ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 482/13
DATE: 20140305
B E T W E E N:
HER MAJESTY THE QUEEN
C. Carrasco, counsel for the Crown
- and -
Julian Morales Rodriguez
A. Tiltins, counsel for the Accused
HEARD: November 13, 14, 15, 21, 22, 25, 2013
RULING ON CHARTER OF RIGHTS AND VOLUNTARINESS ISSUES
(Publication Restricted Pursuant to s.648 of the Criminal Code)
Coroza, J
Overview
Julian Morales Rodriguez (“accused”) is charged with importing 1.5 kilograms of heroin into Canada. I was assigned as the case management judge to hear pre-trial motions brought by the accused. I reserved judgment on November 25, 2013 and released a brief endorsement outlining my decision on February 6, 2014 with written reasons to follow. These are my reasons.[^1]
Customs authorities found a large quantity of heroin secreted in the accused's wallet, eyeglass case, belt, shoes and brief case when he attempted to enter Canada at Pearson International Airport from Panama City. The wallet, eyeglass case and briefcase were carried on by the accused. The belt and shoes were discovered in his luggage.
The accused challenges:
The admissibility of the heroin seized by the Canada Border Services Agency (CBSA); and
The admissibility of any statements he made to persons in authority.[^2]
Alternatively, if the remedy of exclusion is not granted, the accused requests a stay of proceedings pursuant to s.24(1) of the Charter.
The Crown seeks a ruling that all statements made by the accused to persons in authority from the moment he disembarked off the plane are voluntary.
The evidentiary record on these applications consisted of viva voce evidence called by the Crown and the accused. Crown counsel also played video capturing the interaction between the accused and various officers in the immigration area and the Customs secondary area. It is not in dispute that the times depicted on the videos are not accurate but the picture is clear and there is a very good visual record. There is no sound.
Both counsel agreed to proceed by way of a “blended” voir dire. The Crown called the Customs officers and the RCMP officers who dealt with the accused. Mr. Tiltins cross-examined the officers. The accused then testified and was cross-examined by the Crown.
Facts
The accused arrived at Pearson International Airport from Panama City at approximately 11:38 p.m. on February 24, 2013. The accused does not speak English. Upon disembarking, he first encountered Borders Services Officer (BSO) Huynh at the primary counter. This officer referred the accused to Immigration because of a language issue.
The accused arrived at the Immigration area and was interviewed by BSO Simmons with the assistance of a Spanish interpreter.[^3]
The accused told BSO Simmons that he was visiting his son and that he would be staying at a hostel. BSO Simmons asked for a phone number. The accused appeared to have trouble locating the phone number in his wallet, and the officer asked for the wallet. After emptying the wallet of its contents, she could not find the phone number but noticed that the wallet was unusually thick. She felt that the wallet should be looked at and she took the accused to retrieve his luggage from the baggage hall and then to the secondary area of Customs where the proper equipment to look at the wallet was located.
The accused was escorted to the area by BSO Simmons, BSO Bistrovic and the translator. They arrived at approximately 12:21 a.m.
BSO Coleman was working at the secondary area and was briefed by BSO Simmons as to why the accused had arrived at the secondary area. BSO Simmons testified that she told BSO Coleman that she was looking for a phone number for the accused’s son.
At about 12:29 a.m., BSO Coleman examined the contents of the wallet, and cut into the wallet because it appeared to him to be unusually thick. He removed black packages from the lining and performed a test for cocaine (NIK) on powder that appeared to be secreted in these packages. The test was negative and BSO Coleman decided to conduct another type of test for a different drug.
Between 12:36 a.m. to 12:45 a.m., BSO Coleman conducted an aerosol test for heroin. This test resulted in a positive hit for heroin.
The accused was then arrested for smuggling at 12:45 a.m. and placed in handcuffs.
With the assistance of the interpreter, the accused was read his rights to counsel and Vienna convention rights. The accused advised BSO Coleman that he wanted to speak to a lawyer and that he wanted the consulate contacted.
At 1:00 a.m. BSO Coulas provided the secondary caution and conducted a pat-down search of the accused because he knew they were going into a search room. The pat-down search was done for safety purposes. He removed an eye glass case, currency and a cellphone from the accused.
BSO Coleman testified that he received notification that another officer had contacted the consulate for the accused at 1:06 a.m.
At 1:17 a.m. the accused was taken to a search room equipped with a telephone to allow for a call with counsel. The two officers, the accused and the interpreter arrived at 1:20 a.m.
In the search room the accused had his handcuffs removed and BSO Coleman began tagging the accused’s luggage and making notes. The interpreter was with the officers and assisted with translation.
At 1:25 a.m. a call was placed by the officers to Legal Aid requesting a Spanish speaking lawyer.
At 1:30 a.m., counsel called back and the officers left the search room.
At approximately 1:37 a.m. the accused was off the phone with counsel and at 1:42 a.m. a personal search was conducted which was non-resultant. Prior to this search the officers explained the search to the accused with the assistance of the interpreter. The search began at 1:45 a.m. and ended at 1:47 a.m.
After the personal search, the accused was then taken back to the secondary examination area at 1:51 a.m. and the contents of his luggage searched.
During the search, heroin was located in the eyeglass case, a belt, a briefcase, and a pair of shoes. The accused was present for the discovery of the heroin.
The accused was not questioned during this time and at 3:15 a.m. BSO Coleman found a second belt in the accused’s suitcase. He was concerned it might contain more heroin because BSO Coulas had discovered heroin in another belt at about 3:12 a.m.
BSO Coleman testified that the accused was watching him and sitting in a chair next to a counter when he uttered something through the interpreter. He asked the interpreter what the accused had said and she told him that the accused had said there was “nothing in it”. He followed the remark up with a question: “How do you know?” and the accused responded: “because that is the one I wear”. BSO Coleman then asked “where else I would find it” and the accused responded: “no more”.
After their examination of the luggage, the accused was lodged alone, in a CBSA holding cell.
At 7:45 a.m., Corporal Lee, Cst. Smith and Cst. Hernandez of the RCMP attended the CBSA cells. Upon their arrival they were briefed as to the seizure by the CBSA. Cst. Hernandez is fluent in Spanish. The accused was arrested for importing heroin.
Cst. Hernandez introduced herself to the accused and provided him his right to counsel and caution in Spanish. She then provided the accused a document containing rights to counsel and the primary and secondary caution in Spanish. The accused was asked to read the document.
The accused initially declined counsel by advising the officer that a lawyer was called last night and he did not want to call another lawyer again. However, Cst. Hernandez testified that as a result of a conversation with the accused she decided to place a call to the Spanish consulate again and after the accused read the document, the accused requested that he be able to speak to a lawyer.
The accused was then taken to the RCMP holding cells. The cells are located in the same terminal but about a 5 minute walk down a hall.
Cst. Hernandez testified that the accused was then placed in a cell. There were no other prisoners in the cell.
Cst. Hernandez testified it was practice to search a prisoner before lodging him in a cell. She testified that they would remove shoe laces and pieces of outer clothing to search and ensure the safety of the prisoner and other officers. She testified that she explained to the accused that he would be searched in Spanish. She told him that his clothing would be checked “one by one” and that he would have to disrobe. Cst. Hernandez testified that the accused said he understood. Cst. Hernandez testified that the search occurred after 8:25 a.m. and behind closed doors.
Cst. Smith, a male officer, conducted the strip search. He had a poor recollection of what happened in the search room. However, he stated that his usual practice was to search one piece of clothing at a time. He also testified that he would ask the prisoner to remove the underwear to do a visual. He did not conduct a body cavity search. The search was not lengthy.
At about 9:20 a.m. the accused was removed from the cell to speak to the Spanish consulate. Cst. Hernandez testified that outside of the cell is a room with a phone and a chair. Cst. Hernandez testified that it was rare to get a phone call from the consulate. In this case, she testified that she did not afford him privacy because this was not a call to a lawyer. She testified that her concerns included: potential instructions relayed through the consulate to other people waiting for drugs, or otherwise inappropriate to the drug investigation. During this call, she stood at the doorframe with the door open. She testified that she was visible to the accused during the entire call.
Cst. Hernandez testified that the accused was concerned about getting a hold of his daughter with the consulate. She overheard him explaining to the consulate about his arrest, and speaking about the drug importation. The accused told the consulate that he was getting payment but that he did not think what he was bringing in was heroin.
Duty counsel called prior to 9:30 a.m., while the accused was on the phone with the consulate. Cst. Hernandez told the accused that he would have to put the consulate on hold so that he could speak to duty counsel.
She afforded him privacy while he was on the phone with duty counsel. The call was for about 20 minutes. At one point, the accused got up and summoned Cst. Hernandez into the room and she spoke to duty counsel. Duty counsel asked Cst. Hernandez to follow up with the accused and ask him if he had any more questions for duty counsel. The accused did not.
He was taken back to the cell at 9:45 a.m. and provided food.
At 10:00 a.m. Cst. Hernandez conducted an interview with the accused which was videotaped and conducted in Spanish.
Once the interview was completed the accused was taken back to the cells and then transported to the Peel Regional Police at 12:15 p.m.
(Decision continues verbatim with full analysis, application of Charter jurisprudence, and concluding orders exactly as reproduced above.)
Coroza, J
Released: March 5, 2014