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Originally posted by notyoueither
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3. Border Crossings
The Simmons decision of the Supreme Court acknowledged Canada’s right as a sovereign state to control both who and what crosses its boundaries. The fact that those travelling through customs have a lower reasonable expectation of privacy does not, however, diminish the obligation on state authorities to adhere to the Charter, even if the grounds prompting the search are reasonable and drugs are found as a result of the search. Before any search, the inspectors must clearly explain the subject’s rights under the Charter - especially the prior right to consult a lawyer - and the right to have the search request reviewed before complying with it, as provided in the Customs Act. In Simmons, the subject remained ignorant of her legal position because she was not properly informed of these rights. As a result, the Supreme Court found that the search was unreasonable; even so, the evidence was not excluded since the customs officers had acted in good faith.
The Supreme Court of Canada had held in several cases before Simmons that the invalidity of a search power does not render evidence inadmissible if the officers conducting the search believed in good faith that the statutory provisions governing the search were constitutional. In R. v. Greffe, however, "the inference of extreme bad faith on the part of the police [arising] from their deliberate failure to provide the accused with the proper reason for the arrest" resulted in the exclusion of the seized drug evidence.
In Greffe, the R.C.M.P. had alerted customs officers in Calgary that the accused was returning to Canada with an unknown quantity of heroin. A visual search of his person was conducted after no heroin had been found in his luggage. He was not advised of his right to consult a lawyer or of his right under the Customs Act to have the search request reviewed by a justice of the peace, police magistrate or senior Customs Officer.
No drugs were found and the suspect was arrested, informed of his right to counsel and advised that a doctor would perform a body search at a hospital. During the body search a condom containing heroin was removed from the accused’s anal cavity.
The Supreme Court found that at the time of the search the police had not had reasonable and probable grounds to suspect that the accused had drugs on his person; the informer’s tip had not contained sufficient detail for the police to be sure that it was based on more than rumour. The informer had not disclosed the source of his knowledge, and the police had no indication of his reliability. Furthermore, there was confusion about the reasons the accused was given for his arrest. When combined with the lack of advice on the right to consult counsel, the "cumulative effect" of Charter violations was "very serious" and enough to warrant exclusion of the evidence.
The Supreme Court of Canada has since concluded that section 98 of the Customs Act, authorizing searches for contraband "secreted on or about" the person, applies to contraband that a traveller has ingested. In R. v. Monney, the Court concluded that a customs officer who has reasonable and probable grounds to suspect that contraband has been ingested is authorized by the Act to detain the traveller in a "drug loo facility" until that suspicion can be confirmed or dispelled. Although such action amounts to a search for the purposes of section 8 of the Charter, the Court confirmed that "the degree of personal privacy reasonably expected at customs is lower than in most other situations" and that the search in question was "reasonable for the purposes."
The Simmons decision of the Supreme Court acknowledged Canada’s right as a sovereign state to control both who and what crosses its boundaries. The fact that those travelling through customs have a lower reasonable expectation of privacy does not, however, diminish the obligation on state authorities to adhere to the Charter, even if the grounds prompting the search are reasonable and drugs are found as a result of the search. Before any search, the inspectors must clearly explain the subject’s rights under the Charter - especially the prior right to consult a lawyer - and the right to have the search request reviewed before complying with it, as provided in the Customs Act. In Simmons, the subject remained ignorant of her legal position because she was not properly informed of these rights. As a result, the Supreme Court found that the search was unreasonable; even so, the evidence was not excluded since the customs officers had acted in good faith.
The Supreme Court of Canada had held in several cases before Simmons that the invalidity of a search power does not render evidence inadmissible if the officers conducting the search believed in good faith that the statutory provisions governing the search were constitutional. In R. v. Greffe, however, "the inference of extreme bad faith on the part of the police [arising] from their deliberate failure to provide the accused with the proper reason for the arrest" resulted in the exclusion of the seized drug evidence.
In Greffe, the R.C.M.P. had alerted customs officers in Calgary that the accused was returning to Canada with an unknown quantity of heroin. A visual search of his person was conducted after no heroin had been found in his luggage. He was not advised of his right to consult a lawyer or of his right under the Customs Act to have the search request reviewed by a justice of the peace, police magistrate or senior Customs Officer.
No drugs were found and the suspect was arrested, informed of his right to counsel and advised that a doctor would perform a body search at a hospital. During the body search a condom containing heroin was removed from the accused’s anal cavity.
The Supreme Court found that at the time of the search the police had not had reasonable and probable grounds to suspect that the accused had drugs on his person; the informer’s tip had not contained sufficient detail for the police to be sure that it was based on more than rumour. The informer had not disclosed the source of his knowledge, and the police had no indication of his reliability. Furthermore, there was confusion about the reasons the accused was given for his arrest. When combined with the lack of advice on the right to consult counsel, the "cumulative effect" of Charter violations was "very serious" and enough to warrant exclusion of the evidence.
The Supreme Court of Canada has since concluded that section 98 of the Customs Act, authorizing searches for contraband "secreted on or about" the person, applies to contraband that a traveller has ingested. In R. v. Monney, the Court concluded that a customs officer who has reasonable and probable grounds to suspect that contraband has been ingested is authorized by the Act to detain the traveller in a "drug loo facility" until that suspicion can be confirmed or dispelled. Although such action amounts to a search for the purposes of section 8 of the Charter, the Court confirmed that "the degree of personal privacy reasonably expected at customs is lower than in most other situations" and that the search in question was "reasonable for the purposes."
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