Posted on 07/18/2007 8:17:34 AM PDT by BGHater
Canadian border guards are stunned by a landmark Provincial Court ruling that they must obtain a warrant before thoroughly searching a suspicious vehicle.
"This is huge. I can't believe it. If this stands, we might just as well go out of business," Ron Moran, national president of the 10,000-member Custom Excise Union and a customs official for 27 years, said yesterday.
"Until this judgment, it would never even have crossed our minds to obtain a search warrant. It's just not part of what we're taught."
Mr. Moran was commenting on a little-noticed decision last week that acquitted a B.C. man of importing 50 kilograms of cocaine into Canada because the contraband was discovered by customs officials without a search warrant.
The ruling by Provincial Court Judge Ellen Gordon, believed to be the first of its kind, could have profound implications for border checks across the country.
"All of our current procedures are based on previous court rulings. This sets new ground," said Chris Williams, spokesman for the Canada Border Services Agency, which is responsible for policing the border.
"The smuggling of cocaine is an ongoing concern. This judgment is something we are obviously concerned about."
Mr. Williams said the government has already filed an appeal, and, in the meantime, customs officials will not change the way they operate at the border.
The two border guards involved in the search testified that they had never before sought a search warrant to poke and prod through stopped vehicles. Nor did they even know how to go about it.
The case involved Ajitpal Singh Sekhon. In January, 2005, he was waved over for a check of his pickup truck at a small Fraser Valley border crossing by a veteran customs officer who thought Mr. Sekhon seemed nervous.
The driver's jaw was rigid, he held the steering wheel tightly, he failed to maintain good eye contact, and the more he was questioned, the tenser he became, the officer told the court.
By the time customs officials were finished, his vehicle had had several holes drilled into it, been towed to another border post near by, and dismantled. A hidden compartment was discovered with 50 kilograms of cocaine inside.
Judge Gordon ruled the search unconstitutional because it was conducted without judicial authorization.
"A warrantless dismantling can be described only as a search carried out in an unreasonable manner," she said.
The judge concluded that border officials further violated Mr. Sekhon's Charter rights when they prevented him from leaving early on in their search and did not allow him to contact a lawyer until they had discovered traces of cocaine.
The presiding officer mistakenly believed she could hold anyone "in a form of custody for as long as she wishes without advising that person that he or she ... has a right to retain and instruct counsel," Judge Gordon said.
She said that those on duty at the time appeared to believe that the border is a Charter-free zone. "It isn't."
They committed three serious breaches of the Charter, the judge decided. "The evidence of the seized cocaine must therefore be excluded."
Larry Myers, who argued the case on behalf of Mr. Sekhon, called the ruling a victory for democratic rights.
"We have these rights, and we must not give them up, even if, at times, it's a little inconvenient and a little cumbersome and the odd guy with some drugs goes free," he said.
"Parliament has decided that we have a Charter, and that Charter must be enforced. It's the rule of law."
It's no big deal to obtain a search warrant," Mr. Myers added. "You can get a [telephone] warrant in four or five minutes."
While the precise impact of the Provincial Court decision remains to be determined, Mr. Myers said he does not think customs officers will now need search warrants for simpler procedures such as checking car trunks and back seats for undeclared goods.
In her ruling, Judge Gordon said there is a difference between having "reasonable grounds" for searching a vehicle at the border and "a lucky hunch," which she said prompted the guard's initial decision to have the truck gone over.
Mr. Moran of the Customs Excise Union said the ruling appears to change the status of border guards as "the only law enforcers who can search people without a warrant."
Chalk up one more for the terror community! Not only is canada flushing thousands of them into their country, now no one can look sideways at them. Well, I guess that makes up for sending the Van Doos to Afghanistan, doesn’t it.
Does that mean I can take a gun into Canada if there’s a traffic jam on a hot day and I’m dizzy from sitting out there on the Peace Bridge for hours and hours.
Sounds like someone missed the story about the alert border guard who prevented the LAX millenium bombing at our side of the border.
Good thing she didn’t need a warrant.
As un-American as it sounds I have always thought that you should be open to all searches as customs see fit regardless of the 4th amendment when you are entering the U.S irregardless of your citizenship.
This is a good way to allow smuggling to just be an open game.
The ACLU must be having wet dreams about this. If only the U.S. courts would follow the enlightened Canadian courts. Drugs, terrorists, weapons, all coming in from Mexico. The North American Union - think of the possibilities!
The last time I went to Canada by land, they were more interested in seizing any Frank Zappa recordings than anything else.
According to the article - YES YES YES! As long as you don't put it into routine places like "car trunks and back seats."
Nothing un-American about it; it isn't 'unreasonable' to protect ourselves from undesirables, contraband etc..
Looking for copies of "Magdelana"? [There once was a man, a grubby little man who lived in Montreal...]
Let's see now, passport. Check.
Guns. Check,
Coke. Check
Procedure for setting up off shore bank account while in Canada, Check!
Ready- Set - Goooooooooooooooooo!
I always though the rule of ‘legal precedent’ was wrong wrong wrong to be used in ALL CASES. When a decision like this for one specific case means a new law (in effect) for ALL cases then the Judges has just legislated from the bench.
A judge is supposed to INTERPRET the law, not make it. Each case should stand on its own merits. The ruling for one case should not become the law for all cases.
The solution is pretty simple...ask.
If permission to search is denied, return to America.
If only the U.S. courts would follow the enlightened Canadian courts.Don't worry, we will. If it's stupid, and international, our legal geniuses won't be able to resist it.
Insanity.
Judicial tyranny at its finest.
I agree, legal precedent should be used to fulfill abstract patterns and baseline constitutional rules but each case should have an independent ruling solely on that case’s merit. Make these judges earn the $100K plus they make, the interns do all the leg work anyway.
It should work this way, IMO: If you are wanting to come into the US, through Canada or Mexico, or from some other route(such as air travel)you should be asked to be searched, if you refuse to be searched, as is your right, then entry into the country is refused and you are sent back to where you came from. This way people who are suspected of illegal activity are not allowed through(at least at legal entry points!)and our rights are still intact.
Citing precedent allows bad rulings to multiply
Ping.
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