COURT FILE NO.: 19-52
DATE: 20191213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KANAWAKERON JODY SWAMP
Jeannine Plamondon, counsel for the Appellant
Cameron Fiske and Keith Gordon, counsel for the Respondent
HEARD: September 18, 2019
Amended reasons for judgment
champagne, j.
[1] The Crown appeals an order of Wright J. of the Ontario Court of Justice dated April 15, 2019, dismissing the information charging the respondent under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) with failing to report imported goods (s. 12(1)), attempting to evade payment of duties for goods (s. 153(c)), possession of imported goods (s. 155) and with possession of explosives contrary to s. 21(1) of the Explosives Act, R.S.C. 1985, c. E-17.
Background
[2] The corridor between the ports of entry in Massena, New York and Cornwall, Ontario is a mixed-traffic corridor. International and domestic travelers must present themselves to Canadian customs before crossing into Canada in accordance with the Customs Act. Residents of Cornwall Island (a Canadian island situated between Massena and Cornwall) are required to present themselves at the Canadian port of entry in Cornwall to get into the city. There are two inspection points upon a traveler’s arrival at the port of entry: primary inspection and secondary inspection.
[3] On July 6, 2017 the respondent (Mr. Swamp), a Canadian citizen and resident of Cornwall Island, attended at the primary inspection point at the port of entry in Cornwall, Ontario in his truck. Border Services Officer (BSO) Bay ascertained that Mr. Swamp was coming from Cornwall Island but nonetheless asked him questions and advised him to turn off his ignition and exit his vehicle. The vehicle was directed to secondary inspection pursuant to s. 99(1)(f) of the Customs Act, where a search revealed firecrackers marked as coming from the United States. He was charged under both the Customs Act and the Explosives Act and was found not guilty at trial.
[4] The trial judge found that BSO Bay detained Mr. Swamp arbitrarily contrary to s. 9 of the Charter and also found that the search of his truck contravened s. 8 of the Charter. Further, he found that Mr. Swamp had not been given his rights to counsel, in contravention of s. 10 of the Charter. As a result, the evidence located in Mr. Swamp’s vehicle was excluded under s. 24(2) of the Charter and Mr Swamp was acquitted.
[5] The Crown appeals that decision on the following grounds:
The trial judge erred in finding that s. 99(1)(f) did not apply to domestic travelers in a mixed-traffic corridor;
The trial judge erred in law in finding that Mr. Swamp was arbitrarily detained under s. 9 of the Charter;
The trial judge erred in law in finding violations of Mr. Swamp’s s. 10(a) and s. 10(b) Charter rights;
The trial judge erred in finding that the search of Mr. Swamp’s vehicle was a warrantless search in violation of s. 8 of the Charter; and
The trial judge erred in law in finding that BSO Bay did not have reasonable grounds to suspect Mr. Swamp was or might be contravening the Customs Act.
Facts
[6] The uncontested facts at trial were as follows.
[7] On July 6, 2017 the respondent (Mr. Swamp), a Canadian citizen and resident of Cornwall Island, was driving his truck in the mixed-traffic corridor between Cornwall Island and Cornwall, Ontario. He attended at the primary inspection point at the port of entry. BSO Bay was in the primary inspection booth, and BSO Sawatis, in the same lane, was checking vehicles as required. BSO Bay noticed Mr. Swamp, who was in a different lane, back up. He didn’t move into BSO Bay’s lane, which was completely clear of vehicles. BSO Bay said this made him suspicious. BSO Bay’s evidence was that he knew Mr. Swamp. He testified that he knew Mr. Swamp had a criminal record, kept company with people with criminal records, and was wanted in the United States. BSO Bay had also seen him cross the border several times previously with a propane tank and large gas tank in the back of his truck that had not appeared to move in all of those crossings.
[8] BSO Sawatis left the primary inspection lane to go inside the main building to retrieve sunglasses, and Mr. Swamp moved into BSO Bay’s lane. Once at the booth, Mr. Swamp identified himself and indicated he was coming from Cornwall Island. BSO Bay’s evidence was that he believed Mr. Swamp but he nonetheless asked him further questions; specifically, he asked whether Mr. Swamp had any goods on board arriving from the United States. Mr. Swamp responded “No”. He then asked Mr. Swamp to turn off his ignition for a brief examination of the vehicle.
[9] In his evidence, BSO Bay said he made this decision based on a number of indicators: the suspicious lane change, Mr. Swamp was driving a low value vehicle, Mr. Swamp’s criminal record and the fact he was known to keep company with others with a criminal record, a propane tank and gas tank in the back of Mr. Swamps’s truck that had not appeared to move in days. He testified that the propane tank was an indicator because he had heard some travelers had attempted to cross the border with propane tanks with false bottoms, carrying contraband.
[10] BSO Sawatis returned to the primary inspection point. He and BSO Bay examined the car and detected an odor described as a sweet smell which could have been flavored tobacco. They decided to direct the vehicle to secondary inspection for a more thorough check. At the subsequent check, firecrackers with an American logo on them were found in the hood of Mr. Swamp’s vehicle. The firecrackers gave rise to the charges for which he was tried and found not guilty.
[11] In cross-examination, BSO Bay admitted that travelers seeing a car being inspected by an officer outside of the booth might conclude that moving into that lane would cause delay. He also admitted that almost every family in Akwesasne has a family member with a criminal record. He further acknowledged that Mr. Swamp was not carrying contraband tobacco on that occasion nor had he ever been charged with attempting to cross the border carrying tobacco.
[12] There was no dispute that Mr. Swamp had attempted to cross the border without declaring the firecrackers and that possession of them in Canada without a license was illegal. At issue in Mr. Swamp’s trial was whether the search at the primary inspection booth fell outside the scope of s. 99(1)(f) of the Customs Act, as Mr. Swamp was a domestic traveler, and whether the search of his truck violated his s. 8, 9 and 10 Charter rights.
The Trial Judge’s Decision
[13] The trial judge concluded at page 11 of his reasons that, reading s. 99.5 and s. 99(1)(f) together,
it is clear that Parliament intended to distinguish between the powers of an officer to examine goods in a typical international border crossing and the powers of that same officer when dealing with domestic travelers at a mixed traffic corridor. In particular, the Act limits the officer’s search powers in regard to domestic travelers unless the officer has reasonable grounds to suspect the traveler is actually travelling internationally.
[14] He adopts the exclusionary rule described by Dreiger in The Construction of Statutes which states that “where two provisions are in conflict and one of them deals specifically with the matter in question while the other is of general application, the conflict may be avoided by applying the specific provision to the exclusion of the more general one.” The trial judge also concluded that the search of Mr. Swamp’s vehicle in the circumstances was a warrantless search contrary to s. 8 of the Charter. He ultimately excluded the evidence found in Mr. Swamp’s vehicle. He indicated he was following the test in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 but undertook no analysis.
[15] On this reasoning, the trial judge concluded that s. 99(1)(f) was not to be applied to domestic travelers without first having regard to s. 99.5. In Mr. Swamp’s case, it was uncontroverted that he was arriving from Cornwall Island. The trial judge reasoned he should have been immediately released and that the further questioning and the secondary inspection amounted to an arbitrary detention. The judge concluded that he should have been advised of his rights to counsel and was not, in violation of sections 10(a) and 10(b) of the Charter.
[16] The trial judge concluded by saying,
Even if I am in error in relation to my analysis of the statutory interpretation to be given under the Customs Act and s. 99(1)(f) applied, there was not, in my view on the evidence that I heard, even reasonable suspicion to detain, question and search Mr. Swamp’s vehicle. I must say with some degree of concern that the evidence given to me by Border Services Officer Bay gives me little confidence that Mr. Swamp’s detention, his utterances and the search of the vehicle originated from any more than mere suspicion, not a reasonable suspicion only guess work, a hunch.
The Appellant’s Position
[17] The Crown’s position is that search powers under s. 99(1)(f) of the Customs Act are not limited in time and place and are not limited to international travelers at the border. It argues that s. 99.5 of the Customs Act does not preclude the application of s. 99(1)(f) search powers to domestic travelers and that the two sections are not mutually exclusive. The Crown argues the two sections have different purposes which overlap and that the trial judge erred in finding that s. 99(1)(f) did not apply to domestic travelers. The Crown further argues that the trial judge erred in his finding that BSO Bay did not have reasonable grounds to suspect that the vehicle driven by Mr. Swamp was being used to violate an act of Parliament and erred in law in finding that Mr. Swamp’s Charter rights had been breached. It contends that even if Mr. Swamp’s Charter rights had been breached, the evidence should have been admissible under s. 24(2) of the Charter with the proper application of the test in Grant at para. 54.
The Respondent’s Position
[18] Mr. Swamp argues that the only section of the Customs Act which applies to him as a domestic traveler is s. 99.5. That section requires him to present himself at the border and tell the BSO where he is travelling from. If the BSO believes he is travelling from within Canada, the BSO is required to allow him to go through the border without further questioning or inspection. He argues the questioning and search of his vehicle were in violation of his Charter rights.
[19] Mr. Swamp argues that applying s. 99.5 and s. 99(1)(f) to domestic travelers effectively treats them in the same manner as international travelers. Doing so nullifies s. 99.5 and its purpose, rendering it meaningless.
[20] The addition of s. 99.5 to the Customs Act has some interesting history which bears repeating here. That history was presented to the court by way of excerpts from the transcripts of the Standing Committee on Finance dated May 17, 2012 and the Standing Senate Committee on National Finance dated May 29, 2012. The transcripts reveal that in 2006 a conflict arose between the Canadian government and the residents of the Akwasasne reserve over the plan to arm border services officers. At that point, the port of entry was on Cornwall Island which is part of Akwasasne. The conflict led to the closing of that border for a period of 6 weeks, causing considerable inconvenience and hardship to international and domestic travelers. The border was ultimately moved inland to the City of Cornwall and the residents of Cornwall Island were and continue to be required to present themselves at the border. The issue at the time was that CBSA did not feel it had legal authority to compel the residents of Cornwall Island to present themselves at the border, but it was essentially the only way to cross into the City of Cornwall by car. Customs officials felt they had no authority to question domestic travelers and wanted to amend the Customs Act to permit such questioning.
[21] Ultimately, s. 99.5 was added to the Customs Act. Mr. Swamp argues that the purpose of questioning under s. 99.5 is solely to determine whether a traveler is suspected of coming from outside of Canada. If the BSO believed they are coming from within Canada, they are to pass through without further questioning. He quotes Andy Lalonde, Manager Preclearance, CBSA who answered questions in the Senate on May 29, 2012 and who said, in part,
These three clauses would provide us with the legal means to be able to ask them to determine whether they are domestic or whether they are coming from the U.S. If we have no reason to suspect otherwise, the domestic traveler would be released right away. If they are lying that is another thing. Then we can have authority to question them, like we normally do in our normal business.
[22] Mr. Swamp argues that the trial judge was correct in his finding that Parliament intended to distinguish between the powers of an officer to examine goods in a typical international border crossing and the powers of the same officer when dealing with domestic travelers in a mixed-traffic corridor. He argues that s. 11.7 of the Customs Act limits a BSO to asking a domestic traveler whether he is traveling from within or outside of Canada and s. 99.5 limits his search powers to those travelers the BSO suspects are travelling internationally.
[23] Mr. Swamp also contends that even if s. 99(1)(f) did apply, the officer did not have reasonable grounds to suspect an act of Parliament had been contravened when he referred Mr. Swamp to secondary inspection. He argues that the trial judge was correct in concluding that the referral from primary to secondary was without legal authority, violated his Charter rights, and subsequently obtained evidence ought to be excluded.
Analysis
Standard of Review
[24] The matter before me is a proceeding under s. 785 of the Criminal Code, R.S.C. 1985, c. C-46 and the Crown’s appeal from Mr. Swamp’s acquittal is pursuant to s. 813(b) of the Code.
[25] The powers of the court on such an appeal are set out in s. 686 of the Code.
[26] The 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.]
[27] On 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](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-1-2nd-supp/latest/rsc-1985-c-1-2nd-supp.html)
[28] A 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 they are arriving from outside of or within Canada. In R. v. Cook, 2019 ONSC 515 this court found that the reason for this was likely due to the ease with which a domestic traveller who resides in 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. Courts have held that international and domestic travellers in airports, train stations, and at ports of entry have a reduced expectation of privacy (R. v. Jacques, 1996 CanLII 174 (SCC), [1996] 3 S.C.R. 312 R. v. Monney, 1999 CanLII 678 (SCC), [1999] 1 S.C.R. 652) .
[29] There 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. This is particularly so at the Cornwall border, in my view. In the transcript from the Standing Committee on Finance May 17, 2012, Andy Lalonde advised the committee the request for the amendments to the Customs Act
[wasn’t] to pick sides with smugglers or the residents who are law-abiding people in the majority. It’s one of those situations where Cornwall is somewhat unique because of the description you’ve just played with cigarette smuggling and people smuggling, quite frankly. Cornwall actually ranks fifth of the top thirteen highest-risk ports of entry that we have in the country. That’s pretty significant for a location that only processes approximately 1.6 million, while a place like Winsor processes 12 million a year. So, it’s a pretty significant place.
[30] The Cornwall border has been noted as a particularly high-risk location for the smuggling of contraband and people in a number of court decisions since that time.
The Applications of Sections 99.5 and 99(1)(f)
[31] Section 99(1)(f) of the Customs Act 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.
[32] In Cook, this court found that s. 99(1)(f) of the Customs Act does not distinguish between international and domestic travellers and is presumed to apply to both equally. This finding is consistent with the Supreme Court’s reasoning in Jacques paras. 16-17 in which Gonthier J. stated,
The Act also recognizes that persons and goods can arrive in Canada by a variety of means and through one of many ports of entry. Points of entry are, of course, not restricted to points along the territorial limits of Canada. The concept of a border is broader than mere geographic boundaries and necessarily, so too is the scope of the Act. Persons, vehicles and goods can arrive in Canada for customs purposes and be subject to the Act even though they are already well inside Canadian territory [emphasis mine].
The standard set by s. 99(1)(f) is not stringent but it is not illusory. It has not been argued, and I do not suggest, that s. 99(1)(f) of the Act authorizes an officer to conduct random stops of vehicles merely because they are in the vicinity of the border and on no other basis. Nonetheless, being at or in the vicinity of the border is relevant to the application of enforcement measures under the Act.
[33] 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 nations but also, unfortunately, the smuggling of liquor, narcotics, weapons or other contraband. The state has a pressing interest in protecting its borders.
[34] Section 99.5 of the Customs Act allows an officer who has reasonable grounds to suspect that a person stating they are coming from within Canada is being untruthful to question the person, examine, and take samples of any goods carried by the person. No caselaw on s. 99.5 was provided to me by either party and it appears from my own search that this section has not been the subject of reported decisions.
[35] The respondent argues that s. 99.5 of the Customs Act was enacted after the Supreme Court decision in Jacques and that its enactment requires border services to suspect that a traveler purporting to come from within Canada is actually travelling from outside of the country before a border services officer can invoke his or her powers under s. 99(1)(f).
[36] I disagree. Applying this reasoning, a person who is believed to be coming from Cornwall Island but who appears to be carrying contraband would have to be waved through simply because they are traveling within Canada. It would allow for a third party to bring contraband or a conveyance carrying contraband to Cornwall Island and be transported across the border by a resident. In my view, Parliament did not mean for the two sections of the Customs Act to be applied in this manner. Section 99.5 was meant to expedite domestic traffic through the border but not to the exclusion of s. 99(1)(f), which applies to conveyances regardless of the nationality of the driver or whether they arrived at the border internationally or domestically. Indeed, Jacques clearly contemplates that section of the Customs Act applying to persons and/or goods already inside Canadian territory. I therefore find the trial judge’s conclusion that s. 99(1)(f) applies solely to international travelers is an error of law.
Reasonable Grounds to Suspect
[37] In order for the search of Mr. Swamp’s vehicle to have been lawful under s. 99(1)(f), the BSO must have “reasonable grounds to suspect that an act of Parliament has been or might be breached.” The trial judge addressed this in his analysis and determined that the indicators set out by BSO Bay did not meet the threshold.
[38] In his reasons the trial judge did not address these factors specifically but came to the following general conclusion without specifying why:
[T]here was not, in my view on the evidence that I heard, even reasonable suspicion to detain, question and search Mr. Swamp’s vehicle. I must say with some degree of concern that the evidence given to me by [BSO] Bay gives me little confidence that Mr. Swamp’s detention, his utterances and the search of his vehicle originated from anything more than mere suspicion, not a reasonable suspicion only guess work, a hunch. Mr. Bay knew Mr. Swamp. He has known him for some time. The nature of Mr. Bay’s evidence demonstrated to me, quite palpably, that he does not like Mr. Swamp, animus existed, issues of good faith/bad faith existed.
Constable Bay, I return to his evidence at the outset, his reasons were based on multiple indications having been laid out prior to Mr. Swamp’s stopping. That only heightens my concerns that something less than reasonable suspicion existed. A reasonable suspicion is something less than reasonable and probable grounds but is certainly something more than mere suspicion or guesswork. I am not confident that the evidence of Cst. Bay, in regards to the basis for his detention of Mr. Swamp, his questioning of him or the search of his vehicle reached the level of reasonable suspicion.
In my view the defendant has established on a balance of probabilities that his rights under sections 8, 9, 10(a) and 10(b) were violated.
[39] The “multiple indicators” which were as set out by BSO Bay at trial were the subject of this appeal but were not set out in specifically in the trial judge’s decision as findings of fact. Those indicators were:
a. Mr. Swamp had a criminal record
b. Mr. Swamp kept company with individuals with a criminal record
c. Mr. Swamp made a suspicious lane change
d. Mr. Swamp had a propane tank and oversized gas tank in the bed of his truck that did not appear to move through several border crossings
e. Mr. Swamp was driving a low-value vehicle
[40] The trial judge’s findings of fact on reasonable grounds to suspect are simply that BSO Bay had a hunch or mere suspicion and that he had animus toward Mr. Swamp. There is nothing on the face of the transcript regarding BSO Bay’s demeanor or any evidence in support of his conclusion. In my view, the trial judge’s duty to give reasons on this issue required him to set out the reasons for his findings of fact and to address how those findings supported his conclusion (R.v. Sheppard, 2000 SCC 26; R.v. M (R.E.) 2008 SCC 51 Para 35). He erred in failing to do so. This being said, the Supreme Court in Canada R. v. Gagnon 2006 SCC 2017 provides guidance on the proper approach to considering whether a trial judge’s reasons are adequate. The decision cautions appeal courts against finding too readily that reasons are insufficient confusing the issue and adequacy of reasons with reasonableness of the decisions. At para 13,
[13] …in Sheppard, a case in which the trial judge’s reasons were virtually nonexistent, this Court explained that reasons are required from a trial judge to demonstrate the basis for the acquittal or conviction. Failure to do so is an error of law. Finding and error of law due to insufficient reasons requires two stages of analysis: (1) are the reasons inadequate; (2) if so, do they prevent appellate review? In other words, the Court concluded that even if the reasons are objectively inadequate, they sometimes do not prevent appellate review because the basis for the verdict is obvious on the face of the record. But if the reasons are both inadequate and inscrutable, a new trial is required.
[41] In the matter before me, the evidence shows that Mr. Swamp’s criminal record was not for smuggling and almost every family who resides on Cornwall Island has a family member with a criminal record. Thus, the fact that Mr. Swamp kept company with individuals who had a criminal record is not surprising and is not in my estimation a ground for reasonable grounds to suspect. Neither is the lane change. By BSO Bay’s own admission, people change lanes to avoid delay when going through the border. This leaves the fact that Mr. Swamp was driving a low-value vehicle which contained a propane tank and an oversized gas tank. In my view, this is insufficient to establish reasonable grounds to suspect. The significance of the value of the truck Mr. Swamp was driving was not explained, and the reality is that people with trucks often carry items in the bed of the vehicle; that in and of itself is not sufficient to meet the threshold of reasonable grounds to suspect.
[42] While I find the trial judge’s reasons to be objectively inadequate, when I consider the entire record, the verdict of acquittal is appropriate on the face of the record. In the circumstances, a new trial is not required notwithstanding the trial judge’s errors.
[43] The appeal is dismissed and the acquittal of Mr. Swamp stands.
The Honourable Justice Nathalie Champagne
Released: December 13, 2019