ONTARIO COURT OF JUSTICE
Information No.: 3911-998-19-C853-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
VERNON HALL
Before Justice Diane M. Lahaie
Heard on November 16, 17, 18 and 19, 2021; February 2, 2022
Ruling released in writing on November 24, 2022
Counsel: J. Thompson and C. Shephard, for the Crown E. Warren, for the Applicant
Endorsement
1Vernon Hall faces one count of organizing, inducing, aiding or abetting the coming into Canada of a person, knowing that or being reckless as to whether their coming into Canada is or would be in contravention of the Immigration and Refugee Protection Act and one count of failing to comply with a condition or obligation imposed under the Immigration and Refugee Protection Act, by failing to present himself for examination upon entry into Canada.
2Defence counsel brings a Charter Application seeking remedies under section 24(1) and 24(2). Counsel seeks to have the Court exclude all evidence adduced against the Applicant on the basis that the Applicant’s right to be informed of his jeopardy, rights to counsel, right to a fair trial and right to be free from unreasonable search and seizure, arbitrary detention and cruel and unusual punishment were infringed contrary to sections 7, 8, 9, 10(a), 10(b) and 11 of the Charter.
3While some of the arguments raised in the written material were not ultimately pursued, the Court will determine the issues advanced and argued.
4The Charter Application proceeded in a blended fashion. On the Application, the Court heard the evidence of Cst. Fred Beaudry, Cst. Richard Houde, Peter Mbunta, Devin Delormier, Retired Officer Steve McDougald, Cst. Randy McGillis, Cst. Gabriel Lemaire and Agent Andrew Sutherland. The accused did not testify.
5Following my review of the evidence on the Application, I find the facts to be as follows:
6On March 27, 2018, the Applicant picked Mr. Mbunta up at the Super 8 Motel in Massena New York. Mr. Mbunta had paid to be surreptitiously brought into Canada from the United States. On Cornwall Island, Mr. Mbunta boarded a boat with the Applicant and Mr. Delormier. They were to cross the St. Lawrence River, bypassing the Canadian Customs and Immigration office located in Cornwall north of the Seaway International Bridge.
7That day, Csts. Beaudry and Houde worked the marine unit of the Regional Task Force, patrolling the St. Lawrence River. It was a cold day and there was snow on the ground, so they wore special black wet suits to protect them from the elements. They noticed a boat travelling east on the river near the border with the United States. This appeared to the officers to be highly suspicious activity given the time of year.
8Cst. Beaudry noted that the vessel appeared to be a smuggling-type vessel based on its appearance, speed and direction of travel. He observed that it was similar to vessels he had previously encountered in terms of smuggling events.
9Csts. Beaudry and Houde proceeded towards the vessel. They observed three men onboard. Their vessel was stopped on the Canadian side, near the border to the United States which runs through the waterway, at approximately 12:05 p.m.
10Mr. Delormier operated the vessel, and the Applicant and Mr. Mbunta were passengers.
11The officers advised the occupants of the vessel that they were conducting an inspection under the Customs Act and asked the parties on the boat to identify themselves. Mr. Mbunta said his name was “Peter”. Cst. Houde repeated his request for identification. Mr. Mbunta said he was from Ottawa and that he was with his friends and out for a boat ride. He later advised that he was not a Canadian citizen and that he was in the process of getting his papers.
12Mr. Delormier told the officers that the purpose of his trip was for fishing. There was no fishing equipment in the boat. The parties also provided inconsistent information regarding whether they knew each other. Both Csts. Beaudry and Houde found the situation highly suspicious given the time of year to be out on the river, the absence of fishing equipment, the manner of dress and the inconsistent stories provided.
13Cst. Houde asked the boat operator if there were any life jackets on the vessel and he replied that there were not. Cst. Houde informed the parties that the police would be taking them to land in order to continue their investigation in respect of the Customs Act and in order to identify Mr. Mbunta. The police provided life jackets to the occupants of the vessel. The occupants understood the reason why they were going to land.
14The officers towed the vessel to the Blue Anchor, a restaurant which was closed for the season, and which had the nearest, safest dock in the vicinity.
15The trip from the point of interception to the Blue Anchor took approximately 15 minutes. Once securely docked at the Blue Anchor, Cst. Beaudry again requested identification from the three individuals on board the vessel. Cst. Beaudry also asked to whom the backpack visible in the boat belonged. Cst. Beaudry searched Mr. Mbunta ’s backpack and located his Cameroonian passport.
16During the interaction, Mr. Delormier and the Applicant remained in the Jon boat while Mr. Mbunta then immediately fled on shore. Cst. Beaudry apprehended Mr. Mbunta in the parking lot at which point Mr. Mbunta claimed asylum.
17Cst. Beaudry arrested Mr. Mbunta under the Immigration and Refugee Protection Act for entering Canada illegally and turned him over to the other officers who arrived to assist, at approximately 12:35 p.m.
18Cst. Beaudry informed the Applicant that he was under arrest for human smuggling. Immediately upon arrest, Cst. Beaudry informed the Applicant of his rights to counsel.
19Cst. Beaudry conducted a search of the Applicant incident to arrest and located a cell phone which was open displaying a text message referring to “the African guy”.
20Cst. Beaudry turned the Applicant over to Cst. Lemaire, who also advised the Applicant that he was under arrest for human smuggling and re-read the Applicant his rights to counsel. Cst. Lemaire indicated to the Applicant that he could contact any lawyer he wished. In response to the question, “Do you wish to speak to a lawyer?” the Applicant responded, “I guess I am going to need one now”. The Applicant stated that he wanted to speak to Legal Aid.
21At 1:03 p.m. Cst. Lemaire left the Blue Anchor with the Applicant and drove to the RCMP Detachment in Cornwall. Once at that RCMP Detachment, Cst. Lemaire telephoned Duty Counsel. Following consultation, Cst. Lemaire asked the Applicant if he was satisfied with the conversation and the Applicant stated that he was.
22The Applicant was released without charges that day at 8:33 p.m.
23The following day, Agent Sutherland of the US Border Patrol Agency attended the Super 8 Motel in Massena, New York and reviewed video surveillance. He was not able to save the video which no longer exists.
The Law
24I have reviewed the applicable sections of the Canadian Charter of Rights and Freedoms.
25In addition to these provisions, it may be useful to review the provisions of the Canada Shipping Act and Vessel Operation Restriction Regulations.
26The Regulations to the Canada Shipping Act convey broad powers to peace officers to conduct inspections aimed at marine safety.
27Section 17 of the Vessel Operation Restriction Regulations reads:
An enforcement officer may:
(a) prohibit the movement of any vessel or direct it to move as specified by the enforcement officer:
(b) stop and board any vessel at any reasonable time, and
(i) direct any person to put into operation or cease operating any equipment on board the vessel,
(ii) ask any pertinent questions of, and demand all reasonable assistance from, any person on board the vessel, and
require that any person on board the vessel provide to the enforcement officer, for examination, any document or information that is in the person’s possession.
28Section 196(4) of the Canada Shipping Act also grants the following powers of enforcement to officers working under the authority of this Act. Section 196(4) provides:
196 (4) Enforcement officers acting under subsection (2) and inspectors acting under subsection (3) may
(a) stop or board the craft at any reasonable time;
(b) direct any person to put into operation or cease operating any machinery or equipment on the craft;
(c) direct that the craft not be moved until the inspection is completed;
(d) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that it does not meet the requirement of this Part or the regulations made under this Part or exposes any person to serious danger, and direct that it not be operated until it meets those requirements or no longer exposes any person to serious danger; and
(e) direct any person to move the craft to a safe place if the officer or inspector has reasonable grounds to believe that the operator does not meet the requirements of the regulations made under this Part, and direct that the operator not operate it until the operator meets those requirements.
Analysis of the Evidence
Cst. Fred Beaudry
29Cst. Beaudry testified in a clear and straightforward fashion. I found him to be a credible witness. He was an experienced RCMP officer who was familiar with the area, including the St. Lawrence River which runs between the United States and Canada, as well as between Cornwall Island (wholly situated in the province of Ontario) and the city of Cornwall.
30At the relevant time, Cst. Beaudry was a member of the Regional Task Force (“R.T.F.”), which is a specialized unit tasked with maintaining Border Integrity. He was assigned to the marine unit and was, on March 27, 2018, in a marked police vessel patrolling the St. Lawrence River.
31Cst. Beaudry had been with the marine unit since 2007 and was a marine instructor. He had been involved in several hundred investigations in every capacity within this unit, from conducting surveillance to being an exhibit officer when goods were seized. He was empowered to enforce the Customs Act, the Immigration and Refugee Protection Act, the Canada Shipping Act and the Small Vessels Regulations dealing with marine safety. He was also empowered to enforce other provincial legislation, having been sworn in as an OPP officer.
32On March 27, 2018, Cst. Beaudry was working with Cst. Houde. They launched their vessel that day intending to patrol the area between the Power Dam and the Quebec border. They were specifically looking for commodities coming across the river without proper declaration at the Customs Port of entry.
33He explained that his previous investigations have included incidents involving smuggled tobacco products, drugs, people, meat unfit for consumption, lighters, counterfeit currency, with individuals attempting to get people and products into Canada illegally from the United States, through the Akwesasne Reservation.
34Cst. Beaudry testified that he and other members of his specialized unit also look for vessel safety issues, improper licenses, invalid haul numbers and vessels which are not properly marked.
35On March 27, 2018, it was 4 degrees and partly cloudy. There was snow on the ground (as seen in the photos filed in evidence). As a result of the weather, the officers wore special black wet suits while displaying their usual police identifiers, badges and body armour. Cst. Beaudry testified that there is no access to any of the marinas in the area at that time of year as they are closed.
36Cst. Beaudry testified that he observed a vessel coming across the water, near Cornwall Island (the portion of Akwesasne situated in Ontario which is located south of the Customs port of entry in the city of Cornwall). Cst. Beaudry testified that it was a smuggling type vessel, flat green or black in colour, approximately 18 to 20 feet in length with high power and only one seat, which would maximize capacity. Cst. Beaudry stated that he and his colleague, Cst. Houde, moved in to intercept the vessel as he had reason to believe, given his experience, the circumstances and the proximity to the border, that there was illegal activity.
37According to Cst. Beaudry, the boat driver, an Indigenous man, was seated in the center of the boat, on the single seat, while the other two occupants, a Caucasian male and a black male were sitting lower in the boat. Cst. Beaudry identified the man he referred to as the Caucasian male as the Applicant. The Court later learned that Mr. Hall is of Indigenous heritage. I note that the Applicant is very fair skinned and that he has blonde hair which explains Cst. Beaudry initial thoughts.
38Cst. Beaudry described how they intercepted the vessel and tied their police boat onto Mr. Delormier’s boat. He stated that there was no issue in getting the vessel to stop. He identified himself as a police officer. The boat also had the word “police” on it and the officers were in uniform. The boat was stopped on the Canadian side of the border, near the border to the United States which runs through the waterway, at 12:05 p.m.
39Cst. Beaudry testified that the occupants were very evasive. One of the occupants stated they were looking for a fishing spot which made no sense to the officer as there was no fishing equipment in the boat and fishing season had not opened. In addition, the occupants wore city clothes, and they were not dressed for the weather. Cst. Beaudry noted the backpack, the one later identified as belonging to Mr. Mbunta, in the open boat.
40Mr. Mbunta said he was a friend of the boat operator, whereas Mr. Delormier, the boat operator, said he did not know him. As these parts of the story and others made no sense and there was also no visible safety equipment or life jackets on board this open watercraft, Cst. Beaudry terminated their trip pursuant to the Canada Shipping Act. Cst. Beaudry explained that if the vessel is unfit to operate or there are safety issues, they can halt the trip, tow and carry on further with their investigation at the shore. The officers towed the boat a short distance to the Blue Anchor restaurant which took approximately 15 minutes.
41Cst. Beaudry testified that they notified dispatch through the radio, calling for the assistance of other members of the Regional Task Force.
42For officer safety reasons, Cst. Beaudry was concerned about the contents of the backpack. He testified that they are cautious as in previous incidents, they had encountered firearms and a person convicted of murder.
43Cst. Beaudry testified that the other officers were pulling into the parking lot of the Blue Anchor restaurant as they arrived at the dock. He asked the occupants of the boat to identify themselves and asked about the purpose of their trip. Mr. Mbunta had claimed at the time of the initial stop that he had no identification. Cst. Beaudry then searched Mr. Mbunta’s backpack and found Mr. Mbunta’s Cameroonian passport. Cst. Beaudry was aware from intelligence briefings at that time that there was a concern about people from Africa trying to enter the United States and Canada illegally.
44Mr. Mbunta jumped out of the boat and ran approximately 20 feet away in the parking lot. Cst. Beaudry followed and arrested him under the Immigration and Refugee Protection Act, for entering Canada illegally. Mr. Mbunta claimed asylum. He advised him of his rights to counsel and caution and handcuffed him. He then turned him over to another officer at the waterfront. This restaurant by the water was closed and there were no vehicles in the parking lot except for police vehicles.
45Cst. Beaudry placed the Applicant under arrest for human smuggling and advised him of his rights. Cst. Beaudry testified that he was satisfied the Applicant understood. Cst. Beaudry stated that he had seen this type of scenario unfold many times with a local boat operator, and “out of towner” and “the refugee caught in the middle”.
46When he searched the Applicant incident to arrest, Cst. Beaudry located the accused’s cell phone which was open displaying a text message referring to “the African guy”.
47In cross-examination, Cst. Beaudry confirmed that human smuggling is a common problem in this area. He encountered no other boats on the water that day. He described the location of the apprehension. The Court notes that the border between Canada and the United States runs in the river. This is supported by the maps filed in evidence. The target vessel was in close proximity to the border at an unusual time of year to be on the water.
48Cst. Beaudry testified that as part of his enforcement duties, he has had occasion to tow boats to the Blue Anchor and not charge the individuals on board; on some occasions, the goal is to educated people on the need to carry safety equipment. He stated that if they encounter the same watercraft over and over without the necessary safety equipment on board, they will charge them.
49He conceded that the person he described as the Caucasian male and the Black male could have been seated at the front of the boat and the rear, instead of the center. There was however, only one seat on the boat and there was more than one ledge at different distances from the floor of the boat. Cst. Beaudry explained that he fishes and hunts and that there is always something in the hull of the boat. In this case, there was nothing but the three men, not dressed for the elements, without fishing equipment and the only item in the boat was a backpack. He conceded that Indigenous people may fish year-round but added that the other two people in the boat did not appear to him to be Indigenous.
50Cst. Beaudry testified that pursuant to section 99(1)(f) of the Customs Act, with the indicators he had, he is permitted to stop the vessel, ask for identification and search. He stated that he suspected that contraband was coming into the country. After the stop, the occupants contradicted each other – they were fishing, then not fishing; they knew each other and did not know each other. In addition, they were not dressed for the weather and there was no fishing equipment onboard. Given the safety concerns, the boat was towed to land to continue the investigation.
51Cst. Beaudry testified that there is one CBSA port of entry along the Cornwall shore. This is the Customs port north of the bridge between Cornwall Island and Cornwall. The other Customs “ports” at the marinas were closed given the time of year.
52As stated, Cst. Beaudry testified in a clear and straightforward manner. He was an experienced officer who had participated in many smuggling investigations on the river in this jurisdiction. He took careful notes. He readily admitted when he did not recall various details. I found his evidence very reliable.
Cst. Richard Houde
53Cst. Richard Houde was an officer with the Cornwall Police Service when he testified but was a member of the RCMP assigned to the Regional Task Force on the date of this incident.
54Cst. Houde testified that on the date of this incident, he was working with Cst. Beaudry on the marine unit enforcing the Customs Act as well as all marine-related statutes, and more particularly on this date, he was investigating smuggling activity near the U.S. and Canada border.
55Cst. Houde testified that on March 27, 2018, while on the police vessel, he observed a boat travelling on the south side of Cornwall Island near the Canada/U.S. border. He recalled that the boat was travelling towards the police boat which was near the Blue Anchor restaurant. He advised Cst. Beaudry of the sighting. Cst. Houde stated that because the boat was in the vicinity of the border and it was on the water at that time of year, they decided to intercept it.
56Cst. Houde testified that he had personally been involved in over 50 smuggling investigations and that they involved tobacco products, marijuana, cocaine and human smuggling. Cst. Houde recalled that they made their way to the boat and signaled for the operator to stop. He stated that the operator was cooperative and described the vessel as a dark Jon style aluminum boat which is not a bow rider. Cst. Houde recalled that they could see three occupants onboard the vessel, and that he explained to the occupants that they were conducting an inspection under the Customs Act.
57According to Cst. Houde, the accused identified himself as Devin Delormier. The Black male advised he did not have any identification. He recalled the Black male saying that his name was Peter. Cst. Houde repeated his request for identification to “Peter” as an individual coming from a border area should have identification. Cst. Houde testified that Peter said he was from Ottawa and that he was with his friends and out for a boat ride. He noted that neither the Applicant, nor Peter were dressed for the elements but that the driver was properly dressed. Cst. Houde testified that Peter then admitted that he was not a Canadian citizen, stating that he was in the process of getting his papers.
58Cst. Houde explained that there were no life jackets in the boat, that he asked the driver if he had life jackets and received a negative response. Given the absence of life jackets and the situation before them, the officers decided to tow the vessel to land to continue their investigation in a safer manner. Cst. Houde described the position of each of the occupants, recalling that Mr. Delormier was driving the boat, the Applicant was sitting at the bow and Peter was in the center of the boat.
59Cst. Houde testified that they tied their vessel to the subject boat and provided the occupants with life jackets, explaining why they were taking them to land.
60Cst. Houde testified in a clear and forthright manner. I found Cst. Houde to be a credible witness and I found his evidence reliable.
Peter Mbunta
61Peter Mbunta testified that he was originally from Cameroon and that he lived in the United States from 2002 to 2018. He had exhausted all but one appeal to remain in the U.S. and feared that he would be deported as people in his community were being arrested and returned to their country of origin.
62He made arrangements to be surreptitiously smuggled into Canada from the United States. He testified that the Applicant picked him up at the Super 8 in Massena and drove him to a location where he boarded an “engine canoe” and went “in the sea”.
63Mr. Mbunta provided evidence which was consistent with that of the officers who dealt with him that day. He also denied being treated inappropriately at the police station. He stated that he was made to feel comfortable, that the officers brought him food and asked their questions politely.
64Mr. Mbunta testified that he was not told, when he was at the motel where the Applicant picked him up, that he would be coming to Canada by boat. He recalled that the Applicant told him that Steve would be meeting them on the other side. He expected to pay Steve when he saw him in Canada.
65Mr. Mbunta testified in an honest and candid fashion. I have considered the fact that he knew he would be entering Canada illegally and that this implies a level of dishonesty. Mr. Mbunta was desperate not to be sent back to Cameroon and he took steps he knew or should have known to be dishonest to enter Canada. I have also considered that he is not being prosecuted for crossing the border illegally. I find that his testimony was not tailored to assist the prosecution in the present case and I have instructed myself on the scrutiny to be applied to witnesses in such circumstances. I found Mr. Mbunta to be a credible witness and I found his evidence reliable.
Devin Delormier
66Devin Delormier was the boat operator on the date of this incident.
67I will not review his evidence in any detail in this ruling. Mr. Delormier provided a version of events. He did not take notes following this incident and he was not a sophisticated witness. His evidence was internally inconsistent on some points and it was inconsistent with the more credible and reliable evidence of the officers. I did not find his evidence reliable on the issues relevant to this Application.
Retired Officer Steve McDougald
68Officer Steve McDougald retired from the OPP in 2018 after serving for 31 years. He also served on the marine unit of the RTF in this area for ten seasons.
69He testified that, on the date of this incident, he received a call requesting that he attend the Blue Anchor. He was advised that Cst. Beaudry and Cst. Houde had three males in custody on immigration matters and concluded that there had likely been a human smuggling event.
70He did not note the time of his arrival at the Blue Anchor but agreed in cross-examination that he could potentially have arrived on scene at 12:24 p.m. I conclude that he really did not know what time he arrived on scene. He did not recall where the parties were when he arrived and made no note of it.
71He took custody of the Applicant and Mr. Delormier when they were both placed in his police cruiser. He noted that the Applicant and Mr. Delormier were then taken out of his vehicle and placed in Cst. Lemaire and Cst. Chenier’s vehicles at 1:07 p.m.
72Retired Officer McDougald testified that there is virtually no boat traffic on the river at that time of year and that it would be unusual in his experience to see a vessel on the river in late March.
73Retired Officer McDougald did not make note of anyone receiving rights to counsel and he did not recall if anyone did. He did not recall anyone asking to speak to a lawyer. He explained that his role was basically to stand by and assist if needed.
74I did not find this officer’s evidence to be particularly informative. It was far less reliable than the evidence of other officers who took careful notes. Nothing ultimately turned on his evidence.
Cst. Randy McGillis
75Cst. Randy McGillis was a member of the Regional Task Force on March 27, 2018 when he was asked by his supervisor to attend the Blue Anchor restaurant to assist the marine unit. He estimated his arrival time at 12:35 p.m.
76Cst. McGillis was primarily responsible for Mr. Delormier. He also took possession of the Applicant’s Iphone which he provided to Cst. Labbé. He did not recall if the phone was locked or unlocked and he did not recall nor note how he came to possess the phone.
77Nothing turns on the evidence of this witness given the admissions made in this case. His evidence was not particularly helpful given the absence of details in his notes, although he made observations consistent with other witnesses which I accept.
Cst. Gabriel Lemaire
78Cst. Gabriel Lemaire was a member of the Regional Task Force on the date of this incident. Cst. Lemaire was asked to assist with prisoner transport. He arrived at the Blue Anchor restaurant at 12:55 p.m. Cst. Lemaire took custody of the Applicant from Cst. Beaudry.
79He testified that Cst. Beaudry told him to rearrest the Applicant for human smuggling, advise him again of his rights to counsel and caution, which he did while they were in the parking lot. When Cst. Lemaire advised the Applicant of his rights to counsel, the Applicant stated he understood. When asked by Cst. Lemaire whether he wished to speak with a lawyer, the Applicant stated “I guess I’m going to need one now”. According to Cst. Lemaire, the Applicant stated that he wished to speak with a Legal Aid lawyer. When Cst. Lemaire provided the Applicant with the police caution, the Applicant stated he understood.
80Cst. Lemaire testified that he left the scene with the Applicant at approximately 1:03 p.m., arriving at the RCMP detachment at 1:21 p.m. He recalled taking the Applicant into the designated room for fingerprinting and into the cell area. There was no discussion about the events of the day. Cst. Lemaire telephoned Legal Aid at 1:34. According to the officer, a Legal Aid lawyer called back at 1:44 p.m. The Applicant spoke with the lawyer from 1:45 to 1:47 p.m. After the call, the Applicant told Cst. Lemaire that he was satisfied with the conversation he had had.
81Cst. Lemaire provided his evidence in a clear and forthright manner. I found his evidence reliable.
Agent Andrew Sutherland
82Agent Andrew Sutherland was a Border Patrol Intelligence Agent with the U.S. Border Patrol Agency at the relevant time. He had a desk at the Regional Task Force office and worked in cooperation with Canadian partners.
83Agent Sutherland testified that he attended the Super 8 Motel in Massena New York and viewed a videotape which depicted the encounter between the Applicant and Mr. Mbunta on the morning of this incident. The video system overrode itself every 48 hours and it had been approximately 24 hours by the time he viewed the footage. He did not know how to make a copy of the footage and he feared erasing the data. The video was not seized and therefore not disclosed or available at this trial. He described what he observed on the footage during his testimony.
84I found Agent Sutherland to be an honest and straightforward witness. I found his evidence reliable. His evidence formed the basis of the Applicant’s argument that the charges should be stayed or evidence excluded on the basis of counsel’s “lost evidence” arguments. I will deal with this briefly below.
Arguments advanced by the Applicant
85I have reviewed Defence counsel’s Application including the detailed statement of the specific factual basis for the Application on which Ms. Warren relies, in addition to her oral arguments and caselaw. I have also reviewed the materials filed by the Crown and Mr. Thompson’s oral arguments. I have based my findings of my review of the totality of the evidence presented on the Application. Credibility and reliability finding may of course change after the presentation of defence evidence.
86In the Application filed in this case, counsel maintains that the Applicant’s Charter-protected rights as guaranteed by sections 7, 8, 9, 10(a), 10(b) and 11 were violated and that the Court should exercise its powers under section 24 of the Charter and exclude the evidence sought to be adduced against the Applicant. In the alternative, counsel seeks a remedy pursuant to section 24(1) given the multiple breaches as advanced.
87Counsel abandoned some of these arguments in submissions. For example, counsel has abandoned the counsel of choice argument.
88In the written material, counsel argued that the Applicant’s rights were violated within the meaning of sections 7 and 10(a) because the police laid the charges against him on May 15, 2019, over a year after they released him without charges and then duped him into returning to retrieve his personal belongings as a ruse in order to serve him with a Summons. The Applicant also argues that the pre-charge delay interfered with the Applicant’s ability to make full answer and defence.
89It was not clear to the Court whether this argument was abandoned. The Court will not deal with this issue in detail other than indicate that given the obvious complexity of the investigation following the date of the incident, the production orders, the arrest of the co-accused and the events involving him that followed, the pre-charge delay here was reasonable. In any event, on the evidence before me, I find that the allegations made by Applicant in the written materials have not been made out. There is no evidence of inappropriate conduct on behalf of the police as alleged on this issue. The Applicant has not met his onus on these points.
90I will now deal with the remaining arguments.
Detention and Rights to Counsel
91Defence counsel argues the Applicant was not immediately advised of the actual reason for detention when the vessel in which the Applicant was a passenger was first intercepted. Ms. Warren asks the Court to reject the evidence of Cst. Beaudry that the detention was based on safety concerns for the boat’s occupants and the insufficient safety equipment on board. She argues that upon being detained for a criminal investigation, the Applicant should have been notified immediately of that basis for detention and his rights to counsel. Failing this, defence counsel maintains the Applicant’s rights to not to be arbitrarily detained and to be given rights to counsel were breached from his initial detention onward.
92Context is important. The Applicant was a passenger in a vessel travelling across the St. Lawrence River in March when there is typically no boat traffic and the marinas are closed for the season. I find that both Officer Beaudry and Officer Houde, experienced in Customs and Immigration offences, had reasonable grounds to suspect that what they were observing on the river that day was an attempt to smuggle goods or persons into Canada illegally, bypassing Customs and Immigration inspection in Cornwall, north of the Seaway International Bridge.
93When the officers intercepted the vessel, Cst. Houde advised the occupants that they were conducting an investigation under the Customs Act and he asked for identification. The officers received highly suspicious and inconsistent information from the people onboard who were asked very basic Customs investigation questions. These individuals were not dressed for the elements and the story about being out fishing was entirely illogical given the absence of fishing equipment.
94Mr. Mbunta told the officers he had no identification. He later conceded that he was not a Canadian citizen but that he was in the process of getting his papers. Mr. Mbunta’s backpack was also in the boat and caught the attention of investigators.
95I find that the officers terminated the trip because there was no safety equipment onboard and that Mr. Delormier, the boat operator, confirmed the absence of safety equipment. As it was unsafe to continue the investigation in the middle of the river, the vessel was towed to a safer location to further the investigation.
96In R. v. Ceballo, [2021] O.J. No. 6306, the Ontario Court of Appeal reviewed issues of border detentions and searches. Paciocco, J.A., provided a comprehensive review of the law in this area. I have instructed myself on the principles set out in paragraphs 18 to 30 and the Court’s application of those principles. In my view, it is worth setting out paragraphs 18 to 21 at this stage, which read as follows:
18As Doherty J.A. explained in R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at paras. 30-35, given the importance of Canada’s effective control over its borders, no one entering Canada reasonably expects to be left alone by the state. As a result, routine inspection of persons entering Canada is not stigmatizing, and principles of fundamental justice permit greater interference with personal autonomy and privacy than would ordinarily be acceptable in a free and democratic society. The concept of detention is tailored to this reality.
19Accordingly, the restraint a traveller is under to either comply satisfactorily with a customs inspection or be denied entry into Canada does not constitute detention: R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.), at p. 207. Nor is it enough to trigger a detention that the traveller has been subjected to “secondary screening”: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1073. In the context of a traveller crossing the border, there are two alternative ways of identifying when the line has been crossed and a detention will occur.
20The first approach is settled and non-controversial. It “depends primarily on the intrusiveness of [the] state action”: Jones, at para. 32. Barnes J. described the “intrusiveness test” with clarity in R. v. Sinclair, 2016 ONSC 877, at para. 43, aff’d 2017 ONCA 287 (“Sinclair (ONCA)”), leave to appeal to SCC refused, 37625 (November 23, 2017), by observing that “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.”
21The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters, 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA), at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters, at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones, at paras. 20-21, 37; R. v. Sahota, 2009 ONSC 44280, at para. 6.
97In my view, the situation in this case is very similar to a referral to secondary inspection. In this instance, the individuals were the subject of a border investigation and were not detained (see R. v. Ceballo, para. 45).
98I find, therefore, that the Applicant’s section 10(b) rights were not triggered, similar to the circumstances of a secondary inspection.
99Defence counsel provided a great deal of jurisprudence on this issue, providing cases involving traffic stops in cases of impaired driving investigations. In my view the principles reviewed therein are not applicable to this investigation. The situation created by the border and this Customs Act investigation distinguishes this case from those provided by counsel.
100In R. v. Jacques, [1996] 3 S.C.R. 312, the Supreme Court of Canada discussed the concept of a border and defined it as broader than mere geographic boundaries. It is now well-established that vehicles can arrive in Canada for customs purposes and be subject to Customs Act investigations even though they are already well inside Canadian territory. Justice Gonthier, writing for the majority in R. v. Jacques provided the following guidance at para. 14 to 16:
14 The analysis of this case necessarily focuses on the Customs Act, specifically s. 99(1)(f), which authorizes the stop and search of a vehicle (or other conveyance) where an officer suspects on reasonable grounds that the vehicle is or might be involved in a breach of the Act. A breach of the Act includes an attempt, which is defined as an offence in s. 159. With respect to the words "might be" in s. 99(1)(f), I agree with my colleague that they refer to the possibility that an offence is taking place. Scanning s. 99(1)(f) reveals, therefore, that police are authorized to stop and search a vehicle once an officer has formed a reasonable suspicion that there is a possibility that the vehicle is being used to smuggle or to attempt to smuggle contrary to the Customs Act or regulations thereunder. Parliament has used language which requires the officer neither to believe on reasonable grounds that there is a possibility of smuggling nor to suspect on reasonable grounds that smuggling is, in fact, taking place. A reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.
15 That this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.
16 This legitimate interest of the state is reflected in the scheme and substance of the Customs Act, notably Parts II and VI concerning importation and enforcement respectively. The Act grants peace officers wide powers to search persons, vehicles and goods and provides for seizure and forfeiture. The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory.
101The area of this interception was very close to the border between Canada and the United States, which is located in the river between the Canadian and American shores, as depicted in the maps filed in evidence. This is the area travelled by those who smuggle goods and people, the area which required the establishment of a Regional Task Force with members specializing in these types of investigations.
102I am satisfied that Cst. Houde advised the occupants of the vessel that they were conducting an investigation under the Customs Act. The principles discussed in R. v. Jacques and R. v. Ceballo, apply in the circumstances of this case.
103Defence counsel argues the implementational component of the Applicant’s s. 10(b) rights were violated. With respect, the Court disagrees. I have reviewed counsel’s cases. In my view, this situation is distinguishable for a number of reasons. There were three people arrested in this case. I find that Cst. Beaudry immediately advised the Applicant of his rights to counsel despite the chaotic scene caused by Mr. Mbunta and that Cst. Lemaire did so as well once it was determined that he would transport the Applicant. The brief delay in the parking lot was the result of the need to get another officer to attend so that Mr. Delormier and the Applicant could be transported in separate vehicles. There were no unreasonable delays in dealing with the Applicant in the circumstances.
104The Applicant expressed a desire to speak with a Legal Aid lawyer and was taken to the police detachment to do that which was also reasonable here. There is no evidence that the Applicant asked to use his cell phone to telephone a lawyer. In any event, there was incriminating evidence on the Applicant’s cell phone which was visible on the screen. It would have been unreasonable for officers to give the accused access to his phone to call duty counsel at that location, as the evidence could have been destroyed.
105I find that Cst. Lemaire acted promptly and that he was not prioritizing other tasks in favour of facilitating the Applicant’s call to Duty counsel. He left the Blue Anchor in South Glengarry and drove to the RCMP Detachment in Cornwall. He telephoned Duty counsel promptly. He received a prompt call back and facilitated what was ultimately a two-minute conversation with counsel. The Applicant expressed satisfaction with the call.
106There were no breaches of the Applicant’s section 9 or 10 Charter rights.
Search Issue
107I find that when the vessel reached the Blue Anchor where officers were able to tie the boats together and secure them in the docking area, Mr. Mbunta was again asked to identify himself. His backpack was searched and his Cameroonian passport was located. Mr. Mbunta jumped out the boat and fled almost immediately. When he was apprehended a short distance away, he claimed asylum. At this point, Mr. Mbunta was arrested for entering Canada illegally and Mr. Delormier and the Applicant were arrested for human smuggling.
108The search of the Applicant which resulted in the seizure of his phone was incident to a lawful arrest. Defence counsel’s arguments regarding the search are closely tied to the arguments advanced regarding detention. In light of my findings, the s. 8 arguments are respectfully rejected.
Lost Evidence
109The Applicant next argues that the police allowed evidence to be lost in this case when they failed to secure video footage relevant to the case from the Super 8 Motel in Massena, in violation of his section 7 and 11 Charter rights.
110Ms. Warren argues, relying on the decision of the Supreme Court of Canada in R. v. O’Connor, [1995] 4 S.C.R. 411, that violations of an accused’s s. 7 and s. 11(d) Charter rights have been found to be concerned both with an individual’s right to make full answer and defence in addition to concerns for the integrity of the judicial system.
111I have examined the evidence of Agent Sutherland. While greater efforts could have been made to preserve the evidence given the timing of his discovery, I agree with the Crown that the time to determine the impact of the lost evidence is at the end of the trial.
112That being said, having reviewed counsel ’s arguments regarding the evidence on the video surveillance equipment and the totality of the evidence presented, I am of the view that the loss of this evidence did not impact the Applicant’s rights or his ability to make full answer and defence or diminish the integrity of the justice system.
113Upon reviewing all of the arguments raised, I find that the Applicant’s rights were not violated in this case.
114The Application is dismissed.
Released: November 24, 2022 The Honourable Madam Justice Diane M. Lahaie