Court of Appeal for Ontario

Date: 2017-04-07 Docket: C60625

Judges: Feldman, Rouleau, and Roberts JJ.A.

Between

Her Majesty the Queen Respondent

and

Venese Sinclair Appellant

Counsel

Najma Jamaldin and Paul Genua, for the appellant

Christopher Walsh, for the respondent

Hearing

Heard: March 9, 2017

On appeal from: The conviction entered on April 14, 2015 by Justice K. Barnes of the Superior Court of Justice, sitting with a jury.

Endorsement

[1] The appellant appeals her conviction for importing cocaine into Canada.

[2] The appellant returned home to Canada after visiting a friend in Trinidad and Tobago. She carried in her luggage eight tins, which she told Canada Border Security officers contained juice. She was subject to routine questioning and search of her luggage, and made various statements to the officers. Upon x-ray inspection by the officers, it was discovered that the tins contained liquid cocaine. The appellant was arrested.

[3] The appellant brought a pre-trial application before the trial judge to exclude the various statements that she made to the border officers. The trial judge dismissed her application and admitted the statements into evidence at her trial. Following the jury's guilty verdict, she received a six-year custodial sentence.

[4] The appellant submits that the trial judge: (a) misstated the test for detention; (b) misapprehended the evidence as to when she was detained and when her section 7 and 10(b) Charter rights were engaged. Her initial position was that she was detained from the moment of her arrival at the airport border, arguing that the border officers had a sufficiently strong particularized suspicion that she was committing a drug offence because she was the subject of a drug look-out. That position was not pressed in oral argument. In the alternative, she submits that she was detained after the officers opened her luggage and discovered the tins. In either event, she maintains that all of her statements to the border officers after her detention should have been excluded from the evidence at trial, and that the trial judge erred in failing to exclude them.

[5] We do not accept these submissions.

[6] As the trial judge correctly noted at para. 50 of his reasons, travellers seeking admission to Canada are not subject to detention engaging their section 7 and 10(b) Charter rights simply because they are required under the Customs Act to answer routine questions or submit to routine searches. Indeed, as this court stated in R. v. Jones, 81 O.R. (3d) 481, at para. 40, given the duties that border officers must discharge to protect Canadian borders under the Customs Act, in a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. It is also well-established in the case law that a person arriving at the border can reasonably expect that luggage will be put through a routine search: Jones, at para. 30. This may include x-raying or ion scanning: R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168, at para. 75, referencing Kelly v. Palazzo, 2008 ONCA 82, 89 O.R. (3d) 111 (C.A.), at para. 53, leave to appeal refused [2008] S.C.C.A. No. 152.

[7] Referencing this court's decision in Jones, at paras. 40-42, the trial judge also properly observed that there reaches a point, however, where routine questioning and searches become a detention and Charter rights are engaged. As this court noted in Jones, at para. 42:

[T]he 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 Jacoy v. The Queen, [1988] 2 S.C.R. 548.

[8] The appellant argues that the border officers went beyond routine questioning and searches once they opened her luggage and saw the tins because it was then that they had a sufficiently strong particularized suspicion to warrant a more intrusive form of inquiry, namely the x-ray examination of the tins. According to the appellant, the trial judge erred in failing to find that the appellant was detained at that point.

[9] We disagree. The trial judge carefully reviewed the evidence concerning the appellant's interactions with border officers and set out his conclusions on the issue of detention at para. 57 of his reasons, as follows:

In the present case, upon an objective review of all the circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I conclude that Officer Rodgers had a sufficiently strong particularized suspicion to warrant a more intrusive form of inquiry after she showed Ms. Sinclair the x-ray images and Ms. Sinclair asked, "What's in it?" At this point, on the basis of her sufficiently strong particularized suspicion, Officer Rodgers decided to conduct a more intrusive inquiry.

[10] The trial judge found that it was at this point that the appellant was detained. There is no dispute that the appellant made no further statements to border officers.

[11] We see no error in the trial judge's analysis. It was open to him on the record to find that the questioning and searches carried out to the point where the x-ray images of the tins appeared, and the appellant asked her question, were routine. As a result, there was no error in the trial judge's admission at trial of the appellant's statements to border officers prior to that point. There is no basis to interfere.

[12] Following the hearing of the appeal, appellant's counsel asked to submit additional case law for our review: R. v. Morgan, [2017] O.J. No. 262 (S.C.J.). It does not change the outcome of this appeal.

[13] Accordingly, the appeal is dismissed.

"K. Feldman J.A."

"Paul Rouleau J.A."

"L.B. Roberts J.A."