Nobody wanted to comment on this case? I thought it was kind of interesting. Any how.
The Court of Appeal, in a majority decision, held that his rights under s. 8 of the Canadian Charter of Rights and Freedoms had been infringed, and that the evidence concerning the narcotics should be excluded pursuant to s. 24(2) of the Charter. It allowed his appeal and entered an acquittal.
The central question as formulated by Rosenberg J.A. (Court of Apeal Judge) was “whether customs officers have the power to detain a person suspected of having swallowed drugs until the suspicions have been confirmed or the traveller has satisfied the officers that he or she is not carrying drugs”. Rosenberg J.A. concluded that s. 98 of the Customs Act did not authorize the detention and search to which the respondent was subjected by the customs officers. The officers had at most reasonable grounds to suspect that the respondent was attempting to smuggle narcotics into Canada; they did not have reasonable grounds to believe that an offence had been committed. Mere suspicion, no matter how reasonable, is not sufficient to justify for the purposes of s. 8 the detention and search which took place.
He first determined that there was no legal basis for detaining the respondent from 4:30 p.m. until his arrest at 9:18 p.m. After reviewing the requirements for a warrantless arrest established in Storrey, supra, and R. v. Feeney, [1997] 2 S.C.R. 13, he concluded that Inspector Roberts did not have the necessary reasonable and probable grounds upon which to base the arrest, having formed instead only a reasonable suspicion that the respondent had ingested narcotics. Rosenberg J.A. therefore concluded that the customs officers were not authorized by s. 98 of the Customs Act to detain the respondent. Section 98 provides customs officers with the authority to conduct a search alone, with the power to detain a traveller arising only by necessary implication pursuant to s. 31(2) of the Interpretation Act, R.S.C., 1985, c. I-21. In other words, a customs officer may detain a traveller for the length of time necessary to conduct a search, but the condition precedent of such a detention is that the search itself be a valid exercise of authority under s. 98. The strip search of the respondent, therefore, was not authorized by s. 98, which permits a search only when a customs officer has a reasonable suspicion that a traveller has contraband “on or about his person”. Citing decisions of this Court concerning the seriousness of violations of bodily integrity, Rosenberg J.A. concluded that the phrase “on or about his person” was not sufficiently broad in scope so as to include contraband which is ingested and therefore located “within” the person.
Rosenberg J.A. then addressed the respondent’s submission that the seizure of the urine sample prior to the respondent’s arrest violated his rights under ss. 7 and 8 of the Charter. He found that the respondent did not voluntarily consent to the taking of a urine sample as he was led to believe that his detention would continue until evidence of either his guilt or innocence was established by a urine test or a bowel movement. R. v. Stillman, [1997] 1 S.C.R. 607 states that a suspect’s refusal to consent to the collection of bodily samples while in custody becomes meaningless if, because of his detention, he cannot prevent those samples from being taken, Rosenberg J.A. held that the taking of the urine sample violated the respondent’s rights under s. 8 and may also have constituted a violation under s. 7. Since the customs officers would not have possessed reasonable and probable grounds to believe that the respondent had committed an offence except for the results of the unlawful urine test, the arrest of the respondent at 9:18 p.m. was also unlawful.
I think the officers had sufficent grounds to detain this guy and wait till he either **** out the heroin or admitted that he swallowed it. The guy lied once saying that he never went to Guana and then later admitted to it. That alone should be enough.
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