CITATION: R. v. Sinclair, 2016 ONSC 877
COURT FILE NO.: CRIMJ(F)354/10
DATE: 2016-02-03
CORRECTED DATE: 2016-02-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Wendy Levant, for the Applicant
Applicant
- and -
Venese Cassandra Sinclair
Paul Genua, for the Respondent
Respondent
HEARD: May 21, 2015
REASONS FOR JUDGMENT
Correction Notice
Please note the changes made to paragraphs 14, 26, 50, 60 and 61 of the original Reasons for Judgment dated February 3, 2016.
Barnes, J.
[1] Ms. Venesse Sinclair ("Ms. Sinclair") is charged with one count of importing cocaine into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("Controlled Drugs and Substances Act").
[2] Ms. Sinclair made some statements to Canada Border Services Agency ("CBSA") Officer Rodgers. She submits that these statements were not voluntarily made and were obtained in violation of her s. 7 and s. 10(b) rights pursuant to the Charter of Rights and Freedoms ("Charter"). Therefore, Ms. Sinclair seeks the exclusion of the statements.
[3] I concluded that her statements were made voluntarily and that Ms. Sinclair's s. 7 and s. 10(b) Charter rights were not violated. I ruled the statements admissible. These are my reasons.
THE FACTS
[4] Ms. Sinclair returned to Canada from Port of Spain, Trinidad on March 26, 2009. Upon her arrival to Canada she met a number of CBSA Officers. At 3:20 p.m. that day she spoke to Officer Marek at the primary inspection counter. Officer Marek reviewed and scanned Ms. Sinclair's customs declaration card. He determined that Ms. Sinclair was on a drug look-out i.e. targeted as a person who maybe importing/smuggling narcotics into Canada. In making such a determination, a mandatory referral for secondary inspection was required. Officer Marek made that referral by marking Ms. Sinclair's declaration card accordingly.
[5] Ms. Sinclair left the primary inspection counter to collect her baggage from the baggage hall. En route, Ms. Sinclair met Officer Rodgers. Officer Rodgers is a member of the CBSA Integrated Compliance Enforcement Team ("ICET"). Members of this team make observations and ask individuals routine questions to determine whether they should be referred to the secondary examination counter for further searches. The ICET's objective is to detect individuals who could be smuggling narcotics.
[6] On that day, Officer Rodger's focus was on passengers travelling on Ms. Sinclair's flight. This is because CBSA had identified Trinidad and Tobago as a drug source country. Officer Rodgers examined Ms. Sinclair's customs declaration card and observed that she was coded as a drug look-out.
[7] Officer Rodgers asked Ms. Sinclair about the reason for her trip. Ms. Sinclair said she travelled to Trinidad to celebrate her birthday with her friend, Cindy Miller, who once lived in Toronto. Officer Rodgers testified that, at this point, she had no suspicion that Ms. Sinclair had committed an offence. She explained that she only asked the question to have a baseline from which to assess Ms. Sinclair's demeanor. Officer Rodgers further testified that Ms. Sinclair was going to go to the secondary inspection counter regardless of what answer she gave her.
[8] Officer Rodgers coded Ms. Sinclair's customs declaration card to indicate that she would conduct the secondary inspection of Ms. Sinclair's luggage at the secondary inspection counter.
[9] Ms. Sinclair picked up her luggage. She met Officer Pathan at the point station. Officer Pathan testified that the point station is the last customs check-point before an individual leaves the luggage hall. Officer Pathan reviewed Ms. Sinclair's declaration card and directed her to the secondary inspection area.
[10] Ms. Sinclair went to the secondary inspection area, where Officer Rodgers was present. Officer Rodger's first observation was that Ms. Sinclair was on her phone. Officer Rodgers inquired who she was talking to and Ms. Sinclair said that she was talking to her daughter. Officer Rodgers asked Ms. Sinclair to end her phone call and Ms. Sinclair complied.
[11] After her earlier interaction with Ms. Sinclair, Officer Rodgers became familiar with the details of the drug look-out, which targeted Ms. Sinclair. The look-out details were as follows:
(a) adult female 24 years-old;
(b) appears to be travelling alone;
(c) no previous travel history;
(d) on a Canadian passport;
(e) "booking with intent to travel was zero days";
(f) travel agency is of interest; and
(g) city of travel is one of interest.
[12] The look-out information included instructions to conduct a progressive search. These progressive search instructions meant that if suspicions arose, the Officer was to continue to search further. There were instructions to contact a CBSA Intelligence Officer if anything illegal was found. There was a notation that the source of the information was believed to be reliable. Officer Rodgers said the search of Ms. Sinclair's luggage would have continued and would have been completed with or without any suspicion that Ms. Sinclair committed an offence.
[13] Officer Rodgers asked Ms. Sinclair how she paid for her ticket. Ms. Sinclair responded that she paid for her ticket in cash.
[14] Officer Rodgers asked Ms. Sinclair why she had travelled to Port of Spain, Trinidad. Ms. Sinclair said that she travelled there to celebrate her birthday in Trinidad with her friend, Cindy Miller. Cindy Miller is a former resident of Canada now living in Trinidad. This was the second time Officer Rodger's had asked her about the purpose of her travels. As I noted above, she asked the question when she met Ms. Sinclair for the first time, en route to the baggage hall.
[15] Officer Rodgers asked Ms. Sinclair to list the items in her checked luggage. Ms. Sinclair said she had clothes, a purse and fruit juice. Officer Rodgers asked Ms. Sinclair if the fruit juice was different from fruit juice in Canada. Ms. Sinclair responded that "it was the fruit juice that she liked".
[16] Officer Rodgers said that the presence of the fruit juice made her suspicious. Officer Rodgers searched Ms. Sinclair's luggage and found personal care products, clothes and cans of fruit juice wrapped in women's clothing. During this search, Officer Rodgers noticed Ms. Sinclair swirling, twirling, dancing and singing to herself. Officer Rodgers asked Ms. Sinclair why she was behaving that way. Ms. Sinclair responded that she was behaving this way because she was happy.
[17] Officer Rodgers asked Ms. Sinclair where she purchased the fruit juice. Ms. Sinclair said she gave her friend Cindy Miller money to buy the fruit juice for her. That is why she did not know the grocery store from which the juices were purchased.
[18] Officer Rodgers testified that, at this time, she was suspicious that the fruit juices may contain narcotics. She took a cotton swab of the surfaces of the fruit juice tins and tested the sample for trace particles of narcotics. The test result was positive for cocaine particles. Officer Rodgers testified that this type of positive test result for a narcotic is common place, even in the absence of narcotics; the test is for trace particles, which can easily come into contact with the outer surfaces of other objects.
[19] Officer Rodgers said that, at this point, she had an increasing suspicion that the tins may contain narcotics. She took the four tins to the x-ray machine. Officer Rodgers brought Ms. Sinclair with her because she wanted to observe Ms. Sinclair's demeanour as the images came up on the x-ray screen.
[20] Officer Rodgers said that as the x-ray images came up on the screen, Ms. Sinclair asked, "What's in it?" Officer Rodgers observed weld markings within the can. Officer Rodgers asked Ms. Sinclair what she was referring to and Ms. Sinclair did not respond.
[21] Officer Rodgers brought the cans back to the secondary inspection counter, opened one of the cans and performed a NIK test. The test was positive for cocaine. Officer Rodgers saw Ms. Sinclair smiling and giggling during the testing process. Officer Rodgers testified that, at this point, she believed Ms. Sinclair had committed the offence of smuggling narcotics.
[22] Officer Rodgers arrested Ms. Sinclair, gave her the cautions and told her about her rights to counsel. Ms. Sinclair responded that she understood both and requested to speak to counsel. Officer Rodgers asked her for the name of a lawyer, which Ms. Sinclair provided.
[23] Officers Fletcher and Rodgers conducted a personal search of Ms. Sinclair. Nothing was found. Ms. Sinclair spoke to her counsel of choice in private. Ms. Sinclair then interacted with CBSA Intelligence Office Noah.
[24] At 7:14 p.m., Ms. Sinclair was transferred to the custody of the Royal Canadian Mounted Police.
[25] The following two categories of Ms. Sinclair's statements are in issue:
Ms. Sinclair's statement to Officer Rodgers after primary inspection and while en route to retrieve her luggage, where Ms. Sinclair told Officer Rodgers that she had travelled to Port of Spain, Trinidad, on a ten day trip to celebrate her birthday with her friend, Cindy Miller, a resident of Trinidad;
the following statements Ms. Sinclair provided to Officer Rodgers during secondary inspection;
i. Ms. Sinclair said she was calling her daughter;
ii. Ms. Sinclair said the luggage in her possession was hers, was packed by her and that she was aware of the contents;
iii. Ms. Sinclair said the purpose of her trip to Trinidad was to celebrate her birthday with her friend, Cindy Miller, who was a resident of Trinidad, but a former resident of Canada;
iv. Ms. Sinclair said she flew to Port of Spain on March 16, 2009, and returned to Canada on March 26, 2009;
v. Ms. Sinclair said she had clothes and some fruit juice in the checked piece of luggage;
vi. Ms. Sinclair said that "it was juice she liked from there";
vii. Ms. Sinclair said she was "just happy";
viii. Ms. Sinclair said she gave money to her friend, Cindy Miller, to purchase the fruit juice on her behalf and that she did not know the name of the grocery store from which she purchased the juice; and
ix. Ms. Sinclair asked "What's in it?"
VOLUNTARINESS
[26] The only statements in dispute are those Ms. Sinclair made to Officer Rodgers. As a general rule, a statement made to a person in authority (for example a police officer or customs officer) by a person detained or under arrest is not admissible unless it was provided voluntarily. It is the Crown's burden to prove beyond a reasonable doubt that the statement was provided voluntarily.
[27] In determining whether there is a reasonable doubt that a statement was provided voluntarily, a judge should consider all of the circumstances surrounding the making of the statement. A non-exhaustive list of factors to consider are threats or promises, oppression, the presence or absence of an operating mind and whether there was police [or customs officer] trickery: R. v. Oickle, 2000 SCC 38, (2000) 2 S.C.R. 3.
[28] Persons travelling through borders are under a statutory compulsion to answer questions, pursuant to s. 11 of the Customs Act, R.S.C. 1985 c.1 (2nd Supp.) ("Customs Act"):
Every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament.
[29] Any person who provides false statements at the border is subject to prosecution: see Customs Act, ss. 153, 160.
POSITIONS OF THE PARTIES
[30] Ms. Sinclair takes no position as to whether her statements to Officer Rodgers were voluntary. The Crown submitts that there is no evidence to suggest that Ms. Sincliar's statements to Offcier Rodgers were involuntary. I agree. Ms. Sinclair was statutorily compelled to answer Officer Rodgers' questions. There is no evidence that Ms. Sinclair was threatened, induced, tricked, or oppressed. There is an absence of evidence indicating that Ms. Sinclair did not have an operating mind. There is no other reason to call into quesiton the voluntariness of her statements to Officer Rodgers. The Crown has proved the voluntariness of the statements beyond a reasonable doubt.
RIGHT TO SILENCE AND RIGHT TO COUNSEL
[31] Ms. Sinclair submitts that her rights to silence and counsel were breached during her interaction with Officer Rodgers. I have concluded that there was no breach of Ms. Sinclair's rights to silence and counsel during her interaction with Officer Rodgers.
POSITIONS OF THE PARTIES
[32] Ms. Sinclair submitts that during her interaction with Officer Rodgers, Officer Rodgers had a sufficiently strong and particularized suspicion that Ms. Sinclair had smuggled/imported drugs into Canada. Due to such a supicion, Ms. Sinclair was detained during Officer Rodger's questioning.
[33] Ms. Sinclair identifies three instances during the interaction when she was detained. Each instance is argued in the alternative:
(1) by virtue of her status as a drug look-out, specifically because the drug look-out included information particular to her;
(2) in the alternative, at the point when Officer Rodgers discovered the tins of fruit juice and observed Ms. Sinclair's unusual behaviour of dancing, singing and twirling; and
(3) in the further alternative, when Officer Rodgers observed the contents of the tins during the x-ray.
[34] Ms. Sinclair submits that she was detained prior to her arrest. Ms. Sinclair further submits that Officer Rodgers' failure to provide her with the primary caution, secondary caution and her rights to counsel prior to her arrest constitues a violation of her rights to silence and to counsel. Ms. Sinclair seeks to exclude all of the statements she made to Officer Rodgers after her detention pursuant to s. 24(2) of the Charter.
[35] The Crown submitts that Ms. Sinclair was statutorily compelled to provide responses at the border. Within that context, Officer Rodgers was entitled to continue to search Ms. Sinclair's luggage as part of routine border questioning and search practices. Ms. Sinclair was not detained until Officer Rodgers performed the test that confirmed the presence of cocaine in the fruit juice. Immediately after this event, Officer Rodgers arrested Ms. Sinclair and gave her the appropriate cautions and her rights to counsel. Therefore, there are no Charter breaches and all of Ms. Sinclair's statements to Officer Rodgers are admissible.
LAW
[36] Section 7 of the Charter provides that, "[e]veryone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundemental justice."
[37] Section 10(a)(b) of the Charter provides the following right to individuals who are arrested or detained:
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor; [and]
(b) to retain and instruct counsel without delay and to be informed of that right[.]
[38] While Ms. Sinclair has an individual interest in preserving her Charter rights, society has a competing interest in preserving the integrity of Canada's borders by ensuring the preseravtion of Canada's laws. Preserving Canadian laws includes effectively enforceing those laws. Charter juripudence involves striking an appropriate balance between these two competing interests: see R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, at p. 276; R. v. Jones, 2006 28086 (ON CA), [2006] O.J. No. 3315 (Ont. C.A.) ("Jones"), at paras. 29, 30-31.
[39] Travellers at Canada's borders are subject to routine questioning, luggage searches, frisks and possibly pat down searches. Travellers are under a statutory duty to answer routine questions and are expected to submit to and co-operate with border officials. A traveller who fails to answer questions truthfully is subject to prosecution and penalties: see Customs Act, ss. 11, 153 and 160; Jones, at paras. 24, 30-34. This statutory compulsion at the border does not constitute a detention under s. 10(b) of the Charter: Dehghani v. Canada (Minister of Employment and Immigration (1992), 1993 128 (SCC), 20 C.R. (4th) 34 (S.C.C.).
[40] Routine searches and questioning at Canada's borders do not breach an individual's s. 8 Charter rights (protection against unreasonable search and seizure), s.10(b) Charter rights (right to counsel) and an individual's s.7 Charter rights (right to silence). The contextual analysis of an individual's Charter rights at the border is different from the analysis of an individual's rights within Canada: see R. v. Simmons 1988 12 (SCC), [1988], 2 S.C.R. 495 ("Simmons"), at p. 312; Jones, at paras. 32-35.
[41] A person's s.7, 8 and 10(b) Charter rights are not engaged until the person is detained. A person is not detained when border officials ask routine questions and conduct routine luggage searches, including pat down and frisk searches: see Simmons, at p. 312; Jones, at paras. 32-33; R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168, at paras. 75-76 ("Darlington"). Searches such as ion scans and x-rays are routine: see Darlingtion, at paras. 75-76.
[42] A person is not detained simply because of their look-out status. This status simply denotes a referral for mandatory secondary inspection. In practice, a person designated as a look-out is subject to the same routine questioning and routine searches as any other individual referred for secondary inspection: see Jones, at paras. 38, 40; R. v. Sahota, [2009] O.J. No. 3519 (Ont. S.C.) ("Sahota"), at para. 47.
[43] However, when the questioning and searches become less routine and more intrusive, the person is detained and that individual's s. 7, 8 and 10(b) Charter rights are engaged. Detention at the border does not occur until border authorities have a "sufficiently strong particularized suspicion" that an offence has been commited to warrant a more intrusive search: see Jones, at paras. 40-42.
[44] A non exhaustive list of instances when a person is detained at the border include when border officers conduct more intrusive searches such as strip or personal searches, pursuant to s. 98 of the Customs Act (Simmons, at pp. 315, 322) or when a strong particularized indicia of contraband is discovered (Sahota, at para. 48).
[45] The analysis is fact driven and must occur in the context of the special cricumstances at the border: the existence of a statutory compulsion to cooperate with border officials and the competing interests of an individual's right to preserve her Charter rights and society's interest in preserving the intergrity of Canada's laws. These special border circumstances permit customs officers to ask routine questions or conduct searches in response to their suspicions.
[46] A variety of factors, such as an individual's demeanor, answers to questions, tip or look-out may cause a border officer to be suspicious. Officer Rodgers called these factors "indicators". When these indicators raise an Officer's suspicion to the level of a strong particularized suspicion sufficient to warrant a more intrusive search, the person is detained and the individual's Charter rights are engaged.
DISCUSSION AND ANALYSIS
Ms. Sinclair's first encounter with Officer Rodgers
[47] I disagree with Ms. Sinclair that she was detained simply because she was a look-out. The look-out staus did not give Ms. Sincliar special status. She was subjected to the same routine questioning and luggage searches as anyone else refered to the secondary inspection counter.
[48] Most of the information on the drug look out Ms. Sinclair was statutorily compelled to answer if she was asked. Ms. Sinclair--or any other traveller at the border is statutorily compelled to answer customs officers questions on their age, travel documents, country of departure, date of departure and the date the ticket was purchased etc. These are routine questions that can be asked of any traveller regardless of whether he or she is the subject of a look-out.
[49] The additional information that the travel agency was one of interest or that the source of the information was relaible did not generate any special status for Ms. Sinclair. The information on the look-out did not generate some sufficiently particularized suspicion to trigger a more intrusive search and questioning at the secondary inspection counter. Ms. Sinclair was subject to the same routine questioning and search as any person refered to this counter.
Search at the Secondary Inspection Counter
[50] A person is not detained simply because a customs officer begins to identify indicia that make her suspicious that a crime may have been committed. For a person to be detained, a customs officer's suspicion must be "sufficiently strong and particularized": see Jones, at paras. 40-42. This level of suspicion is reached when it leads the border official to conclude that a more intrusive form of inquiry is required: see Jones, at para. 42.
[51] Officer Rodgers was suspicious when Ms. Sinclair told her that she had brought fruit juice into Canada. She was also suspicious when she observed Ms. Sinclair's unusual behavior as she removed the tins of fruit juices from her luggage. She was suspicious again when she conducted the less definitive ion test and when the results came back positive for cocaine. Officer Rodgers was suspicious when she asked Ms. Sinclair to accompany her to view the x-ray images.
[52] Taken as a whole, all of the tests that Officer Rodgers conducted, including the x-ray test of the tins, were not more intrusive than what would have occurred for another passenger referred to the secondary inspection counter. Officer Rodgers had engaged in routine searches of Ms. Sinclair: see Darlingtion, at paras. 75-76; Kelly v. Palazzo, 2008 ONCA 82, 89 O.R.(3d)111.
[53] I accept Officer Rodger's testimony that her search of Ms. Sinclair's luggage would have continued irrespective of Ms. Sinclair's answers or the results of the officer's various tests. Officer Rodgers' observations and Ms. Sinclair's answers were not the reason why she continued to conduct what she described as a progressive search. I accept Officer Rodger's testimony that she would have continued to search Ms. Sinclair's luggage and its contents until the search was complete.
[54] I find that Officer Rodgers did not have reasonable and probable grounds to arrest Ms. Sinclair until after she had opened the tin and conducted the NIK test, resulting in a positive test for cocaine. However, I still must determine whether Officer Rodgers had a sufficiently strong particularized suspicion that a more intrusive test was warranted prior to arrest.
[55] In Sahota, Justice Van Rensburg (as she then was) concluded that Mr. Sahota was detained when the border services officer determined that he had reasonable and probable grounds to arrest Mr. Sahota. Justice Van Rensburg wrote at para. 48:
All of the utterances that the accused made before his suitcase was x-rayed would accordingly be admissible in evidence as the accused was not "detained" and was not protected against self-incrimination in his answers to routine questions during that time. In my view however, when Officer Ky found suspicious bulges in the accused's suitcase and x-rayed the bag, the accused was "detained". The officer admitted that it was then that he had reasonable and probable grounds to arrest Mr. Sahota. The questioning had changed from routine questions to a focussed investigation of an offence. Mr. Sahota was not however cautioned until after the officer had asked him if he knew what the package appearing on the x-ray was. Mr. Sahota's response to this question (that he didn't know) in my view is inadmissible on both a s. 7 and voluntariness analysis. [Emphasis added.]
[56] On the facts in Sahota, the Officer's sufficiently strong particularized suspicion and reasonable and probable grounds to arrest occurred almost at the same time. I should not be taken to suggest that detention occurs when these two scenarios converge; I am simply pointing out the case in Sahota.
[57] In the present case, upon an objective review of all the circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I conclude that Officer Rodgers had a sufficiently strong particularized suspicion to warrant a more intrusive form of inquiry after she showed Ms. Sinclair the x-ray images and Ms. Sinclair asked, "What's in it?" At this point, on the basis of her sufficiently strong particularized suspicion, Officer Rodgers decided to conduct a more intrusive inquiry. Officer Rodgers then opened the tin of fruit juice and tested the contents for narcotics.
[58] When Officer Jones' suspicion had become "sufficiently strong" and "particularized", Ms. Sinclair was detained (Jones, at paras. 40-42). Ms. Sinclair made no more utterances after asking, "What's in it?" Officer Rodgers then conducted a NIK test of the fruit juice which confirmed that there was cocaine in the juice. Next, Officer Rodgers formed the requisite reasonable and probable grounds to arrest Ms. Sinclair. Officer Rodgers arrested Ms. Sinclair and gave her the necessary cautions and rights to counsel.
[59] Ms. Sinclair argued that the customs officers arrested her for the offence of smuggling under the Customs Act and then handed her over to the RCMP who charged her with importing narcotics under the Controlled Drugs and Substances Act, which carries a higher penalty. This is an accurate observation but not relevant to the issue this court must decide.
[60] Ms. Sinclair submitted that the circumstances of her interaction with Officer Rodgers constituted a detention at common law and entitled her to a caution and engagement of her Charter rights. This argument was not fully developed, however, individuals at border crossings are subject to the statutory compulsions I have described and the analysis set out in Jones. In my view, these statutory compulsions and the Jones analysis makes common law considerations moot.
[61] Ms. Sinclair's s.7 and s.10(b) Charter rights were not engaged until she was detained. I find that there was no Charter breach and that Ms. Sinclair's statements to Officer Rodgers are admissible.
Barnes, J.
Released: February 3, 2016
Corrected: February 11, 2016
CITATION: R. v. Sinclair, 2016 ONSC 877
COURT FILE NO.: CRIMJ(F)354/10
DATE: 2016-02-03
CORRECTED DATE: 2016-02-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Applicant
- and -
Venese Cassandra Sinclair
Respondent
REASONS FOR JUDGMENT
Barnes, J.
Released: February 3, 2016
Corrected: February 11, 2016