Roadside Stops and Warrantless Searches: Minimal Privacy Rights for Mobile Workers

Truckers and other highly mobile workers will be a little more wary when they are travelling on the highway in the course of their employment due to the SCC’s most recent decision. On Friday the SCC released its unanimous decision in R. v. Nolet, 2010 SCC 24, which negatively impacts the minimal right to privacy that truckers have in regards to their mobile living space. A warrantless search by the Saskatchewan police forms the basis of this case. According to R. v. Collins, [1987] 1 S.C.R. 265, the Crown must establish on a balance of probabilities that a warrantless search was authorized by law, that the law itself is reasonable, and that the manner in which the search was carried out was reasonable. In the decision written by Binnie J., the SCC found that the Crown satisfied the Collins test, despite the fact that the roadside stop in question was commenced to investigate a potential regulatory offence, and the ensuing search of a truck cab was conducted to investigate potential criminal activity.

There were several issues discussed in this decision that pertain to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. This article will focus on two particular issues related to s. 8 of the Charter.

1. Does the “predominant purpose” test apply?
2. Do long-haul truckers have a reasonable expectation of privacy in regards to their mobile living space?

The SCC’s determination of the second issue is provocative to the extent that there are negative implications for a particular class of highly mobile people in society that are prejudiced by the application of the factor-based test for s. 8 of the Charter.

An Roadside Stop Reveals Money and Marijuana

The appellant Nolet and two other individuals were travelling at night on a Saskatchewan highway when they were stopped by a police officer. The police officer noticed that the fuel sticker outside the truck was expired. After he requested the vehicle registration, the officer also noted that the truck was not registered for commercial driving in Saskatchewan. The expired sticker and the improper registration constituted separate regulatory offences under The Highways and Transportation Act, 1997, S.S. 1997, c. H-3.01 (H&TA). There were other irregularities such as inaccuracies in the log book, and fact that three men were driving what appeared to be an empty truck at night. The officer did not enter the trailer, but did inspect the truck cab to investigate the irregular trucking documents. He was authorized to do so according to s. 65(3) of the H&TA, which states:

Where the peace officer or the person appointed by the minister has reasonable grounds to believe that a vehicle is being operated in contravention… of a regulation made pursuant to clauses 69(1)(v) to (oo), the peace officer or person appointed by the minister may:
(a) request or signal to the person in charge of or operating the vehicle to stop the vehicle;
(b) search the vehicle for evidence of an offence; and
(c) seize anything that may be evidence of an offence.

Section 63(5) does not give the police unlimited powers. As will be discussed in regards to the predominant purpose test, one of the issues in contention in this case was whether s. 63(5)(b) permitted the officer to search a duffel bag in the trucking cab. Based on his past experience with truckers holding trucking documents in scattered containers in the trucking cab, the officer opened up a duffel bag that he thought contained trucking documents. In the bag he found $115,000 in small denominations of cash, bundled by elastic bands – a practice consistent with drug transactions. Correspondingly, the officer placed Nolet under arrest for possession of the proceeds of crime. The officer requested back-up to conduct a roadside search of the trailer, which led to the discovery of a secret compartment containing marijuana.

The following day, an officer conducted an inventory search of the contents of the truck cab, and found additional documentation relevant to the H&TA offences. Unlike the other aspects of the police’s investigation, the SCC held that the warantless inventory search violated s. 8 of the Charter because the search was conducted in accordance with the police’s administrative procedure to create an inventory, and not the police’s lawful authority to conduct a search. Despite finding a violation of s. 8, the SCC allowed the Crown to admit the additional documentation as evidence because the police would have found it had they chosen to complete the search earlier.

The Predominant Purpose Test does not Apply

Nolet unsuccessfully argued that the police violated s. 8 of the Charter because the roadside stop was for a regulatory purpose, yet the officer conducted a search of the trucking cab in pursuit of criminal purpose. The trial judge agreed with Nolet, holding that the search of the bag was invalid because the officer opened the bag in pursuit of a criminal law purpose and not in pursuit of the aforementioned regulatory offences. In making her decision, the trial judge discussed “dual purpose” searches, and whether a “dominate” criminal law purpose would invalidate an otherwise valid regulatory search.

At the Saskatchewan Court of Appeal, the majority overturned the trial judge’s decision and held the predominant purpose test was inapplicable. It explained that the issue is not which purpose is dominant or subordinate, but whether a “lawful purpose is being exploited to achieve an impermissible aim.” In adopting the appeal courtʼs position, the SCC added that “police power…is abused when it is exercised in a manner that violates the Charter rights of an accused.” Based on this test, the SCC held that the search of the duffel bag was valid. It stated that “[a]s long as there is a continuing regulatory purpose on which to ground the exercise of the regulatory power, the issue is whether the officerʼs search of the duffel bag infringed the reasonable expectation of privacy by the appellants.” Consistent with existing precedent that subordinates the privacy interests associated with automobiles, commercial ones in particular, to that of permanent residential dwellings, the SCC found that Nolet enjoyed a low expectation of privacy in regards to his trucking cab.

What is the point in having a factor-based test for privacy when  the factors do not consider the reality of todayʼs hyper-mobile workforce?

The majority of Canadians reside on a full-time basis in permanent residential dwellings that enjoy the highest expectation of privacy. According to this decision, truckers and other highly mobile workers will have to settle for second-class privacy rights because their mobile living spaces have a dual business purpose. The test for determining whether s. 8 of the Charter is violated was established in R. v. Edwards, [1996] 1 S.C.R. 128. This test uses seven factors to determine whether there is a reasonable expectation of privacy based on the totality of circumstances. The lower the expectation of privacy, the more likely that that the impugned police conduct will not violate the Charter. The effect of Edwards test is that the extenuating circumstances of individuals that spend a substantial duration of time away from their permanent residential dwelling are not adequately considered. Truckers should not excluded from exercising their full constitutional right against unreasonable search and seizure merely because “[c]ommercial trucking is  a highly regulated industry and commercial drivers are well aware of the police authority to conduct random stops and to search a vehicle for infractions.” Some balance must reached between regulating commercial trucking and the actual living conditions that truckers endure on their long hauls.