ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll J., mccartney r.s.j. and swinton j.
B E T W E E N:
PAUL SMITH
Appellant
(Plaintiff)
- and -
CANADA CUSTOMS AND REVENUE AGENCY, THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY and EDNA SOIFER
Respondents
(Defendants)
Miguna Miguna, for the Appellant (Plaintiff)
P. Christopher Parke, for the Respondents (Defendants)
HEARD at Toronto: February 15, 2006
O’DRISCOLL J.: (Orally)
1The appellant/plaintiff appeals to this Court from the judgment of Klowak J., dated August 18, 2004, dismissing his claim against the defendants for damages for an alleged false arrest at Pearson International Airport on May 29, 2000.
2The appellant/plaintiff seeks leave to appeal the costs of trial fixed by Klowak J. on October 4, 2004, in the amount of $39,745.20, payable by the appellant/plaintiff to the respondents/defendants.
THE BACKGROUND
3On May 29, 2000, the appellant, a black man, returned to Toronto from a short trip to Jamaica. When he arrived at Pearson International Airport in Toronto, he completed his Customs Declaration card, passed through the primary inspection point and retrieved his luggage from the baggage carousel. At the second inspection point, he was stopped and directed to a separate area. There, the respondent/defendant, Ms. Edna Soifer, a customs official, searched his bags and asked him questions. She then arrested him for smuggling narcotics. He was handcuffed, taken to the search room, strip-searched by male customs officials and asked to provide stool and urine samples. No drugs were found and he was not formally charged.
4The appellant/plaintiff brought this civil action against the respondents/defendants based on wrongful detention and wrongful search, arguing that the respondents’ actions were founded on racism and racial profiling.
5The trial judge, in her reasons, which were given after reserving judgment following a ten (10) day trial, said at paragraph [55]:
“[55] During the questioning, Ms. Soifer derived the following information:
Mr. Smith bought a first class return ticket to Jamaica the morning of travel.
He paid $1,241.00 for the ticket in cash.
He returned one or two days early.
His income the year before was about $18,000.00 which she believed he said was from gambling, and in the current year he had opened his own business which was not yet earning money. He paid $300.00 per month child support and his girlfriend bought their food and paid the rent.
He had already made several trips to Jamaica that year and on one of the three previous trips had taken a one day side trip to Cuba.
He had also made a three or four day trip to England the same year to purchase cricket match tickets.
He had given inconsistent answers with respect to who paid for the ticket, first saying he had, then that his girlfriend had.
He had not eaten on the flight but had had three Baileys and an apple juice.
His abdomen appeared distended.
During the questioning he began to sway and lost eye contact with her.
He did not respond when she asked him why he travelled to Jamaica so frequently.
56Based on this information, and on her knowledge, training and experience that Jamaica is a high-risk country for contraband narcotics, she formed the belief that Mr. Smith had narcotics on his person, and specifically believed that he had ingested them. She testified the above items of information were indicators of drug smuggling both in her experience and in her training with Customs Canada.”
6The trial judge also found:
“[79] In the end, this case must be decided on its own particular facts.
80In this particular case, Ms. Soifer honestly believed she had reasonable grounds to believe Mr. Smith had narcotics on or in him based on the indicators listed, taken cumulatively.
81That belief is also objectively reasonable. It serves no purpose to take each indicator in isolation as though the others did not exist. They must be taken cumulatively, and in that regard the indicators reasonably support the reasonableness of Ms. Soifer’s belief and the reasonableness of the grounds for detention.
82Since the grounds for the detention were both subjectively and objectively reasonable, the plaintiff has not proved on the balance of probabilities the detention was racially motivated. The circumstances relating to the detention neither correspond to the phenomenon of racial profiling nor do they provide a basis for the Court to infer that the customs officers Ms. Soifer is lying about why she singled out Mr. Smith for the search.
83With respect to wrongful search, as it was reasonable to believe that Mr. Smith had or had ingested narcotics, it was reasonable to conduct the search incident to arrest for the purpose of discovering evidence related to the reason for the arrest, in order to preserve it and prevent its disposal.”
7In summary, the trial judge found no racial profiling of the plaintiff/appellant. Indeed, the term “racial profiling” is not to be found in the Statement of Claim.
8The trial judge found that there was no false arrest because Ms. Soifer had reasonable grounds to make the arrest.
9In her reasons, the trial judge found:
“[5] I find that he (Mr. Smith) was given a reasonable opportunity to contact counsel but did not exercise reasonable diligence in exercising his right to do so. I find he was more concerned about his girlfriend who was out in the airport area waiting for him and wanted to get the search over with and leave.”
10The trial judge did not deal in any detail with the Charter arguments. As pleaded, the plaintiff claims a violation of sections 7 and 15 of the Charter because of the denial of a right to counsel.
THE DETENTION AND THE SEARCH
11Given the trial judge’s finding that there was no denial of the right to counsel, and that there were reasonable grounds for the detention and the search and that the plaintiff had not proved that the detention was based on racism or racial profiling, there was no basis to find a breach of the Charter rights pleaded by the plaintiff.
12In Housen v. Nikolaisen, (2002), 2002 SCC 33, 211 DL.R. (4th) 577, Iacobucci and Major JJ., for the majority, said:
“[1] A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion.”
“[3] The role of the appellate court was aptly defined in Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R. (2d) 199 (C.A.), at p.204, where it was stated:
The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities.
4While the theory has acceptance, consistency in its application is missing. The foundation of the principle is as sound today as 100 years ago, it is premised on the notion that finality is an important aim of litigation. There is no suggestion that the appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.”
13In our view, the trial judge gave careful consideration to all of the evidence and she stated why she preferred some of the evidence over conflicting evidence given by other witnesses.
14Counsel for the appellant made allegations of bias on the part of the trial judge. I use the phrase “allegations of bias” advisedly because it was not simply allegations of apprehension of bias, but there were direct allegations of bias. We find that there was no bias or reasonable apprehension of bias on the part of the trial judge.
15The trial judge managed the trial, made her rulings and attempted to keep the trial moving.
16In our view, there is no basis in law to interfere with the decision of the trial judge and the appeal is, therefore, dismissed.
17As for the matter of costs fixed by trial judge, we would grant leave to appeal costs, but also dismiss that appeal. I note that there were no oral submissions made to us with regard to the issue of costs.
18With the concurrence of my colleagues, I have endorsed the back of the Revised Appeal Book and Compendium, Volume One, as follows: “This appeal is dismissed in all its aspects for the oral/recorded reasons given this date. We have heard submissions as to costs. Costs are fixed at $5,000.00, payable by the appellant/plaintiff to the respondents/defendants. At the conclusion of the litigation of this lawsuit, counsel for the appellant/plaintiff is to fulfill his
undertaking by handing back to counsel for the respondents the documents attached to Ms. Soifer’s affidavit, sworn July 11, 2005, and any copies that have been made.”
O’DRISCOLL J.
MCCARTNEY R.S. J.
SWINTON J.
Date of Reasons for Judgment: February 15, 2006
Date of Release: March 10, 2006
COURT FILE NO.: 634/04
DATE: 20060215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
O’driscoll J., mccartney r.s.j. and swinton j.
B E T W E E N:
PAUL SMITH
Appellant
(Plaintiff)
- and -
CANADA CUSTOMS AND REVENUE AGENCY, THE MINISTER OF CANADA CUSTOMS AND REVENUE AGENCY and EDNA SOIFER
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
O’DRISCOLL J.
Date of Reasons for Judgment: February 15, 2006
Date of Release: March 10, 2006