R. v. BOATENG, 2026 ONSC 2959

COURT FILE NO.: CRIM J(F) 742/25

DATE: 20260520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DONALD EDUSEI BOATENG

A. Seagal, for the Crown

A. Dang, for the Defendant

HEARD: April 6, 2026

RULING ON VOLUNTARINESS

(bottom-line decision was delivered on the record at trial on April 9, 2026; these are my reasons for decision on the ruling)

MCSWEENEY J.

1The defendant, Donald Edusei Boateng, is charged with importing controlled substance into Canada contrary to s. 6(1) of the Controlled Drugs and Substances Act.

2He arrived at Pearson airport Terminal 1 on the evening of January 20, 2025 on an Air Canada flight from Frankfurt Germany. He was arrested by Border Services Officer (“BSO”) DiMarco at secondary inspection after suspected narcotics were found in his suitcase. It was subsequently confirmed that the suitcase contained a total of 24,955.5 g of ketamine, packaged in five separate bags.

3The Crown seeks a ruling on the admissibility of statements made by the Defendant to BSO DiMarco, or in the presence of BSO DiMarco, prior to the discovery of suspected narcotics and prior to his arrest.

4This is a voluntariness application only. The defence has not brought applications for any Charter relief. There is no issue that the defendant was cautioned and given his right to counsel when arrested. He made no further statements after that point.

5Counsel for the Defendant does not concede voluntariness and puts the Crown to its burden of proof. He emphasizes two factors relevant in this case to the voluntariness inquiry: (1) that the Border Services Officers ("BSOs") asked questions to Mr. Boateng without any prior caution; and (2) that no audio or video recording was made of Mr. Boateng’s statements to the BSO’s.

6Ater hearing the evidence, defence counsel conceded that this is not a Moore-McFarland analogous case as there was no audio recording available at secondary inspection. He therefore modified his second argument to argue that voluntariness cannot be found beyond a reasonable doubt.

Evidence on the Voir Dire

7The Crown called four witnesses on the voir dire, in this order: Student BSO K Ramkissoon, Student BDSO DiGiorgio, BDSO Dimarco and BSO Choudry. It also introduced a short video of CCTV video from secondary customs inspection

8The defence called no evidence.

Summary of relevant evidence:

9Student BSO Ramkissoon was the first border services officer who interacted with the Defendant at Pearson airport. She was working at the “prepodium line” in the primary inspection hall. She had a very short interaction with the Defendant in which she checked his receipt from the Primary Inspection Kiosk (“PIK”) machine. It was coded for secondary inspection, so she directed the Defendant to join the line leading to a BSO in a “booth”. This brief interaction was her only contact with the defendant.

10BSO DiGiorgio testified that January 20, 2025 he was still a Student BSO (or “SBSO”) and was working in triage booth #30 in the Terminal 1 primary inspection hall. His interaction with the Defendant began when the Defendant approached his booth. He asked to see his passport, boarding pass and PIK receipt. The PIK receipt contained a code requiring him to refer the defendant to customs secondary inspection. He asked the Defendant some questions about the nature of his trip and the purpose of his visit to Canada. The witness explained that because the Defendant was a foreign national, he also made a referral to “immigration secondary” for him to speak to an immigration officer. Accordingly, the next step for the Defendant after leaving his booth was to goto secondary immigration to speak to an immigration officer.

11BSO Matthew DiMarco had been with Canadian Border Services for over six years when he became involved with the Defendant’s referral to immigration secondary.

12BSO DiMarco testified with the assistance of notes made at the time or later that same shift in his issued notebook; and with reference to a report he typed later that shift also. He began his evidence in chief by identifying two subsequent changes made by himself to his typed report. The first was the addition of a date. He added the specified date on an additional page a few weeks after typing the report. The addition was requested by the seizures unit that had by that time received his typed report.

13BSO DiMarco testified that the second change to his report was made on his own initiative, shortly before testifying at the preliminary inquiry in September 2025. At that time he changed the word “lookout” to “target”. He testified that he made this change because he had learned after he typed the report that a “lookout” and a “target” were not in fact interchangeable terms, as he had believed on January 20, 2025. He made the change because he understood at that time that Mr. Edusei Boateng had been a mandatory referral to secondary inspection as a “target”.

14While working at the immigration secondary inspection counter on January 20, 2025, the Defendant came up to BSO Dimarco’s counter when the officer called out for “next in line”. The Defendant handed over his passport, boarding pass and PIK receipt when requested. BSO DiMarco then looked up the Defendant on the “ICS” program on his computer, and learned that Mr. Edusei Boateng was a “customs target”. BSO DiMarco stated that this did not affect the questions he asked in his immigration examination, but it meant that the traveller would have to proceed to customs secondary examination.

The Defendant’s Statements at Immigration Secondary

15BSO DiMarco explained that the purpose of immigration secondary inspection is to determine the admissibility of a person to Canada. For that reason he asked the Defendant questions about his trip to Canada, purpose, funds, accommodation. He noted Mr. Edusei Boateng’s answers to questions as follows (answers in italics):

• How long are you coming to Canada for? On vacation for four days

• How much currency are you travelling with? About $200 Canadian

• Do you have a credit card or access to a bank account or other money? I do not have a credit card ; I have four dollars in a debit or bank account; 300 euros will be deposited to my bank account from my job on Friday.

• What do you do for a living? I am an amateur soccer player

16BSO DiMarco testified that the Defendant also stated that he may be attending “law school in September” and that they had more discussion about soccer because it was a common interest. They spoke about the positions they each played on soccer teams. The Defendant told BSO DiMarco that he admires Canadian soccer player Alphoso Davies, that he wanted to come to Canada to see where Davies grew up.

17Regarding accommodation, BSO DiMarco testified that the Defendant showed him a booking on his phone which appeared to confirm a hotel booking for four nights. He asked the Defendant to show him confirmation that the hotel was till booked, but he could not. Mr. Edusei Boateng said his brother had planned the trip and booked it. During the examination he “looked at his phone a lot to get answers to things I would ask him". When asked if he had a return flight booking, the Defendant said he did not, but that he would be buying a return ticket that Friday when get gets paid.

18BSO DiMarco testified that the above examination at immigration took approximately 20 minutes. At that point he did not think that the Defendant was a genuine visitor to Canada, as he did not think the Defendant was going to leave Canada at the end of his four-day stay. He wanted to examine his bags for further documentation to confirm or disprove the Defendant’s stated travel plans. For that reason he then asked a colleague, Officer Choudry, to assist him in escorting the Defendant to the baggage hall.

The Defendant’s Statements in the Baggage Hall

19BSO’s DiMarco and Choudry escorted Mr. Edusei Boateng to the baggage hall. They told the Defendant they would take him to pick up his bags and then they would be searched. In the baggage hall the officers pointed Mr. Edusei Boateng to the next carousel over where the Frankfurt flight baggage was being unloaded. They waited while he retrieved his bag. He returned to where they were standing wheeling a large grey suitcase. BSO DiMarco noted Mr. Edusei Boateng’s answers to questions as follows (answers in italics):

• Is that your bag? Yes

• Do you have any other bags? No, just one

20The two officers then escorted the Defendant to customs secondary inspection, a walk of a few minutes from the baggage hall.

21I note that the entrance of the Defendant to the customs secondary hall, and the activities of the officers up to and including the handcuffing and arrest of the Defendant, were depicted on CCTV footage made an exhibit on the voir dire. That video begins in relevant part by showing the three men walking out of a hallway, toward secondary inspection, BSO DiMarco leading, Mr. Edusei Boateng a few meters behind, and BSO Choudry a further distance behind him. officers were waiting for him.

22BSO DiMarco had earlier in his testimony explained that he is trained and authorized to conduct both immigration and customs secondary examinations of travellers. On arrival in customs secondary, BSO DiMarco seated himself behind Counter #2. BSO Choudry remained standing behind him at the counter. Mr. Edusei Boateng was standing on the passenger side of the counter across from BSO DiMarco at the commencement of the customs secondary examination.

23BSO DiMarco logged into the customs secondary “ICES” program (distinct from the ICS program referenced earlier) and found that Mr. Edusei Boateng was a “target” for suspected contraband, and that he had a return ticket. BSO DiMarco testified that he then told Mr. Edusei Boateng that he did have a return ticket and asked why he did not know he had a return ticket. Mr. Edusei Boateng then showed him on his phone a return ticket that his brother had sent him.

The Defendant’s Statements at Customs Secondary Inspection

24Prior to beginning his inspection of the Defendant’s bags, BSO DiMarco asked questions and noted Mr. Edusei Boateng’s answers to questions as follows (answers in italics) regarding his duffel bag carry-on and the large grey suitcase:

• Are these your bags? Yes

• Did you pack them yourself? Yes

• Are you aware of all the contents inside these bags? Yes

25BSO DiMarco then emptied the duffel bag and examined its contents. He then prepared to search the suitcase and observed a gold-coloured key lock on it. BSO DiMarco asked Mr. Edusei Boateng for the key. He replied that he did not have the key. As he said this, Mr. Edusei Boateng pushed the large suitcase away from himself with his hands, stating “this is not my suitcase, this is my brother’s suitcase”.

26BSO DiMarco gave evidence that after cutting the lock and examining the contents of the suitcase, he found large packages of suspected narcotics and arrested the Defendant.

27The fourth and final witness on the voir dire was BSO Choudry, reference above, who was asked by BSO DiMarco to assist him. BSO Choudry’s evidence confirmed that he became involved in assisting his colleague to walk Mr. Edusei-Boateng to the baggage hall, where he retrieved the grey suitcase. He testified with reference to his own notes to refresh his memory, to statements made by the Defendant. With perhaps slight wording variance as to the phrasing of the question and answer in the baggage hall about the number of checked bags he had (DiMarco: “do you have any other bags? No just one” vs “is this your only bag? Yes this is my only one”), BSO Choudry’s notes and testimony corroborated the questions and responses of BSO DiMarco as set out in detail above.

28In addition to the narrative evidence summarized above, each CBSA witness testified that Mr. Edusei Boateng interacted with them in an unremarkable fashion, that they understood him and were understood by him when they interacted with him. BSO DiMarco and Choudry also confirmed the Defendant followed their directions and did not appear to be under any disability or mental condition during their interactions with him.

29The Crown witnesses were also asked in chief and stated they did not themselves do so, nor did they observe anyone else threaten, physically or verbally, offer inducements, or otherwise treat Mr. Edusei Boateng in an oppressive manner. Nor was any witness aware of any request made by the Defendant at any time during their interactions for food or water or a washroom.

Legal Framework

30It has long been recognized that circumstances beyond “fear of prejudice or hope of advantage”, (Ibrahim v. The King, [1914] A.C. 599 (P.C.)) must be considered in assessing whether a statement made by an accused to a person in authority was made voluntarily. “The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.” R. v. Fitton, [1956] S.C.J. No. 7

31The Supreme Court in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. No. 38 set out the principal components of the contemporary confessions rule, emphasizing, at paragraph 47, that the application of the rule will of necessity be contextual and trial judges must take into account all relevant factors. (also in R. v. Singh, 2007 SCC 48, [2007] S.C.J. No. 48 at paragraph 53) The components are: a) threats and promises; b) oppression; c) operating mind and d) police trickery. The components, and how they may interact, must be considered in assessing whether a statement is voluntary.

32The Supreme Court in Oickle enumerated certain factors that can create an atmosphere of oppression rendering a statement involuntary. These may include deprivation of sleep, clothing, water, food, medical care, access to counsel or excessively aggressive intimidating questioning over a prolonged period of time (at paragraph 60). The particular circumstances of the person being questioned, like age, inexperience with the justice system and/or lack of sophistication must be considered in determining whether there is an atmosphere of oppression influencing the accused’s decision to speak to police: R. v. Horvath, 1979 CanLII 16 (SCC), [1979] S.C.J. No. 54

33It is also important to recognize that the mere fact of an arrest or detention is likely to produce apprehension and anxiety in the person detained. R. v. Boudreau, [1949] S.C.J. No. 10. The particular circumstances of the arrest and the detention must be examined to determine whether they contributed to an atmosphere of oppression affecting the accused’s decision to speak to police.

34The Ontario Court of Appeal decisions in R. v. Moore-McFarlane 2001 CanLII 6363 (ON CA), [2001] O.J. No. 4646 (Ont. C.A.) and R. v. Ahmed 2002 CanLII 695 (ON CA), [2002] O.J. No. 4597 (Ont. C.A.) establish that the Crown must introduce a complete, accurate and reliable account of the circumstances leading up to and including the taking of the statement.

Analysis:

35I am mindful that the Ontario Court of Appeal decisions in R. v. Moore-McFarlane and R. v. Ahmed establish that the Crown has the onus of proving threshold reliability on the voir dire. The sufficiency of the record introduced by the Crown is relevant when determining whether it has discharged its onus.

36The Crown must introduce a complete, accurate and reliable account of the circumstances leading up to and including the statement made by the defendant. I am satisfied that the record, comprised of testimony of all BDSA officers who interacted with the Defendant from his arrival in the primary inspection hall at Pearson Terminal 1 through to his arrest in customs secondary, and video CCTV footage of the customs secondary hall throughout the Defendant’s time there, constitutes a sufficient record.

37With respect to the Defence argument that the changes made by BSO DiMarco to his typed report, I note the following: the officer appropriately drew the court and parties’ attention to the changes at the beginning of his evidence, explained the changes, and was cross-examined on them. Neither change was an amendment to what the officer saw, said or heard while interacting with the Defendant, nor does either change his evidence about the statements made by the Defendant. To the extent that any changes to records are a concern, cross-examination is available for the defendant to canvas that evidence at trial.

38With respect to the Defence argument that officer notes are less accurate, as they may not be “verbatim” but may frequently be a “paraphrase” of what was said, I note the following: first, in this case, there is no suggestion of “missing minutes” of video or missing notebooks. There are contemporaneous notes and same-day or same-shift typed reports with the level of accuracy that depends on many factors relating to the circumstances in play and the skills of the note-taker. As such, the accuracy of notes, and the refreshed recollection of any witness referring to those notes while testifying, is properly the subject to cross-examination to assist the court in determining credibility and reliability. In sum, on this point, the Defendant’s concerns do not go to voluntariness, but may be raised in cross-examination and raised in submissions as to reliability and credibility of the note-taking witness (see on this point R v O’Marra Williams, 2015 at para 35)

39I turn now to the defence submission that voluntariness cannot be found with respect to the statements made by Mr. Edusei Boateng in the baggage hall and at customs secondary because he was not cautioned. Counsel argued that by the time BSO DiMarco had formed the view, based on questions at immigration secondary, that the Defendant was not a “genuine visitor to Canada”, he was required to cautioned him. Counsel contended that as an identified “target”, Mr. Edusei Boateng was entitled to be cautioned as soon as the suspicions of the officer had “crystallized” as any questioning from that point forward cannot be considered “routine”, as he was effectively detained at that point.

40The authorities filed did not provide support for the defence argument. In the voluntariness analysis in this case, the foundational context is that of the Canadian international arrivals cases at the border, which is the relevant context for analysing the CBSA actions on this application.

Conclusion:

41A reasonable doubt, as juries are told everyday in our criminal justice system, is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence.

42It is the onus of the Crown to prove beyond a reasonable doubt that the Defendant’s statements to the border services officers, made prior to the discovery of suspected narcotics in his luggage, were voluntary.

43As a threshold matter, I have found the record tendered by the Crown to be thorough and to enable the voluntariness analysis to be conducted.

44In reaching the conclusion that the statements were, indeed, made voluntarily, I have considered all the evidence on the voir dire, the testimony of the witnesses, the authorities relied on by the parties, and the written and oral submissions of counsel.

45Having done so, I have reviewed the case law specifically the guidance of the Ontario Court of Appeal in the customs and immigration environment of Canada’s international airports, where all arriving passengers, foreign or domestic, have a legally reduced expectation of privacy as the authorities perform their duties of searching for suspected contraband in the furtherance of national security.

46I am satisfied beyond a reasonable doubt that the statements made in this case by the Defendant in response to the questions of BSO DiMarco were given voluntarily. I have also considered Mr. Edusei Boateng’s relative youth (20 at the time of his arrest). Having done so, I remain satisfied beyond a reasonable doubt that there was no atmosphere of oppression influencing the Defendant when he made the statements set out above.

47I find that the statements made by Donald Edusei Boateng to Officer DiMarco prior to his arrest were given voluntarily and are admissible at his trial.