There has been much discussion in Saskatchewan about the lack of roadside rest stops, as a result of the Provincial government's decision to close nine rest stops. This decision was, of course, reversed as a result, in part, by the advocacy of the Saskatchewan Trucking Association.

The issue got me thinking about rest and how important it is for a driver to have a safe and private space to rest while on the road. For most drivers, that space exists in the cab, which is home and their home away from home.

Prior to law school, I spent a year doing flat deck work in Western Canada. My assigned truck was a cab-over Freightliner Argosy with a cab length of 110 inches and a raised roof sleeper. The best part of the design is that it nearly eliminated the raised "dog house" that made cab-overs so unpopular (and now nearly obsolete) in the North American market. This meant a spacious cab, standing room (and lots of it), and all the creature comforts of home.

Peterbilt owners will likely disagree, but that Argosy with the automated swing steps, flat front, and big cab was really cool (I thought). It became my home away from home and when other drivers saw the big shack coming down the road they knew to look for me. Whether at a truck stop, a road side rest stop, or one of many delivery points, the cab of my truck was a place where I spent more nights at rest than in my own bed.

Unless one has been a commercial driver, it is difficult to understand what the space of the interior of the cab means to one's sense of self and privacy. It houses personal belongings, clothes, toiletries, maybe pets, photographs, and other trinkets that serve as a reminder of people and memories that are important while away from home.

Because the truck is much more than a work place environment or motor vehicle, it important as part of the discussion about hours or service and overall driver health, that the law protects a driver's privacy while in the truck.

Most drivers have nothing to hide, and would gladly open the door for visitors. But, when is the last time you thought about an agent of the government in the execution of her duties coming into your home, or bedroom? For most, the answer is never. There is a very small dividing line, between the driver's seat where the interaction with the peace officer occurs and the living quarters of the truck. It is a unique space at law, and one that is arguably not protected to the extent it deserves.

Section 8 of the Charter of Rights and Freedoms (the "Charter") provides that everyone has the right to be secure against unreasonable search and seizure when such search and seizure is undertaken by government.

R. v. Belnavis, 1997 CanLii 320 (SCC) ["Belnavis"]

The court Belnavis held that a driver of an automobile has a reasonable expectation of privacy with respect to the contents of a vehicle, but that this right to privacy is not as fulsome as one's right to privacy in one's own home. Belnavis involved a road side stop and the right to privacy with respect to the contents of a garbage bag located in the car later determined to be stolen.

R. v. Tessling, 2004 SCC 67 ["Tessling"]

The court in Tessling examined the reasonable expectation of privacy with respect to a person's home in the context of forward looking infrared ("FLIR") technology used by police when investigating large scale marijuana grow operations.

FLIR technology is able to record images of thermal energy, or heat radiating from a building. The question for the court was whether the occupant of the house had a reasonable expectation of privacy with respect to the thermal image being emitted from the house. It was this thermal foot print that led police to conclude that a search of the home was appropriate and lawful.

The court discussed how one's expectation of privacy is diminished when one moves from a dwelling space, to the space around the house, to commercial spaces, private vehicles, etc. The court concluded that "there is no place on earth where persons can have a greater expectation of privacy then within their dwelling house."

What does this mean for a commercial driver in her home away from home, and in the context of the many laws and regulations designed to keep roads safe?

R. v. Nolet, 2010 SCC 24 ["Nolet"]

In Nolet, the court discussed a driver's reasonable expectation of privacy as protected by the Charter in relation to the cab of a truck.

Mr. Nolet was travelling along the Saskatchewan portion of the Trans-Canada Highway in an empty commercial tractor trailer unit licensed in Quebec when he was stopped by an RCMP officer. The officer noticed an expired IFTA sticker, and, after requesting the vehicle registration, noted the truck was not registered for commercial driving in Saskatchewan.

The log book also did not correspond with the stops listed in the bills of lading. The officer was given permission by the driver to inspect the trailer and the officer found the trailer was empty. The officer then took the inspection to the truck cab, but did not seek the consent of the driver for the search.

The officer found a small duffle bag immediately behind the driver's seat in the sleeping compartment. When he touched the bag, its contents crackled like paper. He opened it and assumed it contained old logbooks, because in his experience "often truck drivers will collect or keep various documents over long periods of time in a bag or a box". He discovered $115,000.00 cash in the duffel bag.

Mr. Nolet was arrested for possession of the proceeds of crime and the truck was seized. The truck was later determined to be containing large amounts of marijuana in hidden compartments.

The court acknowledged that drivers ordinarily have some expectation of privacy in the sleeping area of the cab, and the court recognized that for long distance truck drivers, the truck is a temporary mobile home. The court recognized that living quarters, however rudimentary, should not be classified as "Charter free" zones.

Even with these acknowledgments, the court went on to explain that the level of expectation of privacy is low because the cab of the truck is "not only a place of rest but a place of work". The court also noted that there can be little expectation of privacy, even in the sleeping area of the truck especially if the truck is in violation of the relevant highway regulations. Drivers know, or ought to know, the reality that a truck stop/inspection may quickly result in a search of a truck, and they ought to govern themselves accordingly.

The court found that the officer did not infringe Mr. Nolet's right to privacy because when the officer found the duffle bag he did not open it immediately. He pushed down on the outside of the bag and felt and heard what seemed like paper. The officer then opened the bag and the cash was in plain view. Mr. Nolet was convicted.

You may, or may not, agree with the fact that the officer's search of the area behind the driver's seat in his sleeping compartment was found to be lawful in the context of an out of date log book, expired IFTA stickers, and an empty trailer. It is important, however, to recognize that the court found that a roadside stop is not a static event and information as it emerges may entitle police to proceed further in the search.

What does this mean for the privacy rights of an off duty driver at rest in the cab? Given the realities of the trucking industry and the demands it places on drivers, why should drivers not be afforded the same rights as individuals in their own home?

A law that provides drivers with less privacy, less freedom, and less respect in their own personal space may deter people from joining the industry or from staying in the industry, especially in view of the more restrictive hours of service legislation that requires drivers to spend more time at rest in their home away from home.

It is the opinion of the writer that this area of law should be further developed (perhaps with specific legislation), and that Charter rights of drivers while in their home away from home should afford a similar expectation of privacy as one's true home. For example, how would a situation be handled where a driver is at a rest stop, in the process of a reset, and consuming cannabis in the truck?

Originally published in Western Canada Truck News

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