The respondent arrived at Pearson International Airport on March 13, 1993 at approximately 4:00 p.m. Sometime prior to his arrival, the respondent had ingested 84 pellets, each containing approximately five grams of heroin that had been wrapped in condoms. When he presented himself to customs officials, the primary customs inspector marked his documentation with a code indicating “doubt” and subsequently referred him to a secondary customs area for further questioning. At the time of trial, the primary customs inspector could not recall the reason for the referral, but agreed that the marked code did not relate to smuggling narcotic.
The respondent arrived at the secondary customs counter at 4:30 p.m. where he was interviewed by Inspector Roberts. Having questioned the respondent and inspected his travel documents and luggage, Inspector Roberts became suspicious concerning certain details of the respondent’s travel arrangements. The respondent had paid $688.00 by cheque for an airline ticket issued on the date of departure which indicated that the ticket was purchased in haste. The respondent stated that he was employed as a taxi driver, and that he had been out of the country visiting a sick cousin in Switzerland. Inspector Roberts thought it was suspicious that a person in a relatively low-paying job would be able to afford to fly to Switzerland, let alone to do so simply to visit a distant relative. Also suspicious to Inspector Roberts was the fact that the respondent’s passport showed his place of birth as Ghana, given Inspector Roberts’ informal knowledge of Switzerland as a “transit routing” country for narcotics and Ghana as a source country. He asked the respondent if he had been to Ghana during his period of travel outside of the country and the respondent replied that he had not.
Inspector Roberts also testified that other aspects of the respondent’s behaviour aroused his suspicions. The respondent appeared nervous during the interview, had not declared a bottle of alcohol in his possession, and had no checked baggage, although Inspector Roberts did admit that the last two factors alone do not raise a reasonable suspicion that a traveller is a drug courier. At this point, Inspector Roberts asked the respondent if he had a criminal record, and the respondent replied that he did not. Inspector Roberts subsequently obtained permission from his superior officer to conduct a computer check on the respondent, the results of which disclosed that the respondent had been charged with incest but had not as yet been tried. When Inspector Roberts returned to continue questioning the respondent, the respondent volunteered that he had been charged with assault, and also admitted that he had been to Ghana to visit his mother, despite his earlier denial of having been there.
It was at this point that Inspector Roberts decided he had sufficient grounds to detain the respondent as a suspected drug courier, and informed him of his right to counsel. Having first obtained permission from his superior officer. The respondent was detained in the secondary customs area.
At 6:24 p.m., Customs Enforcement Officers Martin and Carrillo of Interdiction and Intelligence took custody of the respondent, placed him under detention, and informed him of his right to counsel. Officer Martin testified that he had formed the opinion that the respondent was a “good prospect as a drug swallower”, and that he “suspected” that the respondent had swallowed drugs. He based this opinion not only on the same information relied upon by Inspector Roberts, but also on his suspicion that the respondent may have been using two passports, given that the passport he presented at Customs did not contain a stamp from Ghana although the respondent admitted to travelling to Ghana during his time out of the country.
Officers Martin and Carrillo then took the respondent to what is known as the “drug loo facility”. The facility, which is used to process suspected drug swallowers, contains an apparatus similar to a toilet which permits customs officers to process faecal matter and isolate any narcotics and associated material which passes through a suspect’s digestive system during the period of detention.
At 6:45 p.m., Officers Martin and Carrillo sought the respondent’s consent to a urine test. The respondent declined to provide consent, and at this time the officers informed the respondent that he would remain in detention until either a negative urine test or clear bowel movement satisfied the officers that the respondent had not ingested narcotics. At 8:30 p.m., the respondent requested permission to contact his lawyer. He then had a telephone conversation with his lawyer which lasted from 8:34 p.m. until 8:50 p.m. Following the telephone call, the respondent agreed to provide a urine sample and signed the consent form. The sample was collected at 9:18 p.m., and testing confirmed the presence of heroin. At this point, Officers Martin and Carrillo arrested the respondent, who then confessed to ingesting approximately 84 pellets of heroin. Following a second telephone call to his lawyer at 9:25 p.m., the respondent began to excrete the pellets. By 1:50 a.m., when the respondent had passed 83 of the pellets, he was transferred into the custody of the RCMP.
None of the various customs officers who dealt with the respondent following his arrival at Pearson International Airport was aware of the written protocol contained in the Customs Enforcement Manual which provides that because of the dangerous health risk, travellers suspected of ingesting narcotics are to be detained in the presence of qualified medical personnel. Instead, the officers followed the conflicting port policy whereby a detained traveller is not taken to a medical facility unless the traveller makes such a request or appears to be in physical distress. There was also expert testimony to the effect that hospitalization would have been the prudent course of action in the circumstances.
The respondent was convicted of importing narcotics. The respondent appealed the conviction on the grounds that section 7 and 8 of his Charter Rights were violated.
Where his rights violated? If so did the appeal court over turn the conviction?
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