CITATION: R v. Gilmore, 2016 ONSC 7602
COURT FILE NO.: Crim J(F) 569/14
DATE: 20161205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
M. Dykstra for the Crown
CAROL ANDREA GILMORE Defendant
M. Mattis for the Defendant
HEARD: October 25-27, 2016
ENDORSEMENT ON PRE-TRIAL APPLICATIONS
Ricchetti, J.:
THE CHARGE
[1] Ms. Gilmore was charged with importing cocaine into Canada on May 3, 2013.
THE APPLICATIONS and Mid-Trial Ruling
[2] The Crown brings an application for a pre-trial ruling that the statements made by Ms. Gilmore to Canada Border and Services Agency (“CBSA”) officers during customs inspection were voluntary.
[3] The Defence application seeks a ruling excluding all statements made by Ms. Gilmore and the drugs as a result of a breach of ss. 8, 9, and 10 (b) of the Charter of Rights and Freedom (“Charter”)
[4] Prior to the commencement of the trial I advised counsel of my rulings and that written reasons would be forthcoming subsequently. These are those reasons.
CREDIBILITY
[5] This court finds that Ms. Gilmore’s testimony was neither credible nor reliable. I reject her testimony in its entirety. Her testimony on the voir dire was superficial on significant points with many vague and inconsistent answers. Her recollection of the events was not clear. Her testimony, in many instances, made no sense.
[6] Some examples of Ms. Gilmore’s testimony which leads this court to the above conclusion includes:
a) when she asked to speak to a lawyer and was put into contact with duty counsel, she said she spoke with “someone” but wasn’t sure it was a paralegal, duty counsellor or a lawyer. Yet, she appeared satisfied with the exercise of her right to speak with a lawyer;
b) Despite being given the Charter right to speak with counsel on numerous occasions, and exercising that right on several occasions, Ms. Gilmore suggested that she asked the CBSA officers to speak with counsel on other occasions and the CBSA officers refused. The CBSA officers evidence was clear, consistent and recorded in their contemporaneous notes that Ms. Gilmore only asked to speak with counsel twice (although on two other occasions initially asked to speak to counsel and then changed her mind). Ms. Gilmore’s testimony makes little sense that the CBSA officer would agree on two occasions to let Ms. Gilmore speak with but refuse on two other occasions;
c) Ms. Gilmore agreed that she didn’t remember how the inspection went from the positive ion result to a secondary inspection. Ms. Gilmore's testimony as to what happened during the initial customs inspection, was that she could recall very little of what had occurred;
d) Ms. Gilmore testified she couldn’t remember being read her Charter rights and caution but, upon realizing the significance of this "bad" answer, she changed her testimony to: she did not receive her Charter rights and caution. This became one of the few things Ms. Gilmore was “sure about” during her testimony; and
e) Ms. Gilmore's testimony made little sense. For example, she testified she left Jamaica to go to Panama to meet, for the first time, a prospective purchaser of her property in Jamaica - a prospective purchaser who had not seen the Jamaican property, not executed any document to buy the Jamaican property, not given her a deposit, but she nevertheless decided to incur the time and money to go to Panama to see this prospective purchase. This makes little sense for a person who had been unemployed and had exhausted her savings. To emphasize the absurdity of this testimony, after the discussions with the prospective purchaser didn't result in a sale, she returned to Jamaica despite the fact she already had paid for a ticket from Panama to Canada and this would cause her to incur further significant expense. At one point (although recanted later) Ms. Gilmore said she went to Panama to pick up drugs and transport them to Jamaica!;
f) Ms. Gilmore told the CBSA officer that she had imported cocaine from Panama to Jamaica while the officer was searching her bags. Ms. Gilmore testified she said this as an explanation why there was a positive ion scan for cocaine in her bag. She later told the officer she made up this "story". It makes absolutely no sense that a person would, when suspected of importing drugs to Canada, use as an explanation that she only transported drugs from and to other countries. This "story" would have done nothing but increase the suspicions of the CBSA officers.
[7] The evidence of the CBSA officers was consistent. Their evidence was not undermined in any significant area through cross-examination.
THE BACKGROUND
[8] On May 3, 2013, Ms. Gilmore returned from Jamaica.
[9] Ms. Gilmore was sent to secondary customs inspection where she met CBSA Bowen. CBSA Bowen asked her about her trip to Jamaica and her side trip to Panama. CBSA Bowen looked at her passport, E311 customs declaration, and itinerary. CBSA Bowen then looked through her bags. Some of Ms. Gilmore’s answers and her demeanor raised suspicion with CBSA Bowen.
[10] CBSA Bowen swabbed the interior of one of Ms. Gilmore’s bags. The ion scan came back positive for cocaine. A routine customs inspection continued but no drugs were found. Ms. Gilmore’s answers continued to raise questions and suspicion regarding possible drug importation.
[11] It is unclear when CBSA Bowen discovered that Ms. Gilmore had previously been convicted of importing drugs into Canada: it was not before the positive ion scan but may have been before the second ion scan and could have been before the detention for the personal search and loo vigil.
[12] Eventually, CBSA Bowen got approval from her supervisor for a personal search and a loo vigil (in case the drugs had been ingested). These inspections were performed by CBSA Bowen and CBSA Teply. Nothing was found.
[13] CBSA Teply and CBSA DeMarco (who relieved CBSA Bowen) decided to do a “high intensity” inspection of Ms. Gilmore’s baggage and contents. During this further inspection, cocaine was found packed in the covers of two children’s books. Ms. Gilmore was arrested and charged with importing.
THE VOLUNTARINESS APPLICATION
The Position of the Parties
[14] The Crown submits that the statements made by Ms. Gilmore to the CBSA officers were voluntary.
[15] The Defence submits that “at the time of making these utterances and statements the atmosphere was of such oppression that it impacted the operating mind of the Respondent” because of the circumstances and that the CBSA officers were “forceful, aggressive and hostile”
Analysis
[16] The onus is on the Crown to establish beyond a reasonable doubt that Ms. Gilmore’s statements were voluntary, failing which, Ms. Gilmore’s statements are inadmissible.
[17] The evidence of the CBSA officers was credible. Throughout their dealings with Ms. Gilmore, they acted calmly, professionally and in a manner expected of border security officers. There were no inducements, threats or abusive behaviour by any of the officers. The CBSA officers did not act in an oppressive manner.
[18] Let me deal with the specific issues raised by the Defence.
Ms. Gilmore was tired
[19] The Defence submits that Ms. Gilmore was extremely tired since she had been awake since 6:00 a.m. that morning.
[20] There are several problems with this submission. Ms. Gilmore’s evidence was that she answered the CBSA questions because she was asked, she didn’t want to be rude and she was tired. She testified she was being “polite” but “didn’t know it would come back to haunt” her.
[21] The evidence of the CBSA officers was that they observed nothing to suggest that Ms. Gilmore was “exhausted”. The Defence chose not to ask the CBSA Officers if Ms. Gilmore had told them she was exhausted – something to which Ms. Gilmore later testified she had said to the CBSA officers. I reject Ms. Gilmore’s evidence on this point.
[22] Ms. Gilmore wanted the personal search and loo vigil to be completed and leave because she knew she didn’t have the drugs in her or on her. She acknowledges she was cooperative with respect to these two searches and during these searches. This is quite understandable given that Ms. Gilmore believed the CBSA officers had "missed" the cocaine in the two children's books in her bags and Ms. Gilmore knew that she had no drugs on or in her body.
[23] Ms. Gilmore understood the CBSA questions and gave appropriate and responsive answers. In many cases, she does not dispute that what she said to the CBSA officers was true and accurate. Ms. Gilmore was frustrated because she wanted to leave but she agreed that the CBSA officers kept asking her “different questions” and that she “kept answering”. She testified she didn’t know why she kept answering but she was not thinking of "legal grounds" or that it would come back to court. She agreed she chose to answer the questions because she “didn’t want to be rude” and she “didn’t know that they were writing these things down”.
[24] Ms. Gilmore’s evidence does not suggest that she was coerced or gave answers which were unreliable because of any reason, including because she was tired or exhausted.
[25] When asked which answers to the CBSA officers were not true, there was little (and nothing of significance) that Ms. Gilmore denied she had told the CBSA officers.
[26] When Ms. Gilmore was told there would be a secondary (or personal) search and asked how she was feeling, she responded she had “no problem”. She asked for food (which was provided). Clearly, Ms. Gilmore had an operating mind during the CBSA inspections.
[27] There is simply no evidence that Ms. Gilmore was so tired or exhausted that she didn’t have the ability to understand the questions and decide whether to respond to questions asked. There is no evidence that the answers she gave to the CBSA officers were not reliable because she was tired or exhausted.
The CBSA Conduct was oppressive
[28] The Defence questioned some of the CBSA officers suggesting that they were abusive by throwing things and yelling at Ms. Gilmore, making it an oppressive atmosphere to Ms. Gilmore. Ms. Gilmore testified that the CBSA officers were rude, not professional, and sarcastic and were frustrated in not finding drugs.
[29] There was a complete denial of such conduct by the CBSA officers. I accept the CBSA officer's evidence.
[30] Ms. Gilmore agreed that this alleged rude conducts centered on her statement that she had been a drug courier from Panama to Jamaica. However, on this point, Ms. Gilmore agreed that she was not forced to say she transported drugs from Panama to Jamaica – she agreed she told the CBSA officer this information out of frustration and as an explanation and not oppression.
[31] I find no oppressive conduct on the part of the CBSA officers and no oppressive atmosphere when Ms. Gilmore answered the CBSA officer's questions. There is simply no evidence supportive of any abusive or oppressive conduct on the part of the CBSA officers.
Requests to speak with counsel
[32] The Defence submits that Ms. Gilmore asked on numerous occasions to speak with duty counsel but was refused in all but one occasion.
[33] I reject this submission.
[34] Ms. Gilmore asked to speak with counsel on one occasion, after the second positive ion scan. Ms. Gilmore was told she was not detained but CBSA Bowen went to speak with her superintendent. Upon CBSA Bowen’s return and before anything significant occurred, Ms. Gilmore was immediately detained and read her Charter rights and caution. Ms. Gilmore said that she no longer wanted to speak with counsel. CBSA Bowen reminded her that she had wanted to speak with counsel a few minutes earlier. Nevertheless, Ms. Gilmore said she no longer wanted to speak with duty counsel. As a result of Ms. Gilmore’s subsequent refusal to speak with duty counsel, no harm or prejudice arose as a result of the initial refusal by CBSA Bowen.
[35] On another occasion during the personal search, Ms. Gilmore said she wanted to speak with counsel but again changed her mind shortly thereafter. The evidence of both the CBSA officers on this point is preferred and accepted.
[36] There were two other occasions when Ms. Gilmore asked to speak with duty counsel and on both occasions, the CBSA officers accommodated the request and Ms. Gilmore spoke with duty counsel.
[37] I am not persuaded that there was a refusal to permit Ms. Gilmore to speak with duty counsel nor did it affect the voluntariness of the statements made by Ms. Gilmore.
The Lack of a Recording
[38] The lack of recording is not a serious issue in this case.
[39] As for Ms. Gilmore’s statements, there is very little disagreement as to what Ms. Gilmore told the CBSA officers. Any disagreements as to what was said are few, minor and of little relevance.
[40] With respect to the remaining events that evening, the CBSA officers had detailed notes which were made, in many cases, contemporaneously with the events. The notes of the CBSA officers were consistent in the significant points.
[41] I am not persuaded that the lack of contemporaneous recording of the events that evening raises a reasonable doubt regarding the voluntariness of the statements made by Ms. Gilmore.
Conclusion
[42] I reject Ms. Gilmore’s evidence that (to the very limited extent that it does) suggests she involuntarily gave statements to CBSA and it does not leave me with any doubt regarding the voluntariness of her statements to CBSA.
[43] In my view, given the absence of any evidence of promises, inducements, threats and the clear evidence of an operating mind and the clear reliability of the statements made to the CBSA officer, the evidence does not raise any reasonable doubt as to the voluntariness of Ms. Gilmore’s statements to the CBSA officers.
THE DEFENCE CHARTER APPLICATIONS
[44] A useful description of the relationship between custom’s inspections and Charter rights are set out R. v. Jones, 2006 28086 (ON CA), [2006] 214 O.A.C. 225 (C.A.) where the Court of Appeal stated:
[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 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 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 . . .
[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.
[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).
[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 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 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.
The Position of the Defence
[45] On the s. 8 Charter application the Defence submits that the CBSA officers had “insufficient grounds to search Ms. Gilmore’s person and belongings”.
[46] The Defence submits on the s. 9 Charter Application that the CBSA officers “did not have sufficient reason to detain Ms. Gilmore upon her arrival at the airport”.
[47] On the s. 10(b) Charter application the Defence submits that the BSO officer “had an obligation to immediately inform the Applicant of her right to counsel.”
The Issues to be decided on the Charter Applications
[48] Most of the Defence application is disposed of by simply referring to Jones, supra and by recalling that the events occurred during a customs and immigration inspection. The CBSA officers have a right to conduct a routine customs inspection including routine questioning and a search of the belongings of all travellers returning to Canada. It goes without saying that, in order to conduct such routine inspections, the CBSA officers have a right to temporarily detain travellers without engaging Charter rights.
[49] What is the essence of the Defence Charter applications?
[50] The Defence position, garnered from the oral submissions, was that no Charter rights and caution were given prior to the secondary search and, if they had, Ms. Gilmore’s rights and caution should have been given earlier. The central issue is when a detention of Ms. Gilmore occurred.
When did the detention of Ms. Gilmore Occur?
[51] Cases 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.).
[52] 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(6).
[53] No detention of Ms. Gilmore occurred when CBSA Officer Bowen undertook a routine customs inspection of Ms. Gilmore’s luggage and asked Ms. Gilmore about her trip. Up until the ion scan, there was no sufficiently strong particularized suspicion or questions which went beyond routine questioning.
[54] Then the ion scan of the swab from Ms. Gilmore’s bag resulted in a positive result. CBSA Bowen became suspicious but, she testified, that in the past positive ion results had not always resulted in drugs being found. CBSA Bowen testified she was now “building her grounds” or looking for information to assuage her suspicions of drug importation. CBSA Bowen continued to inspect Ms. Gilmore’s baggage, papers and clothing. CBSA Bowen asked Ms. Gilmore where she had gone during the trip to Jamaica. This continued the routine inspection and questioning expected by a traveller returning from abroad.
[55] However, then the customs inspection became very focused. CBSA Bowen re-ran the ion scan test in the presence of Ms. Gilmore. Again, the result was positive. Having shown the positive ion result to Ms. Gilmore, CBSA Bowen asked Ms. Gilmore to provide an explanation for the positive ion result from the swab of her bag. Ms. Gilmore said that she couldn’t explain it.
[56] In my view, at this point, CBSA Bowen’s questioning went beyond a routine inspection and routine questioning. CBSA Bowen’s inspection was focused now that the contents of the bag had come into contact with cocaine and essentially asking Ms. Gilmore to provide answers or information which could be used against Ms. Gilmore should any drugs be subsequently found on this now focused investigation.
[57] At this point, Ms. Gilmore was detained. In my view, when CBSA Bowen asked Ms. Gilmore to provide an explanation for the positive ion scan, she had a strong particularized suspicion that Ms. Gilmore was importing narcotics and proceeded to question Ms. Gilmore in a way that went beyond a routine customs inspection or questioning. The risk to Ms. Gilmore responding to this line of questioning without being provided her Charter rights and caution, was unfair and prejudicial. Any answer by Ms. Gilmore, except a complete denial, would be extremely prejudicial to Ms. Gilmore. This risk was clear from Ms. Gilmore’s request to speak with counsel. CBSA Bowen told Ms. Gilmore she was not under detention but then the positive ion scan was enough for CBSA Bowen to speak to her superintendent suggesting that she had grounds for a personal search. I have no doubt that Ms. Gilmore, if she wanted to leave at that time, would not have been able to do so. A detention occurred when CBSA Bowen decided to focus her questions of Ms. Gilmore after the second positive ion scan.
[58] CBSA Bowen went to get guidance from the superintendent. CBSA Bowen wanted to proceed with a secondary inspection. The superintendent told her to return to get “more grounds”.
[59] CBSA Bowen returned to Ms. Gilmore and told her that she suspected her of smuggling narcotics. If there was any doubt, it is clear that CBSA Bowen was conducting a very focussed investigation rather than a routine inspection.
[60] Ms. Gilmore felt compelled to provide an explanation for the positive ion result. She told CBSA Bowen that she had, as a side trip to her Jamaica trip, importing cocaine from Panama to Jamaica as a courier. CBSA Bowen asked Ms. Gilmore for more information about the trip to Panama. CBSA Bowen testified she suspected Ms. Gilmore was importing drugs “for sure”.
[61] Ms. Gilmore said that she wanted to speak with counsel. CBSA Bowen denied she was detained but left to speak with her superintendent one more time. In my view, this was an error. Ms. Gilmore had already been detained when the focussed investigation had begun.
[62] CBSA Bowen returned to speak with her superintendent and presented her grounds for a personal search. This time, the superintendent agreed to a personal search and a loo vigil. CBSA Bowen returned to Ms. Gilmore and advised her that she was detained. Ms. Gilmore told CBSA Bowen that she had made up the “story” about importing drugs from Panama to Jamaica.
[63] CBSA Gilmore read Ms. Gilmore her Charter rights and caution. Ms. Gilmore advised she no longer wished to speak with counsel.
[64] CBSA Bowen and CBSA Teply proceeded with the personal search and loo vigil. The evidence was clear that the requirements of s. 98 of the Customs and Immigration Act were complied with.
Was Ms. Gilmore Given Her Rights And Caution?
[65] I am satisfied that Ms. Gilmore was given her Charter rights and caution upon her return from speaking with the superintendent the second time and was going to proceed with a personal search and loo vigil. CBSA Bowen reminded Ms. Gilmore that, moments before, she had wanted to speak with counsel and could now do so. Ms. Gilmore understood her Charter rights and caution. This evidence was confirmed and consistent with CBSA Teply’s evidence.
[66] On the other hand, Ms. Gilmore initially said she couldn’t remember whether she was given her Charter rights and caution and later, after realizing the significance of her evidence, denied she had been given her Charter rights and caution. For the reasons set out above, Ms. Gilmore’s evidence was fraught with inconsistencies, lack of details and very self serving. Her evidence that she first heard her Charter rights and caution was when she was arrested is rejected as being inconsistent with her own evidence and the evidence of all the CBSA officers.
[67] I am satisfied that Ms. Gilmore was given her Charter rights and caution immediately prior to the personal search and loo vigil and that Ms. Gilmore understood her Charter rights and caution.
The Statements of Ms. Gilmore between the time the detention occurred and being provided with her Charter rights and caution
[68] After advising counsel of my ruling, counsel agreed that the only significant statements made by Ms. Gilmore during the period of time between the time the detention arose (as found by this court) and the time Ms. Gilmore was first provided her Charter rights and caution was Ms. Gilmore’s statements that she had been a drug courier from Panama to Jamaica during this trip and her subsequent recantation of this “story”.
[69] Counsel did not suggest and I do not find that anything said between the time of detention and the first time Ms. Gilmore was given Charter her rights and caution, related to any other questions or statements made by Ms. Gilmore subsequently.
[70] It is clear that the subsequent denial of being a courier from Panama is related temporally and causally to the earlier statement of Ms. Gilmore regarding the Panama trip.
[71] As a result, if Ms. Gilmore’s statement regarding her being a drug courier from Panama to Jamaica is excluded, so should the subsequent recantation of that “story”.
[72] The issue to be decided was whether the statements that Ms. Gilmore had been a drug courier from Panama to Jamaica and her subsequent recantation are admissible as a result of the Charter breach.
[73] The only other statement made by Ms. Gilmore during this period was a denial of knowledge as to how or why the ion scan was positive for the swab of her bag. This evidence was beneficial to the Defence and was a spontaneous statement (see R. v. M.C., 2014 ONCA 611). There was no dispute that this statement by Ms. Gilmore was admissible.
The Impact Of The Subsequent Statements After The First Rights And Caution Were Given
[74] Ms. Gilmore was given her Charter rights and caution on several occasions after the first time by CBSA Bowen. On each occasion she indicated she understood her Charter rights and caution. She was given a secondary caution on two occasions. She understood that caution. She was explained her s. 98 Customs and Immigration Act rights. She understood those rights.
[75] Ms. Gilmore refused to speak with counsel on several occasions but on one occasion during the personal search she exercised her right to speak with counsel and she indicated she was satisfied with her discussions with counsel.
[76] Notwithstanding being provided her rights and caution and speaking with duty counsel, she nevertheless continued to answer the questions of the CBSA officers. Virtually all the statements made by Ms. Gilmore to the CBSA officers regarding the reasons and details of the trip and her circumstances were made after 2:00 a.m., AFTER Ms. Gilmore had been given her Charter rights and caution and had spoken to duty counsel.
[77] There was no causal connection between the topics discussed after 2:00 am that related to the Panama side trip or the recantation of that "story".
[78] I find that these subsequent statements made by Ms. Gilmore were made voluntarily and with full knowledge of her Charter rights and caution and were not tainted by the prior short delay in providing Ms. Gilmore with her Charter rights and caution.
CONCLUSION
[79] As a result, I find that a detention occurred when CBSA Bowen took Ms. Gilmore to see the second ion scan and then asked how the cocaine had come into contact with her bag. CBSA Bowen breached Ms. Gilmore’s Charter rights by failing to provide Ms. Gilmore with her Charter rights and caution before proceeding with the non-routine questioning of Ms. Gilmore.
[80] From the time of Ms. Gilmore's detention until she was first given her Charter rights and caution, Ms. Gilmore told CBSA Bowen about the side trip to Panama where she had imported cocaine from Panama to Jamaica. Ms. Gilmore's statements regarding the side trip to Panama to transport drugs was a statement made in breach of Ms. Gilmore's Charter rights.
[81] The subsequent recantation of this alleged side trip to transport drugs is so causally and temporally connected to the statement in breach of Ms. Gilmore's Charter rights, this subsequent recantation is also in breach of Ms. Gilmore's Charter rights.
[82] The balance of Ms. Gilmore's statements after she had been given her Charter rights and caution, were not made in breach of her Charter rights.
[83] Should the statements regarding the "side trip" to Panama and the subsequent recantation be excluded as evidence?
[84] Section 24(2) of the Charter provides as follows:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
[85] The Supreme Court of Canada in R. v. Grant 2009 SCC 32 , [2009] S.C.J. No. 32 at paragraphs 71, 85 and 86 set out the manner in which a court must assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
To review, the three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck…
[86] The question is whether, considering all of the circumstances, the admission of the evidence could bring the administration of justice into disrepute. The purpose of s. 24(2) is to maintain the good repute of the administration of justice, including maintaining the rule of law and upholding the Charter rights in the justice system as a whole. The section looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence and not just the specific case at hand. The inquiry is objective, asking whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter would conclude the admission of the evidence would bring the administration of justice into disrepute.
[87] As to the seriousness of the Charter breach, the CBSA conduct, I find that CBSA Bowen was being cautious, going to her superintendent to get guidance. This demonstrates that there was no deliberate breach or bad faith action by CBSA in this case. This factor is neutral.
[88] Turning to the impact on Ms. Gilmore’s Charter protected rights, the impact was extremely prejudicial. There is little doubt that, if Ms. Gilmore’s statement that she had been a drug courier from Panama to Jamaica approximately one week earlier was admissible, this evidence would be extremely prejudicial and likely fatal to the Defence. This factor strongly favours the exclusion of this evidence.
[89] As to society’s interest in the adjudication on the merits, the exclusion of this evidence would not gut the Crown’s case. In fact, evidence that Ms. Gilmore had been a drug courier outside of Canada was relevant, but minimally so. Its prejudicial value would be overwhelming. This factor is neutral at best and as a prejudicial/probative analysis, would favour the exclusion of this evidence.
[90] Considering the totality of this evidence, I am satisfied Ms. Gilmore’s statements regarding her "side" trip as a drug courier from Panama to Jamaica (and the subsequent recantation) would bring the administration of justice into disrepute if admitted into evidence and must be excluded.
Ricchetti, J.
Released: December 5, 2016
CITATION: R v. Gilmore, 2016 ONSC 7602
COURT FILE NO.: Crim J(F) 569/14
DATE: 20161205
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CAROL ANDREA GILMORE
ENDORSEMENT ON PRE-TRIAL APPLICATIONS
Ricchetti, J.
Released: December 5, 2016