COURT OF APPEAL FOR ONTARIO DATE: 20211109 DOCKET: C67808
Hoy, Trotter and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen Respondent
and
Latoya Ceballo Appellant
Counsel: Nathan Gorham, appearing as duty counsel Scott Wheildon, for the respondent
Heard: September 8, 2021 by video conference
On appeal from the conviction entered on August 8, 2019, by Justice Jennifer Woollcombe of the Superior Court of Justice, with reasons at 2019 ONSC 4617.
Paciocco J.A.:
Overview
[1] Latoya Ceballo was arrested at Pearson International Airport on February 2, 2014, after arriving from St. Maarten with 3.2 kilograms of cocaine in her possession. The cocaine was discovered when she was searched incident to her arrest, which occurred after she admitted during a secondary customs inspection that she had drugs strapped to her body. She was charged with importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[2] At her trial, Ms. Ceballo applied pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude from evidence the cocaine that was found on her person. That Charter application was based, in part, on her submission that, by the time she admitted to having the drugs, she was already detained but had not been promptly advised of the reason for her detention, or of her right to consult counsel without delay, contrary to ss. 10(a) and 10(b) of the Charter.
[3] The Border Services Officer who took charge of Ms. Ceballo’s secondary inspection was Border Services Officer Gilbey (“BSO Gibley”). As I will explain below, to establish that Ms. Ceballo was detained, thereby triggering her s. 10 Charter rights, Ms. Ceballo’s trial counsel (“trial counsel”) had to establish that prior to Ms. Ceballo’s admission that she was in possession of cocaine, BSO Gilbey either engaged in intrusive, non-routine investigation of Ms. Ceballo, or had formed a strong particularized suspicion that Ms. Ceballo was committing an offence, and had decided to commence an intrusive investigation. [^1]
[4] Ms. Ceballo’s trial proceeded as a blended Charter voir dire. The parties agreed that if her s. 24(2) Charter application failed to lead to the exclusion of the evidence Ms. Ceballo should be found guilty. The Charter application failed because the trial judge concluded that Ms. Ceballo had not been detained when she admitted to possessing the cocaine, and she was convicted. She was given a global sentence of six years and three months imprisonment.
[5] Ms. Ceballo has appealed both her conviction and her sentence. Those appeals have been bifurcated, on consent. This is her conviction appeal. She submits [^2] that the trial judge erred in denying her Charter application by failing to consider the cumulative effect of the evidence in determining whether she was detained when she made the admission and by misapprehending material evidence. For reasons that follow I would dismiss Ms. Ceballo’s conviction appeal.
Material Facts
[6] Upon her arrival, Ms. Ceballo was the subject of a Canada Border Services Agency Target Synopsis (known as a “lookout”). The computerized lookout provided her flight details and identified her as a target for “contraband”. The lookout alluded to her criminal record for fraud, noted that she was travelling alone on a “go-show ticket” after not having travelled since 2010, that she had been on a five day trip to a “country of high interest for contraband smuggling”, and that she had been the “very last person to board the plane sequentially”.
[7] The lookout included the following requests to the border service officials who would be dealing with Ms. Ceballo: (1) “Please conduct a progressive secondary examination to build any reasonable grounds, considering all methods of concealment such as body packing, ingestion and stuffing”; (2) “Please utilize all resources such as XRAY and ION”; and (3) “Please verify means and funding of travel – and purpose for last minute travel”.
[8] BSO Gilbey was responsible for “roving” among arriving passengers in the baggage hall. He spoke briefly with Ms. Ceballo and marked her arrival card for a secondary customs inspection. After she claimed her luggage, he conducted the secondary inspection, which commenced at 10:24 p.m.
[9] In his evidence-in-chief, BSO Gilbey testified that Ms. Ceballo remained calm during that inspection. He questioned her about the purpose and funding for her travel. She told him she had stayed alone in a resort. She said her boyfriend purchased the ticket for her because she was upset about having miscarried a child, an explanation BSO Gilbey found to be “an odd story”. He asked her what she and her boyfriend did for a living and about their income. He examined the contents of her purse, which were unremarkable, and conducted an “ion” swab at 10:33 p.m. The ion swab came back with a positive reading for cocaine. This reading signified that the purse had been in contact with cocaine at some undeterminable point in time. BSO Gilbey advised Ms. Ceballo of the result of the ion test and she told him she had borrowed the purse from a friend. She said she did not use drugs. At 10:42 p.m. he asked Ms. Ceballo if she had drugs with her today, and she replied “no”. At 10:47 p.m., while he was examining her luggage, BSO Gilbey asked Ms. Ceballo “straight out if she had drugs strapped to her body”. He testified that he asks such direct questions to gauge a traveller’s reaction. It was at this point that Ms. Ceballo admitted that she was in possession of drugs, and he arrested her.
[10] During cross-examination, trial counsel attempted to secure complete details about the questions BSO Gilbey had asked. This effort met with limited success because BSO Gilbey testified that he could not remember questions that produced the information he had recorded. BSO Gilbey also confirmed that there was a gap of approximately five minutes in his notes, between 10:42 p.m. to 10:47 p.m., and testified that he could not recall if there was conversation during that five-minute period. He “believed” he was examining her baggage at the time.
[11] When the suggestion was put to BSO Gilbey that he had told Ms. Ceballo that she would be searched, he responded that “[i]t’s fair to say that [he] might explain the customs process to her”, including his authority to conduct more invasive searches under s. 98 of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) (“s. 98”). He could not recall specifically having done so but testified that this was his practice. He responded to the suggestions that he might have told Ms. Ceballo that she was going to be subject to a pat down by saying “I don’t recall”. When it was suggested to him that he might have told Ms. Ceballo that she would be subject to a strip search he said “[i]t’s possible”, but added that “[g]enerally, it’s explaining the process”. When the suggestion was repeated that he possibly told Ms. Ceballo she was going to be subject to a more invasive search he answered, “It’s possible that I explained the process.”
[12] BSO Gilbey was asked periodically during his testimony about his level of suspicion that Ms. Ceballo was committing a criminal offence, and whether he believed he had grounds to detain her pursuant to s. 98. BSO Gilbey denied having a particularized or strong suspicion that Ms. Ceballo was committing an offence, or sufficient grounds to detain Ms. Ceballo prior to her admission that she had cocaine on her body. He explained why individual indicia of possible criminality that he discovered prior to her arrest were not significant. For example, he testified that individuals placed on lookout may simply be wanted on a warrant, and many innocent people are coded that way; innocent people often have odd stories or “strange answers”; and he often fails to find narcotics after a positive ion test result, and the main impact of the ion test was to give him another question to ask.
[13] During submissions, trial counsel challenged the credibility of BSO Gilbey’s testimony. He submitted that BSO Gilbey had “designed” his notes to avoid scrutiny and was “refusing to say what he said to [Ms. Ceballo]” during the five-minute time-period when he took no notes. He asked the trial judge to infer that somewhere during the five-minute gap the questions BSO Gilbey asked Ms. Ceballo “got more harsh and more specific”. He also challenged the credibility of BSO Gilbey’s testimony that he did not believe he had strong suspicion or grounds to detain Ms. Ceballo until she admitted that she had drugs strapped to her body.
[14] The trial judge did not accept trial counsel’s submissions. She found that although BSO Gilbey’s notes were deficient, his testimony was credible. She recognized the gaps in his testimony but said, “[I]t is the applicant who must establish that she was detained.” She found that the evidentiary record did not support a finding that Ms. Ceballo was detained. She accepted BSO Gilbey’s testimony that he did not believe subjectively that he had grounds to detain Ms. Ceballo for a Customs Act search, and found that he “lacked grounds, objectively, to detain [her] prior to her admission to having narcotics.” She held, as well, that there is “no evidence that [he] conducted anything other than a normal and routine screening procedure”. She therefore denied the Charter application and ultimately convicted Ms. Ceballo.
Issues
[15] Ms. Ceballo submits that the trial judge erred in finding that she was not detained prior to arrest because she examined the indicia of detention in a piecemeal fashion rather than evaluating the cumulative impact of the evidence.
[16] She also argues that the trial judge misapprehended the evidence by making a finding that BSO Gilbey said that “he does not recall, what, if anything further he asked in the period between 10:42 and 10:47 p.m.” She submits that the trial judge further misapprehended the evidence by finding that BSO Gilbey testified that “he did not recall reading the lookout, although he believed he had.”
[17] Although Ms. Ceballo marshalled the alleged misapprehensions of evidence in support of her claim that the trial judge did not consider the indicia of detention cumulatively, it is convenient to address the issues as follows:
A. Did the trial judge err by considering the evidence piecemeal? B. Did the trial judge misapprehend evidence?
Analysis
The Relevant Legal Principles
[18] As Doherty J.A. explained in R. v. Jones (2006), 2006 ONCA 620, 81 O.R. (3d) 481 (C.A.), at paras. 30-35, given the importance of Canada’s effective control over its borders, no one entering Canada reasonably expects to be left alone by the state. As a result, routine inspection of persons entering Canada is not stigmatizing, and principles of fundamental justice permit greater interference with personal autonomy and privacy than would ordinarily be acceptable in a free and democratic society. The concept of detention is tailored to this reality.
[19] Accordingly, the restraint a traveller is under to either comply satisfactorily with a customs inspection or be denied entry into Canada does not constitute detention: R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.), at p. 207. Nor is it enough to trigger a detention that the traveller has been subjected to “secondary screening”: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1073. In the context of a traveller crossing the border, there are two alternative ways of identifying when the line has been crossed and a detention will occur.
[20] The first approach is settled and non-controversial. It “depends primarily on the intrusiveness of [the] state action”: Jones, at para. 32. Barnes J. described the “intrusiveness test” with clarity in R. v. Sinclair, 2016 ONSC 877, at para. 43, aff’d 2017 ONCA 287 (“Sinclair (ONCA)”), leave to appeal to SCC refused, 37625 (November 23, 2017), by observing that “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.”
[21] The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters, 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA), at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters, at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones, at paras. 20-21, 37; R. v. Sahota, 2009 ONSC 44280 (Ont. S.C.), at para. 6.
[22] By contrast, searches conducted pursuant to s. 98 of the Customs Act, including strip searches, body cavity searches, and “bedpan vigils”, are intrusive and will trigger a finding of detention: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 521; R. v. Monney, [1999] 1 S.C.R. 652. Of more immediate relevance to the instant case, questions cross the line and become intrusive when they amount to a coercive or adversarial interrogation, contain improper inducements, or exert unfair pressure: Jones, at paras. 41-42; R. v. Darlington, 2011 ONSC 2776, at paras. 75, 79.
[23] In Jones, Doherty J.A. recognized that there may be a second approach for identifying detention. Speaking in the context of investigative questioning, he left open the possibility that, although it will not be enough to establish detention that the border services officer has targeted the traveller for criminal investigation, if the border services officer has “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”: Jones, at para. 42.
[24] In Sinclair (ONCA), this court appears to have applied this approach in an endorsement decision. It upheld Barnes J.’s conclusion that a detention occurred when a border services officer asked what was arguably a routine question in circumstances where objectively the border services officer had “sufficiently strong particularized suspicion” and subjectively “decided to conduct a more intrusive inquiry”. It also approved of his reasoning, quoting the heart of Barnes J.’s analysis, at para. 9:
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 suspicion, Officer Rodgers decided to conduct a more intrusive inquiry.
[25] In Peters, the trial judge used the alternative test that Doherty J.A. left open in Jones to determine whether Mr. Peters was detained. On appeal, again in an endorsement decision, a panel of this court described this more subjectively focused detention inquiry as “the correct analysis”: Peters, at para. 8. Similarly, in Sahota, at para. 48, van Rensburg J., as she then was, found the accused to have been detained once the border services officer concluded he had reasonable and probable grounds to arrest him after finding suspicious bulges in a suitcase and x-raying the suitcase.
[26] It may be that for a detention to occur, another step is required. Namely, in addition to having a sufficiently strong particularized suspicion, and a subjective decision to engage in an intrusive investigation or detain the subject, the border services officer may have to engage in some action that makes that intention known to the traveller. This requirement is consistent with the foundation for the constitutional concept of detention, resting as it does in the physical or psychological detention of the accused: Simmons, at pp. 515-21. There is also authority, including the decision of this court in Kwok, to support the need for some act by the border services agent that indicates their intention to engage in more intrusive investigation or to detain the subject.
[27] In Kwok, the Crown conceded that the appellant, who was ultimately found to be importing heroin, was detained when a senior immigration officer decided to detain him. Finlayson J.A. could not accept that position. He stated, at p. 207:
Surely there must be some action on the part of the immigration authorities to indicate that the restriction on the immigrant’s freedom has gone beyond that required for the processing of his application for entry …. In my opinion, the appellant was detained when [the senior immigration officer], having filled out the detained convention letter, invited the appellant … into his office with the intention of advising them of his decision to detain them (emphasis added).
[28] In Dehghani, at p. 1068, Iacobucci J., writing for the court, cited this passage from Kwok with apparent approval. He then distinguished Kwok on the basis that “there was no ‘action on the part of the immigration authorities to indicate that the restriction on [the appellant’s] freedom ha[d] gone beyond that required for the processing of his application for entry’”: Dehghani, at p. 1072.
[29] The need for some action by the border services agent that demonstrates their decision to engage in more intrusive measures also finds support in Simmons. There Dickson C.J. found, for a majority of the court, that a traveller was detained once informed that she would be strip searched. He noted, at p. 521, that when this occurred, “the appellant could not have refused and continued on her way.” He made a similar finding in the companion case of R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the accused was ushered into an interview room for the purposes of conducting a search. In each case the trigger for detention was not the formulation of the subjective intention to engage in intrusive investigation, but rather the steps that had been taken to commence the intrusive investigation, which steps would have made the subject aware that the border services officer had decided to go beyond a routine investigation.
[30] I need not attempt to resolve the full reach of this second, alternative mode of identifying detention. As I will explain, in my view even if no conduct by the border services agent is needed to trigger a detention where objectively the border services agent has a sufficiently strong particularized suspicion, and has made the subjective decision to engage in an intrusive investigation, the trial judge did not err in this case in finding that Ms. Ceballo was not detained.
A. Did the trial judge err by considering the evidence piecemeal?
[31] I agree that it would be erroneous for a trial judge to approach a detention determination by looking at the indicia of detention piecemeal or individually, without considering the evidence cumulatively: R. v. Chehil, 2013 SCC 49, [2013] 2 S.C.R. 220, at paras. 67-69; Darlington, at para. 75. However, in my view the trial judge did not do so.
[32] In support of her position, Ms. Ceballo relied on the fact that the trial judge addressed the key indicia of detention serially – in this case the lookout, the ion scan, and the conversation. This, however, is not a dependable indication that the trial judge has failed to consider those indicia cumulatively. The significance of each individual indicia of detention must be assessed individually before their cumulative effect can be gauged. Here the trial judge properly described the task before her, noting explicitly that determining whether a traveller “is detained for constitutional purposes, is fact-specific and includes consideration of all of the evidence”.
[33] Ms. Ceballo’s central submission in support of this ground of appeal appears to be that despite what the trial judge said, she must have evaluated the evidence piecemeal because if she had evaluated the evidence cumulatively she would inevitably have concluded that Ms. Ceballo was detained. Again, I disagree.
[34] I am not persuaded that a cumulative view of the evidence reasonably required the trial judge to find that BSO Gilbey went beyond routine investigation and engaged in a more intrusive form of inquiry.
[35] In considering whether routine forms of inspection were exceeded the trial judge was correct to emphasize that the burden was on Ms. Ceballo, the Charter claimant, to establish that she was detained. Yet Ms. Ceballo chose not to present evidence on this issue. The only material evidence the trial judge was left with came from BSO Gilbey, and that evidence established only routine searches of Ms. Ceballo’s belongings and routine questioning. It may well be that the line would have been crossed if Ms. Ceballo had proved that during questioning BSO Gilbey told her that she was going to be strip searched. However, BSO Gilbey’s concession during cross-examination that it was possible he said this to her is not affirmative evidence that he did so, and in any event, his evidence, fairly interpreted, was that he believed he only described his s. 98 powers but did not threaten to use them. Nor would it have been appropriate for the trial judge to speculate that some other unproven intrusive form of investigation may have occurred during the five-minute period during which BSO Gilbey took no notes. She was correct in declining the invitation to do so. I see no error in the trial judge’s determination that Ms. Ceballo failed to prove that BSO Gilbey exceeded routine forms of investigation.
[36] Nor am I persuaded that the only reasonable conclusion that the trial judge could have come to was that objectively, BSO Gilbey had formed a “sufficiently strong particularized suspicion” and that he had subjectively decided to engage in an intrusive investigation.
[37] With respect to the strength of BSO Gilbey’s suspicion, I do not accept Ms. Ceballo’s apparent premise that targeting a traveller for investigation for a specific kind of offence amounts to a particularized suspicion. Whether it does so will depend on the cogency of the information supporting the suspicion. As Doherty J.A. pointed out in Jones, at para. 40:
In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation…. It only makes good sense that those responsible for enforcing border regulations will focus their routine questions and searches on persons who have for some reason attracted their interest.
[38] There is therefore an important difference between having general suspicion that a person seeking entry could be engaged in criminality and having the sufficiently strong particularized suspicion that can open the door to a finding of detention. For this reason, the mere fact that the traveller has been targeted for investigation, even for a suspected general category of offence, does not constitute a sufficiently strong particularized suspicion: Sahota, at para. 47.
[39] In my view, the trial judge was entitled to find that Ms. Ceballo was not detained. The tip or lookout was not particularly significant. It disclosed only that Ms. Ceballo presented with a general profile that warranted attention. Similarly, it was open to the trial judge on the evidence before her to find, as she did, that the ion scan result did not have particular significance. The trial judge also considered the exchange that occurred between BSO Gilbey and Ms. Ceballo. She was entitled, on this record, to conclude that prior to Ms. Ceballo’s admission that she had cocaine in her possession BSO Gilbey did not have objective grounds to detain her. Although it would have been preferable for the trial judge to have said expressly that she was not satisfied that BSO Gilbey had a sufficiently strong particularized suspicion to trigger a detention, that was the clear purport of her comments, and I would take no issue with that outcome.
[40] Similarly, the trial judge was entitled to accept BSO Gilbey’s testimony that he did not believe subjectively that he had grounds to detain Ms. Ceballo prior to her admission that she had cocaine strapped to her body. Ms. Ceballo has not challenged that factual finding, and during oral argument, duty counsel made clear that BSO Gilbey’s credibility was not an issue in this appeal. Once again, although it would have been better had the trial judge spoken directly about whether BSO Gilbey had formed an intention to engage in more intrusive investigation prior to Ms. Ceballo’s admission, it is clear that she was not persuaded that he had.
[41] I would therefore dismiss this ground of appeal.
B. Did the trial judge misapprehend evidence?
[42] I do not agree with Ms. Ceballo’s submission that the trial judge erred by misapprehending evidence.
[43] The trial judge’s finding that BSO Gilbey “said he does not recall what, if anything further he asked in the period between 10:42 and 10:47 p.m.” is true to his testimony. The fact that BSO Gilbey was prepared to concede the possibility that lines of conversation suggested to him may have occurred is not evidence to the contrary. Indeed, as he explained in his testimony, the reason BSO Gilbey left open the possibility that he had discussed the Customs Act process was that he could not remember if anything had been discussed, and this is something that he would ordinarily discuss.
[44] Things are modestly more complex with the trial judge’s comment that BSO Gilbey “testified that he did not recall reading the lookout [or Target Synopsis], although he believed that he had.” This finding accurately describes the testimony that BSO Gilbey gave during his evidence-in-chief. But it does not accurately describe what BSO Gilbey said in cross-examination when he agreed with the suggestion that he read the “target synopsis” before he spoke to Ms. Ceballo.
[45] It may therefore be that the trial judge misapprehended the evidence by failing to consider BSO Gilbey’s answers in cross-examination, but it is also possible that she may simply have preferred his evidence-in-chief. It is controversial whether I should make a finding that the trial judge misapprehended the evidence in the circumstances. But I need not decide. A misapprehension of evidence will not lead to a miscarriage of justice unless it is a mistake “as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Even if the trial judge did misapprehend the evidence as to whether BSO Gilbey read the lookout, that misapprehension did not play an essential role in the reasoning process. It would have done so if the trial judge had decided that the lookout should not factor into her determination of whether BSO Gilbey had a sufficiently strong particularized suspicion because he was unsure whether he even read it. But that is not how the trial judge proceeded. She considered the lookout in coming to her conclusion. In particular, she accepted BSO Gilbey’s testimony that the lookout was not significant, and reasoned correctly, that “a person is not detained simply because they are flagged for secondary inspection because of a lookout”.
[46] The trial judge did not err by misapprehending evidence.
Conclusion
[47] I would dismiss Ms. Ceballo’s conviction appeal.
Released: November 9, 2021 “A.H.” “David M. Paciocco J.A.” “I agree. Alexandra Hoy J.A.” “I agree. Gary Trotter J.A.”
[^1]: As I will also explain below, it may be the case that in order to establish detention based on a strong particularized suspicion, it must be shown that the person conducting the customs inspection in some way communicated to the subject that the decision to detain them or subject them to more intrusive investigation has been made. [^2]: The conviction appeal was an inmate appeal, and Ms. Ceballo was generously and ably assisted by duty counsel on her behalf. It is convenient to refer to the arguments made on appeal as her submissions.
