TABLE OF CONTENTS

A. INTRODUCTION 2

B. THE STARTING POINT: REASONABLE AND PROBABLE GROUNDS OR A VALID CONSENT.. 2

C. THE END OF THE DUAL PURPOSE AS A SUBSTITUTE FOR REASONABLE AND PROBABLEGROUNDS 4

D. SEARCH INCIDENTAL TO ARREST 5

E. A NOTE ON THE RIGHT TO COUNSEL 7

F. SECTION 24(2): A RENAISSANCE 7

G. CONCLUSION 9

H. LIST OF CASES: 10

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Vehicle Searches: Saskatchewan Courts Draw the Line

A. INTRODUCTION

Police have a broad authority to stop vehicles for safety issues, mechanical fitness, driversobriety or other issues within the execution of their duties, although this authority is notabsolute.

• R v. Lott, paragraph 17• . R v. Ladoucer, paragraphs 22-23

Officers frequently use this authority to stop vehicles and proceed to search when their suspicionis aroused. Saskatchewan Courts have clearly delineated between the broad authority to stop avehicle and the lawful basis to search a vehicle. Without a lawful basis to search a vehicle,Saskatchewan Courts have consistently found the search to be unreasonable or the detention tobe arbitrary depending on the circumstances, and in the majority of cases, the evidence has beenexcluded.

The purpose of this paper is to highlight the issues from the recent Saskatchewan vehicle searchcase law.

B. THE STARTING POINT: REASONABLE AND PROBABLE GROUNDS OR AVALID CONSENT

The fundamental requirement of any vehicle search (as opposed to stopping) is either reasonableand probable grounds or a valid consent. In the recent Saskatchewan Court of Queen's Benchdecision of R v. Nolet, Madam Justice Pritchard confirms that even commercial vehicles, with alower expectation of privacy, will not be exempted from the constitutional protection ofreasonable and probable grounds..

• R v. Nolet, Madam Justice Pritchard, Saskatchewan Court of Queen's Bench,August 22,2006, paragraphs 15-17.

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The requirement is clear: in order to search a vehicle, reasonable and probable grounds mustexist, absent a valid consent.

• R v. Perello, paragraph 37• R v. Rutten, paragraph 45• R v. Harris, paragraph 10• R v. Lynds, paragraphs 11-12

The requirements for a valid consent are equally as clear. Chief Justice Bayda (as he then was)in both Sewell and Luc adopted a six prong test for a consent search in a vehicle context. Theonus ofproving the six elements for a valid consent rests with the Crown:

"In my opinion, the application of the waiver doctrine to situations where it is said that aperson has consented to what would otherwise be an unauthorized search or seizurerequires that the Crown establish on the balance of probabilities that:

(1) there was a consent, express or implied;(ii) the giver of the consent had the authority to give the consent in question;(iii) the consent was voluntary in the sense that that word is used in Goldman,

supra, and was not the product of police oppression, coercion or other .external conduct which negated the freedom to choose whether or not toallow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct towhich he or she was being asked to consent;

(v) the giver of the consent was aware of his or her right to refuse to permitthe police to engage in the conduct requested, and

(vi) the giver of the consent was aware ofthe potential consequences of givingthe consent."

• R v. Sewell, paragraph 17• R v. Luc, paragraphs 31 to 35• R v. Rutten, paragraph 44• R v. Mouland, paragraph 15

The R.C.M.P. have developed specialized programs and training to detect the transportation ofcontraband in Saskatchewan. Various programs such as Operation Recovery or OperationPipeline have been implemented. The training for these programs has resulted in specificofficers, such as Cst. Chornenki, Cpl. McLaughlan or Cpl. Baulkham being associated with largevolumes of traffic stops and searches, mainly on the Trans-Canada Highway. SaskatchewanCourts have held that no amount of training or experience can replace the basic requirement ofeither reasonable and probable grounds or a valid consent for a vehicle search.

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In many cases Saskatchewan Courts have concluded that the zeal of the police to discover andseize contraband has dominated officer's actions, resulting in a compromise of constitutionalsafeguards and in many cases a lack of good faith.

• R v. Luc, paragraph 80• R v. Lavoie, paragraphs 12, 19, 20• R v. Nolet, paragraph 19• R v. Perello, paragraph 58• R v. Lynds, paragraph 16

The initial inquiry of Counsel reviewing a vehicle search case is to determine whether reasonableand probable grounds exist, or whether there is a valid consent. In vehicle search cases, similarto any other criminal case, the credibility and reliability of the officer, like any other witness,must be carefully scrutinized.

C. THE END OF THE DUAL PURPOSE AS A SUBSTITUTE FOR REASONABLEAND PROBABLE GROUNDS

The Court of Appeal's Decision in 2002 in R v. Ladoucer, considered the R.C.M.P. programOperation Recovery. The effect of this program was to set up a roadblock, the purpose whichwas not only to check for safety concerns, and driver sobriety, but also to search for illegalconiraband. Chief Justice Bayda (as he then was) concurred with Madam Justice Jackson inconcluding that there was an arbitrary detention in the absence of reasonable and probablegrounds. He indicated that the lawful aim - the check stop - would be nothing more than a"plausible facade" for the unlawful aim - the unreasonable search.

• R v. Ladoucer, paragraphs 66-67

In R v. Nolet, the semi-trailer unit in which Mr. Nolet was a passenger, was stopped by Cst.Chornenki to investigate certain regulatory offences. The Constable was suspicious that thevehicle may contain drugs, or other contraband. The Crown argued that as long as Cst.Chornenki was investigating the regulatory offences he could search the vehicle for the dualpurpose of determining whether there was evidence of criminal activity. Madam JusticePritchard referred to R v. Ladoucer, and concluded that if there was a change in focus to acriminal investigation, the Constable would be required either to have reasonable and probablegrounds, or an informed consent.

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"...Likewise, the initial search did not violate s. 8. However, once the officerbecame suspicious that alterations had been made to the trailer, the focus of hisinquiry shifted from a regulatory inspection to a criminal investigation. Given thischange in focus, he required either informed consent or reasonable and probablegrounds to continue searching for evidence to support his suspicions, neither ofwhich existed.

• R v. Nolet, paragraphs 28-29:

• See: R v. Rutten, paragraph 25

The law in Saskatchewan is settled. The police can not use the minimal basis for a traffic stop ora roadblock, without more, to justify the search of a vehicle.

D. SEARCH INCIDENTAL TO ARREST

In order for any search to be incidental to arrest, there must be reasonable and probable groundsfor the arrest, and the search must be truly incidental to the arrest.

In R v. Perello, the police discovered $55,000 cash in a duffel bag and proceeded to place Mr.Perello under arrest for a "proceeds of crime investigation". The only basis for the arrest wasthe amount of money. Mr. Justice Sherstobitoff concluded that objectively there was noreasonable and probable grounds for the arrest. The arrest was therefore held to be unlawful andarbitrary, and therefore the search incidental to the arrest was in violation of section 8 of theCharter.

• R v. Perello, paragraphs 32-42

In R v. Nolet, the police discovered $115,000 in cash. The officer immediately arrested the threeoccupants of the semi truck for possession of proceeds of crime. Madam Justice Pritchardconcluded that the $115,000 cash did not objectively amount to reasonable and probablegrounds, even in light of other suspicions:

"Based on Perello, it is clear that the discovery of a large sum of cash money,without more, does not objectively constitute reasonable and probable grounds toarrest for possession of proceeds of crime. However, the Court in Perello didrecognize that "circumstances or evidence" may exist that create a reasonableinference that the money is proceeds of crime. Here, the Crown submits that theadditional factors supporting such an inference include the unusualness of havingthree drivers, the fact that the tractor-trailer unit was not registered forcommercial use in Saskatchewan and that it was travelling with an empty load.

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Returning with an empty load is obviously undesirable from a commercialtrucking standpoint but at times and with certain deliveries it must surely beunavoidable and even commonplace. As to the lack of a permit, the officertestified that it is rare to find a commercial vehicle that is not properly registeredalthough he has encountered it before. In two other such cases, charges were laid.In one instance, the vehicle was seized and in the other, it was parked until thedeficiency was dealt with. Although the second vehicle was not seized, the driverwas not allowed to continue his trip without the registration. In this case, when theofficer asked the accused about the registration, Mr. Nolet acknowledged that thevehicle was not pro-rated for Saskatchewan and indicated that his trips did notusually go any further than Thunder Bay. As to the third driver, Mr. Nolet advisedthe officer that the third party was not driving; that he was an old employee of Mr.Nolet; and he was simply coming along for the ride "as a favor as he haddiabetes".

It seems to me that when objectively viewed, these concerns are more neutral thanindicative of illegal activity. Certainly, the finding ofa significant quantity of cashmoney in these circumstances would undoubtedly heighten the officer'ssuspicions; but objectively, they fail to amount to reasonable and probablegrounds."

• R v. Nolet, paragraphs 35-37.

There must also be a basis in law for an arrest. In R v. Basta, the police arrested Mr. Basta fordriving without a licence. Mr. Justice Scheibel concluded that the arrest did not meet therequirements of a valid arrest, as it was not shown that the driver would not attend Court. Mr.Justice Scheibel held that the arrest could not be used to justify the subsequent search.

• R v. Basta, paragraphs 16, 18 & 19

In R v. Bulmer, Madam Justice Jackson concluded that an arrest warrant (failure to wear a seatbelt) was not a basis to conduct a search of a vehicle, when it could not be demonstrated that thesearch was truly incidental to the arrest.

• R v. Bulmer, paragraph 16• R v. Luc, paragraph 51.

Even in circumstances where a search incidental to arrest is appropriate it is restricted to 3purposes: officer safety; protection of evidence from destruction; or discovery of evidence whichcan be used at the detainee's trial.

• R v. Bulmer, paragraph 15• R v. Luc, paragraph 43-45

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E. A NOTE ON THE RIGHT TO COUNSEL

It is an essential part of a vehicle search that the informational component under section 1O(b) befully and completely provided to a detainee in the context of a vehicle search.

• R v. Rutten, paragraphs 46-50• R v. Nolet, paragraph,51

The search of a vehicle commences when the police question the detainee as part of a criminalinvestigation. If this questioning proceeds the right to counsel being provided this will be aviolation of the right to counsel and likely result in exclusion of any evidence seized.

• R v. Smith, paragraph 66• R v. Rutten, paragraph 50

F. SECTION 24(2): A RENAISSANCE

As was recently noted by learned Author, Associate Dean Dwight Newman, there is a renewedwillingness by the Saskatchewan Court of Appeal to exclude evidence the seizure of which is aresult of police misconduct (Sask Law Review, Volume29, page 326). This approach is in partrevitalized by the decision of the Supreme Court of Canada in R v. Buhay, but arguably willsustain its momentum until the police appreciate that they must not operate on the basis d'f theends justifying the means.

Madam Justice Arbour recognizes in R v. Buhay, that while section 24(2) is not an automaticrule of exclusion, nor is it an automatic rule of inclusion where the search is non-conscriptive,and the admission of the evidence is essential to the Crown's case.

• R v. Buhay, paragraph 71

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Both R v. Rutten and R v. Bulmer recognize the need for clearly defined rules given thefrequency of vehicle searches. Madam Justice Smith in R v. Rutten states as paragraph 68 asfollows:

"While this conclusion, alone, would require exclusion of the evidence pursuant to s.24(2), further comment may be made in relation to the seriousness of the breach. In thiscase, the police disregarded well settled law in relation to the limits of a legal search andthe requirements for valid consent. It is true that there is a lower expectation of privacy ina motor vehicle. However, in Bulmer, supra, in circumstances very similar to those in theinstant case, this Court applied the decision of the Supreme Court of Canada in R. v.Buhay, [2003] 1 S.C.R. 631 to exclude evidence obtained in the context of a vehiclesearch, commenting:

[31] The recent decision in Buhay also reflects the Supreme Court's concern withthe effect of admitting evidence that may encourage particular conduct by policein the future. When considering the effect of the exclusion of the evidence on theadministration of justice, a Court must determine if further disrepute will resultfrom the admission of evidence by "judicial condonation of unacceptable conductby the investigatory and prosecutorial agencies". [emphasis in original] This issuch a common occurrence, i.e., police officer stops vehicle in relation to a minortraffic offence, that the limits should be clearly understood."

• R v. Rutten, paragraphs 68• R v. Bulmer, paragraph 31• R v. Perello, paragraph 58

The nature of the police conduct effects the seriousness of the breach and the effect of theadmission / exclusion on the reputation of the administration of justice. Mr. Justice Scheibel inR v. Basta is clear:

"...Nevertheless the actions of the officer in searching the vehicle in an unlawfulmanner must be strongly denounced. The admission of the evidence obtained bythe illegal search, in this case, would be the thin edge of the wedge in condoningillegal activity by officers who are sworn to uphold the law."

"Furthermore, the admission of such evidence is more likely to encourage illegalsearches and to render the Charter meaningless."

• R v. Basta, paragraphs 27 & 28•. R v. Mouland, paragraphs 30-34• R v. Lynds, paragraph 17• R v. Harris, paragraph 26

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Saskatchewan Courts have considered other factors when analyzing the senousness of thebreach:

• Failure to use a consent form for the purposes of a consent search.

• R v. Rutten, paragraph 42 & 65• R v. Lavoie, paragraph 17

• Lack of urgency for a vehicle search and failure to apply for a warrant to search.

• R v. Nolet, paragraph 52• R v. Lynds, paragraph 16• R v. Basta, paragraph 24

• Series of breaches or continuous nature of breaches.

• R v. Rutten, paragraph 64-66• R v. Nolet, paragraph 54• R v. Mouland, paragraph 30

• Non-existence of reasonable and probable grounds.

• R v. Perello, paragraph 58• R v. Harris, smell ofburnt marijuana not sufficient.

Saskatchewan Courts have also recognized that the first branch of the Collins test, trial fairness,will be effected where a search is not preceded by the right to counsel, or where the accused hasbeen conscripted to participate in the search process.

• R v. Rutten, paragraph 66• R v. Nolet, paragraphs 45-47,51• R v. Ladoucer, paragraph 53

G. CONCLUSION

Saskatchewan Courts have drawn a line: if vehicle searches continue to violate constitutionalrights, exclusion of the seized evidence is probable.

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H. LIST OF CASES:

R v. Lott, [1998] SJ. No. 678

R v. Nolet, [2006] S.J. No. 524

R v. Rutten, 36 C.R. (6th) 311, Saskatchewan Court of Appeal

R v. Harris, [2005] S.J. No. 147

R v. Sewell, 175 C.C.c. (3d) 242

R v. Luc, 22 C.R. (6th) 260

R v. Lavoie, [2005] S.J. No. 91

R v. Perello, 27 C.R. (6th) 260

R v. Ladoucer, 223 Sask. R. 161

R v. Basta, 244 Sask. R. 224

R v. Bulmer, 31 C.R. (6th) 311

R v. Therens, 45 C.R. (3d) 97

R v. Buhay, 10 c.R. (6th) 205

R v. Mouland, 2006 SKQB 100, Madam Justice Wilson

R v. Lynds, [2005] SJ. No. 825

R v. Smith, 181 Sask. R. 1 (Confirmed by Sask. C.A. May 9, 2004)

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