COURT OF APPEAL FOR ONTARIO
DATE: 20000628
DOCKET: C29926
COURT OF APPEAL FOR ONTARIO
ABELLA, LASKIN and ROSENBERG JJ.A.
B E T W E E N : )
) Wendy Oughtred
HER MAJESTY THE QUEEN ) for the appellant
)
Respondent )
)
- and - ) James W. Leising and
) Jordan S. Solway
ROHAN GRANSTON ) for the respondent
)
Appellant )
)
Heard: June 10, 1999
)
On appeal from the conviction imposed by Simmons J. dated March
20, 1998.
ABELLA J.A.:
[1] Rohan Granston was found guilty of importing a narcotic
contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c.
N-1, and sentenced to a 6-year term of imprisonment. He received
credit for 21 months pre-trial custody. After a voir dire, the
trial judge found that Mr. Granston’s rights under ss. 10(b) and
8 of the Charter of Rights and Freedoms had been violated, but
refused to exclude the evidence under s. 24(2).
[2] At the outset of the trial, Mr. Granston’s counsel advised
the court that if she was not successful in excluding the
evidence on the voir dire, her client would change his plea from
not guilty to guilty. Following the ruling dismissing the
application to exclude evidence, counsel for Mr. Granston did in
fact advise the court that “as originally indicated, my client
will be changing his plea.” He was accordingly rearraigned and
entered a plea of guilty to the charge.
[3] The court was advised of the following facts which were
confirmed as being “substantially correct” by Mr. Granston’s
counsel:
On April 14th, 1996, the accused arrived at Toronto
International Airport on Royal Air Flight 175 from
Venezuela. At that time, the accused was roved by
Customs official and sent to secondary … to the
secondary section of the airport for a secondary
examination. During the search of the accused or
following the search of the baggage, the accused
was detained and brought into an examination room
where he was searched and three packages containing
2,500 grams of Cocaine were found strapped or taped
to his body. The accused was arrested, given his
rights and then he was duly processed and charged.
His rights were given at the time of the detention,
Your Honour. And the approximate street value of the
cocaine is $375,000.
[4] In her submissions on sentencing, counsel for the appellant
urged the court to consider the guilty plea as a mitigating fact.
The trial judge gave effect to this submission, characterizing
the sentence as the “lowest sentence I can properly impose” and
concluding:
As noted, Mr. Granston pleaded guilty to this offence.
Although this was done after a voir dire and evidentiary
ruling, I consider that Mr. Granston remained entitled
to the mitigation arising from a plea of guilty, as
there were serious issues to be determined on the voir
dire.
[5] This is an appeal by Mr. Granston both of the ruling by the
trial judge on the voir dire and his resulting conviction.
[6] Mr. Granston also asks that his guilty plea be struck. The
Crown argued that the plea was deliberate and voluntary, and that
there was no evidence before this court suggesting that the
guilty plea should be set aside to prevent a miscarriage of
justice. Since I have concluded that the trial judge did not
err in admitting the evidence, I need not decide whether the plea
should be struck. It should be noted, however, that a
conditional guilty plea is unknown in law: see R. v. Fegan
(1993), 1993 8607 (ON CA), 80 C.C.C. (3d) 356 (Ont. C.A.).
BACKGROUND
[7] After a one-week trip to Venezuela, the appellant and his
female companion arrived at Canada Customs at Pearson
International Airport on April 14, 1996. The first Customs
inspector, who asked them several questions and checked their
travel documents, was satisfied with the appellant’s answers and
marked their Customs cards “free to go”. After this initial
point, however, the appellant and his companion were referred to
a secondary inspector because their cards were marked with a blue
slash by Inspector Volk, a member of the roving flexible response
team. The blue slash indicated that the bearer of the card
should be referred to another examination. The referral for a
secondary examination was made at about 11:25 p.m.
[8] Members of the flexible response team are not assigned to
any particular position, but are responsible for stopping and
questioning passengers randomly to check for contraventions of
the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) or any other Act.
Inspector Volk had been a Customs officer for six years and a
member of the flexible response team for about four months. His
evidence was that passengers were stopped and questioned about
any discrepancies between their declaration cards and what they
were actually bringing into the country. He stated that some
flights would be targeted either because of a record of
significant infractions or because the flight came from a known
drug source country. When Inspector Volk was asked how many drug
source countries there were, he answered: “In today’s day and
age, every country is a drug source country.” On the evening of
April 14, 1996, the Royal Airlines flight from Venezuela on which
the appellant was travelling, was targeted.
[9] Inspector Volk was standing in the hallway, stopping people
and interviewing them. He forwarded the appellant for a
secondary examination so that his declaration could be checked by
way of a luggage search.
[10] Inspector Volk stated that during the examination of the
appellant’s luggage, even though the appellant appeared relaxed,
he was sweating quite heavily. The appellant told Inspector Volk
that he lived in Whitby with his parents and worked in downtown
Toronto. It was during this luggage examination that Inspector
Volk learned that the appellant had paid for both his and his
companion’s airline tickets in cash. There was no evidence of
contraband in the appellant’s luggage. The interview with the
appellant and the luggage search took approximately one half
hour.
[11] After the baggage search and the interview, Inspector Volk
consulted a superior, Superintendent Hogan, and asked for
permission to conduct a personal search. Inspector Volk told
Superintendent Hogan what his grounds were and he was given
permission to search the appellant. The grounds that he gave
Superintendent Hogan were the following: the appellant was
returning from Venezuela, a drug source country; the previous
December the appellant had made a trip to Jamaica, another drug
source country; the appellant had very little luggage; the
appellant had purchased his and his companion’s airline tickets
with cash very shortly before the trip; the appellant had a low
paying job as an apprentice chef; and the appellant was sweating
heavily, although he appeared to be relaxed.
[12] The appellant was detained. Inspector Volk read him his
rights to counsel and cautioned him at 10 minutes after midnight.
When the appellant said that he wished to speak to a lawyer, a
call was placed to his lawyer and a message left on the lawyer’s
answering machine. At 22 minutes after midnight, Inspector Volk
called duty counsel and left a message on a voicemail system.
Inspector Volk then explained the situation to the appellant and
said he asked him to read a poster size version of s. 98 of the
Customs Act, which was posted on the wall. This was a standard
practice, according to Inspector Volk.
[13] Section 98 of the Customs Act states:
- (1) An officer may search
(a) any person who has arrived in Canada,
within a reasonable time after his arrival
in Canada,
(b) any person who is about to leave Canada,
at any time prior to his departure, or
(c) any person who has had access to an
area designated for use by persons about to
leave Canada and who leaves the area but does
not leave Canada, within a reasonable time
after he leaves the area, if the officer
suspects on reasonable grounds that the
person has secreted on or about his person
anything in respect of which this Act has
been or might be contravened, anything that
would afford evidence with respect to a
contravention of this Act or any goods the
importation or exportation of which is
prohibited, controlled or regulated under
this or any other Act of Parliament.
(2) An officer who is about to search a
person under this section shall, on the
request of that person, forthwith take him
before the senior officer at the place where
the search is to take place.
(3) A senior officer before whom a
person is taken pursuant to subsection (2)
shall, if he sees no reasonable grounds for
the search, discharge the person or, if he
believes otherwise, direct that the person be
searched.
(4) No person shall be searched under
this section by a person who is not of the
same sex, and if there is no officer of the
same sex at the place at which the search is
to take place, an officer may authorize any
suitable person of the same sex to perform
the search. [Emphasis added.]
[14] The appellant was asked to read the poster at 28 minutes
after midnight. According to Inspector Volk, at 12:30 a.m., the
appellant said he wanted the search to begin. It was Inspector
Volk’s impression that the appellant understood and agreed to the
search. The search did in fact begin at 12:31 a.m. and at 12:34
a.m. packets of cocaine were discovered taped to the appellant’s
legs. The quantity was 2500 grams, with an estimated street
value of $375,000.00.
[15] Inspector Volk, in cross-examination, acknowledged that
there was nothing to prevent him from delaying the search until
the lawyer called back. Legal Aid duty counsel did in fact
return the call at 1:00 a.m. and, at that time, the appellant had
a private conversation with a lawyer. The R.C.M.P., who were
called by Inspector Volk at 1:10 a.m., arrived at 4:50 a.m.
[16] Inspector Downer was another member of the flexible response
team. He was asked to assist in the personal search of the
appellant. Inspector Downer entered the search room at 12:30
a.m., at which time Inspector Volk placed a call to Legal Aid
duty counsel. He confirmed that Inspector Volk explained to the
appellant that it could take anywhere from five minutes to three
hours for duty counsel to call back, and that it was up to the
appellant whether to wait.
[17] Inspector Downer’s notes, however, indicated that at 12:34
a.m. the appellant was arrested and cautioned by Inspector Volk,
but that the appellant was willing to wait for Legal Aid to call
back. He confirmed that his notes indicated that the search had
already commenced at 12:41 a.m. He also stated that the
appellant was very co-operative, relaxed and passive. He gave no
evidence about the appellant sweating.
[18] At some point, while he was in the room with the appellant,
Inspector Downer advised Inspector Volk that a personal search of
the appellant’s female travelling companion had been carried out
at 11:45 p.m. with negative results.
[19] The appellant testified on the voir dire. He said that his
luggage consisted of two handbags and a weekend travel bag. He
confirmed that he and his companion passed through the first
customs inspection and had already picked up their luggage when
Inspector Volk tapped him on the shoulder and asked him to go to
a secondary inspection. He answered Inspector Volk’s questions
and told him that he was a Jamaican citizen but had landed
immigrant status in Canada. He told Inspector Volk that he made
trips to Jamaica because he had had an accident there in 1989 and
had legal matters to attend to. He advised Inspector Volk that
he lived in Whitby with his parents, was an apprentice chef, and
earned about $2,400 per month. He provided Inspector Volk with
one of his pay stubs for verification. He said that he was
sweating because he was warm.
[20] The appellant further testified that Inspector Volk, after
searching both his and his companion’s luggage, told the
appellant that he was not satisfied with the search and that he
believed that the appellant was carrying narcotics.
[21] According to the appellant’s evidence, Inspector Volk then
took his and his companion’s documents and went away for about 15
minutes. Upon his return, he took the appellant to a search room
and had the companion taken to another search room. Inside the
room, Inspector Volk read the appellant his rights and the
appellant said that he wished to speak to a lawyer. Calls were
placed both to a lawyer he knew and to Duty Counsel. The
appellant stated that another male then came into the room with a
camera and both officers then said “okay, we have to begin the
search now.”
[22] The appellant testified that he was under the impression
that he had exhausted his right to counsel by leaving messages
with his lawyer and Legal Aid, and that he had no choice but to
submit to the search. He denied that there was a poster on the
wall setting out s. 98 of the Customs Act, that he was asked to
read anything on the wall, or that he was advised of his right to
a review of the decision to search him. He never told the
customs officers that he did not wish to wait for a lawyer before
proceeding with the search.
[23] On cross-examination by the Crown, the appellant
acknowledged that he had a criminal record consisting of a
conviction for theft in 1992 and a conviction for failure to
comply with a recognizance in 1992. He had been arrested on four
to six occasions between 1988 and 1993.
[24] The main issues on the voir dire were whether the accused’s
rights under ss. 10(b) and 8 of the Charter were violated and, if
they were, whether the breaches mandated the exclusion of the
evidence under s. 24(2) of the Charter. The trial judge set out
the following four issues in her voir dire ruling:
(1) what was the nature of any Charter
violation;
(2) if the strip search was conducted
in breach of the accused’s Charter rights,
does contraband found strapped to an
accused’s body amount to conscriptive
evidence, as defined in R. v. Stillman,
1997 384 (SCC), [1997] 1 S.C.R. 607;
(3) if the contraband amounts to
conscriptive evidence was it discoverable;
(4) if the contraband is not conscriptive
evidence, or, if it is conscriptive evidence
but was discoverable, does the seriousness
of the breach warrant exclusion of the
evidence, and what would be the effect of
exclusion of the evidence on the repute of
the administration of justice.
[25] On the voir dire, the appellant argued that there was a
breach of s. 10(b) since, despite his request for an opportunity
to speak to counsel, the customs officers proceeded with the
search prior to the accused having had that opportunity. He
alleged a breach of s. 8 of the Charter on the grounds that the
officers did not have reasonable grounds to suspect that he had
contraband on his person. He also argued that his ability to
access the review procedures set out in s. 98 were pre-empted by
the s. 10(b) Charter violation, rendering the search
unreasonable.
[26] The trial judge concluded that breaches of s. 10(b) and s. 8
had occurred for the following reasons:
I am satisfied that the accused has demonstrated,
on a balance of probabilities, that his rights
under section 10(b) of the Charter were violated,
and that this violation rendered the strip search
which was conducted unreasonable. There is no
dispute that the accused requested the opportunity
to speak to counsel upon being advised of his
right to counsel, and that he was not afforded
that opportunity until after the search was
completed.
I reject the testimony of the customs
officers to the effect that the accused
explicitly consented to proceeding with the
search prior to counsel calling back. The
search officer could not state whether the
accused volunteered the information or was
asked. He contradicted himself concerning
when this would have occurred. The assist
officer’s testimony concerning the meaning
and significance of his notes pertaining to
this issue was completely incredible. On the
whole, I find the evidence of the officers
unreliable on this point.
The accused testified that he was told
simply they had to proceed with the search
and that he did not say he did not have to
wait. While I have some reservations about
some of his evidence, in the particular
circumstances, this specific evidence has the
ring of truth from this accused who had
requested the opportunity to speak to
counsel. Based on the authority of R. v.
Debot (1990), 1989 13 (SCC), 52 C.C.C. (3d) 193 (S.C.C.) at
pages 198 to 199, the customs officers were
obliged to hold off in exercising any right
to search until such time as the accused had
been given a reasonable opportunity to
consult counsel where he requested the
opportunity, unless he specifically waived
the right. On a balance of probabilities, I
find no such waiver occurred.
I am, however, satisfied that the
accused was referred by the customs officer
to the poster on the wall in the search room
containing section 98 of the Customs Act. I
am further satisfied, however, on a balance
of probabilities that the accused did not
appreciate the right to a review contained
therein. The accused’s evidence was to the
effect that he did not recall being referred
to the poster on the wall; however, both
customs officers confirmed the accused saying
that he understood section 98, and the search
officer was able to give evidence of the time
the accused was referred to the poster and
the time the accused said he understood it.
Although there was confusion in their
evidence as to whether he read it out loud, I
accept the evidence of the customs officers
that the accused was referred to the poster
and said he understood.
The accused also testified that he
thought he had exhausted any rights that he
had and that he would have acted differently
had he known of a right to appeal. Again, I
found such testimony reasonable and
compelling from an accused who had requested
the opportunity to exercise his right to
counsel. I do not find it difficult to
accept that a lay person not afforded an
opportunity to speak to counsel would not
appreciate the meaning of the review
procedure provided in section 98. Indeed
Officer Volk did not appear, in his evidence,
to fully understand it. The wording of the
section is not simple and the review
procedure does not appear until subsection
two.
Given my finding that the accused did
not appreciate the review procedure available
to him and that he was denied an opportunity
to speak to counsel prior to the search
proceeding, I find the strip search that was
conducted unreasonable in the circumstances,
again relying on R. v. Debot, supra.
[27] She then turned to the issue of whether the evidence was
conscriptive or non- conscriptive. Citing Stillman, at pp. 652-
653, she stated:
The admission of evidence which falls into the “non-
conscriptive” category will, as stated in Collins,
rarely operate to render the trial unfair. If the
evidence has been classified as non-conscriptive,
the court should move on to consider the second and
third Collins factors, namely, the seriousness of the
Charter violation and the effect of exclusion on the
repute of the administration of justice.
[28] As the Supreme Court stated in Stillman, what distinguished
conscriptive from non-conscriptive evidence was whether the
accused was “compelled to make a statement or provide a bodily
substance in violation of the Charter.” Where the accused, as a
result of the breach of the Charter, is compelled or conscripted
to provide a bodily substance to the state, the evidence will be
of a conscriptive nature, despite the fact that it might also be
“real evidence.”
[29] The trial judge ultimately reached the conclusion that the
evidence in this case was non-conscriptive based primarily on the
Supreme Court of Canada’s decision in R. v. Simmons (1988), 45
C.C.C. (3d) 296 (S.C.C.).
[30] To summarize, the trial judge found that the officers had
reasonable grounds to suspect under s. 98, and that the search
was therefore authorized by the Customs Act. However, the
appellant’s right to counsel was infringed. This breach affected
the validity of the search: R. v. Simmons. Thus, the trial
judge found that ss. 8 and 10(b) of the Charter were infringed.
[31] The trial judge then found that the evidence was non-
conscriptive, for the following reasons:
Taking account of the comments of the court in R. v.
Stillman, supra, concerning the fundamental importance
of the innate dignity of the individual and the need
to recognize the importance of the body in relation to
searches carried out in the course of police
investigations, I consider that requiring a person to
remove their clothing and permit portions of their body
which would not otherwise be viewed to be viewed
approaches the definition of use of the body as set out
in R. v. Stillman, supra. On the other hand, however,
the items strapped to the body were not part of the body
itself in this case. Without determining the issue of
whether a strip search would amount to use of the body
in other circumstances and taking account of the
reduced privacy expectations at border crossings, I do
not consider the evidence of viewing packages taped to an
accused’s calves during the course of a strip search
conducted at an international border and evidence of
seizure of the packages amounts to conscriptive evidence
in accordance with the principles enunciated in R. v.
Stillman, supra, as set out above.
[32] She also held that even if it was conscriptive, since the
officers had reasonable grounds to search under s. 98, the
evidence was discoverable and therefore its admission would not
affect the fairness of the trial. After considering the other
Collins factors, the trial judge held that the evidence should
not be excluded under s. 24(2) of the Charter.
ANALYSIS
[33] The principal issue in this case is whether the trial judge
erred in finding that the officers had reasonable grounds to
suspect that the appellant was in possession of contraband. If
the officers did not have the requisite reasonable grounds, this
would materially undermine the trial judge’s conclusion as to the
seriousness of the breach.
[34] It would appear that the officer based his decision that he
had grounds to search under s. 98 on the following factors:
i) the accused was travelling from a drug
source country;
ii) he had made a previous recent trip
to a drug source country in December 1995;
iii) he had what the officer assumed was
a low paying job as an apprentice chef;
iv) he was visibly sweating while
answering questions;
v) he paid for the tickets for himself
and his travelling companion with cash;
vi) he purchased the tickets only three
days prior to departure;
[35] As indicated, the trial judge concluded that “the grounds
relied on by the search officer” were “sufficient in combination
to meet, albeit on a minimal level, the threshold requirement on
reasonableness prescribed by s. 98 of the Customs Act.”
[36] The statutory threshold of suspicion based on reasonable
grounds must be based on something more than a mere suspicion and
something less than a belief based on reasonable and probable
grounds: R. v. Simmons, supra; R. v. Monney (1999), 133 C.C.C.
(3d) 129 (S.C.C.); R. v. Oluwa (1996), 1996 8347 (BC CA), 107 C.C.C. (3d) 236
(B.C.C.A.); R. v. Gladstone (1985), 1985 109 (BC CA), 22 C.C.C. (3d) 151
(B.C.C.A.). It is important that care be taken to ensure that
persons are not gratuitously detained on mere suspicion or for
arbitrary reasons at this country’s borders. There must be a
constellation of objectively discernible facts that give the
officer reasonable grounds to suspect: R. v. Jacques, [1996] 3
S.C.R. 312 at 326.
[37] A problematic aspect of this case is the officer’s testimony
that “In today’s day and age, every country is a drug source
country.” While perhaps true, it seems to me that courts have
understood that the reference to source countries was based on a
risk assessment, an assessment based on the increased likelihood
that some travellers returning from regions where certain plants
are either grown or refined, will more likely be in possession of
drugs. In view of the officer’s evidence that every country is a
potential source country, it seems to me that the first two
factors he relies on – that the accused was travelling from a
drug source country and had visited another drug source country a
few months earlier, are entitled to reduced weight in the
assessment of whether he had the requisite reasonable grounds.
[38] In my view, however, the trial judge’s conclusion that the
s. 98 threshold was met, was nonetheless supported by the factors
relied on by the officer: see R. v. Jacques, supra; R. v.
Monney, supra and R. v. Simmons, supra. She recognized that the
factors, in combination, only minimally satisfied the statutory
requirement that any suspicion be based on reasonable grounds,
but she was entitled to reach the conclusion that the threshold
had been met based on the evidence.
[39] The next issue is whether, in view of this conclusion as to
the reasonableness of the search, the trial judge properly found
that the evidence should be admitted. I agree with the trial
judge that this is not conscriptive evidence. See R. v. Simmons;
R. v. Monney; R. v. Stillman; R. v. Lewis (1998), 38 O.R. (3d)
540 (C.A.). In any event, the evidence was discoverable.
Accordingly, its admission would not affect the fairness of the
trial.
[40] The conclusion that the evidence would not affect the
fairness of the trial required the trial judge to undertake the
next step in Collins, namely, to assess the seriousness of the
breach. The trial judge found that the breach was in fact
serious:
The fact that the evidence could have been discovered
without a Charter breach, had the customs officer
simply afforded the accused an opportunity to speak
to counsel before proceeding with the search; that
there was no urgency in proceeding with the search;
and the requirement that officers hold off in
proceeding under section 98 of the Customs Act until
the accused had a reasonable opportunity to consult
with counsel as enunciated in Debot, renders the
breach serious.
[41] Having concluded that the breach was serious, however, she
found that the seriousness was mitigated by the fact that the
appellant was given an opportunity to read s. 98 of the Customs
Act on the poster in the search room. Her conclusion, however,
appears equivocal. She finds that the officers did not act in
good faith, yet considers their conduct neither wilful nor
flagrant:
… In this respect, while the customs officer’s conduct
cannot be said to be in good faith, (see R. v. Feeney
(1997), 1997 342 (SCC), 115 C.CC. (3d) 129 (S.C.C.) at page 167), I do
not consider his actions to have been wilful or
flagrant. Given that the admission of the evidence
would not impact on the fairness of the trial, and
that the seriousness of the Charter violation is
somewhat mitigated, I find that there would be greater
harm to the repute of the administration of justice by
the exclusion of the evidence than by its admission.
Here, I also take account of the very serious offence
with which the accused is charged.
[42] The appellant submits that the trial judge erred in not
finding that the Charter breaches were sufficiently serious to
warrant excluding the evidence. The Crown, on the other hand
submits that since the trial judge accepted Inspector Volk’s
evidence that the appellant had been directed to read the s. 98
poster, and since there was a finding that the actions of the
customs inspectors were neither wilful nor flagrant, the ruling
on the voir dire should not be disturbed. The seriousness of the
breach, argued the Crown, was also attenuated by the reduced
expectation of privacy which exists at a country’s borders
(Simmons, at p. 320).
[43] The right to request a review before a custom’s search is a
significant one. In Simmons, the Supreme Court relied heavily on
the right to an independent review of the decision to search in
upholding the constitutionality of ss. 143 and 144, the
predecessor legislation to s. 98, of the Customs Act. While the
review process is different under s. 98, being available through
a senior customs officer rather than a Justice of the Peace,
there is nonetheless a clear right to seek a review.
[44] In my view, it is essential that this right be clearly
understood by someone detained at the border. People arriving in
Canada may well have a reduced expectation of privacy at the
country’s borders, but this expectation does not include an
expectation that a degrading search will be carried out in
violation of statutorily and constitutionally guaranteed rights.
As Wilson J. stated in Simmons, at p. 329:
The level of protection afforded to the citizen under
s. 8 of the Charter must be geared to the innocent as
well as to the guilty.
[45] The trial judge’s finding about the appellant’s requisite
comprehension is not very clear. She found on the one hand that
the appellant did not and could not be expected to understand the
meaning of s. 98 of the Customs Act, yet she accepted the
evidence of the customs officers that the appellant said at the
time that he read and understood the poster. Her specific
finding was, as set out previously, as follows:
The accused’s evidence was to the effect that he did
not recall being referred to the poster on the wall;
however, both customs officers confirmed the accused
saying that he understood section 98, and the search
officer was able to give evidence of the time the
accused was referred to the poster and the time the
accused said he understood it. Although there was
confusion in their evidence as to whether he read it
out loud, I accept the evidence of the customs officer
that the accused was referred to the poster and said
he understood.
[46] This finding resulted in her conclusion that the behaviour
of the customs officers was neither flagrant nor deliberate.
[47] The fact that the s. 10(b) breach may have pre-empted the
appellant’s ability to access the review procedures set out in s.
98 of the Customs Act and that there was no evidence of exigent
circumstances requiring the customs officers to take any step
toward proceeding to a strip search before the appellant had
exercised his right to counsel, renders this, as the trial judge
said, a serious breach.
[48] However, it has been well established that an appellate
court should not interfere with a trial judge’s conclusion
regarding the exclusion of evidence pursuant to s. 24(2) of the
Charter unless there is a clear error of law or an unreasonable
finding of fact: R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607; R. v.
Belnavis, 1997 320 (SCC), [1997] 3 S.C.R. 341; R. v. Mellenthin, [1992] 3 S.C.R.
- Although there is some ambiguity in the trial judge’s
analysis about the seriousness of the s. 10(b) breach, there is
nonetheless evidence to support her conclusion that the
seriousness of the breach was mitigated by the appellant being
referred to the poster and telling the customs officers he
understood it before the search was undertaken.
[49] In the circumstances, her conclusion that the evidence
should not be excluded because the seriousness of the offence and
public confidence outweigh the seriousness of the breach, is
entitled to deference.
[50] Accordingly, I would dismiss the appeal.
Released: “June 28, 2000 RSA”
“R.S. Abella J.A.”
“I agree John Laskin J.A.”
“I agree M. Rosenberg J.A.”