R. v. Monney, [1999] 1 S.C.R. 652
Her Majesty The Queen Appellant
v.
Isaac Monney Respondent
Indexed as: R. v. Monney
File No.: 26404.
1998: December 4; 1999: April 23.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Customs and excise -- Powers of officers -- Search of the person -- Customs officers detaining accused in order to confirm their suspicions that he had ingested narcotics -- Whether actions of officers authorized by Customs Act -- Whether phrase “secreted on or about his person” covers contraband traveller has ingested -- Whether detention of accused in “drug loo facility” within scope of permissible activities -- Whether customs officers suspected on reasonable grounds that accused had narcotics secreted on or about his person -- Whether search conducted within reasonable time after accused’s arrival in Canada -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 98.
Constitutional law -- Charter of Rights -- Unreasonable search or seizure -- Customs officers detaining accused in order to confirm their suspicions that he had ingested narcotics -- Whether accused’s right to be secure against unreasonable search or seizure infringed -- Canadian Charter of Rights and Freedoms, s. 8 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 98.
Constitutional law -- Charter of Rights -- Life and security of the person -- Customs officers detaining accused in order to confirm their suspicions that he had ingested narcotics -- Whether detention of traveller who is believed to have swallowed narcotics must be conducted under medical supervision -- Whether accused’s right to life and security of the person infringed -- Canadian Charter of Rights and Freedoms, s. 7 -- Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 98.
Prior to his arrival at Toronto airport, M had ingested 84 pellets, each containing approximately five grams of heroin. The customs inspector became suspicious about certain details of M’s travel arrangements. M had paid by cheque for an airline ticket issued on the date of departure, indicating that the ticket was purchased in haste. M stated that he was employed as a taxi driver, and that he had been out of the country visiting a sick cousin in Switzerland. Also suspicious to the inspector was the fact that M’s passport showed his place of birth as Ghana, given the inspector’s informal knowledge of Switzerland as a “transit routing” country for narcotics and Ghana as a source country. M initially denied having travelled to Ghana, but later admitted that he had indeed gone there to visit his mother. The inspector decided he had sufficient grounds to detain M as a suspected drug courier, and informed him of his right to counsel. Officers from a special customs unit arrived some two hours later; they placed M under detention, informed him of his right to counsel, and took him to the “drug loo facility”. When M refused to consent to a urine test, he was informed that he would remain in detention until either a negative urine test or clear bowel movement satisfied the officers that he had not ingested narcotics. Following a telephone conversation with his lawyer, M provided a urine sample, which confirmed the presence of heroin. M was arrested and confessed to ingesting the heroin pellets. Following a second telephone call to his lawyer, he began to excrete the pellets. None of the various customs officers who dealt with M was aware of the written protocol contained in the enforcement manual which provides that 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. M had been asked whether he was feeling all right, as one of the officers became concerned that his apparent fatigue might have been an indication of heroin intoxication. He responded that he felt fine, and was instructed to tell the officers if he felt any stomach pains so that they could call a doctor. M was convicted of importing narcotics. 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.
Held: The appeal should be allowed and the conviction restored.
Under s. 98 of the Customs Act, a customs officer may search a traveller provided the officer suspects on reasonable grounds that contraband has been “secreted on or about his person” and that the search occurs “within a reasonable time” of the traveller’s arrival in Canada. The phrase “secreted on or about his person” authorizes customs officers to search for prohibited material not only on or about the surface of the traveller’s body, but also secreted or concealed within the traveller’s body. The actions of the customs officers in detaining M in a “drug loo facility” and conducting a “bedpan vigil” amounted to a search within the second of the three categories of border searches established in Simmons and were reasonable for the purposes of s. 8 of the Charter. A passive “bedpan vigil” is not as invasive as a body cavity search or medical procedures such as the administration of emetics. While the compelled production of a urine sample or a bowel movement is an embarrassing process, it does not interfere with a person’s bodily integrity, either in terms of an interference with the “outward manifestation” of an individual’s identity or in relation to the intentional application of force. Subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.
Having determined that the search conducted by the customs officers was constitutionally permissible pursuant to s. 98 of the Customs Act on the basis of reasonable grounds to suspect, which can be viewed as a lesser but included standard in the threshold of reasonable and probable grounds to believe, there is no reason to interfere with the implicit factual finding at trial, confirmed on appeal, that the customs officer had at the very least reasonable grounds to suspect that M had ingested narcotics. A traveller’s inability to maintain consistency when responding to questions regarding his or her travel itinerary, particularly in circumstances where the itinerary is relatively uncomplicated, leads to an entirely reasonable inference that the traveller is attempting at the very least to mislead the customs officer. When M’s admission to having visited Ghana is considered in light of the cumulative effect of the factors considered by the inspector, particularly in light of the inspector’s view that M had visited both a “transit routing” and a “source” country for narcotics, his assessment that he had reasonable grounds to suspect that M was attempting to smuggle ingested narcotics into Canada is unassailable.
An assessment of whether the customs officers conducted the search within a reasonable time after M’s arrival in Canada must take into account not only any delay in the search process, but also the inherent time requirements of the particular search technique. Based on the evidence at trial, a delay of 30 minutes from the time a person is detained until the search begins is reasonable. While in this case the special unit officers did not arrive until nearly two hours after M was detained, this delay cannot be examined in isolation. Given the fact that a passive “bedpan vigil” is an inherently time-consuming process, the delayed response is not sufficient to establish that the search of M was not conducted “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act.
With respect to whether the detention of M should have been conducted under medical supervision, the constitutional guarantee of security of the person contained in s. 7 of the Charter should not be extended to include an obligation by the state to provide medical supervision in response to the risk to M’s health, which in these circumstances was self-induced, even though M himself refused the offer of medical attention. While it might have been preferable for the customs officers to have followed the official customs policy, they took reasonable steps to ensure M’s physical safety by monitoring his condition and specifically offering him access to medical care.
Cases Cited
Applied: R. v. Simmons, [1988] 2 S.C.R. 495; distinguished: R. v. Stillman, [1997] 1 S.C.R. 607; referred to: R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Feeney, [1997] 2 S.C.R. 13; R. v. Lewis, [1996] 1 S.C.R. 921; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Jacques, [1996] 3 S.C.R. 312; R. v. Dyment, [1988] 2 S.C.R. 417; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7, 8, 9, 24(2).
Customs Act, R.S.C. 1970, c. C-40, ss. 143, 144.
Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), s. 98(1), (2), (3).
Interpretation Act, R.S.C., 1985, c. I-21, s. 31(2).
Narcotic Control Act, R.S.C., 1985, c. N-1, s. 5(1).
Authors Cited
Concise Oxford Dictionary of Current English, 9th ed. Oxford: Oxford University Press, 1995, “secrete”.
Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française. Paris: Le Robert, 1996, “dissimuler”.
APPEAL from a judgment of the Ontario Court of Appeal (1997), 105 O.A.C. 1, 153 D.L.R. (4th) 617, 120 C.C.C. (3d) 97, 12 C.R. (5th) 1, [1997] O.J. No. 4806 (QL), allowing the accused’s appeal from a decision of the Ontario Court (General Division), [1994] O.J. No. 1429 (QL), convicting him of importing narcotics. Appeal allowed and conviction restored.
James W. Leising and Thomas Beveridge, for the appellant.
Russell S. Silverstein and David M. Tanovich, for the respondent.
The judgment of the Court was delivered by
//Iacobucci J.//
1 Iacobucci J. -- This appeal deals with the authority of customs officers to detain and search travellers suspected of having swallowed narcotics. More specifically, the Crown appeals the decision of the Ontario Court of Appeal overturning the conviction of the respondent for importing narcotics contrary to s. 5(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1. There is no dispute that the respondent attempted to smuggle a significant quantity of heroin into Canada by swallowing 84 pellets containing the narcotic prior to his arrival from Switzerland. The respondent was convicted at trial but successfully argued on appeal 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.
I. Facts
2 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 narcotics.
3 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.
4 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.
5 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, Inspector Roberts then contacted Interdiction and Intelligence, a unit of Canada Customs experienced in dealing with narcotics smuggling. Although customs officers from the Interdiction and Intelligence unit are normally expected to respond to a call for assistance as soon as possible, in this instance the officers did not arrive until approximately two hours later. In the interim, the respondent was detained in the secondary customs area.
6 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.
7 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. The respondent was informed of his right under s. 98(2) of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), to be taken before the senior Customs officer for confirmation that reasonable grounds exist to suspect that a traveller has attempted to smuggle prohibited material across the Canadian border. He declined to exercise this right. The respondent was then strip-searched by Customs Enforcement Officer Martin. Nothing was found as a result of this search.
8 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. He later passed one further heroin pellet while in their custody.
9 At one point during the respondent’s detention, prior to taking the urine test, one of the officers noted that the respondent appeared to be falling asleep. The respondent was asked whether he was feeling all right, as one of the officers became concerned that the respondent’s apparent fatigue might have been an indication of heroin intoxication. The respondent responded that he felt fine, and was instructed to tell the officers if he felt any stomach pains so that they could call a doctor. The officers testified that if the respondent had appeared to be in physical distress, or had asked to see a doctor, he would have been taken to a hospital right away, but the respondent did not at any time make such a request.
10 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.
II. Relevant Constitutional and Statutory Provisions
11 Canadian Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
98. (1) An officer may search
(a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada,
(b) any person who is about to leave Canada, at any time prior to his departure, or
(c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, within a reasonable time after he leaves the area,
if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.
(2) An officer who is about to search a person under this section shall, on the request of that person, forthwith take him before the senior officer at the place where the search is to take place.
(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search, discharge the person or, if he believes otherwise, direct that the person be searched.
III. Judgments Below
A. Ontario Court (General Division), [1994] O.J. No. 1429 (QL)
12 In an oral ruling on a voir dire, Belleghem J. was satisfied that the criteria for a reasonable search and seizure within the meaning of s. 8 of the Charter and the tests established in R. v. Storrey, [1990] 1 S.C.R. 241, and R. v. Collins, [1987] 1 S.C.R. 265, were met. The search was authorized by law pursuant to s. 98 of the Customs Act, the law itself was reasonable and the search was carried out in a reasonable manner. Relying on a statement in obiter by Lamer J. (as he was then) in R. v. Greffe, [1990] 1 S.C.R. 755, to the effect that the standard for justification would be met if a suspected drug swallower was detained for the purposes of allowing nature to take its course on the basis of belief based on reasonable and probable grounds, Belleghem J. also held that the respondent was not subject to arbitrary detention in violation of s. 9 of the Charter.
13 Belleghem J. next considered the respondent’s submission that his rights under s. 7 were violated because his detention was not conducted under adequate medical supervision. Belleghem J. was satisfied that “throughout the entire period of his detention with the custodial authorities, either customs or police, he was in a serious life threatening situation” (para. 27). He found that the respondent was fully aware of the risk to his own health, however, and noted that medical treatment was available at all times. Belleghem J. accordingly rejected the submission that a self-imposed threat to physical health or safety imposes on custodial authorities a constitutional obligation to provide medical supervision. The customs officers took reasonable steps in monitoring the respondent and informing him that medical attention would be provided if required, or at the respondent’s request. Belleghem J. concluded that medical assistance must be given if requested, or if such assistance appears to be reasonably necessary, but s. 7 does not otherwise operate to provide the respondent with a charter of medical rights. Accordingly, Belleghem J. held that there was no s. 7 violation. In the alternative, if the respondent’s rights under s. 7 had been violated, he held that the evidence should not be excluded under s. 24(2). The heroin pellets constituted real evidence obtained without conscripting the respondent, and the officers were acting in good faith in following the “port policy” at Pearson International Airport, notwithstanding that this policy conflicted with the official Customs Enforcement Manual.
B. Ontario Court of Appeal (1997), 105 O.A.C. 1
(1) Rosenberg J.A. (Morden A.C.J.O. concurring)
14 The central question as formulated by Rosenberg J.A. 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” (p. 15). 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.
15 Rosenberg J.A. analysed several issues in arriving at this conclusion. 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.
16 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. Relying on Cory J.’s reasoning in R. v. Stillman, [1997] 1 S.C.R. 607, 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.
17 Having found the arrest to be unlawful, Rosenberg J.A. next considered whether the subsequent seizure of the heroin violated the respondent’s rights under s. 8. The Crown sought to justify the seizure either under the search power incidental to arrest, or under s. 98 of the Customs Act. Rosenberg J.A. held that the seizure could not be justified under the common law search power as the arrest itself was not lawful. Furthermore, the seizure was not authorized under s. 98 as it was not conducted “within a reasonable time” after the respondent’s arrival in Canada as is required by the provision.
18 Finally, Rosenberg J.A. considered whether the failure to conduct the detention under medical supervision violated the respondent’s rights under s. 7. Rosenberg J.A. expressed some concern as to the correctness of the trial judge’s decision on this point, but noted that he did not need to address the potential s. 7 violation. Having already concluded that the evidence had been obtained in violation of the respondent’s rights under s. 8, the issue could be included within the necessary s. 24(2) analysis. Rosenberg J.A. noted that the trial judge held that had the respondent’s rights been violated under s. 7, he would still have admitted the evidence under s. 24(2). While recognizing that an appellate court should not interfere with a trial decision on the application of s. 24(2) unless the trial judge makes an unreasonable factual finding or a legal error, Rosenberg J.A. noted that the trial judge erroneously viewed the respondent as having been lawfully detained and searched. Consequently, it was open to the appellate court to review the trial judge’s conclusions concerning exclusion of the evidence under s. 24(2).
19 Following the decision of this Court in Stillman, Rosenberg J.A. found that the evidence was conscripted in that production of the evidence required the forced participation of the respondent. The admission of the evidence would therefore affect the fairness of the trial and should have been excluded. In the alternative, the pattern of disregard shown by the customs officers towards the rights of the respondent exacerbated the seriousness of the violations, notwithstanding that the officers acted in good faith. In considering the effect that exclusion would have on the administration of justice, however, Rosenberg J.A. noted the seriousness of the charge, the necessity of the heroin as the only evidence against the respondent and the fact that the customs officers did not set out to abuse the criminal justice system. In the final analysis, the factors going to the seriousness of the violation of the respondent’s Charter rights and the potential effect of exclusion on the administration of justice were evenly balanced. Rosenberg J.A. therefore concluded that if the evidence was non-conscriptive, in which case the fairness of the trial would not be a factor, then the heroin was properly admitted into evidence.
(2) Weiler J.A. (dissenting)
20 Weiler J.A. found that the strip search and the collection of the respondent’s bodily waste were authorized by s. 98 of the Customs Act, and that the search and seizure were reasonable within the meaning of s. 8 pursuant to the factors enumerated in Collins. According to Weiler J.A., s. 98 authorized the detention of the respondent in order to conduct a search which included seizure of the urine sample. Section 98 permits searches in circumstances where a customs officer suspects on reasonable grounds that a person has secreted contraband “on or about his person”, a phrase Weiler J.A. interprets to include material a person has ingested and therefore secreted within his or her person. The search also took place within a reasonable time after the respondent’s arrival in Canada, having regard to the length of the period of detention and the type of search required.
21 As to whether the “bedpan vigil” conducted by the customs officers was constitutionally valid pursuant to s. 8, Weiler J.A. referred to the three categories of border searches enumerated by Dickson C.J. in R. v. Simmons, [1988] 2 S.C.R. 495. Detaining a traveller in a “drug loo facility” is a less invasive search technique than those included by Dickson C.J. in the third and most intrusive category of border searches, such as X-rays or the administration of emetics. Accordingly, the search conducted by the customs officers in this case belonged in the second category as being analogous to a strip search. A passive “bedpan vigil” is the least intrusive means of monitoring the alimentary canal in circumstances where there is a real danger of losing evidence and where the protection and safety of the public are of primary concern.
22 Finally, Weiler J.A. concluded that the respondent’s rights under s. 7 were not violated. It was the respondent’s refusal of the offer of medical attention which endangered his safety, and not his detention per se. Although the respondent was deprived of his physical liberty, he was not deprived of the liberty to make his own health decisions, regardless of whether these decisions were in his own best interest. Medical attention was offered, the respondent knew the specifics of his own self-induced situation and he had the advice of counsel.
23 As to the application of s. 24(2), Weiler J.A. held that in the event that the manner of search was unreasonable, the good faith of the customs officers in carrying out the search required the evidence to be admitted.
IV. Issues
24 As noted above, this appeal concerns the question of whether customs officers have the authority to detain a traveller suspected of having swallowed narcotics until the suspicion has either been confirmed or the traveller satisfies the officers that he or she is not carrying narcotics. In the context of this appeal, this question raises the following issues:
a. Were the actions of the customs officers authorized by s. 98 of the Customs Act?
b. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision?
c. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)?
V. Analysis
A. Were the actions of the customs officers authorized by s. 98 of the Customs Act?
1. Does the phrase “secreted on or about his person” in s. 98 of the Customs Act authorize customs officers to search for narcotics which they suspect a traveller has ingested?
25 In order to assess whether the search conducted by the customs officials on the respondent was authorized by s. 98 of the Customs Act, it is necessary first to determine whether the phrase “on or about his person” in s. 98(1) refers not only to contraband which is concealed by a traveller in luggage, under clothes or in some other manner external to the traveller’s body, but includes as well contraband which the traveller has ingested. The respondent argues that as a matter of common parlance, standard dictionary definitions of the words “on” and “about” do not support an interpretation of the phrase “on or about his person” which is sufficiently broad to include items which a traveller has ingested and which are subsequently located internally within the traveller’s digestive system. Further, s. 98 requires a customs official to conduct the search “within a reasonable time”. The respondent argues that the inclusion of a time restriction within s. 98 necessarily leads to the conclusion that the phrase “on or about his person” is not meant to apply to ingested narcotics. A passive “bedpan vigil” such as was necessary to confirm the presence of heroin pellets within the respondent’s digestive tract at the time he attempted to cross the Canadian border involves a lengthy detention process and therefore cannot be conducted “within a reasonable time”.
26 Admittedly, statutory interpretation in the context of constitutional review is not an exact science. While reference to common parlance and standard dictionary definitions are often of assistance in interpreting legislative provisions, regard must be had not only to the ordinary and natural meaning of the words, but also to the context in which they are used and the purpose of the provision as a whole: R. v. Lewis, [1996] 1 S.C.R. 921. The most significant element of this analysis is the determination of legislative intent. In light of these guidelines, the respondent’s interpretation of the phrase “on or about his person” is, with respect, misguided. As Weiler J.A. noted in her dissenting judgment in the Court of Appeal, when read in context, the words “on or about his person” are contained within the larger phrase “secreted on or about his person”. In my view, an examination of this context demonstrates that Parliament intended to confer authority on customs officers, so far as the Charter permits, to search for prohibited material not only on or about the surface of the traveller’s body, but also secreted or concealed within the traveller’s body. Fundamentally, the legislative intent of s. 98 was to grant officers the necessary authority to control the smuggling of contraband into Canada. As this Court reiterated in Lewis, a legislative phrase should be given a meaning consonant with the purpose of the statutory provision unless the contrary is indicated, provided, of course, that such an interpretation is consistent with constitutional limitations and conventional rules of interpretation.
27 The respondent’s suggested interpretation of s. 98 is unnecessarily restrictive, in terms of both the literal text and Parliamentary intent. The provision does not refer to a traveller who has “placed” items on or about his or her person, in which case a more compelling argument could be made that the legislative intent was to restrict the authority of customs officers to searches of a person’s exterior physical body and associated personal effects. Instead, the English version of the provision refers to material which the traveller has “secreted” on or about his or her person. The verb “secrete” refers to the act of placing material into a concealed location: Concise Oxford Dictionary (9th ed. 1995). The French text confirms this interpretation, as the verb “dissimuler” refers to the act of hiding (cacher) or concealing (celer): Le Nouveau Petit Robert (1996). The concept of concealment, rather than the distinction between the interior or exterior of the traveller’s physical body, is the fulcrum of the search power in s. 98 of the Act.
28 Parliament’s intent in extending the authority of customs officers to search for any concealed material, whether located internal or external to the traveller’s physical body, is further supported by the illogical outcome that would ensue if the Court were to adopt a more restrictive interpretation. A traveller intent on smuggling narcotics across the Canadian border would be able to defeat the purpose of the provision simply by concealing contraband inside his or her mouth rather than under his or her clothing or elsewhere on his or her body. Interpreting s. 98 in light of the provision’s purpose, which is to restrict the entry of contraband material into Canada, the phrase “secreted on or about his person” cannot have been intended to permit such an absurd result.
2. Does s. 98 of the Customs Act authorize a search in the manner conducted by the customs officers whereby a traveller is detained in a “drug loo facility” until a suspicion of ingesting narcotics is confirmed or dispelled?
29 The actions of the customs officers in detaining the respondent in a “drug loo facility” and collecting the pellets which passed through his system amounted to a search and seizure for the purposes of s. 8 of the Charter. Pursuant to the Court’s decision in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, prior authorization is a necessary precondition for a constitutionally valid search and seizure. A warrantless search or seizure is therefore prima facie unreasonable under s. 8, and the Crown bears the onus of rebutting the presumption of unreasonableness by demonstrating that its actions were authorized by law, that the law itself was reasonable and that the search was carried out in a reasonable manner: Collins, supra.
30 The Crown submits that the actions of the customs officers were reasonable in that they were authorized by s. 98 of the Customs Act. Section 98 permits customs officers to search a traveller provided there exists a reasonable suspicion that contraband has been “secreted on or about his person” and that the search occurs “within a reasonable time” of the traveller’s arrival in Canada. The constitutionality of s. 98 itself is not in issue in this appeal. The relevant question for determination instead is whether the actions of the customs officers in detaining the respondent in a “drug loo facility” are within the scope of permissible activities authorized by s. 98. The respondent contends that s. 98 is meant to apply only to brief, non-intrusive searches such as a pat-down or at most a strip search, and cannot be read as authorization for the ostensibly lengthy detention and intrusive procedures carried out by the customs officers in this situation.
31 Section 98 of the Customs Act provides customs officers with the necessary authority to search travellers suspected of transporting narcotics across the border, but does not define the manner in which a search may be carried out. Nonetheless, as the following passage from the reasons of Lamer J. (as he was then) in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, indicates, statutory provisions are to be interpreted in a manner which is consistent with the Charter:
Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.
32 Accordingly, the alternatives available for customs officials in attempting to ascertain whether a traveller has indeed ingested narcotics are subject to constitutional limitations. Section 98 should not be interpreted, so far as is possible, in a manner which would permit customs officers to violate a traveller’s rights under s. 8 of the Charter. The task of the Court in the present appeal is to determine whether the manner of search carried out against the respondent comes within these limitations.
33 In Simmons, supra, the Court considered the constitutional requirements of searches conducted at the Canadian border by customs officers. The accused had submitted that her rights under s. 8 of the Charter were violated when she was subjected to a strip search based on the customs officer’s reasonable suspicion that she was attempting to smuggle narcotics into Canada. The relevant statutory provisions were ss. 143 and 144 of the former Customs Act, R.S.C. 1970, c. C‑40, which permitted customs officers to conduct personal searches absent prior judicial authorization and to initiate such searches on the basis of a standard falling short of reasonable and probable grounds. At issue in particular was whether these provisions were constitutionally valid given that they did not meet the three criteria of a reasonable search and seizure articulated in Hunter, supra: (a) where possible, the search must be approved by prior authorization; (b) the person authorizing the search need not be a judge, but must be in a position to act in a judicial manner, i.e. the person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate; and (c) there must be reasonable and probable grounds, established upon oath, to believe that an offence has been committed and that evidence of the offence is to be found at the location to be searched.
34 The Court concluded in Simmons that, although the constitutional safeguards articulated by the Hunter standard should not be rejected lightly, the framework established in Hunter for analysing the reasonableness of a search for the purposes of s. 8 was inapplicable to border searches. Dickson C.J. accepted the proposition established in United States jurisprudence that border searches should be distinguished from searches occurring in other circumstances in which the security of Canada’s interior is not engaged. He expressed his agreement with this distinction as follows, at pp. 527-28:
The dominant theme uniting these cases is that border searches lacking prior authorization and based on a standard lower than probable cause are justified by the national interests of sovereign states in preventing the entry of undesirable persons and prohibited goods, and in protecting tariff revenue. These important state interests, combined with the individual’s lowered expectation of privacy at an international border render border searches reasonable under the Fourth Amendment. In my view, the state interests enunciated throughout the American jurisprudence that are deemed to make border searches reasonable, are no different in principle from the state interests which are at stake in a Canadian customs search for illegal narcotics. National self-protection becomes a compelling component in the calculus.
35 Dickson C.J. also referred to the caveat expressed in the reasons in Hunter that the reasonableness of a search must be assessed in context. The relevant qualification of the reasonableness standard as stated in Hunter is that the standard of reasonableness is subject to change "[w]here the state's interest is not simply law enforcement as, for instance, where state security is involved, or where the individual's interest is not simply [an] expectation of privacy as, for instance, when the search threatens . . . bodily integrity" (p. 168). Adopting a contextual approach to the assessment of reasonableness for the purposes of s. 8, the Court concluded in Simmons that the degree of personal privacy reasonably expected at border crossings is lower than would otherwise be available in a wholly domestic setting.
36 In Simmons, Dickson C.J. summarized the balance between a state’s interest in preventing the flow of contraband across its borders and the individual’s privacy interests as protected by s. 8 of the Charter as follows, at p. 528:
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. This process will typically require the production of proper identification and travel documentation and involve a search process beginning with completion of a declaration of all goods being brought into the country. Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.
37 In my opinion, the decision of the Court in Simmons governs the issue raised in the present appeal. Whereas s. 143 of the previous Act referred to whether a customs officer has “reasonable cause to suppose” that a traveller has prohibited material “secreted about his person”, and s. 98 of the current Act refers instead to whether a customs officer “suspects on reasonable grounds” that the person has prohibited material “secreted on or about his person”, these provisions are sufficiently similar to apply the analytical framework from Simmons to determine the outcome of this appeal. I say this notwithstanding the assertion made by Dickson C.J. in Simmons that s. 98 of the current Act changed the standard from one of suspicion in the former to reasonable grounds in the present Act, an assertion with which I do not agree.
38 In assessing the constitutionality of a strip search conducted on a person travelling through Canada Customs, Dickson C.J. in Simmons correlated three categories of border searches, based on the degree of intrusion into personal privacy and bodily integrity, with an increasing threshold of constitutional justification. In other words, the more intrusive the search, the greater the degree of constitutional protection required in terms of the standard of suspicion or belief which must be met prior to subjecting a traveller to a search by customs officers. Dickson C.J. articulated the necessary correlation as follows, at pp. 516-17:
It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is the routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in such circumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search is the strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondary examination and with the permission of a customs officer in authority. The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.
I wish to make it clear that each of the different types of search raises different issues. We are here concerned with searches of the second type and what I have to say relates only to that type of search. Searches of the third or bodily cavity type may raise entirely different constitutional issues for it is obvious that the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection. I turn now to a consideration of the appellant's specific Charter claims.
39 Dickson C.J. concluded that the standard of “reasonable cause to suppose” in s. 143 of the prior Act authorized border searches in both the first and second categories. No determination was made as to the degree of constitutional scrutiny required for the third category of intrusive border searches, nor is it necessary at this time to decide whether s. 98 of the current Act authorizes customs officers to adopt invasive techniques such as X-rays, emetics or the intervention of medical doctors. I conclude that the actions of the customs officers in detaining the respondent in a “drug loo facility” and conducting what could be characterized as a “bedpan vigil” amounted to a search within the second category.
40 The respondent has urged the Court to find that compelling a traveller who is suspected of swallowing narcotics to provide a urine sample or a bowel movement under supervision is not simply a passive vigil but constitutes state interference with a person’s bodily integrity by seizing or otherwise making use of bodily samples. The respondent relied for support on the decision of the Court in Stillman, supra, in which Cory J. held for the majority that both probable cause and a warrant are the minimum constitutional standards for the seizure of bodily samples or the use of the body under s. 8 of the Charter. As s. 98 of the Customs Act does not require either probable cause or a warrant prior to conducting a border search, the respondent therefore contends that this provision cannot be used to authorize the seizure of body samples which occurred in the circumstances of this appeal. The respondent submits that the collection of bodily waste is sufficient to place a “bedpan vigil” within the category of “most highly intrusive” border searches on the basis that the search interferes with the right to bodily integrity.
41 The respondent’s reliance on the Court’s decision in Stillman, however, is misplaced. Detaining the respondent at the border in order to monitor his bowel movements and ascertain the presence of concealed narcotics is not analogous to the factual circumstances in Stillman, wherein the respondent was arrested for murder and refused consent to provide bodily samples for the purposes of DNA testing. The police, upon threat of force, nonetheless obtained bodily samples from the respondent while he was in custody, including strands of hair, dental imprints, saliva samples and buccal swabs. At one point, the police also retrieved a tissue that the respondent had used to blow his nose and had discarded in a wastebasket. At issue was whether the taking of the samples by the police was authorized by the common law search power incidental to an arrest. Cory J. concluded that the taking of bodily samples is a highly intrusive action which goes far beyond the typical frisk search that usually accompanies an arrest. Accordingly, he held that the respondent’s rights under s. 8 had been violated.
42 The most significant distinction between the circumstances of this appeal and the situation of the respondent in Stillman is that border crossings represent a unique factual circumstance for the purposes of a s. 8 analysis. The particularity of this context was recently affirmed by this Court in R. v. Jacques, [1996] 3 S.C.R. 312, wherein Gonthier J. stated for the majority as follows at para. 18:
The unique context that border crossings present was recognized by this Court in R. v. Simmons, [1988] 2 S.C.R. 495. Dickson C.J., writing for the majority, said (at p. 528):
National self‑protection becomes a compelling component in the calculus.
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries.
43 Accordingly, decisions of this Court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.
44 A second important distinction between the circumstances of this appeal and those present in Stillman is that the customs officers, in detaining the respondent in this case and subjecting him to a passive “bedpan vigil”, were not attempting to collect bodily samples containing personal information relating to the respondent. Cory J. in Stillman expressed particular concern that the actions of the police in gathering DNA evidence violated the respondent’s expectations of privacy in using his body to obtain personal information. He relied in part on La Forest J.’s observation in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, that "the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity". Thus the right of privacy protected by s. 8 of the Charter ensures that individuals are able to maintain bodily integrity and autonomy in the face of potential state interference. Cory J. summarized the connection between privacy and bodily integrity as follows, at para. 87:
Canadians think of their bodies as the outward manifestation of themselves. It is considered to be uniquely important and uniquely theirs. Any invasion of the body is an invasion of the particular person. Indeed, it is the ultimate invasion of personal dignity and privacy.
45 Heroin pellets contained in expelled faecal matter cannot be considered as an “outward manifestation” of the respondent’s identity. An individual’s privacy interest in the protection of bodily fluids does not extend to contraband which is intermingled with bodily waste and which is expelled from the body in the process of allowing nature to take its course. It is not necessary for determination of the issue in this appeal to address the question of whether, if the customs officers had adopted a more invasive form of collection, such as surgery or inducing a bowel movement, the result would necessarily be the same.
46 As to my determination that the passive “bedpan vigil” conducted by the customs officers is properly classified as a search within the second category, a review of the representative border searches provided by Dickson C.J. in his analytical framework reveals that the principal distinction between searches in the second and third categories is that all of the examples listed in the third category involve, to a greater or lesser degree, the intentional application of force. Search techniques such as the insertion of a probe into a body cavity or the administration of an emetic could all be characterized in the absence of lawful authority as an assault. Consequently, the potential degree of state interference with an individual’s bodily integrity for searches in the third category requires a high threshold of constitutional justification. In Stillman, Cory J. affirmed the highly invasive nature of searches in the third category when he stated as follows, at para. 42:
It has often been clearly and forcefully expressed that state interference with a person's bodily integrity is a breach of a person's privacy and an affront to human dignity. The invasive nature of body searches demands higher standards of justification. In R. v. Pohoretsky, [1987] 1 S.C.R. 945, at p. 949, Lamer J., as he then was, noted that, "a violation of the sanctity of a person's body is much more serious than that of his office or even of his home". In addition, La Forest J. observed in R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431‑32, "the use of a person's body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity". Finally, in R. v. Simmons, [1988] 2 S.C.R. 495, at p. 517, Dickson C.J. stated:
The third and most highly intrusive type of search is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X‑rays, to emetics, and to other highly invasive means.
47 Thus the determination of this appeal revolves around the central question of whether a “bedpan vigil” can properly be characterized as an “invasive” procedure on a par with body searches involving the intentional application of force. In my opinion, it cannot. There is no doubt that Canadians expect treatment that recognizes a strong sense of modesty concerning bodily functions. A traveller who is detained in a “drug loo facility” and compelled to produce either urine or a bowel movement under supervision is subject to an embarrassing process. In my view, however, a passive “bedpan vigil” is not as invasive as a body cavity search or medical procedures such as the administration of emetics. In this sense, the right to bodily integrity is not to be confused with feelings of modesty, notwithstanding their legitimacy. Accordingly, a passive “bedpan vigil” is more appropriately analogous to a category two strip search on the basis that a suspect is detained and placed in an embarrassing situation, but is not subjected to an intentional application of force against his or her will.
48 While I conclude that the compelled production of a urine sample or a bowel movement is an embarrassing process, it does not interfere with a person’s bodily integrity, either in terms of an interference with the “outward manifestation” of an individual’s identity, as was the central concern in Stillman, or in relation to the intentional application of force, as was relevant in Simmons. As is the case with other investigation techniques in the second category such as a strip search, subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials. Accordingly, I find that the border search conducted by the customs officers in the circumstances of this appeal was reasonable for the purposes of s. 8 of the Charter.
3. Did the customs officers have a reasonable suspicion that the respondent had narcotics secreted on or about his person?
49 The reasons of the majority in the Court of Appeal overturned the trial judge’s ruling on the voir dire that Inspector Roberts had reasonable grounds to believe that the respondent had ingested narcotics prior to his arrival at Pearson International Airport, and was attempting to smuggle these narcotics across the Canadian border. The majority held instead that Inspector Roberts had only a reasonable suspicion. Having determined, however, that the search conducted by the customs officers was constitutionally permissible pursuant to s. 98 of the Customs Act on the basis of reasonable grounds to suspect, which can be viewed as a lesser but included standard in the threshold of reasonable and probable grounds to believe, I see no reason to interfere with the implicit factual finding at trial, confirmed on appeal, that Inspector Roberts had at the very least reasonable grounds to suspect that the respondent had ingested narcotics.
50 It is important to note that Inspector Roberts based his conclusion on the cumulative effect of several factors, and that no one factor can be assessed in isolation. Recall that Inspector Roberts first noted that the respondent’s airline ticket to Switzerland had cost $688.00 and was paid for by cheque on the date of departure. Inspector Roberts interpreted this to indicate that the respondent had left Canada in haste, since in his experience most people arrange their travel plans and purchase their tickets well in advance of the date of departure. It had also been his experience that the average traveller is unlikely to fly to Switzerland on short notice to visit a cousin, particularly in circumstances such as the respondent’s where financial resources would most likely be limited. These factors increased in significance given Inspector Roberts’ opinion that Switzerland was a “transit routing” country for narcotics smuggling. Inspector Roberts also noted that the respondent’s passport listed his place of birth as Ghana, which Inspector Roberts viewed as a corresponding “source” country. The respondent, however, denied in response to Inspector Roberts’ questioning that he had travelled to Ghana while out of the country.
51 Inspector Roberts next asked the respondent whether he had a criminal record, which the respondent also denied. Inspector Roberts then performed a computer check which disclosed that the respondent had been charged with incest but had not yet been tried. When Inspector Roberts returned from completing the computer check to question the respondent further, the respondent volunteered the information that was perhaps the most damaging to his credibility. Although the respondent initially denied having travelled to Ghana, he subsequently admitted to Inspector Roberts that he had indeed visited Ghana to visit his mother. It was at this point that Inspector Roberts indicated in his evidence: “I had actually got grounds”. In my opinion, a traveller’s inability to maintain consistency when responding to questions regarding his or her travel itinerary, particularly in circumstances where the itinerary is relatively uncomplicated, leads to an entirely reasonable inference that the traveller is attempting at the very least to mislead the customs officer.
52 When the respondent’s admission to having visited Ghana is considered in light of the cumulative effect of the factors considered by Inspector Roberts, particularly in light of Inspector Roberts’ view that the respondent had visited both a “transit routing” and “source” country for narcotics, Inspector Roberts’ assessment that he had reasonable grounds to suspect that the respondent was attempting to smuggle ingested narcotics into Canada is unassailable.
4. Did the customs officers conduct the search of the respondent “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act?
53 On the question of whether the customs officers conducted the search within a reasonable time after the respondent’s arrival in Canada, I agree with Weiler J.A.’s conclusion that the assessment of “reasonableness” must take into account not only any delay in the search process, but also the inherent time requirements of the particular search technique. Based on the evidence at trial, a delay of 30 minutes from the time a person is detained until the search begins is reasonable. In this case, however, the customs enforcement officers did not arrive until nearly two hours after the respondent was detained. As Weiler J.A. noted, however, while a delay at any point in the search process is an important consideration, it cannot be examined in isolation. Given the fact that a passive “bedpan vigil” is an inherently time-consuming process, I am of the opinion that the delayed response by the customs enforcement officers of one-and-a-half hours is not sufficient to establish that the search of the respondent was not conducted “within a reasonable time after his arrival in Canada” as required by s. 98(1) of the Customs Act.
B. Does s. 7 of the Charter require that the detention of a traveller who is believed to have swallowed narcotics be conducted under medical supervision?
54 It is not disputed that those who ingest large amounts of heroin in the form of pellets will be placed in physical danger should one of the pellets burst or otherwise begin leaking while still inside the person’s digestive system. The risk increases with time and to the extent that the natural passage of the material in the form of a bowel movement is resisted. There is no doubt that the respondent’s safety was at risk for this reason and that the customs officers were aware of this fact once the positive urine test confirmed the presence of heroin in the respondent’s system. Although the official customs policy in such cases is to conduct the detention in a hospital or otherwise under qualified medical supervision, the customs officers were unaware of this official policy and instead followed the standard port policy, which was to monitor the suspect closely and to provide prompt medical attention if requested by the suspect, or should the need arise.
55 The respondent contends that the actions of the customs officers placed his life at risk in a manner contrary to his guaranteed constitutional rights under s. 7 of the Charter by failing to ensure that his detention was conducted at all times under medical supervision. The Court held in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, that state action which has the likely effect of impairing a person’s health engages the fundamental right under s. 7 to security of the person. What the respondent is seeking in this appeal, however, is to extend this constitutional guarantee to include an obligation by the state to provide medical supervision in response to the risk to the respondent’s health which in these circumstances was self-induced, notwithstanding that the respondent himself refused the offer of medical attention.
56 As Weiler J.A. noted, although the respondent was deprived of his physical liberty during his period of detention, he was not deprived of the liberty to make his own decisions concerning his health, regardless of whether he made a decision which was contrary to his own best interests. The customs officers specifically inquired as to the respondent’s well-being and made it clear to the respondent that unconditional medical assistance was available at any time. While it might have been preferable for the customs officers to have followed the official customs policy, as indicated in the testimony of the expert, they took reasonable steps to ensure the respondent’s physical safety by monitoring his condition and specifically offering him access to medical care. Constitutional protection of life and security of the person pursuant to s. 7 of the Charter does not extend to providing access to medical supervision during a passive “bedpan vigil” over and above the rejection of medical attention by the suspect being detained.
C. If the accused’s Charter rights were violated, should the evidence of the heroin pellets have been excluded at trial pursuant to s. 24(2)?
57 Having determined that the customs officers’ detention of the respondent in order to confirm their suspicions that he had ingested narcotics did not violate the respondent’s rights under s. 7 or s. 8 of the Charter, I do not find it necessary to address the exclusion of evidence under s. 24(2).
VI. Conclusion and Disposition
58 I conclude that the actions of the customs officers were authorized by s. 98 of the Customs Act on the basis that: (a) s. 98 of the Act permits customs officers who have a reasonable suspicion that a traveller has ingested narcotics to detain the traveller for such a period of time as is necessary either to confirm or discredit this suspicion by means of a passive “bedpan vigil”; and (b) the customs officers in the circumstances of this appeal did have reasonable grounds to suspect that the respondent had indeed ingested narcotics. Accordingly, I would allow the appeal, set aside the judgment of the Ontario Court of Appeal, and restore the conviction entered at trial.
Appeal allowed.
Solicitor for the appellant: The Attorney General of Canada, Toronto.
Solicitors for the respondent: Pinkofsky, Lockyer, Toronto.