COURT FILE NO.: CRIMJ (F) 411/17
DATE: 2021 05 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Geiger, for the Crown
- and -
KAMIA AFRIA KHRISTINA STUBBS
F. Davoudi, for the Defendant
HEARD: March 16, 2021
RULING ON PRETRIAL MOTIONS
André J.
[1] The applicant, Kamia Afria Khristina Stubbs, a 32-year-old black female, brings an Application for an order declaring that on October 2, 2016, the date she arrived at the Toronto Pearson International Airport at approximately 8:00 p.m., Canada Border Service Officers (“BSO”) violated her ss. 7, 8, 9 and 10 rights under the Charter of Rights and Freedoms (the Charter). Specifically, she contends that the BSO who asked her questions about herself and her trip racially profiled her and therefore violated her Charter rights. The Crown also seeks an order that whatever statement Ms. Stubbs gave to the BSOs following her arrival at the airport were voluntary.
SUMMARY OF THE EVIDENCE
[2] On October 2, 2016, Ms. Stubbs, then a 28 year old black female, arrived at the Toronto Pearson International Airport following a short vacation in Aruba. An Agreed Statement of Facts (ASF) indicated that this had been her third trip to Aruba in a one-year period. She came in contact with three Border Services Officers, one of whom sent her to the secondary area for further inspection. During the inspection, the officer discovered three bottles of lotion in Ms. Stubbs luggage. He x-rayed the bottles and observed what he thought to be an inconsistency in them. He squirted the liquid in one bottle and a clear looking baggie which he suspected to contain narcotics partially emerged from the bottle. He then arrested Ms. Stubbs under the Customs Act. A NIK test of a sample of the contents of the baggie came back positive for cocaine. It was later discovered that the three bottles contained 697 grams of pure cocaine.
POSITION OF THE PARTIES
Position of the Applicant
[3] Mr. Davoudi contends that BSO Steven Miller racially profiled Ms. Stubbs when he referred her to secondary. He submits that the officer gave different reasons for doing so and his professed reasons for referring Ms. Stubbs for further inspection were nothing more than a pretext for searching her because she was a black female travelling from a known source country.
[4] Mr. Davoudi further contends that on each of the three times Ms. Stubbs travelled to Aruba, different BSOs had referred her for a secondary search, which he submits was simply “not a coincidence”. He submits that he had earlier brought a third party application to obtain the training manuals of BSOs which the Crown opposed and which Coroza J. (as he was then) ultimately dismissed as a “fishing expedition”. He therefore submits that it is somewhat disingenuous for the Crown to insist that Ms. Stubbs was not racially profiled when it had opposed his attempt to obtain evidence which may confirm that she was.
[5] Mr. Davoudi also submits that BSO Miller violated Ms. Stubbs s.7, 8, 9 and 10 Charter rights because he continued to obtain information from her although he suspected her to be a drug smuggler from the start of his investigation. He was therefore required to have advised her of her s. 10 Charter rights before he questioned her about her trip and her personal circumstances. Additionally, he was required to have cautioned Ms. Stubbs before he opened a lotion bottle because he called another officer to stand guard while he did so.
Crown’s Position
[6] The Crown submits that the BSOs who dealt with Ms. Stubbs did not violate her Charter rights. BSO Miller acted appropriately in referring her to secondary based on the information she provided to him. There is simply no evidence that race played any role in his decision to do so.
[7] The Crown also submits that the fact that Ms. Stubbs was referred to secondary on three separate occasions by three different BSOs cannot be construed, absent other evidence, of racial profiling. Why BSOs referred her to secondary on previous occasions are unknown. Deciding that racial profiling played a role in the decision to refer Ms. Stubbs for a secondary inspection would amount to impermissible speculation by the court.
[8] Finally, the Crown submits that the applicable jurisprudence clearly establishes that the BSOs had the authority to randomly refer travellers to secondary after asking them questions about their trip and their personal circumstances.
ANALYSIS
A. DID BSO MILLER RACIALLY PROFILE Ms. STUBBS?
[9] This motion raises the following issues:
a. Did BSO Miller racially profile Ms. Stubbs?
b. Did BSO Miller violate Ms. Stubbs’ s. 7 Charter rights?
c. Did Officer Miller violate Ms. Stubbs’ s. 8 Charter rights?
d. Did Officer Miller violate Ms. Stubbs’ s. 9 Charter rights?
e. If the officer violated Ms. Stubbs’ Charter rights, what is the appropriate remedy?
f. Did Officer Miller violate Ms. Stubbs’ s. 10(a) and/or s. 10(b) Charter rights?
g. Were Ms. Stubbs’ utterances to BSO Miller voluntary?
The Law
[10] In R. v. Richards, 1999 CanLII 1602 (ON CA), [1999] O.J. No. 1420, at para. 24, the Court of Appeal noted that:
Racial profiling is criminal profiling based on race. Racial or colour profiling refers to that phenomenon whereby certain criminal activity is attributed to an identified group in society on the basis of race or colour resulting in the targeting of individual members of that group. In this context, race is illegitimately used as a proxy for the criminality or general criminal propensity of an entire racial group.
[11] Racial profiling may be the result of overt, subconscious or institutional racial bias: R. v. Brown, 2003 CanLII 52142 (ON CA), [2003] O.J. No. 1251, at para. 8. Racial profiling can rarely be proven using direct evidence; it must be inferred from the circumstances of the police action: see Peart v. Peel Regional Police Services Board, 2006 CanLII 37566 (ON CA), [2006] O.J. No. 4457, at para. 95.
[12] Racial profiling is improper even if it was only one of other factors in a decision to detain or arrest a detainee: Brown v. Durham Regional Police Force, 1998 CanLII 7198 (ON CA), [1998] O.J. No. 5274; Richards; R v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, .R. v. Dudhi, 2019 ONCA 665, at paras. 62-63. The Court of Appeal noted in Dudhi that:
Where race or racial stereotypes are used in any degree in subject selection or subject treatment, there will be no reasonable suspicion or reasonable grounds. The decision will amount to racial profiling.
[13] In Brown, at para. 45, the court noted that, where the evidence shows that the circumstances relating to a detention correspond to the phenomenon of racial profiling and provide a basis for the court to infer the police officer is lying about why he or she singled out the accused person for attention, the record is then capable of supporting a finding that the stop was based on racial profiling.
[14] In R v. Sitladeen, 2021 ONCA, 303 at paragraph 49, the Court of Appeal noted, in a case involving a traffic stop, that,
An officer who has unconsciously allowed racial stereotypes to influence his decision to detain a racialized person may not believe he is being untruthful, and therefore may not be lying when he testifies that racial stereotypes played no role in the decision, nevertheless, a trial judge is entitled to reject that evidence as untruthful if the judge is satisfied, based on the circumstances consistent with racial profiling, that unconscious bias and racial profiling were factors in the decision.
[15] Did BSO Miller, consciously or unconsciously, refer Ms. Stubbs to secondary because she was a black woman? In my view, he did not. First, in referring her to secondary, he did not detain her in a manner contemplated by s. 9 of the Charter, he merely referred her to secondary after asking her questions about her trip. Mr. Davoudi submits that the surveillance video which shows the officer’s initial interaction with Ms. Stubb shows him directing a white male traveller to another officer to ensure that he interacted with Ms. Stubb. The video, in my view, does not bear this out. It shows that Ms. Stubb was next in line when she initially encountered BSO Miller. As shown in the next section of this judgment, the routine questioning of a traveller at a Canadian border is mandated under the Customs Act .
[16] Mr. Davoudi submits that the fact that on three separate occasions over a one year period, border security officers referred Ms. Stubb for a secondary search is evidence of racial profiling. I disagree. It is unknown why the two previous officers referred Ms. Stubbs to secondary. There is nothing in BSO Miller’s interaction with Ms. Stubbs that permit me to draw an inference that his decision to refer Ms. Stubbs to secondary was to some degree, motivated by unconscious racial profiling. The mere fact that a black traveller, absent other evidence, was referred to secondary by a BSO, cannot support a conclusion that the decision to do so was partially motivated by unconscious racial basis. To that extent, I find that BSO Miller’s decision to refer Ms. Stubbs to the secondary area was not motivated by conscious or unconscious racial bias in any way, shape or form.
B. Did BSO Miller violate Ms. Stubbs’ [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec7_smooth) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[17] Section 7 provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[18] The principle of self incrimination does not foreclose use by the Crown in subsequent proceedings of all statutorily compelled statements: see R. v. Jones, 2006 CanLII 28086 (ONCA), at para. 13; R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154, [1995] S.C.J. No. 94, 102 C.C.C. (3d) 144, at p. 169 S.C.R, p. 155 C.C.C.
[19] Section 11 of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) indicates that everyone who arrives in Canada is required “without delay to present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament”.
[20] In R. v. Jones, Doherty J.A. noted the following at para. 30:
Like the trial judge, I think the fact that the impugned statements were made at the border in the course of routine questioning by Customs authorities is central to the analysis of the appellant's self-incrimination claim. No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada. As the appellant himself testified, travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage. Put simply, the premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. The opposite is true. The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co- operate with that state intrusion in exchange for entry into Canada.
[21] Routine questioning of travellers, the search of their luggage and perhaps a pat-down search of the traveller, do not engage s. 10(b) and s. 8 of the Charter: R. v. Simmons, 1988 CanLII 12 (SCC), [1998] 2 S.C.R. 495, [1988] S.C.J. No. 86, 67 O.R. (2d) 63, 45 C.C.C. (3d) 296, at p. 516 S.C.R., p. 312 C.C.C.; Jones, at para. 32.
[22] Doherty J.A. noted further in Jones at para. 33 that:
[T]he principle against self-incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border: R. v. White, at p. 441 S.C.R., p. 278 C.C.C.
[23] In Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, [1993] S.C.J. No. 38, the Supreme Court of Canada observed at para. 41 that “it would [be] absurd to suggest that routine questioning by Customs officials constitutes a detention for the purpose of s. 10(b).”
[24] Finally, the Court of Appeal noted in Jones, at para. 42 that:
[T]he 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: see R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46. As indicated above, if the person is detained, the assessment of the s. 7 self- incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result.
[25] In R. v. Peters, [2016] O.J. No. 2078, Dawson J. noted 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.
[26] The Ontario Court of Appeal in R. v. Peters, 2018 ONCA 493, at paras. 8-9, upheld the test set out by Dawson J. to determine whether a routine question of a traveller had changed to a focused investigation of a specific offence such that a caution should be read to the traveller.
[27] In R. v. Darlington, 2011 ONSC 2776, Hill J. summarized the caselaw pertaining to points of entry in Canada by noting the following:
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”.
THE FACTS
[28] BSO Miller testified that he “roved” Ms. Stubbs shortly after she deplaned at the airport and that he did so randomly. He testified that he had not been instructed to rove anyone on the flight from Aruba. She was next in line when he interviewed her. He denied suggestions from Mr. Davoudi that he had targeted her on account of her race. He had no previous interaction with Ms. Stubbs. He could not recall the race of the travellers he had earlier “roved” on his shift.
[29] During his conversation with Ms. Stubbs, she stated that she had travelled alone and had not met anyone in Aruba. Her passport revealed that she had travelled three times to Aruba which was a known source of drugs. Based on these factors, he referred her for a secondary inspection.
[30] Mr. Davoudi points to the officer’s testimony in cross-examination that it was “possible” that he would have referred Ms. Stubbs for a secondary inspection even if she had travelled to Aruba for the first time. In my view, this assertion by the officer does not alter the fact, as stated in Jones, that travellers could be randomly sent to the secondary area for further inspection. There is simply no evidence that from an objective perspective, the officer targeted Ms. Stubbs on the basis of a “particularized suspicion”. He gave uncontradicted evidence that he had not been instructed to rove anyone on the flight from Aruba neither did he decide, upon seeing Ms. Stubbs, to question her on account of her race. He never confronted her of importing drugs or asking her whether she had drugs in her possession.
[31] Mr. Davoudi also challenges BSO Miller’s testimony about why he roved Ms. Stubbs by putting to him that he testified at the preliminary hearing that at the time he observed Ms. Stubbs, he thought she might have been a suspect and therefore had to caution her before he asked her any questions. However, Mr. Miller clarified, during his re-examination at the preliminary hearing, that it was Mr. Davoudi who stated that Ms. Stubbs was a suspect. He believed that it was a routine examination; nothing else.
[32] There is nothing about BSO Miller’s questioning of Ms. Miller in the secondary area that objectively, would support a conclusion, on a balance of probabilities, that based on Dawson J.’s decision in Jones, that there was such a strong particularized suspicion connecting Ms. Stubbs to a specific offence that the questioning and examination of her luggage had changed from a routine to a focused investigation of a specific offence. He asked her the usual questions about whether the luggage belonged to her, whether she had packed them, whether she knew their contents and if they had originally come from Canada. He asked her about the method of payment for her ticket and when she had purchased it. He asked her about where she stayed in Aruba, the cost of her hotel, length of stay, her employment status and her residence. He examined the contents of her luggage and saw three large bottles of lotion which he thought were rather large for a trip of one week. He therefore decided to x-ray their contents.
[33] Based on the above, I find as a fact that BSO Miller conducted a routine questioning of Ms. Stubbs rather than on account of a particularized suspicion that she had committed a criminal offence. He had the discretion, based on her answers to his questions, to refer her for a secondary inspection. He had no obligation to caution her during the course of his interview in the secondary area and had the statutory justification to search her luggage and open one of the bottles of lotion found in her luggage.
[34] For these reasons, BSO Miller did not violate Ms. Stubbs’ s. 7 Charter rights.
C. Did BSO Miller violate Ms. Stubbs’ [s. 8](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec8_smooth) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[35] Simply put, he did not. He had the right, under the Customs Act, to ask her questions when he initially met her and later to search her luggage. He also had the right to search the contents of her luggage. The anomaly he observed while he x-rayed the lotion bottles gave him the authority to further examine the bottles to see if they had any suspected contraband. In my view, the officer was not obliged to caution Ms. Stubbs before he opened the lotion bottle, as Mr. Davoudi contends. He had the authority to do pursuant to s. 10 of the Customs Act.
[36] I find as a fact that BSO Miller only detained Ms. Stubbs after he observed what appeared to be a “baggie” emerge from one of the lotion bottles which he reasonably suspected contained cocaine. Accordingly, BSO Miller did not violate Ms. Stubbs’ s. 8 Charter rights.
D. Did BSO Miller violate Ms. Stubbs’ [s. 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec9_smooth) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[37] Section 9 of the Charter guarantees the right against being arbitrarily detained, and imprisoned. In R. v. Simmons (1998), 45 C.C.C. (3d0 296, at 312 (SCC), the Supreme Court of Canada noted that persons subject to routine questioning at the border, luggage searches and even minimally intrusive searches have not been arbitrarily detained under s. 9 of the Charter.
[38] In my view, Ms. Stubbs’ s. 9 Charter rights were not violated. He only detained her after reasonably suspecting that she was in possession of narcotics after he partially emptied the contents of one of the lotion bottles. He arrested her and read her rights to counsel promptly after arresting her. The video evidence tendered by the Crown as part of its case against Ms. Stubbs confirms the arrest after the officer sought to empty the contents of the lotion bottle found in Ms. Stubbs’ possession.
[39] For the above reasons, Ms. Stubbs’ s. 9 Charter rights were not violated by BSO Miller.
E. Did BSO Miller violate Ms. Stubbs’ [s. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec10paraa_smooth) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) rights?
[40] Section 10(a) of the Charter guarantees “the right, on arrest or detention, a) to be informed promptly of the reasons therefor.”
[41] Upon seeing the clear looking baggie from the lotion bottle, the contents of which the officer described as “liquidy, and chunky and off-white colour”, BSO Miller arrested Ms. Stubbs “near simultaneously,” for “smuggling suspected narcotics”. He promptly read her rights to counsel from his officer reference book and recorded her responses. Ms. Stubbs replied that she understood what the officer read to her and asked to speak to counsel. Two BSO officers, Fletcher and Ferretto, then took her to the back to call counsel.
[42] In my view, BSO Miller complied with Ms. Stubbs’ s. 10(a) Charter rights.
F. Did BSO Miller violate Ms. Stubbs’ s. 10(b) rights?
[43] Section 10(b) stipulates that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[44] BSO Laura Ferretto testified that following Ms. Stubbs’ arrest, she read a secondary caution to Ms. Stubbs verbatim from her reference booklet. She then called Ms. Stubbs’ counsel, Ms. Von Achten, and waited for her response. She called duty counsel eleven minutes later at 9:29 p.m. and left a message. Duty counsel returned the call seven minutes later at 9:36 p.m. Ms. Stubbs spoke to duty counsel until 9:46 p.m. Ms. Stubbs was not asked for a statement after she spoke to duty counsel.
[45] In my view, the border officers promptly advised Ms. Stubbs of her s. 10(b) rights and took steps to ensure that Ms. Stubbs exercised that right. Accordingly, they did not violate her rights under s. 10(b) of the Charter.
G. Were Ms. Stubbs’ utterances to BSO Miller voluntary?
[46] In my view, they were. First, a statutory compulsion to answer questions posed by a BSO does not vitiate the voluntariness of the statement. Second, all the BSOs who had contact with Ms. Stubbs testified that they did not threaten, coerce, made any promise, or offer Ms. Stubbs an inducement in exchange for a statement, neither did they see anyone do any of these things. They were not challenged on their testimony to that effect. At no time during her interaction with BSO Miller, could it be said that Ms. Stubbs’ will was overborne by the officer.
[47] For the above reasons, Ms. Stubbs’ responses to BSO Miller’s routine questioning of her were voluntary. I reiterate however, that in my view, Ms. Stubbs was required, pursuant to s. 10 of the Customs Act, to truthfully answer the officer’s questions.
CONCLUSION
[48] Ms. Stubbs’ application is dismissed. Ms. Stubbs’ answers to BSO Miller’s questions are voluntary.
[49] Ms. Stubbs is remanded out of custody, to March 11, 2022, to confirm her readiness for her trial.
André J.
Released: May 25, 2021
COURT FILE NO.: CRIMJ (F) 411/17
DATE: 2021 05 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
KAMIA AFRIA KHRISTINA STUBBS
RULING ON PRETRIAL MOTIONS
André J.
Released: May 25, 2021