ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 1502/11
DATE: 20130624
BETWEEN:
HER MAJESTY THE QUEEN
Respondent/Crown
Carol Letman, for the Crown
- and -
CYNTHIA JENNIFER LEVY
David North, for the Applicant
Applicant/Defendant
HEARD: May 27-29, 2013
Ruling #2 re: Admissibility of Cell Phone Conversation
Wein J.
“We [speak] for all to overhear while we walk the streets or ride a bus. Privacy is a currency that we all now routinely spend to purchase convenience.“[^1]
Overview
[1] When we voluntarily speak into a cell phone at the airport, can we insist on a right to privacy that precludes our overheard comments from being used against us?
[2] Ms. Levy is charged with importing four kilograms of cocaine into Canada from St. Lucia. The Canadian Border Services Agency (CBSA) had received information that she would be bringing in that quantity of drugs, and accordingly placed a lookout notice on their computer system and conducted surveillance of her in the airport.
[3] Border Officer Juliao testified that he observed Ms. Levy in the baggage area prior to her being sent to secondary inspection. By that time, there were virtually no bags left on the carousel, and that area of the hall had few people around. There was one other family, a man and a woman and two children, who seem to be having a conversation about their lost luggage.
[4] Ms. Levy, who was known to Border Officer Juliao because her clothing fit the exact description he had been given, was standing near to the carousel. He testified that she appeared upset and not happy.
[5] He stood at a distance of about two to three feet away and overheard her conversation. She was talking in a low voice, with a cell phone to her ear. He heard her say, “The ribbon is still on it”. Then she put the phone down to her waist, entered something on the keypad, and put the phone back to her ear. She then stated, “three guys are standing watching me”, and “you’re freaking me out”, “hurry up”.
[6] He noted that there was a green ribbon attached to her red suitcase. Eventually, she departed towards the point area and was referred to a secondary inspection.
[7] Ms. Levy did not testify on the voir dire.
Argument
[8] The Applicant argues that that the statements overheard by the Border Services Officer ought to be excluded as an infringement of Ms. Levy’s privacy rights under sections 7 and 8 of the Charter. Counsel for the Applicant acknowledges that there is no case law directly on point, and that his argument would be expanding the existing parameters of privacy rights under the Charter to a subjective area of an “invasions of personal space”, in which an individual might be unaware that other members of the public could overhear them.
[9] As I comprehend the argument, it was also based in part on the fact that since the CBSA already had overwhelming evidence that Ms. Levy was a person who should be searched, such that that the search of her would be inevitable, they ought not to have been trying to get more information at that stage. This was not simply a routine investigation where the agents were trying to decide whether to send her to secondary inspection for a search, since they already had decided to search her, which makes its interception and admission at trial unfair.
[10] The Applicant relies on passages from the Supreme Court of Canada decision in Duarte, 1990 150 (SCC), [1990] 1 S.C.R. 30, and more specifically on the decision of this Court in R. v. Darlington, 2011 ONSC 2776.
[11] The Court in Darlington summarizes the principles underlying the legislation concerning privacy rights and expectations in airports, in the context of a case that, like this one, involved the importation of narcotics. At para. 75, the Court set out the well-developed jurisprudence concerning rights at border-crossings, including:
(1) Arriving passengers must accept that they will generally be the subject of routine scrutiny by Canada’s border authorities: R. v. Jones 2006 28086 (ON CA), (2006), 211 C.C.C. (3d) 4 (Ont. C.A.), at paras. 24, 30.
(2) The routine screening process inevitably involves questioning of the person seeking to gain entry to Canada. Such a person is legally obliged to respond truthfully to questions asked by an officer in the performance of his or her duties: Customs Act, R.S.C. 1985, c. 1 (2nd Supp.).
(3) A person arriving at the border can also reasonably expect that luggage will routinely and randomly be searched: R. v. Simmons 1988 12 (SCC), (1988), 45 C.C.C. (3d) 296 (S.C.C.), at p. 312; Jones, at para. 30; R. v. Jeanmarie, [1989] O.J. No. 287 (C.A.), at pp. 1-2. This may include x-raying or ion scanning: Kelly v. Palazzo 2008 ONCA 82, (2008), 89 O.R. (3d) 111 (C.A.), at para. 53 (leave to appeal refused [2008] S.C.C.A. 152). As well, routine screening, at a permissibly unobtrusive level not engaging a reasonable expectation of privacy, can include a pat or frisk of outer clothing (Simmons, at p. 312) or a direction to empty pockets: R. v. Hudson 2005 47233 (ON CA), (2005), 203 C.C.C. (3d) 305 (Ont. C.A.), at paras. 2, 4, 22-3, 38.
(5) Routine screening does not engage a coercive or adversarial relationship between government agents and an incoming traveller: Jones, at para 33. This is so whether the screening is entirely random or as a result of referral to customs secondary examination (Dehghani, at p. 1073; Hudson, at paras. 35, 38) in an effort to focus the exercise on persons of interest, for example, upon a “look-out”:
Second, 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 office to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.
(Jones, at paras. 38, 40)
In the present case, while there was information available to the primary and secondary officers that Mr. Sahota was a “target” or “look-out” for drugs, and the more detailed ICES report was available to the secondary officer, the customs officials did not have any specific information that would link him to a particular offence until his luggage was searched. He was dealt with in the same manner as any passenger who had attracted the attention of customs officials by reason of his or her own conduct or answers to routine questioning. Any number of factors may cause a customs officer to become suspicious of a passenger, including a tip that a person may be carrying drugs or other contraband. The existence of a tip or look-out, without any specific information to assess its reliability, would not amount to a “sufficiently strong particularized suspicion” sufficient to constitute detention.
(R. v. Sahota, [2009] O.J. No. 3519 (S.C.J.), at para. 47)
(6) However, constitutional interests of self-incrimination and right to counsel become engaged where the generality and routineness of the screening exercise give way to more specific and intrusive measures, for example:
(a) the individual becomes the target of a focused criminal investigation as in circumstances where there exists “a sufficiently strong particularized suspicion” of contravention of the law: Jones, at paras. 24, 42; R. v. Kwok(1986), 1986 4726 (ON CA), 31 C.C.C. (3d) 196 (Ont. C.A.), at pp. 207-8
(b) when particularized indicia of contraband are discovered: Sahota, at para. 48; R. v. Baptiste, 2010 ONSC 4465, 2010 ONSC 4465, at paras. 87-8, 92.
(7) Certainly, the more intrusive the category of border search upon personal privacy and bodily integrity, the greater the degree of constitutional protection: R. v. Monney, 1999 678 (SCC), [1999] 1 S.C.R. 652, at para. 38; Simmons, at pp. 312, 318-21.
(8) A person detained within the scope of ss. 9 and 10 of the Charter must immediately be informed of the right to counsel and provided access to counsel when requested: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 37-42. This state obligation arises prior to a search of a person for drugs, whether the person is under arrest (R. v. Debot, [1998] 2 S.C.R. 1140, at paras. 43-5; R. v. Glykis 1995 1277 (ON CA), (1995), 100 C.C.C. (3d) 97 (Ont. C.A.), at pp. 99-101) or under detention for example for a Customs Act personal search: Simmons, at pp. 315-6; Jacoy, at paras. 6-8, 14; R. v. Granston 2000 5743 (ON CA), (2000), 146 C.C.C. (3d) 411 (Ont. C.A.), at paras. 26, 30, 43-7.
[12] Of course, in this case, there was no suggestion that Ms. Levy was under investigative detention while standing at the carousel. Border Officer Juliao simply positioned himself to overhear a conversation being made in a public place. Ms. Levy spoke in a low voice, as if to prevent herself from being overheard. But the officer, in plain clothes as if a disinterested passenger, was close enough to overhear.
[13] Ms. Levy simply took inadequate steps to ensure her privacy in a public place. No privacy interests were involved. She had no reasonable expectation of privacy in the circumstances, and by her own conduct lost the privacy she wanted.
[14] Accordingly, the application must be dismissed. The statements are admissible at trial.
“Original signed by:”
Wein J.
Released: June 24, 2013
COURT FILE NO.: 1502/11
DATE: 20130624
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
CYNTHIA JENNIFER LEVY
Ruling #2 re: Admissibility of Cell Phone Conversation
Wein J.
Released: June 24, 2013
[^1]: Max Frankel, “Where Did Our ‘Inalienable Rights’ Go?”, New York Times (22 June 2013).