Routine investigation vs. detention

By John L. Hill

Law360 Canada (April 3, 2023, 12:57 PM EDT) --
John L. Hill
John L. Hill
Anyone who has ever visited a federal penitentiary or crossed a border is aware that before entry is made, you may feel hassled.

One is likely to have to undergo a routine search including an ion scan of some personal object to ensure no drugs are entering the institution or the country. It is obvious to most that there is a distinction between a routine search and detention. Most travelers would not feel that a search at the border would trigger one’s Charter rights when questioned and having to undergo a search by a border service officer. Yet if one is arrested, all aspects of the routine search are subject to question to see if any rights may have been breached sufficient to overturn a conviction or at least reduce a sentence.

This happened when Branislav Barac entered Canada in his transport truck at Sarnia’s Blue Water Bridge on May 2, 2019. He did not know that border security had been tipped off by a confidential informant considered reliable that Barac’s truck may be loaded with contraband. He was flagged for inspection upon arrival.

Upon arrival at the border he responded to routine questioning and was told to report for secondary inspection. Meanwhile his truck was ion-scanned and x-rayed. An anomaly was discovered in an upper bunk and when the enclosure was pried open methamphetamines were found. Indeed, border security found 25 kilograms of methamphetamines and US$126,000 cash in the cab that had not been disclosed. Only at that point was he arrested, and his Charter rights explained. He was convicted by a jury on Oct. 14, 2021 and sentenced on Feb. 22, 2022 to 12 years imprisonment. The appeal was heard in February of 2023 with a written decision handed down on March 30 (R. v. Barac 2023 ONCA 216).

The bulk of the written reasons discuss the difference between a routine investigation that does not attract Charter scrutiny and a detention that does. The appeal court relied on the decision in R. v. Ceballo 2021 ONCA 791 as establishing that at border crossings it is the degree of intrusiveness that establishes the distinction.

The use of x-rays, ion scans, questioning about luggage and contents and conversations directed at questioning credibility are all legitimate measures that allow Canada to effectively control its borders. However, it would be detention that triggered Charter rights if non-routine measures such as a strip search, a body cavity search or “bedpan vigils” were undertaken even though allowed by the Customs Act. The concept of detention puts an accused under the physical or psychological control of the state. In this case, the initial searches were routine and no detention occurred until after the narcotics and cash were found and Barac was arrested.

Even though persons entering Canada undergo greater interference with their personal autonomy and privacy than one would expect in society generally, the guarantees against unreasonable search found in the Charter are not engaged unless, for example, questioning a border crosser is more intrusive because of a sufficiently strong particularized suspicion (R. v. Jones (2006) 81 O.R. (3d) 481 (C.A.)). But here, the customs officers had no lurking suspicions of Barac’s involvement in trafficking until the drugs and cash were found. The questioning was entirely routine even though they possessed information that Barac was a smuggler.

Furthermore, the compulsion to answer customs officials honestly as required by the Customs Act does not imply a threat that would make answers inadmissible at trial (R. v. Oickle 2000 SCC 38). Statutory compulsion on its own does not render a statement involuntary at common law in criminal proceedings.

As a result, the appeal was dismissed. The 12-year sentence was found to be in the range for traffickers of large quantities since in recent years the range of acceptable sentences has been increasing.

There is one final matter the court discussed having to do with properly constituted juries. It was argued that jury selection took place during the COVID-19 pandemic where jurors could be excused for failing to be vaccinated or for failing to disclose if they had been vaccinated. The argument ran that juries following this procedure could be biased by excluding what were popularly known as “anti-vaxxers” or that people could just lie to be excused from jury duty.

The court agreed with the trial judge that jurors are presumed to be truthful and there was no basis to believe a jury would be tainted by excluding a group that might share a basic similarity in attitude, ideas or experience.

Next time you try to visit a jail or cross the border, remember it’s just routine procedure, not detention. You may feel uncomfortable and pestered. It’s totally permissible even if they find no drugs. Maybe if you are worried about jury bias, elect judge alone.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books), which was published Sept. 1. Contact him at johnlornehill@hotmail.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the authors firm, its clients, Law 360Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.  

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