ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(F) 364/14
DATE: 2015-07-06
B E T W E E N:
HER MAJESTY THE QUEEN
Sidney Thompson, for the Respondent/Applicant
- and -
MICHAEL OMAR WILLIAMS
Alana V. Page, for the Applicant/Respondent
HEARD: April 27, 28, 29, 30, May 1,5 and 6, 2015
RULING
Lemon J.
The Issue
[1] The Crown seeks a ruling with respect to the voluntariness of statements that Mr. Williams gave to Canadian Border Services Agency officers prior to his arrest by the RCMP. In particular, the Crown seeks the admission of those statements and a finding that all of Mr. Williams’ statements were the product of an operating mind and made voluntarily, without fear, oppression, threat or inducement.
[2] In response, the defence submits that the utterances alleged to have been made were not voluntary. Alternatively, the defence seeks an order excluding those statements on the grounds that their admission would violate Mr. Williams’ right to remain silent, and to be informed of his right to his own counsel pursuant to Sections 7, 10(a) and (b) of the Charter of Rights and Freedoms.
[3] In order to resolve this issue, I need to determine:
(a) Were Mr. Williams’ statements voluntary? For the following reasons, I find that they were.
(b) If Mr. Williams’ statements were voluntary, should they be excluded from evidence because of the CBSA agents’ failure to properly record them? As set out below, they should not be excluded.
(c) Was Mr. Williams’ questioning at customs secondary a routine border examination or was it “akin” to a police interrogation? I am satisfied that this was an unprofessional but routine examination.
(d) At what point was Mr. Williams detained such that his rights under the Charter were engaged? Since the examination was in the border investigation context, Mr. Williams was not detained until he was arrested for importing cocaine.
(e) Was Mr. Williams provided with access to legal advice to which he was entitled? For the reasons that follow, he was not.
(f) If not, should his statements after that point be excluded from the evidence pursuant to section 24(2) or the Charter? Because of that failure to provide his rights, Mr. Williams’ statements after his arrest will be excluded.
Background
[4] Mr. Williams is charged with importing just under one kilogram of cocaine into Canada. From the evidence led on this blended voir dire, the following does not appear to be in dispute.
[5] On October 21, 2013, Mr. Williams arrived at the Toronto airport on a flight from Jamaica. At primary inspection, a scan of his passport revealed that he had been targeted as a “lookout”. Accordingly, he was referred to immigration and customs secondary inspection.
[6] At immigration secondary, he was questioned by Officer Warne. His statements at that location are not in dispute by the defence and are therefore admissible at the trial.
[7] After attending at immigration secondary, Mr. Williams was escorted to the baggage carousel and then to the customs secondary line by Officers Warne and Spencer. There, CBSA Officer Siscopulos carried out a customs secondary inspection. She accessed “lookout details” from her computer and learned that Mr. Williams was targeted for smuggling contraband.
[8] Mr. Williams presented three pieces of luggage; two suitcases and a backpack. At approximately 7:36 p.m., Officer Siscopulos began questioning Mr. Williams about his luggage, his reasons for being in Canada and where he would be staying. Mr. Williams also responded to questions from Officers Warne and Spencer.
[9] Officer Siscopulos’ questioning continued over a period of approximately one and a half hours while she examined Mr. Williams’ belongings and x-rayed each piece of luggage. She was of the view that Mr. Williams’ responses were inconsistent.
[10] Officer Siscopulos’ investigation of Mr. Williams was conducted in a question and answer format but first summarized in her notebook at 8:35 p.m.; one hour after the questioning began. No one else recorded Mr. Williams’ responses.
[11] Officer Siscopulos examined Mr. Williams’ luggage, emptying and x-raying each piece. Neither the suitcases nor the backpack indicated any contraband. However, another backpack, located in the larger of his suitcases, showed an inconsistency when x-rayed. She examined it and noticed the lining had been tampered with. When she ripped the lining open, she was able to see clear plastic packaging. It contained what was eventually determined to be cocaine.
[12] At 8:55 p.m., Officer Siscopulos arrested Mr. Williams for smuggling goods into Canada. She then handed him over to Officers Hatch and Samra to carry out a personal search and to hold him for the arrival of the RCMP to take over the investigation.
[13] At 11:30 p.m., Officer Kim of the RCMP arrested Mr. Williams for importation of narcotics.
[14] The defence admits that what Mr. Williams said to the CBSA officers before arriving at the customs secondary inspection, at approximately 7:30 p.m., on October 21, 2013, is admissible.
[15] The Crown has confirmed that it will not be relying upon any statements made by Mr. Williams after his arrest by RCMP Officer Kim at approximately 11:30 p.m. Further, at trial, the Crown will not be relying on any statements made to Officers Warne or Spencer.
[16] Accordingly, it is the interaction between Mr. Williams and the CBSA officers at customs secondary between 7:30 p.m. and 11:30 p.m., on October 21, 2013, that is in issue here.
Positions of the Parties
[17] The Crown submits that following the principles laid out in R. v. Oickle, 2000 SCC 38, I should be satisfied beyond a reasonable doubt that Mr. Williams’ statements were voluntary.
[18] It is also the position of the Crown that Mr. Williams was subjected to a routine examination at the airport and was asked the type of questions that all travellers expect when entering Canada. The Crown relies on the jurisprudence that sets out that statements made during routine questioning at Canada’s borders do not violate Section 7 of the Charter, or engage Section 10 of the Charter.
[19] In response, the defence submits that the statements that were made were not voluntary, were compelled under the Customs Act and their admission would infringe Section 7 of the Charter. Mr. Williams submits that the statements were made at the time when he was detained and denied his rights, as guaranteed by Sections 10(a) and 10(b) of the Charter.
[20] Further, he submits that the statements were not reliably recorded and should be excluded as evidence from this trial, pursuant to section 24(2) of the Charter since the admission of such evidence would bring the administration of justice into disrepute.
(Sections (a) through Result continue verbatim as in the original decision.)
Lemon J.
Released: July 6, 2015
COURT FILE NO.: CRIMJ(F) 364/14
DATE: 2015-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
MICHAEL OMAR WILLIAMS
RULING
Lemon J.
Released: July 6, 2015