R. v. Ackharath, 2022 ONSC 2285

Ruling on Admissibility of Statements

Court File No.: CRIM J(F) 937/21 Date: 2022 04 12 Superior Court of Justice - Ontario

Re: R. v. Viraphone Savina ACKHARATH and Alea Sabira BAKSH

Before: FOWLER BYRNE J.

Counsel: Mark Miller, for the Crown Paul Slansky, for V.S. Ackharath David Humphrey for A.S. Baksh

Heard: March 28 to 30, 2022

[1] Viraphone Savina Ackharath (“Ackharath”) and Alea Sabira Baksh (“Baksh”) are both charged with importing a controlled substance and conspiracy to import a controlled substance. The trial in this matter is scheduled to commence June 6, 2022, before a judge and jury. I am asked to make this ruling in my capacity as case management judge.

[2] The Crown has made an application seeking a ruling that all statements made by Ackharath and Baksh to persons in authority on or about July 29, 2019, are admissible. In particular, the Crown has referred to various utterances made by Ackharath and Baksh to the Borders Services Officers (“BSOs”) during the passenger screening process, and to the post-arrest statements made by Ackharath and Baksh to the BSOs and to the R.C.M.P.

[3] After hearing the evidence of BSO Azael Campos, BSO Alan Hopkins, and R.C.M.P. officer Jatinderpal Johal, both Ackharath and Baksh have conceded the voluntariness of the statements. Ackharath though, argues that her utterances or statements should not be admitted as evidence at trial, as her rights under s.9 of the Charter were violated. She requests that this evidence be excluded pursuant to s. 24(2) of the Charter.

Facts

[4] The facts are largely uncontested. On July 29, 2019, Baksh and Ackharath both arrived at the Toronto Pearson International Airport via a WestJet flight from Port of Spain, Trinidad and Tobago. They attended the Primary Inspection Kiosk (“PIK”) together, obtained a print-out receipt, and then presented that to the primary inspection officer. They answered a few questions and proceeded to obtain their luggage.

[5] On route to obtaining their luggage, they were stopped by BSO Campos, who was on “roving” duty that day. His role was to speak to individuals who were heading towards their luggage and have a conversation with them, to ascertain where they came from, why they were on that trip, and what they do for a living. He had such a conversation with Ackharath and Baksh. At some point after departing the plane, their PIK print-out was marked for a secondary inspection. BSO Campos left them to obtain their luggage from the carousal area.

[6] After obtaining their luggage, Ackharath and Baksh were directed to the secondary inspection area. BSO Campos met them there.

[7] Ackharath waited on a bench while Baksh was called first for an inspection. During that inspection, BSO Campos found evidence of cocaine in the liner of Baksh’s suitcase. Baksh was immediately arrested for smuggling cocaine, cautioned, read her rights, and was provided with an opportunity to contact counsel.

[8] On the day in question, BSO Hopkins was assigned an “air side” role, where he would observe luggage being offloaded from the flight from Trinidad and Tobago. He was aware that Trinidad and Tobago is a source transit country for controlled substances, including cocaine. He would watch the luggage being taken off the plane and placed in the belt system and follow it up to the airport and ensure that all luggage was picked up. This was done to ensure that no baggage handlers were involved or assisted in the smuggling of controlled substances through the checked luggage.

[9] After BSO Hopkins was in the terminal, he heard on his radio that a passenger from that flight was arrested for smuggling. He went to the secondary inspection area to see if assistance was required. When BSO Hopkins arrived, BSO Campos called him over and told him that Baksh was arrested for importing narcotics and that she had a travelling companion that was seated on the bench in that area. BSO Campos showed BSO Hopkins the PIK receipt which showed the companion traveller. BSO Campos stated that the conversation was very fast as he was in the middle of Baksh’s detention and arrest. After his conversation with BSO Hopkins, BSO Campos continued his inspection of Baksh’s suitcase.

[10] BSO Hopkins approached Ackharath. He confirmed her identity by checking her passport to ensure that she was Baksh’s travelling companion. Before he asked her any other questions, he arrested her for smuggling.

[11] At this voir dire, BSO Hopkins said he had reasonable and probable grounds to arrest Ackharath for two reasons. First, she was a travelling companion of someone who was just arrested for smuggling, and second, she was travelling from a source country for drugs. In cross-examination, it was brought to BSO Hopkin’s attention that at no time during his examination in June 2021 did he state that he had considered Trinidad and Tobago, as a source country, as being a factor in formulating reasonable and probable grounds for the arrest.

[12] At his discovery from June 2021, BSO Hopkins was questioned on his reasonable and probable grounds on three occasions. On the first occasion, BSO Hopkins indicated when a travelling companion is arrested for smuggling, he had reasonable and probable grounds to believe the other smuggled as well. On the second occasion, BSO Hopkins reiterated when one party is involved in smuggling, then there are reasonable and probable grounds to believe that the travelling companion was involved as well. No where in his responses does BSO Hopkins say that Ackharath being a travelling companion of Baksh was the only basis of reasonable and probable grounds.

[13] On the final occasion, the exchange was as follows:

Q. Okay, and at the time you arrested Miss Ackharath…aside from the fact that Miss Ackharath’s traveling companion Miss Baksh was arrested for smuggling, you had no grounds to believe that Miss Ackharath was engaged I smuggling, correct?

A. Personally, no, like herself no, but I know she was attached to someone and that gave me reasonable grounds to believe that she could be involved.

Q. I understand, but that’s why I said aside from the fact that Miss Baksh.

A. Maybe I misunderstood the question but yes.

[14] In this exchange, it appears that BSO Hopkins is relying only on the fact that Ackharath travelled with Baksh, as the reason for the arrest. No mention was made of the “source country” factor. BSO Hopkins had no explanation as to why he did not mention the “source country” factor at his earlier examination, but nonetheless, at the voir dire, maintains it was a factor on that day.

[15] Following her arrest, Ackharath was cautioned and advised of her right to counsel. She indicated that she understood and that she wanted an opportunity to speak to counsel. It took approximately 8 minutes to get assistance from another BSO, but then Ackharath was brought to a room in which she could have a private conversation with duty counsel. While she was away, BSO Hopkins stayed in the secondary inspection area with Ackharath’s luggage and waited for her return. From the point Ackharath was arrested until she returned for her luggage inspection (about 40 to 45 minutes afterwards), she was not asked any questions about her trip, her luggage, or her travelling companion.

[16] Before the luggage inspection started, BSO Hopkins asked her the three mandatory questions – Are these your bags? Did you pack them? And, are you aware of the contents? She indicated “yes” to all these questions. BSO Hopkins also asked a fourth question – whether the bags he was about to inspect where the same bags she brought to Trinidad for her vacation. Ackharath answered something along the lines that her lawyer told her not to say anything, but “no”, they were not the same bags she brought to Trinidad. BSO Hopkins testified that the first three questions are mandatory questions to ask at all secondary inspections. While the fourth question was not mandatory, it was part of his training and practice to ask it as well, as the answer given can be an indicator of improper conduct.

[17] The luggage was then search and BSO Hopkins discovered indicators of a controlled substance. Again, Ackharath was arrested, cautioned, and given her right to counsel. She indicated she wished again to speak to counsel. BSO Hopkins did not see Ackharath again when she was brought to speak to duty counsel as another BSO looked after her from that point. He processed her luggage and readied it for the R.C.M.P.

Issue

[18] This court has been asked to determine whether BSO Hopkins violated Ackharath’s rights under s. 9 of the Charter, by not having reasonable and probable grounds to arrest her. If BSO Hopkins did violate Ackharath’s rights under s. 9, I must determine whether any of the admissions she made after that arrest should be excluded.

[19] Given that Ackharath has conceded the voluntariness of her statements, the onus rests with her to prove on the balance of probabilities that her rights under s. 9 were breached.

Law

[20] Section 9 of the Charter guarantees that everyone has the right not to be arbitrarily detained or imprisoned.

[21] In assessing whether a detention is arbitrary, a court must determine if (1) the detention was authorized by law, (2) whether the authorizing law was arbitrary, and (3) whether the manner in which the detention is carried out was reasonable: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124.

[22] Ackharath concedes that the authorizing law is not arbitrary and that the detention was carried out reasonably. She disputes that the arrest itself was authorized by law.

[23] In determining if the arrest was authorized by law, I turn to s. 495(1) of the Criminal Code, R.S.C., 1985, c. C-46, that states that a peace officer, which includes a BSO, may arrest an individual without a warrant if he or she believes, on reasonable grounds, that this person has committed, or is about to, commit an indictable offence.

[24] Police are required to have reasonable and probable grounds that a person has committed an offence before they can arrest them. If an officer has reasonable and probable grounds to arrest someone, then the arrest is not arbitrary and is, therefore, authorized by law: See R. v. Storrey, , [1990] 1 S.C.R. 241, at para. 12, 14.

[25] It is not enough for the police officer to subjectively believe that he or she has reasonable grounds to make an arrest. Rather it must also be established that those perceived grounds were objectively reasonable and probable grounds. In other words, it must be determined whether a reasonable person, standing in the shoes of the police officer, would believe that reasonable and probable grounds existed to arrest: See Storrey, at para. 16-17.

[26] Ackharath does not dispute that BSO Hopkins subjectively believed he had reasonable and probable grounds to arrest. The question to be determined is whether objectively, there were reasonable and probable grounds.

[27] In Hunter v. Southam, , [1984] 2 S.C.R. 145, the Supreme Court reviewed what was considered reasonable and probable in the context of a search and possible violation of s. 8 of the Charter. The court determined that reasonable and probably grounds must be more than suspicion, or a belief that there may be evidence, but rather credibly-based probability: See Hunter v. Southam, at page. 167.

[28] In R. v. Amare, 2014 ONSC 4119, affirmed 2015 ONCA 673, Justice Hill sets out in paragraph 83, a list of fourteen (14) considerations when determining if the police breached s.9 of the Charter. Of relevance to this application are the following:

a) the fact that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that the belief is objectively reasonable;

b) reasonable and probable grounds does not involve a mathematical assessment of facts and circumstances but rather a common-sense, non-technical approach – it is necessarily a qualitative standard upon which reasonable people can differ in some cases;

c) you should consider the totality of the circumstances and the relevant facts cumulatively, and determine where credibly-based probability replaces suspicion and possibility;

d) reasonable probability does not require that the level of confidence of the officer rise to the equivalent of, or beyond, a balance of probabilities:

e) in assessing whether she or he has reasonable grounds, a police officer must take into account all available information disregarding only such information as she or he has good reason to believe is unreliable; the officer is not required to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations;

f) a court reviewing the existence of reasonable grounds concerns itself only with the circumstances known to the officers;

(citations omitted)

Analysis – Section 9

[29] On the facts before me, I find that BSO Hopkins had reasonable and probable grounds to arrest Ms. Ackharath. In so finding, I rely not only on what BSO Hopkins stated in his testimony but also on the uncontested surrounding circumstances that were known to him on the day of the arrest.

[30] First, we know that BSO Hopkins was on duty that day to inspect the off loading of luggage from the plane on which Ackharath flew from Trinidad and Tobago. The place of origin of the flight was know to the Border Services Agency as a source transit country for controlled substances. That is why they watched the off load of luggage and ensured no collusion by the baggage handlers. That is why BSO Hopkins was posted there that day.

[31] It is acknowledged that BSO Hopkins did not indicate that he relied on this factor at his examination in June 2021. I do not believe though, that BSO Hopkins only thought of this after the fact, in order to retroactively strengthen his reasons for arrest. On the day in question, the fact that Trinidad and Tobago was a source country was the reason he observed the luggage off loading from that flight. I accept that this fact would have been on his mind. It was the objective reality of his shift that day. I do not find his addition of this factor at the voir dire to be an attempt to mislead the court.

[32] Secondly, BSO Hopkins knew that Ackharath was already flagged for secondary inspection. While BSO Hopkins would not have had an opportunity to speak to the BSO that originally flagged her and the reasons for that flag, he would have known that something about this passenger was suspect enough to warrant a secondary inspection.

[33] Finally, BSO Hopkins knew that Ackharath’s travelling companion had just been arrested for smuggling cocaine from Trinidad.

[34] So, when BSO Hopkins approached Ackharath in the secondary inspection area, the following facts were objectively evident: (1) Baksh and Ackharath were travelling together; (2) Baksh and Ackharath had both come from Trinidad, a source transit country for controlled substances; (3) both Baksh and Ackharath were flagged for secondary inspection, and (4) evidence of cocaine was found in Baksh’s luggage. In these circumstances, it was objectively reasonable that BSO Hopkins would have more than a suspicion that Baksh was also involved in some manner.

[35] Accordingly, viewed in the totality of the circumstances, I find that the arrest of Ackharath was not arbitrary and, therefore, lawful.

Analysis - Section 24(2)

[36] Even if it was determined that Ackharath’s rights under s. 9 were violated, I do not find that the admission of the statements made by Ackharath after her arrest would bring the administration of justice into disrepute.

[37] Section 24(2) of the Charter is triggered where evidence is obtained in a manner that violates an accused’s Charter rights. An inquiry under s. 24(2) examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on (i) the seriousness of the Charter-infringing state conduct, (ii) the impact of the breach on the accused’s Charter-protected interests and (iii) society’s interest in the adjudication of the case on the merits. The court’s role on a s. 24(2) application is to balance the assessments under these three inquiries and determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71.

[38] While the first two inquiries typically pull towards the exclusion of evidence, they need not pull with identical degrees of force in order to compel exclusion. Evidence can be excluded even if only one of the first two questions supports exclusion. The third line of inquiry, while not a rubber stamp deeming all evidence reliable, typically pulls towards admission. When, however, the first two inquiries taken together make a strong case for exclusion, “the third inquiry will seldom if ever tip the balance in favour of admissibility”: Le, at paras. 141-142.

[39] A temporal connection between the breach of a Charter right and the discovery of evidence is enough to engage a s. 24(2) analysis, even if there is no causal connection between the breach and the evidence obtained: R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 83; R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 79.

[40] Any analysis under s. 24(2) should be conducted so that it considers the cumulative effect of the various Charter breaches: R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 62.

i. Seriousness of Breach

[41] When determining the seriousness of the breach, the court should determine whether the police engaged in misconduct from which the court should disassociate itself. On the more serious end of the spectrum is wilful or reckless disregard of Charter rights which will have a negative effect on the public confidence in the rule of law and bring the administration of justice into disrepute. On the other end of the spectrum is inadvertent or minor violations of the Charter, or an understandable mistake, which would not undermine public confidence in the rule of law: Grant, at paras. 72-74; Thompson, at para. 83.

[42] If there was a breach, I do not find that there was a serious breach of Ackharath’s s. 9 rights. There was no wilful or reckless disregard for her Charter rights. The BSO was mindful of Ackharath’s rights, as shown in the way she was arrested and immediately informed of her other rights and given the opportunity to exercise them. I cannot say though, that this was a minor breach. It was not an oversight or technical error - one cannot be arrested by accident. Accordingly, if it was an arbitrary arrest, it was a non-trivial violation of her rights.

ii. Impact of the Breach

[43] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. The court must evaluate the extent to which the breach undermined the interests protected by the right infringed. The impact of the breach may range from fleeting and technical to profoundly intrusive. The more serious the impact of the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, bringing the administration of justice into disrepute: See Grant, at para. 76.

[44] The purpose of s. 9 is to protect individual liberty from unjustified state interference, but also to protect against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification: See Grant, at para. 20; Le, at para. 25.

[45] In the case before me, I do not find this arrest, if found to be arbitrary, seriously impacted Ackharath’s protected interests. She was already subject to an authorized detention under the Customs Act, R.S.C., 1985 c. 1 (2nd Supp.), in order that her bags be inspected. Nothing different would have happened if she were not arrested, except that she was given an opportunity to obtain legal advice even before her bags were searched.

[46] In addition, the coercive pressures of her detention and arrest were significantly reduced by the fact that she was cautioned, advised of her right to counsel, and immediately given the opportunity to speak to counsel, all before any questions were asked of her or before her bags were inspected. When her luggage was inspected and a controlled substance found less than an hour of her arrest, she was arrested again. No one has alleged that this subsequent arrest was arbitrary.

iii. Societal Interests

[47] Society expects that a criminal allegation will be adjudicated on its merits. In considering this final factor, the court is asked to determine whether the admission of the evidence, even if obtained due to a breach of the Charter, would assist the court in its truth-seeking function. If the breach undermines the reliability of the evidence, then the court should be more inclined to exclude it. On the other hand, the exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute: See Grant, at paras. 79-81.

[48] In the case before me, the breach, if it occurred, does not undermine the reliability of the evidence, given that Ackharath was fully informed of her rights prior to her bags being inspected and was given the opportunity to speak to counsel immediately thereafter. While the exclusion of Ackharath’s statements will not cause the Crown’s case to crumble, it would deprive the trier of fact of the complete factual context of the charges.

[49] An analysis under s. 24(2) requires an approach that balances the competing relevant factors with a view to maintaining the long-term repute of the administration of justice: See R. v. Hobeika, 2020 ONCA 750, 153 O.R. (3d) 350, at paras. 76, 83. While the breach was moderate, the impact on Ackharath’s rights was not serious. In this situation, I do not find that the admission of this evidence would bring the administration of justice into disrepute.

Conclusion

[50] Accordingly, the Crown application is granted, and the statements made by Baksh and Ackharath to persons in authority on or about July 29, 2019, are admissible at trial.

Fowler Byrne J. DATE: April 12, 2022