R. v. Cook, 2019 ONSC 515

Court File and Parties

COURT FILE NO.: 18-36

DATE: 20190129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Cook

Narissa Somji, counsel for the Respondent

Gary Chayko, counsel for the Appellant

HEARD: January 8, 2019

REASONS FOR JUDGMENT

CHAMPAGNE, J.

1Mr. Cook appeals from his conviction of hindering an officer contrary to s. 153.1(b) and evading compliance contrary to section 153(c) of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) following a trial held on December 19, 2017.

Background

2The corridor between the ports of entry in Massena, New York and Cornwall, Ontario is a mixed traffic corridor requiring international and domestic travelers to present themselves to Canadian Customs before crossing into Canada in accordance with the Customs Act. Residents of Cornwall Island travelling to Cornwall are required to present themselves at the Canadian port of entry in Cornwall as Cornwall Island is situated between the two ports of entry.

3On February 1, 2017, Mr. Cook, a Canadian citizen and resident of Cornwall Island, attended the port of entry in Cornwall, Ontario driving a Silverado truck. The truck’s license plate was photographed by a license plate reader which generated a lookout on the primary border officer’s computer screen. The lookout required the officer to make a mandatory referral for a secondary inspection. Mr. Cook failed to attend at the secondary inspection area and was convicted of hindering an officer and evading compliance (otherwise known as “running the port”).

4At issue in Mr. Cook’s trial was whether the lookout, which required the primary border services officer to refer Mr. Cook to the secondary inspection, met the requirements of s. 99(1)(f) of the Customs Act which sets out:

(f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.

5The trial judge, Griffith J., concluded that the lookout met the requirement of the section and convicted Mr. Cook of running the border.

6Mr. Cook appeals that decision on the following grounds:

1. That the learned trial judge erred in finding that the BSO who referred Mr. Cook to a secondary inspection did not have to avert his mind to the requirements of s 99(1) (f) [of the Customs Act].….that the basis of the order being an internal requirement without any requirement for suspicion if accepted and applied as was done by the trial judge renders s. 99(1)(f) a meaningless protection for domestic travelers.

2. The learned trial judge did not understand that there was a significant difference between domestic and international travel at a border. A mixed corridor does not and cannot change the powers conferred on customs agents. To do so would require a significant change to the law”

Facts

7The uncontested facts in the trial were as follows:

a. On February 1, 2017, Mr. Cook, a Canadian citizen and resident of Cornwall Island, attended the port of entry in Cornwall, Ontario driving a Silverado truck. He gave the border services officer at the primary inspection booth his driver’s license which identified him as Canadian citizen and a resident of Cornwall Island. He told the officer he was coming from Cornwall Island and was not travelling from Unites States.

b. As with all vehicles crossing the border at the port of entry, the license plate of the Silverado was photographed by a plate reader that conducts an automated search at the primary inspection area. The search resulted in a “lookout” notification appearing on the primary border services officer’s computer screen which contained the following words: “Lookout - smuggling”. This lookout prompted the officer to make a mandatory referral of Mr. Cook to a secondary inspection area. The primary border services officer’s evidence was that he advised Mr. Cook that the referral was being made under s. 99(1)(f) of the Customs Act.

c. The primary border services officer’s evidence was that the lookout alerted him to the fact that the vehicle had been selected for a secondary inspection. He testified that when a person or vehicle was the subject of a lookout, policy mandated that he/she be sent to the secondary inspection area. He testified that the lookout was created by the intelligence division of the Canadian Border Services Agency and that, as a primary officer, he did not have access to the same level of detail regarding the lookout as the officer at the secondary inspection area, who would have had details and background information on the lookout. The officer also testified that at the primary inspection point he would have no information as to who the owner of the vehicle was.

d. The primary border services officer testified that the automated reader would generate one of three alerts: (1) a lookout for a vehicle, (2) a lookout for a person, and (3) a random selection for referral. He indicated that the random selection for referral did not apply to domestic travelers.

e. Upon cross examination the officer admitted that he did not make any independent assessment as to whether he had reasonable grounds to suspect that the Customs Act might have been contravened; he simply referred Mr. Cook to the secondary inspection because the lookout alerted him that the vehicle had been selected for referral and policy required him to do so.

f. Mr. Cook failed to attend at the secondary inspection area and was convicted of hindering an officer and evading compliance or what is more commonly known as running the port”.

8In convicting Mr. Cook, the trial judge said the following:

I heard evidence from the officer that the look-out is not generated by front line Canadian Border Services officers, but rather, generally comes from the intelligence branch of the Canadian Border Services as a result of their investigations and information received by them. The officer in this case had no information as to why there was a look-out for smuggling on the vehicle.

I find however that there is a very low threshold for making such a referral. If a referral can be made at random, that referral does not require a “high threshold”.

9The trial judge went on to note that pursuant to R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, a person arriving at a border can reasonably expect that luggage will be routinely and randomly searched and that there will be detention for a small period of time to conduct an oral examination.

10The trial judge then addressed the question of whether the lookout was sufficient information for the primary inspection officer to direct Mr. Cook to a secondary inspection and concluded as follows:

I find there is no need for the primary inspector to go behind the look-out notification that they receive by way of computer. The purpose of a primary inspection at a border crossing where tens of thousands of people cross in a year is the primary inspection to be speedy. And that’s particularly true where the primary inspection is being carried out on a domestic resident, in this case a resident of Cornwall Island. If there is a lengthy inquiry and investigation carried out at the primary inspection, the line up at the border would dramatically increase and so would the time to cross the border.

The Appellant’s Position

11Mr. Cook argues that he had a right of entry as a Canadian citizen travelling within Canada and should not have been treated in the same way as international travelers. He argues that the policy requiring a referral from primary inspection to secondary inspection when a license plate gives rise to a “lookout” usurps a border officer’s duty to form reasonable and probable grounds to suspect under s. 99(1)(f) of the Customs Act. He contends that in this case, the officer’s referral to secondary inspection without reasonable and probable grounds to suspect did not meet the standard required by s. 99(1)(f) of the Customs Act. He argues that the trial judge erred in concluding that a referral from primary to secondary could be random.

12Relying on R. v. Sahota, 196 C.R.R. (2d) 216, at para. 47, Mr. Cook argues that a lookout without any specific information to assess its reliability would not amount to a sufficiently particularized suspicion sufficient to constitute detention as required under the Customs Act.

The Respondent’s Position

13The respondent Crown agrees that a random search is not authorized under s. 99(1)(f) of the Customs Act; however, instead argues that the act of referral is not intrusive and meets the test set out in s. 99(1)(f). The respondent argues that the system of referral from the primary inspection point to the secondary inspection point is to deal with travelers efficiently and to move them through t

14e border in a timely fashion. Those who are deemed in need of a more fulsome inspection are referred to a secondary inspection point which involves a lengthier process.

Analysis

Standard of Review

15The matter before me is a proceeding under s. 785 of the Criminal Code, R.S.C., 1985, c. C-46 and Mr. Cook’s appeal from his conviction is pursuant to s. 813(a) of the Code.

16The powers of the court on such an appeal are set out in s. 686 of the Code.

17The standard of review on such an appeal is set out R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663, in the following terms:

In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [Citations omitted.]

17On an appeal, considerable deference should be afforded to a trial judge. In R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at p. 400, Arbour J. stated:

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. [Emphasis added]

Customs Act

18A mixed-traffic corridor is one designated by the Minister for both international and domestic travellers. The corridor between Cornwall, Ontario and New York State is a mixed-traffic corridor. Under s. 11.7 of the Customs Act, every person travelling in a mixed-traffic corridor is required to attend the nearest customs office and station whether he/she/they are arriving from outside of or within Canada. The reason for this is presumably due to the ease in which a domestic traveller who resides or is travelling from a Canadian destination that is proximate to the American border could travel between the countries without detection. A certain level of scrutiny and loss of privacy is therefore to be expected. International and domestic travellers in airports, train stations, and at ports of entry have a reduced expectation of privacy which has been sanctioned by the courts.

19There are good reasons for privacy rights to be diminished in these circumstances. As a society and nation, we want to ensure the safety of travelers and that travelers are not crossing our borders with narcotics, weapons and other contraband, or contravening Canadian laws, financial or otherwise.

20No case law was presented by either party on the application of s. 99(1)(f) of the Customs Act to domestic travelers. Section 99(1)(f) of the Customs Act does not distinguish between international and domestic travellers and is presumed to apply to both equally. The section allows an officer to board, search and direct a conveyance (in this case a vehicle) to another customs location if the officer has reasonable grounds to suspect that an act of Parliament has been or might be breached. The threshold for a search of a conveyance is low and is set out by the Supreme Court of Canada in R. v. Jacques 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312, at paras. 14 – 15:

[A] reasonable suspicion of the possibility of smuggling or even of the possibility of an attempt to do so suffices.

That this threshold is not stringent, and indeed is lower than that prescribed by other statutes authorizing stops or searches in different circumstances, is eminently understandable. Canada shares a long and undefended border with the United States with many points of entry, a significant number of which are or may be unstaffed at any given time. The border facilitates not only legitimate commerce between the two nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.

21Jacques and all of the case law provided to me deals with international travelers and alleged breaches of the Charter, but in my view, the principles are applicable to domestic travelers insofar as they deal with ports entry.

22Domestic travelers from Cornwall Island are uniquely situated between the ports of entry in the United States and Canada. They can travel to the Unites States, and while they are supposed to present themselves at the Canadian border upon re-entry into Canada, they can in fact travel directly to Cornwall Island. It is for this reason that they must present themselves to Canadian Customs when travelling to the City of Cornwall making them subject to certain provisions of the Customs Act as a result.

23The appellant argues that the primary border services officer’s reliance solely on the lookout without formulating subjective grounds to refer Mr. Cook to the secondary inspection fell short of the threshold set out in Jacques. He argues that the threshold is expanded upon in Sahota and requires that a lookout be accompanied by specific information to assess its credibility, without which it “would not amount to a “sufficiently strong particularized suspicion” sufficient to constitute detention”.

24The appellant contends that the trial judge’s reasons essentially eliminate the threshold for searches of domestic travellers and permits random searches.

25It is conceded by the Crown that border services may not search a domestic traveller randomly. The trial judge’s comments in this respect appeared to say that if the referral could be done randomly, the threshold is low. I cannot be certain from his decision that this informed his conclusion; if it did, I do not agree. In my estimation, there must be some reason for a referral from the primary inspection point to the secondary inspection area but for reasons that follow, I do not believe that the reason is required to meet the test set out in section 99(1)(f). In this case, the reason for the referral was a lookout automatically generated from a vehicle plate reader. It is important to note that the lookout and referral of Mr. Cook from the primary inspection point to the secondary inspection point was not in relation to Mr. Cook; it was with respect to the vehicle he was driving. He was therefore not the target of the lookout; the truck was. The primary border services officer only does a cursory inspection and would have no way of knowing who owned the truck and whether the truck had crossed the border from the United States with a different driver.

26I agree with the trial judge that the reason for the primary and secondary inspection points is to facilitate the quick flow of traffic both internationally and domestically. I also agree that the border services officer at the primary inspection point need not look behind a “lookout” - not because the lookout on its own meets the test under s.99(1)(f) – but because in my view, the test does not apply to the primary inspection point. In so concluding, I rely on R. v. Allwood, [2005] O.J. No. 6156, at para. 31, in which the court accepts that “reasonable and probable grounds” under s. 98 of the Customs Act refers to a search of a person and not to the referral to the secondary inspection point [Emphasis added.]. The language of s. 98 is similar to the language of s. 99: s. 98 refers to the search of a person while s. 99 refers to the boarding and search of a conveyance, which includes a vehicle. This point is also made by Oulton J. of the Provincial Court of British Columbia in R. v. Buss, 2014 BCPC 16, 301 C.R.R. (2nd) 309, at paras. 11 – 12, in which he states that no grounds are required under s. 98 and 99 to justify a border officer’s discretionary decision to refer to a secondary inspection. This may be so for an international traveler, but in my view, some grounds short of the threshold in s. 98 and s. 99 would be required for the referral of a domestic traveller in a mixed-traffic corridor. A lookout would suffice.

27In Allwood, similarly to Mr. Cook, the border services officer made the referral thinking that he needed subjective grounds under s. 98 to do so, and based the referral on the lookout without knowing its particulars. The court rejected the defence’s argument that the referral to the secondary inspection was negated by the border services officer’s belief that he required subjective grounds for the referral, yet relied solely on the lookout without knowing its source or credibility. At para. 31 Sproat J. states:

I fail to see how the fact that Inspector Singh set himself a mistakenly higher standard to decide to refer Mr. Allwood to secondary, namely that he thought he had reasonable grounds to do so, negates his good faith belief that he had reasonable grounds.

28Like Mr. Singh, in Allwood, the primary border services officer who dealt with Mr. Cook held himself to a higher standard. His failure to meet that standard is immaterial in my view as the standard did not apply.

29I accept respondent’s submission that requiring a thorough examination at the primary inspection booth would be unreasonable, impractical, and would cause significant traffic delays. The respondent relies on Dehghani v. Canada, 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, at p. 1073, in support its contention in which Iacobucci J. states:

As Mahoney J.A. noted for the majority of the Federal Court of Appeal, it would be unreasonable to expect the screening process for all persons seeking entry into Canada to take place in the primary examination line. For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will require more time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of the examination simply because it is necessary for reasons of time and space to continue it at a later time in a different section of the processing area. The examination remains a routine part of the general screening process for persons seeking entry to Canada. [Emphasis added.]

30While Dehghani referred to the processing of a refugee claimant crossing into Canada, I find that the principle is applicable to domestic travelers from Cornwall Island to the City of Cornwall as well. The processing of such traffic must be efficient and expedient while maintaining the security of the border. It would make no sense to require a lengthy and detailed examination at the primary inspection booth.

31The primary and secondary inspections are two parts of the same transaction. The referral to the secondary inspection is just that; a referral. It is not a search. In the case of a domestic traveler, the referral must be based on some information but it need not rise to the threshold set out in s. 99(1)(f) as it does not apply. The referral is made for the purpose of of allowing the secondary inspection officer to engage in a more fulsome discussion with the driver and to assess the more detailed information available to him/her/them arising in this case from the lookout. It may or may not result in any type of search. It allows for the protection of our border as well as for the quick movement of traffic through it. In my view it is only at the moment that an officer decides to board and search a conveyance that the test under s. 99(1)(f) applies and not before.

32The referral of Mr. Cook the secondary inspection point was therefore appropriate. He failed to attend as directed and was properly convicted.

33In the result, the appeal is dismissed and the conviction is upheld.

The Honourable Justice Nathalie Champagne