Blue Line

Search on arrest does not require urgency

Police do not have to consider exigencies when searching as an incident to lawful arrest, Canada’s highest court has ruled.

In R. v. Nolet et al., 2010 SCC 24 three men were travelling along the Trans-Canada Highway in Saskatchewan in an empty 53-foot, Quebec-licensed commercial tractor-trailer. They were stopped in a random check under the province’s Highway and Transportation Act (HTA). Vatsis was driving, Nolet was in the passenger seat and another man, now deceased, was in the sleeping compartment.

November 1, 2010  By Mike Novakowski

Police do not have to consider exigencies when searching as an incident to lawful arrest, Canada’s highest court has ruled.

In R. v. Nolet et al., 2010 SCC 24 three men were travelling along the Trans-Canada Highway in Saskatchewan in an empty 53-foot, Quebec-licensed commercial tractor-trailer. They were stopped in a random check under the province’s Highway and Transportation Act (HTA). Vatsis was driving, Nolet was in the passenger seat and another man, now deceased, was in the sleeping compartment.

The truck’s registration wasn’t pro-rated to include the province, the appropriate fuel sticker had expired and the log-book was incomplete and indicated that the truck normally operated east of the Manitoba border. When requested, Nolet agreed to let the officer inspect the empty trailer. The officer thought it “looked odd” but, being alone, decided not to enter, instead choosing to look for more documents – such as previous bills of lading, tickets and other log books – in the tractor.

The contents of a small duffle bag the officer found in the sleeping compartment crackled like paper when touched so he opened it, assuming it contained old log-books or travel documents. Instead, he found $115,000 bundled in small denominations, mainly $20 bills. His experience suggested the packaging of cash was typical of drug transactions and the men were arrested for possessing the proceeds of crime.


After back-up arrived the trailer was again inspected. The interior measurements were about three feet shorter than the exterior length, indicating the presence of a hidden compartment. The rig was driven about 10 km to the nearest police station and, about an hour and a half later, officers opened up the hidden compartment and discovered 392 pounds of packaged marijuana valued at between $1.1 and $1.5 million.

An officer from the Integrated Proceeds of Crime Unit searched the rig the next day to create a contents inventory pursuant to policy. More documentation relevant to the HTA offences was found, including factory decals, registration papers and permits for different companies that, when applied, would make the truck look completely different.

At trial, a Saskatchewan Court of Queen’s Bench judge concluded that police inspection powers under the legislation governing commercial vehicles did not permit a warrantless search of the small duffle bag under the circumstances, since the officer had no reasonable grounds to believe that criminal offences had been committed. While the expectation of privacy in a commercial vehicle is generally less than in a private vehicle (which is generally less than in a private home or office), this lesser privacy interest was still entitled to Charter protection. The judge found the warrantless searches unreasonable, excluded the money and marijuana evidence and acquitted both accused.

The Crown appealed. A majority of the Saskatchewan Court of Appeal found that a mere hunch or speculation that a trailer had been altered or re-fabricated, even if hidden contraband was the suspected reason for the alteration, did not taint an otherwise lawful regulatory search. The accused had not established that police used the highway regulatory inspection as a pretext for their actions. The detention wasn’t arbitrary and the search for documents was lawful. There was no s.8 Charter breach and the money should not have been excluded. The arrest was lawful and the marijuana was located during a proper search incidental to arrest. Both items were admissible and a new trial was ordered. The dissenting justice ruled that police could not rely on a regulatory search power once their “focus” became criminal activity. The search authority extended to regulatory matters only and police could not search for contraband as one of the defined purposes of the search. In her view the cash was inadmissible under s.24(2), but the marijuana should have been admitted. Thus, she would have upheld the accused’s acquittal on the proceeds of crime charge, but ordered a new trial on the drug charges.

Both accused appealed to the Supreme Court of Canada, arguing that their detention was arbitrary under s.9 of the Charter and the searches following it were unreasonable under s.8.

h3. stage i: initial stop

Random roadside stops for highway purposes must be limited to their intended objective and not turned into an unfounded general inquisition or unreasonable search. The legislation does not provide a general power to search every vehicle, driver and passenger pulled over. However, “a roadside stop is not a static event,” said Justice Binnie, speaking for the entire court. “Information as it emerges may entitle the police to proceed further or, as the case may be, end their enquiries and allow the vehicle to resume its journey.”

The initial stop to conduct an HTA document check was valid. The accused were pulled over for a valid purpose and this was not a random check stop specifically set up to locate contraband as well as highway infractions. The random stop program was directly related to legitimate highway purposes; commercial trucking was regulated by legislation in every aspect, thus the initial stop did not breach s.9.

h3. stage ii: regulatory search

Under s.32(1) of Saskatchewan’s Motor Carrier Act a peace officer is authorized to “order the driver or owner of a vehicle to submit the vehicle… or the cargo being carried on such a vehicle to any examination and tests that the peace officer considers necessary.” Similarly, s.63(5) of the HTA provides authority for warrantless vehicle searches for evidence of a regulatory contravention under the HTA.

“After the initial stop, the officer quickly obtained reasonable grounds to believe that the (accused) were operating the truck in violation of the HTA, having regard to the lack of a truck licence valid in Saskatchewan, the display of an expired fuel sticker and inconsistent entries in the driver’s log-book,” said Binnie. “At the time the officer began to investigate the cab of the tractor unit, it was quite within his statutory authority to search for further evidence related to HTA offences.” Thus, the continued detention wasn’t arbitrary and the search of the tractortrailer unit for relevant papers was authorized.

As for searching the cab sleeping area, including the space behind the front seats, there was a reasonable expectation of privacy. Living quarters, however rudimentary, are not a Charter-free zone, but the level of expectation is low since the cab is also a place of work and therefore vulnerable to frequent random checks in relation to highway transport matters.

The continued lawful detention and search under s.63(5) did not become unlawful because the officer began to suspect criminal activity. Police patrolling highways are interested in many offences, provincial and criminal. However, “police power, whether conferred by statute or at common law, is abused when it is exercised in a manner that violates the Charter rights of an accused,” said Binnie.

I do not agree that the officer’s concurrent interest in contraband (even if it was “predominant”) rendered the HTA search unlawful or unreasonable within the scope of s. 8 of the Charter. As already stated, knowledge of transportation legislation is a requirement to be licensed as a driver. Commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for evidence of infractions.

Commercial trucking is a highly regulated industry. Breaching a law will not in itself reduce an individual’s legitimate privacy expectations (otherwise, it would be argued that offenders would always forfeit s.8 protection relevant to evidence of the offence), but here, as events progressed from the police stop to the initial regulatory search of the cab, there was no police invasion of the minimal privacy interest that existed…

(T)he expectation that the search might also uncover drugs (did not convert a Chartercompliant regulatory search into a Charter violation) (references omitted, para. 43).

The paper-like contents of the bag felt more like items connected to the HTA inquiry than personal clothing or drugs. The warrantless search was authorized by s.63(5) of the HTA and it wasn’t unreasonable for the officer to open the bag. Given the very limited privacy interest, the search did not breach s.8 and the cash was then in plain view.

h3. stage iii: arrest

Although the discovery of a large sum of cash may not on its own constitute objective, reasonable grounds to arrest for possession of proceeds of crime, it may contribute to such grounds if the circumstances create a reasonable inference that the money was proceeds of crime.

Here, the context was sufficient to supply the officer with the “something more”: three men in an empty, improperly licensed truck making a run across the prairies at midnight on a highway where the truck wasn’t entitled to be. The explanation for where the cargo had gone and why the truck was apparently empty as it headed east did not correspond to the documents, which were riddled with multiple discrepancies.

The unexplained $115,000 was in bills of small denominations wrapped in bundles which the police officer believed to be typical of drug dealings… While the Crown did not attempt to qualify the officer as an expert on drug monies, the officer’s experience and training supported the probative value of his evidence on this point. The cumulative effect of the factual elements previously described provides objective support for the officer’s subjective belief that he had reasonable and probable grounds to make the arrests…

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 (references omitted, para. 48).

h3. Phase iV: search after arrest

Police may search as an incident to arrest if they’re trying to achieve some valid purpose connected to the arrest, such as: • Ensuring the safety of the police and public; • Protecting evidence from destruction at the hands of the arrestee or others; or • Discovering evidence which can be used at the arrestee’s trial. Both accused were arrested for possessing proceeds of crime. “It was clearly ‘incidental’ to this arrest to search the vehicle in which the cash was found for evidence of the criminal activity to which the money related,” said Binnie.

“The officers’ belief that this purpose would be served by a search of the trailer (given their previous roadside observation of the discrepancy in the dimensions) was itself reasonable. The important consideration is the link between the location and purpose of the search and the grounds for the arrest.”

The two hour delay between the roadside arrest and search of the secret compartment at the station did not render it unreasonable. There remained a close causal and spatial connection between the arrest and search.

Police were not required to demonstrate a distinct and separate showing of reasonable grounds to search, nor were exigent circumstances needed to further inspect the trailer without first obtaining a search warrant. The trigger for the warrantless search power incidental to arrest is not “exigent circumstances” but connection or relatedness – to search for evidence of the crime to which the arrest related. The search and seizure of the marijuana did not breach s.8 of the Charter; it was discovered during a proper search for evidence incidental to a valid arrest.

h3. stage V: inventory search

The Supreme Court ruled the inventory search was invalid, since it did not, by itself, serve a valid objective in pursuit of the ends of criminal justice because its purposes related to concerns extraneous to the criminal law. The officer’s work in inventorying the vehicle was incidental to police administrative procedures rather than to the accuseds’ arrest, therefore it did not meet the requirements of a warrantless search and breached s.8. Despite the breach, the evidence found was admissible under s.24(2).

The task for courts remains one of achieving a balance between individual and societal interests, with a view to determining whether the administration of justice would be brought into disrepute by admission of the evidence. In my view, the evidence found in the “inventory search,” which consists largely of additional trucking documents plus the potentially misleading “decals,” ought not to be excluded. Had the RCMP officers continued their postmidnight search incident to arrest they would have been within their rights to do so and the subject evidence would have been readily discoverable at that time.

The subsequent inventory search for administrative purposes of an impounded truck that has already been searched (though less meticulously) should be classified as a technical breach with a minimal impact on the Charter-protected interests of the (accused). The evidence ought to be available for whatever relevance it may have to assist in the resolution of the outstanding charges on their merits (para. 54).

The appeal was dismissed.

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