COURT FILE NO.: 2072/20
DATE: 2021/07/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Branislav Barac
Applicant
Stephane Marinier, for the Crown/Respondent
Alan D. Gold, Laura Metcalfe & Ellen Williams for the Applicant
HEARD: June 7, 8, 9, 10, 11 & July 5, 6, 7, 2021
REASONS FOR DECISION
GEORGE J.
INTRODUCTION
[1] The Applicant – a Canadian citizen - is a truck driver who, on May 2, 2019, was subject to a secondary examination at the border crossing that connects Sarnia, Ontario and Port Huron, Michigan. In the cab of this truck, officers of the Canadian Border Service Agency (“CBSA”) found methamphetamine and a large sum of cash. It is alleged that he attempted to transport into Canada 18.45 kg of methamphetamine – found inside the upper bunk unit of his truck’s cab, and 6.6 kg of methamphetamine, located in an interior wall – as well as $126,000.00 in USD cash.
[2] He seeks a finding that his rights under ss. 7, 8, 9, 10(a) and 10(b) of the Charter were violated. While he seeks to have excluded all seized evidence, no submissions were made in respect of s. 24(2). While it is typical, at least in my experience, to hear argument on the alleged violation and remedy at the same time, this was a fair way to proceed so that, should I ultimately decide in the Applicant’s favour, counsel can then tailor their submissions accordingly.
[3] The Applicant is charged on a seven-count Indictment, with:
i) Importing a controlled substance (s. 6(1) CDSA);
ii) trafficking a controlled substance (s. 5(1) CDSA);
iii) possessing a controlled substance for the purpose of trafficking (s. 5(2) CDSA);
iv) two counts of possessing proceeds of crime (ss. 354(1)(a) & (b) CCC);
v) possessing proceeds knowing they were derived from the commission of a designated offence (s. 462.31 CCC); and
vi) importing goods with a value over $10,000.00 (s. 74 Proceeds of Crime and Terrorist Financing Act).
[4] The central issue is the extent to which Charter rights are available at the border. I must also weigh in on and assess the import and meaning of a CBSA ‘drug lookout’. The lookout in this case, prepared by a CBSA intelligence officer and circulated to all CBSA agents, identified the Applicant as someone who, according to a confidential human source (“CHS”), “will be smuggling drugs” into Canada in his truck. The point of entry noted in this alert was Windsor. CBSA intelligence noted the information contained in the lookout as “believed to be reliable”. The Applicant was described by name, date of birth, citizenship, and where he would be crossing, along with details about his conveyance.
POSITION OF PARTIES
[5] The Applicant argues that, in light of the lookout, he was not an ordinary traveller subject to routine questioning or searches, but was rather ab initio an identified, specific, individualized target as a suspected drug importer. He contends that, because of the nature of the lookout, he should have been afforded his Charter rights upon arrival; specifically that he should have been apprised of the lookout, the reason for his referral to secondary, and given his rights to counsel (with an opportunity to exercise it). The Applicant puts it this way, at paras. 3 and 4 of his factum:
[t]he CBSA awaited his arrival in order to search and question him. When he arrived, the CBSA did not apprise the Accused of the situation or allow the Accused his rights under the Charter until the CHS was proved right. In the interim, they compelled information, offered no indication of their real interest in keeping him, made no mention of his right to legal counsel, and search extensively and exhaustively without warrant.
The submission is that the Charter was wrongly excluded from these events…
[6] He further argues that he was not detained under the provisions of the Customs Act, R.S.C., 1985, c.1 – which does allow a Border Service Officer (“BSO”) to question and search travellers without grounds - but as the target of a criminal investigation which should have immediately triggered his Charter rights, and that, prior to any search of his truck, a warrant ought to have been applied for and obtained.
[7] The Crown is of the view that the Applicant was merely the subject of a routine Customs examination, arguing that the lookout changed nothing. In other words, the lookout was a factor but just one amongst many. It argues that the BSO’s had no grounds to arrest or detain (for Charter purposes) the Applicant until the moment the drugs and cash were located in his truck’s cab. It submits that the Applicant was asked the very same questions anyone entering Canada would be asked, and would expect to be asked, and that, irrespective of what led to the secondary referral, the examination itself was like any other search of a commercial tractor-trailer whose operator seeks entry into Canada. At para. 1 of its factum, the Crown frames its position on this motion as follows:
The Supreme Court of Canada, our Court of Appeal and this Honourable Court have all addressed the issues raised by the Applicant numerous times in the past and have conclusively stated that a person entering Canada does not have a reasonable expectation of privacy in the contents of their goods or possessions, and that a routine examination of those goods and possessions, even on a random basis, does not raise any constitutional issues.
APPLICABLE CHARTER, STATUTORY AND POLICY PROVISIONS
[8] The relevant Charter provisions are as follows:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention,
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right.
[9] These are the relevant provisions of the Customs Act:
- (1) “goods”, for greater certainty, includes conveyances, animals and any document in any form;
“conveyance” means any vehicle, aircraft or water-borne craft or any other contrivance that is used to move persons or goods.
(1) Subject to this section, every person arriving in Canada shall, except in such circumstances and subject to such conditions as may be prescribed, enter Canada only at a customs office designated for that purpose that is open for business and without delay present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament.
(1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business.
Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall
(a) answer truthfully any question asked by an officer with respect to the goods; and
(b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine.
- (1) An officer may search,
(a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada,
if the officer suspects on reasonable grounds that the person has secreted on or about this person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament
- (1) An officer may,
(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
99.2 (1) An officer may search any person who is in or is leaving a customs
controlled area, other than a prescribed person or a member of a
prescribed class of persons who may be searched under subsection (2),
if the officer suspects on reasonable grounds that the person has
secreted on or about their person anything in respect of which this Act
or the regulations have been or might be contravened, anything that
would afford evidence with respect to a contravention of this Act or
the regulations or any goods the importation or exportation of which is
prohibited, controlled or regulated under this or any other Act of
Parliament.
Goods that have been imported or are about to be exported may be detained by an officer until he is satisfied that the goods have been dealt with in accordance with this Act, and any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, and any regulations made thereunder.
(1) An officer may, where he believes on reasonable grounds that this Act
or the regulations have been contravened in respect of goods, seize as
forfeit
(a) the goods; or
(b) any conveyance that the officer believes on reasonable grounds was made use of in respect of the goods, whether at or after the time of the contravention.
[10] While, at least for our purposes, the relevant provisions are ss. 11, 12, 13, 99(1), and 101 – insofar as they authorize questioning and searches of goods and conveyances without grounds to do so – I reproduce the others simply to point out the types of searches that would require reasonable grounds (i.e. search of person). Later in these reasons I will return to that distinction. In respect of s. 110, it is included only to show that an officer, with sufficient grounds, is empowered to seize goods and/or a conveyance without warrant.
[11] Lastly, I reproduce the relevant passages from the CBSA’s Drug Lookout Policy:
- It is the policy of the CBSA to:
-issue lookouts in order to provide reliable and timely intelligence on threats and support informed CBSA decision-making on the entry to Canada of persons, goods, conveyances and on exports, as well as to support investigations and enforcement decisions, and additionally, to support Citizenship and Immigration Canada (CIC) decision-making on visa issuance and on status applications,
-Create lookouts that are relevant to the CBSA’s jurisdiction;
- At POE’s [points of entry], BSO’s [border service officers] shall refer
Lookouts for a mandatory secondary examination.
[12] The following relevant definitions are found in the policy:
“Intelligence” is information collected, evaluated and analysed by way of the intelligence process to produce assessments of events, trends and probability of future activities.
“Lookout” is a specific intelligence product developed to identify a person, corporation, conveyance or shipment that, according to various risk indicators or other available intelligence, may pose a threat to the health, safety, security, economy, or environment of Canada and Canadians.
-a lookout takes the form of an electronic file record within the ICES, FOSS, or the Accelerated Commercial Release Operations Support System (ACROSS). The lookout will “flag” or identify particular individuals, including corporations, and specific goods, conveyances or shipments. This “flag”, in turn, is intended to prompt a closer examination of circumstances. In order for a primary officer to become aware that a lookout exists, and in so doing become aware that the individual, conveyance or goods of interest have arrived, he or she must query the subject in IPIL. Officers within Canada and at ports of entry can query FOSS lookouts or input new FOSS lookouts directly. Officers working overseas as Liaison Officers (LO’s) can access existing FOSS lookouts via a linkage with GCMS. Note that while similarities exist, targets are not synonymous with lookouts. The process of targeting is a step removed from the intelligence process. Targeters are provided indicators that are the products of the intelligence process and then make use of these indicators to create targets.
FACTS
[13] On the date in question, at or around 4:00p.m., the Applicant arrived at the Bluewater Bridge in his commercial tractor-trailer. He was alone. Upon attendance at the primary inspection booth he was questioned by BSO Chute who, after becoming aware of the lookout, referred him and his vehicle for a secondary inspection. The Applicant proceeded to the designated area as instructed, where he was met by BSO’s Bassett, Kelly and Lefave. It is my understanding that each of these officers were, at the time they received the Applicant, aware of the drug lookout, although they had not yet had an opportunity to review it.
[14] After the Applicant exited his truck, two of the officers – Kelly and Lefave – entered and searched the cab. They could not complete their search as they were unable to lower the upper bunk. It was then decided that an HCVM x-ray of the truck would be conducted which disclosed what the officers described as an anomaly. The decision to obtain the x-ray images was made at or around 5:10p.m. The x-ray was completed at or around 6:33p.m.
[15] Throughout this period BSO Bassett, sometimes accompanied by other officers, remained with the Applicant. She questioned him about his employment, truck, the particular trip he was returning from, and advised him of her colleagues’ difficulty in accessing the upper bunk.
[16] At some point Superintendents Williams and Hamilton enter the cab, access the bunk, inspect it and locate drugs and cash. At or around 6:45p.m. they exit with Supt. Williams instructing BSO Bassett, with a hand gesture, to arrest the Applicant, which she did. The Applicant was thereafter cautioned, read his right to counsel, frisked, and escorted to a cell. His cell phone was seized. After indicating he understood what was being said to him, the Applicant asked to call a friend, Amer, who he said would know of a lawyer to call. That request was denied.
[17] At or around 7:16p.m. attempts were made to contact duty counsel, who called back at 8:26p.m.
[18] At or around 3:53a.m. an RCMP officer took custody of the Applicant. At or around 4:51a.m. the Applicant’s belongings and seized evidence were turned over to another RCMP officer.
EVIDENCE
BSO Chute
[19] Below is a summary of the testimony of each witness who testified at this hearing.
[20] First, BSO Patrick Chute. He is an experienced officer of 21 years, who was in the primary examination area when the Applicant presented himself at the border. He interacted with the Applicant at the inspection booth for approximately 3 minutes, which he says is similar to the amount of time he would spend with any other traveller. Apart from learning of the drug lookout after inputting the Applicant’s details into the computer system, there was nothing unusual about their interaction. He completed what was described as a form E67 which, as I understand it, is essentially the written referral to the secondary examination area. Under cross-examination he testified that he was not familiar with CBSA’s Lookout Policy, did not know how often in the past he had dealt with a traveller subject to a lookout, and did not know how often he had referred a commercial vehicle for a secondary examination.
[21] BSO Chute did not know of the lookout prior to the Applicant’s arrival, and, when he conducted his computer search while he could see there was a lookout he did not (or was not able to) view its details.
O.P.P. Constable Lefave (formerly BSO Lefave)
[22] The next witness to testify was O.P.P. Constable Robert Lefave who was, at the relevant time, a BSO. In response to a question about whether he believed he had reasonable and probable grounds to arrest the Applicant he testified as follows:
The examination that we conducted on the truck and trailer, including the x-ray itself, is a routine examination that we do multiple times a day. In this particular instance, there was the added factor of a lookout for narcotics. However, in my experience, and the amount of lookouts that I have searched, and the outcome of none resulting in narcotics leads me to carry out my searches as just another indicator to complete a more thorough examination of the trailer. Unless a lookout is extremely specific, describing where narcotics are located on the vehicle and additional background information regarding that, it’s very difficult as an officer go into these examinations searching in a way that would be different from any other examination. So when we approach these trucks to examine them, we don’t have reasonable grounds that there are narcotics in that truck and trailer. The lookout serves as more of a purpose as an indicator that there is intelligence suggesting that a more thorough examination should take place.
[23] He explained that to search a cab is a “routine part of examining [a] truck and trailer”. I pause here to note that an attempt was made to search the trailer - one of the BSO’s described this as an attempt to ‘walk the load’ - which they were ultimately unable to do because of the nature of the cargo. In any event, as it relates to such a search, BSO Lefave described it as a “standard area that he would search whenever examining a truck”. This was, according to him, a “routine process”.
[24] He acknowledges questioning the Applicant before entering the truck’s cab, but told us that too was routine and, in this case, was limited to inquiries about his trip, who he drove for, and declarations. This was a brief exchange, similar to those he would have with any traveller in similar circumstances.
[25] I will discuss this further when I address the evidence of BSO Bassett below, but BSO Lefave interacted with the Applicant between 6:33p.m. and 6:45p.m. He described this as a “standard conversation”, one he would have with any traveller while they awaited the completion of a search or x-ray scan.
BSO Bassett
[26] BSO Marie-Pier Bassett testified. Hers is critical evidence which attracted much attention. She did not recall the drug lookout being in the ‘believed reliable’ category. She testified to having conducted too many examinations to count, including those with a drug alert. She does not recall any of her prior examinations arising from a drug lookout actually resulting in a significant drug seizure. As to what she understood the import of a lookout to be, she said this:
The lookout itself is an indicator. It is one indicator. No matter what is inside the lookout content, I need to make my grounds to myself as an officer. An intelligence officer has decided to issue this lookout their characterization of the lookout itself is on their end. I am not trained on how to characterize their sources, whether it’s believed reliable or not reliable. A lookout is a lookout. It’s one indicator and the content of the lookout and the narrative is a guidance. It’s now up to me to make my grounds with regards to the subject for conveyance.
[27] Before the cab search, BSO Bassett searched the engine compartment. She testified at length about her conversations with the Applicant, before arrest, insisting that the nature of those discussions were like those she would have with any other traveller in similar circumstances. While she knew of the lookout early on in the sequence of events, she did not review its contents until around 5:15p.m. If true, and I accept that it is, this means she did not know anything about the lookout, apart from its existence, until after her first conversation with the Applicant and after she completed the engine search. She maintained throughout her testimony that her discussions with the Applicant (before arrest) and her search of the engine compartment were “just part of a normal secondary process at customs”.
[28] BSO Bassett was involved in the x-ray of the Applicant’s truck. At the time she had 2.5 years-experience reading x-ray images. She conservatively estimated having previously read 200 x-ray images. She testified that of those approximately 25% revealed what she called an anomaly, which I understand to be areas of high density that, in most if not all cases, will lead a BSO to proceed on with a search in order to determine whether said anomaly is contraband or not. To be precise, this is what she said:
Often times when we do these examinations, a lot of times we’ll find toolboxes or other types of men’s personal belongings, that can simply (inaudible) by asking the truck driver what this could be and explain. Then he would explain to us…often times there is a discrepancy when we x-ray these trailers that would lead to either a cab or a trailer search of the whole load.
[29] With respect to the officers’ inability to access the upper bunk, BSO Bassett advised that when she spoke to the Applicant about it she only wanted to learn if there was a trick to releasing it. This, she says, was intended only to be a quick interaction.
[30] She further testified about the use of ION scans, telling us that in approximately 85% of CBSA secondary examinations an ION swab of a vehicles interior would be taken, and that this practice is not limited to drug lookouts.
[31] BSO Bassett and BSO Lefave’s second conversation with the Applicant about the malfunctioning bunk - at or around 6:33p.m. - was, according to her, simply another attempt to learn how that bunk might be opened. Recognizing, in retrospect, that this event was close in time to the Applicant’s arrest (6:44p.m.), BSO Bassett testified that: “At that moment in time, I don’t have enough indicators and I don’t have any drugs in front of me. As I said earlier, I have – I had a lookout to go with, that’s one indicator, and I have an anomaly on the x-ray truck from my scan. Those are my two indicators at this point. From my conversation with Mr. Barac, Mr. Barac did not give me any indicators, any additional indicators from our conversation and that swabs are also all turning negative for potential drugs inside the cab. So, I definitely do not have grounds to arrest Mr. Barac at that point”.
BSO Kelly
[32] The next witness to testify was BSO Taralyn Kelly. While she has 17 years’ experience with CBSA, this was her first involvement in a significant drug seizure. She testified that she had examined thousands of commercial tractor-trailers in the secondary examination area including those referred because of a lookout. She testified that these examinations are never done alone. Most of the time two BSO’s would take part, but sometimes more, depending on staffing levels. She maintained throughout her testimony that the examination of the cab in this case was routine and like any other.
Superintendent Williams
[33] Supt. Curtis Williams testified. He spoke about the frequency of HCVM x-ray scans, indicating that on any given shift there might be as few as 15 and as many as 100. He, personally, had worked shifts where 50 such scans were conducted. He had personally read between 500 and 1000 x-ray scans. He testified that “anomalies of different types happen every shift” and that “every anomaly is examined before a vehicle is released” and permitted to enter Canada.
[34] In an attempt to explain the import and meaning of the anomalies found in this instance, he said this:
At that time all I had was a scan and an anomaly. Anomalies happen as I stated on a day-to day basis. The majority of anomalies are just that, an anomaly, something that is mitigated by our exam, and they turn into nothing. It could be a toolbox that was sitting in a different direction, it could be just something that the driver has with him for everyday use that it might be in an area that’s not usually there. But without mitigating that concern, then I don’t have any reasonable probable grounds to detain or arrest.
[35] Supt. Williams testified about a second attempt to examine the bunk area. When asked specifically about whether, at that point, he felt they had grounds to arrest the Applicant, he said this: “I did not, I had concerns, but it was still in the part of my initial exam that the tractor trucks that we examine every day have all drivers at all times of different aftermarket changes to their trucks to personalize them because they’re in so, they’re in them so much. So, without me, sorry, so in my experience, as much as it was a concern, I didn’t have reason to suspect that it was contraband of some sort.”
[36] When it came to actually lowering the bunk, he testified that the tools he retrieved to accomplish this were readily available and used frequently during examinations. In other words, taking matters into their own hands in order to access an otherwise inaccessible area of a conveyance, happens all the time, and this was not the first time he had to retrieve tools for that purpose.
Superintendent Hamilton
[37] The last witness I heard from was Supt. Rodney Hamilton. He too had been trained to conduct and read x-ray exams. He testified that he read on average 30 to 40 x-rays each day, two to three days per week. He estimates that of those 30 to 40 x-rays, 15 to 20 images would show anomalies. Only two of these had led to a significant drug seizure. He testified that “every anomaly is subject to further examination…those conveyances are not cleared to enter the country without further examination”.
[38] Supt. Hamilton spoke to his search of the cab. He testified that he observed an open empty duffle bag on the lower bunk, which he thought unusual. It was he who directed BSO Bassett to test the strips taken from the bag, all of which returned negative. He described ION scans as routine. On the import of the negative result, he said this: “With the negative ION scan reading we have no further, at that point, indication that there was any narcotics”.
[39] An ION scan was conducted of the mattress from the upper bunk area, which also returned negative.
[40] He testified, as did BSO Bassett, that these scans were routine, used on a daily basis, and not limited to those who were subject to a drug lookout.
ISSUES
[41] The presenting issues in this case can be stated in several different ways. It, however, really boils down to whether the Applicant, because of the lookout, was entitled to be advised of and afforded his Charter rights, including the right to be informed of the reason for his detention, the right to be informed that he did not have to answer questions, and the right to be informed of his right to counsel (with an opportunity to exercise it).
[42] Another way to frame it is to ask: Before his arrest was the Applicant ‘detained’ for Charter purposes? This is critical because there can be no question that the Applicant was detained, at least as that term is understood in everyday parlance. That is to say, whenever anyone attempts to enter Canada – citizen or not – they are required by law to answer questions, truthfully, and to submit to inspections, including in secondary examination areas.
DISCUSSION
[43] During the course of their submissions counsel referred me to the relevant jurisprudence. While this was most helpful - and I will return to summarize some of them - we must start with the basic principles set out by the Supreme Court in R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, and closely examine the relevant provisions of the Customs Act, which makes it plain that any person entering Canada must submit to an examination, truthfully answer questions, declare any goods they are attempting to bring into Canada (which in my view renders meaningless any distinction between smuggling contraband and importing drugs), and if so declared to present those goods for inspection. I pause here to note that the Applicant does not challenge the constitutionality of the Customs Act nor any of its provisions.
[44] What does Simmons tell us? First and foremost, Simmons draws the distinction between the types of searches we see at the border, what each means, and what kind of attention each can draw. The court writes this at para. 27:
It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily and routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to x-rays, to emetics, and to other highly invasive means.
[45] What is important to understand is that the first type of search does not in any way attract Charter scrutiny. This category represents the typical questions and examinations that a traveller - citizen or not - must answer and accede to when they present themselves at the border. This, the Crown argues, captures our case exactly, at least up until the point drugs were seized and the Applicant was arrested. As indicated earlier, the Applicant disagrees taking the position that the lookout dramatically changes the landscape, its existence moving this situation beyond the routine and therefore not covered by the first search type discussed in Simmons.
[46] I draw from Simmons that the first type of search it speaks of includes x-ray and ION scans, as well as pat searches of outer clothing. To my mind, this first type of search is not, and cannot be, limited to what one might describe as ‘random’ questioning or searches. That would make no sense at all. In other words, the idea that a traveller would only expect to be questioned, or referred for a secondary inspection, if it is ‘random’ just does not capture the complete scope of a BSO’s authority. The operative word is routine, not random, the latter being a complete red herring.
[47] Setting aside for a moment the issue of the lookout, under the Customs Act – which again is not being challenged on a constitutional basis – and in light of the Court’s direction in Simmons and its use of the term ‘routinely’, I suggest that if CBSA so chose, and if it had the resources to do so, it could very well question and conduct a secondary examination of every entrant into Canada, citizen or not. Furthermore, while random questioning and searches are indeed authorized under the Customs Act, it would be folly to focus exclusively on the randomness of enhanced questioning or an enhanced search. To do so, would I not, in effect, be saying that a BSO is prohibited from proceeding beyond any cursory questioning about citizenship, declarations of goods, and destination, under any circumstances, and is only permitted to refer travellers to secondary if done for no particular reason at all? That is not and cannot be the state of the law.
[48] In fact, in light of the relevant jurisprudence, I suggest that under the Customs Act if a BSO has a gut feeling that something is amiss; becomes suspicious because of the travellers behaviour; or if the manner and comportment of that traveller gives rise to any concern that they might be attempting to bring into Canada something that is prohibited (whatever that might be), they could refer that person and their vehicle to the secondary inspection area for more involved questioning and an enhanced search of the conveyance, without the Charter being engaged at all.
[49] I acknowledge that the Applicant’s focus is on the import of the lookout – which contains specific information about him, what he will be carrying, and where he will be crossing - which is distinguishable from the scenarios outlined above - but I make the point nonetheless to dispel any idea that to legitimately decide to engage in enhanced questioning, and or to make a referral to secondary, it must be random. Again, and to be clear, Simmons talks about the scope of the routine screening process – which is what is relevant to our analysis - which has nothing to do with randomness.
[50] I am also aware of that passage in Simmons where Dickson CJC writes that “I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10”, which seems to place importance on luggage searches being random. But this needs to be placed in its proper context. I would suggest that, first, this was simply a recognition that such searches are almost always conducted on a random basis, which is true and basic common sense, and second, as I read this passage it appears to be an attempt to distinguish between what might be routine and or random from the very search being conducted in that case – a strip search – which is neither random nor routine; a proposition that is obvious on its face. In other words, notwithstanding the Crown’s ill-fated position in Simmons, I am of the view that we did not need the highest court in the land to tell us that a strip search was invasive and went beyond the routine. It clearly was, and is, and someone facing the prospect of such a search is undoubtedly to be told the reason why, and to be advised of their right to contact counsel. But that is not the situation the Applicant found himself in.
[51] Consider also the Supreme Court’s decision in Jacoy v. The Queen 1988 CanLII 13 (SCC), [1988] 2 SCR 548,
where, at para. 14, Dickson CJC writes this:
The trial judge held that the appellant was detained from the moment he arrived at the border. In my view it is not necessary to decide whether detention occurred at this point. For the reasons given in R. v. Simmons, there is no doubt that the appellant was detained when he was ushered into the interview room by Inspectors Graham and Findlay. At this point the customs inspectors had assumed control over the movement of the appellant by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the appellant regardless of his responses to their questions. The trial judge found at p. 2 of his reasons that:
The police and customs inspectors had pre-arranged between themselves that Jacoy would not be permitted to proceed past the Customs point, that he’d be detained and that he’d be searched, both his person and his vehicle, in order to locate the cocaine which it was believed he was importing into Canada.
In my view, this indicates that the decision to search the appellant, and to strip search him if necessary, had been made by the time the appellant entered the interview room. The appellant was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the appellant was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.
[52] It has been suggested that the jurisprudence to date, including the court’s decision in Jacoy to not weigh in on what had transpired before the accused was taken into the interview room, leaves a lot to be desired; meaning this is an unsettled area of the law as judicial decisions on this point have been incomplete or otherwise unsatisfactory. I disagree. First, to draw that conclusion would be to ignore the court’s effort in Simmons to categorize the types of border searches, and second, insofar as Jacoy is concerned it fails to recognize the obvious distinctions between that case and the Applicant’s. What I mean is, in the Applicant’s instance BSO’s, one and all, took the view that the lookout was simply a factor and that without more – i.e. actually locating drugs – they believed that they lacked sufficient grounds to arrest the Applicant or to detain him (at least for any purpose beyond the scope of the Customs Act). In my view, this was an objectively reasonable decision. They were right. This is important because in our case, unlike in Jacoy, there was no coordinated, prearranged agreement between CBSA and the police to detain and search not just the Applicant’s vehicle, but also his person, which is precisely what Dickson CJC talks about in Jacoy and is why, in his view, the Charter ought to have been engaged.
[53] I move now to the import of the lookout and whether its existence necessarily means the questioning and search of the Applicant’s conveyance was not routine, thereby requiring Charter compliance by the BSO’s from the outset. I will start by citing paras. 25, 26 and 28 of the Applicant’s factum, which frames the issue in this way:
The issue of deciding the existence of a Charter relevant event at the border is different than deciding an inland case. The bright line logical distinction can be viewed as the applicability of s. 1. The customs and immigration laws are a permissible s. 1 limit when dealing with travelers as travelers, but not when dealing with them as suspected criminals.
The customs hall detention is a reasonable limit when it is customs and immigration laws being enforced but when a criminal suspect is being investigated, especially when the limit is on their access to counsel, which does not preclude the detention but only ensures its true nature is understood and counsel can be accessed before evidence-gathering. The compulsory interrogation is a valid s. 1 limit when it is customs and immigration laws being enforced but not when the suspect is being compelled to unwittingly incriminate himself by providing evidence for a criminal prosecution.
[w]hen the State awaits the civilian traveler not as simply another in-coming traveler but as a reliably suspected drug smuggler, then the s. 1 limitation can no longer justify the disregard of the Charter rights because the matter is really a criminal investigation. A suspected criminal within the physical control of the state is entitled to the same rights whether they are physically located at Pearson Airport or the corner of Yonge and Queen streets.
[54] Applicant counsel describes the BSO’s conduct in this case as unfair in that they were hiding from his client the true nature of their interaction, in an attempt to capitalize on his ignorance of what was truly going on. In other words, the routine nature of what they were doing was all a pretence; a ruse designed to shield from the Applicant their true purpose, which was to find the drugs they reliably believed he was bringing into Canada. As such, at the moment the BSO at the primary inspection booth decided to refer the Applicant to secondary, they were required to immediately caution him, advise of the reason for the referral, read his Charter rights, and provide him an opportunity to speak with counsel.
[55] Another case worthy of our attention is R. v. Jones, 2007 CanLII 28086 (Ont. C.A.) where the Court of Appeal concludes that “if BSO’s decide, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning”.
[56] I find this passage helpful because it focusses us on what is really at issue in our case, which is, whether the Applicant’s interaction with the BSO’s was a ‘routine, usual customs event’ or whether it was something more. The Applicant argues that it was something more. That is, the BSO’s were engaging in a criminal investigation, which is not a routine Customs event, and that the Charter therefore applies.
[57] R. v. Peters, 2018 ONCA 493 is also important as it attempts to apply Jones.
[58] The defence also relies upon the court’s reasoning in R. v. Harripersad 2001 CanLII 28338 (ON SC), [2001] O.J. No. 3639 (S.C.J.) where the accused was the ‘target’ of a criminal investigation and, therefore, protected against self-incrimination; and R. v. Singh, 2019 ONCJ 453 which found that the Charter applied because the officers were specifically looking for child pornography.
[59] I will return for just a moment to Jacoy which, on a cursory read, would seem to support the Applicant’s position. However, on a closer look I am not so sure that is the case. I have drawn the distinction already, but it is worth repeating: Despite information being received before arrival at the border which led to the issuance of a “watch for”, and while the trial judge viewed the Charter as applying from the beginning, the Supreme Court was only clear in that detention began when the accused was brought into the interview room. I highlight this because the Applicant argues that the issue before me has simply not yet been decided by the Supreme Court; which I agree with. That said, there is nothing in this decision that lends any weight to the Applicant’s argument that he ought to have had the full protection of the Charter from the point he arrived at the border. I say this because Jacoy – while, again, on a cursory read might look similar to the Applicant’s predicament – it is not. I made this point earlier, and will not repeat it.
[60] I want to make these two additional comments. First, while the Supreme Court and Court of Appeal are, to state the obvious, binding authorities, I must be careful to not turn this exercise into a mere comparison of one case to another. Each turns on its own unique facts.
[61] Second, at one point Applicant counsel made the argument, and I am paraphrasing, that what a traveller seeking entry into Canada would expect is to be questioned and be subject to random searches of their conveyance and or belongings. This is true; the typical traveller either does, or should, expect this. But while I do not want to beat a dead horse, I must reiterate a point I made earlier which is, this is not the definitive statement on what BSO’s can or cannot do when someone seeks entry into Canada. The real question that needs to be answered is whether the BSO’s, on the evidence before me, had sufficient grounds to arrest the Applicant or detain him (in a way that engages the Charter).
ANALYSIS
Section 7
[62] In the result, and for the following reasons, I find that at every point until the time of his arrest, the Applicant was in no different position than anyone else who is referred for a secondary examination. What I mean is, there was, unlike in Jacoy, still a real possibility that he was going to be sent on his way and permitted entry. In fact, in the mind of the BSO’s this was a likelihood based on their extensive experience with lookouts. I accept the evidence of each BSO on this point.
[63] Applicant counsel says I should discount the officers evidence and conclude that theirs was a concerted effort to downplay the significance of the lookout. He points to the lack of disclosure that would support their viva voce evidence about how often they encountered lookouts, how often they referred vehicles to secondary, how often they conducted x-ray scans and the like, in an attempt to erode their reliability. I would only point out that there was no disclosure application which sought the information the Applicant says he was entitled to, but apparently refused – at least none that I am aware of - and, more importantly, at the end of the day I am left with the testimony of each officer, which was consistent one with the other, and which, at least in my estimation, had no air of contrivance or coordination (which was not even put to any of them). Furthermore, it was unshaken, sensible and, most importantly, uncontradicted. I accept their evidence.
[64] Let me put it in a slightly different way. I accept that the officers, first, indeed did have extensive experience reading lookouts and referring those subject to them for a secondary examination. Second, this was but one factor in their assessment of the Applicant. And third, they subjectively believed that they did not have grounds to either arrest or detain the Applicant, at least not beyond what the Customs Act allowed. Contrast that with Simmons where the initial assessment of the accused, which was the basis for the secondary referral, was that she was acting “overly nervous”, meaning Ms. Simmons’ referral was not ‘random’ but made because that BSO was suspicious of her.
[65] I suspect the Applicant would say that, because of what I just pointed out, the Supreme Court left open the question of whether the Charter applied at the outset. And while that may be true this argument fails to recognize some rather salient points made in the balance of the court’s discussion. For instance, Simmons holds that the degree of personal privacy reasonably expected at customs is lower than in most other situations; that sovereign states have the right to control both who and what enters their boundaries; and that travellers seeking to cross national boundaries fully expect to be subject to a screening process. I note the court’s use of the term ‘screening process’, as opposed to ‘random screening process’.
[66] To the extent Simmons is distinguishable, it is not on any point that is of particular assistance to the Applicant. Consider the court’s conclusion that “[p]hysical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods…Under ss. 143 and 144 of the Customs Act, searches of the person are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body”. This is important because none of that assists the Applicant in advancing his argument, as it is very specific to a search of the person which we all agree would engage the Charter.
[67] It is, however, important in another way which circles back to a question I asked earlier. And that is, did the BSO’s, at any point before finding the drugs, have sufficient grounds to arrest or detain the Applicant? The answer, in my respectful view, is no. They, like countless BSO’s who on a daily basis refer travellers to secondary – which, I stress again, is not always a mere random decision (nor does it have to be) – had grounds to refer the Applicant under the authority of the Customs Act. In fact, short of ignoring the lookout and simply waving the Applicant through at the primary booth, that is all they could do. Let us take this through to its logical conclusion. If, as the Applicant argues, the BSO’s did have reasonable and probable grounds to detain and therefore ought to have obtained a warrant before searching his conveyance, what if the warrant was denied? What if? No court would countenance the idea that BSO’s, in the circumstances of this case, would be forced to admit the Applicant without further scrutiny? I point this out because, while it has no direct application to our case – it is but a hypothetical and more in the nature of passing commentary – I cannot help but think of the countless occasions I have heard the argument that information (much like the information found in this lookout) is unreliable and entirely incapable of supporting the issuance of a search warrant.
[68] While it can be dangerous to dabble in hypotheticals, it was important here because of the one raised by Applicant counsel. Recall his submission that had the Applicant been pulled over by the police just a short distance from the bridge on Highway 402 those officers, armed with this information, could not have done what the BSO’s did here (i.e. question, detain and search his client’s vehicle), at least not without sufficient grounds and not without advising the driver of their Charter rights. Of course that is true but on our analysis that is neither here nor there.
[69] People seeking entry into Canada are expected and indeed required to answer questions and cooperate with BSO’s, and the only reason this makes any sense at all is because we are talking about the border. Meaning, location is everything. Remember that, under the scenario highlighted by Applicant counsel the driver was not, at that point, presenting himself at an international border crossing and seeking entry into Canada. The Applicant was. The bottom line is, Canada must be able to effectively control its borders and the only way that can be accomplished, apart from ensuring BSO’s have the necessary tools to carry out that mandate, is if we, on a basic and fundamental level, recognize that a traveller driving down the highway is in a markedly different position than someone being processed at a border, which must be reflected in our laws and in the way courts treat interactions between BSO’s and travellers.
[70] Tying this back to the facts of our case, I find that the lookout, standing on its own, changed nothing, other than to ensure the Applicant was going to be the subject of a secondary examination, which is the fate encountered by countless travellers every single day, for a whole host of reasons.
[71] I want to briefly address the different ways in which counsel have characterized the import of the Applicant’s position. The Crown frames it as the Applicant attempting to, in effect, expand Simmons and carve out in law a fourth category of border search. Crown counsel argues that the Applicant’s position is nothing new and that courts have already addressed this type of search. The Applicant disagrees, arguing that the jurisprudence to date, including Simmons, has not fully answered this question.
[72] Apart from the lookout and what that means – which I have now disposed of – it is important to examine, step by step, the entire period from when the Applicant arrived at the primary booth to when he was arrested. In the result, I find that, during this time, there is no distinction to be made between the questions the Applicant was asked and those asked of the accused in R. v. Jones, 2006 CanLii 28086 (Ont. C.A.). Consider the following passage from Jones (paras. 38 - 40):
[T]he appellant further contends that even if answers to routine questions at the border could be received in subsequent criminal proceedings without violating the principle against self-incrimination, that principle required their exclusion in this case because by the time the appellant made those statements, he had become the target of a criminal investigation. The appellant submits that he became a target when Inspector Harrison’s suspicions were aroused by his several prior trips out of Canada in the previous year. In advancing the contention that a “target” of a criminal investigation can rely on the protection against self-incrimination to exclude statutorily compelled statements made at the border, the appellant relies on R. v. Harripersad, 2001 CanLII 28338 (ON SC), [2001] O.J. No. 3639 (Sup. Ct.).
I would reject this submission for two reasons. First, even if I accepted that the s. 7 protection against self-incrimination attached immediately upon an individual becoming a target of a criminal investigation at the border, I would not describe the appellant as a target of a criminal investigation when he answered the relevant questions. In this regard, I accept the findings of fact made by the trial judge and set out earlier in these reasons.
Second, I do not regard the distinction between those who can be said to be targets of criminal investigations at the border and those who are not targets of such investigations in and of itself determinative of a section 7 claim. In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. Questions are asked and routine searches conducted to find individuals who are in breach of border-related laws. It only makes good sense that those responsible for enforcing border regulations will focus their routine questions and searches on person who have for some reason attracted their interest. In my view, the mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.
[73] Even though the accused in Jones was not subject to a lookout, I am of the view that the above addresses head on most of the Applicant’s arguments. To be more direct, I find that a lookout, while not expressly stated, is in fact captured by the reference in Jones to everyone who is questioned at the border and whose luggage is searched being, in a general sense, the target of an investigation This is true, which disposes of the Applicant’s additional argument that there should be a distinction drawn between a traveller suspected of merely smuggling goods and one suspected of importing controlled substances. As it turns out, at least in this context, there is no distinction at all unless of course one of the enhanced searches described in Simmons is going to be carried out.
[74] Moreover, it is essential that BSO’s be permitted, in the course of their enforcement duties, to tailor their questions to what, if anything, attracts their interest or attention. I raised this earlier by pointing out that, first, nothing rises or falls on questioning and searches being random or not, and second, a BSO conducting ‘routine’ questioning or conducting a ‘routine’ examination is not to suggest that he or she must rigidly follow a rote list of questions that cannot be deviated from. Again, even routine questioning and searches must be tailored to the circumstances. In this respect I agree with Crown counsel who made the point that just because a person has attracted the suspicion of a BSO – thereby causing them to ask certain questions or to conduct a particular search – does not give rise to enhanced constitutional protection against self-incrimination.
[75] The bottom line is, while Simmons sets the stage for what we are to consider in cases like this, it is Jones that directly applies. And Jones, to my knowledge, has not been reversed and remains good law. Therefore, on the s. 7 analysis, I am not persuaded by the Applicant’s argument that he was deprived of his right to life, liberty or security of the person.
Sections 9, 10(a) & 10(b)
[76] I acknowledge that my reasons to this point have largely dwelled on the s. 7 argument. Setting aside for a moment s. 8, as it relates to the balance - s. 10(b) in particular - I quote para. 37 from Jones where Doherty J. writes this:
The conclusion firmly rooted in the jurisprudence, that routine questioning and inspection of luggage at the border does not result in a detention, give rise to any right to counsel, or interfere with a traveller’s reasonable expectation of privacy compels the conclusion that personal autonomy and privacy – the values animating the protection against self-incrimination – were implicated when the appellant was compelled to answer routine questions about his residence and his marital and employment status. The exclusion from evidence at his subsequent trial of these statements, therefore, could not vindicate or protect those values. Exclusion of the answers, however, could diminish the state’s ability to effectively enforce its legitimate border interests while at the same time impairing the search for the truth in the criminal proceeding by excluding relevant evidence. The balancing of competing principles of fundamental justice does not favour extending the principles against self-incrimination to statements made in the circumstances in which the appellant made his statements to Customs authorities.
[77] I appreciate that the Applicant will disagree with my finding that the BSO’s acted under the authority of the Customs Act, and with my finding that their questioning and searches were both routine, but given those findings Doherty J.’s comments have direct applicability and compel me to reject the Applicant’s argument that his rights under ss. 9, 10(a) and (b) have been violated.
Section 8
[78] With respect to s.8, I find that the BSO’s searched the Applicant’s truck under the authority of the Customs Act; that the search was conducted reasonably; and that the Customs Act’s search provisions are a reasonable limit on an individual’s rights.
CONCLUSION
[79] In conclusion, there were no violations of the Applicant’s rights under any of ss. 7, 8, 9, 10(a) or 10(b) of the Charter. This is the only possible outcome in light of my finding that the Applicant was not detained within the meaning of the Charter until at or around 6:45p.m., when drugs were located in his truck and he was arrested.
[80] For these reasons, the Application is dismissed.
Justice Jonathon C. George
Released: July 30, 2021
COURT FILE NO.: 2072/20
DATE: 2021/07/30
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
-and-
Branislav Barac
Applicant
REASONS FOR DECISION
George J.
Released: July 30, 2021