r. v. simmons, [1988] 2 S.C.R. 495
Laura Mary Simmons Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario Intervener
indexed as: r. v. simmons
File No.: 18767.
1988: January 28; 1988: December 8.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether accused detained and having right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right to counsel was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Customs searches ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right against unreasonable search and seizure was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Whether search conducted in a reasonable manner ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).
Customs and excise ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Evidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).
Appellant, on entering Canada, proceeded to the primary customs inspection where she was routinely questioned by a customs officer. The officer found her to be overly nervous and referred her for a secondary inspection. The secondary inspector was also suspicious of the appellant and obtained permission from the Customs Superintendent to search her. Her suspicions were based on the primary inspector's doubts about the appellant, her dissatisfaction with her identification, and on her observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen. Appellant was taken into a search room and shown a sign on the wall which set out ss. 143 and 144 of the Customs Act. These sections provided the authority for conducting personal searches. The inspector, accompanied by an other female customs officer, told the appellant to undress. Appellant complied and removed some of her clothes, revealing white adhesive bandages around her midriff. Concealed in the bandages were plastic bags containing cannabis resin. The appellant was then arrested and informed of her right to retain and instruct counsel.
At trial, the judge held that the appellant had been detained from the moment she was taken into the search room and, because she had not been informed of her right to retain and instruct counsel before the search, her right under s. 10(b) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge then excluded the evidence under s. 24(2) of the Charter, holding that its admission into the proceedings would bring the administration of justice into disrepute. As a result, he acquitted the appellant. The Court of Appeal set aside appellant's acquittal and ordered a new trial. This appeal is to determine whether the appellant's rights under ss. 10(b) and 8 of the Charter were violated when she was subjected to a strip search at customs; and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter.
Held: The appeal should be dismissed.
Per Dickson C.J. and Beetz, Lamer and La Forest JJ.: Appellant was detained within the meaning of s. 10 of the Charter when she was required, pursuant to s. 143 of the Customs Act, to undergo a strip search at customs and she should have been informed of her right to retain and instruct counsel at that time. This result is consistent with both the meaning given to detention in common parlance and with the definition set out in R. v. Therens, [1985] 1 S.C.R. 613. At the time of the search, appellant was clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences. Appellant could not refuse to be searched and leave. Section 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act.
Sections 143 and 144 of the Customs Act do not infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter. It is true that these sections do not meet the safeguards articulated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, but these standards do not apply to customs searches. The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. 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. Under sections 143 and 144 of the Customs Act, searches of the person are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. The searches are conducted in private rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter.
The search itself, however, was not conducted in a reasonable manner. The denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The customs officers did not read the text of the personal search provisions to the appellant but simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions‑‑much less understood them‑‑and that she knew of her right, under s. 144, to demand a second authorization. It is clear that the violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. The violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.
The violations of appellant's rights under ss. 10(b) and 8 of the Charter could not be justified under s. 1 of the Charter. The violations of the appellant's right to counsel and of her right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.
Although the breaches of the appellant's ss. 10(b) and 8 rights was not trivial, the admission of the evidence in question would not bring the administration of justice into disrepute. There were ample facts to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations and its admission into evidence would not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There was nothing to indicate that the customs officers treated the appellant in a discourteous fashion. Finally, this Court has previously held that the constitutional invalidity of a search power does not render evidence inadmissible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance, the customs officials acted in accordance with the existing statutory requirements at the time of the search. Under these circumstances, it is the exclusion of the evidence that would bring the administration of justice into disrepute.
Per Wilson J.: The constitutionality of appellant's strip search cannot be determined solely on the basis of whether there has been compliance with ss. 143 and 144 of the Customs Act. These statutory provisions must be read in accord with the obligation under s. 10(b) of the Charter to inform those who are detained of their right to retain and instruct counsel and to respect that right. Any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter, has to be "prescribed by law". Sections 143 and 144 have to be examined to see whether a limit is provided for expressly or by necessary implication or through the operating requirements of the sections: see R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640. There is nothing in ss. 143 and 144 which is incompatible with the right to counsel, nor do their operating requirements preclude such a right. Therefore, the violation of appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.
Although the unconstitutionality of the search renders the search per se unreasonable, the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter. It is unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his person. It is therefore not surprising that there is no indication that the appellant even read ss. 143 and 144 of the Customs Act, let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his own lawyer. The right to counsel is the citizen's guarantee that his other rights will be respected. It prevents him from being overborne by the greater power of the state.
Per McIntyre and L'Heureux‑Dubé JJ.: Appellant was not detained within the meaning of s. 10(b) of the Charter when she was subjected to a strip search at customs pursuant to s. 143 of the Customs Act. The definition of detention in R. v. Therens, [1985] 1 S.C.R. 613, does not go as far as to cover a search by a customs officer who carries out the routine procedures in order to control the illegal importation of goods and substances across the border. Persons entering Canada, whether or not they are citizens, are placed in a unique legal situation at the point at which they enter the country. They expect to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his activities within Canada. It is incidents of this latter nature to which the definition in Therens was meant to apply.
The purpose of s. 10(b) of the Charter gives also a clear indication that the provision does not apply to a border search. The purpose of the right to counsel is to ensure that the individual is treated fairly in the criminal process and, in particular, to prevent the individual from incriminating himself. In a border search the issue is not one of self‑incrimination. A search at the border is part of the process of entering the country and is not part of the criminal process. The right to counsel will arise only where a searched person is placed under custody as part of the criminal process. This does not mean, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply.
Finally, considering this unique situation and the state interest in preventing the entry of undesirable persons or goods, customs searches pursuant to ss. 143 and 144 of the Customs Act are reasonable and do not therefore infringe s. 8 of the Charter. The search itself was conducted in a reasonable manner. Appellant, who was not detained within the meaning of s. 10(b) of the Charter, was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144 of the Customs Act.
Cases Cited
By Dickson C.J.
Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: Chromiak v. The Queen, [1980] 1 S.C.R. 471; United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); United States v. Lincoln, 494 F.2d 833 (1974); United States v. Chavarria, 493 F.2d 935 (1974); United States v. King, 485 F.2d 353 (1973); United States v. Beck, 483 F.2d 203 (1973); R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423; R. v. Jacoy, [1988] 2 S.C.R. 548, aff'g (1986), 30 C.C.C. (3d) 9 (B.C.C.A.), rev'g B.C. Prov. Ct. (Vancouver), October 25, 1985; R. v. Gladstone (1985), 22 C.C.C. (3d) 151; R. v. Jordan (1984), 11 C.C.C. (3d) 565; R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305; Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961); R. v. Wray, [1971] S.C.R. 272; United States v. Guadalupe‑Garza, 421 F.2d 876 (1970); R. v. Dumas (1985), 23 C.C.C. (3d) 366; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301.
By Wilson J.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640.
By L'Heureux‑Dubé J.
Distinguished: R. v. Therens, [1985] 1 S.C.R. 613; approved: United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); referred to: Clarkson v. The Queen, [1986] 1 S.C.R. 383.
Statutes and Regulations Cited
Act respecting the Customs, S.C. 1867, c. 6.
Canadian Charter of Rights and Freedoms, ss. 1, 8, 10(b), 24(2).
Constitution Act, 1982, s. 52.
Criminal Code, R.S.C. 1970, c. C‑34, s. 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)].
Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144, 203.
Customs Act, S.C. 1986, c. 1, s. 98.
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 5(1).
Authors Cited
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed., vol. 3. St. Paul, Minn.: West Publishing Co., 1987.
Michalyshyn, Peter B. "The Charter Right to Counsel: Beyond Miranda" (1987), 25 Alta. L. Rev. 190.
APPEAL from a judgment of the Ontario Court of Appeal (1984), 45 O.R. (2d) 609, 3 O.A.C. 1, 7 D.L.R. (4th) 719, 11 C.C.C. (3d) 193, 7 C.E.R. 159, setting aside appellant's acquittal on charges of importing narcotics and possession of narcotics for the purpose of trafficking (1983), 5 C.E.R. 396 and ordering a new trial. Appeal dismissed.
C. Jane Arnup, for the appellant.
J. E. Thompson et J. W. Leising, for the respondent.
Casey Hill, for the intervener.
The judgment of Dickson C.J. and Beetz, Lamer and La Forest JJ. was delivered by
1. The Chief Justice‑‑The appellant, Laura Mary Simmons, was indicted on two drug counts: (i) that she unlawfully "did, at the City of Mississauga, in the Judicial District of Peel and Province of Ontario, on or about the 14th day of November in the year 1982, import into Canada a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin", contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, and (ii) that she unlawfully did, at the same place and date, "have in her possession a Narcotic for the purpose of trafficking, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin", contrary to s. 4(2) of the Narcotic Control Act. Drugs, contained in a body pack taped to her waist, were found on the person of the appellant by customs officers at Toronto International Airport. The trial judge ruled the evidence of the drugs, seized as a result of a body search, inadmissible, and found the appellant not guilty on both counts in the indictment.
2. Appellant's acquittal at trial was reversed on appeal and she has now appealed as of right to this Court, pursuant to s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34.
3. The principal issues in the case are whether the appellant's rights under ss. 10(b) and 8 of the Canadian Charter of Rights and Freedoms were violated when she was subjected to a strip search at customs and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter. These raise the following subsidiary issues: whether a strip search by customs officers constitutes a "detention" and thus gives rise to the right to retain and instruct counsel and to be informed of that right under s. 10(b) of the Charter; whether the personal search provisions (ss. 143 and 144) in the former Customs Act, R.S.C. 1970, c. C‑40, are inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter, and thereby, by reason of s. 52 of the Constitution Act, 1982, of no force or effect to the extent of the inconsistency; and whether the violations, if any, of ss. 10(b) or 8 may be justified under s. 1 of the Charter.
4. The statutory provisions to which reference is made in the foregoing paragraph read as follows:
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
8. Everyone has the right to be secure against unreasonable search or seizure.
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right;
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(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.
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Customs Act
143. Any officer, or person by him authorized there‑ unto, may search any person on board any vessel or boat within any port in Canada, or on or in any vessel, boat or vehicle entering Canada by land or inland navigation, or any person who has landed or got out of such vessel, boat or vehicle, or who has come into Canada from a foreign country in any manner or way, if the officer or person so searching has reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.
144. (1) Before any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person, but, if otherwise, he shall direct the person to be searched; but where the person is a female she shall be searched by a female, and any such magistrate, justice of the peace or collector may, if there is no female appointed for such purpose, employ and authorize a suitable female person to act in any particular case or cases.
If one traces ss. 143 and 144 as far back as Confederation one will find that the sections contained in the 1867 Customs Act (S.C. 1867, c. 6) are virtually the same as those in the 1970 Act. Both permit a search of the person when the customs officer "has reasonable cause to suppose that the person searched" has "prohibited goods, secreted about the person". In addition, both versions stipulate that a person may request to be brought before a justice of the peace, or before the collector or chief officer of the customs office for a second authorization before the search is performed. The 1970 provision adds a police magistrate to the list of officials who can give a second authorization.
5. Sections 143 and 144 have since been repealed and replaced by s. 98 of the Customs Act, S.C. 1986, c. 1. That section changes the standard of suspicion to "reasonable grounds" and narrows the number of persons, before whom a person about to be searched may be brought, to the senior officer at the place the search is to take place.
I
Facts
6. The appellant arrived at the Toronto International Airport on the evening of November 14, 1982 on Air Jamaica flight 071 from Jamaica. She proceeded to the primary customs inspection and was asked a series of standard questions by the customs officer. The appellant identified herself as "Maureen Claudia" Simmons, stated that she lived in Montréal, and declared a total of $25 as the value of all goods she was bringing into the country. Finding the appellant to be "overly nervous and jittery and a bit agitated", the primary customs officer concluded she should be referred for a secondary inspection and gave the appellant an inspection card bearing the number "86". The number 8 represented the code indicating the traveller should be referred to secondary inspection. The 6 indicated that the primary inspector had doubts about the goods the passenger had declared.
7. The secondary customs officer, Inspector Kathy Badham, asked the appellant for identification and conducted a search of the appellant's luggage. The appellant produced a photocopy of her baptismal certificate and stated that the rest of her identification had been stolen in Montréal. The search of the appellant's luggage did not reveal contraband. At some point during the secondary inspection, the appellant indicated that she was an unemployed, freelance commercial artist. The secondary inspector was suspicious of the appellant and requested permission from the Customs Superintendent to search the appellant's person. The suspicions were based on the primary inspector's doubts about the appellant, dissatisfaction with the appellant's identification, and the secondary inspector's observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen.
8. The secondary inspector informed the appellant that she was going to be searched as permitted by the Customs Act and together with another female customs officer showed the appellant into a search room located behind the secondary search area. She asked the appellant if she was hiding anything and the appellant responded that she was not. The officer then drew the appellant's attention to a sign on the wall of the search room which set out ss. 143 and 144 of the Customs Act quoted earlier. These sections, the inspector advised the appellant, provided the authority for conducting personal searches. There is no indication that the appellant read the provisions.
9. The secondary inspector told the appellant to undress. The appellant complied, removing her jacket, dress, and blouse. The inspector thought she saw something concealed underneath the appellant's girdle and again asked the appellant if she was hiding anything. Again the appellant responded that she was not. The appellant then removed her girdle, revealing white adhesive bandages around her midriff. When questioned about the bandages, the appellant responded that they were for her back. The inspector asked the appellant to remove the bandages. The appellant replied "is this really necessary?" then complied with the request. Removal of the bandages revealed six plastic bags containing 1.98 kilograms of cannabis resin, otherwise known as hashish oil, with a street value of $22,000. The appellant was then arrested for importing narcotics and was informed of her right to retain and instruct counsel. She forthwith telephoned counsel.
10. As Howland C.J.O. noted in the Court of Appeal, by agreement of counsel at trial, evidence was furnished that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80 per cent were cannabis seizures from flights originating in Jamaica.
II
The Trial
11. At trial before Kent Co. Ct. J., the appellant argued that because of the small amount of narcotics involved and the surrounding circumstances of the offence, prosecuting the appellant for importing narcotics and for trafficking rather than lesser charges constituted unfair treatment, violating appellant's rights under ss. 7 and 12 of the Charter. The appellant also alleged that searches made pursuant to s. 143 of the Customs Act infringed s. 8 of the Charter, that there were no grounds under s. 143 for searching the appellant, that the appellant was arbitrarily detained in violation of s. 9 of the Charter, and that because the appellant had not been informed of her right to retain and instruct counsel before she was searched, s. 10(b) of the Charter had been infringed.
12. In a judgment rendered on May 13, 1983, and reported at (1983), 5 C.E.R. 396, Kent Co. Ct. J. found the appellant not guilty of the charges. The judgment was based on the s. 10(b) argument only. It will be recalled that s. 10(b) of the Charter, quoted earlier, assures everyone the right "on arrest or detention" to retain and instruct counsel without delay, and to be informed of that right. The judge held that the appellant had been detained from the moment she was taken into the search room for a body search, as she was then subject to compulsory restraint. In coming to this conclusion he emphasized the testimony of the inspector who conducted the search who stated that in her view the appellant had been detained in her custody and was not free to leave the search room. The appellant, the judge felt, should therefore have been informed of her right to retain and instruct counsel before the search was conducted and, as she had not been so informed, her right under s. 10(b) of the Charter had been violated.
13. The trial judge excluded the evidence under s. 24(2) of the Charter, holding that in all the circumstances its admission into the proceedings would bring the administration of justice into disrepute. The judge pointed out that if the appellant had been advised of her Charter rights before the search, she might well have phoned her lawyer who could have advised her to request that she be brought before a justice of the peace, police magistrate or chief customs officer pursuant to s. 144. In the opinion of the judge this took on particular significance in this case because of the limited evidence in support of the "reasonable cause" for a search as required by s. 143 of the Customs Act. He concluded therefore that the discovery of the illicit drugs was not inevitable and might not have taken place if the appellant's s. 10(b) rights had not been infringed. He found the appellant not guilty as charged.
The Ontario Court of Appeal
14. A five member panel of the Ontario Court of Appeal reversed Kent Co. Ct. J.'s decision, Tarnopolsky J.A. dissenting in part: (1984), 7 D.L.R. (4th) 719. Howland C.J.O. for the majority held that the appellant had not been detained when she was subjected to a strip search at the border. In his view, the word "detention" in s. 10 of the Charter was to be accorded the meaning given to that word in s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III, by this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471. It should be noted that the Court of Appeal did not have the benefit of this Court's decision in R. v. Therens, [1985] 1 S.C.R. 613. Howland C.J.O. also considered the American jurisprudence on border searches. He noted that American courts have considered border searches to be an exception to the protection against search and seizure embodied in the Fourth Amendment of the Constitution of the United States. Howland C.J.O. shared the view that customs searches constitute a distinct type of state involvement with the individual and for that reason should be regarded differently. He stated at pp. 740‑41:
In my opinion, border searches for contraband fall into a very special category. If a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion. There is nothing demeaning about such a request. The respondent was only requested to remove such of her clothing as was necessary to disclose that she was concealing illegal drugs. She was not touched in any way by Inspector Badham. The very large number of illegal drug seizures at the Toronto International Airport arising from Jamaica flights is indicative of the magnitude of the problem.
It would be wrong to conclude that the brief restraint involved in the ordinary progressive border search for contraband conducted by a customs officer pursuant to ss. 143 and 144 of the Customs Act constitutes a detention within the meaning of s. 10 of the Charter.
Howland C.J.O. also noted that s. 143 of the Customs Act formed part of comprehensive border regulation to which both citizens and non‑citizens alike were subject when seeking to enter Canada from abroad.
15. Howland C.J.O. found no merit to the appellant's argument that ss. 143 and 144 of the Customs Act violated s. 8 of the Charter. In his view, a body search conducted under ss. 143 and 144 should not be considered to be unreasonable within s. 8 of the Charter. He stated at p. 746:
I do not think it is unreasonable for sovereign nations, such as Canada, to provide for a temporary restraint on persons entering the country, and if necessary, for a search of their persons to see if they are bringing contraband into Canada.
16. Despite his finding that the appellant was not detained and therefore that her right to counsel under s. 10(b) of the Charter had not been infringed, Howland C.J.O. went on to consider the appellant's arguments with respect to s. 24(2). In considering the test for whether the admission of evidence would bring the administration of justice into disrepute, he enunciated the following factors: the nature of the illegality, the manner in which the evidence was obtained, the good faith of the persons who obtained the evidence, whether the accused's rights under the Charter were knowingly infringed, and the seriousness of the charge. In this case, Howland C.J.O. was of the view that all the factors militated towards admitting the evidence. The search occurred at the border and was specifically authorized by an Act of Parliament. It was not unreasonable and did not involve any unnecessary invasion of privacy. The customs officers acted in good faith and fully in accordance with the law as stated in the Customs Act. The seizure of drugs was sizable and the charges faced by the accused serious. Accordingly, the admission of the evidence would in no way shock the community. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute.
17. Tarnopolsky J.A. agreed that the evidence in this case should not have been excluded by the trial judge but dissented on the question of detention. In his view, Chromiak, supra, dealt only with the question of roadside breath tests and did not determine whether a person who is required to submit to an examination by a government agency is detained. He also distinguished strip searches at customs from roadside breath testing on two grounds. In Chromiak the accused was free to leave the scene after refusing to take a breath test; the appellant in this case was not free to refuse to be subjected to a body search. Secondly, the search involved in this case was a far more serious intrusion into a person's dignity and privacy than the breath test contemplated in Chromiak. The highly intrusive nature of the search and the fact that it was performed under conditions of restraint compelled Tarnopolsky J.A. to the conclusion that the appellant was detained when she was strip searched and accordingly, her right to counsel had been infringed.
III
Interventions and Constitutional Questions
18. The Attorneys General for Ontario and Alberta filed notice of intention to intervene in the appeal to this Court. The Attorney General for Alberta later withdrew. The Attorney General for Ontario filed a factum in support of the respondent Crown.
19. Prior to hearing the appeal the following constitutional questions were stated:
1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms, thereby requiring that such person be informed of the right to retain and instruct counsel without delay?
2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, and thereby of no force and effect to the extent of that inconsistency?
3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms, is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms?
4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms, are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms?
IV
Customs Searches
20. In this Court counsel for the appellant advanced two main arguments. It was submitted that the appellant was "detained" when she was required to undergo a body search and thus her right to retain and instruct counsel and to be informed of that right under s. 10(b) was infringed. Second, counsel contended that ss. 143 and 144 of the Customs Act were inconsistent with the right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter. It was submitted that neither violation could be saved by s. 1. On the basis of these violations, counsel for the appellant contended that admission of the narcotics into evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter.
21. Crown counsel took the position that the appellant had not been detained and that ss. 143 and 144 of the Customs Act were not inconsistent with s. 8 of the Charter. Both arguments were largely based on characterizing border searches as a special case. Accordingly, the respondent argued that the brief restraint involved in the ordinary progressive border search conducted pursuant to the Customs Act did not constitute detention within the meaning of s. 10 of the Charter. Similarly, though conceding that the search provisions in ss. 143 and 144 did not conform to the criteria established by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Crown contended that Hunter v. Southam Inc. was inapplicable to the border search situation.
22. Before turning to the specific Charter issues, it is useful to consider briefly the significance of the border crossing situation. The respondent stressed that customs searches should be treated differently because of the important national interest that border regulation serves. In the respondent's submission, strip searches such as the one to which the appellant was subjected, are reasonable in the circumstances of monitoring the goods that enter the country. The delay travellers experience when required to undergo a personal search is incidental to the reasonable progression of increasingly more intrusive border searches and for that reason does not constitute a detention within the meaning of s. 10 of the Charter.
23. The American courts have long recognized border situations as an exception to the general protection against unreasonable search and seizure of the Fourth Amendment. The First Congress of the United States passed a customs statute in 1789 exempting border searches from the requirement of probable cause (LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 3, at p. 710). This was the same Congress which two months later proposed the American Bill of Rights including the Fourth Amendment. Border regulation legislation similar to this first statute has existed in the United States since the original enactment.
24. The United States Supreme Court did not have cause to pronounce directly upon the constitutional validity of the search provisions in American customs legislation until 1977 in United States v. Ramsey, 431 U.S. 606 (1977), a case concerning the search of international mail. Lower courts had, however, consistently upheld the validity of customs provisions which permitted border searches to be conducted without securing a warrant and without establishing probable cause (LaFave, op. cit., at p. 712; see United States v. Lincoln, 494 F.2d 833 (9th Cir. 1974); United States v. Chavarria, 493 F.2d 935 (5th Cir. 1974); United States v. King, 485 F.2d 353 (10th Cir. 1973); United States v. Beck, 483 F.2d 203 (3d Cir. 1973)). Dicta in Supreme Court decisions drew a distinction between searches within national boundaries, which were generally subject to the warrant and probable cause requirements of the Fourth Amendment, and those occurring at the border which required neither. In Carroll v. United States, 267 U.S. 132 (1925), a case heard during the era of prohibition, the Supreme Court succinctly stated the essential difference between searches of persons presenting themselves for entry at the border and persons already in the country (at pp. 153‑54):
It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country . . . have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. [Emphasis added.]
Carroll clearly indicated that the national interest in preventing the entry of contraband into the country made searches which would be unreasonable in other circumstances reasonable at the border.
25. In Ramsey, supra, the Supreme Court was finally confronted with a Fourth Amendment challenge to customs search provisions. Rehnquist J., for the Court, commented at some length on the special nature of customs searches at pp. 616‑17:
That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration. The Congress which proposed the Bill of Rights, including the Fourth Amendment, to the state legislatures on September 25, 1789, 1 Stat. 97, had, some two months prior to that proposal, enacted the first customs statute, Act of July 31, 1789, c. 5, 1 Stat. 29. Section 24 of this statute granted customs officials "full power and authority" to enter and search "any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed . . .". The acknowledgment of plenary customs power was differentiated from the more limited power to enter and search ``any particular dwelling‑house, store, building or other place . . ." where a warrant upon "cause to suspect" was required. The historical importance of the enactment of this customs statute by the same Congress which proposed the Fourth Amendment is, we think, manifest.
After reviewing other United States Supreme Court cases in which border situations had been mentioned, Rehnquist J. came to the following conclusion on the validity of border searches at p. 619:
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless "reasonable" has a history as old as the Fourth Amendment itself. We affirm it now.
26. While we must, of course, be wary of adopting American interpretations where they do not accord with the interpretive framework of our Constitution, the American courts have the benefit of two hundred years of experience in constitutional interpretation. This wealth of experience may offer guidance to the judiciary in this country.
27. 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.
28. 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.
V
Section 10 of the Charter
29. The first issue to be determined in this appeal is whether the appellant was detained within the meaning of s. 10 of the Charter when she was required to undergo a strip search at customs. As noted, s. 10(b) provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. If the appellant was detained, her right to retain and instruct counsel was violated since she was not informed of that right until the narcotics were found.
30. In R. v. Therens, supra, this Court considered the meaning of detention in the context of a breathalyzer demand made by a police officer under the former s. 235 of the Criminal Code. Le Dain J. made the following comments, in which all members of the Court concurred at pp. 641‑42:
The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word "detention", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.
From the foregoing passage it is clear that the right to counsel becomes available upon something less than formal arrest. This Court has recently affirmed this definition of detention in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Thomsen, [1988] 1 S.C.R. 640.
31. Counsel for the Crown argued before this Court that the definition of detention in Therens was inappropriate in the circumstances of border searches. It was the Crown's submission that the liberty of travellers is subject to physical constraints that may have significant legal consequences from the moment travellers arrive at the border requesting entry into Canada; detention should not be interpreted to include the ordinary, increasingly more intrusive course of border searches for contraband. Strip searches fall within this routine procedure. Detention within the meaning of s. 10 of the Charter would not be reached until an agent of the state imposed a restraint on a person's liberty beyond the normal restraints involved in ensuring that the person and his or her goods are lawfully admissible. In Crown counsel's submission, this level of restraint was not reached in this case.
32. Only a few lower courts have considered the issue of detention in the context of a search at customs. In R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423 (B.C.C.A.), the British Columbia Court of Appeal held on the authority of Therens, supra, that persons required to wait in an inspection room while their luggage was inspected in another room were detained. In Rodenbush the accused, a married couple, had been under police surveillance while in Seattle. Before the couple arrived at the Canadian border, United States drug enforcement personnel warned Canadian customs officials of their impending arrival. When they reached customs, the accused declared purchases of approximately $70 worth of clothing and were referred to the customs building to pay duty. The officer to whom the accused made the payment requested to inspect their car. Two suitcases which the accused had been given in Seattle while under surveillance were in the back of the car. The officer removed and opened the suitcases and noticed deep gouges on some of the rivets inside one of them. The officer indicated that he wished to inspect the suitcases further and took them to an inspection room where he left them with other inspectors. The officer then led the accused to a second inspection room where he waited with them for the results of the luggage inspection. The search of the suitcases yielded 4.22 kilograms of cocaine with a purity of 76 per cent by weight and a street value of more than $1.6 million.
33. While awaiting the outcome of the luggage search, the inspector carried on a conversation with the accused. When the cocaine was discovered, a customs superintendent notified the inspector of the find and asked him to question the accused about the suitcases. The accused made a false statement concerning where they had acquired the suitcases. The inspector then informed them of the discovery of cocaine and placed them under arrest. The British Columbia Court of Appeal held that the accused were detained within the meaning of s. 10 of the Charter when they were asked by the customs officer to enter a separate interview room.
34. The British Columbia Court of Appeal has considered the question of detention in the customs setting on two other occasions. In R. v. Jacoy (judgment being rendered this date), the accused was being monitored by the police for involvement in drug trafficking. As he proceeded north from Seattle towards the Canadian border, the R.C.M.P. contacted customs and suggested they flag the accused for a routine search. The accused was not to know customs had any suspicions about him. Cronin Prov. Ct. J. (reasons unreported) held that Jacoy was detained from the moment he was stopped at the border. He excluded the narcotics under s. 24(2) of the Charter on the basis of the s. 10(b) violation and acquitted the accused. The case was reversed on appeal to the British Columbia Court of Appeal (reported at (1986), 30 C.C.C. (3d) 9) on other grounds and was argued before this Court on the same day as the instant appeal. In R. v. Gladstone (1985), 22 C.C.C. (3d) 151 (B.C.C.A.), the British Columbia Court of Appeal assumed without deciding that an accused who had been subject to a strip search had been detained within the meaning of s. 10 of the Charter.
35. In my view, the appellant was detained when she was required to undergo a strip search pursuant to s. 143 of the Customs Act. This result is consistent with both the meaning given to detention in common parlance and with the definition laid out by Le Dain J. in Therens, supra. When the customs officer informed the appellant that she was going to be searched, the appellant could not have refused and continued on her way. The customs officer testified that had the appellant attempted to leave, she would have notified the R.C.M.P. In addition, s. 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act. At the time of the search the appellant was quite clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences.
36. I am not persuaded by the argument made before us by the Crown that if a strip search is considered a detention, all travellers passing through customs must be seen to be detained and therefore, to have a right to counsel. In Therens, supra, Le Dain J. stated that not all communication with police officers and other state authorities will amount to detention within the meaning of s. 10(b) of the Charter. This statement is equally valid with respect to the customs situation. I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention for the purposes of s. 10. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10.
37. Counsel for the Crown argued that even if the appellant had been detained, not all detentions require the provision of all the rights enumerated in s. 10 of the Charter; in this case, the detention does not give rise to a right to counsel since no purpose would be served by allowing a person who is going to be searched the right to retain and instruct counsel. I do not agree with this submission. If the appellant had been given the right to consult counsel, counsel could have informed her of her right under s. 144 of the Customs Act to request higher authorization for the search. It is idle to speculate as to what might have happened. In my view it is not correct to argue that counsel would perform no useful function in this situation.
38. I am therefore of the view that the appellant was detained when she entered the search room and that she should have been informed of her right to retain and instruct counsel at that time.
VI
39. The second issue raised in this appeal is the constitutional validity of the former ss. 143 and 144 of the Customs Act. It should be noted at the outset that the appellant does not allege that the search to which she was subjected failed to satisfy the terms of ss. 143 and 144 of the Customs Act. Her argument is rather that the personal search provisions of the Customs Act do not conform to the Charter. Counsel for the appellant argued that these sections infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter because they do not conform to the criteria established by this Court in Hunter v. Southam Inc. The Crown conceded the sections do not meet the Hunter v. Southam Inc. standards but contended that these standards are inapplicable to border situations.
40. In Hunter v. Southam Inc., the Court considered the validity of certain sections of the Combines Investigation Act, R.S.C. 1970, c. C‑23, in the context of s. 8 of the Charter. Under the search provisions of that Act, combines investigation officers could obtain authorization to search any premises on which the Director of Investigation believed evidence relevant to an inquiry under the Combines Investigation Act was to be found. This Court found the provisions infringed the right to be secure against unreasonable search and seizure. The Court recognized that the purpose of s. 8 was to act as a limitation on the pre‑existing search powers of government. The Charter does not protect the individual from all searches, but only from those deemed to be unreasonable. The central question in that appeal was how to assess whether the search provisions in the Combines Investigation Act were reasonable. This Court now faces the same issue with reference to the Customs Act.
41. In Hunter, this Court established three criteria to which reasonable searches must conform. First, where possible, the search must have been approved by prior authorization. This ensures that unjustified searches will be prevented before they occur. The Court acknowledged that it might not be reasonable in all circumstances to insist on prior authorization but held that where it was feasible, prior authorization was a pre‑condition of a reasonable search. Second, the person authorizing the search need not be a judge but must act in a judicial manner. That person must be able to assess in a neutral and impartial fashion whether on the evidence available a search is appropriate. Finally, there must be reasonable and probable grounds, established upon oath to believe that an offence has been committed and that evidence of this is to be found at a particular place. The Court recognized that this standard 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).
42. In this case it is clear that the Hunter v. Southam Inc. standards are not met. Sections 143 and 144 do not mandate prior authorization of personal searches by a person acting in a judicial capacity. The standard upon which a search may be conducted under the provisions, reasonable cause to suppose, also falls short of the reasonable and probable grounds established on oath required by Hunter. There is no warrant requirement. The question this Court must address is whether strip searches of persons seeking to enter this country are reasonable within the meaning of s. 8 of the Charter even if they do not satisfy the criteria established in Hunter v. Southam Inc.
43. The Crown urged this Court to accept the submission that customs represents an unusual situation and therefore that the requirements of Hunter v. Southam Inc. should not be applied to border searches. The Ontario Court of Appeal accepted this argument. That court held that it was not unreasonable for sovereign nations to restrain temporarily persons entering the country, nor was it unreasonable to search their persons to determine if they were bringing contraband into the country. The British Columbia Court of Appeal also accepted this position in R. v. Jordan (1984), 11 C.C.C. (3d) 565 (B.C.C.A.) In that case the accused was subjected to a strip search upon his return from Asia based on an informant's tip that he would be transporting illicit drugs. The court rejected the accused's s. 8 challenge to the validity of ss. 143 and 144 holding that the standard of reasonableness is much lower in respect of border searches. It expressly adopted the American approach to the reasonableness of customs searches.
44. The Nova Scotia Supreme Court reached the opposite result in R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305 (N.S.S.C.T.D.) That case concerned the constitutionality of s. 133 of the former Customs Act which permitted any collector or justice of the peace, upon information, to open and examine any package suspected to contain prohibited property or smuggled goods brought into the country. Acting on information from the United States, customs officers and the R.C.M.P. had searched a car being imported from Germany by Jagodic when it arrived at East Passage, Nova Scotia. Seven bags of cocaine were discovered hidden behind the door panels of the car. MacIntosh J. held that Hunter v. Southam Inc. established a minimum standard for all searches consistent with s. 8 of the Charter and accordingly found s. 133 in violation of that section. The judge, however, found the search of the car valid even though it had been conducted without a warrant since it was not feasible to obtain a warrant in the circumstances. Although his conclusion that the rights of the accused were not violated made a discussion of admissibility unnecessary, MacIntosh J. went on to consider the question of admissibility under s. 24(2) of the Charter. He was of the view that admission of the evidence would not bring the administration of justice into disrepute.
45. The argument that customs searches need not comply with the standard enunciated in Hunter v. Southam Inc. has as its basis the proposition that reasonableness depends on the circumstances under which a particular search is conducted and that searches which ordinarily would not be reasonable in other circumstances are reasonable at customs. According to this argument, reasonableness cannot be determined solely by considering the conduct leading up to the search, the performance of the actual search itself, and the degree of intrusion involved in the search. These factors must be assessed in light of the context in which the search is performed for an accurate appraisal of reasonableness.
46. The Crown finds support for a contextual approach to determining reasonableness under s. 8 of the Charter in Hunter v. Southam Inc. In Hunter, the Court noted that although the common law protections against government searches were rooted in the right to enjoyment of property and were related to the law of trespass, s. 8 was designed to protect a broader interest of personal privacy. The Court noted that the Charter did not, however, grant unqualified protection of individual privacy (at pp. 159‑60):
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8, whether it is expressed negatively as freedom from "unreasonable" search and seizure, or positively as an entitlement to a "reasonable" expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement. [Italics added.]
In determining the reasonableness of a search, the Crown argued, it was essential to examine the expectation of privacy that would be reasonable given the peculiarities of the situation in which the search occurred. At customs, a different standard of reasonableness would be warranted for two reasons: persons seeking to enter a country have a lower expectation of privacy than they would in most other situations and, states have an important interest in preventing the entry of undesirable persons and goods which justifies more intrusive procedures, particularly where the goods are prohibited narcotics not indigenous to the country.
47. It is true that a determination of reasonableness must depend to some degree on the circumstances in which a search is performed. In my view, however, it would be incorrect to place overwhelming emphasis on the surrounding circumstances when assessing reasonableness under s. 8. Regardless of the constraints inherent in the circumstances, the safeguards articulated in Hunter v. Southam Inc. should not be lightly rejected. Although Hunter did not purport to set down immutable pre‑ conditions for validity applicable to all searches, the Court arrived at the three minimum prior authorization requirements only after examining the values s. 8 is meant to protect. Foremost among these values is the interest in preventing unjustified searches before they occur. This is a basic value regardless of situational constraints. In light of the importance of preventing unjustified searches, departures from the Hunter v. Southam Inc. standards that will be considered reasonable will be exceedingly rare.
48. The crux of the Crown's argument is that the reasonableness of border searches within the meaning of s. 8 ought to be treated differently from searches occurring in other circumstances. The Crown relied heavily on the rationales articulated in American cases for carving out customs procedures as a general exception to standard search and seizure protections. 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.
49. 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.
50. In my view, routine questioning by customs officers, searches of luggage, frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges permitted by the framers of ss. 143 and 144 of the Customs Act, are not unreasonable within the meaning of s. 8. Under the Customs Act searches of the person are not routine but are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. Though in some senses personal searches may be embarrassing, they are conducted in private search rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter.
51. I also emphasize that, according to the sections in question: (i) before any person can be searched the officer or person so searching must have reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his or her person and (ii) before any person can be searched, the person may require the officer to take him or her before a police magistrate or justice of the peace or before the collector or chief officer at the port or place who shall, if he or she sees no reasonable cause for search, discharge the person.
52. In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act are not inconsistent with s. 8 of the Charter.
53. Although I am of the opinion that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter, I am not persuaded that the search itself was conducted in a reasonable manner. This point was not argued by counsel and strictly speaking, it is not necessary to address it. I wish, however, to make a few observations on the manner in which the search was conducted.
54. The personal search provisions of the Customs Act are notable in that they provide for a second authorization prior to the performance of a search. The second authorization is not de rigueur in all cases, but becomes mandatory upon request by the person to be searched. The Customs Act places no onus on the officers to inform persons about to be searched of their right to obtain a second opinion. There is, in fact, no onus on the officers to explain the limits of their authority under the Customs Act or with what demands a person detained at the border is required to comply. In the present appeal, the customs officials did not read the text of the personal search provisions to the appellant. The officials simply pointed to a sign on the wall containing the text of ss. 143 and 144. There is no evidence that the appellant read the provisions, much less understood them. There is no indication that the appellant knew of her right to demand a second authorization. What is clear is that the appellant was unsure of the officers' authority. Although she complied with their demands throughout, at one point during the search she asked whether it was really necessary for her to comply.
55. It is clear from the foregoing that the right to counsel has an important impact on the execution of the search. Had the appellant been informed of her right to counsel at the point she was detained, and she availed herself of that right, the appellant would have had the benefit of legal advice. Counsel could have dispelled the appellant's uncertainty surrounding the search procedure by explaining the content of ss. 143 and 144 and assuring the appellant of the officers' right to insist she remove her clothing. Counsel could also have ensured that the statutory standard of reasonable cause to suppose had been satisfied and assured the appellant that there were proper grounds to warrant a search. In my view, the denial of the appellant's right to counsel cannot avoid having an impact on the reasonableness of the subsequent search of the appellant.
56. Although the Court has not been asked to decide the point, I am of the view that the denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act. A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. In my view, the violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.
VII
57. Having earlier found that the appellant's right under s. 10(b) of the Charter to retain and instruct counsel was infringed the next stage would ordinarily be to determine whether this violation may be justified under s. 1. I begin by noting that the Crown made no submissions on the point.
58. The Customs Act contains no express limitation on the right to counsel. There was no argument that a limitation on the right to counsel arises from necessary implication of law. The limit upon the appellant's right to retain and instruct counsel was not a limit imposed by law, but rather by the actions of customs officials. I am therefore of the view that the infringement of the appellant's rights pursuant to s. 10(b) of the Charter has not been justified under s. 1.
59. I am also of the view that the violation of the appellant's s. 8 rights was not justified under s. 1 of the Charter. The violation of s. 8 occurred because the search was executed in an unreasonable manner. Like the violation of the appellant's right to counsel, the infringement of the appellant's right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.
VIII
Section 24(2) of the Charter
60. The final question in this appeal is whether the evidence should be excluded under s. 24(2) of the Charter. As Lamer J. noted in R. v. Collins, [1987] 1 S.C.R. 265, the Charter enshrines a position with respect to evidence obtained in violation of Charter rights that falls between two extremes. Section 24(2) rejects the American rule that automatically excludes evidence obtained in violation of the Bill of Rights (see, for example, Weeks v. United States, 232 U.S. 383 (1914), and Mapp v. Ohio, 367 U.S. 643 (1961)). It also shuns the position at common law that all relevant evidence is admissible no matter how it was obtained (see R. v. Wray, [1971] S.C.R. 272). Evidence may be excluded under s. 24(2) if having regard to all the circumstances, it is established that the admission of it would bring the administration of justice into disrepute. The person seeking to exclude the evidence bears the burden of persuading the Court, on a balance of probabilities, that admission of the evidence could bring the administration of justice into disrepute in the eyes of a reasonable person, "dispassionate and fully apprised of the circumstances of the case" (Collins, supra, at p. 282).
61. In Collins, Lamer J. canvassed the factors to be balanced by the Court in determining whether introducing the evidence into the proceedings would bring the administration of justice into disrepute. He organized the factors into three groups based on their effect on the repute of the justice system. The first set of factors are those relevant to the fairness of the trial. Evidence that might in some way affect the fairness of the trial would tend to bring the administration of justice into disrepute and in general should be excluded. Within this category, Lamer J. distinguished between the type of evidence obtained (at pp. 284‑85):
It is clear to me that the factors relevant to this determination will include the nature of the evidence obtained as a result of the violation and the nature of the right violated and not so much the manner in which the right was violated. Real evidence that was obtained in a manner that violated the Charter will rarely operate unfairly for that reason alone. The real evidence existed irrespective of the violation of the Charter and its use does not render the trial unfair. However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in Therens, supra, and Clarkson v. The Queen, [1986] 1 S.C.R. 383, are illustrative of this. The use of self‑incriminating evidence obtained following a denial of the right to counsel will generally go to the very fairness of the trial and should generally be excluded.
62. The second set of factors concerns the seriousness of the Charter violation as defined by the conduct of the law enforcement authorities. In this category, an assessment of whether the breach was committed in good faith, whether it was one of a merely technical nature or whether it was deliberate and flagrant falls to be considered. Also within this category is the consideration of whether the Charter violation was motivated by circumstances of urgency or from fear of destruction of evidence. Finally, if other investigatory techniques had been available or if the evidence could have been obtained in a manner which would not have infringed the Charter, the violation would tend to be construed as more serious.
63. The third set of factors recognizes the possibility that the administration of justice could be brought into disrepute by excluding evidence despite the fact that it was obtained in a manner that infringed the Charter. The decision to exclude evidence always represents a balance between the interests of truth on one side and the integrity of the judicial system on the other. In some cases the harm to the integrity of the judicial system resulting from excluding the evidence will be so great that exclusion and not admission will bring the administration of justice into disrepute. This would be the case if evidence necessary to substantiate a charge were excluded on the basis of a trivial Charter violation.
64. In this case there were ample "objective, articulable facts" (see United States v. Guadalupe‑Garza, 421 F.2d 876 (9th Cir. 1970)) to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The appellant was nervous, she had come from a country considered to be an important source of drugs, her means of identification and the story which accompanied it were suspect, and finally, bulging was obvious in the area of her upper abdomen.
65. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations. As Belzil J.A. observed in R. v. Dumas (1985), 23 C.C.C. (3d) 366 (Alta. C.A.), at p. 372:
What is sought to be excluded here is pre‑existing physical evidence which the appellant was attempting to conceal to prevent its detection and rightful seizure . . . .
Unlike the situation in Therens, supra, the accused here was in no way conscripted against herself. The admission of the evidence in this case, in contrast to Therens, would therefore not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There is nothing to indicate that the customs officers treated the appellant in a discourteous fashion. In fact, the evidence reveals that the officers informed the appellant of her right to counsel as soon as they thought it was necessary to do so and gave her the opportunity to exercise that right. This Court held in R. v. Sieben, [1987] 1 S.C.R. 295, and R. v. Hamill, [1987] 1 S.C.R. 301, that constitutional invalidity of a search power does not render evidence inadmissible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance the customs officials were acting in accordance with existing statutory requirements. The breaches occurred not long after the Charter came into force and several years before the decision of this Court in Therens on the meaning of detention in s. 10(b). At the time of this search the decision of this Court in Chromiak, supra, stood for the proposition that investigative detentions of this sort were not detentions of the type requiring persons to be advised of their right to counsel.
66. Although the breach of the appellant's s. 10(b) and s. 8 rights were not strictly speaking trivial, in my opinion, for the reasons given, this is the kind of case where the evidence should be admitted. Exclusion of the evidence would tend to bring the administration of justice into disrepute.
67. I would emphasize as well that all five judges of the Ontario Court of Appeal, including Tarnopolsky J.A., were of the view that the admission of the evidence in question would not bring the administration of justice into disrepute.
68. In my view, the trial judge erred in excluding the evidence under s. 24(2). I would therefore dismiss the appeal and send the case back for a new trial. I would answer the constitutional questions in the following manner:
1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms, thereby requiring that such person be informed of the right to retain and instruct counsel without delay?
Answer: Yes.
2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms, and thereby of no force and effect to the extent of that inconsistency?
Answer: No.
3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms, is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms?
Answer: No.
4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms, are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms?
Answer: Question 4 does not require an answer.
The reasons of McIntyre and L'Heureux‑Dubé JJ. were delivered by
69. L'Heureux‑Dubé J.‑‑I have had the opportunity of reading the reasons of the Chief Justice, and with respect I cannot agree with his disposition of the first question in this appeal.
70. The first constitutional question is set out as follows:
1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms, thereby requiring that such person be informed of the right to retain and instruct counsel without delay?
71. In my opinion, the answer to this question must be in the negative.
72. The Chief Justice approached the issues in this case by distinguishing between three types of border searches. He found that the facts of this case fell within the second type:
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.
73. The Chief Justice limited his remarks to this second category. He found that detention under these circumstances constituted detention within the meaning of s. 10(b) of the Charter. I must state from the outset that I have serious reservations about the use of these categories to divide the issue. However, for the present purposes, I will limit my remarks to the second category as described by the Chief Justice.
74. I cannot agree with the Chief Justice as to the applicability of s. 10(b) in this case. Detention, for the purposes of s. 10(b) is defined by Le Dain J. of this Court in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641‑42:
The purpose of s. 10 of the Charter is to ensure that in certain situations a person is made aware of the right to counsel and is permitted to retain and instruct counsel without delay. The situations specified by s. 10‑‑arrest and detention‑‑are obviously not the only ones in which a person may reasonably require the assistance of counsel, but they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel. In its use of the word "detention", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.
In addition to the case of deprivation of liberty by physical constraint, there is in my opinion a detention within s. 10 of the Charter when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.
75. With respect for the contrary opinion, I cannot accept the contention that this definition goes so far as to cover a search by a customs officer who carries out the routine procedures included in the Chief Justice's second category in order to prevent the illegal importation of goods and substances into Canada.
76. In considering the question of detention, a distinction must be made between a search which occurs within Canada, and one which occurs when an individual attempts to gain admission to this country. Persons entering Canada, whether they be citizens or not, are placed in a unique legal situation at the point at which they enter the country.
77. As noted by Howland C.J.O., individuals arriving at the border are subject to a form of restraint from the outset, in that they will be denied entry to the country until the immigration and customs officials are satisfied that they have a right to enter and that the goods and substances which they have in their possession are such as can be legally brought into Canada. The most common form of this restraint is the "routine questioning" which falls into the Chief Justice's first category. In the opinion of the Chief Justice, no Charter issues are raised in these circumstances. Where I would differ with the Chief Justice is in drawing the line after this first category. A more detailed search of the person of the individual entering the country is a standard and necessary part of border inspection procedures whenever there is, as stipulated in s. 143 of the Customs Act, R.S.C. 1970, c. C‑40, a "reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person." In the words of Howland C.J.O. (1984), 7 D.L.R. (4th) 719, at pp. 740‑41:
If a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion.
78. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10(b) of the Charter.
79. The true meaning of detention must come from the Charter and its purpose and intent. In my view, the Therens definition would be overly broad if it was intended to cover situations at the border. The right to counsel is primarily aimed at preventing the accused or detained person from incriminating herself. Thus the main concern would be with coerced or uninformed confessions. In such circumstances, the accused would be manufacturing the evidence against herself. This is something which, in the interests of fairness, the right to counsel would seek to protect. However, a customs search occurs under circumstances where the person being searched is not in a position where she could manufacture evidence. She is not being interrogated; she is merely being searched, just as one is searched before boarding a commercial airplane on a Canadian airline. The "right to counsel" has less meaning in these circumstances. A further purpose of the right to counsel is illustrated by the Therens case. There, the detained person had two choices. He could submit to the test and manufacture evidence against himself, or he could refuse the test and be subject to criminal sanctions for his refusal. In such circumstances, the presence of counsel would have been necessary to inform him of his rights under each alternative, and to advise him of the best option. Again, this type of situation does not arise in a border search, although the person being searched does have a right to "appeal" the search to a higher customs authority, as provided in ss. 143 and 144 of the Customs Act, of which the appellant was made aware.
80. The purpose of the right to counsel is discussed by Peter Michalyshyn in his article "The Charter Right to Counsel: Beyond Miranda" (1987), 25 Alta. L. Rev. 190. He quotes from the judgment of Wilson J. in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 191 of his article:
In Clarkson v. The Queen Wilson J. stated that "This right, as entrenched in s. 10(b) of the Canadian Charter of Rights and Freedoms, is clearly aimed at fostering the principles of adjudicative fairness," and later, ". . . the purpose of the right, as indicated by each of the members of the court in Therens, supra, is to ensure that the accused is treated fairly in the criminal process."
81. A border search is not part of the criminal process, but rather part of the process of entering into the country. The searched person's right to counsel would arise if and when she was placed under custody as part of the criminal process.
82. Michalyshyn also compares the s. 10(b) right with the similar American right (at p. 191):
[I]n the United States the right to counsel ensures that the individual facing custodial interrogation (in Canada we would substitute "arrest or detention") is informed of his rights so as to make a "free and rational choice whether to incriminate himself." In short, the right to counsel ensures, in certain well‑defined circumstances, the individual's right against self‑incrimination.
83. Using this sort of analysis, it is possible to distinguish the two types of situations. In a border search, the issue is not one of self‑incrimination. The individual is not facing "custodial interrogation". In my view, the right to counsel was chiefly intended for that type of situation.
84. Therefore, given the purpose of the right to counsel, s. 10(b) clearly does not apply to a border search. The person required to undergo a strip search in these circumstances is not detained within the meaning of s. 10(b) of the Charter.
85. I do not suggest, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply. Individuals arriving at customs, however, in electing to travel outside the country or in seeking entry for the first time, have implicitly chosen to submit to the rules and procedures for leaving and entering the country. They expect, and are expected, to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his or her normal activities within Canadian territory. It is incidents of this latter nature to which, in my view, the definition in Therens was meant to apply.
86. The same issue has arisen in the United States under the American Constitution. The Chief Justice has canvassed the American jurisprudence on this point and I see no necessity to go through it again at length. I intend merely to highlight certain elements of the American case law.
87. The Fourth Amendment protection against unreasonable search and seizure has been held in the United States not to extend to border searches. The United States Supreme Court justified this exception on the basis of national interest and the unique situation. In the words of Rehnquist J. in United States v. Ramsey, 431 U.S. 606 (1977), at p. 619:
Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be "reasonable" by the single fact that the person or item in question had entered into our country from outside.
88. On the question of national interest, the U.S. Supreme Court in Carroll v. United States, 267 U.S. 132 (1925), stated, at pp. 153‑54:
Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.
89. These considerations are crucial in drawing a distinction between stopping a person at the border and detaining someone within the country. They are also significant in underlining the valid national interests behind any distinction. Customs officials at border crossings are, in most cases, the last possible check on the importation of harmful and illicit substances into the country. There is no question that the importation of drugs into this country from abroad contributes significantly to a problem which is of serious national concern. The scope of this problem, in the context of the border situation, is highlighted by Howland C.J.O., supra, at p. 725:
By agreement of counsel, evidence was furnished by Superintendent Wilson that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80% were cannabis seizures from Jamaica flights.
90. It is my view that the same circumstances and conditions which have moved the American courts to exempt border searches from the Fourth Amendment protection are operative here. I would agree with the majority that ss. 143 and 144 of the Customs Act are not unreasonable and therefore do not infringe s. 8 of the Charter. In my view, the appellant was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144. Because of this and because I find that the accused was not detained within the meaning of s. 10(b) of the Charter, I cannot agree with the majority's position that the search was conducted in an unreasonable manner.
91. Thus, while I concur in the result reached by the majority of the Court, for the reasons above, I respectfully disagree with the finding that the appellant was detained within the meaning of s. 10(b) of the Charter.
92. Consequently, I would answer the constitutional questions as follows:
93. Question 1: No.
94. Question 2: No.
95. Questions 3 and 4: Do not require an answer.
The following are the reasons delivered by
96. Wilson J.‑‑I have had the benefit of the reasons of both the Chief Justice and Justice L'Heureux‑Dubé and I am in agreement with the result reached by the Chief Justice and with some of his reasons.
97. I agree with the Chief Justice that the appellant was "detained" within the meaning of s. 10(b) of the Canadian Charter of Rights and Freedoms when she was forced to submit to a strip search and that she should have been informed of her right to retain and instruct counsel at that time. I also agree with the Chief Justice that ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are not inconsistent with s. 8 of the Charter. I agree with him also that the admission of the evidence of the drugs found on the person of the appellant as a result of the strip search would not "bring the administration of justice into disrepute" within the meaning of s. 24(2).
98. I prefer, however, to give my own reasons on the reasonableness of the strip search under s. 8.
99. The constitutionality of the strip search of the appellant cannot, in my view, be determined solely on the basis of whether there has been compliance with the statutory search provisions of ss. 143 and 144 of the Customs Act. These statutory provisions must be read in conjunction with the obligation under s. 10(b) of the Charter to inform those who are detained of their right to retain and instruct counsel without delay and to respect that right. I say that because in R. v. Therens, [1985] 1 S.C.R. 613, this Court stated at p. 621 that any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter, has to be "prescribed by law". Le Dain J. went on to explain what this meant at p. 645:
The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s. 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.
In R. v. Thomsen, [1988] 1 S.C.R. 640, the Court, speaking through Le Dain J., unanimously adopted his view at p. 651:
I remain of the view that a limit prescribed by law within the meaning of s. 1 may result by implication from the terms of a legislative provision or its operating requirements. It need not be an explicit limitation of a particular right or freedom.
100. There is no such limit on the appellant's s. 10(b) rights, either expressed in ss. 143 and 144 of the Customs Act or necessarily implied from the terms of these sections or from their operating requirements. There is nothing in these sections which is incompatible with the right to counsel, nor do their operating requirements preclude such right. Section 143 of the Customs Act permits a search when the customs officer "has reasonable cause to suppose that the person searched has . . . prohibited goods, secreted about his person". Section 144 provides "[b]efore any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person". These statutory provisions do not purport to impose a limit or attempt to preclude resort to the right to counsel and are completely compatible with the appellant's s. 10(b) rights. Yet the appellant was not afforded the opportunity to contact her counsel before she was strip searched.
101. As the Chief Justice points out, the appellant was detained during the strip search in the sense that she was not free to leave and was subject to external restraint and control throughout the strip search. The appellant was denied her right to retain and instruct counsel without delay and her right to be informed of that right. Only after the search disclosed the presence of drugs on her person and she was arrested for importing narcotics was she informed of her right to counsel and did in fact telephone counsel.
102. In my view, the violation of the appellant's s. 10(b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.
103. Although the unconstitutionality of the search renders the search per se unreasonable, I would add that the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter. It is, in my view, unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his or her person. It is hardly surprising on the facts of this case that there is no indication that the appellant even read the provisions of ss. 143 and 144 of the Customs Act posted on the wall let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his or her own lawyer. Recourse to legal assistance in such circumstances will often be essential in order to ensure that citizens are protected from unreasonable searches and seizures: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 160. If the appellant had been informed of her right to consult counsel, counsel could have explained to her the right under s. 144 of the Customs Act to request higher authorization for the search and advised her as to whether or not she should exercise it. This would have furthered the purpose of s. 8 in preventing unreasonable searches. As the circumstances of this case show, the right to counsel could be highly useful in facilitating the effective and fair operation of the statutory search provisions, in particular the higher authorization procedure provided for in s. 144. In this case the appellant's right to counsel was not respected and, not surprisingly, her rights under s. 144 were not exercised.
104. This Court has recognized that the values protected by s. 8 are not limited to those of privacy: see Hunter v. Southam Inc., at p. 159. This case points up some of the additional values that are at stake in protecting people from unreasonable searches and seizures. During the actual strip search the appellant attempted to put forth a protest as to whether the removal of the bandages was "really necessary" before she complied. The concern in s. 8 about preventing unreasonable searches and seizures is tied to a broader concern reflected in many of the legal rights in the Charter to prevent the citizen from being overborne by the much greater power of the state. The availability of legal assistance is crucial in preventing this from happening. It is instructive to note in this case that after the strip search was completed, the drugs discovered and the appellant arrested for importing narcotics, she immediately contacted counsel when informed of her right to do so. Her earlier protests at the strip search suggest that she might well have exercised that right before or during the search had she been advised of it at that time.
105. I add as a final comment that in advancing the commendable purpose of rendering all citizens secure from unreasonable searches and seizures courts should not be unduly influenced by hindsight, i.e., by the fact that many of the searches and seizures which come before us have in fact resulted in the discovery of evidence of criminal activity. The level of protection afforded to the citizen under s. 8 of the Charter must be geared to the innocent as well as to the guilty.
Appeal dismissed.
Solicitors for the appellant: C. Jane Arnup and Barry A. Fox, Toronto.
Solicitor for the respondent: Frank Iacobucci, Ottawa.
Solicitor for the intervener: The Ministry of the Attorney General, Toronto.