R. v. Melchior Date:, 2013 BCPC 82

Citation: R. v. Melchior Date: 20130416 2013 BCPC 0082 File No: 155132 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JEFFREY THOMAS MELCHIOR REASONS ON VOIR DIRE OF THE HONOURABLE JUDGE QUANTZ Counsel for the Crown: Sharon Steele Counsel for the Defendant: Mark R. Jette Place of Hearing: Victoria , B.C. Date of Hearing: March 11, 12, 13 & 14, 2013 Date of Judgment: April 16, 2013 Introduction

[ 1 ] Three voir dires were declared for the purpose of determining respectively: (

a) whether the Crown has proven beyond a reasonable doubt the voluntariness of the statements made by the accused to the investigating officers; (

b) whether the defense has established on a balance of probabilities that the statements to the officers were obtained in contravention of the accused’s 10 (

a) and 10 (

b) rights under the Charter of Rights and Freedoms ; and (

c) whether the Crown has established that the warrantless search of the contents of the accused’s BlackBerry device was reasonable and the results admissible at trial. [ 2 ] The parties agreed that given the commonality in the evidence, the Crown evidence on the voir dires would be heard together, along with the cross examination of the Crown witnesses for both the voir dires and the trial proper. The accused elected not to call evidence on any of the voir dires .

Summary of Evidence [ 3 ] In March 24, 2011 the RCMP and the U.S. Coast Guard engaged in an operation aimed at persons smuggling items across the border by vessel. To assist the investigators patrolling the waters near the Canada-U.S. border, Mr. Wheeler, a civilian member of the RCMP monitored radar for suspicious activity while in communication with the patrol boat. This radar facility enabled the authorities to track active vessels in the border area and to determine whether their operators were in radio or transponder contact with the Coast Guard.

It was relatively easy for the authorities to spot any vessel in the area that was not communicating in this manner. [ 4 ] There were four occupants on the RCMP vessel. Corporal Sandhu was the operator and commanding officer. Constables Troth and Treen were the two arresting officers. The vessel was equipped with radar, FLIR imaging equipment, and a night vision monocular used by Constable Davey. [ 5 ] Constable Treen testified that the area was known for frequent marine smuggling. Constable Troth described the stopping of two boats earlier in the evening. At approximately midnight Mr.

Wheeler observed the accused’s vessel on the radar screen indicating it was just south of Salt Spring Island. By this time there was little boat traffic as it was not boating season, and the BC ferries had finished operations for the day. The accused’s vessel was not communicating with the Coast Guard and traveling at a high rate of speed, approximately 25 knots or 48 km/h. According to Mr. Wheeler most vessels travel in this area at less than 15 knots, and it was unusual for a vessel to travel at this speed, particularly as it was close to shore. Mr.

Wheeler was immediately of the view that the operator "might" be smuggling given the vessel’s high rate of speed, the fact it was late at night, and as the vessel was headed towards the U.S. border. [ 6 ] As a consequence he alerted the RCMP officers who decided to intercept the accused. The RCMP vessel sailed between Portland and Morseby Islands while in constant radio contact with Mr. Wheeler. As the RCMP vessel exited the passageway between the islands it nearly collided with the vessel operated by the accused.

He was running without navigation lights and crossed very near the bow of the RCMP vessel and was headed in a direction that would have enabled him to cross the border within approximately 6 minutes. While Corporal Sandu did not see the vessel, he observed a blip on the radar screen as the accused’s unlit vessel passed approximately 200 yards in front of the RCMP boat. Constable Treen testified that as the RCMP vessel proceeded between Portland and Morseby Islands he could see lights approximately 4 miles away but did not observe another vessel. [ 7 ] Based on the advice of Mr.

Wheeler as to the location of this vessel, Corporal Sandu turned the RCMP vessel south to pursue the accused and increased their speed from approximately 10 knots to 40 knots. He was only able to get glimpses of the target vessel on his radar. Corporal Sandu activated the flashing blue strobes on the RCMP vessel a few minutes before stopping the accused. [ 8 ] Constable Toth was able to observe the accused’s vessel through the FLIR from a distance of approximately 30 to 40 meters as they neared the point of intercept.

This officer observed the vessel operated by the accused swerving from left to right in a manner which the officer concluded was an attempt to elude the police. Constable Davey made similar observations through the night vision eyepiece. Corporal Sandu also observed the accused’s vessel weaving back and forth on the radar. [ 9 ] As the RCMP vessel approached within 30 meters of the target vessel the accused suddenly shut off, or disengaged, the engine of his vessel.

As a consequence, the RCMP vessel passed the target. [ 10 ] While the RCMP vessel was on the starboard side of the accused’s boat, using the night vision glasses Constable Davey observed the accused drop what appeared to be a heavy cooler sized object overboard. Constable Davey advised the other officers of his observations before they boarded the accused’s vessel. Through the night vision eyepiece Constable Davey kept an eye on both the boat and the floating object, noting that the object was sinking.

After the two arresting officers boarded the accused’s vessel he directed Corporal Sandu to the location of this object. By this time it was nearly awash and it took the strength of both officers to lift the suitcase, with an estimated weight of 200 pounds onto the RCMP vessel. The suitcase was cinched tight with "zap straps" that precluded the full opening of any zipper.

The officers cut the straps to open the suitcase, wherein they discovered a large quantity of US cash in vacuum sealed packages. [ 11 ] Constable Treen was the first officer to board the vessel and was alone with the accused for approximately 1 minute before they were joined by Constable Toth. Constable Treen was dressed in marine safety gear with his police belt, including a pistol. He had an RCMP shoulder flash on the front of his flotation device and he identified himself as a police officer.

Constable Toth was similarly dressed. [ 12 ] In an "authoritative voice" Constable Treen demanded that the accused turn off the vessel’s engine and to display his hands. The officer's intention was to take charge quickly in order to convince the accused that he must cooperate. The accused asked in words to the effect, "what is going on?" The officer advised the accused that he was detained under the Customs Act and the Canada Shipping Act . Out of concern for their safety the officer asked the accused to turn on the navigation lights.

The accused pulled the switch in and out but the lights were inoperable. [ 13 ] Constable Treen testified that after Constable Toth boarded the vessel, Constable Treen asked the accused in words to the effect

"what is going on, or what is he doing out there?" According to the officer, the accused replied to the effect that "he was scouting for dive sites near east point." The officer said he replied along the lines of "At this time of night with no dive gear?" He alleged the accused then replied to the effect that he was out to visit a girlfriend on Saturna Island. In cross examination Constable Treen admitted he may have mentioned to the accused that "it was very dark and no one could see" when replying to the accused’s comment that he was looking for a dive site.

After this brief conversation, according to Constable Treen the accused was asked to produce his identification and he produced the pleasure craft operator’s card as required by law. Constable Treen believes he then conducted a pat down search for weapons. [ 14 ] Constable Toth described this aspect of the operation somewhat differently. He agreed in cross examination that he was aware that an item was thrown overboard before he boarded. He said there had been some discussion between Constable Treen and the accused before he boarded the boat.

He testified that upon his first boarding the vessel Constable Treen mentioned a customs inspection and requested proof of competency following which the accused produced his pleasure craft operator’s card. He then recalled Constable Treen asking the accused where he was coming from. Constable Toth described the accused as stating that he was a diver and that he was out to check out a dive site near east point.

Constable Toth does not recall Constable Treen’s response but believes Constable Treen advised the accused that his statement made no sense as he would not be able to see, to which the accused replied in words to the effect that he was "going to east point to meet a woman and he didn't want his wife to know." This officer also testified that at one point the accused said he did not have registration for the vessel on board.

He said the accused was also requested to provide his full name and date of birth and asked to produce his driver’s license, which he did not have on him. [ 15 ] This officer said he was concerned for weapons and asked if there were weapons on board, following which the accused produced a closed box cutter. He testified that the accused was asked to remove his exterior black jacket before a pat down search. This officer discovered a BlackBerry phone in the front pocket of the jacket and he activated the BlackBerry to ensure it was not a Tazer or gun disguised as a cell phone.

This officer recalls no other questioning except with regard to the radar detector and the lighting on the vessel. The officer further testified that at approximately this stage Constable Davey advised that they had recovered money and the accused was arrestable for smuggling money across the border. The officer testified that the accused was then arrested and handcuffed, and shortly thereafter transferred to the police boat and provided his Charter rights and police caution. [ 16 ] Constable Treen described the accused’s, voice as "normal" with no signs of aggression or mental impairment.

Constable Toth described the accused as neither agitated nor calm and as appearing somewhat surprised. Both officers testified that they made no threats and offered no inducements. [ 17 ] Constable Treen considered Mr. Wheeler's initial report to be "quite suspicious" and that it "fit the profile of a smuggler" given the vessel’s location, the time of day, and its fast speed on an evening when there was little ambient light and floating logs were not uncommon due to the high tides. In chief, Constable Treen testified that the accused’s vessel was stopped for two reasons.

First, under the Canada Shipping Act as it was being operated in a hazardous manner without the required navigation lights. Second, there was a "border nexus" given the proximity of only 2 1/2 miles and 6 minutes away from the U.S. border in the direction of travel. The officer also stated that there were no obvious Canadian destinations in the direction of travel given the number of facilities which were closed in the winter season. He testified that pursuant to

section 98 of the Customs Act the officers had authority to stop and search a person prior to departing Canada and had further authority to stop the vessel under

section 99 of that Act . In cross examination he admitted that by the time he boarded the accused’s vessel he believed there was a "possibility of criminal conduct." He further stated in cross examination that once he learned an object had been thrown overboard "the likelihood of criminal activity was very high." [ 18 ] Constable Treen testified that he did not Charter or warn the accused when boarding the boat as he was not required to do so under the Canada Shipping Act or the Customs Act . He stated he was still not certain as to what was going on, even though he believed there was likely criminal activity.

He said this remained his view until the object thrown overboard was recovered and opened. After the suitcase was opened Constable Treen was advised that the accused was arrestable under the Customs Act . He said the arrest was made, following which the accused was provided his 10(

a) and 10(

b) rights under the Charter and warned that anything said could be used in evidence, after which no further questioning took place. [ 19 ] Constable Toth advised the court that the primary reason for stopping the vessel was a strong suspicion of smuggling, likely drugs, due to the speed of the vessel, the area in which it was traveling, the lack of lighting and the evasive maneuvers. He said the secondary reason was the dangerous operation of a vessel given the speed and lack of lighting. He testified that pursuant to

section 99 1(

f) of the Customs Act the officers had authority to stop and inspect the vessel as they had reasonable grounds to suspect contravention of the Controlled Drugs and Substances Act near the border.

He further advised that the officers had authority under the Small Vessel Regulations of the Canada Shipping Act to check out the boat, its registration, and the competency of its operator. [ 20 ] Constable Troth stated that the purpose of the initial interaction and conversation was to determine what the accused was doing as his actions were "highly suspicious of marine smuggling." The officer testified that they were waiting to hear if the object thrown overboard was recovered and he stated that the accused was not arrestable until they learned of the discovery of the money.

In cross examination this officer agreed that his view at the time was that something was going on and that it was probably illegal. He said they had authority to stop him under the Canada Shipping Act for traveling without lights in a dangerous manner. He agreed that when the officers boarded the boat the accused was temporarily detained and not free to go. [ 21 ] During his evidence in chief, Constable Davey gave three primary reasons for the stopping of the vessel. The first was pursuant to their powers as marine inspectors under the Canada Shipping Act , as the vessel was traveling without lights.

The second was as designated officers under the Customs Act with authority to search a vessel proceeding towards or near the border. Thirdly, the officer identified this situation as a potential drug or smuggling operation. In cross examination Constable Davey agreed that this was not a routine stop given the fact that the vessel was operating at a high rate of speed, late at night, without lighting in an area known for smuggling, it appeared to take evasive measures, and where an object was thrown overboard just prior to the police arrival.

He agreed that this combined set of circumstances was considerable information in support of the conclusion they had reasonable grounds to believe the accused was committing an offence. However, he remained firm in his evidence that the boarding of the vessel was under the Customs Act and that there were not reasonable grounds for concluding the activity was criminal until the money was discovered. The officer agreed that it was not appropriate to use either the Canada Shipping Act or Customs Act as a cover for a criminal investigation

and insisted that did not happen in this case. [22] Corporal Sandu testified in chief that the initial intention in stopping the vessel was concerning a violation of the CanadaShipping Act for operating the vessel in a dangerous manner. He testified that with the discarding of the suitcase, the stop was also underthe Customs Act given the proximity to the U.S. border. In his view the officers were entitled to, and in fact did, initially question theaccused pursuant to their authority to detain and question under the Canada Shipping Act and Customs Act.

He was equally firm in hisview that after the money was discovered it would be inappropriate to ask the accused any questions regarding the contents of thesuitcase until he was provided his Charter rights and caution. In cross examination Corporal Sandu agreed this was not a routine stop andthat given all of the factors including the suitcase being thrown overboard there was a "strong suspicion" of a an offence under theCriminal Code, or the Controlled Drugs and Substances Act, or one with penal consequences under the Customs Act.

However, heremained steadfast in his view that only when the suitcase was opened and the money discovered did the matter move from being verysuspicious to one where there were reasonable and probable grounds. [23] In cross examination Constable Treen testified that given the nature and location of the arrest, he was unable to make notes ofhis conversation with the accused for a number of hours, most likely not until between 6 and 8 AM. He agreed that the most accuraterecord of the conversation would have been a video or audio recording.

He further acknowledged that the record would have been moreaccurate if he had been able to make contemporaneous notes. Constable Troth advised in cross examination that he also did not makewritten verbatim notes of the conversation. However, he was firm in his evidence that the statements made by the accused were asdescribed, and in the correct order, including that the pat down was before the accused’s explanation concerning visiting a girlfriend.

Theofficer agreed he did not believe either of the accused’s explanations and that the accused’s responses played a minor role in the decisionto arrest once the cash was found. [24] The vessel was subsequently searched and at one point Constable Treen was asked to retrieve the accused’s BlackBerry devicefrom the jacket the accused was wearing when the officers first boarded the vessel.

The officer testified that the BlackBerry was seizedincident to arrest, and that based on his understanding of the law in British Columbia they were allowed to search the contents of theBlackBerry for evidence relating to the offence under investigation. As an officer who now works in Ontario, his current understandingof the law in that province is that only a cursory viewing of the BlackBerry is lawful to determine if it contains evidence regarding thematter under investigation. Constable Davey added that the BlackBerry was seized incident to arrest as evidence of smuggling.

In hisview smugglers generally do not operate alone and the BlackBerry could contain potential evidence of communication concerning thepickup or drop-off points. The same view was expressed by Corporal Sandu who also stated that in British Columbia the officers wereallowed to retrieve information from the BlackBerry relative to this offence without a search warrant where it was seized incident toarrest [25] As the BlackBerry was locked it was sent to Ottawa weeks later for investigation and discovery of the communication theCrown tenders on the voir dire.

The Position of the Parties Voluntariness [26] With regard to the statements the accused made to the investigating officers, the defense position is that the loud assertivelanguage by the officers is not sufficient to raise a reasonable doubt as to voluntariness. However, it is submitted that the inadequaterecord-keeping of the conversation, including the order and details of the two alleged comments, raises a reasonable doubt as tovoluntariness. The Crown's submission is that in the circumstances the inadequacy of the record keeping does not raise a reasonabledoubt as to voluntariness, and goes only to weight.

Sections 10 (

a) and (

b) of the Charter [27] The thrust of the defense argument is that from the outset this was not a routine stop or routine questioning under either theCanada Shipping Act or the Customs Act, but a full criminal investigation and a "constitutional detention" by the time the accused wasquestioned, and that this was in furtherance of the criminal investigation. As a consequence, it is submitted that prior to the questioningthe officers were in breach of their duty to advise the accused of his rights under

section 10 (

a) and (b). It is further submitted that giventhis breach the statements obtained should be excluded. [28] The Crown's position is that the officers were acting in good faith within their statutory authority under the Canada ShippingAct and the Customs Act in asking routine questions relevant to those two statutes, even though the officers had a strong suspicion ofcriminal activity. It is submitted that the accused was not under "constitutional detention" and the Charter was not engaged until thediscovery of the money in the suitcase and his immediate arrest.

As a consequence, in the Crown's view there was no breach and thestatements are admissible. The BlackBerry Communication [29] Based on the reasoning of the Ontario Court of Appeal in R v Fearon, 2013 ONCA 106 the defense submits that the search ofthe accused’s BlackBerry device seized incident to arrest was a breach of the accused’s

section 8 rights under the Charter to be free fromunreasonable search and seizure. It is respectfully submitted that in the circumstances this court is not bound by the decisions of theSupreme Court of British Columbia in R v Giles 2007 CarswellBC 3299 and R v Mann 2012 CarswellBC 2494. It is further submittedthat in accordance with the law of committee as stated in Re Hansard Spruce Mills Limited (1954), (BC SC), 13W.W.R. (N.S.) 285 (B.C.S.C.), given the compelling reasoning of the Ontario Court of Appeal in R v Fearon, this court should exerciseits discretion to follow the law as established in Ontario.

Finally, the defense argued that the evidence should be excluded pursuant to24(2) as its exclusion is not fatal to the crown's case and the officers were aware of the differences in the law between Ontario andBritish Columbia and should have sought a warrant. [30] The crown's position is that this court is bound by the reasoning of the Supreme Court of British Columbia in the two decisionsreferred to above, and that even if this is not the case, the evidence should not be excluded under 24(2) as the officers were relying on the

authority of the B.C. Supreme Court and the evidence would have otherwise been discoverable.

Analysis and Decision Voluntariness [31] I considered all of the circumstances, including the lack of a police caution, in determining whether the crown has provenbeyond a reasonable doubt that the statements made by the accused to persons in authority was voluntary, as the product of the accused’s"exercise of his free will." [32] As emphasized by the defense, the lack of a complete contemporaneous record of the conversation is a factor to be taken intoconsideration in determining whether the Crown has met its burden of proof.

Where police officers deliberately choose not to record aninterview it can be an "important factor" in deciding whether to accept the crown evidence [see R v. Wilson (2006), (ON CA), 210 C.C.C. (3rd) 23 Ont. C.A.]. However, here the police officers, given the exigencies of the investigation, could notreasonably have taken verbatim notes. I am satisfied that they did their best to accurately record their recollections at the earliestreasonable opportunity. [33] The applicable law is accurately summarized by E.G.

Ewaschuk in Criminal Pleadings and Practice in Canada, 2nd edition, at16:15060 where the author states, the fact that a statement is recorded in "summary form" and therefore is incomplete as to the full conversation between the police andaccused, e.g., where it is reduced to writing after the fact, goes to weight, not admissibility, though the judge may exclude the statementfor incompleteness where it results in an "inability to determine if the statement was voluntary. [34] The evidence of the two investigating officers was compelling, notwithstanding full and very capable cross examination.

Notunexpectedly their evidence was somewhat different as to details, given the conditions under which the statements were made and thepassage of time before they were recorded. While their evidence does not establish the exact words spoken by the accused, it is capableof proving the gist or essential content of the two comments made by the accused in response to the police questions and comments.

Thisgoes to the question of weight to be given to this evidence at the end of the trial, in the context of all the evidence before the court withthe full submissions of counsel. [35] Notwithstanding the lack of a complete contemporaneous record I am satisfied beyond a reasonable doubt that the statementsmade by the accused were voluntary. Sections 10 (

a) and (

b) of the Charter [36] There is no question that the accused was psychologically detained when the officer boarded his vessel and demanded that heshut off the engine and display his hands. This was prior to his making the statements that are the subject of this voir dire. [37] As in R. v.

Nagle 2012 BCCA 373, the primary question on this voir dire is whether the questioning was part of routinescreening procedures applicable at the border and or a stop of a vessel under the Canada Shipping Act, or whether it is a detention in theconstitutional sense in that it was in furtherance of a criminal investigation. [38] On the evening in question, in an area known for cross-border smuggling, the RCMP engaged in a joint border initiative withthe U.S. Coast Guard on the lookout for vessels that may be engaged in smuggling. Earlier in the day they conducted two routine stops ofother vessels.

When they first learned the accused’s vessel was heading south from Salt Spring Island, late at night at a high rate ofspeed, towards the U.S. border they were immediately suspicious that this might be someone engaged in smuggling. Prior to boardingthe accused’s vessel the police nearly collided with the vessel when it passed their bow without navigation lights. They further observedthe pilot maneuvering in a manner consistent with attempting to evade the police, including after the blue lights of the police boat wereactivated.

It was also known to the officers that just prior to their apprehending this vessel the accused threw a heavy cooler sized objectoverboard. By the time the vessel was stopped it was approximately 6 minutes away, in the direction of travel, from the Canada-U.S.border with no obvious Canadian destinations between that location and the border. [39] Throughout this operation the officers were exercising their powers as inspectors under the Canada Shipping Act and as officersunder the Customs Act.

When stopping the accused’s vessel they believed they had authority to do so, due to a clear violation under theCanada Shipping Act by operating a vessel in a dangerous manner without appropriate lighting.

They also believed they had authorityunder the Customs Act to detain and question the accused given all of the circumstances, including the discarding of the object prior topolice apprehension while near to the U.S. border. [40] I am satisfied that prior to discovering the money in the recovered suitcase the officers honestly believed they did not havereasonable grounds to form the opinion that a criminal offence had been committed.

They considered the circumstances to be highlysuspicious of possible criminal conduct. [41] I make this finding in the context of all of the evidence, including the fact that after the accused nearly collided with theirvessel, the officers were engaged in a highly dangerous, rapidly evolving set of circumstances that provided little opportunity forreflection. Additionally, the actions of the officers upon boarding the vessel were also consistent with a detention under the CanadaShipping Act and the Customs Act. Constable Treen demanded that the accused shut off the engine and display his hands.

The accusedinquired as to what was happening and he was advised of his detention under the Customs Act and Canada Shipping Act. Immediateattempts were made to turn on the vessel’s navigation lights out of concern for everyone's safety.

A general inquiry was made by theofficer as to what the accused was doing out on the water, to which the accused replied in words to the effect that he was looking for adive site "near east point." Constable Treen made it clear that he found this explanation to be lacking in credibility given the darknessand lack of diving gear, and the accused replied to the effect that he was meeting a woman at the east point location. While the answers

to these questions are relevant to this prosecution, I am satisfied that the questions were of a general nature directed towards, and inaccordance with, relevant issues for general inquiries under the Customs Act and Canada Shipping Act. [42] While the exact sequence of events is unclear given the officers’ inability to make notes until their return to the policedetachment, the officers during this aspect of the operation also made inquiries concerning the accused’s name and date of birth and anyidentifying documents, including the required pleasure craft operator’s card.

The officers were also concerned for possible weapons andthe accused produced the closed box cutter. The officers conducted a pat down search discovering the BlackBerry which was alsoexamined out of concern that it may be a disguised weapon. [43] Immediately upon learning that the suitcase contained a large amount of U.S. cash the officers believed they had reasonable andprobable grounds to arrest the accused for attempting to smuggle money across the international border.

As a consequence, the accusedwas arrested, handcuffed, and shortly after his transfer to the police boat provided his Charter rights and police caution. No furtherattempts were made to elicit statements from the accused. [44] The dangerous operation of the vessel, including the lack of navigation lights as required by the Small Vessel Regulations underthe Canada Shipping Act, authorized the police officers as inspectors pursuant to

section 196 of the Canada Shipping Act to "stop orboard the craft" and to direct the operator to "cease operating any machinery or equipment on the craft." Further, pursuant to section196(5) the accused had a duty to provide "reasonable assistance" and to produce "any document" or "any information, that the officer orinspector may reasonably require" to perform his duties under the Act. [45] Determining whether the Customs Act applies in the circumstances raises a number of questions.

The first is whether the lawwith regard to border searches applies to a vessel traveling within Canadian waters (in these circumstances) while approximately 2 km. or6 minutes from the U.S. border. In R. v. Jacques (SCC), [1996] 3 S.C.R.312 the Supreme Court of Canada found thatthe authorities were permitted pursuant to section 99(1) (

f) of the Customs Act to detain and search a vehicle after it had traveledapproximately 5 km over at three-minute period from an uncontrolled border crossing, provided the officers had the factual basis forreasonably suspecting smuggling or attempting to smuggle. In R. v.

Nagle 2012 BCCA 373 our Court of Appeal ruled at paragraph 80that "the liberty interest and expectation of privacy of travelers is reduced at border crossings regardless of whether they are arriving, in-transit or departing," and that "the application of this proposition remains to be determined on a case-by- case basis." [46] Here the accused was headed by boat at a high rate of speed, without navigation lights, towards the nearby Canada-U.S. borderwhere there were no obvious destinations on the Canadian side.

He also navigated in a manner consistent with his seeking to avoiddetection and threw a large item overboard just prior to the police boat approaching. [47] I am satisfied that the reduced liberty interest and privacy expectations of travelers at the border crossing apply in thesecircumstances. Finding

section 99 of the Customs Act applicable to the facts before the court is consistent with the reasoning of theSupreme Court of Canada in R. v. Jacques at paragraph 15 where the Court refers to the state’s "pressing interest in protecting itsborders." If in these circumstances officers were required to delay intervention until the boat was immediately adjacent to the unmarkedborder, it would frustrate "the state's pressing interest in protecting its borders." [48]

Section 98 of the Customs Act authorizes an officer to search "any person who is about to leave Canada, at any time prior to hisdeparture"… "if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect ofwhich this Act has been or might be contravened, anything that would afford evidence with respect to contravention of this Act or anygoods the importation or exportation of which is prohibited, controlled or regulated under this or any other act of Parliament." [49] The applicable law was to a large degree delineated by the Supreme Court of Canada in R. v.

Simmons, (SCC),[1988] 2 S.C.R. 495. At pages 516-17 the court stated as follows: 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 ofquestioning which every traveler undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat orfrisk of outer clothing. No stigma is attached to being one of the thousands of travelers who are daily routinely checked in that mannerupon entry to Canada and no constitutional issues are raised.

It would be absurd to suggest that a person in such circumstances isdetained in a constitutional sense and therefore to be advised of his or her right to counsel. The second type of border search is the stripor skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondaryexamination and with the permission of the customs officer in authority.

The third and most highly intrusive type of search is thatsometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to x-rays, to emetrics, and toother highly invasive means. [50] Any person navigating a boat in the manner and location observed by the police in this case could reasonably expect toencounter a stop and routine questioning under both the Canada Shipping Act and the Customs Act.

As indicated at the beginning of myreasons on this voir dire the primary question is whether, when the circumstances in their entirety are viewed objectively, this wasroutine questioning, or whether it was questioning in circumstances where the accused was constitutionally detained during a criminalinvestigation. [51] As emphasized by counsel for the accused, this was not a routine stop as the accused’s actions raised significant suspicions ofillegal activity from the outset, and in particular, suspicion of smuggling.

The suspicions were raised even further when the policerealized that the accused was operating his vessel without navigation lights, in a manner that appeared to be avoiding detection, and thathe had thrown a large item overboard just prior to the police arrival. Unquestionably, the circumstances in their entirety, as known to theofficers when they boarded the vessel, raised strong suspicions of criminal activity.

As in the analogous case of vehicle stops theauthority to stop and conduct routine questioning does not entitle the officers to interrogate the accused in an effort to obtain evidence ofa criminal offence [see for example R. v. Kaddoura, 2009 BCCA 113 at par.18]. [52] This, in my respectful view, is not a situation where the police used their authority under the Canada Shipping Act or the

Customs Act as a ruse to unlawfully further a criminal investigation. Nor is this a situation like that found in R. v. Jacoy (SCC), 1988 CarswellBC 1314 where the police had made an earlier decision to search the accused independent of his responses to theirquestions.

Here they honestly believed that they did not have the grounds to detain for a criminal investigation until they learned of thecontents in the suitcase, at which point the accused was promptly advised of his rights under the Charter. [53] The fact that the officers had strong suspicions that they may uncover further criminal activity did not convert their lawfulstopping of the vessel and routine questioning under the Canada Shipping Act and the Customs Act into unlawful activity.

While thequestions and answers are ultimately relevant to the criminal prosecution, based on the reasoning of the Supreme Court of Canada in R.v.Nolet 2010 CarswellSask 368, including at paragraphs 41 through 43, I am satisfied that the detention and questioning of the accusedwas within the lawful parameters of their authority under these two statutes. [54] Consequently, I find that the statements were not obtained in breach of the accused’s 10(

a) and (

b) rights under the Charter. The BlackBerry Communication [55] During the pat down search a BlackBerry communication device was discovered in the pocket of the jacket the accused waswearing. Following his arrest for the possession of the monies, the device was seized incident to arrest, as the officers reasonablybelieved it likely contained evidence of communication regarding the pickup or drop-off of the monies and or drugs.

As the device waslocked, retrieval of the messages in question did not occur for a number of weeks, and required the expertise of persons in Ottawa. [56] No issue was raised concerning whether the officers had a reasonable prospect of obtaining evidence of the crime, or withregard to the temporal delay in seeking to retrieve the information from the device. It was not argued that the circumstances failed tomeet the requirements of seizure incident to an arrest as defined by the Supreme Court of Canada in R. v. Caslake, (SCC), [1998] 1 S.C.R. 51.

Rather, the position of the defense is that the court should create an exception to the common-law doctrine ofsearch incident to arrest for cell phones in accordance with the recent ruling of the Ontario Court of Appeal in R. v. Fearon, 2013 ONCA106. [57] The only reason the RCMP did not obtain a search warrant to examine the contents of the locked communication device wasthat they were aware of, and followed, the law in British Columbia. In two decisions of the B.C. Supreme Court, namely, R. v. Giles2007 CarswellBC 3299, and subsequently in R. v.

Mann 2012 CarswellBC 2494 the Court ruled that a second authorization was notrequired to search a communication device lawfully seized incident to arrest. Our Court of Appeal has not ruled on this issue, makingcomment to that effect in R.v.Vu 2011 BCCA 536 , 2011 CarswellBC 3551 at paragraph 60. [58] The threshold question is whether this court is obliged to follow the rulings of the British Columbia Supreme Court, incircumstances where I am satisfied that there is no meaningful distinction on the facts.

In seeking submissions on this point, the courtwas referred to a line of authorities in Ontario to the effect that stare decisis is based on appellate jurisdiction rather than general courthierarchy. In other words, this court is only bound by an appellate decision of the British Columbia Supreme Court, or a ruling by thatCourt concerning the constitutional validity of legislation [see R. v. L. (D) 2005 CarswellOnt 3303]. [59] However, our Court of Appeal has ruled otherwise. In R. v.

Vu 2004 BCCA 230 the Court overturned a decision in theProvincial Court in an indictable case where the trial judge followed a decision of the Ontario Court of Appeal rather than a conflictingtrial court decision of the British Columbia Supreme Court. The Court of Appeal stated in part at paragraph 27 “In a nutshell, the rule ofstare decisis is based on hierarchy.

Lower courts are bound to follow decisions rendered by the courts that have the power to reversethem." Applying these principles the Court ruled that the Provincial Court judge was obliged to follow the reasoning in a BritishColumbia Supreme Court trial decision. [60] Based on this decision of our Court of Appeal I am obliged to follow the law as established by the British Columbia SupremeCourt even though the Supreme Court has no appellate jurisdiction in this matter.

It is not open for this court to engage in an analysis ofwhether the recent decision of the Ontario Court of Appeal affects the validity of the two British Columbia decisions, in accordance withthe principles applicable for courts of concurrent jurisdiction, as defined in Re Hansard Spruce Mills Limited (1954), (BC SC), 13 W.W.R. (N.S.) 285 (B.C.S.C [61] Accordingly, my ruling based on the law established by the British Columbia Supreme Court is that the messages retrievedfrom the BlackBerry communication device in this case are admissible under the common law doctrine of search incident to arrest.

Conclusion [62] For these reasons the statements made by the accused to the arresting officers and the messages retrieved from the BlackBerrycommunication device are admissible. _____________________ E.J. QuantzProvincial Court Judge