Her Majesty the Queen v. Hudson [Indexed as: R. v. Hudson]

77 O.R. (3d) 561

[2005] O.J. No. 5464

Docket: C42765

Court of Appeal for Ontario,

Borins, Juriansz and LaForme JJ.A.

December 21, 2005

Charter of Rights and Freedoms -- Search or seizure -- Border crossing pocket search -- Accused refused entry into the United States resulting in automatic referral to secondary inspection by Canada Customs -- Search of accused's pockets revealing counterfeit money -- Trial judge concluding search violated s. 8 of Charter and excluding evidence -- Section 98 of Customs Act not applying -- Pocket search not violating accused's rights under s. 8 of Charter -- Crown appeal from acquittal allowed and new trial ordered -- Canadian Charter of Rights and Freedoms, s. 8 -- Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, s. 98.

The accused was charged with possession of counterfeit currency. He and his two-year-old son attempted to enter the United States. They were refused entry because he did not have a birth certificate for his son. U.S. Customs officers alerted their Canadian counterparts to their suspicion of a possible child abduction. At Canadian customs, the accused was directed to a secondary inspection, which is automatic where a person is refused entry into the United States. He was taken into an inspection room and ordered to empty his pockets, at which time five counterfeit $50 bills were revealed. The trial judge found that the pocket search violated the accused's rights under s. 8 of the Canadian Charter of Rights and Freedoms. She excluded the evidence of the counterfeit bills under s. 24(2) of the Charter. The Crown called no evidence at trial and the accused was acquitted. The Crown appealed.

Held, the appeal should be allowed.

The accused argued that his exit from Canada was technical only (as he immediately re-entered Canada following refusal of entry into the United States) and that therefore the lowered expectations of privacy applicable at border crossings were not triggered. He also argued that a pocket search came within the second category searches outlined in R. v. Simmons, engaging Charter protections. Despite the fact that the accused was not allowed to enter the United States, his exit from Canada was not merely technical. He did, in fact, leave the boundaries of Canada. The jurisprudence relating to the application of s. 8 of the Charter in the context of border crossings applied. The importance of sovereign security is not dependent upon the length of time a person is away before re-entering the country. Travellers seeking to cross national borders fully expect to be subject to a screening process, and this search was a routine secondary inspection, part of the general screening process. A pocket search is a non-invasive, routine screening procedure which raises no Charter issues. It does not trigger the application of s. 98 of the Customs Act. The trial judge was wrong in finding that this routine pocket search was in the second category of searches in Simmons which refers to pat down or strip searches conducted in private rooms. The accused's s. 8 Charter rights were not violated.

APPEAL by the Crown from an acquittal entered by Tucker J., [2004] O.J. No. 5556 (S.C.J.) on a charge of possession of counterfeit currency.

R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 30 O.A.C. 241, 55 D.L.R. (4th) 673, 89 N.R. 1, 38 C.R.R. 252, 45 C.C.C. (3d) 296, 18 C.E.R. 227, 66 C.R. (3d) 297, apld [page562] Other cases referred to Dehghani v. Canada (Minister of Employment and Immigration), 1993 128 (SCC), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, 101 D.L.R. (4th) 654, 150 N.R. 241, 14 C.R.R. (2d) 1, 20 C.R. (4th) 34; R. v. Mann, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 187 Man. R. (2d) 1, 241 D.L.R. (4th) 214, 330 W.A.C. 1, [2004] 11 W.W.R. 601, 122 C.R.R. (2d) 189, 185 C.C.C. (3d) 308, 2004 SCC 52, 21 C.R. (6th) 1; R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 171 D.L.R. (4th) 1, 237 N.R. 157, 61 C.R.R. (2d) 244, 133 C.C.C. (3d) 129, 24 C.R. (5th) 97 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 10(b), 24(2) Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, s. 98

Tina Yuen, for appellant. Mark Halfyard, for respondent.

The judgment of the court was delivered by

[1] LAFORME J.A.:-- This appeal concerns the constitutionality of border searches of persons attempting to enter Canada. Specifically, it asks whether pocket searches engage s. 8 of the Canadian Charter of Rights and Freedoms.

Overview

[2] The respondent, together with his two-year-old son, had tried to cross into the United States at the Peace Bridge in Fort Erie. He was refused entry because he did not have a birth certificate for his child. Upon his return to Canada, he was referred to a secondary inspection and told to empty his pockets, at which time five counterfeit $50 bills were revealed. The respondent was arrested and charged with possession of counterfeit currency.

[3] At the outset of the trial, the respondent brought a Charter application alleging breaches of ss. 7, 8 and 10(b). The trial judge ruled that the pocket search was an unreasonable search and seizure under s. 8 and excluded the counterfeit bills pursuant to s. 24(2). As a result, the court did not need to address ss. 7 and 10(b). The Crown called no evidence at trial and the respondent was acquitted.

[4] The Crown appeals from that Charter ruling and, if successful, requests that a new trial be ordered. For the reasons that follow, I am of the opinion that the search did not amount to more than the routine questioning that every traveller undergoes at a [page563] border crossing into Canada. In the circumstances of this case, no Charter rights were breached. I would allow the appeal and order a new trial.

Background

[5] In May 2003, the respondent, his two-year-old son, and two friends of the respondent attempted to take a trip to Buffalo, New York. The respondent had court ordered access to his son and the necessary prior written permission from the child's mother to take the child into the United States.

[6] Upon attempting to enter the United States, the respondent was denied entry because he was not in possession of the child's birth certificate. The United States Customs officers ordered the respondent to proceed back into Canada. They also contacted their Canadian counterparts, indicating their suspicion of a possible child abduction.

[7] At Canadian customs, the respondent was asked standard questions at the primary inspection and then directed to a secondary inspection. Such a direction is automatic each time a person is refused entry into the United States.

[8] At the secondary inspection, everyone was ordered out of the vehicle, while a customs officer conducted a search of the vehicle for contraband or documentation. After this search, given the customs officials' suspicions about possible child abduction, the respondent and his party were directed to the inside of the inspection station.

[9] While the respondent and his son waited, his two friends were taken into separate inspection rooms where they were each questioned and searched. The respondent and his son were then taken into an inspection room. He was ordered to empty his pockets. He complied and removed money, credit cards, receipts, two cell phones and a pager from his pockets. He was then directed to turn his pockets inside out and, upon complying, loose change and five crumpled $50 bills fell onto the table.

[10] The customs officer examined the crumpled bills, believed them to be counterfeit, and took them to her Superintendent. Upon further examination of the bills, the customs officers believed the bills to be counterfeit. The respondent was arrested for possession of counterfeit money, cautioned and given his rights to counsel.

Positions of the Parties

[11] After reviewing the facts and the positions of counsel, the trial judge expressed concern that, [page564]

[w]ithout any cause, reasonable or otherwise, for suspicion of contraband or any other illegal acts, other than a possible abduction, the accused is held, taken to a private room and told to empty his pockets.

[12] The trial judge found that this procedure amounted to a warrantless search, which she viewed as being prima facie unreasonable. She also found it to be a "search of the person", which pursuant to s. 98 of the Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, requires reasonable grounds and the availability of review by a senior officer. The trial judge concluded that, because there were no grounds to justify the pocket search, the respondent's right to be free from unreasonable search and seizure had been breached. She ordered that the evidence of the counterfeit bills was to be excluded from trial.

[13] In general terms, the appellant argues that the trial judge erred in reaching this conclusion by failing to apply the necessary contextual framework to her analysis, namely, border crossings. In failing to do so, the appellant says, the trial judge made the following errors:

1. She failed to recognize that a pocket search is a non- intrusive, routine screening procedure for the legitimate purpose of sovereign self-protection.

2. Her failure in this regard led her to erroneously conclude that a pocket search triggers the application of s. 98 of the Customs Act. That is, the existence of reasonable grounds and the availability of review by a superior officer.

[14] Alternatively, if the trial judge was correct in finding a breach of s. 8 of the Charter, the appellant submits that the trial judge erred in excluding the evidence pursuant to s. 24(2).

[15] The respondent argues that the investigation by customs officers regarding possible child abduction, together with the respondent's detention and the demand that he empty his pockets, elevated the search beyond the routine. He submits that the trial judge's analysis of the border search categories was correct and discloses no error.

Analysis

[16] This appeal raises two separate, but related, issues. First, it is necessary to reference the applicability and operation of the border crossing jurisprudence. Second, if this body of law applies, the search must be categorized within the approach set out in R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 45 C.C.C. (3d) 296. [page565]

(a) The border crossing jurisprudence

[17] Chief Justice Dickson observed in Simmons that searches that would be unreasonable in other circumstances may be reasonable when conducted at the border. This is due, he said, to the recognized right of a sovereign nation to protect itself by preventing the entry of undesirable persons and goods into its territory. Consequently, while state authorities may not arbitrarily stop and search a citizen walking down the street, they can stop travellers crossing an international boundary. This is so because it is reasonably necessary to determine whether they and any goods that they are carrying are entitled to enter the country (p. 528 S.C.R., p. 320 C.C.C.).

[18] As a first argument, the respondent submits that the purpose of a lower expectation of privacy in border crossings does not apply to the circumstances of this case. Because he was not allowed into the United States and was immediately returned to Canada, he submits that he never truly left Canada; his only exit from Canada was a technical one. Thus, he says the underlying purpose of protecting Canada's sovereignty, by preventing undesirable persons or goods from entering the country, was not at play.

[19] This submission has no merit. The respondent's exit from Canada was not merely technical. He in fact left the boundaries of Canada. It therefore became necessary for him to re-enter through a border crossing port. At re-entry, all of the purposes connected to sovereign security related to a person who seeks to cross the border were very much alive. The importance of sovereign security is not dependent upon the amount of time a person is away before re-entering the country; rather, it is triggered when any person seeks to cross the border. To consider time away to be a relevant factor would create an undue, and wholly unnecessary, burden upon the state officials who perform this crucially important function.

[20] It is to be noted that s. 98 of the Customs Act provides that "any person who has arrived in Canada" and "any person who is about to leave Canada", are subject to a search in certain circumstances. Clearly, time away was never considered to be a relevant factor in border security, nor is there any good reason to believe it should be considered.

[21] At the outset of her analysis, the trial judge acknowledged that border crossings are treated differently than the usual everyday scenario, due to the function of customs authorities, which she stated [at para. 45] is "to secure and screen people and goods for contraventions of Customs and Immigration laws". The trial judge then went on to say: [page566]

I do not agree with the Crown's position that there is no reasonable expectation of privacy in an individual who attempts to cross the border. I do agree that there is a different expectation than in non-Customs situations. All person[s] expect to be asked questions about their citizenship, purpose of crossing, timing of their exit from the country and goods brought into the country. I do not agree that a person expects that a personal search will be conducted or carried out at Customs, without some reasonable degree of suspicion or any suspicion being raised by us or our actions, notwithstanding the unique situation of border searches.

(Emphasis added)

[22] With respect, the trial judge's conclusion is erroneous. Authorities have repeatedly noted that travellers seeking to cross national boundaries fully expect to be subject to a screening process. Furthermore, this process will typically require the production of identification, travel documentation, and involve a search process.

[23] The respondent, in this case, was familiar with customs inspections in connection with crossing the border into the United States. He expected there would be additional security concerns by customs officials regarding his child, and the authorities did what he expected them to do in the circumstances. This included expecting that, upon returning to Canada, the authorities would attempt to verify that he was entitled to be with the child by taking a closer look at him, not just letting him go straight through primary inspection. And, he agreed that he expected the authorities might search his luggage, request further paperwork and potentially check the contents of his pockets.

[24] Having concluded that Simmons applies, it remains to set out how it should operate. In Simmons, Dickson C.J.C., at p. 517 S.C.R., p. 312 C.C.C., prefaced his Charter analysis by highlighting the distinction between three categories of border searches that have been recognized in the jurisprudence:

1. There is the routine questioning that every traveller undergoes at a port of entry. This search often involves a search of baggage, and a pat or frisk of outer clothing. No stigma is attached and no constitutional issues are raised.

2. There is the strip or skin search conducted in a private room, after a secondary examination and with the permission of a customs officer in authority.

3. There is the most highly intrusive category of search -- sometimes referred to as the body cavity search -- in which customs officers have recourse to medical doctors, X-rays, emetics, and to other highly invasive means.

[25] Dickson C.J.C. emphasized that each of the different categories of search identified raised different constitutional issues. [page567] That is, the more intrusive the search, the more the requisite justification and the constitutional protection.

[26] R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 133 C.C.C. (3d) 129 provides an additional, important principle to be kept in mind when analyzing border searches. In that case, Iacobucci J. at para. 43 held that: "decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada's borders".

[27] Thus, the respondent's reliance on authorities such as R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308 to distinguish the degree of difference in intrusiveness of searches such as "frisk" and "pocket" are of little assistance. Cases like Mann involve police searches of individuals in the context of the privacy rights of these persons going about their business on the streets.

[28] The trial judge acknowledged the three categories of border searches described in Simmons, but held that they represented a continuum, rather than a discrete set of classes. She concluded that:

It is clear that the [pocket search in the case at bar] rests between [the first] two categories. The issue for this court to decide is whether, on the facts of the case, where the separate facts fall on that continuum and what constitutional issues arise as a result.

[29] The appellant says that, in doing so, the trial judge proceeded on the basis that the pocket search lay fully beyond the ambit of routine procedures contained in the first category, such that some form of reasonable justification for the search was required. It is argued, however, that this conclusion is contrary to the principles first set out in Simmons and confirmed by subsequent jurisprudence, which places pocket searches within the first category of search, not engaging Charter concerns.

[30] I agree with the appellant. The three categories of search identified in Simmons are discrete categories and not a continuum. The cases decided subsequent to Simmons were resolved by first examining the central question of classifying the search within a category identified in Simmons: see Monney, supra. As noted, this approach is necessary because it determines the level of constitutional protection engaged.

(b) The category of the search

[31] Given the decision of the trial judge on this issue, and the arguments of counsel, this appeal is only concerned with the first two categories of border searches identified in Simmons. [page568]

First category search

[32] From the record and the evidence presented on the voir dire at trial, the first category of border search is applied to every person who enters a border crossing. This search is typically performed at traffic booths. Customs officers at these booths check approaching vehicles and speak to the occupants. Luggage inspections and further examinations are not conducted at the primary inspection booth, because they would delay traffic.

[33] If the customs officer is satisfied that there is no reason for further questioning, the vehicle and its occupants are permitted to enter into Canada. Otherwise, they are referred to a secondary inspection.

[34] When a referral to secondary inspection is made, a referral slip is given to the driver of the vehicle for presentation to the secondary inspection officer. Referral to secondary inspection is both automatic and mandatory for persons who have been refused entry into the United States from Canada.

[35] It is important to note that secondary inspection, in this context, does not remove it from the first category of search set out in Simmons. Iacobucci J. in Dehghani v. Canada (Minister of Employment and Immigration), 1993 128 (SCC), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, at p. 1073 S.C.R. had this to say about a secondary inspection in the context of the Immigration Act, R.S.C. 1985, c. I-2:

[I]t would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada.

That conclusion is equally applicable in the circumstances in this case.

Second category search

[36] The second category of border search differs significantly from the first. It involves a strip or skin search conducted in a private room. This category of search occurs after a secondary examination and with the permission of a senior customs officer in authority. This category of search allows for routine questioning; [page569] searches of luggage; frisk or pat searches; and the requirement to remove, in private, such articles of clothing as will permit investigation of suspicious bodily bulges. This category of search operates pursuant to s. 98 of the Customs Act [See Note 1 at the end of the document].

[37] Officers of the same sex conduct a second category search in a private search room: s. 98(4) of the Customs Act. Even in these circumstances, the search is not so invasive of an individual's bodily integrity as to be considered unreasonable under s. 8 of the Charter: Simmons, p. 529 S.C.R., p. 321 C.C.C.

[38] In this case, contrary to the findings of the trial judge, the search did not fall between categories one and two; rather, the search was clearly a category one search. In the context of a border search, asking the respondent to turn his pockets inside out was no more invasive than a search of baggage, or a purse, or a pat down or frisk of outer clothing. At no time was the respondent strip-searched or patted down. Moreover, the border search in this case had only proceeded to a secondary inspection, which remains a routine part of the general screening process. This, in my view, is a complete answer to the appeal.

Conclusion

[39] I conclude, therefore, that the trial judge erred by failing to recognize that a pocket search is a non-invasive routine screening procedure within the legitimate purpose of border crossings, which does not raise Charter issues. In doing so, she wrongly decided that s. 98 of the Customs Act applied. Finally, given my conclusion that there was no breach of s. 8 of the Charter, it follows that the trial judge erred in excluding the evidence pursuant to s. 24(2) of the Charter.

Disposition

[40] For all of the foregoing reasons, I would allow the appeal, set aside the order excluding evidence and the judgment of acquittal, and order a new trial.

Appeal allowed.

APPENDIX "A"

Customs Act, R.S.C. 1985 (2nd supp.), c. 1, s. 1

98(1) Search of the person -- An officer may search[page570]

(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.

Notes

Note 1: For ease of reference, s. 98 of the Customs Act is reproduced in Appendix "A".