COURT FILE NO.: 755/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R.
J. Campitelli, for the Crown
- and -
Issa Juma
C. Zeeh, for the Accused/Applicant
HEARD: May 23 & 24, 2018
RULING on PRE-TRIAL APPLICATIONS
Baltman J
Introduction
[1] The accused, Issa Juma, is charged with one count of importing heroin into Canada. His trial is scheduled to begin on September 24, 2018. He has been detained in custody since his arrest on April 15, 2017.
[2] Mr. Juma has brought a pre-trial application to exclude an utterance he is alleged to have made to Border Services Officer (BSO) Jolly in the immigration review area at Pearson International Airport. He alleges that his statement to BSO Jolly was involuntary and made in violation of his rights under ss. 7, 10(a) and 10(b) of the Charter.
Summary of Relevant Evidence
[3] Mr. Juma is a citizen of Tanzania. His first language is Swahili.
[4] On April 15, 2017, at approximately 8:30 a.m., Mr. Juma arrived at Pearson Airport on a flight from Uganda that originated in Addis Ababa, Ethiopia.
[5] Upon arrival at Pearson, Mr. Juma was briefly questioned by primary Border Services Officer (BSO) Gorski. Because of some odd answers he gave when asked about his plans in Toronto, she determined that he required further questioning by immigration authorities, and therefore coded him for "immigration" review. Mr. Juma then proceeded toward the immigration secondary area.
[6] Around 10:00 a.m. BSO Paul Guy called Mr. Juma up to the counter at the immigration secondary area. They spoke briefly, without the assistance of a Swahlian interpreter. During this interaction, Guy became concerned about the responses he was receiving from Mr. Juma. Mr. Juma had no family or friends in Canada, was vague about where he would be staying and could not explain why he had travelled here other than "to see beautiful things like the two towers".
[7] Guy, accompanied by his supervisor, then walked Mr. Juma to the customs secondary area where his luggage was inspected by BSO Sinthuyan Jegatheswaran. Nothing of concern was identified and at approximately 10:40 a.m. they returned to the immigration area. Guy then embarked on an interview of Mr. Juma, with the assistance of a Swahili interpreter. At the end of the interview, Mr. Juma returned to the immigration waiting area while Guy wrote up his report.
[8] In his report, Guy concluded Mr. Juma was inadmissible under the Immigration and Refugee Protection Act (IRPA). He then passed the file over to his supervisor, BSO Shalender Jolly, to conduct a review (as mandated under IRPA). When Mr. Juma asked Guy what he was doing, Guy told him that he was "determining his admissibility" to Canada, and that another officer will be "reviewing" the matter and speaking to him.
[9] Before speaking with Mr. Juma, Jolly reviewed Guy's report along with Mr. Juma's travel documentation. He also spoke with Guy to review his conclusions. While Jolly was speaking with Guy, Mr. Juma walked up to them and said to Guy "you ruined my life". Neither Guy nor Jolly responded to him, and Mr. Juma resumed his seat.
[10] After reviewing the report with Guy, Jolly concluded that Mr. Juma's story "didn't make sense". He felt the "full picture" was missing. Although Mr. Juma already appeared inadmissible, Jolly was "looking for" and "wondering whether" there was any "additional inadmissibility".
[11] In particular, he was curious why Mr. Juma had spent several days in Uganda, which is neither his home nor place of citizenship. He had a "hunch", a "general suspicion that something was not right here"; he therefore decided to conduct an open Google search, inserting the terms "Uganda" and "drugs". He may also have searched "Uganda" and "diamonds".
[12] One of the first results to appear was a WHO (World Health Organization) report which tracked drug trafficking routes - particularly for heroin - from Uganda to various other countries, including some that Mr. Juma had visited in the past.
[13] Armed with that information, at approximately 3:45 Jolly sat down with Mr. Juma to question him, accompanied by an interpreter. He did not provide Mr. Juma with any caution or rights to counsel. After confirming with Mr. Juma that he understood the interpreter, Jolly then proceeded immediately – as his first question - to ask Mr. Juma whether he had swallowed drugs, or words to that effect. Mr. Juma replied "yes, I think I swallowed drugs in Uganda".
[14] This meeting was neither audio or video recorded; in fact, Jolly did not even make notes of what was said until after Mr. Juma admitted to consuming drugs, and even then he did not write down the question that elicited that answer. Jolly testified this was the first time in over ten years on the job (and thousands of interviews) that he had ever conducted such an internet search or asked that question, and he was "shocked" by the answer. That said, he admitted that he knew before meeting with Mr. Juma that depending on the answer, it could become a criminal investigation. He also agreed that in keeping with his standard practice, Mr. Juma was likely told before this meeting that he was obliged to answer all questions put to him.
[15] Jolly proceeded to arrest Mr. Juma for smuggling and read him his rights to counsel. Mr. Juma advised he wanted to speak to counsel "now". Jolly then asked Mr. Juma if he "knew what he had swallowed". Jolly stated that although he knew that when someone requests counsel he is supposed to hold off questioning, he posed this question as a "safety concern", so that if something ruptured he could advise the medical attendants what substance Mr. Juma had ingested. Despite that alleged concern he did not then alert any medical personnel about the situation.
[16] Jolly then contacted his Superintendent to arrange for a secondary officer to assist with the arrest of Mr. Juma. BSO Pardo Getmanets was assigned, and she escorted Mr. Juma to the customs secondary area. Pardo Getmanets left a message for duty counsel at 4:13 p.m.
[17] At approximately 4:33 p.m., BSO Frank Rodrigues took over custody of Mr. Juma. He provided Mr. Juma with a secondary caution without the assistance of a Swahili interpreter. After Rodrigues believed that Mr. Juma understood the secondary caution, but before Mr. Juma had an opportunity to speak with duty counsel, Rodrigues advised him repeatedly that given his prior confession to swallowing drugs he should have a bowel movement urgently in order to release the drugs from his body. Rodrigues then escorted Mr. Juma to the loo room for that purpose. When they arrived there, Rodrigues asked Mr. Juma to provide a bowel movement. Mr. Juma declined.
[18] It was not until 5:03 p.m. that a duty counsel, along with a Swahili interpreter, was made available to Mr. Juma. After speaking with counsel, Mr. Juma agreed to use the loo, whereupon he expelled 15 pellets. The RCMP was contacted and the arrest of Mr. Juma was turned over to them. Over the next few days, Mr. Juma expelled 80 pellets of heroin, with a total weight of nearly 1.5 kilograms.
Legal Framework
[19] In this case there is no dispute that the arrest and search of Juma rely on his utterance that he had swallowed drugs. Put another way, if the utterance is excluded, there are no grounds for his arrest or subsequent search.
[20] The parties therefore agree the pivotal issue in this case is whether Mr. Juma was legally detained at the point where Jolly asked him whether he had swallowed drugs. If not, no constitutional concerns are raised. However, if he was detained at that point, then he was deprived of his right to silence and right against self-incrimination (s. 7), as well as his right to be promptly informed of the reason for his detention and to consult counsel (s. 10 (a) and (b)). The burden to establish these Charter breaches lies on Mr. Juma, on the balance of probabilities.
[21] The jurisprudence governing border crossings was helpfully summarized by Hill J. in R. v. Darlington, 2011 ONSC 2776, at para. 75. In particular:
a) Passengers arriving in Canada should expect they and their luggage will be the subject of routine scrutiny by border authorities;
b) Arriving passengers are legally obliged to respond truthfully to questions asked by officers in the course of their duties;
c) A passenger is not detained in the constitutional sense in the course of routine screening;
d) However, constitutional interests of self-incrimination and right to counsel become engaged where the "generality and routineness of the screening exercise give way to more specific and intrusive measures".
[22] The latter point was the focus of R. v. Jones 2006 CanLII 28086 (ON CA), [2006] O.J. No. 3315 (C.A.), where our Court of Appeal held the pivotal issue in determining whether a person has been "detained" is whether the questioning has gone beyond "routine", based on "some sufficiently strong particularized suspicion". The essential question is captured in para. 42:
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. [emphasis added]
[23] In R. v. Peters [2016] O.J. No. 2078, Dawson J. opined that an objective test should be applied in order to determine whether an examination has become a detention. At para. 50:
The question is whether a reasonable person placed in the position of the border services officer would conclude that there was such a strong particularized suspicion connecting the accused to a specific crime that the questioning and customs examination had changed from one of routine to a focused investigation of a specific offence.
[24] Our Court of Appeal very recently upheld the decision in Peters, in particular Dawson J.'s consideration of the objective reasonableness of the border officer's subjective belief: R. v. Peters, 2018 ONCA 493, paras. 8-9.
[25] In all cases the point at which routine questioning becomes a focussed investigation is a fact driven exercise, which must be assessed in context.
Submissions and Analysis
[26] The Crown submits that Jolly's questioning was not a focussed investigation into the importation of narcotics, nor did he have any particularized suspicion that Mr. Juma had ingested narcotics. It maintains that Jolly merely acted on a hunch and got lucky.
[27] Despite the able submissions of Crown counsel, I disagree. Looking at this objectively, by the time Mr. Juma made this incriminating statement several factors would have made him the focus of particularized suspicion.
[28] First, both Guy and Jolly had already made a preliminary determination that Mr. Juma was inadmissible, based on suspicions they had about why he was visiting Canada. That was conveyed to Mr. Juma when he was told by Guy (following their interview) that Guy was "determining" his admissibility to Canada, and that another officer would need to speak with him; in other words, Mr. Juma's entry was already under serious question;
[29] Second, after being told his entry was in jeopardy, Mr. Juma blurted out to Guy (in Jolly's presence) that he (Guy) had "ruined his life"; while Guy (oddly) does not recall this statement, Jolly does. Logically, that utterance could only have signalled to Jolly that Mr. Juma perceived he was in trouble for some transgression, which could have only made Jolly more suspicious;
[30] Third, before posing the pivotal question ("have you swallowed any drugs?") Jolly embarked on focussed research. He acknowledged the research had a particular focus when he testified that although he had already concluded that Mr. Juma was likely inadmissible, he was "looking for…wondering whether there's another inadmissibility" - not just about Mr. Juma's country of origin, or the country (Uganda) through which he transited, but a specific search regarding drugs being imported from Uganda. The research was goal oriented.
[31] Fourth, when Jolly conducted this research he already knew that Mr. Juma's luggage had been inspected and cleared at the customs secondary counter. In other words, if Mr. Juma was concealing drugs, the likely place was inside his body, further narrowing the inquiry.
[32] Fifth, Jolly agreed the question he put to Mr. Juma was anything but routine; in fact, in over ten years in that role and thousands of interviews he had never asked a traveller that question. This was completely unlike the "routine questions" conducted as part of a "routine search" which were at issue in Jones (para. 40). Mr. Juma was not dealt with "in the same manner" as any other passenger who attracted the attention of immigration officials because of his conduct or answers to routine questioning, as in Sahota (para. 47).
[33] These findings do not rely on the fact that Mr. Juma was initially told by Guy and Jolly that he had to answer their questions. As Doherty J.A. observed in Jones (para. 30), that the accused was required by statute to answer routine questions does not amount to impermissible self-incrimination. However, the questioning in this case escalated well beyond the routine.
[34] In sum, for the reasons set out above, I am satisfied the inquiry went beyond routine questioning toward a more intrusive form of inquiry based on a suspicion that was both strong and particularized. Any utterances made by the accused before Jolly's question would be admissible in evidence as the accused was not yet "detained"; however, when Jolly conducted a particularized and unprecedented search online and found ominous information that matched the accused's travel trajectory, the questioning changed from routine inquiries to a focussed investigation of an offence. Mr. Juma was not however cautioned until after Jolly asked him if he had swallowed drugs. Mr. Juma's response to this question (in the affirmative) is therefore inadmissible on both a Charter and voluntariness analysis.
[35] The remaining issue to be determined is whether the drugs ought to be excluded under s. 24(2) of the Charter. The first prong of the analysis established by the Supreme Court in R. v. Grant 2009 SCC 32, [2009] S.C.J. 32 requires an assessment of the seriousness of the Charter infringing state conduct. In this case the state conduct is on the high end because there were further Charter breaches subsequent to Mr. Juma's utterance.
[36] First, although Mr. Juma was arrested at 3:45 p.m. and immediately asked to consult with counsel, no call was made to duty counsel until 4:13. Accepting that to insure privacy the actual phone conversation would have to take place in the customs area (a short distance away), and that an interpreter needed to be installed, there is no reason why the initial phone call could not have been made immediately following the arrest. Delaying the initial phone call by nearly half an hour delayed the ultimate contact with counsel.
[37] Second, when Rodrigues took over custody of Mr. Juma at 4:30 p.m. he breached his 10(b) rights. Although Mr. Juma was then waiting to speak to duty counsel, Rodrigues not only attempted to elicit incriminating evidence but also tried to have Mr. Juma submit to a loo search. The continued questioning of Mr. Juma in advance of the implementation of his right to retain and instruct counsel is a clear breach of his s. 10(b) rights. I am skeptical of Rodrigues' claim that he was motivated solely by concern over Mr. Juma's health should a pellet burst, given that he made no arrangements whatsoever to have medical personnel nearby for that possibility.
[38] The second factor in the Grant analysis is the impact on the Charter protected interest of the accused. I am satisfied that this factor favours exclusion. While individuals seeking to enter Canada have a reduced expectation of privacy, that does not mean that a degrading process such as a loo search can be carried out in violation of constitutionally guaranteed rights: Grant, para. 103; R. v. Granston (2000), 2000 CanLII 5743 (ON CA), 146 C.C.C. (3d) 411 (Ont.C.A.), at para. 44.
[39] The final consideration is society's interest in an adjudication on the merits. This factor points to admission, as without the drugs the Crown has no case. Moreover, importing heroin is a very serious charge. However, both the Supreme Court in Grant and Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, at paras. 62-63, noted that when the first and second factors strongly favour the exclusion of evidence, society's interest in trying a case on its merits will rarely tip the balance in favour of admissibility. This is because of the more important long-term interests of insisting that authorities comply with Charter protected rights.
[40] In balancing all these factors I am satisfied that the long term interest in the due administration of justice requires the exclusion of the evidence.
Conclusion
[41] Mr. Juma's Charter rights under ss. 7, 10 (a) and 10 (b) have been breached, and the resulting evidence should be excluded under s. 24(2).
Baltman J
Released: June 12, 2018
COURT FILE NO.: 755/17
DATE: 20180612
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
R.
- and –
JUMA
RULING
Baltman J.
Released: June 12, 2018