Court File and Parties

COURT FILE NO.: CR-17-587-00 DATE: 2022 04 12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Walsh, for the Crown

• and -

STEPHANIE ANN VIEIRA PEREIRA P. Aubin, for the Defendant

HEARD: March 28, 29, 30, 2022, at Brampton

RULING ON CROWN’S VOLUNTARINESS MOTION and THE DEFENDANT’S MOTION UNDER S. 7, 8, 9 and 10 OF THE CHARTER

André J.

[1] The Crown seeks a court ruling that Ms. Pereira’s statement to an RCMP officer, after being arrested for importing cocaine, was voluntary. Ms. Pereira seeks a declaration that Canada Border Services Officer (BSO) Chamberlain, violated her s. 7, 8, 9, and 10 Charter rights. The court heard these motions on a blended basis.

Facts

[2] The facts are virtually uncontested.

[3] Ms. Pereira arrived at Pearson International Airport from St. Lucia on October 2, 2016.

[4] She provided information about her trip in a Customs machine which flagged her for a mandatory inspection.

[5] BSO officer Ron Biloski and his K9 roved Ms. Pereira at a luggage carousel at the airport. The dog had been trained to detect firearms and narcotics. It sniffed Ms. Pereira under her shawl and sat next to her, thereby alerting the officer that Ms. Pereira had either narcotics or firearms on her person. According to BSO Chamberlain, BSO Biloski sent a message over his radio advising that his dog had detected narcotics on Ms. Pereira. He drew a blue line on the back of the electronic declaration form and placed the designation, K6, on it.

[6] BSO Chamberlain responded to BSO Biloski’s radio call and met Ms. Pereira in the secondary inspection area. Upon seeing the telltale blue line, he confirmed that Ms. Pereira was the subject of the K6 investigation. He testified that he only found out that she had been the subject of a lookout during this hearing.

[7] The officer initially asked Ms. Pereira the three standard questions, namely:

1. Are these your bags?
2. Did you pack them?
3. Are you aware of their contents?

[8] Ms. Pereira replied “yes” to all three questions.

[9] BSO Chamberlain then asked Ms. Pereira a number of questions concerning narcotics. These include:

1. Why would the K9 identify you as a person who may have drugs in your possession?
2. Whether she had been around persons using drugs?
3. Whether she had used drugs, other than marijuana?

[10] He subsequently searched her handbag and retrieved a pair of sunglasses. He did an ION test on it which proved positive for cocaine. He then asked her why there were traces of cocaine on her sunglasses and whether she had drugs on her person or inside of her.

[11] After the ION test, he advised her that he would detain her if his inspection of her luggage caused him to suspect that she was concealing narcotics.

[12] At no time did BSO Chamberlain advise Ms. Pereira that she was being detained, nor did he read any of her Charter rights during his interrogation of her.

[13] BSO Chamberlain asked Ms. Pereira if she had any drugs. After hesitating for approximately ten seconds, she replied, “I have”. He asked her, “where;” she then replied that she had it “around her”. He then arrested her. Cocaine was subsequently discovered inside Ms. Pereira’s underwear.

[14] RCMP officer Lucas later read Ms. Pereira her full panoply of rights from his notebook. Ms. Pereira gave him a statement but refused to provide any information regarding her trip to St. Lucia or the genesis of the narcotics found in her possession.

The Defendant's Position Regarding Alleged Charter Violations

[15] Mr. Aubin, for the Defence, makes the following submissions:

1. The Applicant was singled out and interrogated due to particularized suspicion for importing narcotics. It is patently obvious from the questions asked of the Applicant that the border official believed the Applicant had narcotics. The Applicant was not being asked routine questions that are asked every traveler; she was singled out and interrogated in detail about drug use and drug possession. Specifically, the Applicant was asked the following questions without being read any of her Charter rights: a. To explain why the KP dog indicated on her; b. If she was around narcotics while absent from Canada; c. If she used narcotics while absent from Canada; d. If she used or was around narcotics other than marijuana; e. To explain why her sunglasses tested for trace amounts of cocaine; f. If she had narcotics on or in her person.

2. These are not routine questions asked of every traveler. They were manifestations of the border official’s particularized suspicion that the Applicant was in possession of narcotics. To characterize this interrogation as routine questioning would make the legal distinction between routine, permissible questioning, and particularized suspicion meaningless. Questioning crosses the line and triggers detention when it amounts to coercive or adversarial interrogation, contains improper inducements, or exerts unfair pressure.

3. The Applicant’s Charter rights under sections 7, 8, 9, and 10(a) and 10(b) were infringed by the border official’s failure to advise her immediately of her detention, immediately caution her, and immediately provide her with rights to counsel. The failure to comply with these Charter obligations culminated in the unlawfully obtained confession from the Applicant, which formed the basis of the unlawful arrest and illegal detention.

Crown's Submissions

[16] The Crown submits that BSO Chamberlain did not violate Ms. Pereira’s Charter rights. He asked her a number of routine questions; neither his words nor actions support a conclusion that his questioning of Ms. Pereira moved from routine questions to more intrusive questions that triggered a detention and the need to advise her of her s. 10 Charter rights – so the Crown. Mr. Walsh relies on a number of cases in support of his position that BSO Chamberlain did not detain Ms. Pereira before he arrested her and, therefore, had no legal obligation to advise her of her s. 10 Charter rights before he arrested her.

Analysis

[17] These motions raise the following questions:

a. Was Ms. Pereira’s statement to the RCMP officer voluntary? b. Did BSO Chamberlain violate Ms. Pereira’s s. 7, 8, 9, and 10 Charter rights?

A. Was the Defendant's Statement Voluntary?

[18] Mr. Aubin made no submissions regarding the voluntariness of Ms. Pereira’s statement to officer Lucas. None of the officers who interacted with Ms. Pereira following her arrival in Canada on October 2, 2016, threatened or coerced her, neither did any offer her an inducement in exchange for a statement. Ms. Pereira exercised her right to remain silent with respect to cocaine found in her possession. I, therefore, find that her statement was voluntary.

B. Did BSO Chamberlain Violate the Defendant's Charter Rights?

The Law

[19] Section 11 of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) indicates that everyone who arrives in Canada is required “without delay to present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament”.

[20] In R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), Doherty J.A. noted the following at para. 30:

No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada. As the appellant himself testified, travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage. Put simply, the premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. The opposite is true. The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co- operate with that state intrusion in exchange for entry into Canada.

[21] Routine questioning of travellers, the search of their luggage, and perhaps a pat-down search of the traveller, do not engage s. 10(b) and s. 8 of the Charter: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 517 Jones, at para. 32.

[22] Doherty J.A. noted further in Jones at para. 33 that:

[T]he principle against self-incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border: R. v. White, at p. 441 S.C.R., p. 278 C.C.C.

[23] In Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, the Supreme Court of Canada observed at para. 41 that “it would [be] absurd to suggest that routine questioning by Customs officials constitutes a detention for the purpose of s. 10(b).”

[24] In what circumstances would the routine-questioning of a traveller result in the detention of that person? The Court of Appeal noted in Jones, at para. 42 that:

[T]he extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see R. v. Jacoy, [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46. As indicated above, if the person is detained, the assessment of the s. 7 self- incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result.

[25] In R. v. Peters, 2016 ONSC 2230, Dawson J. noted at para. 50 (affirmed by the Court of Appeal in 2018 ONCA 493, at paras. 8-9):

The question is whether a reasonable person placed in the position of the border services officer would conclude that there was such a strong particularized suspicion connecting the accused to a specific crime that the questioning and customs examination had changed from one of routine to a focused investigation of a specific offence.

[26] In what circumstances can it be said that a BSO has detained a traveller in an international border context?

[27] In R. v. Peters, 2018 ONCA 493, at para. 8, the Court of Appeal noted the following:

The trial judge adverted to and 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”. Where the officer has made that decision, the individual may be detained, even when subject to that routine questioning: see R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at para. 42.

[28] In R. v. Canfield, 2020 ABCA 383, at para. 149, the Alberta Court of Appeal noted that:

We agree with the analysis undertaken by the Ontario Court of Appeal in Jones, and also in Sinclair: there can be a point where, what began as routine questioning and a routine search of belongings, becomes sufficiently intrusive that it qualifies as a detention that engages Charter rights. Absent detention, there is no right to counsel and no right to remain silent.

[29] At what point during the questioning of a traveller can it be said that a BSO has engaged in intrusive, non-routine investigation of a traveller, or has formed a strong particularized suspicion that a traveller was committing an offence and has decided to commence an intrusive investigation? In R. v. Ceballo, 2021 ONCA 791, at para. 19, the Court of Appeal identified two alternative ways of identifying when the line has been crossed and a detention will occur.

[30] The first is, as noted by Barnes J. in R. v. Sinclair, 2016 ONSC 877, at para. 43, aff’d 2017 ONCA 297, “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.” The Court of Appeal in Ceballo further noted at paras. 21-22 that:

[21] The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters, 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA), at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters, at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones, at paras. 20-21, 37; R. v. Sahota, at para. 6.

[22] By contrast, searches conducted pursuant to s. 98 of the Customs Act, including strip searches, body cavity searches, and “bedpan vigils”, are intrusive and will trigger a finding of detention: R. v. Simmons, [1988] 2 S.C.R. 495, at p. 521; R. v. Monney, [1999] 1 S.C.R. 652. Of more immediate relevance to the instant case, questions cross the line and become intrusive when they amount to a coercive or adversarial interrogation, contain improper inducements, or exert unfair pressure: Jones, at paras. 41-42; R. v. Darlington, 2011 ONSC 2776, at paras. 75, 79.

[31] Significantly, the Court of Appeal noted in Ceballo, at para. 26 that:

It may be that for a detention to occur, another step is required. Namely, in addition to having a sufficiently strong particularized suspicion, and a subjective decision to engage in an intrusive investigation or detain the subject, the border services officer may have to engage in some action that makes that intention known to the traveller. This requirement is consistent with the foundation for the constitutional concept of detention, resting as it does in the physical or psychological detention of the accused: Simmons, at pp. 515-21. There is also authority, including the decision of this court in Kwok, to support the need for some act by the border services agent that indicates their intention to engage in more intrusive investigation or to detain the subject.

[32] The Court of Appeal elaborated on this requirement at para. 29:

The need for some action by the border services agent that demonstrates their decision to engage in more intrusive measures also finds support in Simmons. There Dickson C.J. found, for a majority of the court, that a traveller was detained once informed that she would be strip searched. He noted, at p. 521, that when this occurred, “the appellant could not have refused and continued on her way.” He made a similar finding in the companion case of R. v. Jacoy, [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the accused was ushered into an interview room for the purposes of conducting a search. In each case the trigger for detention was not the formulation of the subjective intention to engage in intrusive investigation, but rather the steps that had been taken to commence the intrusive investigation, which steps would have made the subject aware that the border services officer had decided to go beyond a routine investigation.

Application of the Law to the Facts

[33] In determining whether BSO Chamberlain crossed the line from posing routine questions to Ms. Pereira to a point where, because of a sufficiently strong particularized suspicion, he engaged in a more intrusive form of inquiry, I must set out the parameters of a “routine” questioning. In Ceballo, the Court of Appeal noted at para. 21 that the use of x-rays and ION scans capable of detecting drugs are routine forms of inspection. The court added that so too is questioning related to contents of luggage, or the provenance of those contents, the marital status and employment status of the traveller, his or her income, or the purpose of the trip. To that list could be added questions regarding when and how a travel ticket was purchased.

[34] In this case, BSO Chamberlain did not ask Ms. Pereira questions that could be considered routine, save and except the first three questions he asked her. These are:

1. Are these your bags?
2. Did you pack them?
3. Are you aware of their contents?

[35] Following these questions, he focused, almost exclusively, in asking Ms. Pereira questions regarding narcotics in an attempt, he testified, to negate the “canine indication”. He, therefore, asked her why the dog had “hit on her”. She replied, “No idea”.

[36] He then asked her if she was around narcotics while outside Canada. She replied, “yes, that she had smoked marijuana and had been around people who had done the same”. Thereupon, he asked her if she had used any other narcotics. She replied she had last used cocaine six years previously.

[37] He then examined her purse and did an ION scan of Ms. Pereira’s sunglasses. He received a positive indication for traces of cocaine. BSO Chamberlain testified that because of the sensitivity of the ION scan, the positive test was an indicator no different than a traveller’s purchase of a ticket at the last minute.

[38] He then explained to Ms. Pereira that if his examination progressed and led him down a road to suspect that she possessed narcotics she would be detained. The officer testified that, at this point, he had no suspicion that Ms. Pereira had narcotics in her possession. He also testified that he did not know that she had been flagged by the Customs computer for mandatory inspection.

[39] BSO Chamberlain pressed on with his questioning by asking Ms. Pereira if she had drugs on or within her. She remained silent for ten seconds before replying, “then just arrest me.” He asked her why. She replied, “I have it.” He asked her, “where?” She said, “Around me.” BSO Chamberlain testified that only then did he formulate reasonable and probable grounds to arrest Ms. Pereira for smuggling under the Customs Act.

[40] The Crown contends that BSO Chamberlain’s subjective belief did not rise to a particularized suspicion that Ms. Pereira may have been involved in the illegal importation of drugs and that this subjective belief was objectionably reasonable in this case. I disagree for the following reasons.

[41] First, after asking her the three routine questions concerning her luggage, the officer’s subsequent questions were focused on ascertaining whether Ms. Pereira was in possession of drug contraband.

[42] Second, I find that his testimony that prior to arresting Ms. Pereira, he had no suspicion that she was in possession or narcotics to be unworthy of belief because of the following:

a) He is an experienced BSO who had inspected hundreds of travellers in the secondary area of the airport; b) The nature of the questions he posed to Ms. Pereira and his own testimony that he was trying to “negate” the K9 indicator, which he viewed as “reliable”; c) His testimony that he knew she was coming from a “high risk” country; d) Officer Lucas’ testimony that BSO Chamberlain told him that Ms. Pereira was “nervous and her voice was trembling” when he asked her questions; e) He testified that she hesitated for ten seconds after he asked her a question following the failed result of the ION test; f) Under cross-examination, BSO Chamberlain agreed that the questions he asked Ms. Pereira were not routine questions, but added in re-examination that questions concerning narcotics are definitely within the scope of routine questions; g) Additionally, I do not accept the officer’s testimony that he did not notice that Ms. Pereira had been flagged by the machine and that the document produced by the machine had indicated that Ms. Pereira was singled out for a mandatory inspection. He inspected the document. He was trained to look out for any information related to the inspection of a traveller. I find it incredible that he could not recall seeing this information on Ms. Pereira’s electronic immigration form.

[43] I am mindful that performing an ION test on an item found in Ms. Pereira’s possession can be considered part of the routine questioning performed by a BSO. So too is the questioning of a traveller about whether they are in possession of illegal drugs: see Canfield, at para. 151.

[44] However, the constellation of factors, in this case, viewed objectively, give rise to the formulation of a particularized suspicion that Ms. Pereira may be involved in the illegal importation of drugs. That explains the narrow focus of the questions the officer posed to Ms. Pereira.

[45] The Crown relies on Ceballo, Dehghani, R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C,A,), R. v. Jacoy, [1988] 2 S.C.R. 548, and Simmons for the proposition that for a detention to have occurred, a BSO may, in addition to having a sufficiently strong particularized suspicion and a subjective decision to engage in an intrusive investigation, have to engage in some action that makes that intention known to the traveller: see para. 26 of Ceballo. However, the court in Ceballo made it clear at para. 30 that this is not the only way of identifying a detention. It noted:

I need not attempt to resolve the full reach of this second, alternative mode of identifying detention. As I will explain, in my view even if no conduct by the border services agent is needed to trigger a detention where objectively the border services agent has a sufficiently strong particularized suspicion, and has made the subjective decision to engage in an intrusive investigation, the trial judge did not err in this case in finding that Ms. Ceballo was not detained.

[46] It also adopted Barnes J.’s observation in Sinclair that “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.”

[47] At the very minimum, BSO Chamberlain should have, when viewed objectively, formed a suspicion that Ms. Pereira had illegal drugs on her possession after he received the results of the ION test. By continuing to ask her questions regarding whether she was in possession of drugs and where, he conscripted her against herself without advising her of her rights to counsel and her right to remain silent. His failure to do so led to a violation of Ms. Pereira’s s. 7 and s. 10 Charter rights.

Section 24(2)

[48] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, paras. 71-78, the Supreme Court identified the following factors as being important in assessing whether evidence should be excluded. These are:

a) The seriousness of the Charter-infringing conduct; b) The impact of the violation on the accused’s Charter-protected rights; c) Society’s interests on an adjudication of the case on its merits.

A. Seriousness of the Charter-Infringing Conduct

[49] The breach of Ms. Pereira’s ss. 7 and 10(b) Charter rights is serious. BSO Chamberlain has worked as a border officer since 2006. He should have known his Charter obligations as they relate to border investigations of which, he testified, he has done hundreds of times. The admission of the incriminating evidence given by Ms. Pereira following the ION scan would be very prejudicial to her. In my view, this factor favours excluding this evidence.

B. Impact of the Breach on the Defendant's Charter-Protected Rights

[50] BSO Chamberlain violated Ms. Pereira’s rights against self-incrimination and her right to speak to counsel. The admission of this evidence would gravely affect trial fairness. To that extent, the impact of the breach on Ms. Pereira’s Charter rights would be quite profound. This factor favours exclusion.

C. Society's Interests in an Adjudication on the Merits

[51] Would the truth-seeking function of the trial be better served by the admission of the evidence or by its inclusion? In my view, the failure to exclude the evidence would send the wrong message of the court condoning the breach of Ms. Pereira’s s. 7 and 10 Charter rights by an experienced BSO who should have been fully cognizant about the rights of travellers. Canadian borders are not Charter free zones. While the law permits routine questioning of travellers and searches of luggage, it does amount to an evisceration of their rights. Undoubtedly, the evidence is crucial to the Crown’s case. However, maintaining fidelity to the rule of law is also crucial to the maintenance of the public’s confidence in the administration of justice. For this reason, this factor also favours exclusion of the evidence.

Conclusion

[52] The drugs seized and Ms. Pereira’s statements confessing to being in possession of cocaine are excluded.

André J. Released: April 12, 2022