Lest we forget, Avtar Singh Sandhu was charged with possessing 205 kgs of cocaine after the tractor trailer he was driving was stopped near Milton,Ont.,way back in Feb 4, 2007. Halton Police officers found the coke wrapped inside nine plastic-wrapped bricks in the back of the van owned by Kandola Bros. Carriers, tucked in beside a load of baby carrots bound for stores in the Toronto area.
Sandhu was originally acquitted because the trial judge found that the evidence had been gathered improperly without a search warrant contravening Sandhu’s Charter Rights to be free from improper search and seizure.
But on Jan 5, in a decision written by Justice J. A. Simmons, the Ontario Appeals Court set aside the acquittal and allowed for a new trial under a different judge. Moreover, the decision had some interesting things to say about truck drivers and their expectations of privacy, which I’ll get into shortly.
The entire incident started as a bit of a surreal theatre, after an altercation between Sandhu and a truck stop employee who noticed suspicious activity at Truck Town Terminals on Steeles Ave. Evidently he had seen Sandhu and another man loading something from a passenger car into the back of the trailer. After confronting the the men, they started up their vehicles and drove off in opposite directions. The truck stop employee followed the truck and managed to impede his progress a few times, finally cutting him off entirely on a ramp from James Snow Parkway onto the 401.
It was then that Ministry of Transport officer Jason Leeman happened on the scene and noticed the strange activity going between the two vehicles. He pulled in behind the stopped truck and turned on his lights, determining at that time that he was going to inspect the vehicle–until driver Sandhu approached and mentioned something about a “gun” Understandably, Leeman called his dispatcher and requested backup. Soon after, a couple of Halton police officers, Paul Kent and Geoff Clarke, arrived on the scene. At this time Sandhu made a more explicit reference to a gun telling the officers, “someone had put a gun to his head and told him he had to put things in the back of the tractor trailer truck.”
This naturally piqued the interest of the gendarmes. They cautiously opened the back doors and while examining the cargo MTO officer Leeman noticed the nine bales, about two and a half feet square. He believed those bales contained narcotics based on his prior experience and training, and stepped back to let the Halton cops take a look. Officer Kent sliced open one of the bales, at first thinking they contained CD ROMs or computer parts. The investigating officer were now pretty sure they had come across a mother lode of narcotics, but it’s not until detective Brad Murray arrived on the scene that the call was made to request a search warrant.
Neither of the judges quibbled with the right of the MTO officer to examine the vehicle and its contents. But the trial court judge felt that once Leeman had heard Sandhu talking about a gun, and had called for backup, the incident turned from a regulatory matter into a criminal investigation, resulting in impugned evidence because of a warrantless search.
According to the original judgement, the judge found that the officers “engaged in an intrusive and invasive warrantless search of the trailer with full knowledge and consciousness that they would only have the legal authority to proceed in that way if they first obtained a search warrant” [but]…” chose instead to rely on the questionable authority that cloaked Officer Leeman…” Interestingly, the trial judge also found that the driver had a reasonable expectation of privacy in the trailer, albeit “at the lower end of the scale.”
In overturning the acquittal, the Appeals Court suggested that there was no reason that a regulatory investigation could not take place in parallel with a criminal investigation, and cited another famous truck/trafficking case in Saskatchewan. In Nolet vs. the Crown, a couple of guys were bobtailing around the prairies and were stopped by an RCMP officer who noticed an expired fuel tax sticker. During a “regulatory” search of the truck cab, the Mountie stepped on a duffel bag that “crinkled,” and opened it thinking that there would be documents like log book sheets inside (believe it or else). Anyway, inside the duffel bag is papers all right, $115,000 in cash, which is enough for them to get arrested on the spot according to the law (libertarians take note, if you’re carrying a large amount of money police figure it’s the proceeds of a cime).. A further search of the vehicle found 392 pounds of pot hidden in compartments. The boys were evidently booting around in tractor and wholesaling pot until this sharp-eyed Mountie pulled them over.
Regardless, the Appeal judges leaned heavily on the Nolet judgement, which they add, in fairness, wasn’t available to the trial court judge: “Where police (or enforcement officers) have conducted a warrantless search, the onus is on the Crown, ‘to establish on a balance of probabilities that the search was authorized by law, that the search itself it reasonable, and that the manner in which the search was carried out was reasonable.’”
The Nolet judgement apparently set the bar. “Commercial driving is a highly regulated industry and truckers can expect to be subject to random inspections from time to time.” And further, trailer privacy issues had little to do with the Sandhu case, according to the Appeals Court since the respondent (Sandhu) did not own the truck or trailer, had no authority to determine what was loaded in the trailer, did not load goods onto the trailer himself, etc.
The last part of this appeal intrigues me. I’m not sure how much Avtar Singh Sandhu had to do with his illicit load, most drivers don’t have any say in what they’re transporting, we just hope the shipper is honest and law-abiding. As my friend Rick Geller is always saying, you could ship an Exocet missile domestically by FedEx, call it a popcorn maker, and no one would know the difference.
This case could well end up in the Supreme Court as did the Nolet charges. Showcasing that peculiar balancing of a state’s rights with those of an individual which haven’t quite been worked out yet…to be continued at the Superior Court in Milton, Ont., September 2012.