A: They appoint them to the bench
Justice Ellen Gordon ruled Friday that border officers — who routinely question travellers and search their vehicles — violated three sections of the Canadian Charter of Rights and Freedoms when they interrogated Ajitpal Singh Sekhon and dismantled the truck he was driving without a search warrant.
[…]
According to Gordon’s reasons for judgment, Sekhon, a Canadian citizen, tried to enter Canada via the Aldergrove border crossing on Jan. 25, 2005.
The border guard decided Sekhon was suspiciously tense and sent him to be questioned in the customs office, where he was locked inside while another inspector searched the truck.
With the help of a drug-sniffing dog, the ruling says, guards found a false compartment below the truck bed, at which point Sekhon was informed that he would be detained and that he had the right to legal counsel.
However, Gordon concluded that Sekhon had been detained from the moment he was locked inside the office, violating sections 9 and 10 of the Charter, which prohibit arbitrary detention and guarantee the right to a lawyer.
Gordon’s judgment says inspectors eventually dismantled the vehicle to find 50 bricks of cocaine.
But the most important part of the ruling is Gordon’s conclusion that guards violated section 8 of the Charter — freedom from unreasonable search or seizure — since they never applied for a search warrant.
The Crown lawyer pointed out that the Customs Act routinely allows such searches without a warrant based on reasonable grounds for suspicion.
The two border inspectors involved said they had never applied for — or even conceived of applying for — a search warrant in their careers.
But the judge wrote that officers followed a “lucky hunch,” not reasonable suspicions, in launching their search.
the same judge ruled last October that RCMP drug squad officers violated the Charter by faxing a justice of the peace to get search warrants. She argued that the Criminal Code requires police officers to appear in front of a judge to defend their requests. By this logic, border guards would have to present themselves before the court for every vehicle inspection.
Lets see here the good judge wants 50 bricks of coke in Canada. I have a better idea. Let the judge consume a brick or two in a very short time. Problem solved.
[deleted – tone it down, please. ED]
ET: no, adam – you say that ‘if an offense is detected, then you must get a search warrant’. That doesn’t make any sense. How would you know an offense, eg smuggling in cocaine, exists, without a search? How do you ‘detect’ that cocaine without a search?
Here’s a 4-stage time-line to help you better understand:
1. Truck approaches border. Driver looks twitchy and nervous. Border guards’ reasonable suspicions are aroused.
2. Truck is pulled over. Driver exits vehicle. Guards inspect vehicle, identify loose bed-liner. Reasonable suspicions further aroused.
3. Due to exigent circumstances, truckbed is drilled without warrant to determine presence of hidden space. Cocaine is detected.
4. Driver is detained (was detained earlier, in fact). Truck is removed from immediate border area to secure inspection site. Exigent circumstances dissipate, as no risk of flight or imminent loss of evidence. Truck dismantled, cocaine found. As exigent circumstances are no longer present, search warrant legally required for this second, more thorough search, but warrant not obtained.
As you can see, at the border, warrantless searches are entirely allowable within existing laws (stages 1-3, above). However, they are exceptions to the rule, and apply only under specific exigent circumstances — typically, if imminent harm to a person may occur, evidence may be lost, or the suspect may flee if immediate lawful intervention is not made.
Keep this in mind as you read on. It comes up often, because it’s the crux of Gordon J.’s legal argument.
A knowledge of how a car can be altered to contain contraband goods is not a ‘lucky hunch’ but a conclusions derived from experience.
That is your personal opinion, which differs from Gordon J.’s personal opinion. However, her legal judgment was based on the assumption that the border inspectors were operating from reasonable suspicion (see para 150). So please drop this ‘lucky hunch’ business. It doesn’t apply here.
So what if the truck had to be moved from one place to another, so that they could do a more thorough search? Are you seriously saying that any time a thorough search is required, a search warrant is required? Who says so?
Who says so? Our constitutional statutes. The Customs Act. Case law. The Supreme Court. Many civil libertarians would probably demand it too.
The point, ET, is that in the time after the cocaine was initially detected (via the power drill), exigent circumstances — which allowed for the drill search to be conducted without a warrant, and which was made possible by the fact that this took place at a border — no longer applied. There was no possibility that the suspect would flee; there was no imminent danger to any person; and the evidence (to be fully uncovered later by a more thorough search) was not at risk of being lost. There was plenty of time for the officers to apply for — and would surely have been granted, given the weight of the evidence at the time — a search warrant to dismantle the vehicle. They stated that they did not, and had no intention of ever doing so.
This is a border, not a private home.
Which is why Gordon J. considers exigent circumstances to apply inherently at the border (see 132-134). They apply for very specific reasons — because the suspect and/or the evidence can easily flee. However, once those conditions are removed (e.g., after the drill search revealed cocaine and Mr. Sekhon was separated from his vehicle), the legal privileges of warrantless searches (made possible by the exigent circumstances argument) wane, and any further searches to private property should be accompanied by judicial authorization.
Two additional points:
(1) Acknowledging that exigent circumstances apply at the border does not imply that the entire investigation can be conducted without a warrant.
(2) Private homes are not immune to warrantless searches either. The key legal criteria is that exigent circumstances exist — say, a patrol car hears gunshots inside an apartment.
The right and freedom to import cocaine. That’s what you support.
I think I’ll call strawman argument on that one.
I think differently. As soon as he made that choice, to import cocaine, he lost his legal rights to anything other than a trial.
This statement — which, make no mistake, is a wholesale rejection of due process — is a spectacular (and spectacularly undemocratic) position to take, made possible only because Mr. Sekhon seems so obviously guilty of drug smuggling. Due process, however, is not a trivial thing, even when guilt is apparently self-evident. I could walk into a restaurant, in full view of a 100 witnesses and a CC surveillance system, kill the sommelier in cold-blood (“I ordered the ’98 Lafite!”), turn myself in, and were I to plead innocent, still (and indeed, must) be considered innocent in the eyes of the law until proven guilty. Just because a defendant clearly has blood on their hands doesn’t mean he can be deprived of his full legal rights — the same ones as yours or mine.
When does a search move out of your cursory ‘border search’ and into your ‘violation of my rights as a drug smuggler search’?
Again, when exigent circumstances no longer apply. The laws around this aren’t “ridiculous” “nonsense,” ET. Like I said much earlier, you’d miss them if they were gone.
So, if a border guard detects a false trunk of a car, and opens it, tears back the cover and finds guns and materials for bombs – is that a violation of the individual rights of the terrorist?
Um, no.
What you ignore, adam, is our rights to be protected against criminal activity.
No, I’m not. That’s why we have police, peace, and judicial officers. I support them, and the integrity of the justice system. However, to prevent an overreach of powers, these officers carry out their duties within the bounds of the law. They are not above it.
The Charter doesn’t apply in these border cases.
Careful, ET. The border is part of Canadian sovereign territory. Claiming that certain federal laws simply have no jurisdiction in certain parts of the country could be construed as sedition. =)
My god – protecting the criminal because he’s an individual. Isn’t he something more than an individual? Namely, someone with the intent to harm?
Again, you can casually dismiss Mr. Sekhon’s legal rights in this case only because the evidence against him is overwhelming. But you make two flawed assumptions: you are presuming guilt before the verdict is delivered, and worse, you are blithely rejecting due process.
Gordon J.’s ruling is not “protecting the criminal because he’s an individual”, it is protecting the defendant because he is an individual.
Oh, and leaving aside the “socialist, multiculti” bits that you so obviously dislike, the parts of the Charter that you’re currently dismissing (s. 8-10) are equally enshrined in the US Bill of Rights (amendments 4-5). So, if you reject sections 8-10 in the Charter, then logically, you must also reject amendments 4-5 of the US Constitution. Is that really the position you want to take?
Wow, longest comment ever.
Far as I’m concerned this clot headed cu*t is an accessory to the crime, and proof that every second judge in Canada should be taken out and shot as an example to the rest.
There is no logical defense of this menopausal twit’s decisions. Canada would be a better place if that bitch died tomorrow.
I agree with the judge. Let him go. Give him the drugs back. Then let the police have him.
I can’t believe how stupid our judges are!!
Its only a matter of time until people will be forced to take the law into their own hands.
How sad!!