CITATION: R. v. Peters, 2016 ONSC 2230
COURT FILE NO.: CRIMJ(F) 191/14
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Ostap Melnik, for the Crown
- and -
DEXTER MEAKLAND PETERS
Paul Genua, for the Defence
HEARD: March 21, 22, 23, 2016, at Brampton
RULING
Justice F. Dawson
[1] Dexter Peters is charged with importing cocaine into Canada on August 29, 2013. On that date he returned to Canada at Pearson International Airport on an Air Canada flight from Montego Bay, Jamaica. He was the subject of a “lookout” on the Canada Border Services Agency (CBSA) computer and was referred for a mandatory secondary inspection. The officers conducting that examination located packages of cocaine hidden inside sealed bags of food products found inside his checked luggage.
[2] By way of a pre-trial application the accused challenges the admissibility of certain statements he made after the bags of food products were x-rayed and prior to his arrest when he was provided with his rights to counsel and a caution. The accused submits that he was detained prior to his arrest. As he was not given his rights to counsel upon detention he submits the statements referred to were obtained in violation of ss. 7, 10(a) and 10(b) of the Charter and should be excluded pursuant to s. 24(2) of the Charter.
[3] The accused also challenges the voluntariness of all of his utterances to CBSA officers made anytime during his dealings with them. This includes statements made when he was “roved” in the post-primary area, during his secondary customs inspection and post-arrest.
[4] The accused does not challenge the search that led to the finding of the cocaine. Nor does he submit that the cocaine should be excluded on the basis of the s. 7, 10(a) or 10(b) violations alleged. Although the accused’s written application also alleges a violation under s. 13 of the Charter that was not pursued in oral argument.
The Evidence in More Detail
[5] After disembarking from the aircraft the accused elected to use the Automated Border Clearance (ABC) machine while waiting in the primary inspection line. After inserting his passport into the machine he inserted his E311 customs declaration card into the machine. The machine keeps the original declaration card but issues a photocopy of the declaration (the E311 receipt) with coding printed on it. The evidence shows that “27” was printed on the accused’s E311 receipt. This coding indicated that the accused was a “systems hit” based on a “lookout” and that it was mandatory that he be referred for a secondary customs examination.
[6] Based on the evidence of the Border Services Officers (BSOs) who testified, Mr. Peters would have next had a brief encounter with a primary inspection officer who would have verified his identity. That officer would have seen the coding on the E311 receipt and have referred him to a triage officer nearby. The function of the triage officer is to take note of the coding and, after allowing the traveller to proceed to the baggage hall, to notify the point officer that a person who was subject to a lookout was headed their way. In this case BSO Victor Obano testified that he was one of the point officers stationed at the exit from the customs controlled area. He received such notification. He encountered the accused after the accused picked up his checked luggage in the baggage hall. Obano saw the coding on the accused’s E311 receipt and referred him into the customs secondary examination area.
[7] However, before the accused reached the baggage hall he had been intercepted by BSO Miles McLaren, a member of the Integrated Customs Enforcement Team (ICET). BSO McLaren said he was aware that there was a lookout on flight AC983 from Montego Bay. He and members of his team were “roving” the flight. That means they were randomly approaching passengers from that flight in the post-primary area, asking them questions and examining their documents.
[8] BSO McLaren was also looking for the subject of the lookout. He could not recall if he had the accused’s name, but he may have. He was aware the lookout was for drugs. BSO Kevin Dixon is also an ICET member who was roving the flight. He recalled that someone had provided him with the accused’s name and date of birth prior to the flight arriving.
[9] BSO McLaren examined the accused’s E311 receipt. He saw the “27” printed on the receipt by the ABC machine and a handwritten “277”, which meant the same thing. He said the “277” would have been written by the triage officer.
[10] BSO McLaren wrote his call sign, “D4”, and some other markings on the accused’s E311 receipt with a blue highlighter. Those markings indicated that he had encountered the accused at 7:33 p.m., that the accused told him he had one checked bag and that BSO McLaren should do the secondary inspection once the accused arrived in secondary.
[11] BSO McLaren said he had verbatim notes of the conversation he had with the accused when he roved him. The accused said he was coming from Jamaica. When asked about the reason for his trip he said it was for the birth of his son. When BSO McLaren asked when his son was born the accused said “in May”. BSO McLaren asked why the accused was only going to Jamaica now. According to BSO McLaren, the accused said something which was inaudible. At that point BSO McLaren highlighted the E311 receipt and the accused went to the baggage hall.
[12] At 7:59 p.m. BSO McLaren called the accused to a secondary inspection counter. BSO Dixon was nearby. McLaren said he conducted a routine secondary examination. He spoke with the accused and examined the contents of his luggage. He said he likely used the computer to access a database that contained details of the lookout. A printout of what would have been displayed is Exhibit 4. It indicates the accused was suspected of being “a risk to border integrity in relation to smuggling narcotics”. It advised BSOs encountering the accused to do a “progressive examination using all available tools” and considering all methods of smuggling.
[13] BSO McLaren testified that lookouts are an “intelligence product”. He said that someone had identified that the traveller “might possibly have contraband and that a secondary exam should take place”. He had known flight AC 983 to have lookouts for drugs in the past. He said it was difficult to say how common lookouts were. He recalled one busy day when his team had more than two dozen. He said it was quite common that travellers subject to a lookout are found not to be smuggling and have nothing seized from them. While the lookout made him curious it did not make him suspect a traveller of smuggling. If there was a lookout he would do a thorough secondary exam to see what developed.
[14] At the beginning of the examination BSO McLaren asked the accused if these were his bags, if he packed them himself and if he was aware of the contents. The accused answered yes to each question. Early in the examination BSO McLaren located multiple bags of a food product labeled “dried soy product”. He said they looked like bags of croutons. Multiple bags were inside a number of larger clear plastic bags.
[15] BSO Dixon assisted by taking the bags of soy product to the x-ray machine. He then called BSO McLaren over to view the results. They observed round denser areas of organic material in the middle of each bag. BSO McLaren later took a digital photo of what was displayed on the monitor. The x-ray took place at 8:27 p.m.
[16] BSOs McLaren and Dixon each said the x-ray indicated that a further examination of the soy product was warranted. However, each testified that inconsistencies seen on x-rays of food products are common and often turn out to be the result of a bunching up of the product or are found to be of no significance for some other reason. BSO McLaren did agree in cross-examination that the round anomaly in each bag could be drugs and that the circular nature of the multiple anomalies suggested it was most likely an item rather than bulking. However, he said he had no way of knowing what it was until he examined it. He agreed it was likely something hidden in the packages. However, he gave an example of another examination where he found a fish that had been taped shut. An x-ray showed a dense area inside the fish. When he opened the fish he located a package of meat not drugs.
[17] BSO McLaren steadfastly maintained that he did not have grounds to arrest or detain the accused at that point. He denied that he had what counsel characterized as a “strong suspicion”. He did say that he intended to go on with his examination of the soy product and agreed that there was likely nothing the accused could have said that would have dissuaded him from opening one or more of the bags. He had never seen dried soy product before and thought the dense area could be due to bulking. He had definitely not concluded the bags contained drugs.
[18] BSO Dixon brought the x-rayed items back to the secondary counter where the accused was waiting. At that point BSO McLaren asked the accused further questions. It is these questions and answers the accused applies to exclude. McLaren asked the accused where he got the bags of soy products. The accused said he purchased them. McLaren asked how much the product cost. The accused said he did not know. McLaren asked why he did not know that and the accused said he had a friend make the purchase.
[19] BSO McLaren then opened a bag of the soy product. He located a round puck like object wrapped in brown packing tape. He asked the accused what it was and the accused said he did not know. The officer cut into the object and found white powder. He placed some powder on a wipe from a narcotics field test kit. The wipe turned blue indicating cocaine.
[20] At that point BSO McLaren arrested the accused for smuggling in contravention of the Customs Act. He placed the accused in handcuffs and read him his rights to counsel and a caution from his reference book. The accused said he understood. No issue is taken with the content of either.
[21] The accused wanted to contact duty counsel. BSO Dixon and BSO John West took the accused to a search room so he could speak to duty counsel. Dixon left a message for duty counsel at 8:35 p.m. Duty counsel called back at 8:42 p.m. No issue has been raised about the implementation of the accused’s rights. The accused told BSO Dixon that he was satisfied with his contact with duty counsel.
[22] BSO McLaren said that towards the beginning of his secondary examination he noticed that the accused was sweating profusely. The accused asked for water and was given a 500 ml bottle of water. The accused said he was diabetic and that he had low energy. He did not ask for medical attention at that time.
[23] Later in the search room the accused said he had chest pains. Emergency Medical Services (EMS) was called at 9:02 p.m. and the Greater Toronto Airport Authority Fire Department and EMS responded. The accused was taken to a hospital by ambulance accompanied by BSOs Dixon and West. Custody of the accused was transferred to the RCMP at the hospital at 1:13 a.m. the following morning.
[24] Both BSOs Dixon and West testified that they read the accused a secondary caution before taking him to the search room. The accused said he understood. BSO West testified that at 9:00 p.m. while waiting for emergency services to arrive the accused said: “I am in deep deep shit. I should have stayed far away from trouble man”. Dixon did not testify about this statement. West was not sure if Dixon was present in the search room when the statement was made.
[25] BSO West noticed that the accused had a white mark on his left ring finger and recalled that a wedding ring was removed during the search of the accused. He asked the accused if he had a wife and family. The accused said he did not. West asked about the wedding ring. The accused said, “It’s just something I wear”. West testified that he made verbatim notes of this conversation which was after the accused had spoken to duty counsel.
[26] All of the officers testified that the accused was pleasant and cooperative throughout. He appeared to understand all conversations and followed all directions. Each officer testified that there were no threats or inducements made to the accused.
The Position of the Accused
[27] The accused contends that the Crown has failed to discharge its onus to prove the voluntariness of his utterances beyond a reasonable doubt on two bases: first, because the Crown failed to call either the primary customs inspection officer or the triage officer to testify on the voir dire; second, because BSOs McLaren and Dixon failed to provide the accused with a caution when he became a suspect. The accused contends that he had become a suspect at some point prior to his arrest and certainly by the point where BSOs McLaren and Dixon viewed the x-ray of the soy product. No other arguments are advanced concerning voluntariness.
[28] The accused places most of his emphasis on his Charter arguments. He submits that he was detained prior to his arrest. He ties his submission on detention to the point where BSOs McLaren and Dixon saw the anomalies in the bags of soy product on the monitor of the x-ray machine. The accused submits that as he was detained at that point ss. 10(a) and (b) of the Charter were violated because he was not told he was being detained or the reason therefor and because he was not advised of his rights to counsel until he was arrested later.
[29] The accused submits that his right to remain silent as protected by s. 7 of the Charter was violated because by continuing to ask him questions about the bags of soy product BSO McLaren was deliberately eliciting potentially incriminating statements from him in circumstances where he was detained but had not been provided with his rights to counsel or a caution, thereby undermining his right to choose whether or not to speak to the authorities. This, of course, would also constitute a separate basis for a violation of s. 10(b) of the Charter.
[30] The accused contends that based on these Charter violations I should exclude the evidence under s. 24(2) of the Charter.
Analysis
[31] On the voluntariness issue the onus is on the Crown to prove voluntariness beyond a reasonable doubt. On the Charter issues the onus is on the accused to establish violations of the Charter on a balance of probabilities. In order to have the evidence excluded pursuant to s. 24(2) of the Charter the accused must establish on a balance of probabilities that the admission of the challenged evidence would bring the administration of justice into disrepute.
[32] However, as held in R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, where a detainee knows that he or she is speaking to a person in authority, the tests for voluntariness and a violation of the right to remain silent as protected by s. 7 of the Charter are functionally equivalent. This means that where a statement has satisfied the voluntariness requirement an application asserting a breach of the s. 7 right to remain silent cannot succeed.
[33] I have kept all of the foregoing principles in mind in reaching my decision in this case.
[34] As this case was argued the critical issue is whether the accused was detained prior to his arrest. If he was, then a violation of s. 10(b) of the Charter is clearly established. A finding of detention prior to arrest is also a prerequisite to success of the s. 7 argument as s. 7 of the Charter does not protect the right to remain silent prior to detention: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151.
[35] The analysis of whether the accused was detained prior to his arrest is affected by the fact that these events occurred in the context of crossing the border. It is well established that in other contexts detention for Charter purposes arises where an individual’s liberty interest is subject to a significant physical or psychological restraint: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 4. Detention is obvious in cases of physical restraint. As reviewed in Grant, at para. 44, psychological detention is established where a person is subject to a legal obligation to comply with a restrictive request or demand or where a reasonable person would conclude on the basis of a request or demand made by the authorities that they have no choice but to comply.
[36] The difficulty in applying this analysis at the border is that all travellers entering the country are subjected to restrictions on their freedom of movement and they are required by the Customs Act, R.S.C., 1985, c.1, (2nd Supp.) to present themselves and their goods to a customs officer. Their goods are subject to inspection and they are under a statutory obligation to answer all questions truthfully. They are not free to leave the customs area until they have complied with and satisfied the requirements of the Customs Act and other statutory provisions, such as the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which may apply at the border. Travellers expect to have their liberty and privacy interests impinged upon when crossing the border.
[37] In recognition of the reality of the need for the country to protect the integrity of its borders a significant body of case law has developed which establishes that constitutional issues must often be analyzed differently at the border than they would be in the case of an inland encounter between an individual and the authorities. These cases recognize that many circumstances which would constitute detention in an inland situation raise no constitutional concerns when crossing the border: R. v. Simmons, 1988 12 (SCC), [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), 1993 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Hudson (2005), 2005 47233 (ON CA), 77 O.R. (3d) 561 (C.A.); R. v. Jones (2006), 2006 28086 (ON CA), 81 O.R. (3d) 481 (C.A.). They also recognize that due to an individual’s reduced expectation of privacy when crossing a border many intrusions which would constitute a search in an inland context do not when they occur at the border.
[38] A comprehensive summary of the case law I have been referring to was undertaken by my colleague Hill J. in R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168, at para. 75. That case, like this one, involved a situation where there was a lookout for the accused on the CBSA computer. The cases summarized establish that routine questioning and searches by customs officials raise no constitutional issues. This includes frisks and pat downs. Routine screening does not engage a coercive or adversarial relationship between the traveller and customs officials. Nor does the fact that the traveller has been flagged as a target or a lookout for drugs.
[39] To the cases summarized by Hill J. in Darlington I would add the recent decision in R. v. Jackman, 2016 ONCA 121, [2016] O.J. No. 738. In Jackman the court made reference to many of the same cases and determined that a sniff by a drug detector dog does not constitute a search in a border crossing context although it does in most other contexts.
[40] Nonetheless, these cases also establish that detention for constitutional purposes may be found to exist prior to an actual arrest: R. v. Kwok (1986), 1986 4726 (ON CA), 31 C.C.C. (3d) 196 (C.A.), at pp. 206-07; R. v. Sahota, [2009] O.J. No. 3519 (S.C.J.). Several authorities suggest that it is not until more intrusive and non-routine measures are taken during the customs and immigration process that such a finding will be supportable: R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, 45 C.C.C. (3d) 46 (S.C.C.); Jones, at paras. 40, 42; Sahota, at paras. 47-48; R. v. Smith, 2004 46666 (ON SC), [2004] O.J. No. 4979, 26 C.R. (6th) 375 (S.C.J.); Darlington, para. 75, sub. para. (6).
[41] In Jones, at para. 42, Doherty J.A. held:
[T]he extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning…
[42] The question then arises as to what test I should apply in resolving the issue of detention in this case. That question did not have to be answered in Jones because it was clear on the facts found at trial and accepted by the Court of Appeal that Jones was not detained.
[43] This case is quite similar to Sahota. The accused in Sahota was also subject to a lookout for drugs. There was a mandatory referral for a secondary inspection and the officer undertook a thorough secondary examination of the accused’s luggage. In that case the officer noted obvious large bulges in the accused’s suitcase after it was emptied of all of its contents. When the empty suitcase was x-rayed a package could be seen inside the lining of the suitcase. The officer asked the accused what it was and the accused said he did not know. The accused was then arrested and given his rights to counsel. There were no further questions asked of him until after he had spoken with duty counsel.
[44] In Sahota van Rensburg J. (as she then was) noted, at para. 47, that while the accused was a target or a lookout for drugs and the secondary officers had access to detailed information about the lookout in the computer, “the customs officials did not have any specific information that would link him to a particular offence until his luggage was searched”. She held that the existence of a tip or a lookout, without specific information to assess its reliability, could not amount to a sufficiently strong particularized suspicion to constitute detention. I agree with that general proposition. However, she held that when the officer found the suspicious bulges and x-rayed the bag the accused was detained. Counsel for the accused submits that I should follow the same approach in the present case and conclude that the accused was detained once the officers saw the x-ray.
[45] I note, however, that in Sahota the officer admitted that at the point where he found the bulges and x-rayed the bag he had grounds to arrest Sahota. That is not the situation in the case I am dealing with. This is an important distinction. In the present case BSO McLaren denied that he had grounds to arrest when he viewed the x-ray. While he acknowledged that on an objective basis what he saw on the x-ray monitor made it likely that something was hidden in the soy product he maintained, in essence, that at that point he did not have a subjective belief that the bags of soy product contained drugs. He made reference to his experience that anomalies seen when food products are x-rayed often turn out to be insignificant. I observe that BSO Dixon, also an experienced officer, gave evidence to the same effect. BSO McLaren also gave the example of the x-ray he did of a fish which contained a package of what turned out to be meat.
[46] I accept BSO McLaren’s testimony that he had not formed the subjective component of grounds to arrest the accused when he saw the x-ray. He was both entitled and required to take his past experiences and knowledge about anomalies seen when x-raying food products into account. The fact that BSO Dixon said the same thing indirectly supports this conclusion.
[47] I also observe that the fact that the x-ray showed a roundish anomaly in each bag, which the accused submits supports the conclusion that something was likely hidden in the bags, might also support a reasonable conclusion that the anomaly was simply part of the product. BSO McLaren did not state this specifically but he did indicate that he had no prior experience with dried soy product and did not know whether the anomalies were due to bulking. I infer that this contributed to his conclusion that he did not have grounds to arrest the accused at that point and to his conclusion that he needed to examine the bags of soy product further to determine what was responsible for the round densities seen on the x-ray.
[48] In other words, I am satisfied that BSO McLaren did not subjectively have grounds to make an arrest. I accept his testimony that the lookout, the sweating and the entire constellation of factors he was dealing with had not resulted in such a level of particularized suspicion that his secondary examination up to that point, or immediately subsequent to the x-ray, was taken out of the scope of a routine secondary examination. This is not a situation like Jacoy where, based on a call from the RCMP, customs officials had decided in advance of the accused’s arrival to conduct a more intrusive search than usual no matter what the accused said in answer to routine questions, and then ushered him into a room for that purpose. Jacoy was cited by Doherty J.A. in support of the comments he made at para. 42 of Jones, which I have quoted above.
[49] Counsel for the accused submits that I should apply a purely objective test to determine whether there was such a degree of particularized suspicion that the secondary examination was no longer routine and that the accused was, therefore, detained. Counsel submits that an objective test is required as otherwise all an officer would have to do is testify that they had not subjectively formed such a degree of particularized suspicion.
[50] I do not disagree with the submission that I should apply an objective test. However, it seems to me that what is required is an objective assessment taking into account the training and experience of the officer. The question is whether a reasonable person placed in the position of the border services officer would conclude that there was such a strong particularized suspicion connecting the accused to a specific crime that the questioning and customs examination had changed from one of routine to a focused investigation of a specific offence: Jones, at para. 42; Sahota, at para. 48. In a customs context, where travellers must answer routine questions, I would think that threshold would certainly be crossed once, on an objective assessment taking the officer’s training and experience into account, grounds to arrest existed. That was the situation in Sahota. In some cases it may be met before that point depending on an assessment of all of the circumstances.
[51] The type of objective analysis I have referred to is the same approach that must be taken when a court is called upon to determine whether reasonable grounds exist to support an arrest. The arresting officer must subjectively believe that the detainee has committed or is about to commit an offence, and that belief must be justifiable on an objective basis. It has been held to be error for a court reviewing the reasonableness of an officer’s subjective grounds not to do so “through the lens of a reasonable person placed in the position of the police officer”: R. v. Wu (2015), 2015 ONCA 667, 127 O.R. (3d) 494 (C.A.), at paras. 49-57; R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-65.
[52] In Mackenzie the court held that unless the court rejected the officer’s evidence a trial judge must take the officer’s evidence of his training and experience into account when assessing reasonableness. Here I have expressly found that I accept BSO McLaren’s evidence of the need for caution before drawing conclusions about the cause of anomalies seen when food products are x-rayed. Consequently, when I objectively assess whether such particularized suspicion existed that BSO McLaren’s examination transitioned from routine to detention I have taken into account the fact that many anomalies seen when food products are x-rayed turn out to be insignificant. When I take the lookout and all of the other factors the accused has referred to into account together with that fact, I find I am unable to say either that McLaren had grounds to arrest at that point or that he had such particularized suspicion in relation to a specific offence that the accused was detained.
[53] In reaching my conclusion I have taken the following into account. Against the background of my factual findings I do not see the questions BSO McLaren asked, after seeing the x-ray and up to the point when the puck-like objects were removed from the soy product, as indicative that he had changed his focus from a customs inspection to the investigation of a drug offence. BSO McLaren was asking questions about a food product the accused was bringing into Canada which he had not declared. A question on the E311 declaration card asks travellers whether they are bringing various types of food products into Canada. The accused had answered no to that question. Yet he had numerous packages of a product which fell within that category in his luggage. In these circumstances asking where the accused got that food product and how much he paid for it seems to me to be clearly related to verification of his customs declaration. In other words, in context those questions do not suggest the officer was using routine questions to further a specific criminal investigation.
[54] I have also had regard to the various factors which have been held to be relevant to determining when detention occurs as outlined in R. V. Moran (1987), 1987 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.), per Martin J.A. at pp. 259-59; and to the various factors discussed in Grant at paras. 31, 32, 38, 39, 41 and 42. I have paid particular attention to the statement found in Grant at para. 31: “[T]he focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops.” This statement demonstrates the need to take the border crossing context into account.
[55] However, once BSO McLaren located a taped round object in a bag of soy product I conclude, applying the objective test I have referred to, that the circumstances had changed significantly. At that point the officer knew that he was not dealing with bulking of a food product or with something one would expect to find inside a bag of dried soy. At that point it was clear that the bags of soy contained some form of contraband and I conclude there were grounds to arrest the accused for smuggling under the Customs Act. In a context where the accused was required to answer questions by the Customs Act, I have no hesitation in finding that the accused was detained at that point.
[56] While I do not disbelieve BSO McLaren’s evidence that he did not think he had grounds to arrest until he cut into the round taped object and tested the powder, I conclude that position is unreasonable. On the basis of an objective assessment the accused was subject to arrest for smuggling when the taped object was found. Whether BSO McLaren chose to effect an arrest at that point or not he was required to provide the accused with his s. 10(b) rights to counsel. There was a significant danger of self-incrimination from that point forward. That risk was heightened by the customs context because the accused was required to answer questions.
[57] I note that BSO McLaren asked the accused only one question after the point at which I conclude the accused was detained and before he was arrested and provided him with his rights to counsel. That question was, “What’s this?” That question was in reference to the taped circular object. The accused’s response was that he did not know. Based on my analysis and the position taken by the accused it is only this question and answer that are subject to potential exclusion pursuant to s. 24(2) of the Charter. As this statement is exculpatory, after reaching my decision and before delivering these reasons, I asked counsel for the accused whether he wished to have this question and answer excluded. He advised me that he did not. Accordingly, I need not undertake any s. 24(2) analysis. As previously mentioned, the accused does not apply to exclude the results of the search on the basis of the alleged violations of ss. 7, 10(a) or 10(b) of the Charter.
[58] I turn to the alleged s. 7 violation. It is only post-detention statements to which the s. 7 argument applies. My decision about when the accused was detained adds only one question and answer to that category. The s. 7 argument is best dealt with in the context of my decision on voluntariness.
[59] I conclude that Crown counsel has proven the voluntariness of all of the accused’s utterances beyond a reasonable doubt. Pursuant to R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, I have undertaken a full contextual analysis considering all of the circumstances revealed by the evidence. There is no indication that any of the accused’s utterances were induced by threats or promises. There is no evidence that any of the utterances were made in an atmosphere of oppression. I am satisfied the accused had an operating mind. He was described as appearing to understand what was going on and he was responsive to the officer’s questions and directions. There is no evidence of any trickery. The accused made no submission that his ill health was a factor but I have taken it into account.
[60] I find that the failure of the Crown to call the primary officer and the triage officer as witnesses on the voir dire does not raise a reasonable doubt as to proof of voluntariness. The evidence from the witnesses who did testify is that in circumstances where a traveller uses the ABC machine, all the primary officer does is confirm that the traveller is the person named in the E311 receipt issued by the machine. This officer then directs any traveller whose E311 receipt is coded as a lookout to the triage officer. According to the evidence, all the triage officer does is take note of the lookout and advise the point officer of it after sending the traveller to the baggage hall. It is clear from this evidence that the primary officer and the triage officer would have had only brief contact with the accused in what I infer was a very public area within the terminal building. I am satisfied that neither of those officers dealt with the accused in connection with any statement he made. In these circumstances their absence is not significant and is adequately explained. See R. v. Kacherowski (1978), 1977 1987 (AB CA), 37 C.C.C. (2d) 257 (Alta. C.A.); R. v. Garfield (1974), 1975 1264 (MB CA), 22 C.C.C. (2d) 449 (Ct. M.A.C.); R. v. Settee (1974), 1974 971 (SK CA), 22 C.C.C. (2d) 193 (Sask. C.A.); R. v. Donard, 2015 SKCA 83.
[61] This is not a case like R. v. Koszulap (1974), 1974 1461 (ON CA), 20 C.C.C. (2d) 193 (Ont. C.A.), relied upon by the accused. In that case, as noted at pp. 197-98, the accused was in custody for an extended period of time prior to making his statement and witnesses necessary to determine how he had been treated during that time were not called.
[62] As to the absence of a caution, it has long been settled that a statement is not inadmissible simply because it was not preceded by a caution. The absence of a caution is but one factor to be taken into account in assessing voluntariness: R. v. Boudreau, [1949] 2 S.C.R. 262.
[63] In this case I have found that until moments before the accused was arrested he was undergoing a routine secondary customs examination during which he was required to answer questions. Following Sahota and Darlington I have also held that being subject to a lookout did not render him subject to particularized suspicion of a specific offence. In these circumstances the earliest point at which a caution was called for was at the point where I have concluded he was detained. I have also found that there was a complete absence of improper inducements, oppressive circumstances or trickery. In these circumstances the absence of a caution has little to no impact on my assessment of voluntariness. There is nothing in the evidence which raises a reasonable doubt. The accused had an operating mind and his will was not overborne. He was required to answer questions during the course of a routine customs examination. His statements have been proven voluntary.
[64] It follows that the s.7 argument also fails: Singh, Jones.
[65] The evidence is admissible.
Justice F. Dawson
Released: April 1, 2016
CITATION: R. v. Peters, 2016 ONSC 2230
COURT FILE NO.: CRIMJ(F) 191/14
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DEXTER MEAKLAND PETERS
RULING
Justice F. Dawson
Released: April 1, 2016