[jolinar of malkshor]

Originally Posted by fredr123

1. In the Sekhon case, the officer said the vehicle was suspicious because it had mud on it. During intial questioning at PIL the mud was explained by a trip to a farm which, the officer admitted, was not uncommon in that area. The officer said that Sekhon made good eye contact initially but later that kind of broke off. That was enough to refer the driver for a secondary exam (currency was marked off on the E-67). To me, that seems pretty weak.

Yes, the vehicle had mud on it. That alone is sufficient to have the vehicle refused entry and further examination to determine the exent of how much mud is on the vehicle and where. You cannot bring soil into Canada without proper import permits. That includes mud on a vehcile.

Yes, according to the primary officer he did give good eye contact at the beginning of the exam but then she goes on to say:

[10] Inspector Couse formed the impression that Mr. Sekhon was tense and nervous. His jaw was apparently rigid, he didn’t move his neck freely, he held tight onto the steering wheel, and his eyes moved in a manner that telegraphed uneasiness to Inspector Couse. Mr. Sekhon apparently changed from making good eye contact to a failure to retain steady eye contact.

So it was more than just a failure in eye contact and like I said before it was a multipicity of indicators. As happens when most people are interviewed when they are lieing or have something to hide they get more nervous as the interview continues and the more questions are asked. That is interviewing 101.

I agree with you that the training program CBSA has in place is some what inadequate. Having said that, I am a firm believer that on the job training and experience is by far the best way to train someone. As far as I can tell we do not know how long this officer has been working but several years would be sufficient in giving her the ability to pick up on indicators. And as this case shows, she did and she was right.

Questions are mandatory when entering Canada not just a matter of routine; and searchs although are not mandatory are always done and only require mere suspicion and not reasonable grounds. I guess I don't get why you are questioning the application of the charter regarding this?

If any traveler feels that they were searched or questioned inappropriately, they have the same complaint mechanism as any other police agency.

Originally Posted by fredr123

3. With respect to non-verbal indicators and the like... making too much eye contact can be considered an indicator just like making too little eye contact. It's incredibly arbitrary and subject to so much interpretation. A few weeks in Rigaud talking about such indicators of shifty behaviour isn't sufficient, in my opinion, to become an expert at judging veracity during a 30 second PIL interview.

You seem to be stuck on this eye contact issue. Your right, either of the two examples that you provided could indicate that someone is hiding something, but once again, it is never based on 1 indicator alone, there must be a multiplicity of indicators to form reasonable suspicion. And again, training at the Customs college only gives the tools an officer requires to do their job. Of course no one is an expert after just completing academic training.....there must be years of on the job training in order for those tools to work properly....like any profession....same as the RCMP. I never said that these officers were experts as soon as they graduated from the college.

Originally Posted by fredr123

5. Much of my concern has to do with the officers' attitude towards the law and their job. See, for instance, this quote from the case:

[143] Inspector Couse referred Mr. Sekhon for a secondary examination because Mr. Sekhon appeared to grow more tense and nervous as the primary examination went on; not because anything criminal was revealed during the primary inspection. Inspector Couse made the selective referral for secondary examination on the basis of a currency concern.

So what? The officers initial concern was that 1.) he was hiding something as his behaviour indicated such and 2.) a likley reason for it was that he had more than $10,000. The fact that the reason he was nervous was because of a totally different reason (still illegal) has nothing to do with it. She observed the indicators and thought that the subject was hiding something.

Originally Posted by fredr123

[144] Inspector Raynor was of the view that a referral for a secondary examination is a licence to the inspector to conduct any search he or she wishes; that the secondary inspector is not constrained by the reasons for the referral.

They are not restricted at looking only for what the initial primary concern is, they can and do search for anything that is controlled, regulated or prohibited ito Canada. The initial suspicion was for currency but can change really fast once the exam starts. Like you said, they only have 30 secs to make a decision. The secondary exam takes a look at the concerns and goes from there.

Originally Posted by fredr123

[145] She did not question or inspect Mr. Sekhon with respect to a currency concern prior to embarking upon a search of the vehicle.

She did question him at the primary inspection if he was in possession of any currency greater than $10,000

12] Notwithstanding the determination, Inspector Couse continued to question Mr. Sekhon. Mr. Sekhon advised that he had given the pay stubs to the accountant, that he was not carrying currency in excess of $10,000.00 (Canadian), that he did not possess any weapons, that he had not attended at any duty free stores, and that no one had asked him to bring anything back into Canada.

If the judge is talking about questioning the person after he has been sent for an examination...then....the judge is wrong. Once the primary officer has asked the primary questions and gave the person the oppertunity to answer all the questions truthfully.....the examining officer cannot reask questions that the primary officer originally asked. If they do ask those questions then any thing that that person says wold constitute them answering primary questions....therefor they then could tell the truth and anything they admit to would not be subject to seizure.

Originally Posted by fredr123

[146] Interestingly, in her testimony, Inspector Raynor continually referred to her “rights.” Once again, she demonstrated a complete misunderstanding of the Constitutional relationship between she and Mr. Sekhon. Mr. Sekhon enjoys Constitutional rights vis-à-vis the State; .

Fair enough...the officer didn't articulate her position very well. I am assuming she hasn't taken law school and it could also be atributed to poor intruction on behalf of the prosecutor.

Originally Posted by fredr123

[166] Inspector Raynor was not conversant with when a person is detained in law and must be informed of his or her right to counsel. Her complete lack of knowledge of constitutional rights of individuals bars a finding of good faith on her part.

Yes and no. This is the only part of the case where I think that the officers screwed up. A detention does not occure if the person is under normal examination even though they are not allowed to leave. The problem here is that the person did try to leave and as such was put into a seperate room to prevent him from leaving. At this point he should have been cautioned and detained and also charged with obstruction or hindering. Had he not tried to leave he would not be considered detained.

Originally Posted by fredr123

[167] Additionally, the Charter breaches were very egregious. Not only were three discreet sections of the Constitution violated, the violations occurred because of what appears to be a deliberate ignorance of Canadian Constitutional mandates.

There may be some ignorance displayed by the officers but I would have to say that there appears to be some ignorance by the judge as to previous case law, the customs act and the role of CBSA.




Regardless if there was or wasn't exigency, they do not require a warrant...ever...when...they are examining a conveyance during the time of seeking entry into Canada.

S.99(1)(a) An officer may at any time up to the time of release, examine any goods that have ben imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.

CUSTOMS ACT

Originally Posted by fredr123

7. I know for a fact that CBSA officers have a thankless job. It can be a real drag to go into work every day knowing that you basically get paid to irritate people and that if you don't, you're probably not doing your job.

I think that most travellers who have nothing to hide would not be irritated if they were selected for an examination if the officer treated that person with repect and dignity. they do not get paid to "irritate" people. they get paid to protect the borders and keep the country safe.

Originally Posted by fredr123

8. Am I a proponent of the Mexican red/green light system? Maybe something similar. (Disclosure: I got the stupid red light last time I was in Mexico). More "random" selections subject to brief dog sniffs.

Again...I think this is completely absurd. Lets base our border decection on a Random system. You also keep coming back to dogs....they have their limitations aswell. They make mistakes.....they are only trained to pick up certain items. CBSA governs more than 70 different federal acts and regulations and most items that are restricted and prohibited a dog cannot detect. A dog cannot determine that someone is here for different purposes as to what he declared he was coming for. A dog cannot detect a child abductor or someone importing child porn. It is not as simple as you would have people to believe.