Kelly v. Palazzo et al. [Indexed as: Kelly v. Palazzo]

89 O.R. (3d) 111

Court of Appeal for Ontario,

Doherty, Moldaver and Gillese JJ.A.

February 11, 2008

Customs and excise -- Search and seizure -- Section 98(3) of Customs Act providing for review by senior officer of decision of Customs officer to search person to determine whether there was reasonable basis for Customs officer's decision and that basis for Customs officers' reasonable suspicion remains intact -- Section 98(3) not requiring senior officer to conduct de novo investigation to determine whether he or she personally believes or suspects that person is carrying contraband -- Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, s. 98(3).

Upon returning to Canada from a vacation in Jamaica, the plaintiff was questioned at Canada Customs. The Customs officer formed a suspicion that the accused was carrying contraband and decided that he should be strip-searched and required to remain in detention until he defecated. Under s. 98 [page112] of the Customs Act, the person to be searched may ask to be taken before the senior officer. The plaintiff made that request. Section 98(3) provides that the senior officer "shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched". The senior officer in this case saw it as her job to be satisfied that the Customs officer had adequate grounds for directing a search. She did this by considering the grounds relied on by the Customs officer and speaking to the plaintiff herself. She did not make any independent assessment of whether she had reasonable grounds to believe that the plaintiff was carrying contraband. The senior officer approved the search. No drugs were found and the plaintiff was released. The plaintiff, who was black, sued the Crown and the individual Customs officers, alleging that the Customs officers had no proper grounds to detain or search him and that, engaging in racial profiling, they did so only because he was black. The action was dismissed. The trial judge found that the senior officer had not fulfilled her obligations under s. 98(3) of the Act, as s. 98(3) required her to make an independent assessment of whether there were reasonable grounds for the strip-search. However, she rejected the submission that the senior officer's failure to properly perform her duties under s. 98(3) supported the inference that the plaintiff was racially profiled. She found that the senior officer simply misunderstood the nature of her duties under s. 98(3). The trial judge noted that the action was based exclusively on an allegation of racial profiling and did not assert a claim based on non-compliance with the Customs Act. The plaintiff appealed.

Held, the appeal should be dismissed.

There was no merit to the plaintiff's argument that the trial judge's conduct demonstrated a reasonable apprehension of bias. The exchanges between counsel and the trial judge which the plaintiff claimed demonstrated a reasonable apprehension of bias could only be read as indicative of bias if one assumed that in any case where racial profiling is alleged, there is a presumption of bias against the trial judge if he or she ultimately rejects the racial profiling claim. That belief can have no place in any legal analysis of a reasonable apprehension of bias claim.

The trial judge erred in her interpretation of s. 98(3) of the Customs Act. The procedure under s. 98(3) is a review of the initial decision to search made by a Customs officer. A "review" connotes a process wherein senior supervisory personnel assess the fitness of decisions made by subordinate Customs officers. It does not suggest a de novo investigation by the senior officer aimed at a determination by the senior officer as to whether he or she reasonably believes that the person to be searched is carrying drugs. Section 98(3) does not speak in terms of the senior officer having his or her own reasonable suspicion, much less reasonable belief, that the person to be searched has contraband on or about his person. Instead, s. 98(3) directs the senior officer to determine whether he or she "sees no reasonable grounds for the search". There are no reasonable grounds for the search if the Customs officer who directed the search could not reasonably have formed the requisite suspicion or if, based on additional information brought to the attention of the senior officer, there no longer exists any reasonable basis for that suspicion. The language of s. 98(3) is inconsistent with the senior officer conducting his or her own investigation to determine whether he or she personally believes or suspects that the person to be searched is carrying contraband. The senior officer in this case fulfilled her statutory duty under s. 98(3). She was entitled to conclude that there were reasonable grounds for the search and to direct that the search should proceed.

APPEAL from the judgment of Horkins J., [2005] O.J. No. 5363, [2005] O.T.C. 1066 (S.C.J.), dismissing an action for damages for detention and search based on racial profiling.

Cases referred to 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, consd [page113] 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; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36, 11 D.L.R. (4th) 641; Kelly v. Palazzo, 2006 9149 (ON SC), [2006] O.J. No. 1150, 146 A.C.W.S. (3d) 965 (S.C.J.); Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 217 O.A.C. 269, 43 C.R. (6th) 175 (C.A.); R. v. Hudson (2005), 2005 47233 (ON CA), 77 O.R. (3d) 561, [2005] O.J. No. 5464, 206 O.A.C. 318, 137 C.R.R. (2d) 215, 203 C.C.C. (3d) 305, 34 C.R. (6th) 209 (C.A.); R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481, [2006] O.J. No. 3315, 214 O.A.C. 225, 211 C.C.C. (3d) 4, 41 C.R. (6th) 84 (C.A.); 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; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1 Statutes referred to Canadian Charter of Rights and Freedoms, ss. 8, 10 Customs Act, R.S.C. 1970, c. C-40, ss. 143, 144 Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, s. 98

Osborne G. Barnwell, for appellant. Christopher Parke, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I Overview

[1] The appellant, Richard Kelly, appeals from the order dismissing his action. He raised many grounds of appeal. The court required submissions from the respondent only in respect of issues arising out of the trial judge's interpretation of s. 98(3) of the Customs Act, R.S.C. 1985 (2nd Supp.), c. 1. Section 98(1) of the Customs Act authorizes searches of persons entering Canada where a Customs officers "suspects on reasonable grounds" that a person is carrying contraband. Section 98(3) directs that where the person to be searched so requests, that person must be taken before a senior officer. The senior officer must discharge that person without a search if the senior officer "sees no reasonable grounds for the search". [page114]

[2] The trial judge interpreted s. 98(3) as requiring that before the search could proceed the senior officer go further than the Customs officer, and form his or her own reasonable belief that the person to be searched was carrying contraband. On the trial judge's interpretation, the senior officer in this case erred in interpreting s. 98(3) as requiring only that he review the decision made by the Customs officer under s. 98(1).

[3] These reasons will focus on the interpretation of s. 98(3). In my view, the trial judge misinterpreted s. 98(3) and the senior officer properly conducted a review of the decision made under s. 98(1) by the Customs officer. The appellant's arguments that are predicated on the senior officer's failure to comply with s. 98(3) must fail.

[4] Although the court did not call on the respondent to respond to the reasonable apprehension of bias argument, I will address that argument in these reasons. That claim fails.

[5] The appellant also seeks leave to appeal the costs order made at trial. The trial judge awarded costs to the respondents, who were entirely successful on the trial. The trial judge, however, significantly reduced those costs to reflect the negligent late disclosure of material information by the respondents. The costs order reflects a proper exercise of the trial judge's discretion. I need say no more about this aspect of the appeal.

II The Nature of the Claim and the Significance of Section 98(3)

[6] On June 9, 2002, Richard Kelly returned to his home in Toronto from a vacation in Jamaica. Mr. Kelly's plane landed at Pearson International Airport. He was questioned and eventually detained at Canada Customs. In the course of the detention, Customs officials strip-searched Mr. Kelly. He was also required to remain under detention until he defecated. No drugs were found on or in Mr. Kelly's person and he was released several hours after his arrival at the airport.

[7] Mr. Kelly is black. He sued the Crown (Minister of Canada Customs and Revenue Agency) and the individual Customs officers who were involved in his detention and search at the airport. Mr. Kelly claimed that the Customs officials had no proper grounds to detain or search him and that they did so because he is a Black African-Canadian. Paragraph 34 of the Statement of Claim captures the essence of Mr. Kelly's lawsuit:

. . . but for the fact that he [Mr. Kelly] was a Black African-Canadian, this whole procedure would not have occurred. He states that he was selected due to the defendant's practice of racial profiling. In the process, he states [page115] that his rights under the Charter and at common law not to be subjected to unreasonable and illegal arrest and detention were violated.

[8] The respondents defended on the basis that the Customs officials had properly and reasonably exercised their powers under the relevant provisions of the Customs Act, and that Mr. Kelly's skin colour had nothing to do with any of the decisions made by the Customs officials.

[9] In December 2005, after a three-week trial, Horkins J. dismissed Mr. Kelly's action concluding as follows: "When the circumstances as a whole are considered, there is no reasonable basis to infer that the defendants racially profiled Mr. Kelly."

[10] In the course of her detailed reasons, the trial judge concluded that Superintendent Elizabeth Warren had not fulfilled her obligations under s. 98(3) of the Customs Act when she directed that the strip-search of Mr. Kelly, ordered by a subordinate Customs officer, should proceed. The trial judge interpreted s. 98(3) as requiring Superintendent Warren to make an independent assessment of whether there were reasonable grounds for the strip-search. She held that Superintendent Warren had failed to exercise that independent judgment, but instead merely reviewed and confirmed the decision made by her subordinate.

[11] The trial judge went on to reject the submission that Superintendent Warren's failure to properly perform her duties under s. 98(3) supported the inference that Mr. Kelly was racially profiled. The trial judge found that Superintendent Warren simply misunderstood the nature of her duties under s. 98(3).

[12] The trial judge also held that the appellant's action was based exclusively on an allegation of racial profiling and did not assert a claim based on non-compliance with any provision of the Customs Act. She said at para. 129:

A finding of liability cannot be based on the actions of Superintendent Warren. While she had an obligation to stop the search and failed to fulfill her obligation under s. 98(3), this is not the basis for the claim against the defendants as pleaded in the statement of claim. The allegation of racial profiling is the sole basis for the claim against the defendants. The Customs Act is not even pleaded by Mr. Kelly.

[13] After the trial judge released her reasons, the appellant moved to reopen the trial solely for the purpose of amending his pleadings to include a claim based on Superintendent Warren's failure to perform her duty under s. 98(3) of the Customs Act. The trial judge declined to reopen the case: Kelly v. Palazzo, 2006 9149 (ON SC), [2006] O.J. No. 1150, 146 A.C.W.S. (3d) 965 (S.C.J.).

[14] On appeal, counsel for the appellant argues that the trial judge was wrong in holding that the statement of claim could not be read as including allegations based on non- compliance with [page116] the Customs Act. Alternatively, counsel submits that the trial judge was wrong in refusing to permit Mr. Kelly to reopen his case after the reasons were released for the sole purpose of amending his pleadings to allege a breach of the Customs Act.

[15] Counsel for the respondents did not take issue with the trial judge's interpretation of s. 98(3) in his factum. He submitted, however, that she properly held that the claim did not encompass an allegation of a failure to comply with the Customs Act and that she properly refused to allow the appellant to reopen his case after the reasons were delivered.

[16] During oral argument, the court advised counsel for the appellant that it had concerns as to the correctness of the trial judge's interpretation of s. 98(3) and requested submissions on that issue. Counsel for the appellant defended the trial judge's interpretation. Counsel for the respondents submitted that the trial judge had misinterpreted s. 98(3) and that it did not require that Superintendent Warren make her own determination of whether there were reasonable grounds to search Mr. Kelly. He argued that Superintendent Warren properly performed the role assigned to her under s. 98(3) by reviewing the decision made by her subordinate.

III The Allegation of a Reasonable Apprehension of Bias

[17] With one exception, these reasons do not comment on the grounds of appeal that did not require submissions from counsel for the respondents. Before turning to the interpretation of s. 98(3), I will address the reasonable apprehension of bias argument. There is no merit to this ground of appeal, but I do not think it can be left at that.

[18] In support of the claim that the trial judge's conduct demonstrates a reasonable apprehension of bias, counsel refers to four extracts from the evidence. One extract is said to support the conclusion that the trial judge was reluctant to find that one of the Customs officers was lying thereby revealing a bias in favour of the respondents. The other extracts consist of exchanges involving counsel for both parties and the trial judge. Counsel argued that these exchanges demonstrate an animus by the trial judge toward counsel for the appellant justifying a reasonable apprehension of bias.

[19] The same counsel unsuccessfully made virtually the same argument in another case in which a different trial judge rejected a racial profiling claim brought against certain police officers: Peart v. Peel Regional Police Services Board, 2006 37566 (ON CA), [2006] O.J. No. 4457, 43 C.R. (6th) 175 (C.A.). [page117]

[20] I do not propose to repeat the bias analysis found in Peart, supra, at paras. 35-79. It does bear repeating, however, that there is a strong presumption in this country that judges are impartial. That presumption is not an artificial construct designed to shield judges from allegations of bias. The presumption reflects the historical and current reality. Judges in Canada are, as a rule, strongly independent and impartial: R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, 118 C.C.C. (3d) 353, at p. 392 C.C.C.; Peart v. Peel Regional Police Services Board, supra, at para. 39.

[21] It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers are expected to appreciate that presumption and, where necessary, explain it to their clients. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a trial, will not assist the client's cause and do a disservice to the administration of justice.

[22] Counsel's first contention, that the trial judge displayed a bias through her reluctance to find that a Customs officer was lying in her testimony, is unsupported by the trial record. In the course of closing argument, counsel for the appellant submitted that Officer Alison Demchyshyn, the officer who determined that Mr. Kelly should be strip-searched, had lied when she explained why she had directed Mr. Kelly to the secondary inspection area. This submission led the trial judge, who of course by this time had heard all of the evidence, to question whether she had to find that Officer Demchyshyn was lying to give effect to the racial profiling claim. A dialogue between the trial judge and counsel for the appellant followed. That dialogue concluded with this exchange: THE COURT: It could be but let's assume she is not -- let's assume I conclude she is not lying. I am not comfortable drawing that conclusion from her evidence. Does that preclude me from finding that your client was racially profiled? That is the question. MR. BARNWELL: No, it does not. THE COURT: Alright, so, I just wanted to know your position. Now I have it.

[23] I am sure that the trial judge, having heard all of the evidence, had formed certain impressions about the credibility of the witnesses. There is no bias in that. I am equally sure that the trial judge, like any good trial judge, was not anxious to brand [page118] any witness a liar without very good reason. The trial judge's comments do not suggest any bias against the appellant's case. The trial judge was trying to understand the appellant's position and to satisfy herself that the racial profiling claim did not depend on a finding that Officer Demchyshyn was lying under oath. As I read the exchange, not only was the trial judge not displaying any animus towards the appellant's position, but rather she was seeking a clarification that could assist the appellant.

[24] The trial judge's overall assessment of the credibility of all of the witnesses is also relevant to this aspect of the bias allegation. She said:

Mr. Kelly and the defendant customs officers testified during the trial. This was not a trial where the testimony of one party varied dramatically from another. Differences in their testimonies did exist; however, these differences did not provide a basis to infer that any of the defendants practiced racial profiling. The differences are best described as arising from a difference in recollection and perspective and do not lead me to question the sincerity or credibility of any particular party. As a result, the evidence that I review below represents my conclusions of fact. (Emphasis added)

[25] The exchanges between counsel and the trial judge which counsel for the appellant claims demonstrate a reasonable apprehension of bias, actually reflect the antithesis of bias. These exchanges reveal a level of patience and professionalism on the trial judge's part that accords with the high standards expected of trial judges. The exchanges can only be read as indicative of bias if one assumes that in any case where racial profiling is alleged, there is a presumption of bias against the trial judge if he or she ultimately rejects the racial profiling claim. While some people may honestly and even fervently hold this belief, it can have no place in any legal analysis of a reasonable apprehension of bias claim.

[26] The exchanges between counsel and a trial judge must also be read in the context of the overall trial. They represent a few moments in a lengthy trial during which there were significant trial management problems. The trial went on for more than three times the length anticipated by counsel. There were many interruptions, for various reasons, during the examination of some of the witnesses. As the trial wore on, the trial judge was understandably anxious to keep the trial moving towards completion in an orderly fashion. This was no easy task.

[27] I do not propose to go through each of the extracts referred to by counsel for the appellant in support of the bias claim. I will examine only one. This one is typical and demonstrates the untenable nature of the bias allegation. [page119]

[28] During the cross-examination of the respondent's expert, Ross Fairweather, counsel for the respondents, objected to a question put by counsel for the appellant. Mr. Fairweather was excluded from the courtroom while the trial judge heard the objection. After the witness had left the courtroom, counsel for the appellant began to make submissions. He indicated that there was a possibility that he would move to reopen his case. The trial judge interrupted counsel and told him that she did not want to hear any arguments about reopening his case at that point in time. She made it clear that the witness had been on the stand for several days and she wanted to complete his testimony. To reach that end, the trial judge indicated she wanted to focus for the moment on the specific objection that had been made and the specific question that counsel for the appellant wanted to ask the witness.

[29] A discussion ensued between counsel and the court as to the exact question that counsel wished to put to the witness. When it appeared that counsel had sorted out the question to be put, the trial judge said to them:

Do we understand where we're going? Have we sorted out the problem? You know what you're doing with this now? Right? Well we don't want to bring him back in and have another debate between the two of you.

[30] Counsel for the appellant responded by telling the trial judge that he did not appreciate the condescending manner in which she spoke to him. The trial judge responded:

Mr. Barnwell, I do not intend . . . to indicate any disrespect. It has been a long day with Mr. Fairweather. We have been doing our best and we have had him out in the hallway several times.

[31] Mr. Barnwell interrupted the trial judge to repeat that he did not like the way she was speaking to him. The trial judge said:

Well, if you have that perception, I apologize. It was simply not my intention. Let's bring him in and carry on.

[32] Mr. Barnwell then indicated that he had no more questions for the witness.

[33] I assume that counsel and the trial judge made their comments honestly and in good faith. By that I mean I assume that Mr. Barnwell honestly felt slighted by the way in which the trial judge spoke to him. I also assume that the trial judge honestly did not think she was speaking to Mr. Barnwell in a condescending manner and offered a sincere apology for the impression she had apparently left with him. I do not know what else the trial judge could have done to dispel Mr. Barnwell's concern that he [page120] was not being treated with adequate respect by the trial judge. This exchange, like the others to which our attention was drawn, shows a trial judge doing her level best to keep the trial moving, while at the same time responding fairly and in a professional manner to specific concerns raised by counsel. Nothing in this exchange comes close to suggesting, much less demonstrating, a reasonable apprehension of bias.

IV The Interpretation of Section 98(3)

(a) The relevant facts

[34] Like all passengers arriving from outside of Canada, Mr. Kelly presented his travel documents to a primary Customs officer upon his arrival at Pearson International Airport. That officer flagged Mr. Kelly for a secondary inspection. His reasons for doing so are unknown, but also irrelevant in that the ultimate decision to send Mr. Kelly for a secondary inspection had nothing to do with the primary Customs officer's designation.

[35] After speaking with the primary Customs officer, Mr. Kelly and his fellow passengers proceeded toward the baggage area of the airport. Officer Demchyshyn, a member of the Flexible Response Team, was acting as a "rover" in that area. The Flexible Response Team monitors what the Customs authorities consider to be "high risk" flights. Flights from Jamaica are categorized as "high risk" because more drugs are seized from persons on flights coming into Pearson International Airport from Jamaica than from any other country.

[36] Officer Demchyshyn explained that as a "rover", it was her job to randomly select persons who were on "high risk" flights and question them. She stopped Mr. Kelly because he happened to be walking past her as she finished speaking with another passenger. Officer Demchyshyn spoke briefly with Mr. Kelly. She had no reason to suspect that he was violating any laws.

[37] After a brief discussion, Officer Demchyshyn decided to send Mr. Kelly to the secondary inspection area for more detailed questioning and a search of his luggage. She did not have reasonable grounds to suspect that Mr. Kelly was carrying contraband and she did not at that point believe that she had grounds to order a search under s. 98(1) of the Customs Act. Officer Demchyshyn decided that Mr. Kelly should be sent to secondary inspection because he seemed nervous and his answers were vague. She had nothing more than an "impression that something was wrong". [page121]

[38] Mr. Kelly collected his luggage and was sent to the secondary inspection area where he met Officer Demchyshyn for a second time. It was shortly after 11:00 p.m. Officer Demchyshyn questioned Mr. Kelly for about 45 minutes. She also searched his luggage, examined the contents of his wallet, and scanned his jewellery for drug residue. Officer Demchyshyn found nothing suggesting any illegal activity by Mr. Kelly.

[39] Mr. Kelly was uncooperative during most of the questioning during this secondary inspection. His answers were evasive and argumentative. His lips were trembling and his legs were shaking. His answers concerning the trip to Jamaica, his employment, and his financial circumstances lacked detail and in some instances did not make sense to Officer Demchyshyn. She also thought it noteworthy that Mr. Kelly was travelling alone and that no one was at the airport to meet him.

[40] As Officer Demchyshyn's questioning continued, Mr. Kelly became more agitated. Specific questioning about drug smuggling appeared to make him even more nervous and agitated. Eventually, Mr. Kelly was shouting at Officer Demchyshyn and causing a disturbance. She tried to calm him down by explaining to him that it was her job to ask the kinds of questions that she was asking and that Mr. Kelly was required to answer the questions.

[41] At about 11:56 p.m., Officer Demchyshyn concluded, based on the totality of the circumstances surrounding her encounters with Mr. Kelly (some of which I have summarized), that she had reasonable grounds to suspect that Mr. Kelly was attempting to bring drugs into Canada either on or in his person. She decided that he should be strip-searched and required to remain in detention until he defecated (described as a "loo" search).

[42] At about 12:10 a.m., Officer Demchyshyn told Mr. Kelly that she had reasonable grounds to suspect he was carrying drugs on or in his person and that he would be detained for the purposes of a search under s. 98 of the Customs Act. She told Mr. Kelly that he was not obliged to say anything and explained to him that he had a right to contact counsel or speak with duty counsel. Mr. Kelly said that he understood what he had been told and did not wish to speak to a lawyer.

[43] Officer Demchyshyn spoke to her immediate supervisor, Superintendent Paul Hogan. Under the prevailing protocol, although not under the Customs Act itself, Officer Demchyshyn was required to get Superintendent Hogan's approval for the s. 98(1) search. She outlined to Superintendent Hogan the various indicators on which she relied in ordering the search. Superintendent Hogan concluded that Officer Demchyshyn had reasonable grounds to suspect that Mr. Kelly had drugs on or in [page122] his person. Superintendent Hogan did not speak to Mr. Kelly and did not make his own assessment of whether a s. 98(1) search should be conducted.

[44] After Superintendent Hogan approved the search, arrangements were made at about 12:52 a.m. for male Customs officers to conduct the search. Superintendent Noble and Officer Palazzo, neither of whom had had prior involvement with Mr. Kelly, were assigned to conduct the search. They took custody of Mr. Kelly and gave him a secondary caution and a second opportunity to contact counsel. He chose to speak to duty counsel at 12:59 a.m. While waiting for duty counsel's return call, Superintendent Noble read s. 98 to Mr. Kelly from a poster on the wall. The contents of that poster advised Mr. Kelly that he had a right to request that he be taken before a senior officer before the search was conducted.

[45] Duty counsel spoke with Mr. Kelly at about 1:43 a.m. and told him that he could ask to speak to the senior officer. Mr. Kelly made that request after he spoke with duty counsel.

[46] Superintendent Elizabeth Warren, the senior officer on duty, was at a different terminal in the airport. Officer Demchyshyn picked her up and they drove back to the terminal where Mr. Kelly was being detained. Superintendent Warren spoke with Officer Demchyshyn about her reasons for ordering the search and reviewed Officer Demchyshyn's notes. She concluded that the indicators identified by Officer Demchyshyn justified her decision to order Mr. Kelly searched. However, before directing that the search should proceed, Superintendent Warren was required to speak to Mr. Kelly.

[47] Superintendent Warren saw Mr. Kelly at about 2:07 a.m. and reread the secondary caution to him. Mr. Kelly said that he understood what she had said and that he was going to be strip- searched. Superintendent Warren asked Mr. Kelly if he "had anything else to tell [her]". Mr. Kelly responded by complaining about the nature of the questions that Officer Demchyshyn had asked him. He said that the questions were personal and none of her business.

[48] Superintendent Warren attempted to explain to Mr. Kelly that the Customs officials could ask the kinds of questions that Mr. Kelly regarded as personal and that he was obliged to answer them. Mr. Kelly continued to complain about the personal nature of the questions and did not offer any more detailed answers to Superintendent Warren. Their conversation ended at about 2:22 a.m. Superintendent Warren approved the search.

[49] Superintendent Warren saw it as her job to be satisfied that Officer Demchyshyn had adequate grounds for directing a [page123] search under s. 98(1). She did this by considering the grounds relied on by Officer Demchyshyn and anything that Mr. Kelly might have to say about the matter. Superintendent Warren did not make any independent assessment of whether she had reasonable grounds to believe that Mr. Kelly was carrying drugs.

[50] After Superintendent Warren approved the s. 98(1) search, Superintendent Noble and Officer Palazzo conducted that search. Mr. Kelly was cooperative and the search proceeded without incident. Mr. Kelly removed each article of clothing upon request. His clothing was checked for drugs. When he was fully disrobed, Mr. Kelly was asked to spread his legs and buttocks for a visual inspection of his rectal area. No drugs were found on Mr. Kelly's person or on his clothing.

[51] The "loo" search had to be done in a different terminal. Mr. Kelly was handcuffed and taken to that terminal. Mr. Kelly defecated and no drugs were found. He was ultimately released and allowed to leave the airport at 3:15 a.m., a little more than four hours after his arrival.

(b) Border searches and the Charter

[52] Canada's obligation to protect its national integrity by controlling who and what comes across its borders provides strong justification for significant state intrusions on individual liberty and security at the border. State-imposed limitations on personal rights and freedoms that would be constitutionally questionable in most circumstances may not even engage, much less offend, constitutional rights at the border: R. v. Simmons, 1988 12 (SCC), [1998] 2 S.C.R. 495, [1988] S.C.J. No. 86, 45 C.C.C. (3d) 296, at pp. 312, 314, 320-21 C.C.C.; 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, at pp. 667-68 C.C.C.; 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. 147 C.C.C.; R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481, [2006] O.J. No. 3315, 211 C.C.C. (3d) 4 (C.A.), at pp. 14-16 C.C.C.; R. v. Hudson (2005), 2005 47233 (ON CA), 77 O.R. (3d) 561, [2005] O.J. No. 5464, 203 C.C.C. (3d) 305 (C.A.), at p. 311 C.C.C.

[53] In Simmons, supra, the Supreme Court held that persons who were subject to routine questioning at the border, luggage searches, and even minimally intrusive personal searches were not detained for the purposes of s. 10 of the Charter. The court further held that such routine activities did not infringe any reasonable expectation of privacy protected by s. 8. On the authority of Simmons and its progeny, Mr. Kelly was not detained for the purposes of s. 10 of the Charter when he was initially questioned by Officer Demchyshyn, or when he was directed to the secondary area where he was further questioned, his luggage and wallet [page124] searched, and his jewellery scanned for evidence of drug residue. Nor did any of these activities interfere with Mr. Kelly's reasonable expectations of privacy. Consequently, these actions could not violate s. 8 of the Charter.

[54] Even more intrusive searches conducted at the border, including strip-searches and "loo searches" that do engage ss. 8 and 10 of the Charter, are justified on a lower standard than the normally applicable reasonable and probable grounds standard: Simmons, supra, at pp. 320-21 C.C.C.; Monney, supra, at paras. 34-37. These more intrusive searches are conducted under the authority of s. 98 of the Customs Act, the statutory provision invoked by Officer Demchyshyn.

(c) Section 98(1)

[55] Section 98(1) of the Customs Act authorizes searches of the person by Customs officials. It reads in part:

98(1) An officer may search, (a) any person who has arrived in Canada . . .

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. (Emphasis added)

[56] Neither the interpretation of the standard provided in s. 98(1), nor the scope of the search authorized by that provision are in dispute on this appeal. An officer may order a search on the basis of a reasonable suspicion that the individual has contraband such as illicit drugs on or in his person. The reasonable suspicion standard is akin to the standard required for an investigative detention. It combines a subjectively based suspicion with the objective requirement that the suspicion be reasonable in all of the circumstances: see R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, [2004] S.C.J. No. 49, 185 C.C.C. (3d) 308, at pp. 320-23 C.C.C. Insofar as the scope of the search is concerned, it is recognized that a s. 98(1) search may include both a strip-search and a "loo search": see R. v. Monney, supra, at para. 39.

[57] The trial judge applied the reasonable suspicion standard when assessing Officer Demchyshyn's decision to order the strip-search and the "loo search". On the evidence, it was open to the trial judge to conclude that Officer Demchyshyn had reasonable grounds to suspect that Mr. Kelly had drugs on or in his person when she ordered him searched pursuant to s. 98(1). [page125]

(d) Section 98(3)

[58] Section 98 contains a further safeguard against improper searches. The person to be searched may ask to be taken before the "senior officer". Mr. Kelly made that request. Section 98(3) describes the function of the "senior officer":

98(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. (Emphasis added)

[59] In her analysis, the trial judge emphasized the difference in the language used in s. 98(3) "reasonable grounds for the search" and the language used in s. 98(1) "suspects on reasonable grounds". The trial judge saw the different language as reflecting Parliament's intention to impose a more stringent standard in s. 98(3) than in s. 98(1). She said at para. 14:

A passenger can ask for a senior officer to review the grounds for the pending search before it starts. The review by a senior officer is governed by s. 98(3), which imposes a more stringent test than s. 98(1)(a). The senior officer must "believe" there are reasonable grounds for the search. Without this belief, the search cannot go ahead. . . . (Emphasis added)

[60] She returned to the comparison of s. 98(1) and s. 98(3) later in her reasons at para. 115:

The language in s. 98(3) is different from s. 98(1). While Officer Demchyshyn only needed to suspect on reasonable grounds that Mr. Kelly had drugs on or in his body, Senior Officer Warren could only direct the search to proceed if she believed there were reasonable grounds for the search. A threshold requiring a belief is higher than the suspicion required in s. 98(1). (Emphasis added)

[61] The trial judge reviewed the evidence and concluded that Superintendent Warren did not have reasonable grounds to believe Mr. Kelly had drugs on or in his person. She said at para. 127:

Considering Superintendent Warren's testimony at its highest, it is not possible to conclude that she fulfilled her duty as set out in 98(3) of the Customs Act. Since she did not believe that Mr. Kelly was a drug ingestor or a drug carrier, she had no basis for allowing the search to continue. Her evidence is clear and not capable of any other interpretation, particularly since she stated twice she did not have the requisite belief.

[62] I could find no case law or any academic commentary that speaks directly to the interpretation of s. 98(3) or, more particularly, to the standard to be applied by the senior officer under that section. [page126]

[63] Simmons, supra, provides some assistance. That case considered the constitutionality of ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C-40, the predecessor sections to ss. 98(1) and 98(3). Section 143 authorized the search of a person if the officer had "reasonable cause to suppose" that the person had contraband "about his person". Section 144(1) provided that the person to be searched pursuant to s. 143 could require the officer to take him before a police magistrate, a justice of the peace or the chief officer of the airport. The person before whom the individual to be searched was taken was required to order the person discharged without being searched if "he sees no reasonable cause for a search".

[64] The "reasonable cause to suppose" standard in s. 143 is the same as the "reasonable grounds to suspect" standard set out in s. 98(1): Monney, supra, at para. 37. While s. 98(3) limits the person before whom the individual to be searched can be taken to the senior officer, it otherwise describes the same process as is described in s. 144 of the predecessor Act. Under both s. 98(3) and s. 144, the person before whom the individual is taken must "see" if there is reasonable cause to proceed with the search ordered by the Customs officer.

[65] In Simmons, Chief Justice Dickson considered the constitutionality of ss. 143 and 144 together. He noted that the standard applied to justify a personal search under ss. 143 and 144 fell short of the reasonable and probable grounds standard, observing at p. 317:

Sections 143 and 144 do not mandate prior authorization of personal searches by a person acting in a judicial capacity. The standard upon which a search may be conducted under the provisions, reasonable cause to suppose, also falls short of the reasonable and probable grounds established on oath required by Hunter [Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, [1984] S.C.J. No. 36]. (Emphasis added)

[66] The Chief Justice describes a single standard applicable to the searches referred to in both ss. 143 and 144. That standard is the one found in s. 143, the predecessor to s. 98(1) and permits a search based on reasonable suspicion. It was not argued in Simmons that the senior officer was required to apply a more stringent test than the officer who initially ordered the search. However, it seems to me that if the court saw any potential difference in the standards imposed on the two officials, this difference would have by necessity found its way into the court's analysis in a case where the constitutionality of both provisions was directly in issue. [page127]

[67] Further assistance as to the meaning of s. 98(3) can be gleaned from the description in Simmons of the process contemplated by ss. 143 and 144. Dickson C.J.C. observed at p. 320 C.C.C.:

Under the Customs Act, searches of the persons are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. (Emphasis added)

[68] Section 98(3) is described by Chief Justice Dickson as "a review" of the initial decision to search made by the Customs officer. This "review" must be performed by a "senior officer", who has supervisory authority over the person who made the initial decision. I think a "review" connotes a process wherein senior supervisory personnel assess the fitness of decisions made by subordinate Customs officers. A "review" does not suggest to me a de novo investigation by the senior officer aimed at a determination by the senior officer as to whether he or she reasonably believes that the person to be searched is carrying drugs.

[69] Section 98(3), unlike s. 98(1), does not speak in terms of the senior officer having his or her own reasonable suspicion, much less reasonable belief, that the person to be searched has contraband on or about his person. Instead, s. 98(3) directs that the senior officer determine whether he or she "sees no reasonable grounds for the search". In my view, there are no reasonable grounds for the search if the Customs officer who directed the search could not reasonably have formed the requisite suspicion or if based on additional information brought to the attention of the senior officer, there no longer exists any reasonable basis for that suspicion. The language of s. 98(3) directs the senior officer's inquiry to the reasonableness of the initial decision to search as informed by any additional information made known to the senior officer. The language of s. 98(3) is, in my view, inconsistent with the senior officer conducting his or her own investigation to determine whether he or she personally believes, or suspects that the person to be searched, is carrying contraband.

[70] Section 144 of the Customs Act provides some further insight as to the proper role of the senior officer when asked to review a decision made by a Customs officer to order a search under s. 98(1). As indicated above, s. 144 is the predecessor to s. 98(3) and is essentially the same as the present section, except that it provided that the person to be searched could be taken before a magistrate or a justice of the peace as well as the chief [page128] officer at the port or place. Under the present section, the person cannot be taken before a magistrate or a justice of the peace. The judicial status of some of the persons before whom the individual could be taken under s. 144 is much more consistent with a process whereby those individuals review the initial decision of the Customs officer to ensure compliance with s. 98(1) than it is with those judicial officers conducting their own investigation and forming their own suspicions or beliefs about whether the individual is carrying contraband.

[71] I would hold that s. 98(3) contemplates a review of the decision made under s. 98(1). It flows from that characterization that the section does not provide a different and more stringent standard than the standard contemplated under s. 98(1). It would make no sense to review the decision to search made under s. 98(1) using a more stringent standard than the standard contemplated by s. 98(1).

[72] In summary, s. 98(3) requires that the senior officer review the Customs officer's decision to order a search under s. 98(1) in the light of the information available to the Customs officer as well as any new and relevant information that may be made available to the senior officer. If the senior officer is satisfied that there was a reasonable basis for the decision made under s. 98(1) and that the basis for the reasonable suspicion remains intact, the search may proceed. The senior officer's review must be based on the information relied on by the Customs officer in making the initial decision considered in the light of any additional information provided to the senior officer by the person to be searched or from some other source.

(e) The section 98(3) review in this case

[73] On the evidence accepted by the trial judge, I am satisfied that Superintendent Warren fulfilled her statutory duty under s. 98(3). She reviewed with Officer Demchyshyn the grounds upon which Officer Demchyshyn relied in ordering Mr. Kelly strip-searched pursuant to s. 98(1). She assessed the reasonableness of the indicators relied on by Officer Demchyshyn.

[74] Superintendent Warren also spoke with Mr. Kelly as required under s. 98(3). Although the evidence is not as detailed as it might have been, it would appear that she made sure that Mr. Kelly understood the situation he faced, and gave him a fair opportunity to answer the questions he had refused to answer in his discussions with Officer Demchyshyn. Mr. Kelly declined to provide any further information. [page129]

[75] Superintendent Warren decided that the indicators identified by Officer Demchyshyn provided ample grounds for a reasonable suspicion that Mr. Kelly was in possession of drugs. Superintendent Warren had no new information that would cause her to reject the reasonableness of the grounds upon which Officer Demchyshyn had formed her suspicion. In those circumstances, Superintendent Warren was entitled to conclude that there were reasonable grounds for the search ordered by Officer Demchyshyn and to direct that the search should proceed.

[76] Although I am satisfied that the evidence demonstrates that Superintendent Warren fulfilled her statutory duties under s. 98(3), the evidence describing the interaction between Superintendent Warren and Mr. Kelly is far from detailed. The paucity of the evidence reflects the fact that compliance with s. 98(3) was far from the core of the dispute in this case. I would, however, make these brief comments concerning the procedure to be followed under s. 98(3).

[77] Section 98(3) is an important and final protection afforded to the individual against what may be a very invasive search carried out under s. 98(1). The section can only serve its purpose if the individual to be searched is given a meaningful opportunity to satisfy the senior officer that he or she should not be searched. That opportunity is meaningful only if the person to be searched understands the nature of the search to which he or she will be subjected and appreciates the role of the senior officer in the process. In addition, the person to be searched must understand, at least in general terms, the grounds for the search and must be given an opportunity to respond to those grounds. The senior officer should make sure that the person to be searched has the requisite understanding of the process, the senior officer's role in that process, and is given a fair opportunity to respond to the grounds upon which the search is based.

V Conclusion

[78] There was no violation of s. 98(3) of the Customs Act. It is, therefore, irrelevant to the result at trial whether the statement of claim pleaded a cause of action based on a breach of s. 98(3). It is equally irrelevant whether the trial judge should have allowed an amendment of the claim to plead a breach of that section. These grounds of appeal must fail.

[79] As indicated above, there is no merit to the other grounds of appeal. I would dismiss the appeal. I would grant [page130] leave to appeal the costs order made at trial and I would dismiss that appeal.

[80] The appeal has raised an important issue of public importance, albeit one that may not have impacted the result in this case. That issue was not addressed in the respondents' factum. This is not a case for costs on the appeal.

Appeal dismissed.