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Landmark warrant ruling stuns border guards[Canada](Obtain warrant to search suspicious vehicle)
Globe and Mail ^ | 18 July 2007 | ROD MICKLEBURGH

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."


TOPICS: Canada; Culture/Society; Foreign Affairs
KEYWORDS: borderguard; canada; vehicle; warrant
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To: Seven_0
Citing precedent allows bad rulings to multiply

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.

21 posted on 07/18/2007 9:38:49 AM PDT by calex59
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To: calex59
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.

I will not be surprised, but who will guard the guards?

22 posted on 07/18/2007 10:16:53 AM PDT by Seven_0 (You cannot fool all of the people, ever!)
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To: Resolute Conservative
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.

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 haven’t 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.

23 posted on 07/18/2007 10:50:05 AM PDT by usurper (Spelling or grammatical errors in this post can be attributed to the LA City School System)
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To: calex59
You should be asked to be searched.

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?

24 posted on 07/18/2007 10:54:55 AM PDT by usurper (Spelling or grammatical errors in this post can be attributed to the LA City School System)
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To: BGHater
"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."

I want to read that a dog alerted on the vehicle.

25 posted on 07/18/2007 10:56:20 AM PDT by LZ_Bayonet (There's Always Something.............And there's always something worse!)
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To: Inquisitive1
Nothing un-American about it; it isn't 'unreasonable' to protect ourselves from undesirables,

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!

26 posted on 07/18/2007 11:00:12 AM PDT by Teacher317
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To: BGHater
The obvious interim solution. "You want to enter Canada? Agree to a search.

Or take that "U" turn lane over there, and see ya later!"

27 posted on 07/18/2007 1:56:13 PM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: BGHater
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.

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.

28 posted on 07/18/2007 2:00:03 PM PDT by Publius6961 (MSM: Israelis are killed by rockets; Lebanese are killed by Israelis.)
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To: twonie; GMMAC; Pikamax; Former Proud Canadian; Alberta's Child; headsonpikes; Ryle; albertabound; ..
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.

Wow, twonie. Are you mad?

Why do you hate our country so much?

29 posted on 07/18/2007 5:01:40 PM PDT by fanfan ("We don't start fights my friends, but we finish them, and never leave until our work is done."PMSH)
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To: fanfan

ah yes the CCLU (Canadian Civil Liberties Union (Red Dopper Diaper Babies (RDDB)) at work doing it’s worst.


30 posted on 07/18/2007 5:17:26 PM PDT by SandRat (Duty, Honor, Country. What else needs to be said?)
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To: BGHater; All; fanfan; Pikamax; Former Proud Canadian; Great Dane; Alberta's Child; headsonpikes; ...
yawn ... a low Court Judge attempting to make a name for herself ... as an officious moron.

Border agency to keep searching vehicles
~ Canadian Press via CTV, Updated Wed. Jul. 18 2007 5:51 PM ET

31 posted on 07/18/2007 5:29:12 PM PDT by GMMAC (Discover Canada governed by Conservatives: www.CanadianAlly.com)
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To: SandRat

This ‘so called’ judge needs a reality check.


32 posted on 07/18/2007 5:29:32 PM PDT by fanfan ("We don't start fights my friends, but we finish them, and never leave until our work is done."PMSH)
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To: fanfan

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.


33 posted on 07/18/2007 9:31:49 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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To: fanfan

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.


34 posted on 07/19/2007 6:00:29 AM PDT by twonie (Keep your guns - and stockpile ammo.)
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To: ellery

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.


35 posted on 07/19/2007 4:24:24 PM PDT by fanfan ("We don't start fights my friends, but we finish them, and never leave until our work is done."PMSH)
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To: twonie

That news came out last year.

You still haven’t answered my question.


36 posted on 07/19/2007 4:28:08 PM PDT by fanfan ("We don't start fights my friends, but we finish them, and never leave until our work is done."PMSH)
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To: fanfan

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. :)


37 posted on 07/19/2007 8:16:43 PM PDT by ellery (I don't remember a constitutional amendment that gives you the right not to be identified-R.Giuliani)
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