COURT FILE NO.: CRIMJ(F) 102/10

DATE: 20120619

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Darren Anger, for the Respondent

Respondent

• and -

SARAH JACKMAN

Charles Granek, for the Applicant

Applicant

HEARD: May 28, 29, 30, 31; June 1, 4, 5, 6, 2012

RULING ON CHARTER OF RIGHTS AND VOLUNTARINESS ISSUES

F. Dawson J.

[1] On August 26, 2008 Sarah Jackman arrived at Toronto’s Pearson International Airport on a flight from Guyana. Although it was unknown to her at the time, a dog trained to detect the odour of firearms and a number of illegal drugs alerted on her while she was standing in line waiting to undergo primary customs inspection. As a result of the dog alert a border services officer (BSO) who was working in the post-primary inspection area spoke to Ms. Jackman and coded her customs declaration card so that she would be referred for a secondary customs inspection once she had retrieved her checked luggage. Approximately four kilograms of cocaine were subsequently found hidden in Ms. Jackman’s luggage during that secondary customs examination.

[2] By way of pre-trial application the defence moves for exclusion of the cocaine and of all other evidence against Ms. Jackman on the basis of a number of alleged Charter of Rights violations. In particular, Ms. Jackman submits that the use of the detector dog without reasonable grounds to believe, or at least reasonable suspicion to believe, that she was carrying contraband, constituted an unreasonable search and seizure in violation of s. 8 of the Charter. She also submits that from the time of the dog alert she was subject to detention as she would not have been permitted to leave the customs area without undergoing a secondary inspection. As she claims she was subject to detention she submits she should have been advised of her right to counsel at that time and that failure to do so constituted a violation of s. 10(b) of the Charter.

[3] Ms. Jackman alleges that her Charter rights were violated in a number of other ways. I will outline those allegations during my analysis, which will be divided into a separate consideration of the pre-arrest and post-arrest interactions between Ms. Jackman and the authorities.

[4] Ms. Jackman submits that as a result of these Charter violations the evidence against her should be excluded pursuant to s. 24(2) of the Charter.

[5] In addition, Ms. Jackman submits that the Crown has failed to prove the voluntariness of her pre and post-arrest utterances beyond a reasonable doubt.

[6] As I will explain in the reasons which follow, I have come to the conclusion that Ms. Jackman’s s. 10(b) right to counsel was violated due to the approximately one hour and forty minute delay in implementation of that right. I would exclude the evidence that was obtained in consequence of that violation. I further find that BSO Fletcher violated Ms. Jackman’s s. 8 rights when she conducted a strip search as a matter of policy without determining on an individualized basis whether a strip search was necessary in the circumstances of the arrest.

[7] I also conclude that the Crown has failed to prove voluntary beyond a reasonable doubt the utterances that were made by Ms. Jackman in response to the questions asked by an RCMP officer who said the information he requested was being collected for bail purposes. Those responses by Ms. Jackman are accordingly inadmissible.

[8] For the reasons that follow I am unable to accept the balance of Ms. Jackman’s submissions. In particular, I reject her contention that the use of the detector dog constituted an unreasonable search, resulted in her detention, or placed her in a position vis-a-vis the BSOs she dealt with such that her right to remain silent as protected by s. 7 of the Charter was violated.

Factual Background

[9] BSO William Gilbey was with his detector dog Mingo in Terminal 3 on the evening of August 26, 2008. He was roaming with Mingo in the pre-primary inspection area line up. His purpose was to have Mingo walk by all of the passengers arriving on a flight from Guyana as it was a flight known to carry drugs.

[10] Both BSO Gilbey and his dog had been certified for the detection of firearms and certain illegal drugs. No challenge has been made to that certification.

[11] Mingo indicated on Ms. Jackman by sitting down. Ms. Jackman, who testified on the Charter voir dire but not on the voluntariness voir dire, said she almost ran into the dog. However, she was not aware of the dog alert.

[12] Ms. Jackman was interviewed by a primary inspection officer who was not aware of the dog alert. Ms. Jackman’s customs declaration card was coded by the primary officer in such a way that, in the normal course, she would be free to leave the customs area after she picked up her checked luggage.

[13] After Mingo alerted on Ms. Jackman, BSO Gilbey used his radio to broadcast that fact and Ms. Jackman’s description to officers working in the post-primary inspection area.

[14] BSO Carolyn Fletcher was part of an enforcement team working in the post-primary area. Upon hearing Gilbey’s radio transmission she located Ms. Jackman based on her description. She asked to see Ms. Jackman’s customs declaration card. She asked where Ms. Jackman was coming from and whether she was travelling with anyone. BSO Fletcher then used a blue highlighter to mark Ms. Jackman’s declaration card to show that she had been the subject of a dog alert and to require that Ms. Jackman be sent to the secondary customs inspection area after she retrieved her checked bag.

[15] BSO Fletcher testified the flight Ms. Jackman arrived on was of interest because it was arriving from a drug source country. She also testified that she had no thought of arresting or detaining Ms. Jackman when she first encountered her because the dog alert did not mean that Ms. Jackman was transporting contraband, but simply indicated exposure to something the dog was trained to detect. BSO Gilbey gave similar evidence.

[16] After Ms. Jackman picked up her luggage she encountered a “point officer” on duty near the exit to the customs area. When the point officer saw the markings on Ms. Jackman’s declaration card he directed her to the secondary inspection area where BSO Fletcher was waiting to do a secondary examination.

[17] At the secondary counter BSO Fletcher asked Ms. Jackman where she was coming from and was told Guyana. In response to questions, Ms. Jackman said the purpose of her trip was to visit her father, that it was her first trip to Guyana and that she stayed in a hotel. Asked why she stayed in a hotel if she was visiting her father Ms. Jackman said her father lived in the country and she wanted to stay in the city. Ms. Jackman commented that her bag was heavy when she was asked to place it on the counter.

[18] BSO Fletcher said she asked Ms. Jackman if the bag was hers, whether she packed it herself and whether she was aware of the contents. Ms. Jackman answered “yes” to the first two questions and “I think so” to the third.

[19] The bag was opened and emptied but BSO Fletcher noticed it still had considerable weight. Consequently, the bag was x-rayed. BSO Fletcher testified she could see on the x-ray that something was hidden inside the lining of the bottom of the bag.

[20] At that point BSO Fletcher told Ms. Jackman she was under arrest for smuggling goods into Canada, the importation of which is prohibited, controlled or regulated pursuant to the Customs Act (R.S.C., 1985, c.1 (2nd Supp.)) or any other Act of Parliament. She then administered a form of caution to the effect that Ms. Jackman was not obligated to say anything and that if she did it may be used in evidence. This was followed by a s. 10(b) rights to counsel advice that BSO Fletcher testified she read from a booklet that was provided to her by her employer. There is a dispute about the contents of the caution and rights to counsel as read to Ms. Jackman. I will deal with those disputes when I analyse the various Charter arguments.

[21] The arrest was at 10:27 p.m. Ms. Jackman indicated that she wished to speak to duty counsel. However, a call was not placed to duty counsel until 11:41 p.m. The intervening time was then spent waiting in the secondary inspection area for the arrival of a female assist officer. That officer, BSO Danielle Sharkey, arrived at 11:15 p.m. Ms. Jackman then asked to use the washroom at 11:19 p.m., and was taken to the “drug loo” facility, a special toilet that allows for the observation and examination of any discarded or excreted contraband. At 11:40 p.m. BSOs Fletcher and Sharkey took Ms. Jackman to a “search room”. A call was placed to duty counsel from that room at 11:41 p.m. Duty counsel did not call back until 12:16 a.m. on August 27.

[22] After the call was placed to duty counsel BSOs Fletcher and Sharkey waited 21 minutes before commencing a strip search of Ms. Jackman.

[23] Ms. Jackman made brief utterances at various times following her arrest and prior to speaking to duty counsel. Ms. Jackman seeks to have them excluded from evidence pursuant to s. 24(2) of the Charter. I will describe those utterances below.

[24] By the time duty counsel called back at 12:16 a.m. the strip search had been completed. Ms. Jackman spoke to duty counsel for nine minutes and said afterwards that duty counsel was “cool” and that she was satisfied with the legal advice she received.

[25] BSOs Fletcher and Sharkey described Ms. Jackman as exhibiting unusual behaviours. They said she was often crying, but would then suddenly appear calm, or be laughing or singing, before returning to crying. This changeable emotional state continued throughout the time Ms. Jackman was detained following her arrest, including after she was turned over to Cst. Sheedy of the RCMP at approximately 1:17 a.m. on August 27, 2008.

[26] Cst. Sheedy re-arrested Ms. Jackman, this time on the more serious charge of importing a controlled substance contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. He read her a caution and rights to counsel on that specific charge. Ms. Jackman said she understood and that she would “wait until tomorrow morning” because “I already speak (sic) to a lawyer”.

[27] After arrival at the Airport Detachment of the RCMP Ms. Jackman was subjected to a further strip search by Sgt. Bonnie Ferguson (then Cpl. Ferguson) who was the watch commander on duty. Sgt. Ferguson said she observed the accused’s unusual emotional state and said she was aware that Ms. Jackman had said she was thinking of killing herself. BSO Fletcher had previously noted an alert on CPIC that said Ms. Jackman was suicidal. Ms. Jackman had also told BSO Fletcher that she was thinking of killing herself, but was not planning on doing anything at that point in time.

Analysis

The Pre-Arrest Period

[28] Ms. Jackman bases her argument that the use of the detector dog constituted an unreasonable search on the decision of the Supreme Court of Canada in R. v. Kang-Brown 2008 SCC 18, [2008] 1 S.C.R. 456. In that case the court was dealing with the use of a detector dog at the Calgary bus terminal, not at an international border. In a companion case, R. v. A.M. 2008 SCC 19, [2008] 1 S.C.R. 569, the court was dealing with the use of a detector dog in an Ontario high school.

[29] The court was substantially divided with four judgments being delivered in each case. What is clear from both decisions is that within Canada a sniff by a detector dog constitutes a search within the meaning of s. 8 of the Charter. A reading of all of the judgments in both cases indicates that all members of the court reached this conclusion on the basis that a sniff from a detector dog utilized by a state authority impinges upon a person’s reasonable expectation of privacy.

[30] However, I find the situation to be quite different when a person is crossing an international border to enter Canada. A long line of Supreme Court of Canada decisions have established that in the context of a traveller entering Canada issues that arise concerning ss. 7, 8, 9 and 10(b) of the Charter must be analysed differently than they would be in a domestic setting.

[31] For example, in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, the court held that there is a reduced expectation of privacy when crossing an international border. Travellers expect to be required to answer routine questions and be “searched” (para. 49). The court held that requiring travellers to answer questions, to have their luggage searched or to be subjected to a pat or frisk of their outer clothing upon entry to Canada raised no constitutional issues (para. 27). The court went on to indicate that such routine procedures, even when conducted on a random basis, do not constitute detention for the purpose of s. 10 of the Charter (para. 36). The court also held that it is not until the level of intrusiveness exceeds such routine matters that constitutional issues arise. Constitutional protections are then engaged. For example, when a traveller is to be subjected to a strip search they are detained and subject to full constitutional protections (para. 35-36).

[32] These basic principles have been solidified and expanded upon in a host of subsequent cases, such as Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312; R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652; R. v. Hudson (2005), 2005 CanLII 47233 (ON CA), 77 O.R. (3d) 561, 203 C.C.C. (3d) 305 (C.A.); and R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481, 211 C.C.C. (3d) 4 (C.A.).

[33] From Dehghani and Jones it is clear that the approach discussed in Simmons applies to s. 7 of the Charter as well as to ss. 8, 9 and 10. In Jones it was held that the compulsion that arises from various sections of the Customs Act for all travellers to attend before a customs officer and to truthfully answer questions did not violate the right to remain silent as protected by s. 7 of the Charter. In Dehghani, a case involving immigration questioning at the border where both ss. 7 and 10(b) issues were raised, Iacobucci J. commented, at p. 688, that “examination of a person for the purposes of entry [into Canada] must be analysed differently from the questioning of a person within Canada.”

[34] Having regard to this jurisprudence I conclude that Kang-Brown and A.M. have no application in a border crossing context. I would observe that both LeBel J. in A.M. and Binnie J. in Kang-Brown referred to the use of a detector dog in a border crossing context in a manner which tended to distinguish it from the use of a detector dog at a location within Canada. For example, LeBel J. commented at para. 1 of A.M., that a schoolyard cannot be equated to crossing a border. Binnie J. made reference to the border in a somewhat similar fashion in Kang-Brown: see paras. 19, 59, 70-72 and 103, where reference is made to that context.

[35] Due to the reduced expectation of privacy that exists when crossing a border, I conclude that in that context a dog sniff does not constitute a search for the purposes of s. 8 because there is no interference with a reasonable expectation of privacy. As held in Simmons, persons crossing borders expect to be subject to such scrutiny and so have a reduced expectation of privacy (para. 49).

[36] I would add that a sniff by a dog is far less intrusive than a luggage search or a pat down or frisk search. In Simmons, the court made it clear that the level of intrusiveness will have a determining impact on the application of the Charter at the border. I find the dog sniff as described in evidence in this case falls within the first level of intrusiveness described at para. 27 of Simmons, where no constitutional issues are raised. It follows that the fact that the dog alert led to the secondary examination and the fact that Ms. Jackman would not have been allowed to leave the customs area without undergoing that examination cannot constitute a detention for the purposes of s. 9 or 10(b) of the Charter. No one attempting to enter Canada is entitled to leave the customs area until they have been subjected to routine customs inquiries.

[37] I also reject Ms. Jackman’s submission based on para. 42 of Jones, that the dog alert constituted a particularized level of suspicion such that this case, for that reason, moved out of the realm of the routine, resulting in Ms. Jackman being detained or brought into a true adversarial relationship with the state. I accept BSO Fletcher’s testimony that she did not consider the dog alert to be a basis for arrest or detention. I accept her testimony that the dog alert only meant that Ms. Jackman had probably been exposed to a substance the dog was trained to detect. Her evidence in that regard is consistent with the dog handler’s evidence. In addition, BSO Fletcher explained that on occasion in the past she had searched individuals who had been the subject of a dog alert and found no contraband. I also note that BSO Fletcher asked Ms. Jackman if she had handled or been exposed to drugs and that Ms. Jackman said she had smoked “weed” the previous day. This demonstrates that BSO Fletcher understood that the dog alert did not provide such a particularized level of suspicion.

[38] As Crown counsel pointed out in his submissions, Mingo was trained to detect odours associated with both firearms and a number of drugs including marihuana. The recreational use of firearms and the possession and use of small amounts of marihuana are legal in some parts of the world from which persons seeking to enter Canada have travelled. For this reason it cannot be said that a dog alert in a border crossing setting is objectively capable of providing particularized suspicion that the subject of the alert is transporting contraband. Consequently, the dog alert standing alone cannot support an argument that Ms. Jackman was detained. While it may have attracted further scrutiny that is not enough to support a conclusion that she was detained or placed in a true adversarial position vis-a-vis the state.

[39] As Doherty J.A. said in Jones, at para. 40:

…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 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.

[40] I find these words to be applicable. There was nothing that occurred in the present case that takes it outside the realm of the routine in the context of a border crossing situation.

[41] There was no interference with Ms. Jackman’s reasonable expectation of privacy. She herself testified that she expected to be questioned and to perhaps have her luggage searched, as it had been in the past. Consequently, there was no search and no s. 8 violation.

[42] As the matter was routine, Ms. Jackman was not detained. The fact that the primary officer coded her as free to go, and that BSO Fletcher decided on the basis of the dog alert that she should be subject to a secondary examination, did not take the matter out of the realm of the routine. As Ms. Jackman was not detained her arguments that her s. 9 and s. 10(b) rights were violated prior to her arrest fail.

[43] For the same reasons Ms. Jackman’s claim that her right to remain silent, as protected by s. 7 of the Charter, must be rejected. The circumstances here are the same as they were in Jones. I am satisfied that Ms. Jackman was not subject to such a degree of particularized suspicion that her case was other than a routine one prior to the observation of the x-ray demonstrating something was hidden inside the lining of her luggage. Consequently, the requirements in the Customs Act that travellers answer questions posed by customs officials cannot be viewed as compulsion which triggers a s. 7 Charter violation: Jones, at paras. 41 and 42.

[44] Ms. Jackman has failed to establish any of the Charter violations she alleges in the pre-arrest period.

The Post-Arrest Period

[45] Ms. Jackman alleges several violations of her Charter rights following her arrest.

[46] Three separate violations of s. 10(b) are alleged: first, that the information provided to her about her right to counsel was deficient; second, that there was impermissible delay in the implementation of the right to counsel; and third, that there was a violation arising from the BSO’s failure to “hold off” their investigation by conducting a personal search of Ms. Jackman prior to her speaking to counsel.

[47] Three separate s. 8 violations are also alleged. First, Ms. Jackman submits there was an unreasonable “drug loo” search; second, the strip search conducted by BSO Fletcher was done arbitrarily without a consideration of whether there were grounds for it; and third, that a second strip search conducted by the RCMP was unnecessary, also done without proper grounds and therefore unreasonable.

[48] Bound into the issue concerning the strip search conducted by BSO Fletcher is whether it was a search incident to arrest or a search conducted under s. 98 of the Customs Act. There is conflicting evidence on this issue.

[49] Although there is a chronological overlap between the s. 10(b) and s. 8 issues I propose to deal with the alleged s. 10(b) violations first.

The Alleged s. 10(b) Violations

[50] BSO Fletcher arrested Ms. Jackman for smuggling contrary to the Customs Act at 10:27 p.m. She cautioned her and read her her rights to counsel. Unfortunately, the rights to counsel advice that was read to Ms. Jackman varied somewhat from the format usually used by law enforcement agencies in Ontario.

[51] Ms. Jackman was advised that she had “the right to retain and instruct counsel without delay” and that she had the right “to obtain legal advice without charge from duty counsel”. However, she was not advised that duty counsel was a lawyer. She was provided with a toll free telephone number to contact duty counsel and was told duty counsel was available 24 hours a day 7 days a week. She was also told she could apply for legal assistance without charge through the provincial Legal Aid program.

[52] Ms. Jackman was asked if she understood and she said “yes”.

[53] BSO Fletcher gave conflicting accounts of what happened next. When she initially testified she said that she then asked Ms. Jackman whether she wished “to call a lawyer now”. However, when BSO Fletcher was recalled after the defence Charter application was further particularized, she agreed in cross-examination that in her notebook she had recorded asking, “Do you wish to call counsel now?” She then agreed that her notes were probably correct and that she used the word “counsel” when asking the final question.

[54] BSO Fletcher always maintained that she read Ms. Jackman her rights to counsel from a booklet that was provided to her by her employer. However, when the booklet in her possession was produced it had the question, “Do you wish to speak to a lawyer now?”, written in by hand. BSO Fletcher testified that she was told to write that in by a supervisor because it had been left out when the booklets were printed. She had no recollection as to when she was advised to write that question in. Consequently, it is not clear that the handwritten addition was in the booklet when she read Ms. Jackman her rights to counsel. Further complicating matters, BSO Fletcher testified that she is uncertain that she was using the same booklet on the day of Ms. Jackman’s arrest.

[55] In these circumstances, I am unable to conclude as Crown counsel urges me to do, that Ms. Jackman was asked whether she wished to contact a “lawyer” now. I proceed on the basis that Ms. Jackman was asked if she wished to speak to counsel.

[56] Ms. Jackman was called as a witness on the Charter application. She was examined-in-chief very briefly, and not on this particular issue. In cross-examination she testified that, despite the fact that she later told Cst. Sheedy of the RCMP that she had already spoken to a lawyer, she did not know when she was initially advised of her right to counsel that duty counsel was a lawyer. She explained that by the time she spoke to Cst. Sheedy she had come to the realization “from all the conversations” that duty counsel was indeed a lawyer. She also said in cross-examination that, “I don’t think I was fully aware that duty counsel was a lawyer”.

[57] Before proceeding further I wish to say that I found this aspect of Ms. Jackman’s evidence to be quite unconvincing. This was not dealt with in her examination-in-chief, although there had been considerable cross-examination of BSO Fletcher on this point. When Ms. Jackman was asked about this issue in cross-examination her responses were somewhat halting and uncertain. I also observe that the evidence does not reveal any conversations between the time Ms. Jackman was given her rights to counsel for the first time by BSO Fletcher and her speaking to Cst. Sheedy that would have enlightened her to the fact that counsel meant a lawyer, unless perhaps it was her conversation with duty counsel. That conversation lasted for nine minutes. Ms. Jackman testified that she knew she was receiving legal advice and that she was satisfied with the advice she received from duty counsel.

[58] The right to counsel advice that was given to Ms. Jackman made it clear that she could obtain legal advice. The reference to counsel and to duty counsel was in that context and that advice was given to her immediately upon her arrest. In such circumstances the vast majority of people would understand that counsel referred to legal counsel - a lawyer. Based on Ms. Jackman’s evidence, the manner in which she gave it, and these circumstances, I do not accept Ms. Jackman’s evidence that she did not understand that she was being advised that she had the right to contact a lawyer.

[59] I would add that, in my view, the rights to counsel advice that was provided to Ms. Jackman was sufficient to meet the requirements of the informational component of s. 10(b) in the circumstances. Ms. Jackman did not say anything to indicate that she did not understand the meaning of the words or the nature of the advice concerning her rights to counsel. As I have said, the Charter uses the word “counsel”. I was not directed to any case that says that a detainee must be told that counsel means a lawyer, although I would think that would be a requirement if the detainee expressed a lack of understanding or need for clarification. That was not the situation here.

[60] Given my conclusion on a balance of probabilities that Ms. Jackman understood that the right to contact counsel meant the right to contact a lawyer, I am satisfied on the same standard that she would have understood from what was read to her that she could call any lawyer, not just duty counsel.

[61] The argument that the requirements of the informational component of s. 10(b) of the Charter was violated, fails.

[62] I turn to the argument that delay in the implementation of Ms. Jackman’s right to counsel constituted a s. 10(b) violation. I conclude that it did.

[63] Ms. Jackman was arrested at 10:27 p.m. at the secondary counter. She was handcuffed, cautioned, and advised of her right to counsel. She immediately advised BSO Fletcher that she wanted to speak to duty counsel. However, duty counsel was not contacted until 11:41 p.m.

[64] As of the time of arrest BSO Fletcher had not yet cut into Ms. Jackman’s suitcase. She did that just after the arrest. She then did a field test to determine that the substance hidden in the suitcase was cocaine. She also saw a CPIC alert that Ms. Jackman was suicidal. Ms. Jackman told BSO Fletcher that she was thinking of killing herself. Due to this information BSO Fletcher removed scarves that Ms. Jackman was wearing around her neck and waist and frisked Ms. Jackman. This all occurred in the secondary area.

[65] BSO Fletcher explained that the main reason for the delay was that she had to arrange for a female assist officer to help her conduct a personal search of Ms. Jackman. BSO Danielle Sharkey was eventually assigned to assist and arrived at 11:15 p.m. At 11:19 p.m. Ms. Jackman said she needed to use the washroom and she was taken to the “drug loo” facility. BSO Fletcher testified that the “drug loo” was used so Ms. Jackman would not be able to discard or flush any evidence or contraband. They finally arrived in the search room at 11:40 p.m. The telephone used to contact duty counsel was in that room and the call was placed at 11:41 p.m.

[66] In my view there is no acceptable reason for the delay of approximately one hour and forty minutes. A person arrested or detained must be informed of their right to counsel immediately because concerns about self-incrimination are immediately engaged. The immediacy requirement is subject only to officer or public safety concerns or to reasonable limitations prescribed by law that are justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 27-42. It follows that the implementation component of the s. 10(b) right is to be addressed expeditiously, subject only to the same exception: Suberu, para. 38; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980.

[67] Within no more than a few minutes of being advised by Ms. Jackman that she wished to speak to duty counsel BSO Fletcher should have ensured that a call was placed. A female assist officer was not required first. If BSO Fletcher was tied up testing the substance found in the suitcase or tending to related duties another officer should have immediately been tasked with contacting duty counsel.

[68] Turning to the third s. 10(b) argument, Ms. Jackman submits that her s. 10(b) rights were violated because the authorities failed to hold off in executing their personal search of Ms. Jackman. I am unable to accept this submission.

[69] The officers were entitled to search Ms. Jackman incidental to her lawful arrest. That was not something about which Ms. Jackman had a choice. It was not something that the exercise of her right to counsel could have an impact upon. Consequently, I conclude that the officers were not required to hold off performing such a search.

[70] I observe that the execution of the search did not interfere with the exercise of the right to counsel, in which case there would be additional considerations. Here the search was conducted after duty counsel was called and before duty counsel called back.

[71] Ms. Jackman’s counsel submits that because there is some evidence that the officers thought they were proceeding with a search under s. 98 of the Customs Act, that there was an obligation to hold off because counsel had a role to play in advising Ms. Jackman that she could avail herself of having the decision to strip search her reviewed by a senior officer.

[72] I am unable to accept this submission. First and foremost, I accept BSO Fletcher’s evidence, given when she was recalled, that she was acting pursuant to her powers to search incident to the arrest and not pursuant to s. 98 of the Customs Act. While she had references to s. 98 written in her notes and narrative report she testified that she used “s. 98” as a short form for a personal search because such searches are frequently performed under s. 98 prior to contraband being found.

[73] BSO Fletcher testified that if she was acting under s. 98 she would have read the provisions of that section to Ms. Jackman. She said that she did not do that because it was a search incident to arrest. She testified that Ms. Jackman was photographed near a sign setting out the text of s. 98 as that is the location where arrestees as well as those about to undergo a s. 98 search are usually photographed. I note that when Ms. Jackman testified she did not indicate that s. 98 of the Customs Act was brought to her attention.

[74] I do not accept the evidence of BSO Sharkey where it differs from that of BSO Fletcher on this point. BSO Fletcher gave her evidence on this point convincingly and with detail. That was not so, with respect, in the case of BSO Sharkey. BSO Sharkey admitted in re-examination that she did not know the difference between a s. 98 search and a search incident to arrest. She was acting as the assist officer and did not become involved until 11:15 p.m. She was not making the decisions that night. She had only about one year of experience as of the date of Ms. Jackman’s arrest. This case has been much delayed, (at the request of the defence), which appears to have dulled memories, and BSO Sharkey has recently been off work on maternity leave. BSO Sharkey also appeared to be hesitant or unsure at many points in the giving of her evidence.

[75] I conclude BSO Fletcher was acting on the basis of her power to conduct a search incident to a lawful arrest.

[76] Second, if the officers were legally entitled to conduct a search incident to a lawful arrest, it does not seem to me that it matters that they thought they were executing a s. 98 search. Because I conclude they were entitled to search incident to arrest, something which could not be impacted by the exercise of Ms. Jackman’s right to counsel, there was no obligation to hold off the execution of that search.

[77] I wish to make clear that at this point I am not dealing with whether a search incident to arrest in the form of a strip search was justified. I will deal with whether that form of search incident to arrest was reasonable later. The point is that some form of search incident to the arrest was permissible and that there was no requirement to hold off in regards to such a search in order to avoid a s. 10(b) violation.

[78] In conclusion, I find that one violation of s. 10(b) has been established. That violation arises from the considerable delay in implementing Ms. Jackman’s right to counsel. I will deal with the application to exclude evidence as a result of this finding later in these reasons.

The Alleged Post-Arrest s. 8 Violations

[79] Counsel for Ms. Jackman first alleges that there was an illegal “drug loo” search. This arises from the evidence of BSO Sharkey, whom I have already found to be a somewhat unreliable witness.

[80] BSO Sharkey testified that after she became involved as an assist officer at 11:15 p.m., Ms. Jackman was taken to the drug loo where a urine sample and a bowel movement were demanded from Ms. Jackman in order to look for contraband. Although she did not refer to s. 98 of the Customs Act in relation to this procedure, it is clear that s. 98 is the applicable provision pursuant to which a drug loo search may be conducted: R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652.

[81] BSO Sharkey testified that a bowel movement is routinely required after an arrest in a drug importation case. I must say that has not been my experience presiding in drug importation cases in this jurisdiction which is responsible for Pearson International Airport.

[82] I conclude BSO Sharkey’s evidence in this regard is unreliable and in error. BSO Fletcher testified that following her arrest Ms. Jackman said she needed to use the washroom. She testified that no demand was made for a urine sample or bowel movement. BSO Fletcher testified that the drug loo was utilized to ensure that Ms. Jackman did not use the opportunity to discard or flush any evidence or contraband.

[83] When Ms. Jackman testified she agreed that she needed to use the toilet and that she was taken to the washroom at her request. In contradiction of BSO Sharkey’s evidence, Ms. Jackman agreed that no demand was ever made of her for a urine sample or a bowel movement.

[84] BSO Fletcher testified that she watched Ms. Jackman from outside the room while Ms. Jackman sat on the toilet and urinated. She did so because she needed to ensure that Ms. Jackman made no effort to discard evidence, but also to ensure that Ms. Jackman did not have something with which she could harm herself. This was appropriate given Ms. Jackman’s indication that she was thinking of killing herself, the CPIC alert which said she was suicidal, and Ms. Jackman’s highly variable and unusual emotional state.

[85] BSO Fletcher testified that she examined the toilet bowl and saw only urine. She did not test the urine. She then activated the special controls that allowed the drug loo to be flushed and cleaned.

[86] I find that there was not a s. 98 search in an attempt to obtain a urine sample or bowel movement. BSO Fletcher was simply accommodating Ms. Jackman’s request to use a toilet, something she was obligated to do. Watching Ms. Jackman and checking the toilet bowl were justified to prevent harm to Ms. Jackman and to ensure that she did not discard evidence. This is justifiable pursuant to the power to search incident to a lawful arrest.

[87] I turn to the reasonableness of the first strip search. After leaving the drug loo Ms. Jackman was taken to a search room at 11:40 p.m. A call was placed to duty counsel. After approximately 20 minutes without a call back from duty counsel, BSO Fletcher decided to commence a strip search to look for evidence, contraband and any weapons or means of escape.

[88] Evidence was given during the voir dire that items of body jewellery and items such as paper clips can be used to open handcuffs. Items of body jewellery, such as nipple rings and belly rings may not be found without a strip search. Handcuff keys can be hidden inside clothing items.

[89] Ms. Jackman was required to remove her items of upper body clothing one at a time. As each item was removed it was searched. Her upper body clothing was then returned to her and put back on by her. Her lower body clothing was then removed and examined. Ms. Jackman was then asked to squat three times and her anal and vaginal areas were then visually examined. Ms. Jackman was not touched during this procedure, all of which was conducted in private by the two female officers.

[90] Ms. Jackman was menstruating at the time and was embarrassed and felt degraded, although she agreed that the officers were polite and conducted the procedure in the manner they described.

[91] Based on this evidence, I find that the strip search was conducted in a reasonable manner. However, the evidence also shows that it was conducted as a matter of routine. More specifically, the evidence of BSO Fletcher shows that she did not consider whether there was a particularized basis to do a strip search in this case.

[92] When first called as a witness BSO Fletcher testified that she did a strip search because all persons under arrest for narcotics importation go through that process. Because Ms. Jackman was under arrest for narcotics, procedure required a “disrobement to ensure she had no other evidence on her”. At no point in her initial evidence, or when she was recalled to testify again after the defence application was particularized, did she say that she had considered the matter and reached the conclusion that there were grounds arising from the circumstances of this particular arrest which supported her decision to do a strip search.

[93] In R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, 2001 S.C.C. 83, the Supreme Court of Canada held that, due to the humiliating and intrusive nature of a strip search, the authorities are not automatically entitled to conduct one as part of a search incident to a lawful arrest (para. 98). Such searches cannot be carried out as a matter of routine policy (para. 90). In order to meet the constitutional standard of reasonableness the authorities must establish grounds that a strip search is necessary based on the particular circumstances of the arrest (paras. 98-99).

[94] In Golden the court was dealing with an arrest within Canada and not at a border crossing. In that context the court held that the standard to be met to justify a strip search as part of a search incident to arrest was one of reasonable and probable grounds to believe that a strip search was necessary. I conclude that the lower standard of “reasonable suspicion” is the applicable standard in the context of border crossing.

[95] In Golden, at paras. 73 and 74 of the majority judgment, Justices Iacobucci and Arbour distinguished the situation the court was considering from the “unique factual circumstance” represented by a border crossing. Making reference to Simmons and Monney, they held that the reasoning in the customs cases was not directly applicable to a search incidental to arrest conducted upon an arrestee already in Canada. I take from this reference that the reverse is also true.

[96] In Simmons the court held that the standard of reasonable and probable grounds was not the constitutional standard that needed to be met to justify a search in a border crossing context. The court held that the lesser standard of “reasonable cause to suppose”, which was found in what was then ss. 143 and 144 of the Customs Act, was sufficient to meet the requirements of s. 8 of the Charter in a border crossing context.

[97] Pursuant to s. 98 of the Customs Act as currently enacted, a customs officer may search any person who has arrived in Canada “if the officer suspects on reasonable grounds” that the person is in possession of contraband. This appears to me to be the same standard, but in modernized language, to that used in ss. 143 and 144 of the Customs Act which survived a constitutional challenge based on s. 8 of the Charter in Simmons.

[98] In my view the border crossing context is not so unique that all of the teachings of Golden can be ignored. Even when performed in privacy and with sensitivity strip searches are, as held in Simmons, intrusive. As stated in Golden, the subject of such a search may feel degraded and humiliated. The appropriate balance is to apply the requirements of Golden on the lesser standard of reasonable suspicion that received approval in Simmons.

[99] Applying Golden, but with the standard to be met modified to account for the border crossing context, the authorities must make an individualized determination that a strip search is necessary in the particular circumstances of an arrest on the standard of “reasonable grounds to suspect”. If following an arrest a BSO considers that on both a subjective and objective basis a reasonable suspicion exists that a strip search is necessary to look for evidence or contraband, to locate potential weapons or means of escape, or to ensure the safety of all involved, then a strip search incident to that arrest is justified.

[100] In the present case a strong argument can be made that on an objective basis the standard of reasonable suspicion was met. Ms. Jackman had been found with approximately four kilograms of cocaine secreted within the lining of her luggage. On the face of it she was involved in perpetrating a sophisticated and very serious deception. Experience has shown that not infrequently persons attempting to smuggle illegal drugs into Canada adopt more than one means to do so. Vaginal packs and anal plugs are means of importing such substances that are sometimes found in conjunction with body packs, swallowing or the importation of drugs in carry on or checked luggage.

[101] In addition, when someone appears to be involved in the importation of hard drugs, which could render them subject to lengthy imprisonment, a concern naturally arises that they may possess items that could be used to assist in escape. Due to the value of the illicit drugs they are smuggling and their involvement with the criminal element they may be carrying a weapon for self-protection.

[102] The problem in the case at bar arises from the fact that, on her own evidence, BSO Fletcher did not consider such factors in relation to this particular arrest. She did not formulate subjective grounds that she had a reasonable suspicion that a strip search was necessary. She testified that she performed the strip search as a matter of routine policy.

[103] As BSO Fletcher failed to consider whether there were grounds for a strip search incident to her arrest of Ms. Jackman, I find that s. 8 of the Charter was violated.

[104] Ms. Jackman submits that a second strip search which was conducted by the RCMP was unnecessary and also violated her s. 8 rights. Although no evidence was found as a result of the search, Ms. Jackman submits this violation is important when it comes to the s. 24(2) analysis with respect to the s. 10(b) violation.

[105] Cst. Sheedy of the RCMP attended at Terminal 3 at 12:01 a.m. on August 27, 2008. He was accompanied by BSO Biloski who was working with the RCMP on a form of exchange program between the two agencies.

[106] Cst. Sheedy was briefed by BSO Fletcher and examined the exhibits. He did that to formulate grounds for an arrest. He met Ms. Jackman at 1:17 a.m. and arrested her for importing a controlled substance contrary to s. 6 of the Controlled Drugs and Substances Act. He provided her with her s. 10(b) rights and a caution. He and BSO Biloski then transported Ms. Jackman to the cells at the Airport Detachment of the RCMP, which is located off the airport property.

[107] Cst. Sheedy testified that he made a request that a further “personal search” be carried out. It is apparent that request was considered by Cpl. Bonnie Ferguson who was in charge of the shift at the detachment.

[108] Both Cst. Sheedy and Cpl. Ferguson articulated clearly why they considered that a further personal search was warranted. Both Cst. Sheedy and Cpl. Ferguson testified that when the RCMP assume custody and responsibility for a prisoner who has been searched by another agency they consider the need for the RCMP to be satisfied that the prisoner does not have any evidence, weapons or means of escape on their person. Cst. Sheedy gave specific examples of finding such things on persons who had already been searched by other agencies.

[109] Cst. Sheedy said he was aware that Ms. Jackman had been in different locations while in custody at customs and he was concerned she may have picked up something that could be used to open handcuffs or as a weapon of opportunity.

[110] Both Cst. Sheedy and Cpl. Ferguson emphasized that Ms. Jackman was considered to be suicidal and testified they were concerned that she might use something she picked up to harm herself. Cpl. Ferguson, in particular, was articulate in expressing this concern. Cpl. Ferguson testified that although she expected Ms. Jackman would probably be released on bail at some point, Ms. Jackman would first be going into a detention facility, and efforts were required to ensure that Ms. Jackman did not have anything hidden on her person, such as drugs or something that could be used as a weapon, that would pose a danger in a detention facility where other inmates would be present.

[111] In the circumstances, and having regard to the detailed evidence of Cst. Sheedy and Cpl. Ferguson, I am persuaded that the second strip search was justified. Ms. Jackman’s continuing emotional instability, her history of suicidal behaviour and her statements that she was thinking of hurting herself heightened the concern for her own and for officer safety. There was also the concern that she would be spending some time in a detention facility. I have no evidence as to when Ms. Jackman was released on bail.

[112] I also observe that both Cst. Sheedy and Cpl. Ferguson testified that they carefully considered the need for a further strip search and formed the subjective view that one should be conducted for purposes which I find to be objectively reasonable in the circumstances.

[113] I also accept Cpl. Ferguson’s evidence that she carried out the search quickly, with sensitivity and in complete privacy.

[114] Although multiple strip searching will almost always raise some privacy concerns I am not satisfied that there was a s. 8 violation in relation to the second strip search based on the facts as I find them to be in this case.

Should Any of the Evidence be Excluded under [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?

[115] I accept BSO Fletcher’s evidence that after arresting Ms. Jackman and reading her her rights she did not attempt to elicit any statements from her. BSO Fletcher testified that shortly after the arrest, and while still standing at the secondary counter, Ms. Jackman said that the spouse of a friend of hers was on the same flight. I find this to be a spontaneous statement made very close to the time of the arrest.

[116] The next statement BSO Fletcher says Ms. Jackman made was that she was thinking of suicide, but that she was not going to do anything at that time. I know this was made while in the secondary area. However, I am unable to tell from the evidence how long after the arrest this statement was made. I infer from the evidence that Ms. Jackman was held in the secondary area until she asked to use the washroom at 11:19 p.m. I have no evidence that she was removed from the secondary area until after BSO Sharkey was available to assist at 11:15 p.m. Although I am of the view that the statement was spontaneous I am unable to conclude that it was made in close proximity to the time of the arrest.

[117] After Ms. Jackman was taken to the search room at 11:40 p.m. BSO Sharkey testified Ms. Jackman was muttering and said more than once that there had been a set up, and that her bag had been switched. I am satisfied that those comments were also made spontaneously and were not elicited by the officers. The fact that they were repeated mutterings tends to show they were not made in response to questions asked by the officers.

[118] In the context of a delay in the implementation of Ms. Jackman’s right to counsel, which in itself constitutes the s. 10(b) violation, I conclude the spontaneous nature of her statements is not a factor which weighs in favour of admissibility. I say this with respect to all but the first utterance that the spouse of a friend was on the same flight. I am satisfied that that statement was made so close to the arrest that it cannot be said that the delay in implementing Ms. Jackman’s right was in any way implicated in the obtaining of the statement. That cannot be said with respect to Ms. Jackman’s other utterances.

[119] Aside from her first post-arrest comment, I find that all other post-arrest utterances made by Ms. Jackman up to the time she was rearrested and given her rights again by Cst. Sheedy were, in the words of s. 24(2) of the Charter, “obtained in a manner that infringed or denied” her s. 10(b) right to counsel. If Ms. Jackman’s desire to speak to counsel had been implemented promptly she may not have made those utterances. I conclude there is a sufficient temporal and contextual connection between the s. 10(b) violation arising from delay and the utterances in question to engage s. 24(2) of the Charter notwithstanding their spontaneous nature. In reaching this conclusion I have examined the entire chain of events and applied the principles enunciated in R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463.

[120] Turning to the three categories of factors to be considered pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 in determining whether the utterances which were obtained in a manner that denied or infringed the Charter should be excluded, I find they should be. I conclude that the Charter-infringing state conduct – the delay in the implementation of Ms. Jackman’s right to counsel - was serious. This was not a short delay. There is no justification for it. Other officers were clearly available to place a call to counsel. Self-incrimination concerns were engaged upon arrest and should not have become subject to defeat due to Ms. Jackman making spontaneous statements during a period of unjustified delay in ensuring that she had the legal advice she had requested and was entitled to without delay.

[121] It is difficult to determine the impact of the breach on Ms. Jackman’s Charter-protected interests. I have not been made aware of her defence. However, given that Crown counsel wants to introduce Ms. Jackman’s utterances or use them in cross-examination should she testify, I can only conclude that the impact is of some significance.

[122] With respect to society’s interest in the adjudication of the case on its merits, the evidence in question plays a minor role in the prosecution. The Crown has far more powerful evidence against Ms. Jackman.

[123] Balancing these findings I conclude supports exclusion of the evidence. Only the first spontaneous statement made concerning a spouse of a friend being on the plane is admissible.

[124] Once Cst. Sheedy arrested Ms. Jackman on the CDSA charge of importing she was advised of her rights again and was then moved to a police detachment away from the airport itself. Ms. Jackman told Cst. Sheedy she had already spoken to a lawyer and did not wish to speak to another one at that time. Applying the principles in R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), I conclude that cumulatively these factors severed any connection between the s. 10(b) Charter violation and anything that took place after Cst. Sheedy arrested Ms. Jackman. Consequently, it cannot be said that any evidence subsequently obtained was “obtained in a manner” that violated the Charter.

[125] There is also the violation of s. 8 of the Charter arising from the strip search conducted by BSOs Fletcher and Sharkey to be considered. Ms. Jackman has not identified any evidence obtained subsequent to this violation that she seeks to exclude. She submits that the s. 8 violation shows a pattern of constitutional violations and submits that pattern should be taken into account generally on the s. 24(2) application. I have found it unnecessary to do so as there is ample reason to exclude the statements associated with the earlier s. 10(b) violation without taking the later s. 8 violation into account.

The Voluntariness Issue

[126] Ms. Jackman first submits that I should have a reasonable doubt about whether she had an “operating mind” at the time she was dealing with the authorities. This submission rests on the evidence of the BSOs and RCMP officers who dealt with Ms. Jackman to the effect that she exhibited unusual emotional behaviour in the form of crying one minute and laughing and singing the next, before crying once again.

[127] The post-Charter test for determining whether an accused had an operating mind when dealing with the authorities was discussed by the Supreme Court in R. v. Whittle, [1994] 2 S.C.R. 914. What is required is awareness on the part of the accused of what they are saying, awareness that they are saying it to the police or a legal authority, and awareness that what they are saying can be used to their detriment. The standard is not onerous. A limited cognitive capacity will suffice.

[128] In R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 the court referred to this definition of operating mind in the course of restating the confession rule. At para. 63 of Oickle the court noted that the operating mind doctrine should not be viewed as a discrete inquiry divorced from the rest of the confessions rule but as part of the overall voluntariness assessment.

[129] In my view Ms. Jackman was possessed of an operating mind. While she exhibited unusual emotional behaviour, each of the officers who dealt with her, including the RCMP officers, testified she appeared to understand what was occurring and what was being said to her. Ms. Jackman acknowledged receiving her rights and said she understood them. She was able to converse with the officers. She told Cst. Sheedy she did not wish to make a statement. On examining the whole of the evidence there is no basis for a conclusion that Ms. Jackman lacked the minimal cognitive capacity required by the operating mind doctrine.

[130] Ms. Jackman next submits that I should find that the Crown has failed to prove any of her pre or post-arrest utterances voluntary because the various officers who dealt with her, including the primary customs officer and the point officer, had no or an incomplete recollection of what transpired when they dealt with Ms. Jackman, or had no or incomplete notes.

[131] In the circumstances of this case I do not accept these submissions. The primary and point officers had no recollection of Ms. Jackman. They dealt with her very briefly in very public areas of the airport. They said they had not threatened or intimidated anyone during their shifts, nor had they made any promises or offered any inducements. I have no evidence to the contrary. I accept their evidence.

[132] BSO Fletcher was not making notes of everything that occurred when she initially encountered Ms. Jackman in the post-primary area. Nor did she do so when she was examining Ms. Jackman’s luggage, asking her routine questions, or dealing with her following her arrest. However, the evidence shows that both BSO Fletcher and BSO Sharkey made some notes for the purpose of refreshing their memory.

[133] I would point out that at no time did BSOs Fletcher or Sharkey attempt to conduct an investigative interview of Ms. Jackman. I have found that they did not attempt to elicit incriminating statements from her. There were no circumstances which called for audio or videotaping of their interaction with Ms. Jackman. The nature of their duties was not such that they were required to make notes of every detail of what transpired. In the circumstances that would have been practically impossible.

[134] During the evidence on the voir dire BSO Fletcher was cross-examined about the words she used to caution Ms. Jackman that she need not say anything but that if she did anything she did say could be used in evidence.

[135] In her testimony in chief BSO Fletcher testified that she read a caution from a booklet. She then read that to the court. What was read was similar but not identical to a standard police caution regarding the right to remain silent.

[136] In cross-examination BSO Fletcher was referred to a portion of her preliminary inquiry testimony where she went through the same exercise. However, the caution as articulated at the preliminary inquiry was somewhat different and parts of it were so grammatically incorrect as to be incomprehensible. Still, during her cross-examination BSO Fletcher accepted that if that was her testimony at the preliminary inquiry it must be what she said to Ms. Jackman following the arrest. Nonetheless, BSO Fletcher always maintained that she read the caution from the booklet.

[137] When I pointed out to BSO Fletcher that what she said at the preliminary inquiry was grammatically incorrect and made little sense she agreed she may have misread from her booklet when testifying at the preliminary inquiry.

[138] I conclude that is what must have occurred. The nature of the grammatical problems and lack of intelligibility of what was read out at the preliminary inquiry is such that I am satisfied it could not have been what was printed in the booklet provided by the Canada Border Service Agency to its BSOs. Consequently, I am not prepared to rely on the preliminary inquiry testimony as proof of what was read to Ms. Jackman notwithstanding BSO Fletcher’s initial adoption of it. That adoption is subject to her later acknowledgement that she may have misread from the booklet at the preliminary inquiry.

[139] It seems to me to be most likely that Ms. Jackman was properly cautioned as to her right to remain silent.

[140] I do note and take into account that Ms. Jackman was not given a secondary caution until BSO Sharkey became involved at 11:15 p.m. BSO Sharkey said she read a secondary caution. Ms. Jackman testified that after her arrest she continued to say things to BSO Fletcher because she had been speaking to her prior to her arrest.

[141] I have taken all of those circumstances into account together with all of the other evidence in reaching my decision on the voluntariness issue.

[142] In my view there has been no failure of proof of voluntariness based on a consideration of all the evidence on the voir dire. Ms. Jackman did not testify on the voluntariness voir dire. I accept the evidence of the various customs officers that they did not make any threats or offer any inducements to Ms. Jackman. There were no oppressive circumstances or tricks employed.

[143] Cst. Sheedy and Cpl. Ferguson gave detailed testimony of their interactions with Ms. Jackman. I accept their uncontradicted evidence concerning the nature of those interactions.

[144] Applying the principles outlined in Oickle, I have considered voluntariness in the entire context of what transpired. Based on that assessment, the only concern I have about voluntariness arises from Cst. Sheedy’s evidence.

[145] Cst. Sheedy testified that he asked Ms. Jackman if she wanted to make a statement and she said that she did not. He then told her he needed to ask her some questions related to the issue of bail. He then proceeded to ask Ms. Jackman a series of questions that did have a bearing on the subject of bail. In response Ms. Jackman gave information about her family and about her employment and financial situation. The Crown now wants to tender these questions and answers in evidence at Ms. Jackman’s trial.

[146] I am not satisfied beyond a reasonable doubt of the voluntariness of those statements. Ms. Jackman was told she would be asked questions to assist in court with the question of bail. That was said to her immediately after she said that she did not wish to make a statement. In these circumstances she may well have thought that the officer was telling her that the statements she made in response to the bail questions would only be used for the purpose of determining whether she would be released on bail. This could reasonably have been viewed as a promise not to use her statements for any other purpose. In addition, an accused person in Ms. Jackman’s position would naturally want to obtain bail. Against that background what Cst. Sheedy said could also be viewed as an inducement.

[147] These circumstances give rise to a reasonable doubt on my part as to the voluntariness of Ms. Jackman’s responses to questions she was told were being asked for bail purposes. Those statements are not admissible in evidence.

[148] However, I am satisfied beyond a reasonable doubt of the voluntariness of all other statements made by Ms. Jackman that were revealed by the evidence on the voir dire.

Conclusion

[149] The statements made by Ms. Jackman to BSOs Fletcher and Sharkey following her arrest, with the exception of the first statement that the husband of a friend was on her flight, are inadmissible due to a violation of s. 10(b) of the Charter.

[150] The statements made by Ms. Jackman to Cst. Sheedy of the RCMP after he advised her they would be used for bail purposes are inadmissible on the grounds that they have not been proven voluntary.

F. Dawson J.

Released: June 19, 2012