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."
By citing precedent, I meant she went by how the Canadian Charter is written, just as a US judge is supposed to go by how the US constitution is written. Precedent was a bad choice of words on my part. Hope this clarifies it.
If you think suppressing freedom in the name of safety is ok, then you are in for a surprise a few years down the road. We have already given up a ton of freedom in the name of safety over the last 50 years, I do not wish to give up more.
Having some clown search my car at will at the border is a loss of freedom. If I don't want to be searched I shouldn't have to be, but by the same token I don't have to be allowed entry.
I will not be surprised, but who will guard the guards?
You are correct in just about every country in the world including Canada. When you pull up to a border port of entry you are not covered by the constitution or the charter of rights because you havent entered the country. You are not actually in the country you are applying to enter (even though you may be physically present) until you are either inspected or admitted.
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.
These facts are not enough to establish reasonable suspicion in order to obtain a warrant, which is why no warrant is required at the border.
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.
The legal requirement (at least in the US) is that the inspector needs only mere suspicion to search. I am sure the law is the same in Canada.
This judge is a complete bone head, this will be overturned.
So if you have a load of dope or WMD in your vehicle you could just go back and then shop around for another less perceptive inspector?
I want to read that a dog alerted on the vehicle.
The Council for American Values has decided that you are an undesirable. Please leave your rights at the door as you leave. Have a nice day!
Or take that "U" turn lane over there, and see ya later!"
Not at all; it is a victory for stupidity.
At the very worst, the customs agents violated the charter, and the criminal violated the drug laws. Both crimes can be tried separately, and neither cancels out the other.
Is that too "common sense" to work?
On a jury, I would exonerate the agents and convict the bottom-dweller.
Wow, twonie. Are you mad?
Why do you hate our country so much?
ah yes the CCLU (Canadian Civil Liberties Union (Red Dopper Diaper Babies (RDDB)) at work doing it’s worst.
This ‘so called’ judge needs a reality check.
Thanks for the ping. I can see that it might be reasonable to have special search procedures at the border as a condition for entry. That said, if the charter guarantees freedom of movement (which it does, as does the Constitution), then I can also see why it would be shaky legal ground to require citizens to allow infringement of some of their rights as a prerequisite for exercising their right of travel. I didn’t notice whether this guy was a Canadian citizen, though — if not, he shouldn’t automatically be accorded the guarantees that come with citizenship. However, if you’re going to actually damage someone’s property during the search, it might be reasonable to have an extra level of scrutiny.
Oh, and as for me, I love Canada. It’s indescribably beautiful; even better, everytime my hubby and I have visited people have been friendly, funny and so very welcoming (even in Quebec, where I was concerned about French snobbishness). True patriot love, indeed.
And now it comes out that the customs people are going to be given guns - and training - FOR DEFENSIVE PURPOSES. Waste of money. Just give out flak vests and helmets - that’s defense. Guns are really good for offense which obviously they do not intend to play.
Hi Ellery,
This was a BC man.
Screw the charter....when I fly back into Canada they check my luggage, and they better be checking everyone who crosses our border, Canadian citizen or not.
That news came out last year.
You still haven’t answered my question.
I do see your point. Countries do get to decide who and what enters their jurisdiction. I just worry that when you give the border guards a warrantless inch, some jackboot is going to take a mile by deploying border guards on warrantless raids of citizen homes that are 1000 miles from the border.
Clearly, I’m paranoid from reading too much about Giuliani’s creative policing ideas in NYC. :)
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