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LAW RESPECTING ARRIVING TRAVELLERS APPLIES TO PEOPLE LEAVING CANADA


January 4, 2013
By Mike Novakowski

The law respecting routine screening procedures, such as questioning and searching baggage, applies to travellers entering or leaving Canada.

In <R. v. Nagle, 2012 BCCA 373> the accused checked her luggage at the Vancouver International Airport, passed through security and waited in the international departures lounge to board a flight for Japan. At 12:13 PM a roving CBSA officer asked her to step out of line and place her purse on a shelf. He had positioned himself behind an airline employee checking passengers’ boarding passes and identification and had seen Nagle present her documents.

The officer wanted to determine whether she had complied with the Proceeds of Crime (money laundering) and Terrorist Financing Act (PCMLTFA), which requires those departing Canada to report if they have $10,000 or more of currency. The woman said she had only $1,200 with her and that’s all the officer found in her purse.

While searching, the officer asked various questions about her ticketing, routing, occupation and travel plans. Her answers made him suspect she may be trafficking in drugs. At 12:18 p.m. he told her that she was detained and advised her of the right to silence and her <s. 10(b)> Charter right to retain and instruct counsel, including the availability of duty counsel. Nagle confirmed that she understood but did not wish to speak to lawyer. She was removed from the flight, her luggage taken off the airplane and she was escorted to the secondary examination area.

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An x-ray of her suitcases revealed just over one kilogram of concealed methamphetamine. A $500 Western Union receipt with the last name of a person reputedly involved in criminal gang activities was also found in her purse. Nagle was arrested, again advised of her right to counsel, spoke to duty counsel and searched under <s. 98> of the Customs Act (CA). Nothing more was found. She was subsequently charged with possessing methamphetamine for the purpose of trafficking and exportation from Canada under the Controlled Drugs and Substances Act.

In BC Provincial Court the trial judge determined that Nagle’s Charter rights had been violated. He found she had been psychologically detained when under the direction and control of the CBSA officer at the time he asked her to step aside and put her purse on the shelf. At that point she should have been advised of her rights under <s. 10(a) and (b)>. She wasn’t advised of these rights until after giving incriminating answers that led to the officer forming reasonable suspicion.

The judge also concluded her detention was arbitrary and found the search of Nagle’s purse unreasonable, calling it a “trolling expedition.” Since the luggage search resulted from the information obtained in violation of her Charter rights, it was also unreasonable. The evidence under <s. 24(2)> was excluded and Nagle acquitted.

The Crown appealed, arguing before BC’s highest court that Nagle wasn’t detained under the Charter when asked to step aside and place her purse on the shelf. In its view, Nagle was detained for constitutional purposes only when she was formally advised of such and steps were taken to remove her luggage from the airplane. Prior to that point, the Crown submitted that Nagle was subjected to permissible routine border screening processes which do not engage <ss. 9 or 10> of the Charter.

Further, the Crown contended that <s. 8> wasn’t engaged when her purse was searched because she did not have a reasonable expectation of privacy as an international traveller at a border crossing. In any event, the examination was authorized by the PCMLTFA and there were reasonable grounds to support a luggage search under <s. 99(1)(e) and (f)> of the CA.

{Border context}

Justices Chiasson and Bennett, writing the appeal court opinion, first found that the law respecting detention and search of travelers applicable to those “entering” Canada also applied to those “leaving.” They concluded that “the liberty interest and expectation of privacy of travellers is reduced at border crossings regardless whether they are arriving, in-transit or departing.”

Thus, routine screening procedures, such as questioning and searching baggage, equally apply to enforcing the law with respect to passengers leaving Canada without engaging constitutional rights, as they do to those arriving in or in transit through Canada. The application of this general principle, however, will be determined on a case-by-case basis since circumstances will vary.

{Detention?}

When Nagle was initially stopped and questioned she had not been detained in the constitutional sense. This was merely part of routine screening procedures by border officials. “(The officer’s) questions and investigation had not yet gone beyond routine screening procedures in a way that would engage (the accused’s) constitutional rights,” the court said. Since she wasn’t detained there was no obligation for the officer to inform her of her right to counsel.

{Purse search}

The officer’s initial questioning and examination of the purse was to determine whether Nagle was required to file a report under the PCMLTFA. The search was routine and, in the context of crossing a border, again part of the routine screening procedure. An international traveller has a significantly reduced expectation of privacy and no constitutional right to be free from the search of bags, purses, luggage or a pat down when they decide to cross a border. Furthermore, the officer was also authorized to examine the contents of the purse under <s. 16(2)> of the PCMLTFA. The search of Nagle’s purse wasn’t a <s. 8> breach.

It added:

Since there were no Charter breaches, there was no need to conduct an admissibility analysis under <s. 24(2)>. The Crown’s appeal was allowed, Nagle’s acquittal set aside and a new trial ordered.


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