Court File and Parties
COURT FILE NO.: 2086/12 DATE: 2013-03-28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
LEIDDY JOHANNA LOZANO and YANETH CONTRERAS TRUJILLO Applicants
COUNSEL: Christopher Walsh, for the Respondent Artis Tiltins, for the Applicant, Leiddy Johanna Lozano Charn Gill, for the Applicant, Yaneth Contreras Trujillo
HEARD: February 25, 26, 27, March 12, 13 and 15, 2013
REASONS FOR JUDGMENT
F. Dawson J.
[1] Leiddy Johanna Lozano and Yaneth Contreras Trujillo arrived at Pearson International Airport in Mississauga on March 30, 2012 on a flight from the Dominican Republic. They are daughter and mother and were travelling together.
[2] While they were standing in line waiting to be called to a primary customs inspection booth each was the subject of an alert by a dog trained to detect the odour of firearms and certain illegal drugs. As a result, they were eventually directed to a secondary customs inspection area where their luggage and other belongings were subjected to examination.
[3] At secondary inspection Border Services Officers (BSOs) concluded that both women appeared to be heavier around their hips than recent photographs of them found on Ms. Lozano’s cell phone suggested they should be. When one of the BSOs indicated she intended to frisk Ms. Lozano, according to the officer Ms. Lozano admitted she was concealing drugs. Both women were arrested.
[4] When the women were subjected to strip searches they were found to be wearing shorts under their dresses. Each pair of shorts contained approximately six kilograms of cocaine.
[5] The accused allege various violations of their constitutional rights and seek to exclude the evidence against them on that basis. They also seek a stay of proceedings on the basis of the same violations.
[6] These motions came before me in my capacity as a case management judge pursuant to s. 551.1 of the Criminal Code. As another judge has been assigned to commence the trial in this case on March 25, 2013 and the accused women are both in custody, time is short and due to my involvement in another ongoing trial this ruling will of necessity be less thorough for those reasons.
[7] I will deal with the arguments one by one.
Did the use of a Sniffer Dog Constitute an Unreasonable Search in Contravention of s. 8 of the Charter?
[8] BSO William Gilbey testified that on March 30, 2012 he walked his sniffer dog Mingo up and down a line of people waiting to be called to a primary customs inspection booth at Terminal 3. He described Mingo as a passive 10 year old Labrador retriever who is trained to detect odours associated with firearms and certain illegal drugs. As Mingo went down one side of the line he sat beside Ms. Lozano to indicate he had detected such an odour. When Mingo walked up the other side of the line he sat down beside Ms. Contreras Trujillo to indicate that he had again detected such an odour. The two women were standing side by side and Gilbey acknowledged the possibility Mingo was detecting the odour from only one of the women. However, the dog did make two separate alerts, one beside each woman.
[9] It is clear that prior to passing by with Mingo BSO Gilbey had no reason to suspect either of the accused women. Gilbey communicated the dog alerts to members of the enforcement team who were working in the post primary area. After the primary customs officer coded the declaration card of the accused to indicate they were free to leave the women were approached by BSO Catalina Garcia who was a member of the enforcement team. Garcia was aware of the dog alerts. She spoke to the women in Spanish. She re-coded their declaration card so that they would be directed into the secondary inspection area once they had retrieved their luggage.
[10] BSO Gilbey testified that he and Mingo had been trained together and that they were required to requalify every year. He and Mingo had always passed such tests. He engaged in ongoing training with Mingo at least one day every two weeks. He explained that during training and testing Mingo had never alerted on a person or location where nothing had been hidden for Mingo to find. In other words, Gilbey was not aware of Mingo making any true “false positive” indications.
[11] BSO Gilbey testified that when Mingo was working and not training, more than 50 percent of the time no contraband was found when searches were conducted after Mingo alerted. Gilbey explained that Mingo is trained to detect the odour of firearms and drugs and not the contraband itself. Consequently, Mingo will alert if a traveller has handled a firearm or been in contact with a drug while out of the country. It is for this reason that a dog alert is not considered to be sufficient on its own to constitute grounds for a search or to serve as a basis for arrest.
[12] BSO Gilbey testified that Mingo is worked on a leash. Both Gilbey and Garcia testified that Mingo does not jump up on people. However, he may put his nose against the spot where he detects the odour. He is trained to get as close as possible to the source of the odour.
[13] Ms. Lozano testified on the voir dire. She said that she did not notice Mingo until she felt his nose on the skin of her foot. She was wearing sandals and a long dress. She said she felt the dog’s nose on her leg. She was not precise about where. She did not say whether it was under her dress. She said the dog also put its nose to her “rear end”. She explained that she was afraid or apprehensive of the dog but did not claim any phobic or unusual fear of dogs. The dog was at all times on a leash and under the control of BSO Gilbey.
[14] Ms. Contreras Trujillo did not testify on the voir dire.
[15] The accused submit that the use of the sniffer dog constitutes a search and that in the absence of reasonable grounds to suspect that the accused were committing an offence that search was unreasonable and in violation of s. 8 of the Charter. They rely on R. v. Kang Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 and R. v. A.M., 2008 SCC 19, [2008] 1 S.C.R. 569 where the Supreme Court of Canada held that the use of a sniffer dog constitutes a search which must be justified on a standard of reasonable suspicion.
[16] In R. v. Jackman, 2012 ONSC 3557, I dismissed a similar argument and was able to provide more fulsome reasons. At paras. 30-36 I explained why, in my view, Kang Brown and A.M. have no application in the context of border crossings. I referred to a long line of Supreme Court of Canada authorities, starting with R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495, in which it has been held that constitutional analysis must be performed on a different basis than usual when it comes to the context of border crossing.
[17] In Kang Brown and A.M. the court found that the use of a sniffer dog constituted a search because it impinged on a reasonable expectation of privacy. For the reasons set out in Jackman I conclude that the use of the dog in this case does not constitute a search because the accused had a reduced expectation of privacy when crossing the border to enter Canada. As indicated in Simmons and the other cases referred to in Jackman, persons crossing a border expect to be subject to a degree of scrutiny and delay which, if it occurred within Canada, could constitute a search or detention. However, in the border crossing situation considerations are different.
[18] In Simmons, at para. 27, the court held that there are three types of “search” at the border. The degree of justification required for each category depends upon the level of intrusion. The first category includes routine questioning, an examination of the contents of a traveller’s luggage and a pat or frisk of outer clothing. The court held that such an encounter raises no constitutional issues: para. 27.
[19] The second category of search was held to include strip searches conducted in private. In Simmons the court effectively held that in a border crossing situation such a level of intrusion could be justified on a standard of reasonable suspicion: para. 52.
[20] I am unable to accept the argument advanced by the accused that because the dog’s nose touched the bare skin of Ms. Lozano’s foot the use of the dog in this case falls within the second category of searches discussed in Simmons, which require reasonable suspicion. Any touching by the dog’s nose was brief and no more intrusive than a pat down or frisk. What occurred here is also similar to what frequently occurs when people encounter dogs in everyday life. The dog was on a leash and under the immediate control of BSO Gilbey. There is evidence that signs were in place indicating that dogs were being used by customs officers to detect contraband. It is well known to the general public that the authorities use dogs at airports to detect drugs and explosives.
[21] I conclude that the use of the dog in this case falls within the first category described in Simmons. Therefore, in the words used in Simmons, “no constitutional issues are raised”. As there was no interference with a reasonable expectation of privacy there was no search. This argument fails.
Were the Accused Subject to Arbitrary Arrest or Detention in Contravention of s. 9 of the Charter?
[22] Each of the accused submits that there were inadequate grounds for their arrests and that consequently their s.9 Charter rights to be free from arbitrary detention were violated. Further reference to the evidence is necessary to understand these submissions.
[23] BSO Catalina Garcia was part of the enforcement team working in the post primary area. She testified that she was advised of the dog alerts. Consequently, she approached the accused and asked to see their customs declaration card. As they were travelling together they had only one card. Garcia asked the women a few questions. She then used a highlighter to place a coded marking on their card that would result in their being sent for a secondary customs inspection. She then watched the women as they retrieved their checked luggage and then followed them into the secondary inspection area where she called them to a counter.
[24] BSO Garcia spoke to the accused women in Spanish. They did not speak English and Garcia was the only Spanish speaking officer available. After asking a few initial questions of the women while they were together at the secondary counter Garcia decided to separate them and asked Ms. Contreras Trujillo to sit on a bench some distance away. BSO Garcia testified that the women approached the secondary counter at 9:48 p.m. It was 9:54 p.m. when she asked Ms. Contreras Trujillo to sit on the bench.
[25] While speaking to the two women together, first in the post primary area and then later in secondary, BSO Garcia jotted brief notes on their declaration card. She explained the meaning of those notes during her evidence.
[26] BSO Garcia testified that she asked where Ms. Lozano had bought her ticket. She was told “Sunwing Vacations”. BSO Garcia thought that was strange as the women were arriving on a Westjet flight. Garcia was aware that Westjet was not associated with Sunwing and that the two airlines flew out of different terminals.
[27] The women said they had moved to Canada from Columbia. Ms. Lozano said she had a boyfriend in the Dominican Republic named Luis Diaz. They had been in a relationship for about one year.
[28] Garcia also said that both of the accused women appeared to be nervous. When they were together she asked them about the dog alert and both denied any contact with narcotics. This ruled out a dog alert based on contact with narcotics while the women were abroad.
[29] After Ms. Contreras Trujillo sat down BSO Garcia questioned Ms. Lozano about her bags and began to examine them. At about this time BSO Gilbey arrived and began to examine Ms. Lozano’s cell phone. Gilbey then showed Garcia a couple of photographs of the two women he had found on the cell phone. Garcia testified that she remembered being shown two photographs, one of each woman. Gilbey testified that he brought the photographs to Garcia’s attention because he thought the women looked bigger in person than they did in the photographs. BSO Garcia asked Ms. Lozano whether the photos were taken on their recent trip and Ms. Lozano said they were.
[30] Garcia testified that each of the women appeared to be wider in the hip area then they did in the photos. By this time Ms. Contreras Trujillo was sitting on the bench but BSO Garcia had seen her standing earlier in the post primary and luggage areas as well as in secondary.
[31] BSO Garcia testified that she then asked Ms. Lozano about this discrepancy in appearance. Garcia said that Ms. Lozano did not really give her an answer. Ms. Lozano testified that she told Garcia that she had gained weight and that she looked different in all of her pictures. Lozano said she then showed Garcia the photos on her health card and other identification to confirm this point. BSO Garcia testified that she felt she was not getting complete answers to her questions.
[32] BSO Garcia then told Ms. Lozano she was going to frisk her and she moved around the counter to do so. At that point BSO Garcia said that Ms. Lozano made a spontaneous admission that “she had drugs or something” on her. Garcia could not recall Lozano’s exact words. However, she maintained that the admission was with respect to drugs and said that if she did not understand the admission to be about drugs she would not have arrested Ms. Lozano.
[33] Ms. Lozano testified that she did not wish to be touched and so she admitted she had “something” on her. She testified that she was aware she had some form of contraband in the shorts she was wearing under her dress but that she did not know that it was drugs.
[34] I find that regardless of the exact words that were used by Ms. Lozano, in the circumstances BSO Garcia reasonably concluded that Ms. Lozano was admitting she had drugs on her person. As a result, she arrested Ms. Lozano for the importation of narcotics and placed her in handcuffs.
[35] At this point BSO Gilbey walked over to Ms. Contreras Trujillo and placed her under arrest. As she did not speak English he walked her back to the secondary counter to join her daughter and BSO Garcia. BSO Garcia testified about her efforts to explain to the women in Spanish everything that was happening. This included providing them with cautions and their rights to counsel in Spanish.
[36] In cross-examination BSO Garcia said she arrested Ms. Lozano on the basis of an accumulation of factors which included her spontaneous admission, the dog indication, the size discrepancy and what Ms. Lozano said about getting her ticket at Sunwing.
[37] BSO Gilbey said he based his arrest of Ms. Contreras Trujillo on four things: the dog indication, the size discrepancy observed in comparison to the photos, Ms. Lozano’s admission, and the fact the two women were travelling together. BSO Gilbey agreed that he was not aware at the time of the arrest that Ms. Contreras Trujillo was Ms. Lozano’s mother. He also agreed that at the time he decided to arrest Ms. Contreras Trujillo she was sitting and about 45 feet away from him. Therefore he could not clearly see her hips or midsection to compare her appearance to the photos in Ms. Lozano’s cell phone.
[38] I observe that Gilbey had seen the woman in the primary inspection area and he was the one who brought the size discrepancy to BSO Garcia’s attention. BSO Garcia recalled that Gilbey did so by referring to pictures of both women.
[39] The accused submit that the evidence I have reviewed is insufficient to give rise to both subjective and objective reasonable grounds to believe that the women were committing an offence. Ms. Contreras Trujillo is in a stronger position to make this argument than Ms. Lozano is. However, I find I am unable to accept this submission in respect of either of the accused.
[40] Both BSO Garcia and BSO Gilbey articulated the basis for their subjective beliefs. I accept their evidence that they had such beliefs. The shorts stuffed with cocaine which the women were found to be wearing would make them look considerably bigger. There is a photograph in evidence of Ms. Lozano with the shorts on after her dress has been removed. The shorts are large. The evidence is to the effect that both women were found to be wearing similar shorts. Ms. Lozano acknowledges making an admission that she had “something” hidden under her dress.
[41] I am also satisfied that there are objective grounds with respect to each of the two women. I accept the evidence that each of them appeared larger in the hip area than they did in photos which Ms. Lozano said were recently taken. While there is the possibility the dog may have indicated on each of them while smelling the drugs on only one of them, given the evidence of how the dog was walked down one side of the line and up the other, and how he indicated on each of them, it is more likely that the dog was alerting separately on each. In the circumstances a reasonable observer could draw that conclusion.
[42] Given that both of the women appeared to be “oversized” when compared to their photos and that each was subject to a dog hit, and that they were travelling together, the fact that Ms. Lozano made an admission is, in my view, also an objective factor with respect to Ms. Contreras Trujillo. The entire context must be considered.
[43] While the standard of both subjective and objective reasonable grounds to believe that an offence is being committed is meaningful, it is not an onerous standard. As explained in R. v. Storey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at para. 17, the standard is not as high as a prima facie case. I am of the view that there is a discernable constellation of factors that rise to the required level for each of the women even taking into account that a positive indication by the dog is frequently not accompanied by the finding of contraband. In this case the size discrepancies for each of the women combined with the admission of Ms. Lozano present formidable grounds measured against the standard articulated in Storey. I also note that the women were asked if they had been in contact with narcotics while abroad and said they had not. This ruled out one of the most likely innocent explanations for a dog alert.
Did the Crown Violate s. 7 of the Charter by Failing to Disclose Security Camera Video Recordings?
[44] The accused submit that their s. 7 Charter rights were violated because the Crown failed to disclose what was recorded on video cameras in the primary customs area, the luggage area and the secondary inspection area of Terminal 3.
[45] Only one witness was asked any questions about this issue during the voir dire. That was BSO Gilbey. In response to the few questions he was asked in cross-examination he said he was aware that there were video cameras in the primary inspection area. He testified that he understood that some of them were cameras operated by the Greater Toronto Airport Authority (GTAA) and some were operated by the Canada Border Services Agency (CBSA). He did not know which cameras were operated by which agency. He also testified that he had no idea what the cameras captured as he had never been involved with the cameras.
[46] No other witness was questioned about cameras, about where they may have been or what they did or did not capture. No other evidence was called on this issue.
[47] Due to this lack of questioning or other evidence, I assumed that this issue had been abandoned. However, during submissions Mr. Tiltins said it had not been. Asked what evidence there was that there were any cameras in the luggage and secondary areas he said he relied on the first paragraph of a letter from Crown counsel dated February 11, 2013. That letter was made Exhibit 7. It is in response to Mr. Tiltins’ written request for production of audio and/or video recordings from “the primary inspection booth, the luggage handling area and the secondary inspection area.”
[48] The Crown’s response in Exhibit 7 was that the request could not be accommodated as no recordings exist. The letter went on to say that the cameras only retain footage for 30 days after which it is automatically deleted unless a request to retain the footage has been made within the 30 day period.
[49] Mr. Tiltins agrees that he did not make a request for the video within 30 days of the events but submits that the 30 day period is unreasonable. He submits that the onus is on the Crown to justify this lack of disclosure and relies on R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, [1997] S.C.J. No. 12. He submits that as the Crown’s response to his letter does not say that there were no cameras in the luggage or secondary areas I should treat the letter as an admission that there were and proceed on that basis. He further submits that with respect to the primary area, despite the complete lack of any evidence about where CBSA cameras were located or what areas they covered, I should assume they may have captured evidence which meets the test for disclosure established in R. v. Stinchcombe, [1991] 5 S.C.R. 326.
[50] The Crown responds that the letter should not be treated as an admission that there were cameras in the luggage or secondary areas because the letter does not address that issue.
[51] With respect to the primary area, Crown counsel points out that there is no evidence that the cameras in that area captured anything of likely relevance. The Crown invited me to proceed on the basis of Ms. Lozano’s evidence that while in the primary inspection area the dog’s nose touched her as she said it did. He points out that this part of Ms. Lozano’s evidence is not contradicted by BSO Gilbey and so there is no factual dispute that might be resolvable should any of the video cameras have happened to capture the dog sniffing Ms. Lozano.
[52] I recognize that the Crown is required to disclose all information which meets the Stinchcombe standard of not being clearly irrelevant. I also recognize that the Crown and the investigative agencies involved in the investigation have an obligation to preserve evidence: Carosella; R. v. La (appeal by Vu), 1997 309 (SCC), [1997] 2 S.C.R. 680; R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. However, in this case I find that I have no basis whatever upon which to conclude that there was evidence to be preserved or disclosed.
[53] I am unable to accept the submission that in the circumstances of this case the Crown’s response (Exhibit 7) to the disclosure request amounts to an admission that there were cameras in the luggage and secondary areas. The letter does not address that issue but simply says camera footage is deleted. It is impossible to say from the letter that the party informing Crown counsel passed on any information concerning the existence or location of cameras. While the Crown bears the burden of justifying non-disclosure or explaining why there was no negligence in the loss or destruction of evidence, before that obligation arises, there must be some basis in the record supporting a finding that there may have been evidence to be disclosed: see R. v. Chaplin, 1995 126 (SCC), [1995] 1 S.C.R. 727, at paras. 23 and 30-33. The record is devoid of any such basis with respect to the luggage and secondary areas.
[54] I am also of the view that the little evidence I have concerning cameras in the primary area is insufficient to permit me to conclude that anything amounting to evidence that would meet the Stinchcombe standard may have been captured by a camera controlled by the CBSA. In his letter Mr. Tiltins requested video footage from any camera at the primary inspection booth. Both sides agree that it is only the dog sniff that would be relevant. Ms. Lozano and Ms. Contreras Trujillo were standing in a line-up some distance away from the primary inspection booth when she was sniffed by the dog. There is no clear evidence about how far away from the primary booth they were let alone where they were in relation to any camera controlled by the CBSA. The GTAA must be considered a third party in the context of this case: McNeil. There is no evidence about what the CBSA’s cameras covered and not even a basis for inferring that at the time of the dog sniff the accused women were close enough to one of the CBSA cameras so that the event may possibly have been captured.
[55] In any event, as Crown counsel agreed, I have proceeded on the basis of Ms. Lozano’s description of the dog sniff. Consequently, even assuming there was evidence that should have been preserved and disclosed it is apparent that there has been no prejudice to the accused women. I recognize that this comment primarily relates to a consideration of remedy, but I make it here where it fits best into the discussion.
[56] This submission fails. I find that in the particular circumstances of this case there is no basis upon which to conclude there was any video evidence to preserve or disclose, and therefore that no violation of s. 7 of the Charter has been established.
Were the Accused’s s. 10(b) Rights to Counsel Violated by Delay in Calling Duty Counsel?
[57] I find there was a violation of s. 10(b) of the Charter based on delay in the implementation of both of the accused’s rights to counsel.
[58] Both women were arrested at approximately 10:13 p.m. BSO Garcia provided rights to counsel and a caution to each in Spanish. Each of the accused said they wanted to speak to duty counsel. However, a call was not placed to duty counsel until 10:54 p.m., a delay of 41 minutes.
[59] BSO Garcia explained that calls to counsel are made from telephones located in the search rooms. However, she said she could not take either of the accused to be searched without a female assist officer. Shortly after the arrests she made a request for assisting female officers. However, female assisting officers were not available until 10:43 p.m. when three other female officers arrived.
[60] BSO Garcia then had to brief the officers and give further explanations to each of the accused in Spanish. This included the giving of secondary cautions. Garcia was still the only Spanish speaker available. This contributed to the delay. She explained that once the women were taken to search rooms a call was promptly made to duty counsel.
[61] I accept that the arrest in this case was complicated by the fact that BSO Garcia was the only Spanish speaking officer available. However, the evidence is very clear that there were a number of other officers working in the secondary inspection area, and that there were other telephones with outside lines within relatively close proximity to where the accused women were waiting following their arrests.
[62] Another BSO could easily have gone to a nearby telephone to place a call to duty counsel. When the officers place a call to duty counsel they reach an automated system and must leave a message and wait for a call back. The evidence also indicates that all of the officers have radios and can communicate amongst themselves and with the supervisor on duty. There is simply no reasonable or acceptable explanation for the delay in this case. It is apparent from all of the evidence that BSO Garcia and her colleagues were following their normal procedure and training in waiting until their detainees could be taken to be searched before placing a call to duty counsel.
[63] Section 10(b) of the Charter provides that an arrested or detained person has the right to retain and instruct counsel “without delay”. As I pointed out in Jackman, at para. 66, this immediacy requirement is subject only to officer or public safety concerns or to reasonable limitations that are justified under s. 1 of the Charter: see R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 27-42.
[64] The evidence establishes that the delay was related to the shortage of female officers available to take the accused women to be searched and not due to any real concern for officer or public safety that could not have been overcome by utilizing the resources available. I see no reason, for example, why a supervisor or another BSO could not have been tasked to place a call to duty counsel shortly after the arrests. If duty counsel called back the arrested women could have been taken one at a time to a nearby telephone. The telephone booths inside the search rooms could have been quickly cleared. They were located close by. Those facilities permit private communication with counsel while the arrestee is kept under visual observation.
[65] As the purpose of such a placement is not to search but to facilitate access to counsel I see no reason why male officers could not be involved, or why BSO Garcia and one of the male officers, could not have taken the accused one at a time for a private conversation with duty counsel.
Did the Strip Searches of the Accused Women Violate s. 8 of the Charter?
[66] Once four female officers were available the two accused were taken to separate search rooms nearby. BSO Garcia ensured that the process of the disrobement searches was explained to each of the accused in Spanish.
[67] The main argument advanced on behalf of the accused is that after the shorts which contained the cocaine were discovered and removed from each accused, the BSOs had no further grounds to continue their search by requiring the women to remove their underwear, squat and undergo the visual examination of their vaginal and anal areas. No authority is cited for this proposition. The accused rely on evidence given by BSO Garcia and the female assisting officers, that strip searches are always conducted after an arrest for smuggling contraband because that is what they have been trained to do.
[68] It is important to point out that the disrobement searches in this case were justified on the basis of a search incident to arrest and not pursuant to s. 98 of the Customs Act. Both accused acknowledge that if the arrests were valid there was a proper basis for a search up to the point where the shorts containing the cocaine were found and removed. However, they submit the officers had no basis to go any further.
[69] The following principles emerge from a consideration of the judgment of the majority of the Supreme Court of Canada in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679:
Searches of the person incident to arrest are an exception to the rule that warrantless searches are prima facie unreasonable (para. 84).
There must be a means or process by which unjustified searches are prevented before they occur. This is particularly important in the context of strip searches (para. 89).
Strip searches are inherently humiliating and degrading no matter how sensitively they are carried out and for this reason cannot be carried out simply as a matter of routine policy (paras. 90, 95).
To be justified as incident to an arrest the arrest must be lawful and the strip search must be related to the purpose for the arrest (para. 91-92).
The mere possibility that a person may be concealing evidence or weapons on his or her person is not sufficient to justify a strip search (para. 94).
Even where the search is related to the purpose of a lawful arrest additional grounds are required for a strip search. The authorities must establish that they have reasonable grounds to conclude that a strip search is necessary in the particular circumstances of the arrest (para. 98).
[70] Because the current case occurred at the border, it is important to add that in Golden the majority recognized “the unique context of border crossing searches”, and held that the reasoning in border crossing cases was not applicable to an arrest which did not occur at the border. It seems to me that, to at least some extent, the converse must also be true.
[71] In Jackman I was required to deal with similar issues concerning what was required to justify a strip search incident to a lawful arrest occurring at the border. I noted that in Simmons the Supreme Court of Canada held that under the statutory provisions of the Customs Act as they existed at that time, a strip search could be conducted on the basis of what amounted to a standard of reasonable suspicion (Jackman, para. 96). I also observed that under s. 98 of the Customs Act as currently enacted, a strip search of a person arriving in Canada may be undertaken on the basis that an officer “suspects on reasonable grounds” that the person is in possession of contraband (para. 97). I held that “the border crossing context is not so unique that all of the teachings of Golden can be ignored”. I concluded (at para. 99) that modified to account for the border crossing context, before the authorities are justified in conducting a strip search incident to an arrest they must make an individualized determination that there are “reasonable grounds to suspect” that such a search will reveal evidence or contraband, a potential weapon or means of escape, or is necessary to ensure the safety of all involved”.
[72] In Jackman I found that there was a s. 8 violation because the border services officers who conducted a strip search did so as a matter of policy or routine and without considering whether they had reasonable grounds to suspect that it would yield results. The accused in the present case submit that I should reach the same conclusion here because the officers continued the strip search after finding the shorts containing the cocaine, without addressing their minds to whether there was reasonable suspicion to continue the search.
[73] This case is factually different than Jackman. I am unable to accept the defence submissions. In Jackman cocaine was found hidden in the accused’s suitcase during a secondary customs inspection. That led to an arrest. A strip search was then conducted without considering whether there was any basis for it.
[74] In this case the officers arrested the accused because, as I have already found, they had reasonable grounds to conclude that the accused had drugs hidden under their clothing. In these circumstances, when they turned their attention to the question of whether they had grounds to arrest and concluded that they did, they were necessarily turning their minds to whether they had grounds to do a strip search, whether they were able to understand and articulate that in their evidence or not. I also note that BSO Garcia and some of the other officers testified that they were aware that persons who import illegal drugs sometimes use more than one means to do so.
[75] In the circumstances here, where the formulation of the grounds for arrest was related to more than a reasonable suspicion that the women were concealing drugs under their clothing, and having regard to the fact that the officers were aware that more than one means of importation is sometimes employed by couriers, I am satisfied that there were specific grounds to support the full strip searches that were conducted in this case, and that the officers involved had effectively turned their minds to that issue when they concluded there were grounds for arrest.
[76] Ms. Lozano also submits that her strip search violated s. 8 because it was conducted in an unreasonable manner. She points to evidence that, contrary to normal procedure, she was stripped completely naked. More significantly, in her testimony she said that when she was strip searched the door to the search room was propped open with her luggage and that there were male officers in the hallway and nearby.
[77] BSO Garcia was called in reply and testified that the door to the search room was closed at the time of the search. When she testified initially during the Crown’s case in chief Garcia said the window to the search room was closed at the time of the search. She was not asked about the door. In my view, it was implicit in her evidence that the search was conducted in private. No questions were asked in cross-examination of Garcia or anyone else to suggest the door was open. Consequently, I ruled that reply evidence was appropriate after Ms. Lozano testified the door was open.
[78] In reply, BSO Garcia acknowledged that sometimes the doors to the search rooms are propped open to allow better air circulation and so the room seems “less claustrophobic”. However, she was convincing and emphatic when she testified that the door and window were both closed when the search was conducted. In my view, BSO Garcia conveyed throughout her testimony that she was very sensitive and professional in her dealings with the accused. For example, she made considerable efforts to explain everything to the accused in Spanish. The fact that there was delay in contacting duty counsel flowed from policy and training and does not in any way reflect a lack of caring or sensitivity on the part of BSO Garcia. I accept her evidence that the door was closed and that Ms. Lozano was searched in a private room.
[79] Based on my overall assessment of Ms. Lozano’s evidence, I reject her testimony that the door was open. Ms. Lozano said that she did not protest to being strip searched with the door open as she assumed that was just the way it was done. Yet I note that she had no trouble telling Garcia that she did not wish to be touched when Garcia was about to frisk her in secondary. I agree with Crown counsel’s submission that to protest to that but not to being searched before an open door does not make sense. In addition, I must say that Ms. Lozano delivered her evidence on this point in a completely unconvincing manner. All things considered I simply do not believe her evidence on this point.
[80] I do accept that Ms. Lozano became completely naked. BSO Garcia did not think that was so based on standard practice but could not clearly remember. The assisting officer testified that it is occasionally the case that a woman being strip searched ends up completely naked. She explained that occurred in this case because Ms. Lozano was wearing a dress and had no bra on underneath. Consequently, the officers were not able to give Ms. Lozano back an item of clothing to cover just her upper body when they searched the lower part of her body.
[81] Based on this evidence I accept that Ms. Lozano was completely naked for a short period of time. In the circumstances this factor does not lead me to the conclusion that the search was conducted in an unreasonable fashion. It was as a result of the manner in which Ms. Lozano was dressed. Ms. Lozano was later given a jacket from her personal belongings when she asked for it and said that she was cold. Perhaps the jacket could have been given to her during the search to avoid her complete nudity. However, the fact that that was not done does not render the search unreasonable. There is no evidence Ms. Lozano asked for the jacket or that the officers were aware of its availability at that time.
[82] Overall, I am satisfied that the search of Ms. Lozano was conducted with sensitivity, professionalism and in private. I note, for example, that when duty counsel called during the course of the personal search the search was interrupted and Ms. Lozano was given one of her dresses to put on while she spoke to duty counsel within a private booth within the search room.
[83] I am unable to find that the strip searches of the accused women were conducted in violation of the Charter.
Remedy
[84] I have found a violation of s. 10(b) based on a delay in implementation of the accused’s rights to counsel but no other Charter violations.
[85] With respect to s. 24(2) of the Charter, I am unable to find that there was any evidence which, in the words of the section, was “obtained in a manner” that violated the Charter. The evidence was found as a result of a search incident to arrest. Counsel for the accused agree that the officers had no obligation to hold off the search incident to arrest pending access to counsel. In addition, as the officers were entitled to conduct the search no matter what counsel told the accused, the discovery of the evidence was inevitable. There is a temporal connection because the violation of s. 10(b) occurred in the lead-up to the finding of the evidence. However, there is no causal connection as the violation was not implicated in finding it. The officers were entitled to conduct a search incident to the arrest from the moment they formulated grounds for the arrest and the exercise of the accused’s rights to counsel was not negatively impacted by the search itself. When duty counsel called in the midst of Ms. Lozano’s search the search was suspended while she spoke to counsel.
[86] The question becomes whether, based on an examination of the entire chain of events, the temporal connection alone is sufficient to lead to a conclusion that the evidence was “obtained in a manner” that violated the Charter. While a temporal connection will often be sufficient to meet the “obtained in a manner” threshold, I conclude that a temporal connection alone is insufficient to meet the threshold in these particular circumstances: see R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R. 463, at para. 40.
[87] Alternatively, when I conduct a s. 24(2) analysis pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find the evidence is admissible.
[88] Under the first category of the Grant analysis, I find that the violation was relatively serious notwithstanding that the officers thought they were complying with the Charter. The risk of self-incrimination is acute following an arrest and the law has long been clear that where a detainee is diligent in seeking counsel all aspects of the right to counsel must be complied with immediately. The first Grant factor favours exclusion.
[89] Turning to the second Grant category, for the reasons already mentioned, the s. 10(b) violation had little impact on the Charter protected interests of the accused. Beyond the search, which the officers were entitled to conduct in any event, the officers did not engage in any attempts to elicit evidence from the accused during the period of delay. Unlike in Jackman, no spontaneous statements were made by the accused during the period of delay. There is no causal nexus between the violation and the finding of the evidence. In addition, the discovery of the evidence was inevitable.
[90] With respect to the third category in Grant, the evidence here is reliable and represents substantial quantities of a dangerous drug. It is essential to the prosecution’s case. Society has a strong interest in a trial on the merits.
[91] Balancing these findings is not simply a matter of mathematics. I must consider the long term effect of what occurred here. I do have a concern that BSOs are not learning from their mistakes. However, I am not persuaded that when everything is considered the admission of the evidence would bring the administration of justice into disrepute. On balance I find the contrary to be true. I would not exclude the evidence pursuant to s. 24(2).
[92] While I have conducted a full s. 24(2) analysis, during submissions the accused put their primary emphasis concerning remedy on a stay of proceedings. In doing so they no doubt hoped that I would also have found that the strip search violated the Charter. That is not the case, and even if I had, in all the circumstances of this case I view the situation as falling far short of meeting the “clearest of cases” requirement for a stay of proceedings.
[93] In R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411, at para. 74, and in R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 54, the court held that even where a Charter violation or an abuse of process has caused an unfair trial or damaged the integrity of the justice system a stay of proceedings will only be appropriate when two criteria are met:
prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial or by its outcome; and
no other remedy is reasonably capable of removing that prejudice.
[94] The accused did not address any particular submissions to this test but did submit that based on a review of a number of cases Canada Border Services Officers keep making the same mistakes and need to be sent a message to get them to change their ways. While this sort of prospective approach is appropriate in considering a stay of proceedings, in this case I have found that there is no meaningful connection between the s. 10(b) Charter violation and anything which prejudiced the accused. Even if it could be said that the officers did not turn their minds to whether the strip search should be continued past the finding of the shorts, something I have rejected, I would observe that because drug importers sometimes use more than one means to smuggle drugs on their person, (see for example R. v. Darlington, 2011 ONSC 2776) anyone turning their mind to the overall situation could find reasonable suspicion to do a full strip search, despite its highly intrusive nature. It is therefore difficult to see how this is a case in which either branch of the test clearly calls for a stay of proceedings. A stay of proceedings is a drastic remedy to be granted pursuant to s. 24(1) only in the clearest of cases: O’Connor at para. 68. As I have said, this case does not approach that standard.
Conclusion
[95] The application is dismissed.
F. Dawson J.
Released: March 28, 2013