COURT FILE NO.: Crim J(F) 356/16

DATE: 2019 08 08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LATOYA CEBALLO

Meaghan Hourigan, for the Crown

Andrew Vaughan, for the Applicant / Accused

HEARD: June 25-26, 2019

REASONS FOR JUDGMENT

J.W. WoollcomBE J.

A. Introduction

1Latoya Ceballo is charged with one count of importing cocaine into Canada. She entered Canada through Pearson International Airport on February 2, 2014. She had approximately 3.2 kilograms of cocaine strapped to her body with a body pack girdle. The cocaine was seized by a Border Services Officer in the secondary inspection area of the airport after Ms. Ceballo acknowledged having cocaine on her body.

2Ms. Ceballo brought a pre-trial motion seeking to exclude the cocaine under s. 24(2) of the Charter on the basis of violations of ss. 7, 10(a) and 10(b) of the Charter.

3The case proceeded before me as a blended voir dire / trial. Counsel submitted an Agreed Statement of Fact. In addition, it was agreed that the Crown would call as its witnesses the two Border Services Officers who dealt with Ms. Ceballo in the secondary inspection area of the airport. Ms. Ceballo did not testify and the defence called no other evidence.

4In summary, it is the applicant’s position that in his discussion with her in the secondary inspection area, Border Services Officer (“BSO”) Gilbey’s questions went beyond “a routine screening exercise” and became a focused investigation in which he detained her and was required to provide her with her rights to counsel. He did not do so, resulting in infringements of ss. 10(a) and (b) (b) of the Charter. The applicant says that there was a further breach of s. 10(b) because the Border Services Officers did not hold off their investigation until she had been permitted her right to contact duty counsel.

5Counsel agree that if the cocaine is excluded under s. 24(2), the Crown has no case and the charge should be dismissed. If the cocaine is not excluded, Ms. Ceballo does not contest that she knowingly and voluntarily imported the cocaine and agrees that on that basis, a conviction should be entered.

B. Issues to be decided

6There are two issues to be determined:

a. Was the applicant detained, for constitutional purposes, prior to telling BSO Gilbey that she had drugs on her body?

b. Was there a violation of the applicant’s s. 10(b) rights because of the delay in permitting her to speak with duty counsel?

7I shall address each of these questions.

a) Was the applicant detained prior to telling BSO Gilbey that she had drugs on her body?

The Legal Principles

8The law is clear that routine questioning of travellers entering Canada, accompanied in some cases by a search of their luggage and perhaps a pat down or frisk of their outer clothing, raises no constitutional concerns and does not result in a detention, give rise to any right to counsel or interfere with the traveller’s reasonable expectation of privacy: R. v. Jones, 2006 CanLII 28086 (ON CA), [2006] 214 O.A.C. 225 at paras. 32-37 and 41-42. Furthermore, whether or not an individual is the subject of a lookout for drugs, without specific information to assess its reliability, does not amount to a detention triggering s. 10(b) rights: R. v. Sahota, [2009] O.J. No. 3519 at para. 47.

9In deciding whether a traveller at the border is detained, the question to ask is whether 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”: R. v. Peters, 2019 ONCA at para. 8; R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No, 4168 at para. 75; R. v. Wellington, [2016] O.J. No. 540.

10Determining whether a traveller has become, because of the information possessed by the border services officer, the target of a criminal investigation and a person who is detained for constitutional purposes, is fact-specific and includes consideration of all of the evidence including the objective reasonableness of the border services officer’s subjective belief.

The Relevant Facts

11The issue to be determined in this case is primarily a factual one, and not a legal one.

12I turn, therefore, to the facts as I find them to be. These are drawn from the evidence of BSO Gilbey and the Agreed Statement of Fact.

13BSO Gilbey worked in Immigration and Customs Enforcement at Pearson International Airport. At the time of the applicant’s arrest, he had been working at the airport for less than a year. His roles included roving passengers after the primary inspection area, determining whether to flag them for secondary inspection and conducting examinations and interviews of those sent to the secondary inspection area.

14On February 2, 2014, BSO Gilbey was assigned to rove in the baggage hall of Terminal 3. There, he spoke with the applicant, who was travelling alone and returning to Canada from St. Martaan. He could not recall precisely what he asked her, but said that usually he asked travellers where they were coming from, why they had travelled and the number of bags they had. He testified that he would have looked at her passport and Declaration Card and testified that he signed the back of her passport.

15BSO Gilbey testified that he saw that the applicant’s Declaration Card had been marked by the machine in the primary inspection area with a code “47”, meaning that she was coded as being subject to a target. He testified that this did not cause him to suspect that she had contraband as many travellers are coded this way and are later found not to have narcotics.

16BSO Gilbey did not note the time that he roved the applicant and spoke with her. He described this initial conversation as very short.

17Before meeting the applicant in the secondary inspection area, BSO Gilbey thought that he had reviewed on his computer a document generated by the National Targeting Centre, called a “Lookout Report”, relating to the applicant. It set out her name, date of birth, passport number, and a narrative as to why she was a target.

18At 10:24 p.m., BSO Gilbey spoke with the applicant in the secondary inspection area. He was behind a counter and she came to his counter and stood on the other side of it. She had one bag and a purse. He asked her if the bag she had was hers, if she had packed it herself and if she was aware of the contents. He marked “YYY” on the back of her Declaration Card and the time of 10:24 to indicate that she responded “yes” to each of these three standard questions at that time. He described her demeanour as calm and relaxed at that point, and throughout his examination of her.

19BSO Gilbey then asked the applicant a number of questions. He testified that he usually begins by asking where a person was coming from, the purpose of their travel, whether they were with anyone, what they did for work, and if they bought their ticket. He testified that he also asks about narcotics in order to see their reaction.

20In this case, BSO Gilbey testified that the applicant told him that she had had a miscarriage the previous December and that her boyfriend had sent her away. She said that she had stayed at the “Sonato Mahu” resort in St. Martaan. He asked about her employment as well as that of her boyfriend, who she said had bought the ticket. She told him that she sold skin care products for “Open Eye” and that her boyfriend worked in a barber shop on Greenwood. He also asked her how she was getting home and she told him that her boyfriend was supposed to get her, but that she was now taking a cab.

21BSO Gilbey testified that the story about the miscarriage seemed odd to him, but he also said that he often hears strange answers from passengers. After this conversation, he said that he began his examination of the applicant’s belongings. He began with her purse. Nothing about its contents stood out to him. After searching it, at 10:33 p.m., he conducted an ion scan. He received a positive result for cocaine, meaning that either the purse or something touching it had been in contact with cocaine. He described the ion scan as a quick and non-invasive test that was part of any routine inspection. He also said that he has scanned packages of narcotics and had them not detected on an ion scan, and has had an indication for narcotics from an ion scan when none were present.

22As a result if the positive ion scan, BSO Gilbey said that he asked the applicant why her purse testified positive for cocaine. He did this to see her reaction. She told him that she borrowed the purse and that it was given to her by a friend. He said that the result of the ion scan itself did not mean much to him, but that it gave him as basis for further questions.

23BSO Gilbey said that at about 10:34 p.m., the applicant told him that she does not use drugs. He thought this had been in response to his questions about the ion scan. At the same time, the applicant told BSO Gilbey that she had her miscarriage before Christmas and that he did not know her boyfriend’s salary. She said that she worked for minimum wage. She also told him that she had two cell phones, one of which she had purchased in St. Martaan, for $50, for local calls. He did not find it suspicious that she had two cell phones as he said lots of people travel with two phones.

24At 10:42 p.m., BSO Gilbey asked the applicant if she had drugs with her and she said “no”. He described her reaction as calm and collected. He explained that he had asked this question to see where he needed to go with the examination. He testified that he did not suspect that she had drugs, but that he was trained to ask pointed questions.

25Over the next five minutes, BSO Gilbey conducted an inspection of the applicant’s bag. He was cross-examined about the fact that he has no notes as to what, if anything, they talked about during the period from 10:42 to 10:47 p.m. He could not recall if he had asked the applicant anything in this period and testified that he believed he was doing the baggage search. He agreed, under cross-examination, that he might have explained to the applicant the Customs Act search process. He did not know if he told her that she could be subjected to a pat down search. He was sure that had he done so, he would have told her it would be conducted by a female officer. He also could have explained to her the possibility of a “loo search” but had no recollection.

26It was BSO Gilbey’s evidence that up to 10:47 p.m., he did believe that he had grounds to detain the applicant, although he had not yet finished his investigation.

27BSO Gilbey said that at 10:47 p.m., he had asked the applicant if she had drugs strapped to her body. He explained that her story was not making sense to him, that he wanted to see what was going on and that this was a method he understood was being used to import drugs from St. Martaan. He said that she responded “yes”.

28BSO Gilbey testified that he had less than a year’s experience on the job and that he had only identified people with drugs once or twice at that time. He agreed that his notes could and should have been more fulsome. He had no explanation for why the applicant went from denying that she had drugs at 10:42 p.m. to admitting that she had them at 10:47 p.m. When it was suggested to him that he had “interrogated” the applicant, he said he does not recall what, if anything further he asked in the period between 10:42 and 10:47 p.m.

29BSO Gilbey testified in chief that he was surprised by the applicant’s admission to having drugs as he had never before had anyone admit to having narcotics on them. Following the applicant’s admission of having a body pack on her, she was immediately arrested for smuggling under the Customs Act. Under cross-examination, he testified that he was “shocked” by the applicant’s acknowledgment to having drugs. When it was suggested to him that in his notes, he had indicated that he was “mildly surprised”, he agreed with this.

Positions of the Parties

30The applicant’s position is that BSO Gilbey’s notes about his interaction with her are very sparse. It is her position that the questioning that was done went beyond that which was routine and included the officer telling her about the possibility of her being detained and strip searched. Further, the applicant says that BSO Gilbey is not a credible witness given his shifting evidence about the degree to which he was surprised by the applicant’s admission to him. In short, the applicant says that it is impossible to determine what happened in the conversation between BSO Gilbey and the applicant, but that at some point in the period between 10:42 and 10:47 p.m., the officer’s investigation had changed significantly, that he subjected the applicant to aggressive questioning and that she was the target of a focused criminal investigation in which the officer suggested that she would be detained and strip searched. As a result, the applicant says that, prior to her admission to having drugs, she was detained. Accordingly, the defence says that she should have been afforded her rights under s. 10(a) and 10(b) of the Charter.

31The Crown acknowledges that BSO Gilbey’s notes were poor. But, counsel takes the position that prior to the applicant saying that she had drugs, BSO Gilbey did not subjectively believe that he had grounds to detain her and that this was objectively reasonable. The positive ion scan did not give him grounds and was not that significant. While the applicant’s story was concerning, BSO Gilbey was engaged in a routine examination with routine questions. The Crown says that the character of the investigation never changed and that there is no evidence to suggest that this was an “interrogation” or that the officer told the applicant that she was going to be detained or searched. In short, the Crown says that BSO Gilbey lacked particularized suspicion.

Analysis

32In my view, BSO Gilbey’s notes as to what occurred in the secondary inspection area are deficient. He acknowledged as much. I accept that there is no requirement for border services officers to record verbatim everything that is said by them, or by a person they are investigating, in the secondary inspection area. However, in this case, one would have expected there to be a more accurate recording of what happened in the period between 10:42 p.m. when the applicant denied having drugs with her and 10:47 p.m. when she admitted having a body pack.

33That said, I do not accept the defence position that BSO Gilbey’s evidence, generally, is not credible. To the contrary, I found him to be quite believable. He acknowledged that this was early in his career as a BSO at the airport, that his note taking was poor and that he had learned since this about the importance of taking better notes. He readily agreed that he has a poor independent recollection about his conversation with the applicant. He repeatedly qualified his evidence when he was unsure, appearing careful to ensure that he only testified about specifics that he recalled, and to indicate when he was able to say only what his usual practice was and that he did not recall specifics. I do not find that he was trying to mis-lead the court in any manner. I found that he was trying to re-count what he could recall.

34While I acknowledge that BSO Gilbey was inconsistent in his evidence with respect to whether he was shocked or mildly surprised by the applicant telling him that she had a body pack, I do not accept that this inconsistency is as significant as the applicant urges me to find it. I decline to conclude, on the basis of this evidence, that his evidence is not credible.

35I also accept that there is a gap in the evidence about what happened between the applicant and BSO Gilbey. But I do not accept the defence position that this investigation became an “interrogation” or that the applicant became the target of a focused criminal investigation such that she was detained and the authorities were required to comply with s. 10(b) of the Charter. I say that for the following reasons.

36First, it is the applicant who must establish that she was detained. While she is under no obligation to testify, the absence of evidence from her means that I am left with the evidence of BSO Gilbey alone. Though many suggestions were put to him as to what he may have said to the applicant, he denied telling her that she was going to be strip searched and was sure that had he mentioned a Customs Act search procedure, he would have told her that it would be conducted by a female officer. The evidentiary record before me does not support any allegation that BSO Gilbey threatened or interrogated the applicant or that he engaged in any questions beyond those that were routine.

37Second, the fact that there was a tip or lookout for the applicant is not particularly significant. BSO Gilbey testified that he did not recall reading the lookout, although he believed that he had. He did not view it as significant. Certainly, a person is not detained simply because they are flagged for secondary inspection because of a lookout: R. v. Sahota at para. 47; R. v. Sinclair 2016 ONSC 877 at para. 42; aff’d 2017 ONCA 287; leave to appeal denied, [2017] S.C.C.A.289.

38Third, the ion scan, which was positive for cocaine, is not particularly significant. The scan only meant that the purse in the applicant’s possession was in contact with cocaine at some point. It did not mean that the applicant had cocaine on her body or in her luggage. I accept the evidence of BSO Gilbey that it provided a basis for further questions and investigation, but was relatively minor in terms of building grounds for detention: R. v. Brown 2014 ONSC 7096 at paras. 49-50; R. v. Darlington at para. 75-76; R. v. Sinclair, at para. 41

39Fourth, it seems to me that BSO Gilbey has provided in his evidence a reasonable and believable explanation for what happened in the five minutes when he has no notes or recollection about what conversation took place. He testified that he was looking through the applicant’s bag and that he did not recall any conversation. I find, on the basis of his evidence, that while he was checking the bag he may have asked questions in furtherance of his investigation, but that his questions remained of a general nature.

40Finally, I accept BSO Gilbey’s evidence that that he did not believe, subjectively, that he had grounds to detain the applicant, for a Customs Act search. Had he believed that he did, it would have made sense for him to approach a supervisor to seek authorization for a detention. His failure to do so supports his evidence that he did not think his grounds were sufficient and believed that he had to continue his investigation. It is my view that, based on the evidence before me, BSO Gilbey lacked grounds, objectively, to detain the applicant prior to her admission to having narcotics.

41I conclude, therefore, that there is no evidence that BSO Gilbey conducted anything other than a normal and routine screening procedure with the applicant. This included asking her reasonable, if pointed, questions about narcotics with the intention of assessing her reaction. The applicant was not detained and not entitled to be given her right to counsel prior to her admission to having body-packed narcotics.

b) Was there a violation of the applicant’s s. 10(b) rights because of the delay in permitting her to speak with duty counsel?

The Legal Principles

42Upon arrest or detention, a person must be informed of their right to retain and instruct counsel without delay and must be provided access to counsel when counsel is requested: R. v. Suberu, 2009 SCC 33 at paras. 37-42. Until the requested access to counsel is provided, there is an obligation to refrain from taking further investigative steps: R. v. Taylor, 2014 SCC 50 at para. 26.

43In R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, Lamer C.J., for the majority, wrote about the relationship between the right to search incident to arrest and the right to retain and instruct counsel. He held, at pp. 1146-1147:

The right to search incident to arrest derives from the fact of arrest or detention of the person. The right to retain and instruct counsel derives from the arrest of detention, not from the fact of being searched. Therefore, immediately upon detention the detainee does have the right to be informed of the right to retain and instruct counsel. However, the police are not obligated to suspend the search incident to arrest until the detainee has the opportunity to retain counsel. There are, in my view, exceptions to this general rule. One is where the lawfulness of the search is dependent on the detainee's consent. That situation is governed by this court's decision in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at 12, (sub nom. R. v. Leclair) 67 C.R. (3d) 209, 46 C.C.C. (3d) 129, 37 C.R.R. 369, 31 O.A.C. 321, 91 N.R. 81 [Ont.]:

In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse affect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.

Another is when a statute gives a person a right to seek review of the decision to search, as was the case in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, 67 O.R. (2d) 63, 66 C.R. (3d) 297, 45 C.C.C. (3d) 296, 55 D.L.R. (4th) 673, 18 C.E.R. 227, 2 T.C.T. 4102, 38 C.R.R. 193, 30 O.A.C. 241, 75 N.R. 321. In this case, when the person invokes the right, and pending its exercise the authority to proceed to search is suspended, obviously the person must be given the same rights as when arrested, and the officers wanting to search cannot assume that they may proceed absent the suspect's invoking his right to review, until he or she has been given reasonable opportunity to consult counsel.

44More recently, in R. v. Jackman, 2012 ONSC 3557, Dawson J. considered whether, after arresting an accused for smuggling under the Customs Act, the police were required to hold off executing a personal search of her prior to her speaking with counsel. Dawson J. held that there was no obligation on the police to “hold off” the personal search until after the accused had spoken with counsel. He stated, at paras. 68-70:

68 Turning to the third s. 10(b) argument, Ms. Jackman submits that her s. 10(b) rights were violated because the authorities failed to hold off in executing their personal search of Ms. Jackman. I am unable to accept this submission.

69 The officers were entitled to search Ms. Jackman incidental to her lawful arrest. That was not something about which Ms. Jackman had a choice. It was not something that the exercise of her right to counsel could have an impact upon. Consequently, I conclude that the officers were not required to hold off performing such a search.

70 I observe that the execution of the search did not interfere with the exercise of the right to counsel, in which case there would be additional considerations. Here the search was conducted after duty counsel was called and before duty counsel called back.

The Relevant Facts

45In order to determine whether there as a s. 10(b) violation, the facts need to be understood. They are really undisputed.

46BSO Gilbey testified that immediately after the applicant acknowledged having narcotics strapped to her body, he arrested her for smuggling under the Customs Act. This took place at 10:47 p.m. He cautioned her and informed of her rights to counsel. She indicated that she wished to call counsel. This process was completed at 10:50 p.m.

47BSO Gilbey contacted BSO Walker because he knew that a female officer was needed to search a female arrestee. He turned the applicant over to BSO Walker and said something to her about contacting duty counsel. At 10:56 p.m., he used the paging system that was in place at the time to contact duty counsel. He left a message for duty counsel to call back at 10:58 p.m.

48BSO Walker testified that because she was a female officer, she was asked to assist with the search of the applicant. She knew that the applicant wished to speak with counsel. At 11:12 p.m., after her assist officer had cleared the search room, the two of them escorted the applicant to the back hall in the secondary area where the search rooms were. At 11:12 p.m., they conducted a pat down search for officer safety. BSO Walker said that when she put her hands on the applicant’s torso, it felt rigid and like she had something concealed under her clothing.

49BSO Walked explained that the applicant’s handcuffs were removed at 11:14 in the search room. The applicant’s shirt was removed but her bra and pants remained on. Under her shirt she had a girdle-like body piece. It was removed. Between 11:14 and 11:25 p.m., the officers took photographs of the body piece and of its removal.

50While the officers were performing this task, at 11:22 p.m., duty counsel called back. BSO Walker was not sure whether they had started the photographs at that point, but said that they were partway through the removal of the evidence and did not think it was safe for the applicant to speak with duty counsel when part of the items were removed. As a result, duty counsel was asked to either hold or to call back. Duty counsel did not hold and the officers continued their task. They then removed the girdle from the applicant’s body. There were pockets in the girdle with three vacuum sealed packages. The applicant reached into her pants and removed two circular buttocks packs.

51Duty counsel called back at 11:39 p.m. and the applicant was permitted to speak privately to counsel. The call lasted about five minutes, after which the applicant indicated that she was satisfied.

52Prior to the applicant’s conversation with counsel, BSO Walker did not ask her anything about her trip, narcotics or the circumstances of the alleged offence. Her assist officer was never alone with the applicant.

53Under cross-examination, BSO Walker was asked why the pat down search was done before the applicant had spoken with duty counsel. She explained that a pat down is done for officer safety before entry into the search room. When that search led to discovery of something, the officers decided to remove the evidence because, first, they did not know when duty counsel would call back; second, they felt that the applicant would be more comfortable with it removed; and third it enabled them to secure the evidence.

Positions of the Parties

54The applicant says that in the 49 minutes between the time she was informed of her right to counsel and the time she was able to speak with duty counsel, she was strip searched and photographs were taken of her. Her position is that after she had indicated that she wished to speak with duty counsel, the Border Services Officers were required to hold off searching and photographing her until she had the opportunity to speak with counsel.

55The Crown submits that while the officers had a duty to hold off questioning the applicant until she had spoken with counsel, there was no obligation to hold-off removing the evidence from her body through a search incident to arrest.

Analysis

56The applicant has provided no authority to support her position that while awaiting call back from duty counsel, the officers were required to hold off conducting the search incident to arrest and photographing that process.

57In my view, Debot makes clear that the police are not required to hold off a legitimate search incident to arrest until the person arrested has had an opportunity to speak with counsel. In very similar circumstances to those in this case in Jackman, Dawson J. took the same view.

58In this case, the officers were diligent in initially trying to contact duty counsel. BSO Gilbey began this at 10:56 p.m., only six minutes after the arrest. There was a need for duty counsel to call back.

59The female officers had been asked to conduct a personal search of the applicant, incident to arrest, following her arrest. Prior to having the applicant enter the search room, they needed to conduct a pat down safety search. When they discovered that something was being concealed under the applicant’s clothes, they decided to remove it as part of their search incident to arrest. In my view, this was a valid search incident to arrest. It appears to be agreed that the search itself was conducted reasonably.

60While I have considered the applicant’s argument that the officers should have held off taking the photographs until after she had been able to speak with duty counsel, I do not agree. Photographing the partial disrobement, in a respectful manner that protected the applicant’s dignity but documented the manner in which the narcotics were transported was, in my view, an integral component of the search that was being conducted incident to the arrest. It created a record of what the officers saw as they conducted the search. No authority was provided to support an argument that because photographs were being taken, the officers had to hold off their search. I do not accept the argument that they did.

61In conclusion, I see no Charter breach arising as a result of the officers searching the applicant prior to her speaking with duty counsel, even in circumstances in which photographs of the process were taken.

C. Conclusion

62The applicant’s Charter motion is dismissed and the narcotics are admitted. As a result, the applicant is found guilty of importing cocaine.

Woollcombe J.