Her Majesty the Queen v. Jones, 2006 ONCA 28086

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

81 O.R. (3d) 481

Court of Appeal for Ontario,

McMurtry C.J.O., Doherty and Cronk JJ.A.

August 18, 2006

Charter of Rights and Freedoms -- Fundamental justice -- Self-incrimination -- Accused seeking to exclude statements made to Customs officials at border during routine questioning and search -- No adversarial relationship existing at that point -- No stigma attaching to routine questioning and searches at border -- Travellers having expectation that they will be subjected to routine and random questioning and searches at border -- Mere fact that person has attracted suspicion of Customs official, giving rise to subsequent routine questioning and search, not giving that person any enhanced constitutional protection against self-incrimination -- Principle against self-incrimination not demanding exclusion in subsequent proceedings of statements made during routine questioning and searches at border -- Canadian Charter of Rights and Freedoms, s. 7.

Criminal law -- Evidence -- After the fact conduct (consciousness of guilt) -- Accused arriving on flight identified by Customs as posing high risk for illegal drug and alcohol importation -- During routine questioning accused not making eye contact and being unable to name travel agent -- During secondary inspection accused lying about employment, where lived, and marital status -- Lies could be circumstantial evidence of accused's knowledge that drugs in luggage if trier of fact concluding that accused knowingly made false statements and that lies permitted inference regarding his state of mind during offence -- Open to jury to find that accused's lying to present himself as unlike profile of drug courier -- That inference permitting further inference that accused knew drugs in his luggage -- Appeal from conviction for importing cocaine dismissed.

Criminal law -- Sentencing -- Drug offences -- Accused importing 849 grams of cocaine into Canada -- Sentence of 40 months' imprisonment within appropriate range of sentence and within upper end of range proposed by accused's counsel -- Appeal from sentence dismissed.

The accused was charged with importing cocaine. He arrived in Toronto on a flight from Jamaica which Customs officials characterized as "high risk for drugs and alcohol". Members of the Flexible Response Team were on duty to meet the flight and question passengers. A member of the team questioned the accused at random after he passed through the primary Customs inspection point. When he did not make eye contact with her and did not know the name of his travel agency, she referred him for secondary inspection. He told the inspector a number of lies about his place of employment, his place of residence and his marital status. While examining one of the accused's suitcases, the inspector smelled acetone, a smell which, based on her prior experiences, she associated with liquid cocaine. She decided to x-ray the suitcases. Cocaine was subsequently discovered hidden in the handle and tubing of one of the suitcases. At trial, the accused's knowledge of the presence of the cocaine was the only issue in dispute. In support of its position that the accused knew that the cocaine was in his luggage, the Crown relied on the false statements which the accused made to the Customs inspector, arguing that he made the statements in an effort to present himself as [page482] a person who did not fit the profile of a drug courier and that the statements constituted circumstantial evidence that, taken with the rest of the evidence, could support the inference that the accused knew that there was cocaine hidden in his luggage. The accused challenged the admissibility of his statements to the inspector, arguing that the admission of the statements, which were made under statutory compulsion, would violate his rights under s. 7 of the Canadian Charter of Rights and Freedoms. The trial judge rejected the accused's argument. The statements were admitted and the accused was convicted. He was sentenced to 40 months' imprisonment. He appealed the conviction and the sentence.

Held, the appeal should be dismissed.

The trial judge accepted the Customs inspector's evidence that all of the statements which the accused was seeking to exclude were made before the point where she smelled acetone and took the suitcases to be x-rayed. Accordingly, the accused was not the target of any criminal investigation when he made the statements, but was instead the subject of the kind of routine scrutiny that all travellers to Canada can expect. He was not detained and he had no constitutional right to remain silent. The questioning did not trespass on any reasonable expectation of privacy he had at the border. Travellers entering Canada reasonably expect that Customs authorities will routinely and randomly search their luggage. The premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. Canada's effective control over its borders is a societal interest of sufficient importance to be characterized as a principle of fundamental justice. No stigma attached to routine questioning and searches at the border. Where state action does not become more intrusive than routine questioning and searches, the relationship between the state and the individual cannot be characterized as either coercive or adversarial. The absence of coercion or an adversarial relationship suggests that the principle against self- incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border. The mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, does not give that individual any enhanced constitutional protection against self-incrimination.

The nature of the lies told by the accused and the circumstances in which he told those lies allowed for the reasonable inference that he lied in an attempt to present himself as a responsible, law-abiding citizen to divert suspicion from himself and avoid a search of his luggage. That inference was potentially probative on the question of whether the accused knew that there was cocaine hidden in the luggage.

The accused imported 849 grams of cocaine. The sentence imposed was within the appropriate range of sentences for importers of significant amounts of cocaine.

APPEAL from the conviction entered by Justice Dawson, [2004] O.J. No. 1741 (S.C.J.), for importing cocaine and from the sentence imposed on August 9, 2004.

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. D'Amour, 2002 45015 (ON CA), [2002] O.J. No. 3103, 96 C.R.R. (2d) 315, 166 C.C.C. (3d) 477, 4 C.R. (6th) 275 (C.A.); R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J. No. 94, 129 D.L.R. (4th) 129, 188 N.R. 248, 32 C.R.R. (2d) 234, 102 C.C.C. (3d) 144, 43 C.R. (4th) 343; R. v. Harripersad, 2001 28338 (ON SC), [2001] O.J. No. 3639, 87 C.R.R. (2d) 118, 51 W.C.B. (2d) 212 (S.C.J.); R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 47 B.C.L.R. (2d) 1, 110 N.R. 1, [1990] 5 W.W.R. 1, 49 C.R.R. 114, 57 C.C.C. (3d) 1, 77 C.R. (3d) 145; [page483] R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 89 N.R. 61, [1989] 1 W.W.R. 354, 38 C.R.R. 290, 45 C.C.C. (3d) 46, 18 C.E.R. 258, 66 C.R. (3d) 336; R. v. Jarvis, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, 219 D.L.R. (4th) 233, 295 N.R. 201, [2003] 3 W.W.R. 197, 101 C.R.R. (2d) 35, 169 C.C.C. (3d) 1, 2002 DTC 7547, 2002 SCC 73, 6 C.R. (6th) 23, 8 Alta. L.R. (4th) 1; R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, [1996] O.J. No. 376, 104 C.C.C. (3d) 548 (C.A.); 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; R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 100 C.R.R. (2d) 164, 170 C.C.C. (3d) 365, 7 C.R. (6th) 205 (C.A.); R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 67 O.R. (2d) 63, 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; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 174 D.L.R. (4th) 111, 240 N.R. 1, 63 C.R.R. (2d) 1, 135 C.C.C. (3d) 257, 42 M.V.R. (3d) 161, 24 C.R. (5th) 201 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 10(b), 11(c), 13, 24(1) Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), ss. 11 [as am.], 153 [as am.], 160 [as am.]

Paul Calarco, for appellant. Fergus O'Donnell and Lisa Csele, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: -- I

[1] The appellant was convicted of importing cocaine into Canada by a judge sitting without a jury. He received a sentence of 40 months. The appellant appealed his conviction and sentence. At the conclusion of oral argument, the court dismissed the appeals with reasons to follow. II

[2] Customs authorities found a large quantity of cocaine secreted in the handle and tubing of the appellant's suitcase when he attempted to enter Canada at Pearson International Airport on his return from Kingston, Jamaica. Knowledge was the only issue in dispute at trial. The appellant testified that he did not know there was cocaine hidden in his suitcase. In support of its position that the appellant knew that the cocaine was in his luggage, the Crown relied on statements made by him to Customs officials before the luggage was x-rayed and the cocaine discovered. The Crown maintained that the appellant told several [page484] lies to the Customs officials in an effort to present himself as a person who did not fit the profile of a drug courier. These lies concerned the appellant's place of employment, his place of residence and his marital status. The Crown argued that these false statements constituted circumstantial evidence that, taken with the rest of the evidence, could support the inference that the appellant knew that there was cocaine hidden in his luggage.

[3] The defence challenged the admissibility of the statements at trial. Initially, the defence took the position that the statements had not been shown to be voluntary. Subsequently, the defence also argued that the admission of the statements, which were made under statutory compulsion, would violate the appellant's rights under s. 7 of the Canadian Charter of Rights and Freedoms. The defence submitted that the statements should be excluded under s. 24(1) of the Charter. The trial judge found against the appellant on both arguments. The appellant did not challenge the voluntariness of the statements on appeal, but did renew the s. 7 argument.

[4] The trial judge also rejected the defence argument that the statements, even if admissible, could not provide evidence from which the court could infer that the appellant knew that there was cocaine hidden in his luggage. The trial judge used the false statements as circumstantial evidence of the appellant's knowledge that there was cocaine hidden in the suitcase. The appellant renewed this argument on appeal. I will address it before turning to the s. 7 claim. III

The Evidentiary Value of the Appellant's False Statements to the Customs Authorities

[5] The appellant argues that false statements made by an accused can support an inference of guilt only if certain preconditions are met. He submits that absent those preconditions, a statement found to be untrue can only affect an accused's credibility (if he testifies) and cannot provide affirmative evidence of an accused's guilt. The appellant relies on case law that addresses the circumstances in which lies told by an accused can constitute after-the-fact conduct providing circumstantial evidence of an accused's guilt: e.g. see R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263, [2002] O.J. No. 4410, 170 C.C.C. (3d) 365 (C.A.).

[6] The appellant's submission misconstrues O'Connor and similar cases. The potential evidentiary value of false statements made by an accused turns on the generally applicable principles of relevance and materiality, and not on any rules unique to false [page485] statements. Statements by an accused to the authorities that are found by the trier of fact to be untrue may or may not provide circumstantial evidence of the accused's state of mind. Those statements may provide evidence of the accused's state of mind if, on the totality of the evidence:

-- the trier of fact can reasonably infer that the accused knowingly made false statements; and

-- the trier of fact can reasonably infer the existence of the relevant culpable state of mind from the making of deliberately false statements.

[7] In this case, the falsity of the statements allegedly made by the appellant to the Customs officials was not in dispute. The defence did not contend that the statements attributed to the appellant were true, but argued that he had not made those statements. The trial judge believed the Customs officials. Having determined that the appellant did make the false statements, it followed in the circumstances of this case that he knowingly lied to the Customs authorities about his employment, marital status and place of residence. The question of what inference, if any, should be drawn from the making of these knowingly false statements was for the trial judge. An appellate court will interfere with the inference-drawing process only if the appellant can demonstrate that the inference-drawing process was unreasonable or based on some material misapprehension of the evidence.

[8] The nature of the lies told by the appellant and the circumstances in which those lies were told, allowed for the reasonable inference that the appellant lied to the Customs officials in an attempt to present himself as a responsible, law-abiding citizen to "divert suspicion from himself", and avoid a search of his luggage. That inference was potentially probative on the question of whether the appellant knew that there was cocaine hidden in the luggage. IV

The Self-Incrimination Claim

(a) The appellant's argument

[9] The appellant's statements to the Customs officials that the trial judge found to be false were made under statutory compulsion. Section 11 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) reads in part: [page486]

. . . Every person arriving in Canada shall, . . . enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament.

[10] Anyone who provides false or deceptive statements when questioned pursuant to s. 11 is subject to prosecution and significant penalties, including incarceration: Customs Act, supra, ss. 153, 160.

[11] The appellant does not challenge the constitutionality of the provisions of the Customs Act that obliged him to answer the questions put to him by the Customs officials. However, he contends that the subsequent use against him in criminal proceedings of those compelled statements infringed his liberty in a manner that is inconsistent with the principles of fundamental justice and contrary to s. 7 of the Charter. The appellant contends that it is a principle of fundamental justice that persons have the ability to freely decide whether to speak to the authorities and, if compelled to do so by statute, to have those statements excluded from evidence in any subsequent prosecution. The appellant submits that where a person is statutorily required to answer questions and is subject to penalties for refusing to provide those answers, s. 24(1) of the Charter requires exclusion of those statements in a subsequent criminal proceeding against that person.

(b) Section 7 and the principle against self-incrimination

[12] Section 7 provides:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[13] It is firmly established that the principles of fundamental justice enshrined in s. 7 include an overarching principle against self-incrimination that can extend beyond the specific manifestations of that principle found in s. 11(c) and s. 13 of the Charter: see R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J. No. 94, 102 C.C.C. (3d) 144, at pp. 166-68 S.C.R., pp. 153-54 C.C.C.; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, [1999] S.C.J. No. 28, 135 C.C.C. (3d) 257, at pp. 438-42 S.C.R., pp. 276-78 C.C.C.; R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, [2002] S.C.J. No. 76, 169 C.C.C. (3d) 1 at pp. 793-95 S.C.R., pp. 31-32 C.C.C.; R. v. D'Amour, 2002 45015 (ON CA), [2002] O.J. No. 3103, 166 C.C.C. (3d) 477 (C.A.), at p. 489 C.C.C.

[14] It is equally well-established that the principle against self-incrimination does not foreclose use by the Crown in subsequent [page487] proceedings of all statutorily compelled statements. In Fitzpatrick, at p. 169 S.C.R., p. 155 C.C.C., LaForest J. said:

I do not find it helpful to start, . . . with a broad and abstract statement about the absolute requirements of the principles of fundamental justice, or in particular of the principle against self-incrimination . . . We should not expect that the manifestations of the principle against self- incrimination will have any "pre-defined scope". Instead, we must begin "on the ground", as it were, with a concrete and contextual analysis of the circumstances raised before us, and the ways in which concerns about self-incrimination may or may not be legitimate. In this way, we will be able to determine whether or not the principle against self- incrimination is actually engaged in the present case.

(Emphasis added)

[15] In White, at pp. 438-39 S.C.R., pp. 275-76 C.C.C., Iacobucci J. reiterated the point made by LaForest J. in Fitzpatrick:

That the principle against self-incrimination does have the status of an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually sensitive . . . The principle against self- incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue.

(Emphasis added)

[16] In Jarvis, at pp. 794-96 S.C.R., pp. 32-33 C.C.C., the court again emphasized that the introduction in a criminal proceeding of statutorily compelled information did not necessarily violate the self-incrimination right in s. 7 and that a s. 7 self-incrimination claim required a balancing of the competing interests in the specific context of each case. The "on the ground" assessment of the s. 7 self-incrimination claim must begin with the specific facts of this case.

(c) The relevant facts

[17] The appellant arrived at Pearson International Airport shortly after 1:00 a.m. on a flight from Montego Bay, Jamaica. Customs officials characterized the flight as "high risk for drugs and alcohol" and had members of the Flexible Response Team on duty to meet the flight and question the passengers.

[18] The appellant passed through the primary Customs inspection point after being asked a few routine questions. His answers to those questions are not in issue. The appellant proceeded to the baggage claim area where he met Inspector Murphy, a member of the Flexible Response Team. She was approaching passengers arriving on the flight from Montego Bay on a random basis and asking them questions. [page488]

[19] Inspector Murphy testified that she had no specific reason for questioning the appellant. She asked him routine questions. The appellant did not make eye contact with Inspector Murphy and did not know the name of his travel agency. Inspector Murphy decided to refer the appellant for secondary inspection. The appellant picked up his luggage and proceeded to the secondary inspection area where he met Inspector Harrison.

[20] Inspector Harrison asked the appellant several questions. He told her that he had been to Jamaica three times in the last year to visit his ailing mother. Information retrieved from the computer terminal by Inspector Harrison indicated that the appellant had travelled outside of Canada four times within the last year. In response to Inspector Harrison's questions, the appellant said that he worked at a computer company and lived with his wife and three children. In fact, he was unemployed, separated from his wife, and did not live with his family. The appellant identified his suitcases and said that he had purchased them at a local mall in Toronto. As Inspector Harrison was questioning the appellant, she asked him to empty his suitcases one at a time.

[21] Inspector Harrison testified that the questions she asked the appellant were routine as was the request that he empty the suitcases. She said that the questions were designed to help her detect any possible contraband or immigration issues. She said that she asked the questions so that she could learn the person's "story" to decide whether she should make further inquiries of that person, refer the person to immigration or consider whether to conduct a personal search of the person. The questions she asked were in part designed to get information that could assist in spotting drug smugglers.

[22] While Inspector Harrison was examining the smaller of the appellant's two suitcases, she smelled acetone or paint. Based on her prior experiences, she associated the smell with liquid cocaine. She also knew, again from her prior experiences, that suitcases like those used by the appellant could be adapted for smuggling drugs. She decided to x-ray the suitcases. The x-rays revealed inconsistencies in the pull-out handles and associated tubing. Customs authorities cut one of the handles and discovered a whitish powder that turned out to be cocaine. The appellant was arrested, given his Charter rights, and held for the police.

[23] In the course of his careful reasons, the trial judge made the following findings of fact [at para. 9]:

Inspector Harrison testified that until the suitcases were x-rayed, she had no reasonable grounds, although those were not her exact words, to believe Mr. Jones was importing narcotics. I find that while she had suspicions [page489] about Mr. Jones due to his three trips to Jamaica, it was the smelling of acetone immediately before the suitcases were x- rayed that jumped up her level of concern. The x-rays provided the first real indication of the presence of a narcotic. According to Inspector Harrison, whose evidence I accept on this point, all of the utterances of the accused at issue on this voir dire were made before the point where she smelled acetone and took the suitcases to be x-rayed.

(Emphasis added)

[24] The appellant has not convinced me that there is any reason for this court to depart from the trial judge's factual findings. On those findings, the appellant was not the target of any criminal investigation when he made the statements, but was instead the subject of the kind of routine scrutiny that all travellers to Canada can expect.

(d) The s. 7 analysis

[25] I turn from the factual background to the legal framework in which the appellant's s. 7 claim must be assessed. White, supra, at p. 436 S.C.R., p. 273 C.C.C., identifies three stages in the s. 7 analysis:

-- was the appellant subject to a real or imminent deprivation of his life, liberty or security of the person?

-- what is the relevant principle of fundamental justice? and

-- if there has been a deprivation of life, liberty or security of the person, does that deprivation accord with the relevant principle of fundamental justice?

[26] The first two stages of the inquiry raise no problems in this case. The appellant's liberty interest was clearly at stake in the criminal proceedings in which the statements were tendered against him. The operative principle of fundamental justice said to be infringed by the admission of the statements is also easily identified. The appellant relies on the principle against self-incrimination.

[27] The dispute arises at the third and final stage of the s. 7 analysis -- does the use of the statutorily compelled statements against the appellant in his prosecution for cocaine importation offend the principle against self-incrimination? It is at this stage of the analysis that context becomes crucial. In assessing a s. 7 self-incrimination claim, the court must consider the extent to which the rationale underlying the principle against self-incrimination is engaged in the specific circumstances, and the extent to which countervailing principles of fundamental justice operate in the specific circumstances. [page490]

[28] In D'Amour, at pp. 489-90 C.C.C., this court described the values underlying the principle against self-incrimination:

Where the state alleges wrongdoing, it cannot force the target of that allegation to assist the state in proving the allegation. This rationale reflects the high premium placed on personal autonomy and individual privacy by the principles of fundamental justice. Those principles start from the premise that individuals are entitled to choose whether to co-operate with the state and, if they choose not to, to be left alone by the state. The rationale underlying the principle also reflects the hard learned lessons of history. Conscripted evidence is notoriously unreliable and the line between state compulsion and state abuse can be a fine one.

[29] The balancing of competing principles of fundamental justice as part of the s. 7 analysis was described in White at p. 439 S.C.R., p. 276 C.C.C.:

[T]he s. 7 analysis involves a balance. Each principle of fundamental justice must be interpreted in light of other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of fundamental justice in Canadian society.

[30] Like the trial judge, I think the fact that the impugned statements were made at the border in the course of routine questioning by Customs authorities is central to the analysis of the appellant's self-incrimination claim. No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada. As the appellant himself testified, travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage. Put simply, the premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. The opposite is true. The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co- operate with that state intrusion in exchange for entry into Canada.

[31] I also have no hesitation in describing Canada's effective control over its borders as a societal interest of sufficient importance to be characterized as a principle of fundamental justice. Nothing is more fundamental to nationhood and national sovereignty than the ability to control national borders. Effective border control serves a myriad of crucial social interests ranging from national self-defence to public health, to the enforcement of Canada's fiscal policies and its penal statutes. The appellant's [page491] self-incrimination claim must be balanced against the equally fundamental societal claim to the preservation of the integrity of Canada's borders through the effective enforcement of its laws at those borders. Effective enforcement extends to the successful prosecution of those who are apprehended violating Canada's laws at its borders. Those laws, of course, include the prohibition against the importation of narcotics.

[32] The significance of the border crossing context to the delineation of individual Charter rights is evident from the cases that have considered the operation of s. 10(b) (the right to counsel) and s. 8 (the protection against unreasonable search and seizure) at the border. Persons seeking entry into Canada are subject to state action that can range from routine questioning to highly intrusive searches. The extent to which state action at the border will be said to interfere with individual constitutional rights depends primarily on the intrusiveness of that state action. In cases such as R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 67 O.R. (2d) 63, 45 C.C.C. (3d) 296, at p. 516 S.C.R., p. 312 C.C.C. and R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 133 C.C.C. (3d) 129, at p. 661 S.C.R., p. 149 C.C.C., the Supreme Court has recognized three levels of state action at the border. The first, or least intrusive level of that action, involves routine questioning of travellers, the search of their luggage, and perhaps a pat-down search of the person. If state action involves only this level of intrusion, the rights protected by s. 10(b) and s. 8 of the Charter are not engaged. In Simmons, supra, at pp. 516-17 S.C.R., p. 312 C.C.C., Chief Justice Dickson put it this way:

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel . . .

(Emphasis added)

[33] The Chief Justice's observation that those who are subject to routine questioning and searches suffer no "stigma" is germane to the self-incrimination analysis. The absence of any "stigma" attached to routine questioning and searches at the border tells me that where state action does not become more intrusive than routine questioning and searches, the relationship between the state and the individual cannot be characterized as either coercive or adversarial. The absence of coercion or an [page492] adversarial relationship suggests that the principle against self-incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border: R. v. White, at p. 441 S.C.R., p. 278 C.C.C.

[34] Similarly, in Dehghani v. Canada (Minister of Employment and Immigration), 1993 128 (SCC), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, the court held that statutorily compelled statements made by an individual in response to questions from an Immigration Officer could be used against that person in a subsequent inquiry to determine whether the individual's refugee claim warranted a full hearing before the relevant tribunal. In rejecting the appellant's claim that he had a right to counsel under either s. 10(b) or s. 7 of the Charter when questioned by immigration authorities, Iacobucci J. said at p. 1072 S.C.R.:

Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.

[35] Justice Iacobucci, at p. 1074 S.C.R., alluded specifically to the significance of the statutory compulsion to answer the questions put by the Immigration Officer. He observed at para. 41:

It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of the immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in the Customs Act, and as I have already discussed, this court held in Simmons at p. 517 that it would [be] absurd to suggest that routine questioning by Customs officials constitutes a detention for the purpose of s. 10(b).

(Emphasis added)

[36] The appellant was not detained when he made the statements to the Customs authorities that were offered in evidence against him at his trial. Absent detention, he had no constitutional right to counsel and no constitutional right to remain silent: see R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1, at p. 201 S.C.R., p. 15 C.C.C. The questioning of the appellant and the search of his luggage also did not trespass on any reasonable expectation of privacy the appellant had at the border.

[37] The conclusion, firmly rooted in the jurisprudence, that routine questioning and inspection of luggage at the border does [page493] not result in a detention, give rise to any right to counsel, or interfere with a traveller's reasonable expectation of privacy compels the conclusion that personal autonomy and privacy -- the values animating the protection against self-incrimination -- were not implicated when the appellant was compelled to answer routine questions about his residence and his marital and employment status. The exclusion from evidence at his subsequent trial of these statements, therefore, could not vindicate or protect those values. Exclusion of the answers, however, could diminish the state's ability to effectively enforce its legitimate border interests while at the same time impairing the search for the truth in the criminal proceeding by excluding relevant evidence. The balancing of competing principles of fundamental justice does not favour extending the principle against self-incrimination to statements made in the circumstances in which the appellant made his statements to the Customs authorities.

[38] The appellant further contends that even if answers to routine questions at the border could be received in subsequent criminal proceedings without violating the principle against self-incrimination, that principle required their exclusion in this case because by the time the appellant made those statements, he had become the target of a criminal investigation. The appellant submits that he became a target when Inspector Harrison's suspicions were aroused by his several prior trips out of Canada in the previous year. In advancing the contention that a "target" of a criminal investigation can rely on the protection against self- incrimination to exclude statutorily compelled statements made at the border, the appellant relies on R. v. Harripersad, 2001 28338 (ON SC), [2001] O.J. No. 3639, 87 C.R.R. (2d) 118 (S.C.J.).

[39] I would reject this submission for two reasons. First, even if I accepted that the s. 7 protection against self- incrimination attached immediately upon an individual becoming a target of a criminal investigation at the border, I would not describe the appellant as a target of a criminal investigation when he answered the relevant questions. In this regard, I accept the findings of fact made by the trial judge and set out earlier in these reasons.

[40] Second, I do not regard the distinction between those who can be said to be targets of criminal investigations at the border and those who are not targets of such investigations in and of itself determinative of a s. 7 claim. In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. Questions are asked and routine searches conducted to find individuals who are in breach of border-related laws. It only makes good sense that those responsible for enforcing border regulations will focus their routine [page494] questions and searches on persons who have for some reason attracted their interest. In my view, the mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.

[41] I think the proper distinction is between persons, like the appellant, who are not detained or subject to any violation of their reasonable expectation of privacy when the impugned statements are made and persons who are subject to detention, or interference with legitimate privacy expectations when statements are made. Persons who are subject to detention have the constitutional right to counsel and the constitutional right to remain silent. Persons who have a reasonable expectation of privacy can expect that the state will respect that expectation and not interfere with that reasonable expectation. The existence of these rights and the legitimate expectation of privacy reflect the values of autonomy and personal privacy that underlie the protection against self- incrimination. If a person is compelled to answer questions at the border while under detention, or while his or her reasonable expectation of privacy is otherwise interfered with, a strong argument can be made that an attempt to use those answers in a subsequent criminal proceeding will run afoul of the principle against self-incrimination. That argument does not have to be resolved on the facts of this case.

[42] While I would not make the appellant's s. 7 self- incrimination claim turn on whether he could be said to have been a target of a criminal investigation at the border, the extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46. As indicated above, if the person is detained, the assessment of the s. 7 self- incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result.

[43] For the reasons set out above, the admission into evidence of the appellant's statutorily compelled answers to the questions put to him by Inspector Harrison did not violate the principles of fundamental justice and, therefore, did not offend s. 7 of the Charter. [page495] V

The Sentence Appeal

[44] The appellant imported 849 grams of cocaine into Canada. The 40-month sentence imposed was at the upper end of the range suggested by appellant's counsel at trial and is within the appropriate range of sentences for importers of significant amounts of cocaine: e.g. see R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640, [1996] O.J. No. 376, 104 C.C.C. (3d) 548 (C.A.).

[45] The trial judge's reason for sentence do not reflect an error in principle, and the sentence cannot by any measure be described as manifestly unfit. There is no basis for this court to interfere with the sentence imposed. VI

Conclusion

[46] As indicated at the end of oral argument, the appeals are dismissed.

Appeal dismissed.