COURT FILE NO.: CR-20-192 DATE: 2021 07 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David Quayat and Ostap Melnik for the Crown

• and -

NATHAN DAVID KERTCHER MACMILLAN

Natalie Kolos, for the Defence

HEARD: June 15-18 and 21, 2021

RULING ON ADMISSIBILITY OF EVIDENCE

Petersen J.

INTRODUCTION

[1] Mr. MacMillan was arrested on February 15, 2019 and charged with importing a controlled substance (cocaine) into Canada under the Controlled Drugs and Substances Act, S.C. 1996, c.19. The trial is scheduled to take place commencing on July 26, 2021.

[2] There are two applications before the court dealing with the admissibility of evidence at trial. First, the Defence applies for a ruling that all statements made by Mr. MacMillan to officers of the Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP), as well as the cocaine found in his possession, should be excluded on the basis that they were obtained in breach of his rights guaranteed by ss. 7, 8, 10(a) and 10(b) of the Charter of Rights and Freedoms. The second application is by the Crown for a ruling on the voluntariness of the statements made by Mr. MacMillan both prior to and after his arrest.

[3] The applications were heard by way of a blended voir dire, conducted via videoconference. The viva voce evidence during the voir dire consisted of the testimony of Border Security Officers (BSOs) Jin-Ho Jung and Christian Lagoutte, and RCMP constables Brandon Zame, Manas Parray and Jeffrey Ferguson. Several documentary exhibits were also adduced as evidence.

SUMMARY OF EVIDENCE AND FINDINGS OF FACT

[4] Mr. MacMillan arrived at Toronto Pearson International Airport via a flight from Colombia on February 5, 2019. He presented his passport and his completed E311 customs declaration card at an automated kiosk in the CBSA primary inspection area. His card was coded for a mandatory referral to the secondary inspection area because he had been identified by the CBSA’s National Targeting Centre as a suspected high-risk person who could be smuggling narcotics into Canada. In the common parlance of BSOs, a “target” had been issued with respect to Mr. MacMillan. There is no evidence that Mr. MacMillan was aware of the target.

[5] All international travellers who arrive at Pearson airport are required by law to pass through the CBSA primary inspection area. Only some travellers are flagged for referral to the secondary inspection area, where luggage is searched, and goods are examined. These include persons who are chosen randomly, persons who are selected by BSOs because suspicions arise in the primary inspection area, and persons who are the subject of a mandatory referral (either a “lookout” or a “target”) based on intelligence gathered by the CBSA. Persons who are referred to the secondary inspection area are not free to exit the airport until the examination by the CBSA is completed and they and their goods are released.

[6] BSOs Jung and Lagoutte testified that targets are issued for travellers based on a variety of reasons, including an identified risk of terrorist activity and child pornography. BSO Jung stated that, based on his experience, smuggling contraband is the main reason. BSO Lagoutte stated that contraband can include a wide variety of different goods, including fish, birds or prohibited drugs.

[7] No statistical data was adduced as evidence of the frequency with which targets are issued. BSO Jung stated that, on a busy day, he interacts with approximately 3-4 passengers who are identified as targets, and on a slow day, there might be only one or none. He testified that lookouts and targets are a regular thing he deals with daily.

[8] BSO Jung stated that, based on his experience, it is an anomaly to locate contraband on a person who is coded as a contraband target. He testified that he has had only 3 or 4 arrests resulting from a contraband target being issued over the course of his 12-year career. BSO Lagoutte, who has worked at Pearson airport for 11 years, testified that he has encountered travellers who are the subject of a target but has never detained or arrested such a person.

[9] I found both CBSA officers to be credible and reliable witnesses.

[10] On February 5, 2019, Mr. MacMillan presented himself at BSO Jung’s counter in the secondary inspection area at approximately 6:15 AM. He had two bags, a suitcase and a smaller carry-on backpack. BSO Jung collected his passport and E311 card. BSO Jung immediately recognized the coding on the card as a contraband target. Consistent with CBSA policy and practice, he did not disclose this information to Mr. MacMillan.

[11] BSO Jung began his examination by asking Mr. MacMillan three mandatory luggage questions: Are these your bags? Did you pack them yourself? Do you know what’s inside them? Mr. MacMillan answered all three questions affirmatively.

[12] BSO Jung then asked Mr. MacMillan a series of standard questions, including where he was employed, where he was travelling from, why he went to that destination, how long he was there, who he travelled with, and where he stayed. Mr. MacMillan was cooperative and answered all the questions. Among other things, he told BSO Jung that he had recently broken up with his girlfriend and took a trip to Colombia because he needed to unwind. He said he worked as a personal trainer at a gym and was previously enlisted with the Canadian Forces. He talked about the time he spent serving in the military in Afghanistan and described some of the experiences he had in Colombia.

[13] Pursuant to his training, BSO Jung then asked Mr. MacMillan to stand in front of him while he queried his name in the Integrated Customs Enforcement System (ICES) computer database. He did this to ensure that Mr. MacMillan did not view the information displayed on the computer screen. The ICES database contained a Target Synopsis for Mr. MacMillan, from which BSO Jung learned that the contraband target was related to narcotics. He did not share this information with Mr. MacMillan. He testified that it was standard CBSA practice not to do so.

[14] Among other things, the Target Synopsis stated that Mr. MacMillan is a 32-year-old male with unknown ties to Colombia, travelling on a Canadian passport from Santa Marta airport in Colombia, which is a known high-risk airport for cocaine smuggling. It stated that he appeared to be travelling alone, had purchased his ticket 14 days prior to departure (“14 day lead”), had been away for five days (“5 day absence”), and was travelling on a “newly issued passport… issued 1 day prior to travel”. It also stated, “no prior travel found.” The Synopsis further stated: “ICES positive – postal seizure – steroids – Linked by name and address” and “CNI – positive”. BSO Jung testified that he did not know what the latter entry meant. Finally, the Target Synopsis included the following notation: “Reliability: Believed Reliable”. BSO Jung testified that, based on his experience, all contraband Target Synopses include that phrase.

[15] BSO Jung testified that the entries in the Target Synopsis were “indicators” that he used to conduct his examination of Mr. MacMillan. He stated that the issuance of the target was itself an indicator. He explained that an indicator is like a hint or a clue that a person might be doing something illegal, so their goods need to be examined. He described an indicator as a sign that, by itself, does not mean anything, but if you have a multitude of them, it could mean that the person is doing what they are suspected of doing, which in this case was smuggling drugs. He explained that, throughout his examination of a targeted traveller’s goods, he eliminates and builds indicators. As he gathers indicators, his suspicion level rises; when he negates indicators, his suspicion level decreases. He tries to negate indicators and make sense of the traveller’s story in order to understand why the indicators are present.

[16] BSO Jung noticed, while he was querying Mr. MacMillan’s name in the ICES database, that Mr. MacMillan was pacing in front of the counter and was breathing through his nose. Although this behaviour could simply reflect Mr. MacMillan’s usual demeanour, he considered the pacing and heavy breathing to be potential signs of nervousness that constituted additional indicators.

[17] The Target Synopsis for Mr. MacMillan included the following instructions:

Identify PAX means to travel, IF ANY

Please conduct a progressive secondary exam using all detection tools and considering all concealment methods. If resultant, please contact your local Enforcement and Intelligence Office.

[18] It was BSO Jung’s responsibility to follow these instructions. He stated that, when he started his search of Mr. MacMillan’s luggage, he believed that it would “more than likely be negative” for drugs. I accept his testimony that, despite the multiplicity of indicators, he did not subjectively believe there were drugs in the luggage. During his cross-examination, he acknowledged that it was a possibility. He said it was his duty to conduct a progressive search to try to locate any narcotics that might be concealed in the luggage, but he explained that, in his experience, a target that results in an arrest for smuggling narcotics is “very rare”. He stated that he therefore always thinks the examination of a targeted traveller’s bags will probably have a negative result.

[19] BSO Jung testified that, in accordance with the CBSA Enforcement Manual, it was his duty to perform an examination of Mr. MacMillan’s goods in order to confirm or mitigate the risk identified by the Target Synopsis. He agreed with Defence counsel that the goal of his examination was to try to locate drugs identified in the Target Synopsis and leave no stone unturned. As he went through Mr. MacMillan’s luggage, he looked for additional indicators of possible narcotics smuggling. He conducted a progressive examination, per his normal practice, using the usual tools that were generally available to him. He explained that the search intensified as additional indicators were uncovered.

[20] BSO Jung testified that not every passenger who is referred to secondary inspection is subjected to the same type of search or the same level of search. For example, if a traveller is referred to secondary inspection because they declare that they have exceeded their personal exemption for importing alcohol or tobacco, they are usually charged taxes on the goods and their bags are generally not even opened. If a traveller is targeted for a suspected currency offence, their goods will be searched but tools used for narcotics searches, such as an ion scan, will not be employed. Targets for possible narcotics smuggling undergo systematic searches, with the intensity of the search progressing over time but only if warranted. For example, if an ion scan of a package in a target’s luggage is negative, then the package will not be opened. If an x-ray of a suitcase shows no anomalies, then the seams of the suitcase will not be opened to look for hidden compartments. Even though systematic searches are conducted on targets, CBSA tries not to damage or destroy travellers’ property without good reason.

[21] In this case, BSO Jung searched the contents of Mr. MacMillan’s suitcase first. Everything was consisted with the narrative that Mr. MacMillan had provided about his trip. There was nothing unusual. BSO Jung located three bottles of rum in the suitcase, two unopened and one half-full. He was aware that cocaine is often smuggled into Canada in liquid form, so he conducted an ion scan on the neck of one of the unopened bottles. The result of the scan was negative. He therefore did not open the bottle. He did not bother to scan the other two bottles because there were not enough indicators to suggest there would be narcotics in them.

[22] He emptied the suitcase of all contents and x-rayed the suitcase itself. The purpose of the x-ray was to look for things that may be concealed and are not visible to the naked eye. BSO Jung stated that he did the x-ray because he had previously arrested people with narcotics hidden in false compartments in their suitcase. In this instance, the x-ray results were normal. He then instructed Mr. MacMillan to pack up the suitcase while he examined the contents of the backpack.

[23] In the backpack, BSO Jung located ordinary products that he would expect to find in an air-traveller’s carry-on luggage. He found a bag of coffee. He conducted an ion scan on the bag because he had previously arrested someone who was smuggling cocaine concealed in a food product. The ion scan of the coffee bag was positive.

[24] BSO Jung testified that this was another indicator that Mr. MacMillan might be smuggling cocaine, but it did not lead him to believe that the coffee bag contained cocaine. He explained that a positive ion scan simply means that the surface of the coffee bag had come into contact with cocaine at some point. He recalled that in his training, the instructor had demonstrated how a $20 bill can test positive on an ion scan for cocaine. He remained of the view that it was unlikely he would discover cocaine in Mr. MacMillan’s belongings, but the positive ion scan heightened his examination.

[25] BSO Jung informed Mr. MacMillan that he needed to open the coffee bag because the ion scan on the bag was positive for cocaine. He opened the bag and determined that it contained only coffee beans.

[26] BSO Jung then examined Mr. MacMillan’s toiletries. He explained that border security officers test items that people do not usually share, like toothbrushes. Cell phones and similar items are often handled by many people, but toiletries tend to be personal. He used an ion scan to test a mirror that he found among Mr. MacMillan’s toiletries. It came back positive for cocaine. He advised Mr. MacMillan of the result. Mr. MacMillan told him to throw out the mirror.

[27] BSO Jung then asked Mr. MacMillan whether he had used cocaine while in Colombia. Mr. MacMillan said no. He explained that he asked this question because the positive ion scan on the mirror (a personal item) was an indicator that Mr. MacMillan may have come into contact with cocaine at some point. If Mr. MacMillan had admitted to using cocaine while in Colombia (which is not a customs offence), that could have explained the positive ion scans on the mirror and coffee bag.

[28] BSO Jung testified that the two positive ion scans on items in the backpack built up his suspicion that smuggling of narcotics might be happening, so he decided to go back to the suitcase and examine the second unopened bottle of rum. He noticed that the content of the bottle was slightly cloudy. He said this was another indicator, but not a very strong one. He conducted an ion scan on the neck of the bottle and obtained a positive result. He then asked Mr. MacMillan where he obtained the bottle. Mr. MacMillan responded that he purchased it as a grocery store in Colombia.

[29] BSO Jung stated that he felt at that point that he had some reasonable grounds to suspect that the contents of the bottle may be cocaine. He did not believe he had grounds to arrest Mr. MacMillan, but he felt he should test the content of the bottle. He opened the bottle, poured a small amount of the liquid and used a NIK swab on the contents. The swab confirmed that the bottle contained cocaine. He then advised Mr. MacMillan that he had to arrest him because he found cocaine in the bottle.

[30] He promptly handcuffed and arrested Mr. MacMillan for smuggling prohibited goods into Canada, contrary to the Customs Act. He read Mr. MacMillan his Charter rights to counsel and cautioned him regarding his right to remain silent. The arrest occurred at approximately 6:30 AM. Mr. MacMillan was cooperative throughout.

[31] BSO Jung recalled that Mr. MacMillan stated that he wanted to speak to a lawyer. BSO Lagoutte arrived at the secondary inspection area to assist BSO Jung and was tasked with arranging for Mr. MacMillan to speak to duty counsel. BSO Lagoutte testified that he read Mr. MacMillan a secondary caution at approximately 6:40 AM, then escorted Mr. MacMillan to the CBSA cells area, placed a call to duty counsel around 6:45 AM, and arranged for Mr. MacMillan to have a private telephone consultation with the lawyer, whose name was J. Murphy. The phone call lasted 5 minutes and ended at about 6:51 AM.

[32] Mr. MacMillan remained in CBSA custody for a few hours. BSO Lagoutte contacted the RCMP around 7:40 AM. This is the usual practice of the CBSA when narcotics are located in a traveller’s possession.

[33] BSOs Jung and Lagoutte both testified that they expected criminal charges would ensue. Neither was aware of any prior seizure of narcotics that had resulted in a prosecution for smuggling under the Customs Act rather than a criminal prosecution under the CDSA and/or the Criminal Code.

[34] Three RCMP officers arrived at the CBSA secondary inspection area around 9:58 AM. Constable Zame was the lead investigator. He was a recent graduate of the police training academy with only about three weeks’ experience on the job, so he was accompanied by Constable Ferguson as his field coach. This was Constable Zame’s first attendance at the secondary inspection area as a lead investigator in a RCMP response team. Constable Parray also attended as an assisting officer.

[35] Constable Zame spoke to BSO Jung, who told him what had happened. Constable Ferguson was standing nearby but did not participate in the conversation. BSO Jung informed Constable Zame (among other things) that Mr. MacMillan had arrived on a flight from Colombia, had verbally confirmed packing his own luggage, and had three bottles in his suitcase, one of which tested positive on a NIK swab for cocaine. Constable Zame concluded that this information was sufficient to provide him with grounds to arrest Mr. MacMillan for importing a controlled substance under the CDSA.

[36] Constable Zame assumed possession of the evidence (i.e., Mr. MacMillan’s suitcase and bottles of rum), as well as some CBSA paperwork. He testified that he noticed “something was not right” with the liquid in one of the bottles because it was milky and cloudy, rather than clear.

[37] Constables Zame, Ferguson and Parray went to meet Mr. MacMillan in the CBSA cells area. At approximately 10:19 AM, Constable Zame entered the cell and arrested Mr. MacMillan for importing a controlled substance into Canada contrary to the CDSA.

[38] Constable Zame was aware that Mr. MacMillan had spoken to a lawyer named J. Murphy at 6:46 AM. He testified that he assumed J. Murphy was Mr. MacMillan’s lawyer. This assumption was incorrect. J. Murphy was duty counsel. He read Mr. MacMillan his rights to counsel at 10:19 AM and cautioned him. He said he read verbatim from a card provided to RCMP officers. The card contains the following script that is to be read to individuals who are placed under arrest (italics and bold font for emphasis in original):

I am arresting you for ___________________.

You have the right to retain and instruct counsel without delay.

You have the right to telephone any lawyer you wish.

You also have the right to free advice from a legal aid lawyer (which I can provide the number).

Do you understand?

Do you wish to call a lawyer?

You also have the right to apply for legal assistance through the Provincial Legal Aid Program.

Do you understand?

Police Caution

You need not say anything, you have not hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence.

Do you understand?

Secondary Caution

You must understand that anything said to you previously should not now influence you nor make you feel compelled to say anything further at this time. Whatever you felt influenced or compelled to say earlier you’re not now obligated to repeat, nor are you obliged to say anything further, but whatever you do say may be given in evidence.

Do you understand?

[39] During his testimony, Constable Zame was asked to read aloud the same portion of the script that he read to Mr. MacMillan at the time of the arrest on February 5, 2019. He initially read only the first section of the right to counsel, up to the first question, “Do you understand?”, then skipped to the first caution. He subsequently realized that he had forgotten to read “Do you wish to call a lawyer?” and “You also have the right to apply for legal assistance … Do you understand?”, so he returned to that section of the card. He testified that he read the entire script at the time of Mr. MacMillan’s arrest.

[40] Constable Zame confirmed that the only entry at 10:19 AM in his notes is the following: “Right to counsel. DYU? Yes”. It is followed by timed entries regarding the primary and secondary cautions. He testified that he also asked Mr. MacMillan whether he wanted to speak to a lawyer at 10:19 AM. He recalled that Mr. MacMillan responded that he already spoke to counsel while with the CBSA. Constable Zame did not make a note of the latter question and answer, despite acknowledging that he had been trained to write down what is said when rights to counsel are read.

[41] Constable Ferguson confirmed, during his testimony, that officers are trained to write down when they ask an arrestee if they want to speak with a lawyer. He stated that writing down the individual’s answer verbatim is very important. He testified that he explained this to Constable Zame in advance of going to the CBSA secondary inspection area on the day in question.

[42] Constables Parray and Ferguson were present when Constable Zame arrested Mr. MacMillan for the offence of importation. They observed him reading Mr. MacMillan his rights to counsel and cautions. Neither officer had an independent recollection of precisely what was said. Constable Parry testified that his notes reflect that Constable Zame read “verbatim rights” from an officer’s arrest script. Constable Ferguson recalled that Constable Zame read from his RCMP-issued card, as he had been instructed to do.

[43] Constable Ferguson testified that he was paying close attention to what Constable Zame was asking Mr. MacMillan because it was his responsibility as the field coach to ensure that the arrest was done properly. He said he observed no mistakes and would have interjected to correct Constable Zame if he had noticed any errors in the recitation of rights to counsel. Constable Ferguson could not recall Mr. MacMillan’s answers to the questions asked by Constable Zame. He testified that he made no notes of the answers.

[44] Upon arrest, Mr. MacMillan was searched, handcuffed and escorted by the three constables through a private corridor to the RCMP cells area. Constable Zame testified that, before he placed Mr. MacMillan in an RCMP cell, he asked him again whether he wanted to speak to a lawyer and Mr. MacMillan responded that he already spoke to his lawyer while with the CBSA. He said Mr. MacMillan also stated that he did not want to speak without his lawyer. These statements are reflected in an entry at 10:30 AM in Constable Zame’s notes.

[45] According to Constable Ferguson, his notes state that, at 10:30 AM, Mr. MacMillan “declined to speak to legal aid”. He said the offer would have been made by Constable Zame. He could not recall the precise words used by Constable Zame or Mr. MacMillan, or whether any reason was provided by Mr. MacMillan for declining the offer. He confirmed that the wording of his note conveys that Mr. MacMillan was offered duty counsel by Constable Zame.

[46] During Constable Zame’s cross-examination, Defence counsel suggested that he forgot to ask whether Mr. MacMillan wanted to speak to a lawyer when he initially read the rights to counsel at 10:19 AM, which is why he asked the question at 10:30 AM. Constable Zame insisted that he asked twice, and that Mr. MacMillan gave the same answer twice, namely that he had spoken to his lawyer while with the CBSA. Earlier in his testimony, Constable Zame had testified that Mr. MacMillan said, at 10:19 AM, that he already spoke to counsel (not to “his lawyer”) while with the CBSA.

[47] Constable Zame initially asserted that he was 100% sure of the accuracy of his recollection, despite the incompleteness of his notes. However, he acknowledged that when he testified during the preliminary inquiry in this case, he was unsure whether he had asked Mr. MacMillan the pertinent question at 10:19 AM. He ultimately admitted, during his cross-examination, that it was possible he missed something when reading Mr. MacMillan his Charter rights at 10:19 AM.

[48] Based on the totality of the evidence before me, I conclude, on a balance of probabilities, that when Mr. MacMillan was arrested at 10:19 AM, Constable Zame advised him of the reason for his arrest, namely the alleged offence of importing a controlled substance under the CDSA. He was also immediately advised of his right to retain and instruct counsel without delay, to call any lawyer of his choosing, and to obtain free advice from a legal aid lawyer. He was asked whether he understood these rights and he confirmed that he did.

[49] I further find that Mr. MacMillan was also cautioned about his right to remain silent and right against self-incrimination, and he received a secondary caution as well. He was not, however, offered an immediate opportunity to speak to a lawyer. He was not asked, at 10:19 AM, whether he wished to call a lawyer. Constable Zame asked him, at 10:30 AM, whether he wished to speak to duty counsel and he declined but stated that he did not want to speak without his lawyer.

[50] I have no concerns about Constable Zame’s or Constable Ferguson’s truthfulness. I found them to be credible witnesses. I have no reason to believe that they deliberately deceived the court. I do, however, have concerns about the accuracy of their recollections and I am not persuaded that their testimony is reliable. There was a significant inconsistency in Constable Zame’s testimony during the voir dire, and differences between his testimony at the preliminary inquiry and what he stated during the voir dire. Constable Ferguson had little independent recall of the events and his notes were of limited assistance.

[51] Constable Zame’s slip when he testified at the voir dire exemplifies the ease with which an inadvertent oversight can occur when reading rights to counsel, even when relying on a script. Constable Zame was a new recruit at the time of the incident. Mr. MacMillan was his first arrest. His susceptibility to error, as an inexperienced officer, is confirmed by the need to have Constable Ferguson present as his field coach. I have no doubt that Constable Ferguson was attempting to be diligent in monitoring Constable Zame when he observed the arrest, but he is not immune to oversight. I find, on a balance of probabilities, that he failed to notice the missed question (“Do you wish to call a lawyer?”).

[52] The officers’ testimony about notetaking generally and about their own notes is revealing. Constable Zame had very recently been trained on the importance of writing down an arrestee’s response to the question of whether he wants to exercise his right to counsel. Constable Ferguson stressed the importance of verbatim notetaking with respect to an arrestee’s answers to questions about rights to counsel. Yet neither of these officers made a note of Mr. MacMillan declining to speak to counsel at 10:19 AM. The absence of those notes in this context constitutes compelling circumstantial evidence that the question was not asked and answered at that time.

[53] Furthermore, I find it improbable that Constable Zame would have asked Mr. MacMillan a second time, at 10:30 AM, whether he wanted to speak to counsel, if he had already made that offer 11 minutes earlier and received a negative response from Mr. MacMillan. He testified that he did not want to push Mr. MacMillan on the issue, so he is unlikely to have asked the question twice within such a short span of time.

[54] Constable Ferguson’s note at 10:30 AM and his testimony support a finding that only a call to duty counsel was offered to Mr. MacMillan at that time. Both officers’ notes and recollections confirm that Mr. MacMillan declined the offer. I find, based on the totality of the evidence (including statements later made by Mr. MacMillan and detailed below), that he declined to speak with duty counsel at 10:30 AM because he had already spoken to duty counsel while in the custody of the CBSA.

[55] I reject Constable Zame’s testimony that Mr. MacMillan was offered the opportunity to call any lawyer and responded that he had already spoken to “his lawyer”. It is improbable that Mr. MacMillan would have made such a statement, since he did not have a lawyer at that point and had only consulted with duty counsel. There is no verbatim note of what Mr. MacMillan said and neither officer had an independent recollection of the words that he used. Constable Zame was under the incorrect impression that J. Murphy was Mr. MacMillan’s lawyer, which may explain why he noted that Mr. MacMillan said he already spoke to his lawyer while with the CBSA.

[56] Neither officer said anything to Mr. MacMillan at that time about the gravity of the criminal charge he was now facing and the potential inadequacy of the advice he received from duty counsel when he was charged with the less serious offence of smuggling under the Customs Act. Constable Zame testified that he had already made it clear to Mr. MacMillan that he was now in a much worse situation when he arrested him for importation of a controlled substance. Constable Zame also testified, however, that he was satisfied that Mr. MacMillan’s prior conversation with J. Murphy was enough for him to have exercised his right to counsel now that he was in the custody of the RCMP.

[57] Constable Zame was asked by Defence Counsel what he understood Mr. MacMillan to mean when Mr. McMillan said he did not want to speak without his lawyer. Constable Zame responded, “I don’t know” and added that he had given Mr. MacMillan an opportunity to speak to a lawyer, so when Mr. MacMillan made that statement, he just “left it at that” because he “didn’t want to push him or anything”. Constable Ferguson had no recollection of Mr. MacMillan making this statement.

[58] When Mr. MacMillan stated that he did not want to say anything without his lawyer, Constable Zame did nothing to facilitate his ability to contact a lawyer of his choosing. At no time did any RCMP officer offer Mr. MacMillan a directory of defence counsel, a phone book, access to the internet or any such resource to facilitate his ability to select and contact a lawyer. The evidence establishes that a list of defence counsel and phone book were available in the RCMP cells area.

[59] Mr. MacMillan was brought into an interview room at 12:07 PM, where he provided a recorded statement to Constables Zame and Parray. The interview lasted about 50 minutes. Constable Ferguson observed and listened from outside the interview room. He testified that he coached Constable Zame that, if at any time Mr. MacMillan wanted to discontinue the interview because he wanted to speak to duty counsel or to a specific lawyer, that request should be respected. Constable Ferguson testified that he did not interrupt the interview at any point because he was satisfied that it was conducted properly.

[60] The transcript of the police interview shows that the following exchanges occurred between Mr. MacMillan (NM), Constable Zame (BZ) and Constable Parray (MP):

BZ: Okay. Now did you pack the bottles yourself? You bought the bottles? You? Where where did you get the bottles essentially?

NM: Should I be saying anything till I get a lawyer?

BZ: It it’s up to you. Totally up to you man.

NM: Like this is fucking serious eh?

BZ: Well some ya ya I’ll definitely say so this is a lot of cocaine. I just want to hear your side of it. That’s all. Like I just want to know like

NM: I don’t want to like

BZ: You’re not forced to say anything by any means

NM: Ya

BZ: You’re not. I just like I said. I just want to hear your side of the story

NM: I don’t want to fuck myself over if like the lawyer said well why did you say this. They can use. At like I don’t know what to do here.

BZ: Okay. It’s like I said its totally up to you brother. I’m not gonna force you to do anything by any means

BZ: And if you just tell me what what happened you know

NM: Can you hear like my side when the like a lawyer’s present or

BZ: Absolutely ya. Ya it’s it’s like I said

NM: (indiscernible)

BZ: It’s it’s (indiscernible)

NM: Like go over stuff with them and then they say it’s okay and then you get it from them or

BZ: If if you like I’d rather hear it from you because you’re the one who is involved

NM: Ya

BZ: Right? The reason why like your lawyer wasn’t there with you

NM: Ya

BZ: All this sort of stuff happened. You’re the one that was involved with it. So it’s it would be better if I hear it from you but if you want to wait that’s totally your call

NM: Even though this is

BZ: I I will definitely not

NM: Pretty serious. I think I would just rather

BZ: I will not force anything on you by any means

NM: Okay good cause ya I don’t ya

BZ: No I will not force anything on you

NM: Okay

BZ: But it would be best if I hear it straight from you because you were the one that was involved in it right

NM: Ya

NM: Like something like this absolutely goes to court, no?

BZ: Ya

NM: Ya no. I don’t think I want to say anything (indiscernible)

BZ: Okay. Do you want to talk about anything?

NM: No

[61] In between these exchanges, and after the last exchange listed above, Mr. MacMillan answered questions on a variety of topics and made numerous statements about such things as his family and financial circumstances, his job, his hourly wage, how he paid for his flight to Colombia, why his passport was issued just days prior to his departure, and how he spent his time while in Colombia. Mid-way through the interview, he was talking about how rum is his drink of choice and Constable Parray asked him where he got the rum bottles that he brought back from Colombia. The following exchange ensued:

NM: That’s where I’m gonna stop man

MP: Ya?

NM: Ya

MP: And you know what fair enough

NM: Ya I don’t want to fuck myself over

MP: And we get it. You you got advice from your lawyer and I I trust defence counsel

NM: Ya

MP: Very

NM: He said literally said, you don’t have to say anything to them

MP: No you don’t and that is with well within your right. Our job is to try to figure out exactly piecing together facts

NM: Ya

MP: Right. And just presenting those facts and I don’t want you to make it seem like we’re trying to trick you into doing anything. Everything is gonna be as open as possible. Um you’re uncomfortable at any time. You’re well within your rights to say no

NM: Mhmm

MP: Right and to stop. And ah the events advice that your defence lawyer gave I trust that advice

NM: Ya

NM: The lawyer (indiscernible) said do not answer any questions based on that though

BZ: Fair enough totally understand that. But like I said I we just want to just piece the puzzle together. That’s all.

[62] Further questioning ensued about Mr. MacMillan’s activities in Colombia, where he stayed while there, and how he planned to get home from the airport. Mr. MacMillan answered the questions, then the following discussion occurred:

MP: Alright well is there anything you can tell us? Is there anything you’d you’d like to tell us? Um you you look like there’s there’s something that’s on your mind and you want to say it?

NM: I honestly just I don’t like under I don’t know what the situation of like so I’m just gonna listen to the lawyer because

MP: And fair enough

NM: That’s the lawyer

MP: And that’s that’s a little bit of our fault. I’m gonna take you um give you some some I’ll explain it to you. It’s um first of all is there any questions about what’s gonna happened from here go moving forward or

NM: Yes, so what happens here moving forward?

MP: I guess I walked right into that question huh? Um well there’s what’s gonna happen is you’re gonna be put in front of a a Judge

NM: Okay

MP: Or Justice um as soon as possible. As soon as practical

NM: Okay

MP: Practical practical as the law says. Which is gonna be soon

NM: Okay

MP: It’s gonna be at Brampton Court House

NM: Okay

MP: And ah you can at that point again contact your solicitor and that’s

NM: Mhmm

MP: You know your solicitor’s advice is is good advice

NM: Mhmm

MP: Um and from there it will be decided as to what’s gonna what’s gonna happen in terms of um release or being held

NM: In custody

MP: Right and we’ll be doing our best on our end to to continue on with an investigation

MP: Um your lawyer’s advice not to talk, again I’ll say it for the fifth time, good advice

NM: Mhmm

MP: Um but if ah if you have anything you’d like to say um then

NM: Well after

MP: (indiscernible)

NM: I speak with him more

MP: Okay and and

NM: (indiscernible) more

MP: When I know you briefly spoke with the lawyer

NM: Ya

MP: And um you got that that advice. And you don’t have to have the lawyer present here. I know I know in T.V drama’s and on the on the T.V show it’s always an adversarial thing um we’re sitting across and and clearly you. It’s not like that at all. Um lawyers don’t need to be present in the room in in Canada

NM: Okay

MP: As long as you understand their their advice

NM: Ya

MP: Then then that’s more than than sufficient in the (indiscernible)

NM: Okay

MP: And ah you can tell us anything you feel is necessary

NM: Mhmm

MP: To tell us. Um again not saying that you

NM: Well after I speak with the lawyer if he or she says like ya you can tell them this and that like I’ll let you guys know

MP: Okay and so would that be means that you are open at this point for us um contacting you at a different date? For another statement after you’ve had the chance to speak with

NM: Ya correct

MP: A lawyer

NM: Ya

MP: Um now bearing that in mind

NM: Mhmm

MP: We have again Duty Counsel available. I know you said no

NM: Mhmm

MP: Again um but Duty Counsel they’re fully competent lawyers and um we can put you on the phone with them right now

NM: Ya

MP: And you can get some advice. You could take your time, speak with them and ah explain to them your story. It would be a hundred percent in private

MP: And then we can come back here and it will make it more convenient for you

NM: That wouldn’t be the same lawyer that I’d be taking to court though right?

MP: Ah it it’s entirely up to you how you how you choose to structure you’re your defence

NM: Ya

MP: That’s your within your rights to to to choose a lawyer of your of your choosing

NM: Ya. Think I’m gonna look and choose one first before doing that

MP: Okay. Um so it’s not that it you would not like to speak with Duty Counsel apparently then?

NM: No

MP: No?

NM: That’s who I just spoke with before right?

MP: Ya and um

NM: Ya

MP: We we mentioned it briefly your jeopardy has changed

NM: Ya

MP: So um informing Duty Counsel again

NM: Mhmm

MP: And they might give you different advice. I can’t say they will. But it’s something that they may they may. The jeopardy has changed

NM: Mhmm

MP: Right you’re not dealing with the CBSA anymore you’re dealing with the Police

NM: Mhmm

MP: Um so again I I would be more than happy to to facilitate that phone call for you and

NM: You know I’ll just wait until I contact a lawyer that I’ve looked up

[63] The interview continued. Mr. MacMillan was questioned and talked about his time in the military, prior travel he had done, his time in Colombia and how much he paid for the bottles of rum that he purchased there. When asked whether he bought them in a market or a convenience store, he responded, “This is what I want to go over with the lawyer.” He did not answer that question.

[64] Mr. MacMillan answered other questions about his child support payments, his relationship with his ex-wife, his travel plans and arrangements, how he saved for the trips he made, whether anyone helped to pay for his trip to Colombia, and previous alcohol that he brought into Canada after travelling abroad. He also answered questions about past and present drug use, including cocaine, ecstasy and marijuana, about his friends’ drug use, his knowledge of the cost of cocaine, how it feels to use cocaine, and whether he was aware that Colombia is a destination that is “huge for cocaine”. He was asked whether he was aware that cocaine could have been in the bottle when he brought it back from Colombia and he answered “no”. He then responded to questions about his exposure to cocaine use by others while in Colombia and about what he intended to do with the rum bottles that he brought back from Colombia.

[65] Toward the end of the interview, Constable Parray asked whether there was anything else he wanted to talk about. Mr. MacMillan responded, “Like I said, once I speak with the lawyer and stuff I’ll be more than happy to give you guys a call back and go over whatever he advises me to do.”

[66] Mr. MacMillan did not speak with a lawyer at any point while in RCMP custody.

[67] Constable Parray testified that he made it clear during the interview that Mr. MacMillan had the right to choose whichever lawyer he wanted to consult, and the police would facilitate contacting that lawyer immediately. He said he understood that Mr. MacMillan declined this offer and expressed a preference to select a lawyer on his own at a later time, and then get back to the police to provide another statement after consulting with counsel.

[68] During his cross-examination, Constable Parray insisted that he offered to facilitate a phone call not only to duty counsel but also to any lawyer of Mr. MacMillan’s choosing. However, when he testified at the preliminary inquiry in this matter, he said, “I facilitated the access to duty counsel, which was all I could do at the time”. When questioned about this prior inconsistent statement, Constable Parray stated that, upon review of the interview transcript, he believed that he gave Mr. MacMillan the opportunity to contact a lawyer of his choosing. He testified that he would have paused the interview to facilitate contact with any lawyer had Mr. MacMillan asked, but Mr. MacMillan stated that he would look up a lawyer himself later and get back to the police, so they continued to question him.

ALLEGED CHARTER VIOLATIONS

Onus and Standard of Proof

[69] The onus to establish that Mr. MacMillan’s Charter rights were violated is with the Defence. The standard of proof is on a balance of probabilities. If a breach of a Charter right is demonstrated, the Defence also has the onus to establish that the statements made by Mr. MacMillan and/or the drugs seized from his luggage should be excluded pursuant to s. 24(2) of the Charter: R. v. Peters, 2016 ONSC 2230, at para. 31, aff’d 2018 ONCA 493.

Summary of Jurisprudence re: Detention at International Border

[70] A critical issue in Mr. MacMillan’s Charter application is whether he was detained in a constitutional sense by the CBSA prior to his arrest. If he was, then a violation of his rights guaranteed by ss. 10(a) and 10(b) of the Charter has been established. A finding of detention is also a prerequisite to establishing a breach of s. 7 of the Charter because the right to remain silent and the protection against self-incrimination is only afforded to persons who are detained by state authorities: R. v. Herbert, 1990 CanLII 118 (SCC); Jones, at para. 36; R. v. Wellington, 2016 ONSC 6475, at para. 36. Furthermore, Mr. MacMillan’s argument under s. 8 of the Charter rests on a finding that he was entitled to be advised of and to exercise his rights to counsel before his luggage was searched, which in turn rests on a finding of detention.

[71] On the issue of detention, I adopt the following helpful summary of the jurisprudence offered by my colleague Dawson J. in Peters,

[35] The analysis of whether the accused was detained prior to his arrest is affected by the fact that these events occurred in the context of crossing the border. It is well established that in other contexts detention for Charter purposes arises where an individual’s liberty interest is subject to a significant physical or psychological restraint: [citations omitted]. …

[36] The difficulty in applying this analysis at the border is that all travellers entering the country are subjected to restrictions on their freedom of movement and they are required by the Customs Act, R.S.C., 1985, c.1, (2nd Supp.) to present themselves and their goods to a customs officer. Their goods are subject to inspection and they are under a statutory obligation to answer all questions truthfully. They are not free to leave the customs area until they have complied with and satisfied the requirements of the Customs Act and other statutory provisions, such as the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which may apply at the border. Travellers expect to have their liberty and privacy interests impinged upon when crossing the border.

[37] In recognition of the reality of the need for the country to protect the integrity of its borders a significant body of case law has developed which establishes that constitutional issues must often be analyzed differently at the border than they would be in the case of an inland encounter between an individual and the authorities. These cases recognize that many circumstances which would constitute detention in an inland situation raise no constitutional concerns when crossing the border: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495; Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053; R. v. Hudson (2005), 2005 CanLII 47233 (ON CA), 77 O.R. (3d) 561 (C.A.); R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.). They also recognize that due to an individual’s reduced expectation of privacy when crossing a border many intrusions which would constitute a search in an inland context do not when they occur at the border.

[38] A comprehensive summary of the case law I have been referring to was undertaken by my colleague Hill J. in R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168, at para. 75. That case, like this one, involved a situation where there was a lookout for the accused on the CBSA computer. The cases summarized establish that routine questioning and searches by customs officials raise no constitutional issues. This includes frisks and pat downs. Routine screening does not engage a coercive or adversarial relationship between the traveller and customs officials. Nor does the fact that the traveller has been flagged as a target or a lookout for drugs.

[40] Nonetheless, these cases also establish that detention for constitutional purposes may be found to exist prior to an actual arrest: R. v. Kwok (1986), 1986 CanLII 4726 (ON CA), 31 C.C.C. (3d) 196 (C.A.), at pp. 206-07; R. v. Sahota, [2009] O.J. No. 3519 (S.C.J.). Several authorities suggest that it is not until more intrusive and non-routine measures are taken during the customs and immigration process that such a finding will be supportable: R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, 45 C.C.C. (3d) 46 (S.C.C.); Jones, at paras. 40, 42; Sahota, at paras. 47-48; R. v. Smith, 2004 CanLII 46666 (ON SC), [2004] O.J. No. 4979, 26 C.R. (6th) 375 (S.C.J.); Darlington, para. 75, sub. para. (6).

[41] In Jones, at para. 42, Doherty J.A. held:

[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.

[72] Dawson J. went on to consider the test that he should apply to determine detention in the circumstances of the case before him. He held, at para. 50:

[W]hat is required is an objective assessment taking into account the training and experience of the officer. 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: Jones, at para. 42; Sahota, at para. 48. In a customs context, where travellers must answer routine questions, I would think that threshold would certainly be crossed once, on an objective assessment taking the officer’s training and experience into account, grounds to arrest existed. That was the situation in Sahota. In some cases, it may be met before that point depending on an assessment of all of the circumstances.

[73] The Court of Appeal for Ontario upheld Dawson J.’s decision in Peters, stating that he applied the correct analysis to determine detention in an international border context, namely “whether the border officer has 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” (at para. 8). The Court of Appeal held that, where the officer has made that decision, “the individual may be detained, even when subject to that routine questioning” (at para. 8). See also Jones, at para. 42. Furthermore, the Court of Appeal confirmed the propriety of considering the objective reasonableness of the border officer’s subjective belief, through the lens of a reasonable person standing in the shoes of the border officer (at para. 9).

[74] It is important to distinguish between the test for detention in a customs context and the test for grounds for an arrest: Peters (ONCA) at para. 10. In determining whether a traveller is detained, the test is not whether the border services officer had reasonable grounds for arrest. As stated by my colleague Woollcombe J. in R. v. Shearer (unreported decision dated November 13, 2018, Brampton SCJ 1704/16), at para. 33, “individuals may be detained on a belief by officers that is short of reasonable grounds to arrest.” See also Wellington, at para. 61.

Summary of Jurisprudence re: Rights to Counsel

[75] The following principles have been articulated by the Supreme Court of Canada in numerous cases, including R. v. Manninnen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3rd) 385; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; Prosper v. The Queen (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3rd) 353; R. v. Willier, 2010 SCC 37; and R. v. Sinclair, 2010 SCC 35:

a) The purpose of s. 10(b) of the Charter is to provide a detainee with an opportunity to obtain legal advice relevant to his situation. Chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to speak to the authorities or to remain silent.

b) Section 10(b) has two components. The informational component requires that a detainee be advised of his or her right to counsel and of the existence and availability of legal aid and duty counsel. The implementational component requires that the detainee be given an opportunity to exercise his or her right to counsel.

c) Implied in the implementational component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. However, if a detainee does not invoke the right to counsel or is not reasonably diligent in exercising it, then the correlative duties of the police to provide a reasonable opportunity and to refrain from eliciting evidence do not arise.

d) Once advised of the right to counsel, the detainee may waive the right, but the standard for waiver is high, especially where the alleged waiver is implicit. The validity of a waiver will only be recognized where there is an evidentiary record clearly showing that the detainee fully understood his or her s. 10(b) rights and the means by which they could be exercised, as well as the effect or consequences of waiving those protections.

e) Section 10(b) does not mandate the presence of defence counsel throughout a police interview or other custodial interrogation. In most cases, an initial warning, coupled with an opportunity to consult with counsel when the detainee invokes the right, satisfies the Charter. However, there are circumstances that trigger an obligation on the police to give the detainee an additional opportunity to receive advice from counsel, including where there is a change in the jeopardy facing the detainee.

[76] It is well established in the jurisprudence that s. 10(b) includes not only the right to retain and instruct counsel, but also the right to retain and instruct counsel of the detainee’s choice: R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518 (Ont. C.A.); R. v. Kumarasamy (unreported decision dated January 21, 2002, Brampton SCJ 5378/01), at para. 22; Willier, at para. 24. Where that right is invoked, the police must facilitate contact with a lawyer of the detainee’s choosing and hold off on questioning or otherwise attempting to elicit evidence from the detainee: R. v. Jhite, 2021 ONSC 3036, at para. 28. It is not sufficient, in those circumstances, for the police to offer a consultation with duty counsel: Kumarasamy, at paras. 25, 29 and 30. The police cannot mislead the detainee by suggesting that they do not have the option of waiting for their preferred lawyer or that their only option is speaking with duty counsel: Jhite at paras. 43, 45-46. Before the option of duty counsel is presented to a detainee as the only option, it is incumbent on the police to first afford the detainee a reasonable opportunity to contact counsel of their choosing: R. v. N.(N.), 2014 ONCJ 344, at para. 37.

ANALYSIS OF CHARTER ISSUES

Positions of the Parties on the Issue of Detention

[77] Mr. MacMillan argues that he was detained (in a constitutional sense) in the CBSA secondary inspection area long before his arrest. He asserts that he became the subject of a criminal investigation and was detained as soon as BSO Jung saw the coding on his E311 card, which identified him as a contraband target. Alternatively, he argues that he became the subject of a criminal investigation and was detained once BSO Jung queried his name in the database, reviewed the information in the Target Synopsis, and noted that he was pacing and breathing heavily. He argues that BSO Jung downplayed the extent of his subjective suspicion and should not be believed.

[78] Mr. MacMillan argues that the intensive search conducted by BSO Jung was goal oriented and focussed on locating narcotics strongly suspected to be concealed in his possession. BSO Jung conducted the search with the knowledge that, if narcotics were found, Mr. MacMillan would almost certainly face criminal charges and prosecution, rather than a prosecution for an offence under the Customs Act. In the circumstances, Mr. MacMillan submits that the search had a uniquely criminal investigatory purpose and no customs purpose. He argues that the search was based on a strong and particularized suspicion that he was engaging in specific unlawful conduct, namely concealing narcotics within his luggage to bring the drugs into Canada. He submits that he should have been cautioned and given his rights to counsel by BSO Jung before any questioning or search of his goods occurred.

[79] Mr. MacMillan argues that he was deprived of his constitutional right to remain silent guaranteed by s. 7 of the Charter, his rights under s. 10 of the Charter to be promptly informed of the reason for his detention and to consult with counsel without delay, and his right under s. 8 of the Charter to be free from unreasonable search and seizure. He seeks an order excluding the cocaine seized by the CBSA and all the statements he made to BSO Jung and to the RCMP officers based on these alleged Charter violations.

[80] The Crown takes the position that a routine progressive examination was performed in the secondary inspection area of the airport and that Mr. MacMillan was not detained (in a constitutional sense) prior to his arrest. The Crown argues that his rights guaranteed by ss. 7, 8 and 10(a) and 10(b) of the Charter were not infringed.

[81] The Crown concedes that, if the court finds Mr. MacMillan was detained prior to the NIK swab on the contents of the bottle, then any statements made to BSO Jung after the point of detention, without the benefit of rights to counsel and a caution regarding self-incrimination, should be excluded from evidence pursuant to s. 24(2) of the Charter. However, the Crown argues that all prior statements, the cocaine, and the subsequent statements made to the RCMP should nevertheless be admitted, even if a Charter breach is found.

At what point was Mr. MacMillan detained?

[82] In determining the timing of Mr. MacMillan’s detention by the CBSA, the question for me answer is whether a reasonable person in the position of BSO Jung would have concluded, at some point prior to the positive NIK swab of the contents of the second unopened rum bottle, that there was such a strong particularized suspicion connecting Mr. MacMillan to a specific offence that the questioning and customs examination had changed from one of routine to a focused investigation of the offence.

[83] The mere fact that Mr. MacMillan’s E311 customs declaration card was coded in a way that identified him as a contraband target is insufficient to make a finding of detention from the outset of his presentation at BSO Jung’s counter: Peters (ONSC), para.38. When BSO Jung saw the code, he did not know whether Mr. MacMillan was flagged as a lookout or targeted by the National Targeting Centre because lookouts and targets receive the same coding. Moreover, the code provided him with no information about the nature of the suspected contraband. He needed to consult the ICES database to obtain that information. He could not reasonably have formed a particularized suspicion at that point in time. Given his experience with previous targeted travellers, he could not reasonably have formed a strong suspicion even of general contraband smuggling.

[84] BSO Jung began his interaction with Mr. MacMillan by asking three mandatory baggage questions that are put to all travellers referred to the secondary inspection area. He then asked a series of standard exploratory questions relating to Mr. MacMillan’s employment, reasons for travel, time away, etc. The inquiry was general and typical of the questions that would be asked of any traveller referred for any reason to the secondary inspection area. BSO Jung was not conducting a focused inquiry relating to a suspected specific offence. Mr. MacMillan was not detained, in a constitutional sense, while being asked these routine questions.

[85] Defence counsel argues that the CBSA’s policy and practice of intentionally hiding from targeted travellers the fact that they are the subject of a target in and of itself demonstrates that a strong and particularized suspicion exists with respect to such travellers. I disagree. There is no evidence before me of the rationale for the policy, which could be motivated by any number of reasons, including operational efficiency and the safety of border services officers who might otherwise be confronted with irate travellers incensed at being the subject of what they believe to be an unwarranted target.

[86] After completing the routine questioning of Mr. MacMillan, BSO Jung queried his name in the ICES database and reviewed the Target Synopsis. It provided him with several indicators that were meaningless on their own, but together provided clues that Mr. MacMillan might be engaged in smuggling narcotics. BSO Jung observed that Mr. MacMillan appeared nervous. He treated Mr. MacMillan’s pacing and heavy breathing as additional indicators, but he nevertheless believed that he was unlikely to find drugs concealed in Mr. MacMillan’s luggage.

[87] I accept BSO Jung’s testimony on this point as credible. He had a generalized suspicion based on the Target Synopsis and his own observations. He knew it was possible that he would find narcotics if he conducted a progressive examination of Mr. MacMillan’s luggage. But he did not have any specific information that would link Mr. MacMillan to a particular offence. His suspicion was neither particularized nor strong.

[88] I find that his subjective belief was reasonable given the information available to him at that point, his years of experience dealing with targeted travellers, and the relative rarity of locating and seizing drugs from targeted travellers. Mr. MacMillan’s answers to his questions and the information in the Target Synopsis, combined with Mr. MacMillan’s ambiguous demeanour, were not sufficient to generate, in the mind of a reasonable person in BSO Jung’s position, a strong and particularized suspicion that Mr. MacMillan was smuggling narcotics into Canada.

[89] BSO Jung then performed an ion scan on one of the bottles and ran Mr. MacMillan’s suitcase through an x-ray machine. Any traveller entering Canada can reasonably expect that their luggage will be randomly searched, which may include an x-ray: Shearer, at para. 56; Darlington, at para. 75. BSO Jung’s decision to x-ray the luggage is not indicative of heightened scrutiny based on a particularized suspicion. It was simply a regular step taken by BSO Jung to fulfill his duties, using the tools available to him.

[90] The decision to perform an ion scan of an unopened bottle of rum constitutes evidence of a generalized suspicion of possible narcotics smuggling but it is not evidence of a particularized suspicion that Mr. MacMillan was connected to a specific offence. The x-ray and the first ion scan produced negative results, so BSO Jung’s generalized suspicion remained unconfirmed.

[91] I accept BSO Jung’s testimony that he still did not have a subjective belief, at that time, that drugs were likely to be found in the luggage. The fact that he told Mr. MacMillan to pack up the suitcase and moved on to examine the backpack suggests that he was not particularly suspicious or concerned about the suitcase or its contents. However, he needed to examine the contents of Mr. MacMillan’s second piece of luggage to fulfil his duties, in accordance with the instructions on the Target Synopsis. He was simply doing his job as a customs officer. His actions did not have a criminal purpose. Based on the results of his search up to that point, there was no objective reason for him to formulate a strong and particularized suspicion that Mr. MacMillan was smuggling narcotics.

[92] BSO Jung’s decision to perform an ion scan on another item located inside the backpack is similarly evidence of a generalized suspicion based on the information contained in the Target Synopsis. Had that ion scan been negative, the inspection might have ended there. The positive result of the ion scan of the coffee bag was, however, an indicator that prompted BSO Jung to progress in the intensity of his search. He proceeded to open the coffee bag.

[93] BSO Jung explained that the positive ion scan simply meant the surface of the coffee bag had come into contact with cocaine at some point. It did not mean that Mr. MacMillan had been in contact with cocaine and certainly did not mean that he was presently in possession of cocaine, either on his person on in his luggage. BSO Jung checked the contents of the coffee bag and found only coffee beans, so his suspicion remained unconfirmed and at a generalized level. This was objectively reasonable in the circumstances.

[94] He then ion scanned a mirror found in Mr. MacMillan’s toiletries and obtained a second positive result. This prompted him to question Mr. MacMillan about using cocaine while in Colombia. That question is not evidence of a move toward more intrusive scrutiny or of an adversarial approach toward Mr. MacMillan. Nor is it evidence that BSO Jung had formulated a strong and particularized suspicion that Mr. MacMillan was smuggling cocaine. On the contrary, he explained that he was giving Mr. MacMillan an opportunity to provide an explanation for the positive ion scans that did not involve smuggling or any other customs offence. He was, in his own words, trying to negate the indicators that were present. As the CBSA Enforcement Manual states, his duty was to confirm or mitigate the risk that was identified in the Target Synopsis. He could do this by building or by eliminating indicators. The question about using cocaine while in Colombia was asked for the purpose of eliminating indicators.

[95] When Mr. MacMillan stated that he had not used cocaine while in Colombia, BSO Jung decided to return to the liquor bottles in the suitcase to perform an ion scan on the second unopened bottle. This is evidence that his suspicion was heightened, because he returned to an item with which he had previously dispensed. He noticed that the contents of the bottle were cloudy, which was an additional indicator that objectively should have further heightened his suspicion. He performed an ion scan on the neck of the bottle and obtained a positive result.

[96] At that point, a reasonable person in BSO Jung’s position would have formed a strong and particularized suspicion that Mr. MacMillan was smuggling narcotics into Canada. He did not have grounds to arrest Mr. MacMillan, but he had reason for detention based on a strong and particularized suspicion that Mr. MacMillan was connected to a specific narcotics-smuggling offence.

[97] In addition to the indicators provided in the Target Synopsis and his own observations of Mr. MacMillan, BSO Jung had obtained positive ion scan results on three separate items contained in two different pieces of luggage that Mr. MacMillan had identified as his own. Based on Mr. MacMillan’s answer to his earlier question, he had no reason to believe that the results of the ion scans were attributable to Mr. MacMillan having used cocaine while in Colombia. The cloudy appearance of the liquid in the second unopened bottle was the culminating sign, among multiple indicators that collectively produced a reasonable basis for a strong and particularized suspicion that Mr. MacMillan was trying to smuggle cocaine into Canada.

[98] BSO Jung stated that, at that point, he felt he had “some reasonable grounds to suspect” that the contents of the bottle may be cocaine, so he decided to perform a NIK swab. I find that he had, or ought reasonably to have had, a strong and particularized suspicion that Mr. MacMillan was smuggling cocaine. I conclude that Mr. MacMillan was therefore detained at that point.

[99] BSO Jung then asked Mr. MacMillan where he purchased the bottle of rum. It matters not whether this was a routine question of the sort that he might have asked of any other traveller with alcohol in their luggage. Detention may be established by proving that a border officer’s conduct went beyond routine inspection and involved a more intrusive form of questioning, because that constitutes evidence of the existence of a strong and particularized suspicion of a specific offence. However, evidence of a shift to non-routine questioning is not a pre-requisite to a finding of detention. A person may be detained while being asked routine questions, provided that a reasonable basis for a sufficiently strong and particularized suspicion has been established: Jones, at para. 42; Peters (ONCA) at para. 8.

CBSA Violated Rights Guaranteed by ss. 7 and 10 of the Charter

[100] I have concluded that, when the ion scan of the bottle containing a cloudy liquid returned a positive result, BSO Jung had (or ought reasonably to have had) a strong and particularized suspicion that Mr. MacMillan was smuggling cocaine into Canada, even if he did not have reasonable grounds for an arrest. Mr. MacMillan was detained at that point and therefore should have been told the reason for his detention, read his rights to counsel, and cautioned about self-incrimination.

[101] BSO Jung was obligated to refrain from further questioning until Mr. MacMillan had an opportunity to exercise his right to counsel. The continued questioning therefore violated Mr. MacMillan’s rights under s. 7, 10(a) and 10(b) of the Charter.

Should evidence be excluded based on s. 24(2) of the Charter?

[102] Mr. MacMillan was asked only one question after the point at which he was detained and before he was arrested and given his rights to counsel. He was asked where he obtained the bottle that tested positive for cocaine. His answer to that question shall be excluded from the evidence at trial based on s. 24(2) of the Charter, and in accordance with the Crown’s concession.

[103] There is no Charter basis to exclude the earlier statements made by Mr. MacMillan to BSO Jung: Peters (ONSC) at para. 57. The utterances that he made before the ion scan of the second unopened bottle are admissible because he was not detained in a constitutional sense and was not, up until that point, entitled to counsel or protected against self-incrimination in his answers: Sahota, at para. 48.

[104] I agree with the Crown’s submission that the breach of Mr. Jung’s ss. 7 and 10 rights by the CBSA should not result in exclusion of evidence of the statements he later made to the RCMP. It is, however, unnecessary for me to delve into this issue because I have concluded, for other reasons outlined below, that the statements to the RCMP are inadmissible.

[105] There is no basis to exclude the narcotics seized from his luggage. The cocaine was not obtained “in a manner that infringed or denied” Mr. MacMillan’s ss. 7 and 10 Charter rights or freedoms, as required by s. 24(2). The seizure of the cocaine did not flow from the breach of his right to counsel or right against self-incrimination. The evidence that was obtained as a result of the breach (i.e., his answer to the final question) has been excluded. The improper question, and Mr. MacMillan’s answer to it, were unrelated to the discovery of the cocaine. BSO Jung would have performed the NIK swab on the contents of the second unopened bottle even if he had properly refrained from asking Mr. MacMillan any further questions.

Was there a breach of rights guarantee by s. 8 of the Charter?

[106] Mr. MacMillan has not established a breach of his rights guaranteed by s. 8 of the Charter. As an international traveller at a port of entry to Canada, he had a diminished expectation of privacy. BSO Jung was lawfully authorized to search his belongings under the Customs Act: Simmons; Sahota, at paras. 52-53. This includes performing x-rays of his luggage, ion scans on his belongings and NIK swabs on the contents of containers in his possession.

[107] The denial of s. 10 Charter rights can render an authorized Customs Act search unreasonable, particularly where the search is personal and may not have been conducted had the detainee been provided legal advice: Simmons; Sahota, at paras. 54 and 56. In this case, the discovery of the cocaine resulted from a search of Mr. MacMillan’s goods, not a search of his person. Moreover, had he been afforded the right to counsel, he nevertheless would not have had the option to refuse to have the bottle opened and tested, so the cocaine would have been discovered in any event. The vast majority of BSO Jung’s progressive examination was conducted in compliance with Mr. MacMillan’s constitutional rights. The ss.7 and 10 Charter breaches that resulted from the single inappropriate question after the point of his detention did not render the search unreasonable.

[108] Had I concluded that s. 8 of the Charter was violated in that Mr. MacMillan was not cautioned and advised of his right to counsel prior to the NIK swab being performed on the contents of the second unopened bottle, I would not have excluded the evidence of cocaine. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71, the Supreme Court of Canada set out the following three-factor test for determining whether evidence obtained as a result of a Charter breach should be excluded pursuant to s. 24(2):

When faced with an application for exclusion of evidence under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

[109] Any breach of s. 8 rights in this case was not very serious. BSO Jung was acting in good faith based on a reasonable understanding of his right to question travellers and conduct a search of their baggage under the Customs Act. The impact of any breach of Mr. MacMillan’s right to be free from an unreasonable search was minimal, because the cocaine would have been discovered in any event. Finally, the integrity of the justice system would not be served if the cocaine, which is essential Crown evidence, were excluded at trial. Society has a compelling interest in ensuring that this case be tried on its merits. Based on the above factors, I conclude that admitting the evidence would have no adverse effect on public confidence in the justice system.

Did the RCMP violate Mr. MacMillan’s right to counsel under s. 10(b)?

[110] Defence counsel argues that Mr. MacMillan’s right to counsel was undermined and infringed because the RCMP did not bring home to him the significance of the change in the jeopardy that was facing once he was charged with importation of a controlled substance under the CDSA. In particular, when Mr. MacMillan declined an offer to speak to duty counsel at 10:30 AM on the basis that he had previously done so while in CBSA custody, the RCMP officers did not – until mid-way through the subsequent police interview – explain to him that the legal advice he received in the context of a Customs Act charge might not be sufficient in the context of the new criminal charge that he was facing.

[111] I reject this argument. Constable Zame ensured, at the point of the RCMP arrest, that Mr. MacMillan was advised of the reason for his arrest, namely the alleged offence of importing a controlled substance into Canada contrary to the CDSA. In the circumstances of this case, that was sufficient to convey the change in Mr. MacMillan’s jeopardy.

[112] Constable Zame was aware that Mr. MacMillan had previously been informed of his rights to counsel and had been cautioned by the CBSA upon his arrest for smuggling prohibited goods under the Customs Act. Constable Zame was also aware that Mr. MacMillan had exercised his s. 10(b) rights by speaking with duty counsel while in the custody of the CBSA. No new facts had come to light (such as the discovery of additional narcotics in his luggage). Mr. MacMillan was aware that the importation charge related to the liquid cocaine found in the bottle in his suitcase. These were the same facts upon which the prior arrest had been made for smuggling. There was therefore no new information to share with him other than the fact that he was now facing a criminal prosecution.

[113] The potential consequences of the importing charge under the CDSA are significantly more serious than those that could result from a conviction for an offence under the Customs Act, so Constable Zame informed Mr. MacMillan a second time of his rights to counsel and cautioned him again, including a secondary caution, after making the arrest under the CDSA. There is no evidence before me that Mr. MacMillan did not understand the reason for his arrest by the RCMP. It was not incumbent on Constable Zame, as the arresting officer, to take further steps to ensure that Mr. MacMillan fully appreciated the significance of the change in his jeopardy. The RCMP’s obligation was to inform him of the reason for his arrest and to renew his rights to counsel, a second time, upon the change in jeopardy, which they did.

[114] However, for the reasons that follow, I have concluded that the RCMP failed to satisfy both the informational and the implementational components of s. 10(b) of the Charter. The police were under an obligation to ensure that Mr. MacMillan was aware of his right to consult a lawyer of his choosing without delay. They failed in that regard. They were also obligated to make reasonably diligent efforts to facilitate an opportunity for Mr. MacMillan to exercise his right to consult a lawyer of his choosing if he indicated a desire to do so. They failed in that regard as well. I reject the Crown’s submission that Mr. MacMillan expressly waived this right.

[115] Constable Zame’s delay between 10:19 AM and 10:30 AM in asking Mr. MacMillan whether he wanted to speak with a lawyer is not fatal to the Crown’s position on the Charter application because nothing significant occurred in the intervening 11 minutes. Mr. MacMillan was escorted through private corridors from the CBSA cells to the RCMP cell block. He did not make any statements to the RCMP officers and was not questioned by them during that walk.

[116] However, when Mr. MacMillan was asked whether he wanted to speak to lawyer at 10:30 AM, he was only offered an opportunity to speak with duty counsel. He was not offered an opportunity to consult with any other lawyer, even after he declined duty counsel and expressly stated that he did not want to speak without his lawyer.

[117] The Crown argues that Mr. MacMillan was not invoking his right to speak to a lawyer of his choosing, but rather was asking to have a lawyer of his choosing present during the police interview, which is not a request that the police were obligated to facilitate. Mr. MacMillan did not testify in the voir dire, so it is unclear whether he meant to convey that he wanted to have his chosen lawyer present during a police interview (a privilege not guaranteed as a Charter right) or that he wanted to consult his chosen lawyer prior to a police interview (a right guarantee by s. 10(b) of the Charter). His remarks could reasonably be interpreted either way. Constable Zame said he did not know what Mr. MacMillan meant and did not ask for clarification because he did not want to push Mr. MacMillan on the issue.

[118] The Crown argues that the Defence has failed to satisfy its onus of proving that Mr. MacMillan invoked his right to counsel because the evidence is ambiguous, and Mr. MacMillan did not testify to clarify his meaning. I disagree. Whatever Mr. MacMillan was thinking subjectively, the fact remains that his statement could reasonably be interpreted to mean that he wanted to speak to a different lawyer (not duty counsel) before making any statements to the police. Although Mr. MacMillan’s statement could also reasonably be interpreted differently, Constable Zame did not interpret it in the manner suggested by the Crown. Rather, he testified that he did not know what Mr. MacMillan meant when he said he did not want to speak without his lawyer. Constable Zame consciously chose to do nothing to clarify Mr. MacMillan’s request, which was unreasonable in the circumstances.

[119] The evidence establishes, on a balance of probabilities, that nothing was said by the RCMP to ensure that Mr. MacMillan understood he had the right to select and consult his own lawyer, and that such a consultation could be facilitated by the RCMP without delay. He was only offered the opportunity to speak with duty counsel. He was not made aware of the means by which he could consult different counsel. He was not provided with any readily available resources to enable him to select and contact a lawyer of his choosing. This should have been done before he was questioned by the police.

[120] I agree with the Crown’s submission that some of Mr. MacMillan’s statements during the subsequent police interview constitute musings about whether he should speak to counsel and do not amount to a request to do so. The transcript shows that he questions his own judgment, reflects on the advice that he was provided by duty counsel, and asks the RCMP whether he should be saying anything to them before retaining a lawyer. Those statements are not tantamount to requests to exercise his right to counsel.

[121] However, there are several statements made by Mr. MacMillan during the interview that clearly express his desire to obtain advice from a lawyer of his choosing before answering police questions, yet he was not afforded an opportunity to do so. The fact that he did not name a specific lawyer or did not even have a specific lawyer in mind, does not detract from the fact that he clearly invoked his right to speak to a lawyer of his choosing. It was incumbent on the police to refrain from questioning him and to take reasonable steps to facilitate the exercise of his right by providing him with available resources to select and contact a lawyer.

[122] The only offer made by the RCMP officers both prior to and during the interview was for Mr. MacMillan to contact duty counsel, with whom he had previously spoken. He was told by Constable Parray that he could structure his defence in court in any manner that he chose, including the selection of his preferred defence counsel to represent him. That is not the same thing as informing him of his right to speak with counsel of his choosing prior to making statements to the police.

[123] A review of the evidence, including the entire transcript of the police interview, leads to the inexorable conclusion that Mr. MacMillan was given the impression that duty counsel was his only option while in RCMP custody. In the circumstances, the fact that he declined duty counsel and expressed an intention to select and consult a lawyer after the interview was concluded cannot reasonably be taken as an unequivocal waiver of his s. 10(b) right.

[124] In the circumstances, I conclude that the RCMP violated Mr. MacMillan’s rights guaranteed by s. 10(b) of the Charter.

Should the statements to the RCMP be excluded based on s. 24(2)?

[125] The Crown concedes that, if I found the RCMP violated Mr. MacMillan’s rights to counsel, then his statements to the police should be excluded pursuant to s. 24(2) of the Charter. Based on that concession and the three factors in Grant, I conclude that the statements to the RCMP are inadmissible.

VOLUNTARINESS OF THE ACCUSED’S STATEMENTS

[126] At common law, inculpatory statements made by an accused to a person in a position of authority are inadmissible as evidence unless they are made voluntarily: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500. The definitive statement of this rule was made by the Privy Council in Ibrahim v. The King, [1914] A.C. 599, at p.609:

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.

[127] The standard of proof for the Crown’s onus of establishing that statements are voluntary is beyond a reasonable doubt: R. v. Brown, 2015 ONSC 3305, at para. 85.

[128] In Oickle, the Supreme Court of Canada clarified that, in determining voluntariness, the Court must consider all relevant factors, not just the existence or absence of explicit threats or promises. Relevant factors can include evidence of inhumane conditions or oppressive circumstances at the time of a confession (paras. 58-62), evidence of police trickery to obtain a confession (paras. 65-67), or evidence that the accused did not have an operating mind at the time that inculpatory statements were made (paras. 63-64).

[129] In this case, the parties agree that there were no promises, threats or other inducements made by the border services officers and that Mr. MacMillan had an operating mind. There is no evidence of any oppressive circumstances or trickery by the CBSA. The only issue for me to determine with respect to voluntariness is whether the statements made by Mr. MacMillan to the CBSA were involuntary by virtue of the fact that they were statutorily compelled.

[130] Subsection 11(1) of the Customs Act stipulates that every person arriving in Canada must present themselves to a border officer and “answer truthfully any questions asked by the officer in the performance of his or her duties”. Section 13 of the Act requires that any person stopped by a border officer while entering the country with goods must answer truthfully any question asked by the officer with respect to the goods and, if requested, must facilitate inspection of the goods. According to s. 160(1) of the Act, a contravention of either of these provisions constitutes an offence punishable by a fine of up to $50,000 and imprisonment for up to six months (if prosecuted as a summary conviction offence) or by a fine up to $500,000 and imprisonment for up to five years (if prosecuted as an indictable offence).

[131] BSO Jung testified that he has never tried to enforce the law by compelling an answer from a traveller or charging them with an offence for refusing to answer a question. He stated that when a traveller is not cooperative and does not answer his questions, he simply treats that as an indicator of possible wrongdoing. BSO Lagoutte gave similar evidence. However, at no time was Mr. MacMillan told by any CBSA officer that he did not have to answer questions.

[132] Mr. MacMillan did not testify during the voir dire, so there is no evidence before me of his knowledge of the Customs Act requirements or his state of mind. There is no evidence upon which I could determine whether he answered BSO Jung’s questions because he was aware of his statutory duty to do so, or because he feared prosecution if he refused, or for some other unrelated reason.

[133] Counsel were unable to provide me with any binding authority in which the issue of voluntariness of statements compelled by the Customs Act was directly addressed. It has been raised in several cases, but usually in the context of a Charter challenge: R. v. Harripersad, 2001 CanLII 28338 (ONSC); R. v. Ellis, 2009 ONCJ 319. In one instance the issue was raised in the context of the common law, but the case was ultimately decided on Charter grounds: Sahota, at paras. 24 and 33-34. In several cases, the voluntariness of statements made to border services officers has been decided without the issue of statutory compulsion being raised by the Defence: Sinclair, at paras. 3 and 30; R. v. Wiliams, 2015 ONSC 4182; R. v. Baptiste, 2010 ONSC 4465.

[134] The Crown argues that the issue has not been raised in other customs cases because there is binding and long-standing authority in the context of statements made to police under compulsion of provincial motor vehicle legislation, which directs that such statements are voluntary. The Crown cites Walker v. The King, 1939 CanLII 2 (SCC), [1939] S.C.R. 214; Marshall v. The Queen (1960), 1960 CanLII 18 (SCC), 129 C.C.C. 232; R. v. Slopek (1971), 1974 CanLII 1553 (ON CA), 21 C.C.C. (2d) 362 (Ont. C.A.); and R. v. Otto, 2019 ONSC 3725, at para. 36.

[135] Mr. MacMillan relies on the decision of R. v. White, 1999 CanLII 689 (SCC), [1999] 2 R.C.S. 417, a case in which the Supreme Court of Canada found that statements made by an accused to a police officer after a motor vehicle accident were made under compulsion of s. 61 of the British Columbia Motor Vehicle Act and were therefore inadmissible in a criminal proceeding against her. The Supreme Court did not arrive at its conclusion based on the common law, but rather found that the admission of the statements violated the principle against self-incrimination protected by s. 7 of the Charter. The Court added that the principle against self-incrimination does not provide absolute protection for an accused against all uses of information that has been compelled by statute.

[136] The Crown submits that Mr. MacMillan’s argument must fail because he adduced no evidence to establish that he was aware of the requirements in ss. 11 and 13 of the Customs Act, or that he felt compelled or was influenced by those statutory provisions to answers the questions asked of him by BSO Jung. The Crown notes that in White, the Supreme Court ruled that the accused had the onus of proving that she made her statements to the police based on an honest and reasonably held belief that she was required by law to do so. However, as noted above, the accused in White was seeking to have her statements excluded on the basis that their admission into evidence would violate her s. 7 Charter rights. An accused who raises a Charter challenge to the admissibility of evidence bears the onus of establishing an infringement of her rights, so the accused in White bore the onus of proving that her statements were compelled. In this case, Mr. MacMillan is not relying on s. 7 of the Charter and the onus of proving the voluntariness of his statements rests with the Crown.

[137] The decision in White does not assist me because the Court in White did not address the specific argument raised by the Defence in this case. The argument was addressed in the Marshall decision, where the Supreme Court of Canada held that statements made to the police under compulsion of The Highway Traffic Act of Ontario were not by reason of that fact alone rendered inadmissible in a criminal proceeding on the basis that they were involuntary.

[138] The decision of the Court of Appeal for Ontario in Slopek is also on point and is particularly instructive. In that case, the Crown was appealing from an acquittal of the accused on a charge of failing to stop his vehicle after an accident. The Crown argued that the trial judge erred in law by excluding evidence of an inculpatory statement made by the accused to the investigating officer. The trial judge had concluded that the statement was not induced by hope of advantage or fear of prejudice inspired by a person in authority but was nevertheless involuntary because the accused was under a statutory obligation to make a statement to the police under threat of penalty. The Court of Appeal allowed the appeal, set aside the verdict of acquittal and ordered a new trial on the basis that the accused’s statement was voluntary and should have been admitted as evidence.

[139] In Slopek, the Court of Appeal traces the origins of the common law rule back to Ibrahim and clearly articulates (at pp.364-365) that, in assessing the voluntariness of statements made to a person in authority, the term “voluntary” is used “in a special sense”, namely in the sense that the statement has not been obtained by promises or threats emanating from a person in authority. The fact that a statement is statutorily compelled is therefore irrelevant to the inquiry.

[140] Slopek was decided by the Court of Appeal in 1971. I have found nothing in subsequent Supreme Court of Canada decisions that would suggest it is no longer good law. The need to consider all relevant factors, as dictated by the Supreme Court in Oickle, does not fundamentally change the focus of the inquiry on the actions of persons in authority.

[141] The Slopek case constitutes binding authority that is dispositive of the issue before me. I find that the statements made by Mr. MacMillan to the CBSA were voluntary, regardless of whether he was influenced in making those statements by an awareness of his statutory obligation to answer BSO Jung’s questions truthfully.

[142] Subject to the ruling I made above regarding the exclusion of Mr. MacMillan’s answer to the final question asked by BSO Jung, the statements made to the CBSA are admissible as evidence at trial.

Petersen J.

Released: July 16, 2021

COURT FILE NO.: CR-20-192 DATE: 2021 07 16

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

NATHAN DAVID KERTCHER MACMILLAN

RULING ON ADMISSIBILITY OF EVIDENCE

Petersen J.

Released: July 16, 2021