, he was “an especially privileged guest”, who possessed a set of keys, and kept a few belongings in the residence. Edwards did not have an expectation of privacy in the apartment and therefore could not challenge admissibility of evidence seized from that location.

[30] In the later case of R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341, 34 O.R. (3d) 806, the court applied these principles to a motor vehicle search. The police seized garbage bags containing stolen property from the back seat and trunk of the car. The driver of the car, Belnavis, did have privacy in the vehicle. She had borrowed the car from the owner and had his consent to drive it. She could control and regulate access to the vehicle, a factor central to the notion of privacy. The passenger in the vehicle, Lawrence, did not have a reasonable expectation of privacy. Her connection to the car was tenuous. There was no indication that she had any control over the vehicle, that she had used it in the past, or that she had any relationship with the owner. She had no ability to regulate access to the vehicle.

[31] The Crown relies upon Belnavis in arguing that the accused has no standing to challenge the search of the load of oranges. The Crown argues that the accused is like Lawrence, the passenger in the vehicle, who could not claim an expectation of privacy.

[32] To my mind, the accused is more like Belnavis, who had borrowed the car with the owner’s consent and did have an interest in the location. I will discuss this further below.

D. The Standing of the Accused

[33] The Crown argues that the accused does not have standing to challenge the search of the load of oranges. The Crown’s position is that the accused had no interest in the load itself. He did not own it; he was merely transporting it on behalf of the consignor and consignee. In these circumstances, it is said that he does not have the level of privacy necessary to confer standing.

[34] Lack of ownership is relevant, but not determinative. Since Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, 55 A.R. 291, Canadian courts have embraced the notion that the Charter protects people, not places; privacy not property. While the accused cannot claim ownership of the load, he may nonetheless have a legitimate claim to a different or lesser interest.

[35] Certain factors from the Edwards case operate in favour of the accused. He was present at the time of the search and he had a possessory or custodial interest in the load. It had been entrusted to him by the consignor and consignee of the goods. He had the responsibility to bring it from California to Canada and to maintain it in proper condition. The corollary of this is that he had the right, and the responsibility, to regulate and control access to the load while it was in his custody. Finally, the accused himself had physical access to the trailer – it had not been sealed – and he could have stored personal items there if he wished. According to the evidence, it was not unusual for drivers to do so.

[36] Other factors, unique to border crossings, support the proposition that the accused had an interest in the load. Under the Customs Act, the driver of a commercial vehicle is seen as the agent of the party that owns the goods that are being brought into Canada. For example, under s. 12 of the Customs Act, the driver is required by law to report the goods:

12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business.

(2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.

(3) Goods shall be reported under subsection (1)

(a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance;

(a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada;

(b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and

(c) in any other case, by the person on behalf of whom the goods are imported. [Emphasis added.]

[37] Section 13 of the Customs Act requires that the driver answer questions truthfully and present the goods for inspection:

13. Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall

(a) answer truthfully any question asked by an officer with respect to the goods; and

(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.

[38] The driver is expected to hire service providers – such as fork-lift drivers – to off-load cargo for inspection. The driver is to contract with the service provider on behalf of the owner of the goods. This is confirmed in The Customs Enforcement Manual (the “Manual”). Within the Manual, Part 4, Chapter 4, Appendix A states the following at paras. 12 and 13:

12. Once a shipment has been identified for examination by the CBSA, the carrier will be notified immediately and provided with the name(s) and phone number(s) of the pre-approved service provider(s).

13. After a carrier has been notified that their shipment is to be examined, they will have two (2) hours to complete appropriate business transactions with the service provider and present their goods for examination. Failure to present the goods within this time period will be deemed a contravention of the Customs Act and appropriate penalties will be assessed.

[39] Therefore, at international borders, the carrier or driver of commercial goods assumes many of the duties that would otherwise attach to the owner of the goods. The carrier is to report the goods, answer questions about the goods, present the goods for inspection, and contract with appropriate service providers to off-load the goods. The driver is deemed to stand in the shoes of the owner when dealing with customs officials. Against this backdrop, it is difficult to assert that the driver has no meaningful interest in the load.

[40] Does the driver have a sufficient interest to require that his permission be sought before a search? Customs officers testified that they do not ask the driver for consent because he does not own the goods; and they do not ask the owner for consent because he is not on site. This position cannot be correct. It obviates the need to ask anyone for consent. The driver is, in law, responsible for the goods and he serves as agent for the owner at the border. It would seem to follow that, where consent to search is required, the driver is also the agent of the owner for this purpose. This flows naturally from the Act, which contemplates that the driver will stand in the shoes of the owner when interacting with customs officers.

[41] This issue will usually prove academic. It will be a rare case where consent is required at a border crossing. BSOs have a broad authority to examine goods coming across the border without grounds, and without consent. But where, as here, a search falls outside the scope of the legislative authority, consent will be necessary to ensure compliance with s. 8 of the Charter. I will deal with the s. 8 issue shortly.

[42] For these reasons, I find that the accused had an expectation of privacy in the load of oranges that he was carrying in his trailer. Admittedly, his interest was minimal. He was crossing an international border, driving a vehicle, and engaging in highly regulated activity by importing produce into Canada. But privacy is not an all or nothing proposition. While minimal, the accused’s privacy interest was sufficient to confer standing under s. 8 of the Charter. I find that Mr. Singh is lawfully entitled to challenge the search of the load and seek exclusion of the cocaine under s. 24(2) of the Charter.

A. 2) Did the search of the load violate s. 8?

[43] Section 8 of the Charter commands a contextual analysis. The constitutional standard of reasonableness will mean different things in different contexts. What is reasonable in a regulatory search may not be so in a criminal investigation. Different interests are at stake, both for the individual and for the state. The constitutional analysis must be flexible enough to accommodate these fluid contingencies.

[44] Border crossings pose unique considerations under s. 8 of the Charter. Travellers must expect a much reduced expectation of privacy when crossing international borders, as compared to other domestic settings (R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1, at para. 35). Sovereign states have a compelling interest in protecting their borders by regulating the entry of persons and goods, and in protecting tariff revenue. This objective can only be achieved if customs officers have broad powers to question and search. As Dickson C.J. explained in R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, 67 O.R. (2d) 63, at para. 52:

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. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.

[45] This reduced expectation of privacy at border crossings is also reflected in the Customs Act, which confers broad inspection powers upon Canadian Border Service Officers. Section 99(1)(a) provides that an officer may examine any goods, without grounds, up until the time the goods are released:

99. (1) An officer may

(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.

[46] The term “release” is defined in the Act as follows:

“release” means

(a) in respect of goods, to authorize the removal of the goods from a customs office, sufferance warehouse, bonded warehouse or duty free shop for use in Canada, and

(b) in respect of goods to which paragraph 32(2)(b) applies, to receive the goods at the place of business of the importer, owner or consignee;

[47] The issue in this case is whether the examination of the load of oranges was authorized by s. 99(1)(a) of the Customs Act. At the time of the search, the load had been cleared for release. Officers were not looking for contraband. They believed, based on the dog searches, that there was no contraband to be found. The bin of oranges was opened solely for the purpose of facilitating a dog training exercise.

[48] I find that the training exercise fell outside the ambit of s. 99(1)(a) of the Customs Act. The examination of the load was not for a purpose authorized by statute. As the search was not authorized by law, it was unreasonable and violated the accused’s rights under s. 8 of the Charter.

[49] The Customs Act confers broad powers of inquiry and inspection. Officers need not have grounds to examine a traveller’s goods. Searches may be based on suspicion or they may be entirely random. This expansive authority is necessary to permit effective policing of Canada’s borders. It increases the likelihood that contraventions of the law will be discovered by border service officers. Enhanced detection helps to deter non-compliance.

[50] While investigative powers at the border are broad, they are not unbridled. The powers of inspection must be construed having regard to the objectives underlying the Customs Act and its Regulations. The Act is designed to foster the regulation of goods and persons entering Canada, the regulation of international trade, and the prohibition of importation of contraband. These objectives serve the broader interests of national sovereignty. As Doherty J.A. put it in R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481, 211 C.C.C. (3d) 4, at para. 31:

…Nothing is more fundamental to nationhood and national sovereignty than the ability to control national borders. Effective border control serves a myriad of crucial social interests ranging from national self defence to public health, to the enforcement of Canada’s fiscal policies and its penal statutes.

[51] Under the Customs Act, goods can be examined to check for compliance with the law. Once officers are satisfied that there has been no contravention of the law, the authority to search is spent.

[52] This is confirmed by the Customs Enforcement Manual, an internal document that provides “guidelines to customs officers on conducting physical examinations of commercial shipments of goods” (para. 15). Paragraph 59 of the Manual states: “Examinations will terminate when there are no longer grounds to suspect that further examination could lead to the detection of a contravention”. Paragraph 34 provides that: “Officers will only conduct examinations for purposes outside the purview of Customs (i.e. counterfeit goods) when a shipment has been specifically targeted for that reason (e.g. lookout for a particular shipment).”

[53] Similarly, para. 18 of the Manual sets out the bases on which commercial shipments may be examined:

18. Examination of commercial shipments will be conducted when necessary to:

a) verify or determine that a particular shipment, transporter, importer, or exporter complies with the laws and regulations administered by Customs and other government departments (OGDs);

b) ensure that documentation presented to report or account for goods accurately describes those goods;

c) provide additional information or to take samples of goods in order to assist compliance verification in verifying the tariff, value, etc. of the goods after they have been released;

d) follow-through on examinations of identified shipments such as those selected by commercial or enforcement systems or deemed as possibly suspect by an alert or lookout; and

e) confirm or negate officers’ suspicions based on indicators of non-compliance.

[54] The Manual does not have the force of law. It is an interpretive aid, used in the training and guidance of BSOs. It does, however, define the realm of authority conferred on BSOs and the limitations on that authority. It does so in a manner consistent with the statutory objectives of the Customs Act.

[55] At the time of the search in this case, officers had no reason to suspect non-compliance with the law. Officers had accepted the results, or, more accurately, non-results, of the dog search. They had come to believe that there was no contraband in the load, or, at least, no further need to search for contraband. Once that conclusion was reached, the authority to search came to an end. Pursuant to para. 59 of the Manual, the inspection should have terminated. The authority to inspect might have been revived if new information came to light or if BSOs had decided to conduct a further search for contraband. Such is the breadth of the authority conferred under the Customs Act. That authority does not, however, authorize inspection for other purposes.

[56] More specifically, the statute does not authorize the manipulation of goods in order to facilitate a dog training exercise. There is nothing in the language of the Act, or other interpretive documents, that would permit use of a traveller’s property to train a dog without the traveller’s consent.

[57] I accept that dog training may incidentally further the objectives of the Customs Act by providing BSOs with tools to enhance the examination process. I also accept that it is important that detector dogs be properly trained, and that there be ongoing testing to maintain their reliability. In R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, Karakatsanis J. observed in para. 49:

The consequences of a false indication by a sniffer dog can be severe. As discussed below, a positive indication for the presence of the smell of narcotics by a reliable dog may, depending on the circumstances, lead to reasonable and probable grounds for an arrest. If the police make use of a dog whose indications cannot be taken as a reliable sign of the presence of the smell of drugs, the false positive resulting from the dog’s unreliable nose could lead to unnecessary arrests. Because dogs are trained to indicate for smell and thus may indicate even in the absence of drugs, validations in controlled settings are important, as it is only in such environments that a false positive can truly be identified.

[58] The point here is not that dogs should not be trained. The point is that dogs must not be trained at the expense of citizens’ privacy. It is open to officers to train dogs in the field – using personal and commercial loads – but only where they have secured the owner’s or driver’s consent.

[59] Under s. 8 of the Charter, the validity of a search will depend on both the physical acts and the intentions of the state actor. The same conduct can be lawful or unlawful, depending on the purpose for which it was carried out. In R. v. Caslake, 1998 838 (SCC), [1998] 1 S.C.R. 51, 155 D.L.R. (4th) 19, police searched an impounded vehicle, claiming that they were performing an “inventory search”. The Supreme Court of Canada found that the search would have been lawful if officers had been looking for evidence, incident to arrest. But that was not the officer’s stated purpose. The stated purpose – the inventory search – was not lawful and, on this basis, the search was held to violate s. 8 of the Charter.

[60] Within the customs context, an officer might open and inspect the contents of a camera bag in a motorist’s possession. If the officer is checking for the presence of contraband, the search is authorized under the Customs Act. If the officer is opening the bag because he wants to buy a similar camera and is curious about its features, the search is obviously not authorized.

[61] While this case is not as fanciful as the camera example, it yields the same result. The manipulation of the load of oranges for the sole purpose of a training exercise, fell outside the authority of s. 99(1)(a) of the Customs Act. It violated the accused’s rights under s. 8 of the Charter.

A. 3) Did the search of the load violate ss. 9 and 10?

[62] As an incident of the s. 8 violation, I must also find a violation of the rights under ss. 9 and 10 of the Charter.

[63] Dealing first with s. 9, where a traveller is subject to routine questioning and inspection at the border there is no detention for constitutional purposes. Where, however, the acts of customs officials stray beyond the routine, s. 9 of the Charter will be triggered (Jones).

[64] In this case, the accused was constitutionally detained at the point that officers embarked upon the dog training exercise. Admittedly, the period of unlawful detention was brief – the entire episode lasting only 5 or 10 minutes before the cocaine was found and the accused was arrested.

[65] During that same brief period, there was a violation of s. 10(a) of the Charter. The accused was detained in order to facilitate the dog training exercise, but was never told why he was detained.

[66] Finally, this fact situation also engages the protections of s. 10(b) of the Charter, to the extent that the training exercise, and consequent search, required the consent of the accused. The need for consent requires compliance with s. 10(b). The failure to comply with s. 10(b) affects the reasonableness of the search under s. 8. This was explained in R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at para. 4:

This then leads me to the second point. It is Wilson J.’s view that a denial of a right to counsel should be a factor when determining the reasonableness of a search. With respect, I cannot agree with such a broad statement in relation to the interaction of ss. 8 and 10(b) of the Charter. It is my view that it will only be in exceptional circumstances that the denial of the right to counsel will trigger a violation of s. 8. Such would be the case when the lawfulness of the search is dependent upon the consent of the person detained. If a detained person’s consent to a search of his house, which, under the circumstances of the case and the applicable law, requires a warrant, was given while that person’s s. 10(b) rights were being violated (either because he has not been informed of his right to counsel or because the police have obtained his consent to search his house before he has been given a reasonable opportunity to exercise his right to counsel) then the search is unlawful and, as such, unreasonable. Apart from a situation such as this or other situations analogous to those dealt with in R. v. Simmons, supra, where the s. 10(b) violation goes to the very lawfulness of the search, I have not been able to imagine situations where the right to counsel will be relevant to a determination of the reasonableness of a search.

C. SECTION 24(2)

A. THE FIRST INQUIRY: SERIOUNESS OF THE CHARTER-INFRINGING STATE CONDUCT

[67] The first set of factors is concerned with the seriousness of the Charter infringing state conduct. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, this inquiry was described as follows by McLachlin C.J. and Charron J., in para. 72:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severed or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[68] In this case, there is no evidence of bad faith. Officers were operating on the basis of their belief that, because the load had not been physically released, they were entitled to use it in the fashion they did. Officers believed, albeit erroneously, that they did not need the consent of the driver when dealing with a commercial load.

[69] It would appear that there is no case law dealing directly with the issue of dog training exercises at the border. It cannot be said that the officers were intolerably ignorant of settled law. While the Charter does not place a premium on ignorance, it does not require prescience as to what the law will be. The Crown is entitled to rely on the officers’ good faith.

[70] I have found that the accused’s rights were violated in several respects. Sections 8, 9 and 10 were implicated in the analysis. However, in this case, the officers did not engage in multiple transgressions. The violation of multiple rights was triggered by a single transaction. The existence of more than one breach does not, in this case, militate against admission of the evidence.

[71] I find that the first line of inquiry favours admission of the evidence at trial.

B. THE SECOND INQUIRY: IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED

[72] The second inquiry “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed” (Grant, para. 76). The court is to consider the interests protected and examine the degree to which the violation impacted on those interests. The more serious the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[73] The impact of the breaches on the accused’s rights must be considered in context. The accused was crossing an international border with commercial goods. All travellers expect a much reduced level of privacy at border crossings. As a commercial driver, subject to heavy regulation, the accused’s interests were reduced even further. His rights were breached. However, the violations fall at the lower end of the spectrum, given that all citizens must expect a degree of inquiry and inspection when they cross the border.

[74] The second line of inquiry favours admission of the evidence.

C. THE THIRD INQUIRY: SOCIETY’S INTEREST IN ADJUDICATION ON THE MERITS

[75] A number of factors are relevant at the third stage of inquiry. The question is whether “the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion” (Grant, at para. 79). The reliability of evidence is an important factor in this line of inquiry. As it was put in para. 81 of Grant:

...If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused’s interests in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

[76] The third line of inquiry favours admission of the evidence. The cocaine stands as reliable evidence. It is essential to the Crown’s case. To exclude the evidence would effect a judicial termination of the proceedings.

[77] In all of the circumstances, I find that the 69 bricks of cocaine seized from the trailer are admissible at the accused’s trial.

B. 1) Did the accused have standing to challenge search of the cab?

[78] The accused’s interest in the cab of the truck is not realistically in dispute. The cab belonged to the accused, and it effectively served as his home while he was on the road.

[79] The following passage from R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, is directly applicable:

[30] I agree with the trial judge that drivers ordinarily have some expectation of privacy in the sleeping area of a cab of the tractor-trailer, including the space behind the front seats where the duffle bag with the money was found. Whether or not an individual has a subjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made having regard to the totality of the circumstances: R. v. Edwards, 1996 255 (SCC), [1996] 1 S.C.R. 128, at para. 45; R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456, at paras. 8-10 and 48. The onus of proof of such reasonable expectation, to a probability standard, lies on the Charter claimant.

[31] While the appellants did not testify about their subjective belief, the court may presume that individuals would expect a measure of privacy in what, for a long-distance trucker, suffices as a temporary mobile home. The expectation is objectively reasonable because living quarters, however rudimentary, should not be classified as a Charter-free zone: Johnson v. Ontario (Minister of Revenue) (1990), 1990 6742 (ON CA), 75 O.R. (2d) 558 (C.A.), and R. v. Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341. Nevertheless, the level of expectation is necessarily low because the cab of a tractor-trailer rig is not only a place of rest but a place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters. As Wilkinson J.A. pointed out, “[k]nowledge of the transportation legislation is a requirement to be licensed as a driver. The [appellants] would be well aware of the possibility of mandatory inspections and searches, whether for documents or for potential violation of any one of the countless obligations imposed by the regulatory scheme” (para. 70). Accordingly, there can be little expectation of privacy, even in the sleeping area of a truck (particularly one which is travelling in violation of relevant highway regulations). A stop may quickly precipitate a search, and the occupants either know or ought to know of that reality and govern themselves accordingly.

B. 2) Did the search of the cab violate s. 8?

[80] By the time the cab of the truck was searched, the cocaine had been found and the accused had been arrested. Counsel for the Crown and defence agreed that the search of the cab was justified as a search incident to the arrest. The cab fell within the spatial parameters of this search power, given its nexus to both the trailer and the accused (R. v. Speid (1991), 8 C.R.R. (2d) 383, 13 W.C.B. (2d) 659).

[81] As a search incident to arrest, the search of the cab was authorized by law and did not violate s. 8 of the Charter.

C. Should the evidence from the cab be excluded under s. 24(2)?

[82] It is necessary to consider s. 24(2) as it applies to the evidence seized from the cab of the truck, as the search of the cab was temporally linked to the earlier breaches of the Charter. That said, the analysis can be disposed of in short order. I have already determined that the evidence from the trailer should be admitted under s. 24(2). The evidence seized from the cab of the truck is not as critical to the Crown’s case as is the cocaine. Nonetheless, the suitcases seized from the cab provide powerful evidence of how the cocaine was placed in the bins of oranges. Given that the cocaine from the trailer has been admitted as evidence there is no rational basis on which to exclude the evidence seized from the cab of the truck.

CONCLUSION

[83] In conclusion, I find that while the search of the trailer violated the accused’s rights under s. 8 of the Charter (and, incidentally, his rights under ss. 9 and 10 of the Charter), the evidence seized from the trailer and from the cab of the truck should be admitted at trial.

[84] The application for the exclusion of evidence is dismissed.

Original signed “Justice Pomerance”

Renee M. Pomerance

Justice

Released: December 5, 2014

COURT FILE NO.: CR-10-2123

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Baldev Singh

Accused

ruling on the constitutional validity of the border search

Pomerance J.

Released: December 5, 2014