R. v. Granston

R. v. Granston Collection Decisions of the Court of Appeal Date 2000-06-28 Docket numbers C29926 Judges Abella, Rosalie Silberman; Laskin, John Ivan; Rosenberg, Marc Subject Criminal Decision Content DATE: 20000628 DOCKET: C29926 COURT OF APPEAL FOR ONTARIO ABELLA, LASKIN and ROSENBERG JJ.A. BETWEEN: ) ) Wendy Oughtred HER MAJESTY THE QUEEN ) for the appellant ) Respondent ) ) - and - ) James W. Leising and ) Jordan S. Solway ROHAN GRANSTON ) for the respondent ) Appellant ) ) Heard: June 10, 1999 ) On appeal from the conviction imposed by Simmons J. dated March 20, 1998. ABELLA J.A.: [1] Rohan Granston was found guilty of importing a narcotic contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1985, c. N-1, and sentenced to a 6-year term of imprisonment. He received credit for 21 months pre-trial custody. After a voir dire, the trial judge found that Mr. Granston’s rights under ss. 10(b) and 8 of the Charter of Rights and Freedoms had been violated, but refused to exclude the evidence under s. 24(2). [2] At the outset of the trial, Mr. Granston’s counsel advised the court that if she was not successful in excluding the evidence on the voir dire, her client would change his plea from not guilty to guilty. Following the ruling dismissing the application to exclude evidence, counsel for Mr. Granston did in fact advise the court that “as originally indicated, my client will be changing his plea.” He was accordingly rearraigned and entered a plea of guilty to the charge. [3] The court was advised of the following facts which were confirmed as being “substantially correct” by Mr. Granston’s counsel: On April 14th, 1996, the accused arrived at Toronto International Airport on Royal Air Flight 175 from Venezuela. At that time, the accused was roved by Customs official and sent to secondary … to the secondary section of the airport for a secondary examination. During the search of the accused or following the search of the baggage, the accused was detained and brought into an examination room where he was searched and three packages containing 2,500 grams of Cocaine were found strapped or taped to his body. The accused was arrested, given his rights and then he was duly processed and charged. His rights were given at the time of the detention, Your Honour. And the approximate street value of the cocaine is $375,000. [4] In her submissions on sentencing, counsel for the appellant urged the court to consider the guilty plea as a mitigating fact. The trial judge gave effect to this submission, characterizing the sentence as the “lowest sentence I can properly impose” and concluding: As noted, Mr. Granston pleaded guilty to this offence. Although this was done after a voir dire and evidentiary ruling, I consider that Mr. Granston remained entitled to the mitigation arising from a plea of guilty, as there were serious issues to be determined on the voir dire. [5] This is an appeal by Mr. Granston both of the ruling by the trial judge on the voir dire and his resulting conviction. [6] Mr. Granston also asks that his guilty plea be struck. The Crown argued that the plea was deliberate and voluntary, and that there was no evidence before this court suggesting that the guilty plea should be set aside to prevent a miscarriage of justice. Since I have concluded that the trial judge did not err in admitting the evidence, I need not decide whether the plea should be struck. It should be noted, however, that a conditional guilty plea is unknown in law: see R. v. Fegan (1993), 80 C.C.C. (3d) 356 (Ont. C.A.). BACKGROUND [7] After a one-week trip to Venezuela, the appellant and his female companion arrived at Canada Customs at Pearson International Airport on April 14, 1996. The first Customs inspector, who asked them several questions and checked their travel documents, was satisfied with the appellant’s answers and marked their Customs cards “free to go”. After this initial point, however, the appellant and his companion were referred to a secondary inspector because their cards were marked with a blue slash by Inspector Volk, a member of the roving flexible response team. The blue slash indicated that the bearer of the card should be referred to another examination. The referral for a secondary examination was made at about 11:25 p.m. [8] Members of the flexible response team are not assigned to any particular position, but are responsible for stopping and questioning passengers randomly to check for contraventions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) or any other Act. Inspector Volk had been a Customs officer for six years and a member of the flexible response team for about four months. His evidence was that passengers were stopped and questioned about any discrepancies between their declaration cards and what they were actually bringing into the country. He stated that some flights would be targeted either because of a record of significant infractions or because the flight came from a known drug source country. When Inspector Volk was asked how many drug source countries there were, he answered: “In today’s day and age, every country is a drug source country.” On the evening of April 14, 1996, the Royal Airlines flight from Venezuela on which the appellant was travelling, was targeted. [9] Inspector Volk was standing in the hallway, stopping people and interviewing them. He forwarded the appellant for a secondary examination so that his declaration could be checked by way of a luggage search. [10] Inspector Volk stated that during the examination of the appellant’s luggage, even though the appellant appeared relaxed, he was sweating quite heavily. The appellant told Inspector Volk that he lived in Whitby with his parents and worked in downtown Toronto. It was during this luggage examination that Inspector Volk learned that the appellant had paid for both his and his companion’s airline tickets in cash. There was no evidence of contraband in the appellant’s luggage. The interview with the appellant and the luggage search took approximately one half hour. [11] After the baggage search and the interview, Inspector Volk consulted a superior, Superintendent Hogan, and asked for permission to conduct a personal search. Inspector Volk told Superintendent Hogan what his grounds were and he was given permission to search the appellant. The grounds that he gave Superintendent Hogan were the following: the appellant was returning from Venezuela, a drug source country; the previous December the appellant had made a trip to Jamaica, another drug source country; the appellant had very little luggage; the appellant had purchased his and his companion’s airline tickets with cash very shortly before the trip; the appellant had a low paying job as an apprentice chef; and the appellant was sweating heavily, although he appeared to be relaxed. [12] The appellant was detained. Inspector Volk read him his rights to counsel and cautioned him at 10 minutes after midnight. When the appellant said that he wished to speak to a lawyer, a call was placed to his lawyer and a message left on the lawyer’s answering machine. At 22 minutes after midnight, Inspector Volk called duty counsel and left a message on a voicemail system. Inspector Volk then explained the situation to the appellant and said he asked him to read a poster size version of s. 98 of the Customs Act, which was posted on the wall. This was a standard practice, according to Inspector Volk. [13] Section 98 of the Customs Act states: 98. (1) An officer may search (a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada, (b) any person who is about to leave Canada, at any time prior to his departure, or (c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area, if the officer suspects on reasonable grounds that the person has secreted on or about his 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. (2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place. (3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched. (4) No person shall be searched under this section by a person who is not of the same sex, and if there is no officer of the same sex at the place at which the search is to take place, an officer may authorize any suitable person of the same sex to perform the search. [Emphasis added.] [14] The appellant was asked to read the poster at 28 minutes after midnight. According to Inspector Volk, at 12:30 a.m., the appellant said he wanted the search to begin. It was Inspector Volk’s impression that the appellant understood and agreed to the search. The search did in fact begin at 12:31 a.m. and at 12:34 a.m. packets of cocaine were discovered taped to the appellant’s legs. The quantity was 2500 grams, with an estimated street value of $375,000.00. [15] Inspector Volk, in cross-examination, acknowledged that there was nothing to prevent him from delaying the search until the lawyer called back. Legal Aid duty counsel did in fact return the call at 1:00 a.m. and, at that time, the appellant had a private conversation with a lawyer. The R.C.M.P., who were called by Inspector Volk at 1:10 a.m., arrived at 4:50 a.m. [16] Inspector Downer was another member of the flexible response team. He was asked to assist in the personal search of the appellant. Inspector Downer entered the search room at 12:30 a.m., at which time Inspector Volk placed a call to Legal Aid duty counsel. He confirmed that Inspector Volk explained to the appellant that it could take anywhere from five minutes to three hours for duty counsel to call back, and that it was up to the appellant whether to wait. [17] Inspector Downer’s notes, however, indicated that at 12:34 a.m. the appellant was arrested and cautioned by Inspector Volk, but that the appellant was willing to wait for Legal Aid to call back. He confirmed that his notes indicated that the search had already commenced at 12:41 a.m. He also stated that the appellant was very co-operative, relaxed and passive. He gave no evidence about the appellant sweating. [18] At some point, while he was in the room with the appellant, Inspector Downer advised Inspector Volk that a personal search of the appellant’s female travelling companion had been carried out at 11:45 p.m. with negative results. [19] The appellant testified on the voir dire. He said that his luggage consisted of two handbags and a weekend travel bag. He confirmed that he and his companion passed through the first customs inspection and had already picked up their luggage when Inspector Volk tapped him on the shoulder and asked him to go to a secondary inspection. He answered Inspector Volk’s questions and told him that he was a Jamaican citizen but had landed immigrant status in Canada. He told Inspector Volk that he made trips to Jamaica because he had had an accident there in 1989 and had legal matters to attend to. He advised Inspector Volk that he lived in Whitby with his parents, was an apprentice chef, and earned about $2,400 per month. He provided Inspector Volk with one of his pay stubs for verification. He said that he was sweating because he was warm. [20] The appellant further testified that Inspector Volk, after searching both his and his companion’s luggage, told the appellant that he was not satisfied with the search and that he believed that the appellant was carrying narcotics. [21] According to the appellant’s evidence, Inspector Volk then took his and his companion’s documents and went away for about 15 minutes. Upon his return, he took the appellant to a search room and had the companion taken to another search room. Inside the room, Inspector Volk read the appellant his rights and the appellant said that he wished to speak to a lawyer. Calls were placed both to a lawyer he knew and to Duty Counsel. The appellant stated that another male then came into the room with a camera and both officers then said “okay, we have to begin the search now.” [22] The appellant testified that he was under the impression that he had exhausted his right to counsel by leaving messages with his lawyer and Legal Aid, and that he had no choice but to submit to the search. He denied that there was a poster on the wall setting out s. 98 of the Customs Act, that he was asked to read anything on the wall, or that he was advised of his right to a review of the decision to search him. He never told the customs officers that he did not wish to wait for a lawyer before proceeding with the search. [23] On cross-examination by the Crown, the appellant acknowledged that he had a criminal record consisting of a conviction for theft in 1992 and a conviction for failure to comply with a recognizance in 1992. He had been arrested on four to six occasions between 1988 and 1993. [24] The main issues on the voir dire were whether the accused’s rights under ss. 10(b) and 8 of the Charter were violated and, if they were, whether the breaches mandated the exclusion of the evidence under s. 24(2) of the Charter. The trial judge set out the following four issues in her voir dire ruling: (1) what was the nature of any Charter violation; (2) if the strip search was conducted in breach of the accused’s Charter rights, does contraband found strapped to an accused’s body amount to conscriptive evidence, as defined in R. v. Stillman, [1997] 1 S.C.R. 607; (3) if the contraband amounts to conscriptive evidence was it discoverable; (4) if the contraband is not conscriptive evidence, or, if it is conscriptive evidence but was discoverable, does the seriousness of the breach warrant exclusion of the evidence, and what would be the effect of exclusion of the evidence on the repute of the administration of justice. [25] On the voir dire, the appellant argued that there was a breach of s. 10(b) since, despite his request for an opportunity to speak to counsel, the customs officers proceeded with the search prior to the accused having had that opportunity. He alleged a breach of s. 8 of the Charter on the grounds that the officers did not have reasonable grounds to suspect that he had contraband on his person. He also argued that his ability to access the review procedures set out in s. 98 were pre-empted by the s. 10(b) Charter violation, rendering the search unreasonable. [26] The trial judge concluded that breaches of s. 10(b) and s. 8 had occurred for the following reasons: I am satisfied that the accused has demonstrated, on a balance of probabilities, that his rights under section 10(b) of the Charter were violated, and that this violation rendered the strip search which was conducted unreasonable. There is no dispute that the accused requested the opportunity to speak to counsel upon being advised of his right to counsel, and that he was not afforded that opportunity until after the search was completed. I reject the testimony of the customs officers to the effect that the accused explicitly consented to proceeding with the search prior to counsel calling back. The search officer could not state whether the accused volunteered the information or was asked. He contradicted himself concerning when this would have occurred. The assist officer’s testimony concerning the meaning and significance of his notes pertaining to this issue was completely incredible. On the whole, I find the evidence of the officers unreliable on this point. The accused testified that he was told simply they had to proceed with the search and that he did not say he did not have to wait. While I have some reservations about some of his evidence, in the particular circumstances, this specific evidence has the ring of truth from this accused who had requested the opportunity to speak to counsel. Based on the authority of R. v. Debot (1990), 52 C.C.C. (3d) 193 (S.C.C.) at pages 198 to 199, the customs officers were obliged to hold off in exercising any right to search until such time as the accused had been given a reasonable opportunity to consult counsel where he requested the opportunity, unless he specifically waived the right. On a balance of probabilities, I find no such waiver occurred. I am, however, satisfied that the accused was referred by the customs officer to the poster on the wall in the search room containing section 98 of the Customs Act. I am further satisfied, however, on a balance of probabilities that the accused did not appreciate the right to a review contained therein. The accused’s evidence was to the effect that he did not recall being referred to the poster on the wall; however, both customs officers confirmed the accused saying that he understood section 98, and the search officer was able to give evidence of the time the accused was referred to the poster and the time the accused said he understood it. Although there was confusion in their evidence as to whether he read it out loud, I accept the evidence of the customs officers that the accused was referred to the poster and said he understood. The accused also testified that he thought he had exhausted any rights that he had and that he would have acted differently had he known of a right to appeal. Again, I found such testimony reasonable and compelling from an accused who had requested the opportunity to exercise his right to counsel. I do not find it difficult to accept that a lay person not afforded an opportunity to speak to counsel would not appreciate the meaning of the review procedure provided in section 98. Indeed Officer Volk did not appear, in his evidence, to fully understand it. The wording of the section is not simple and the review procedure does not appear until subsection two. Given my finding that the accused did not appreciate the review procedure available to him and that he was denied an opportunity to speak to counsel prior to the search proceeding, I find the strip search that was conducted unreasonable in the circumstances, again relying on R. v. Debot, supra. [27] She then turned to the issue of whether the evidence was conscriptive or non- conscriptive. Citing Stillman, at pp. 652- 653, she stated: The admission of evidence which falls into the “non- conscriptive” category will, as stated in Collins, rarely operate to render the trial unfair. If the evidence has been classified as non-conscriptive, the court should move on to consider the second and third Collins factors, namely, the seriousness of the Charter violation and the effect of exclusion on the repute of the administration of justice. [28] As the Supreme Court stated in Stillman, what distinguished conscriptive from non-conscriptive evidence was whether the accused was “compelled to make a statement or provide a bodily substance in violation of the Charter.” Where the accused, as a result of the breach of the Charter, is compelled or conscripted to provide a bodily substance to the state, the evidence will be of a conscriptive nature, despite the fact that it might also be “real evidence.” [29] The trial judge ultimately reached the conclusion that the evidence in this case was non-conscriptive based primarily on the Supreme Court of Canada’s decision in R. v. Simmons (1988), 45 C.C.C. (3d) 296 (S.C.C.). [30] To summarize, the trial judge found that the officers had reasonable grounds to suspect under s. 98, and that the search was therefore authorized by the Customs Act. However, the appellant’s right to counsel was infringed. This breach affected the validity of the search: R. v. Simmons. Thus, the trial judge found that ss. 8 and 10(b) of the Charter were infringed. [31] The trial judge then found that the evidence was non- conscriptive, for the following reasons: Taking account of the comments of the court in R. v. Stillman, supra, concerning the fundamental importance of the innate dignity of the individual and the need to recognize the importance of the body in relation to searches carried out in the course of police investigations, I consider that requiring a person to remove their clothing and permit portions of their body which would not otherwise be viewed to be viewed approaches the definition of use of the body as set out in R. v. Stillman, supra. On the other hand, however, the items strapped to the body were not part of the body itself in this case. Without determining the issue of whether a strip search would amount to use of the body in other circumstances and taking account of the reduced privacy expectations at border crossings, I do not consider the evidence of viewing packages taped to an accused’s calves during the course of a strip search conducted at an international border and evidence of seizure of the packages amounts to conscriptive evidence in accordance with the principles enunciated in R. v. Stillman, supra, as set out above. [32] She also held that even if it was conscriptive, since the officers had reasonable grounds to search under s. 98, the evidence was discoverable and therefore its admission would not affect the fairness of the trial. After considering the other Collins factors, the trial judge held that the evidence should not be excluded under s. 24(2) of the Charter. ANALYSIS [33] The principal issue in this case is whether the trial judge erred in finding that the officers had reasonable grounds to suspect that the appellant was in possession of contraband. If the officers did not have the requisite reasonable grounds, this would materially undermine the trial judge’s conclusion as to the seriousness of the breach. [34] It would appear that the officer based his decision that he had grounds to search under s. 98 on the following factors: i) the accused was travelling from a drug source country; ii) he had made a previous recent trip to a drug source country in December 1995; iii) he had what the officer assumed was a low paying job as an apprentice chef; iv) he was visibly sweating while answering questions; v) he paid for the tickets for himself and his travelling companion with cash; vi) he purchased the tickets only three days prior to departure; [35] As indicated, the trial judge concluded that “the grounds relied on by the search officer” were “sufficient in combination to meet, albeit on a minimal level, the threshold requirement on reasonableness prescribed by s. 98 of the Customs Act.” [36] The statutory threshold of suspicion based on reasonable grounds must be based on something more than a mere suspicion and something less than a belief based on reasonable and probable grounds: R. v. Simmons, supra; R. v. Monney (1999), 133 C.C.C. (3d) 129 (S.C.C.); R. v. Oluwa (1996), 107 C.C.C. (3d) 236 (B.C.C.A.); R. v. Gladstone (1985), 22 C.C.C. (3d) 151 (B.C.C.A.). It is important that care be taken to ensure that persons are not gratuitously detained on mere suspicion or for arbitrary reasons at this country’s borders. There must be a constellation of objectively discernible facts that give the officer reasonable grounds to suspect: R. v. Jacques, [1996] 3 S.C.R. 312 at 326. [37] A problematic aspect of this case is the officer’s testimony that “In today’s day and age, every country is a drug source country.” While perhaps true, it seems to me that courts have understood that the reference to source countries was based on a risk assessment, an assessment based on the increased likelihood that some travellers returning from regions where certain plants are either grown or refined, will more likely be in possession of drugs. In view of the officer’s evidence that every country is a potential source country, it seems to me that the first two factors he relies on – that the accused was travelling from a drug source country and had visited another drug source country a few months earlier, are entitled to reduced weight in the assessment of whether he had the requisite reasonable grounds. [38] In my view, however, the trial judge’s conclusion that the s. 98 threshold was met, was nonetheless supported by the factors relied on by the officer: see R. v. Jacques, supra; R. v. Monney, supra and R. v. Simmons, supra. She recognized that the factors, in combination, only minimally satisfied the statutory requirement that any suspicion be based on reasonable grounds, but she was entitled to reach the conclusion that the threshold had been met based on the evidence. [39] The next issue is whether, in view of this conclusion as to the reasonableness of the search, the trial judge properly found that the evidence should be admitted. I agree with the trial judge that this is not conscriptive evidence. See R. v. Simmons; R. v. Monney; R. v. Stillman; R. v. Lewis (1998), 38 O.R. (3d) 540 (C.A.). In any event, the evidence was discoverable. Accordingly, its admission would not affect the fairness of the trial. [40] The conclusion that the evidence would not affect the fairness of the trial required the trial judge to undertake the next step in Collins, namely, to assess the seriousness of the breach. The trial judge found that the breach was in fact serious: The fact that the evidence could have been discovered without a Charter breach, had the customs officer simply afforded the accused an opportunity to speak to counsel before proceeding with the search; that there was no urgency in proceeding with the search; and the requirement that officers hold off in proceeding under section 98 of the Customs Act until the accused had a reasonable opportunity to consult with counsel as enunciated in Debot, renders the breach serious. [41] Having concluded that the breach was serious, however, she found that the seriousness was mitigated by the fact that the appellant was given an opportunity to read s. 98 of the Customs Act on the poster in the search room. Her conclusion, however, appears equivocal. She finds that the officers did not act in good faith, yet considers their conduct neither wilful nor flagrant: … In this respect, while the customs officer’s conduct cannot be said to be in good faith, (see R. v. Feeney (1997), 115 C.CC. (3d) 129 (S.C.C.) at page 167), I do not consider his actions to have been wilful or flagrant. Given that the admission of the evidence would not impact on the fairness of the trial, and that the seriousness of the Charter violation is somewhat mitigated, I find that there would be greater harm to the repute of the administration of justice by the exclusion of the evidence than by its admission. Here, I also take account of the very serious offence with which the accused is charged. [42] The appellant submits that the trial judge erred in not finding that the Charter breaches were sufficiently serious to warrant excluding the evidence. The Crown, on the other hand submits that since the trial judge accepted Inspector Volk’s evidence that the appellant had been directed to read the s. 98 poster, and since there was a finding that the actions of the customs inspectors were neither wilful nor flagrant, the ruling on the voir dire should not be disturbed. The seriousness of the breach, argued the Crown, was also attenuated by the reduced expectation of privacy which exists at a country’s borders (Simmons, at p. 320). [43] The right to request a review before a custom’s search is a significant one. In Simmons, the Supreme Court relied heavily on the right to an independent review of the decision to search in upholding the constitutionality of ss. 143 and 144, the predecessor legislation to s. 98, of the Customs Act. While the review process is different under s. 98, being available through a senior customs officer rather than a Justice of the Peace, there is nonetheless a clear right to seek a review. [44] In my view, it is essential that this right be clearly understood by someone detained at the border. People arriving in Canada may well have a reduced expectation of privacy at the country’s borders, but this expectation does not include an expectation that a degrading search will be carried out in violation of statutorily and constitutionally guaranteed rights. As Wilson J. stated in Simmons, at p. 329: The level of protection afforded to the citizen under s. 8 of the Charter must be geared to the innocent as well as to the guilty. [45] The trial judge’s finding about the appellant’s requisite comprehension is not very clear. She found on the one hand that the appellant did not and could not be expected to understand the meaning of s. 98 of the Customs Act, yet she accepted the evidence of the customs officers that the appellant said at the time that he read and understood the poster. Her specific finding was, as set out previously, as follows: The accused’s evidence was to the effect that he did not recall being referred to the poster on the wall; however, both customs officers confirmed the accused saying that he understood section 98, and the search officer was able to give evidence of the time the accused was referred to the poster and the time the accused said he understood it. Although there was confusion in their evidence as to whether he read it out loud, I accept the evidence of the customs officer that the accused was referred to the poster and said he understood. [46] This finding resulted in her conclusion that the behaviour of the customs officers was neither flagrant nor deliberate. [47] The fact that the s. 10(b) breach may have pre-empted the appellant’s ability to access the review procedures set out in s. 98 of the Customs Act and that there was no evidence of exigent circumstances requiring the customs officers to take any step toward proceeding to a strip search before the appellant had exercised his right to counsel, renders this, as the trial judge said, a serious breach. [48] However, it has been well established that an appellate court should not interfere with a trial judge’s conclusion regarding the exclusion of evidence pursuant to s. 24(2) of the Charter unless there is a clear error of law or an unreasonable finding of fact: R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Mellenthin, [1992] 3 S.C.R. 615. Although there is some ambiguity in the trial judge’s analysis about the seriousness of the s. 10(b) breach, there is nonetheless evidence to support her conclusion that the seriousness of the breach was mitigated by the appellant being referred to the poster and telling the customs officers he understood it before the search was undertaken. [49] In the circumstances, her conclusion that the evidence should not be excluded because the seriousness of the offence and public confidence outweigh the seriousness of the breach, is entitled to deference. [50] Accordingly, I would dismiss the appeal. Released: “June 28, 2000 RSA” “R.S. Abella J.A.” “I agree John Laskin J.A.” “I agree M. Rosenberg J.A.”