CITATION: R. v. Wellington, 2016 ONSC 6475

COURT FILE NO.: Crim J(F) 1405/16

DATE: 20161019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

C. Afonso and J. Geiger for the Crown

STEVEN MARTIN WELLINGTON

DEFENDANT

C. Rippell for the Defendant

HEARD: October 3 through 13, 2016

ENDORSEMENT ON PRE-TRIAL APPLICATIONS AND MID-TRIAL RULING

Ricchetti, J.:

THE CHARGE

[1] Mr. Wellington was charged with importing cocaine into Canada on July 2, 2015.

THE APPLICATIONS and Mid-Trial Ruling

[2] The Crown brings an application for a pre-trial ruling that statements made by Mr. Wellington to CBSA officers during customs and immigration inspection are voluntary. The Crown’s application also seeks a ruling that videotaped statements made by Mr. Wellington to the RCMP during a police interview are voluntary.

[3] The Defence application seeks a ruling excluding all statements made by Mr. Wellington and the drugs as a result of a breach of s. 7, 8, 10(a) and (b) of the Charter of Rights and Freedom (“Charter”).

[4] During the course of the trial, the Defence sought to exclude a Certificate of Analyst that the contents of cans in Mr. Wellington’s suitcase contained cocaine.

[5] This court advised the parties of its rulings during the trial and that written reasons would be forthcoming subsequently. These are those reasons.

Background to the Pre-trial Applications

[6] This matter came on for trial on October 3, 2016.

[7] The Crown sought to have the Defence pre-trial Application (served 10 days before trial) summarily dismissed. The primary ground advanced by the Crown was the Defendant’s failure to serve the Application in accordance with the Criminal Rules (more than 30 days before trial).

[8] The Crown’s motion for summary dismissal was rejected by this court as the Crown’s voluntariness application had also been served contrary to the Criminal Rules (less than 30 prior to the trial date), the voluntariness application was interrelated to the Charter application regarding Mr. Wellington’s statements and because both parties were aware of the intention by the other to bring these applications in February 2016, during the pre-trial conference.

[9] The Crown also submitted that the Defence application was deficient in failing to properly and fully disclose the nature of the alleged breaches and the evidence relied on. The court agreed with the Crown submission and ordered the Defence to file a more fulsome Notice of Application by the end of the day.

[10] The Defence served and filed a more detailed Notice of Application.

[11] The next day the parties agreed to proceed by way of a blended voir dire.

Three Specific Periods

[12] With respect to the pre-trial applications, the parties focused on three specific time periods:

a) The statements made by Mr. Wellington to CBSA Officer (“BSO”) Elehky that Mr. Wellington had bought the cans, in which cocaine was discovered, at a supermarket in Jamaica. This was the sole statement the Defence objected to as admissible;

b) The statements of Mr. Wellington and evidence discovered during a strip search of Mr. Wellington; and

c) The statements made by Mr. Wellington to RCMP Constable Elliott that Mr. Wellington had bought the cans, in which the cocaine was discovered, at a supermarket in Jamaica.

THE FACTS

[13] On July 2, 2015, Mr. Wellington entered Canada from Jamaica. He attended at Customs and Immigration for primary inspection.

[14] There had been a “look out” for Mr. Wellington requesting CBSA to:

“Please verify purpose of travel and proceed with a complete examination for drugs using all available tools and considering all concealment methods including false compartment, body packing and internal carrying. Please use xx-ray and Ion scan if possible. …”

[15] At the primary inspection, because of the “look out”, Mr. Wellington was coded for immigration and customs secondary inspections. Mr. Wellington went to immigration secondary inspection.

[16] After time at immigration secondary inspection between 12:20 and 12:45 a.m., the CBSA immigration officers couldn’t confirm where Mr. Wellington was staying in Canada or his right to enter Canada.

[17] While this was being sorted out, at 12:45 a.m., the CBSA immigration officers decided to take Mr. Wellington to retrieve his baggage and to proceed to customs secondary inspection.

[18] Mr. Wellington retrieved one small black suitcase from the airline carousel.

[19] At approximately 12:45 a.m., Mr. Wellington attended before BSO Elehky for the customs secondary inspection. BSO Elehky “ran” Mr. Wellington’s passport and became aware of the “look out”.

[20] BSO Elehky understood that this “look out” was not “intel based” but rather based on another officer’s information. The fact there was a “look out” for Mr. Wellington caused BSO Elehky to be “extra vigilant” but he understood that he must conduct his customs inspection based on what he personally observed during his customs inspection. He proceeded to carry out his normal inspection and questioning.

[21] After examining Mr. Wellington’s passport and itinerary, BSO Elehky asked Mr. Wellington whether the bag was his suitcase, whether he had packed it and whether he was aware of the contents. Mr. Wellington responded yes to each question.

[22] BSO Elehky also asked Mr. Wellington the purpose of his trip and who he was visiting. Mr. Wellington answered these questions.

[23] BSO Elehky then emptied the contents of the suitcase (including two metal food cans labelled chocolate powder) onto the counter. He x-rayed the suitcase. Nothing significant was observed in the x-ray.

[24] BSO Elehky testified that one of the immigration officers accompanying Mr. Wellington made a comment that one of the cans appeared to be resealed. Until then, the cans did not appear suspicious to BSO Elehky. He testified he looked at the cans more closely and thought something else might be inside. However, he testified that he has seen other food products in resealed cans so that this information alone did not give him grounds to arrest Mr. Wellington but would only increase his suspicion. I reject BSO Elehky’s evidence regarding the alleged comment made by the immigration officer or noticing anything suspicious about the cans as neither immigration officer recalled having made such an observation or comment (no such comment was recorded by either of them in their notes) and BSO Elehky did not have any such note in his notes or narrative report regarding such a comment. This would have been a highly relevant fact to record as part of a customs inspection which resulted in the discovery of drugs. Such omission could not reasonably have been overlooked by BSO Elehky when making his notes contemporaneous with the inspection or later that morning when completing his narrative report.

[25] The following occurred, but the exact order in which they occurred remained unclear:

a) BSO Elehky asked Mr. Wellington where he got the cans to verify ownership and where Mr. Wellington had got them. Mr. Wellington said that he got the cans at a supermarket in Jamaica for his cousin. BSO Elehky testified that these are normal questions he asks other passengers of items found in their baggage to establish ownership and whether the traveller knew where the item came from; and

b) BSO Elehky x-rayed one of the cans but he couldn’t tell from the x-ray if there were any “organics” in the can – a possible indication of a controlled substance.

[26] BSO Elehky decided to investigate further by opening one can and testing it with a Narcotics Identification Kit (“NIK”). The result was positive for cocaine. BSO Officer Elehky believed that he then had grounds to arrest Mr. Wellington. Until BSO Elehky saw the results of the NIK test, he did not believe he had grounds to "arrest" Mr. Wellington.

[27] At 1:21 am BSO Elehky arrested Mr. Wellington. BSO Elehky read Mr. Wellington his Charter rights and caution. At his request, Mr. Wellington spoke with duty counsel.

[28] After Mr. Wellington returned from speaking with duty counsel, BSO Elehky examined the rest of the contents of Mr. Wellington’s suitcase including the other can. The other can was found to contain cocaine.

[29] BSO Elehky decided to conduct a personal search of Mr. Wellington, in essence a strip search. He stated it was for safety purposes and because Mr. Wellington was importing a small amount of cocaine - he thought there might be more. As will be seen subsequently, whether there were proper grounds for the strip search are not directly relevant to the pre-trial applications. I make no finding as to whether BSO Elehky had proper grounds to conduct a strip search of Mr. Wellington.

[30] During the strip search, only two male CBSA officers were present; the door was closed; the window was closed and covered; no one touched Mr. Wellington; there was no recording of the search, there was no abusive verbal conduct by the officers.

[31] In almost all respects, the strip search was conducted in a manner to be minimally intrusive and degrading to Mr. Wellington. However, the strip search resulted in Mr. Wellington being entirely naked for “under a minute”. The CBSA “manual” “advises” that a CBSA strip search be done in two stages, where only the upper or lower half of the body is naked at any one time.

[32] No drugs were discovered on Mr. Wellington. However, during the strip search Mr. Wellington made humorous statements. An airline baggage check was found in Mr. Wellington’s rolled up pant leg by BSO Azimian, which tag referred to “1 of 9” bags.

[33] At approximately 2:50 a.m., Mr. Wellington was taken to a holding cell. BSO Azimian checked on Mr. Wellington every 15 minutes and told Mr. Wellington that he could not sleep. BSO Azimian did this because he testified he wanted to ensure Mr. Wellington was alert, conscious and not in medical distress. These checks continued until approximately 5:10 a.m.

[34] After attending at the airport, RCMP Officer Elliott arrested Mr. Wellington at approximately 5:14 a.m. After reading Mr. Wellington his Charter rights and caution, Mr. Wellington said that he didn’t want to speak with counsel.

[35] Mr. Wellington was placed in a cell by the RCMP at 5:25 a.m. Mr. Wellington was permitted to sleep if he wished. The RCMP checks on persons in detention regularly but do not disturb the person if they appear to be in good physical condition even if asleep. The RCMP relies on a visual inspection if the suspect is asleep.

[36] When the RCMP day shift arrived, another RCMP officer, Constable Panzer wished to conduct a police videotaped interview of Mr. Wellington. At the beginning of the interview Constable Panzer provided Mr. Wellington his Charter rights and caution. Mr. Wellington asked to speak with duty counsel. Duty counsel was called and spoke with Mr. Wellington. Thereafter, Constable Panzer proceeded to question Mr. Wellington which interview was extremely brief and videotaped. Essentially, the only significant information provided by Mr. Wellington during the videotaped interview was that the cans had been bought at a store in Jamaica.

[37] Each of the CBSA and RCMP officers testified there were no threats, inducements made throughout their dealings with Mr. Wellington and he appeared to understand and properly respond to their questions and directions.

THE VOLUNTARINESS APPLICATION

[38] The Crown submits that the statements made by Mr. Wellington to the CBSA officers and the RCMP officer were voluntary. The Crown also advised this court that it would not adduce or rely on any statements made by Mr. Wellington during the strip search.

[39] The Defence concedes that:

a)there were no promises, inducements or threats to Mr. Wellington to elicit the statements; and

b) there is no evidence that Mr. Wellington did not have an operating mind.

[40] The Defence points to the CBSA officers’ refusal to permit Mr. Wellington to sleep as police misconduct or a harsh technique.

[41] The Crown submits this did not amount to police misconduct and, in any event, there was no evidence that Mr. Wellington was tired or any alleged lack of sleep had on the voluntariness of Mr. Wellington’s statements to the RCMP.

Analysis

[42] The onus is on the Crown to establish beyond a reasonable doubt that Mr. Wellington’s statements were voluntary, failing which the statements are inadmissible.

[43] Given the concessions made by the Defence, on the issue of voluntariness, the only issue to be considered is whether, the alleged sleep deprivation impacted the voluntariness of the statements made by Mr. Wellington.

[44] Clearly, the prior statements made to BSO Elehky that he had bought the cans at a supermarket in Jamaica would not be impacted by the alleged subsequent misconduct.

[45] Turning now to the RCMP videotaped interview, I find it was unnecessary for BSO Azimian to keep Mr. Wellington awake for approximately 2 ½ hours by waking him every 15 minutes. It was clear from the evidence of the RCMP officers, that the well being of a suspect in custody can usually be ascertained visually while a suspect is a sleep. Where a suspect's well-being cannot be ascertained or there is a known medical condition of concern, the RCMP officers testified they would awaken a suspect. In this case, there was no known medical issue known to the CBSA officers.

[46] BSO Azimian had no concerns about Mr. Wellington but simply felt Mr. Wellington needed to be kept awake for him to know this. I am not persuaded that keeping Mr. Wellington awake during this period of time was either necessary or reasonable in the circumstances of this case. I am satisfied this was, to some extent, misconduct but it is minor misconduct given the specific actions and the duration of the misconduct by the CBSA officers.

[47] The impact of “police trickery” or “police misconduct” on the voluntariness of statements was described in R. v. Oickle (2000), 200 SCC 38 as a distinct ground for determining that a statement is not voluntary.

[48] As set out in Oickle, the examination of this consideration is a distinct inquiry. Its objective is also to maintain the integrity of the criminal justice system. The court quoting Lamer J. from Rothman v. The Queen, 1981 CanLII 23 (SCC), [1981] 1 S.C.R. 640 said that it was important for courts to “vigorously repress” conduct on the part of the police that “shocks the community.” As set out in para. 91 of Oickle, even if the police conduct does not rise to that level, the use of “deception” is a relevant factor in deciding if the statement was given voluntarily:

91 I agree that merely failing to tell a suspect that the polygraph is inadmissible will not automatically produce an involuntary confession. Courts should engage in a two-step process. First, following Rothman, supra, and Collins, supra, the confession should be excluded if the police deception shocks the community. Second, even if not rising to that level, the use of deception is a relevant factor in the overall voluntariness analysis. At this stage, the approach is similar to the one used with fabricated evidence, supra -- though of course the use of inadmissible evidence is inherently less problematic than fabricated evidence. Standing alone, simply failing to tell the suspect that the polygraph results are inadmissible will not require exclusion. The most it can do is be a factor in the overall voluntariness analysis.

[49] Turning to the misconduct by the CBSA, the CBSA misconduct of keeping Mr. Wellington awake for 2 ½ hours does not rise to the level of “shocking the community”:

a)This was a relatively brief period (2 ½ hours) and there is no evidence as to whether Mr. Wellington had been well rested before arriving at the airport or whether he slept during the 15 minute intervals. There is no evidence that Mr. Wellington asked the CBSA officers to be permitted to sleep. There is simply no evidence of any tiredness or exhaustion caused to Mr. Wellington by this misconduct - none is evident from the videotaped interview;

b) To some extent, the explanation by BSO Azimian that he wanted to ensure the physical health, while not accepted as sufficient reasons to keep Mr. Wellington awake, provides some “good faith” reasonable basis for his actions. I am not satisfied there was any bad faith by BSO Azimian – there is no evidence that he knew of or intended to effect the subsequent police videotaped interview; and

c)Mr. Wellington stated to the RCMP officer that the cans had been bought in a supermarket in Jamaica. This is a repeat of what Mr. Wellington had told BSO Elehky during the customs inspection (in the presence of the other CBSA officers). There is no question about the reliability of this statement as it was not impacted by any sleep deprivation which might or might not have occurred later. Further, it is clear that Mr. Wellington understood and responded appropriately to the RCMP officer’s questions – for example, when Mr. Wellington was again given his Charter rights after speaking to counsel, he told the RCMP officer he had just done that and didn’t need to do that again.

[50] The CBSA misconduct did not make the videotaped statements in the RCMP interview involuntary and does not raise any reasonable doubt as to the voluntariness of those statements.

[51] The next issue is whether such misconduct would impact the overall voluntariness analysis.

[52] In my view, given the absence of any evidence of promises, inducements, threats and the clear evidence of an operating mind, this minor misconduct does not raise any reasonable doubt as to the voluntariness of Mr. Wellington’s statements to the RCMP in the videotaped interview.

Conclusion

[53] The statements made by Mr. Wellington to the CBSA officers during the customs inspection and to the RCMP in their videotaped interview are voluntary.

THE DEFENCE CHARTER APPLICATION

Strip Search limited to the Manner of the search

[54] Prior to submissions, the Crown advised it would not lead evidence of any statements or physical evidence obtained during Mr. Wellington’s strip search. As a result, whether the strip search breached Mr. Wellington’s Charter rights became limited to what, if any, would such a Charter breach, if one occurred, have on the subsequent statements made by Mr. Wellington to the RCMP during the police videotaped interview?

[55] During the course of the submissions, the issue of the grounds for the strip search became a significant issue. However, during the submissions the Crown submitted that the Defence had not raised the “grounds” for the strip search as a Charter breach but had only raised the “manner” of the strip search. The Crown produced an email string where, after the Defence had amended its Notice of Application, the Crown specifically asked if the Defence Charter application only related to the manner of the strip search. The Defence responded by email that he was “only challenging manner of strip search”. Further, it is clear from the Defence’s amended Notice of Application (para 9) that it is only the manner of the strip search that was alleged to be a Charter breach.

[56] The Crown submitted that, if the “grounds” of the strip search was to be considered, the Crown would need an adjournment to consider its position and potentially call more evidence on the voir dire.

[57] Given the delay in proceeding with the jury trial and the time estimate given by counsel and repeated to the jury panel during the jury selection, any significant adjournment would run a risk of a mistrial and the re-scheduling of the trial.

[58] After considering his position over the weekend, the Defence advised this court that he would not pursue the issue of the “grounds” of the strip search as a Charter breach but would only proceed on the basis of the “manner” in which the strip search was conducted as a Charter breach.

The Position of the Defence

[59] There are two primary arguments advanced by the Defence:

a)When BSO Elehky asked Mr. Wellington where he had bought the cans a detention had already arisen because, in the circumstances leading to the question, BSO Elehky had a “sufficiently strong particularized suspicion”; and

b) Because of the failure to advise Mr. Wellington of his Charter rights and caution by BSO Elehky when the detention occurred, because of the manner in which the strip search took place, because of the failure to let Mr. Wellington sleep, the videotaped interview by the RCMP was a breach of Mr. Wellington’s Charter rights.

Analysis

The Statements to CBSA Officers

[60] In R. v. Jones, 2006 CanLII 28086 (ON CA), [2006] 214 O.A.C. 225 (C.A.) the Court of Appeal stated the following as the law on questioning and detention of those entering Canada:

[32] The significance of the border crossing context to the delineation of individual Charter rights is evident from the cases that have considered the operation of s. 10(b) (the right to counsel) and s. 8 (the protection against unreasonable search and seizure) at the border. Persons seeking entry into Canada are subject to state action that can range from routine questioning to highly intrusive searches. The extent to which state action at the border will be said to interfere with individual constitutional rights depends primarily on the intrusiveness of that state action. In cases such as R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, [1988] S.C.J. No. 86, 67 O.R. (2d) 63, 45 C.C.C. (3d) 296, at p. 516 S.C.R., p. 312 C.C.C. and R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 133 C.C.C. (3d) 129, at p. 661 S.C.R., p. 149 C.C.C., the Supreme Court has recognized three levels of state action at the border. The first, or least intrusive level of that action, involves routine questioning of travellers, the search of their luggage, and perhaps a pat-down search of the person. If state action involves only this level of intrusion, the rights protected by s. 10(b) and s. 8 of the Charter are not engaged. In Simmons, supra, at pp. 516-17 S.C.R., p. 312 C.C.C., Chief Justice Dickson put it this way:

It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel . . .

(Emphasis added)

[33] The Chief Justice's observation that those who are subject to routine questioning and searches suffer no "stigma" is germane to the self-incrimination analysis. The absence of any "stigma" attached to routine questioning and searches at the border tells me that where state action does not become more intrusive than routine questioning and searches, the relationship between the state and the individual cannot be characterized as either coercive or adversarial. The absence of coercion or an [page492] adversarial relationship suggests that the principle against self-incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border: R. v. White, at p. 441 S.C.R., p. 278 C.C.C.

[34] Similarly, in Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, the court held that statutorily compelled statements made by an individual in response to questions from an Immigration Officer could be used against that person in a subsequent inquiry to determine whether the individual's refugee claim warranted a full hearing before the relevant tribunal. In rejecting the appellant's claim that he had a right to counsel under either s. 10(b) or s. 7 of the Charter when questioned by immigration authorities, Iacobucci J. said at p. 1072 S.C.R.:

Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context. These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada.

[35] Justice Iacobucci, at p. 1074 S.C.R., alluded specifically to the significance of the statutory compulsion to answer the questions put by the Immigration Officer. He observed at para. 41:

It is important to note that neither the existence of a statutory duty to answer the questions posed by the immigration officer nor the existence of criminal penalties for both the failure to answer questions and knowingly making a false or misleading statement necessitates the conclusion that the appellant was detained within the meaning of s. 10(b). These provisions are both logically and rationally connected to the role of the immigration officials in examining those persons seeking to enter the country. Indeed, they are required to ensure that border examinations are taken seriously and are effective. Both of these types of provisions also exist in theCustoms Act, and as I have already discussed, this court held in Simmons at p. 517 that it would [be] absurd to suggest that routine questioning by Customs officials constitutes a detention for the purpose of s. 10(b).

(Emphasis added)

[36] The appellant was not detained when he made the statements to the Customs authorities that were offered in evidence against him at his trial. Absent detention, he had no constitutional right to counsel and no constitutional right to remain silent: see R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, [1990] S.C.J. No. 64, 57 C.C.C. (3d) 1, at p. 201 S.C.R., p. 15 C.C.C. The questioning of the appellant and the search of his luggage also did not trespass on any reasonable expectation of privacy the appellant had at the border.

[37] The conclusion, firmly rooted in the jurisprudence, that routine questioning and inspection of luggage at the border does [page493] not result in a detention, give rise to any right to counsel, or interfere with a traveller's reasonable expectation of privacy compels the conclusion that personal autonomy and privacy -- the values animating the protection against self-incrimination -- were not implicated when the appellant was compelled to answer routine questions about his residence and his marital and employment status. The exclusion from evidence at his subsequent trial of these statements, therefore, could not vindicate or protect those values. Exclusion of the answers, however, could diminish the state's ability to effectively enforce its legitimate border interests while at the same time impairing the search for the truth in the criminal proceeding by excluding relevant evidence. The balancing of competing principles of fundamental justice does not favour extending the principle against self-incrimination to statements made in the circumstances in which the appellant made his statements to the Customs authorities.

[41] I think the proper distinction is between persons, like the appellant, who are not detained or subject to any violation of their reasonable expectation of privacy when the impugned statements are made and persons who are subject to detention, or interference with legitimate privacy expectations when statements are made. Persons who are subject to detention have the constitutional right to counsel and the constitutional right to remain silent. Persons who have a reasonable expectation of privacy can expect that the state will respect that expectation and not interfere with that reasonable expectation. The existence of these rights and the legitimate expectation of privacy reflect the values of autonomy and personal privacy that underlie the protection against self- incrimination. If a person is compelled to answer questions at the border while under detention, or while his or her reasonable expectation of privacy is otherwise interfered with, a strong argument can be made that an attempt to use those answers in a subsequent criminal proceeding will run afoul of the principle against self-incrimination. That argument does not have to be resolved on the facts of this case.

[42] While I would not make the appellant's s. 7 self- incrimination claim turn on whether he could be said to have been a target of a criminal investigation at the border, the 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: see R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46. As indicated above, if the person is detained, the assessment of the s. 7 self- incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result.

[61] Cases establish that detention for constitutional purposes may be found to exist prior to an actual arrest: R. v. Kwok (1986), 1986 CanLII 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 CanLII 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 CanLII 46666 (ON SC), [2004] O.J. No. 4979, 26 C.R. (6th) 375 (S.C.J.); Darlington, para. 75(6).

[62] In this case, there was no “sufficiently strong particularized suspicion” which established a detention at the time when BSO Elehky asked Mr. Wellington about the cans because:

a)While Mr. Wellington was on a “look out”, it was clear that BSO Elehky proceeded with the customs inspection in the normal and routine manner. For anything further he understood he would have to rely on his own observations and routine questions and inspection to decide whether he had grounds to arrest. As a result, the “look out” is not that significant on the evidence in this case as to when a detention occurred;

b) While BSO Elehky had generalized suspicion given the lookout, it was neither strong nor particularized; and

c)BSO Elehky, even if his suspicion was significant, his questioning Mr. Wellington as to where he got the cans was not an intrusive interference with Mr. Wellington’s rights nor one which was designed to obtain evidence against Mr. Wellington since up until the NIK test, there was no particularized reason to detain or arrest Mr. Wellington.

[63] In any event, BSO Elehky’s questioning regarding where Mr. Wellington bought the cans, was a routine question and a typical question a traveller expects and could be asked about any item they were bringing into Canada. It was not an intrusive inquiry.

[64] Whether the question about the cans was asked before or after the x-ray of the first can makes little difference in this case. If the question was asked after the x-ray of the can was taken, the result of the x-ray was not indicative of importation. BSO Elehky couldn’t tell if there were organics in the can requiring him to investigate the can further including asking routine questions about the source of the can. If the question was asked before the x-ray was taken, then the question was clearly part of routine questioning at the border regarding an item a traveller is bringing into the country. In either case, the question was routine and neither strong nor particularized suspicion has arisen.

[65] A detention did not arise when Mr. Wellington was asked by BSO Elehky where he had gotten the cans. Mr. Wellington’s Charter rights were not engaged.

The Manner of the Strip Search

[66] Both parties rely on the law as set out in R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679.

[67] The onus is on the Crown to establish the legality of the reasonable of a strip search otherwise there are prima facie unreasonable. See Golden para 105.

[68] Having limited the Charter application to the manner in which strip searched was carried out, the Defence application must fail. The only attack is on the manner that Mr. Wellington was strip searched, essentially, that he was fully naked for a period of time.

[69] I accept this “fully naked” strip search is of a concern since there was no reason that Mr. Wellington needed to be fully naked and that being fully naked was contrary to the CBSA manual . Mr. Wellington was not subjected to any other “unreasonable” manner of carrying out the strip search and the time that Mr. Wellington was fully naked was extremely brief – less than a minute. When considering all the factors in para 101 of Golden, I am not persuaded that the manner of this strip search, in its totality, was unreasonable or amounted to a Charter breach.

[70] The manner of the strip search did not amount to a Charter breach.

The Statements in the RCMP videotaped interview

[71] Essentially, the Defence submits that the RCMP interview is “tainted” by the prior Charter breach(s).

[72] I reject this submission:

a)The only information from Mr. Wellington’s prior statements to the CBSA officers used by the RCMP officer was the statement of Mr. Wellington that he had bought the cans in a supermarket, a statement which I found was not in breach of Mr. Wellington’s Charter rights. There is no reference or attempt to use anything else from the prior statements to the CBSA officers or arising from the strip search to carry out the RCMP videotaped interview;

b) The RCMP police interview took place more than 3 ½ hours after the alleged Charter breach at the customs inspection and a period of time after the strip search took place neither of which were found to be a Charter breach;

c)Mr. Wellington was given his Charter rights and caution at the beginning of the RCMP videotaped interview and Mr. Wellington exercised his right to speak with duty counsel before he was asked any questions;

d) There is no evidence of anything prior to or during the course of the interview that would suggest any improper conduct by RCMP officers. The interview was brief and nothing untoward can be observed during the interview and there is no evidence that anything improper occurred before the police interview.

[73] There is no evidence of any causal or temporal connection between any alleged prior Charter breaches and the RCMP police videotaped interview. See. R. v. Mian, 2014 SCC 54

[74] There was no breach of Mr. Wellington’s Charter rights as a result of the RCMP videotaped interview.

THE MID TRIAL RULING

[75] The Crown sought to introduce, through Constable Elliott, a Certificate of Analyst under s. 51 of the Controlled Drugs and Substances Act (CDSA). Defence counsel objected. The basis of the objection was that the Crown had indicated in its pre-trial memorandum in February 2016 that it would not be submitting a Certificate of Analysis.

[76] The Crown responded that the Certificate of Analyst and Notice was served on the Defence in early September 2016 in compliance with s. 51(3) of the CDSA and there was no objection to it by the Defence.

[77] There can be no doubt that the Crown had to and intended to prove that the powder in the cans was cocaine. This would not be a surprise to the Defence. To wait until the Crown was about to tender the Certificate of Analyst was not appropriate.

[78] Given this background and the lack of any prejudice alleged by the Defence to its admission, this court advised that it would permit introduction of the Certificate of Analyst under s. 51 of the CDSA.

[79] The Defence was given an opportunity for an adjournment arsing from the ruling to admit the Certificate of Analyst, which not accepted by the Defence. The Defence did not seek leave for cross-examination of the analyst under s. 51(2) of the CDSA.

[80] The Certificate of Analysis was admitted.

CONCLUSION

[81] The statements made by Mr. Wellington to the CBSA officer during the customs inspection and during the RCMP videotaped interview are voluntary. A ruling to this effect is granted.

[82] There were no breaches of Mr. Wellington’s Charter rights. The Defence pre-trial application is dismissed.

[83] The Certificate of Analysis is admissible.

Ricchetti, J.

Released: October 19, 2016

CITATION: R. v. Wellington, 2016 ONSC 6475

COURT FILE NO.: Crim J(F) 1405/16

DATE: 20161019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

STEVE MARTIN WELLINGTON

ENDORSEMENT ON PRE-TRIAL APPLICATIONS AND MID-TRIAL RULING

Ricchetti, J.

Released: October 19, 2016