R. v. Jacques [1996] 3 S.C.R. 312: Police officer stopping and searching appellants' truck several kilometres from Canada-U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry -- Report containing no description of vehicle or passengers -- Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether appellants subjected to unreasonable search or seizure

Present: Sopinka, Gonthier, Cory, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK

Constitutional law -- Charter of Rights -- Search or seizure -- Police officer stopping and searching appellants' truck several kilometres from Canada-U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry -- Report containing no description of vehicle or passengers -- Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether appellants subjected to unreasonable search or seizure -- Canadian Charter of Rights and Freedoms, s. 8 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).

Constitutional law -- Charter of Rights -- Arbitrary detention -- Police officer stopping and searching appellants' truck several kilometres from Canada-U.S. border after receiving report that a vehicle had crossed at uncontrolled point of entry -- Report containing no description of vehicle or passengers -- Customs Act authorizing stop and search of vehicle where officer suspects on reasonable grounds that vehicle is or might be involved in smuggling -- Whether officer had reasonable grounds to stop appellants -- Whether appellants arbitrarily detained -- Canadian Charter of Rights and Freedoms, s. 9 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 99(1)(f).

An RCMP officer received a radio report from the U.S. border patrol informing him that a single vehicle had crossed the Canada-U.S. border at a nearby uncontrolled point of entry. No description of the vehicle or of its passengers, contents or licence plates was given. The officer proceeded to the intersection of the road from the border and the Trans-Canada highway. He testified that it would take approximately three minutes to drive from the border to the intersection, a distance of some four to five kilometres, and that it took him three to five minutes to drive from where he received the radio report to the intersection. When he arrived he noticed two vehicles waiting. The first in line was a car with New Brunswick licence plates, driven by a woman approximately 60 years old. The second vehicle was a pickup truck, with a Quebec licence plate in the rear, a cellular phone antenna, and a cap on the back. This vehicle, which was occupied by the appellants, was stopped by the officer, who stated at trial that he had a choice between the two vehicles and picked the one he felt was more suspicious. When asked where he had been, the driver replied, "I'm coming from across". He was then asked what he had in the back of the vehicle, and replied that it was whisky. On request, he opened the back of the truck and the officer noted several Wal-Mart bags and some boxes with liquor markings on them. The officer then placed the appellants under arrest and confiscated their truck. The appellants were charged with failing to report to customs and smuggling. The trial judge found that since the stopping of the appellants' vehicle was based on the officer's hunch, which was insufficient to constitute reasonable grounds, it was arbitrary, and thus a violation of s. 9 of the Canadian Charter of Rights and Freedoms. He also held that the statements by the driver and the subsequent consent to search the vehicle were given in violation of the Charter and the evidence gathered thereafter was inadmissible pursuant to s. 24(2) of the Charter. The Crown called no further evidence and the appellants were acquitted. The Court of Appeal found that the stopping of the appellants' vehicle was permitted under s. 99(1)(f) of the Customs Act, concluding that the officer had reasonable grounds to suspect a contravention of the Act because the truck was on the road leading from the border and did not fit into the surroundings. It set aside the acquittals and ordered new trials.

Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.

Per Gonthier, Cory and Iacobucci JJ.: Having failed to refer explicitly to s. 99(1)(f) of the Customs Act, the trial judge further erred by overstating the necessary grounds for the officer's actions. Section 99(1)(f) authorized the detention and search of the appellants' vehicle on the basis of reasonable suspicion of smuggling or an attempt thereto, but the trial judge referred to a probability of illegal smuggling. In assessing the officer's actions, the trial judge also adopted a dissecting approach to evidence when, instead, he should have measured the totality of the circumstances. Since the precise and reliable information relayed to the officer, the location of the appellants' vehicle and his observations of it amply satisfied the requirements for detention and search under s. 99(1)(f) of the Act, the appellants were not arbitrarily detained contrary to s. 9 of the Charter. The appellants' right to be secure against unreasonable search and seizure was also not violated. The search carried out met the criteria set out in Collins: it was authorized by law, that law is itself reasonable, and the search was carried out in a reasonable manner. The Crown's failure to adduce further evidence after the adverse voir dire ruling, thereby necessitating an acquittal, falls far short of an abuse of process. The ruling rendered virtually meaningless any other evidence which the Crown might have been in a position to call. Since it would be absurd to expect the Crown to have proceeded with the trial in those circumstances, its failure to do so does not affect the availability of a new trial. A new trial is warranted here. The excluded evidence, together with the evidence already of record, constitutes circumstantial evidence such that, had the error not occurred and the excluded evidence been allowed, the verdict would not necessarily have been the same.

Per Major J. (dissenting): The trial judge was correct in finding that the officer did not have reasonable grounds to stop the appellants. While the requirements of s. 99(1)(f) of the Customs Act are not stringent, there must be some connection between the factors relied on by the officer and the suspected breach of the Act. Here the appellants' vehicle was stopped, according to the officer, because of its proximity to the border, and the fact that it was a truck with a cellular telephone antenna and a cap on the back. The officer also thought the fact that the vehicle bore a Quebec licence plate was an important consideration. These factors, assessed individually or in concert, do not constitute reasonable grounds to suspect a contravention of the Act. The arbitrary nature of the stop is evidenced by the officer's testimony; he testified twice that he had a choice between the two vehicles found at the intersection, and that he had to stop one or the other. He never explained why the truck was the more likely of the two vehicles to have crossed the border. There is nothing illegal per se about crossing the border at an uncontrolled checkpoint. Even if the truck could have been identified as the vehicle which had just crossed the border, there was still nothing to indicate that a violation of the Customs Act had occurred. The officer acted on a hunch based on his experience. While experience should not be discounted in evaluating grounds to stop and search a vehicle, allowing police to exercise their considerable powers of detention and arrest based on their experience has the potential to permit ex post facto justification of police action. In assessing the officer's experience it should not be overlooked that he believed crossing the border at an uncontrolled border crossing was illegal, which it is not. Because there were no reasonable grounds for the detention of the appellants in this case, they were arbitrarily detained, in contravention of s. 9 of the Charter. In addition, the subsequent search was unreasonable and violated s. 8. Finally, the trial judge did not make an error as to the applicable principles of law governing the exclusion of evidence under s. 24(2), nor was his finding that the admission of the evidence would render the trial unfair unreasonable.

Sopinka J.'s reasons were agreed with.

Per Sopinka J. (dissenting): Major J.'s conclusion and reasons were agreed with. However, even if the trial judge erred in excluding the evidence produced by the search of the appellants' vehicle, the appeal should be allowed. In an appeal from an acquittal at trial based on an error of law, the Crown has the duty of satisfying the court that the verdict would not necessarily have been the same if the error had not occurred. In order to satisfy this burden, which is a heavy one, the Crown must show that either the excluded evidence or the excluded evidence together with other evidence could reasonably result in a conviction. The court must be persuaded of this to a reasonable degree of certainty. Here, the evidence of the search is the only evidence in the record. This evidence itself could not result in a conviction. The appellants were stopped just minutes after they crossed the border, and as there were no customs offices on the road they were on, it would have been impossible for them to have reported to a customs office before they were stopped.

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