Court File and Parties

COURT FILE NO.: 16-1619 DATE: 20170223

Superior Court of Justice - Ontario

B E T W E E N:

HER MAJESTY THE QUEEN S. Weinstock

• and -

ANNE MARIE ASIA MAERKL E. Perchenok

HEARD: February 8, 9, 10, 2017

Reasons for Judgment

Re: Voluntariness/Charter Justice Joseph M. Fragomeni

[1] At the outset I wish to note that the Accused, Anne Marie Asia Maerkl (Maerkl), abandoned her Charter Application pursuant to Sections 8, 9 and 10, seeking to exclude the impugned evidence under Section 24(2) of the Charter of Rights and Freedoms.

[2] The issue to be determined at the voir dire, therefore, relates only to the Crown’s Application regarding the voluntariness of the Accused’s statements to the Canada Border Services Officers.

[3] At this time I will review the testimony of these Border Services officers called by the Crown.

Border Services Officer Eric Cullen

[4] On January 15, 2016 Officer Cullen was working at Pearson International Airport. He was at that time assigned to the Integrated Compliance Enforcement Team (ICET). His shift that day commenced at 1:55 p.m. Officer Cullen made notes relating to this investigation as the events were transpiring or shortly thereafter. The typed Narrative was prepared that morning. He used the notes he made to prepare the Narrative.

[5] On January 15, 2016 he was assigned to be a rover at Terminal 1. ICET was conducting roving activities on two flights. One flight was an Air Canada flight coming in from Bogata, Columbia. The other flight was an Air Canada flight from Curacao.

[6] These two flights were selected as high risk flights.

[7] At 10:18 p.m. Officer Cullen had his first contact with Maerkl. He looked at her passport and E311 card. The passport was filed as Exhibit 1 at the voir dire and the E311 card was filed as Exhibit 2.

[8] In looking at her passport he noted a stamp for Curacao. There were no other stamps in the passport so that indicated she had had limited travel. In his experience Curacao is not a first trip people generally take.

[9] Page 4 of Exhibit 2 is the receipt from the automated border clearance kiosk which indicated a Code of 87. Code 87 meant that Maerkl was a target requiring a mandatory referral to Secondary for an inspection and examination of her luggage. All targets must be referred to Secondary.

[10] While in the roving area Officer Cullen had a conversation with Maerkl. The following exchange took place:

Q. Where are you coming from? A. Curacao. Q. What do you do for a living? A. Currently unemployed.

[11] Officer Cullen testified that Curacao is a high risk country for cocaine smuggling. In addition to that it is an expensive destination and she had indicated that she was unemployed.

[12] As a result of these concerns he asked Maerkl some follow-up questions. The following exchange took place:

Q. Who purchased your ticket? A. A friend purchased it. She met this friend on Facebook a couple of months ago and his name was Melton. Q. When was the ticket purchased? She indicated it was within seven days.

[13] As a result of this further information Officer Cullen signed the E311 in blue to indicate to the other Officers that he would be conducting the Secondary Inspection. At Secondary it was his intention to pursue further questions and examine her luggage.

[14] The Accused retrieved her luggage and the point officer directed her to Secondary as a result of the coding on the E311 card.

At Secondary

[15] At the Secondary Inspection area Officer Cullen retrieved from Maerkl her passport and E311 declaration card. She had with her one checked suitcase and one carry-on bag.

[16] The following exchange takes place at Secondary:

Q. Are these your bags? A. Yes. Q. Did you pack them yourself? A. Yes. Q. Are you aware of the contents? A. Yes. Q. Are these the same bags you left Canada with? A. Yes.

[17] After this initial exchange, Officer Cullen asked Maerkl two follow-up questions:

Q. Are you delivering anything to anyone? A. No. Q. Did anyone ask you to bring anything up? A. This suitcase, gesturing to her black Pulman Soft Side Brand R suitcase.

[18] This contradiction was a concern to Officer Cullen. Usually the same suitcase comes home. Being given a suitcase abroad is unusual. This is a common indicator for false bottom suitcases, that is, travelers are given another suitcase abroad.

[19] Officer Cullen emptied the suitcase. He then x-rayed it. The images on the computer depicted a rectangular shaped organic matter. The x-ray machine is multi-coloured. An orange colour signifies an organic material. This is consistent with a false bottom in all likelihood containing contraband, namely cocaine.

[20] As a result of this discovery Officer Cullen returned to the counter and arrested Maerkl for smuggling. She was read her rights to counsel and cautioned. She was given an opportunity to speak to duty counsel.

[21] Officer Cullen confirmed that at no time did he make any threats to Maerkl. At no time did he promise her anything. At no time was force used on Maerkl. At all times Maerkl understood what was happening.

[22] Officer Cullen also testified that at Secondary Maerkl did elaborate that Melton’s last name was Brown and he had given her a suitcase to bring back to Canada.

Cross-examination by the Defence

• Officer Cullen acknowledged that in his notes when he noted that the ticket was purchased by a “third party”, he used the term “third party”. He also used the term “short lead” referring to the short time period between the purchase of the ticket and the flight to Curacao. Maerkl said “someone else purchased the ticket.”
• at the time he looked at her passport and saw only the one stamp, he was not aware of her travel history. All he had was this one passport to look at
• at Secondary he met her at the counter. He may have directed her to the counter five seconds or so earlier but the actual meeting is at the counter.
• a video of the secondary inspection area was shown to Officer Cullen. It depicted the following:
• Maerkl is walking into the Secondary Inspection area carrying her luggage. There are three other officers there including Officer Cullen
• Officer Cullen directing Maerkl where to go
• Officer Cullen put the suitcase on the counter. Maerkl was having difficulty lifting it
• at the time she is arrested another officer arrived first then Officer Cullen walks toward her
• there is nothing in his notes to indicate that Maerkl elaborated that the person who gave her the suitcase was Melton Brown. Officer Cullen did indicate that he noted the name Melton Brown on the back of the E311 card. He also said it is possible she never mentioned that Melton Brown gave her the suitcase to bring up. This may have been his interpretation of what she said. Officer Cullen did not resile from his testimony that when he asked her, “Did anyone ask you to bring anything up?”. She answered, “This suitcase.”

Border Service Officer Walker

[23] Officer Walker is a Border Services Officer at Pearson International Airport assigned to ICET. On January 15, 2016 at 11:05 p.m. she was notified by her supervisor that her assistance was needed at the Secondary Inspection area.

[24] Officer Walker testified that she made notes of events at the time of the events and as the events unfolded. The typed Narrative report was prepared afterwards.

[25] When Officer Walker arrived at Secondary the accused had already been arrested and she was seated and cuffed. At 11:07 p.m. the secondary caution was read to Maerkl. She was asked if she understood and she nodded yes. Officer Walker’s assist officer was Officer Pardo Getmanets. Officer Walker was the lead Officer.

[26] While still at Secondary Officer Walker has the following exchange with Maerkl:

Maerkl: Am I not going to make my flight tomorrow? Officer Walker: I don’t know. Maerkl: I have to pick up my dog.

[27] At 11:17 p.m. Maerkl was escorted to the search room. The search room was cleared so she could speak to duty counsel.

[28] In the search room Officer Walker conducted a pat down search. Maerkl indicated the handcuffs were hurting so they were removed. Officer Walker saw some indentations from the cuffs but no cuts or abrasions.

[29] Maerkl spoke to duty counsel from 11:21 p.m. to 11:27 p.m. Officer Walker asked her:

Q. Are you satisfied with counsel? A. Yeah.

[30] Maerkl told Officer Walker she was taking medication and the last time she took it was Thursday. The medication was for anxiety and sleeping.

[31] At 11:30 p.m. Officer Walker asked her if she wanted water and she said yes. At 11:34 p.m. water was given to Maerkl. While waiting for the water Officer Walker recorded bio data such as phone number, employment, height, weight, colour of eyes and hair.

[32] At 11:38 the following exchange took place:

Officer Walker: Who bought your ticket? Maerkl: The person who bought her ticket said her suitcase was too small. A guy in Toronto gave her the one she travelled with. She thought it was weird. Do people do that?

[33] Officer Walker told Maerkl she would be brought to a cell and this upset Maerkl. Officer Walker explained the RCMP would be coming for her. Officer Walker decided not to take her to the cell and rather they would wait in the search room.

Officer Walker: Are you okay? Maerkl: No. Officer Walker: What’s wrong? Maerkl: This. Officer Walker: Physically are you okay? Maerkl: Yes. Maerkl: Will this stop me from travelling? Officer Walker: For now. Passport is turned over to RCMP.

[34] At 11:49 p.m. the phone rang and duty counsel had called back again. Maerkl was asked if she wanted to speak to duty counsel again and she declined.

[35] At 12:05 a.m. Maerkl started talking about her trip.

Q. Have you travelled there before? A. No – this was the first time. Q. What did you do? A. Took lots of pictures.

[36] Maerkl said she travelled from Cranbrook to Vancouver, Vancouver to Toronto, Toronto to Miami, and Miami to Curacao. On January 5, 2016 she stopped overnight in Toronto. She would be returning on a direct flight from Curacao to Toronto.

[37] She told Officer Walker she met someone on line so she went to Curacao to visit him. On January 5, 2016 she stayed at her friend’s cousin’s place.

[38] Maerkl expressed concern about her dog. No medical attention was needed.

[39] Her friend in Curacao packed her bag. He told her to go shopping. At Secondary the suitcase was not locked and she was sure she had locked it.

[40] Maerkl was talkative and friendly. She was worried about her disabled son and her dog.

[41] Maerkl told Officer Walker she was cold so Officer Walker retrieved her jacket for her.

[42] At 12:41 a.m. RCMP arrived and she was transferred to them.

[43] Officer Walker did not make any threats or promises. No physical force was used. The accused was lucid and understood what was going on.

Cross-Examination by the Defence

[44] In cross-examination Office Walker indicated that her notes were being made as she was talking to Maerkl. The notes are not verbatim, they are a gist of the conversation. Although the accused was upset she was not confused. The accused would be upset and then calm down. When she calmed down she would then talk again. The accused became upset when she talked about her dog.

[45] Officer Walker told the accused that if she needed medical attention to let her know and Officer Walker would get it for her.

Border Service Officer Pardo Getmanets

[46] On January 15, 2016 she was employed as a Border Service Officer. At 10:48 p.m. she was asked to assist Officer Walker. At 10:50 p.m. she cleared the search room. She was asked to place a call to Duty Counsel. At 11:14 p.m. Officer Walker escorted Maerkl to the search room. Duty Counsel, Mr. Pye, called back and spoke to Maerkl from 11:18 p.m. to 11:25 p.m. After the call Maerkl was asked if she was satisfied with the call by Officer Walker. Maerkl was visibly upset and said that she was satisfied with the call.

[47] Officer Pardo Getmanets asked Maerkl general questions about her medical status. Maerkl told her she has depression and anxiety and takes medication daily. Her last one was the night before at 10:00 p.m.

[48] Maerkl asked for water.

[49] Maerkl showed concern about her luggage. Whether it was too small. It was changed and she said, “Is it normal to say my suitcase is too small? The guy made me change it. Do people do that?”

[50] At 12:05 a.m. Maerkl was crying and visibly upset. At 12:19 a.m. she asked her, “Are you okay?” Maerkl said, “Okay. Just stressed.”

[51] At 12:19 a.m. she said she was cold and Officer Walker got her coat from her bag.

[52] At 12:45 a.m. she was transferred to RCMP. Officer Pardo Getmanets made no threats or promises. No force was used. The accused understood what was going on. The accused was more concerned about her dog.

Cross-examination

[53] Officer Pardo Getmanets did write down certain answers verbatim when Maerkl talked to her. Between 11:30 p.m. to 11:40 p.m. she wrote down these words verbatim:

Is it normal to say my suitcase is too small? The guy made me change it. Do people do that stuff?

[54] Officer Pardo Getmanets could not recall the sequence of those words.

[55] In the search room Maerkl was fidgety; she cried a lot, twiddling thumbs, very anxious. She never did ask for her medication.

Position of the Crown

[56] The Crown submits that the statements to Officers Cullen, Walker and Pardo Getmanets are all voluntary and therefore admissible.

[57] None of the Officers made any promises or threats. There were no inducements and no force was used.

[58] The notes of the Officers were made contemporaneously as the events unfolded or shortly thereafter. The record is sufficiently complete, accurate and reliable.

Position of the Defence

[59] The defence submits that the statements made by Ms. Maerkl ought to have been audiotaped and videotaped. The officers deliberately set out not to do so and as such the statements should be ruled inadmissible.

[60] The defence submits further that the statements are fragmented and without context. As such the statements are not reliable.

[61] The prejudicial effect of admitting these statements outweighs any probative value and therefore, in order to ensure a fair trial, the statements should not be admitted.

Governing Legal Principles

[62] I start with the decision in Park v. R., [1981] S.C.J. No. 63. The court set out the following at paragraph 29:

In this case counsel for Mr. Park admitted that the statement was voluntary. He did not admit, as has been noted, that the statement had been made in terms alleged by Sergeant Cosgrove. It is argued that the trial judge ought to have conducted a voir dire in order to determine whether or not there was some evidence that the statement was, in fact, made. There is no merit to the submission. In every case in which the Crown seeks to adduce evidence of a statement made by an accused, there must, by definition, be “some evidence” that the statement was made. This evidence exists by virtue of the fact that a police officer (or other ‘person in authority’) is seeking to tender direct evidence of the making of the statement. Whether or not the officer is to be believed, and the weight to be given to the statement, is a matter for the trier of fact. The special rules of evidence relating to statements made to persons in authority flow from the concern of the courts to ensure that such statements are made voluntarily. Once the issue of voluntariness is resolved, normal principles of evidence apply. The fact that the testimony of the police officer is contradicted by the accused cannot affect the admissibility of the officer’s evidence. Where there are conflicting versions of what was said by the accused, the jury will decide which is to be believed. There is no necessity for a voir dire on this issue. The second ground of appeal fails.

[63] Park was referred to by Doherty J.A. in R. v. Swanek released February 14, 2005 at paragraph 7 as follows:

Where the Crown relies on a statement allegedly made by an accused, the question of whether the statement was made is for the jury as long as there is some evidence from which the jury could conclude that the statement was made: R. v. Park (1981), 59 C.C.C. (2d) 385 at 395 (S.C.C.). The appellant’s first submission, if accepted, would effectively remove this factual question from the jury’s consideration in cases where there was no evidence other than the statement and the statement was taken in circumstances where it could have been, but was not videotaped or tape recorded by the police. It would make little sense to leave this question with the jury if any conviction returned by the jury was automatically labelled unreasonable on appeal.

[64] With respect to the reliability of statements, Justice Doherty sets out the following at paragraphs 8 to 11:

The appellant relies on several cases from this court that have emphasized the importance of the creation of an appropriate recording by the police of any interaction with an accused where the voluntariness of the accused’s statement may become an issue at trial. In the leading case, R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 at 518, Charron J.A. said:

[A]nd, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

[9] The cases relied on by the appellant emphatically make the point that the failure to properly record a statement will weigh heavily against the Crown if the voluntariness of the statement is in issue on appeal. None of these cases, however, support, even as it applies to the determination of voluntariness, the per se rule advocated by the appellant. The extent to which the failure to create an independent record of a statement undermines credibility of the police version as it relates to voluntariness or the content of the statement will depend on the circumstances of the case.

[10] It cannot be gainsaid that a proper recording of a statement is most beneficial in assessing both its voluntariness and the content of the statement. It is, however, a long step from that observation to the conclusion that any statement that is not properly recorded should be excluded if it is the only evidence relied on by the Crown. As observed by Iacobucci J. in R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321 at 345:

This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.

[11] I also must reject the submission that there were features specific to this case that rendered the verdicts based exclusively on the appellant’s statement unreasonable. The several factors referred to in argument by counsel for the appellant (e.g. the police failure to ask more detailed questions about the appellant’s involvement in the robberies) could support the contention that the appellant did not make the inculpatory statements. There were, however, other features of the case that could add credibility to the police evidence (e.g. the appellant’s admission that the bulk of the statement was accurately recorded by the police). Furthermore, the police explanation for not audio recording the statement was unchallenged. It was for the jury to assess the merits of these competing arguments. Viewing this evidence, even with the benefit of the “lens of judicial experience”, I am not prepared to say that the jury’s finding that the appellant made the statements is one that no reasonable jury could have made.

[65] Justice Ricchetti also reviews the legal principles surrounding the issue of statements that are not audio or video recorded. In R. v. Brown, 2014 ONSC 7096, Justice Ricchetti starts that review at paragraph 37:

On the issue of non-recorded statements, the leading case remains R. v. Moore-McFarlane, [2001] 152 O.A.C. 120. In this case, Mr. McFarlane, one of the accused was taken into an interview room for a “question and answer period” for about a half hour. There was no recording taken –but there were notes taken by the officers. Then one officer left, obtained a tape recorder, came back and interviewed the accused again while recording the questions and answers. There were also troubling issues regarding a strip search, lack of clothing during the interview and physical violence by the police that evening. There were also issues with Mr. Bogel’s statements to the police. At paragraphs 64 to 66, the Court of Appeal stated:

[64] I agree that there is no absolute rule requiring the recording of statements. It is clear from the analysis in both Hodgson and Oickle that the inquiry into voluntariness is contextual in nature and that all relevant circumstances must be considered. Iacobucci J. says so expressly in Oickle in the following words (at para. 47, p. 31 S.C.R., p. 345 C.C.C.):

The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over-and under-inclusive. A trial judge should therefore consider all the relevant factors when reviewing a confession.

[65] However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

[66] The sufficiency of the record does not go exclusively to the question of ultimate reliability and weight as contended by the Crown. One of the cases relied upon by the Crown on this point is the decision of this court in R. v. Lapointe (1983), 9 C.C.C. (3d) 366, 1 O.A.C. 1 (C.A.), affd, [1987] 1 S.C.R. 1253, 35 C.C.C. (3d) 287, where the [Ontario Court of Appeal] stated as follows (at para. 37, p. 380 C.C.C.):

Questions regarding the accuracy of the recording of an accused person's words by reason of unconscious editing on the part of the police have to do with the authenticity of the statement and do not fall to be decided by the judge on the voir dire. If he does so, as apparently the learned trial judge did in the present case, he is usurping the function of the trier of fact. The 12 bilingual jurors at this trial were eminently capable of resolving the issues of accurate or inaccurate recording of the respondents' words, of unconscious or deliberate inaccuracy, editing or deliberate fabrication. They are issues of authenticity and are not to be confused with issues of admissibility.

[66] At paragraph 38, Justice Ricchetti refers to R. v. Ahmed, [2002] 166 O.A.C. 254 as follows:

In R. v. Ahmed, [2002] 166 O.A.C. 254, the Court of Appeal made the following comment regarding unrecorded statements:

[14] Although the most recent case law from the Supreme Court of Canada in R. v. Oickle (2000), 2000 SCC 38 and from this court in Moore-McFarlane has stated that it is not necessarily fatal if the police do not record a confession, recording is not only the better practice, but in most circumstances, the failure to record will render the confession suspect. In Moore-McFarlane, Charron J.A. stated (at para. 67):

…in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

[15] After acknowledging that there is no absolute rule requiring recording of statements by police, Charron J.A. set out (at para. 65) the circumstances where an unrecorded statement will be considered suspect:

However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt [emphasis added].

[16] The issue on the appeal is whether this case falls into the category described by Charron J.A. where the unrecorded interrogation of the appellant is suspect, and consequently could not form the basis for a finding of voluntariness beyond a reasonable doubt. The basis of the Crown’s argument both at trial and on the appeal is that there was no need to record the “investigation” (the word used by the detective) because the detective did not deliberately set out to interrogate the appellant. Rather, the detective’s evidence was that his only intention in entering the interview room was to obtain personal particulars from the appellant for the purpose of filling out a form.

[67] In R. v. Ebanks, 2012 ONSC 3387, Justice Baltman excluded statements made by accused to CBSA officers who “deliberately interrogated” the accused ”without giving much thought to making a reliable record.” At paragraph 43, Justice Ricchetti outlines in detail why the facts in Ebanks did not apply to his case. Much of that analysis also applies to the case at bar so it is useful and informative to reproduce paragraph 43:

I do not accept Defence's characterization of Justice Baltman's decision in Ebanks. The Defence submits that, unless there is a recording to deal with issues of context, verbatim recording and comprehensiveness of the interactions with the accused, the Crown cannot satisfy the onus it must meet on a voluntariness application. The Ebanks decision does not set out details of when the statements were made, what was said, were the statements elicited or spontaneously made or any other details surrounding the statements. As a result, the application of Ebanks to the facts before this court is not helpful. Further there are other difficulties applying Ebanks to the facts of this case:

a) Justice Baltman determined that the officers had proceeded to deliberately interrogate the accused - a fact not present in this case. In only one instance after the arrest, did the Officers initiate a question to Mr. Brown. The only other question asked after the arrest was a clarification of a spontaneous statement made by Mr. Brown;

b) Justice Baltman could not make a determination whether there were any threats or inducements without the entire record - a fact not present in this case as the Officers testified that there were no threats or inducements and there was no challenge by the Defence of these Officers on this point in the cross-examinations;

c) Justice Baltman had concerns whether certain statements by the accused were verbatim - a fact not present in this case as both Officers stated that they put quotes when they attempted to capture Mr. Brown's statements verbatim. Officer Rajaratne made his notes almost simultaneously with the statements. I accept their evidence in this regard. There is no reason to reject it. Any issue regarding whether the words in a particular statement are verbatim does not give rise to a doubt regarding voluntariness but is a matter which can be considered by the trier of fact at trial;

d) Justice Baltman had concerns of a lack of context of the statements made by the accused. It is not clear what Justice Baltman's specific concerns were - in this case the fact that there may have been other statements or interaction between the Officers and Mr. Brown to give context to the statements is speculation. Nothing of any significance was put to the Officers in cross examination as having been said or asked which would have given context to any of the statements. It has not been suggested how the unrecorded "small talk" could have given context to the recorded statements. Asking Mr. Brown if he was ok, needed to go to a bathroom, was cold etc. would or could not give context to the statements made above. The only item which arose was that Officer Rajaratne asked a follow up question as to where Mr. Brown's friends got "this". But even this interaction does not modify or qualify the prior statement from Mr. Brown that he got “this” from his friend. In this case, there is simply no reasonable doubt based on the evidence or lack of evidence that other portions of any interaction between Mr. Brown and the Officers would have provided context by way of explanation, qualification or otherwise to the statements.

[68] In R. v. Morgan, [2017] O.J. No. 262, K.N. Barnes J. had an opportunity to deal with similar issues. A voir dire was held in that case to determine the issue of voluntariness. Justice Barnes sets out the relevant legal principles at paragraphs 7 to 11 as follows:

Travellers at Canada’s borders are under a statutory duty to submit to routine questioning, luggage searches, frisks, pat down searches, answer routine questions and co-operate with border officials. A traveller who answers untruthfully is subject to prosecution and penalties. See Customs Act, R.S.C. 1985, c. 1, ss. 11, 153 and 160; R. v. Jones, [2006] O.J. No. 3315 (Ont. C.A.), Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, (1992) 20 C.R. 4th 34 (S.C.C.). A person is not detained when border officials conduct routine searches and ask routine questions: see R. v. Simmons at p. 312 and R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168 at paras. 75-76. Detention at the border occurs when border officials have “a sufficiently strong particularized suspicion” that an offence has been committed to warrant a more intrusive search: see Jones at paras. 40-42, R. v. Sinclair, 2016 ONSC 877.

The Crown bears the burden of proving that the statement made by the person detained to a person in authority is voluntary. The Crown must prove this beyond a reasonable doubt in a voir dire. The Judge must examine the circumstances under which the statement was made to determine whether the statement was made voluntarily. This is a fact driven inquiry and analysis. Some factors to be considered include whether the person who made the statement had an operating mind at the time the statement was made, i.e. the person making the statement must understand what she is saying and that the statement will be used against her; whether the statement was made as a result of a threat or promise, inducement, oppression, violence, trickery et cetera: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

The fact a statement is not taken down verbatim does not mean that the statement will be ruled involuntary. The jury (trier of fact) must be instructed that it is up to them to decide what the accused said and whether what the accused said was true: R. v. Herbert (1990), 60 C.C.C. (3d) 422 Que (C.A.). However, the absence of an audio or video recording of the statement makes it difficult to assess the circumstances surrounding the making of the statement and more difficult for the Crown to discharge its heavy onus of proof beyond a reasonable doubt.

The accuracy, completeness and reliability of the record of a statement are important to the inquiry into the circumstances surrounding the making of the statement. There is no absolute requirement to audio and/or video record a statement.

The analysis involves an inquiry into all the circumstances surrounding the making of all statements. Failure to provide a recording of a statement frustrates the ability of the Judge to make an effective inquiry into the circumstances surrounding the making of the statement and increases the likelihood that the statement will be ruled involuntary because the circumstances surrounding the making of the statement cannot be effectively evaluated. Though not required, audio and/or video recording of all statements made to a person in authority remains a best practice: see R. v. Moore-McFarlane (2001); R. v. Ahmed (2002), 170 C.C.C. (3d) 27 (Ont. C.A.), R. v. White (2003); R. v. Ebanks, 2012 ONSC 3387; R. v. Burke, 2010 ONSC 6530, [2010] O.J. No. 5219.

[69] At paragraph 20 to 21 Justice Barnes explains why some of the statements are not reliable:

Ms. Morgan testified and recalled some of the questions CBSA Officer Cullen asked but the record of the statements prepared by CBSA Officer Cullen are fundamentally unreliable for these reasons:

• With one exception, none of the questions and answers are accurately recorded by transcribing or otherwise;

• CBSA Officer Cullen did not know whether the information noted on Ms. Morgan came from answers provided by Ms. Morgan or from some other documentation, i.e. where Ms. Morgan was travelling from, reasons for her travel, duration of her travel and the connection between her travel and her children;

• The only statements CBSA Officer Cullen recorded were these:

Q. Are these your bags? A. Yes. Q. Did you pack them yourself? A. Yes. Q. Are you aware of the contents of your bags? A. Yes. Q. Are these the same bags you left Canada with? A. Yes.

• CBSA Officer Cullen did not recall the context of his conversation with Ms. Morgan about her disability, employment, mortgage or utility payments, when her ticket to Jamaica was purchased and how many children she had;

• In general CBSA Officer Cullen had little independent recollection of the statements Ms. Morgan made to him; he conceded that he paraphrased certain portions and a lot of the context of the statements was missing.

There are no allegations and there is no evidence that CBSA Officer Cullen engaged in any conduct that calls into question the voluntariness of the statements made to him or the statements made to officers who also took custody of Ms. Morgan.

Legal Principles Applied to the Case at Bar

Re: Officer Cullen

[70] I am satisfied beyond a reasonable doubt that the following utterances are voluntary and admissible:

This exchange takes place at Secondary:

Q. Are these your bags? A. Yes. Q. Did you pack them yourself? A. Yes. Q. Are you aware of contents? A. Yes. Q. Are these the same bags you left Canada with? A. Yes. Q. Are you delivering anything from anyone? A. No. Q. Did anyone ask you to bring anything up? A. This suitcase. (Referring to her black checked Pullman soft side Brand R.)

[71] I am not satisfied that the questions and answers provided at the Roving area are admissible for the following reasons:

• The notes relating to this interaction which occurred at 10:18 p.m. were made at 1:05 a.m., almost three hours after. These notes were not made contemporaneously and the notes are a recap or summary only.
• The recap or summary of this area is prepared from all the information he had at that time, including the target information, the documentation he looked at and the conversation he had with the Accused. It is not certain which information came from the Accused so attributing those utterances to her would be prejudicial.
• With respect to the utterances relating to who provided the suitcase with which she travelled I am not satisfied the evidence on those utterances is clear. In accordance with the Agreed Statement of Fact, at no point during the discovery of Officer Cullen on May 25, 2016 did he advise or indicate in any manner that Ms. Maerkl provided any sort of elaboration as to who provided the suitcase with which she travelled.
• At the voir dire Officer Cullen testified that Ms. Maerkl told him it was Melton Brown. In cross-examination, however, he acknowledged that it could be that she never mentioned the name Melton Brown who provided her the suitcase and it was only his interpretation of what she said that led him to that conclusion.
• In all of these circumstances I am not satisfied these utterances are admissible.

Re: Officer Walker

[72] I am satisfied beyond a reasonable doubt that the following utterances are voluntary and admissible:

The following utterances were spontaneous:

• 11:13 p.m. Maerkl: Am I going to make my flight tomorrow?
• Officer: I don’t know.
• Maerkl: I have to pick up my dog.
• 11:38 p.m. Maerkl said the people who bought her ticket and her suitcase was too small and the guy in Toronto gave her the one she travelled with and took her purple one. Thought it was weird but…. Do people do that a lot?

12:05 They started talking about her trip. Officer Walker asked her, “Have you travelled there before?” Maerkl responds as follows:

Maerkl said that this was her first time in Curacao, stayed at a resort and took lots of pictures like a tourist. Travelled from Cranbrook to Vancouver to Toronto to Miami to Curacao on January 5, 2016. Had overnighted in Toronto, return was a direct flight to Toronto. She said she met someone on line and went to Curacao to visit him. Stayed overnight in Toronto with friend from Curacao’s cousin. Was also to stay there tonight. Morris is the name of the cousin. Maerkl was very concerned for her dog. Was worried because dog isn’t going to be taken care of. Spoke about current events – earthquake North Korea

• 12:25 a.m. Maerkl states he started packing my bag and then told me to go shopping. I left then when I put bag on counter it wasn’t locked and I’m sure I locked it. My key is in my pack. Morris took my purple bag and gave me his cause he said it was too small. Officer: Morris is here. Maerkl: Yes.

[73] I do not agree with the defence characterization of these exchanges that they lack context and are fragmented. At 11:38 p.m. Maerkl volunteers this information and is speaking freely. At 12:05 a.m. the conversation again is not an interrogation as depicted in the Ebanks case. Maerkl is again speaking about her trip in Curacao.

[74] Officer Walker made her notes as the events were unfolding and there is sufficient detail contained in her notes to provide completeness and reliability.

[75] The utterances are not without context nor are they fragmented.

Officer Pardo Getmanets

[76] I am satisfied beyond a reasonable doubt that the following utterances are voluntary and admissible:

• 11:33 Maerkl: Is it normal to say that my suitcase is too small? The guy made me change it. Do people do that stuff?

[77] Officer Getmanets testified at trial that she wrote this down verbatim. She could not recall if Maerkl said these three things one after another. In my view that is not critical to their voluntariness or admissibility.

[78] It will be for the jury to assess whether that affects reliability and it is up to the trier of fact to assign the weight to these utterances.

[79] These utterances corroborate the utterances noted by Officer Walker in that Officer Walker also notes that Maerkl said these things.

[80] After Maerkl spoke to duty counsel, Officer Pardo Getmanets asked her some routine questions about her medications, eye colour, hair colour, height and weight. I am satisfied that this exchange is voluntary and admissible.

[81] Officer Pardo Getmanets also asked her about her tattoos, whether she had anything in her shoes, whether she was okay. This exchange is also voluntary and admissible.

Justice Joseph M. Fragomeni Released: February 23, 2017

COURT FILE NO.: 16-1619 DATE: 20170223 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN and – ANNE MARIE ASIA MAERKL REASONS FOR JUDGMENT Justice J. M. Fragomeni Released: February 23, 2017