R. v. Nagle Date:, 2011 BCPC 481

Citation: R. v. Nagle Date: 20110322 2011 BCPC 0481 File No: 53167-2-c Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JENNIFER N. NAGLE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. D. FRATKIN Counsel for the Crown: M.J. Le Dressay Counsel for the Defendant: G. M. Ng Place of Hearing: Richmond , B.C. Dates of Hearing: May 26, 28, August 23, November 9, 2010 and March 8, 2011 Date of Judgment: March 22, 2011

[ 1 ] The accused, Jennifer Nagle, is charged with one count of possession of methamphetamine for the purposes of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act . She is also charged with one count of possession of methamphetamine for the purpose of exportation from Canada contrary to Section 6(2) of the Controlled Drugs and Substances Act .

Both counts took place at the Vancouver International Airport in Richmond, B.C. on October 12 th 2008. [ 2 ] At the outset of the trial, a voir dire was declared to determine the admissibility of evidence obtained during a search of a purse and luggage belonging to the accused. This is the ruling on the voir dire. FACTS: [ 3 ] On the above–noted date, the accused was at Vancouver International Airport intending to travel to Australia (via Japan). She checked her luggage through to Australia and then successfully passed through the security screening check point.

She made her way to the departure lounge to await boarding of the scheduled JAL flight. [ 4 ] Border Services Officer (BSO) Coopman, a fourteen (14) year veteran (last seven (7) years at Vancouver International Airport) of “Canada Customs” (now Canada Border Services Agency), was assigned to work in the international departures lounge. He described his duties in direct examination as follows: “My assigned duties were to rove travellers.

That's basically going around stopping people, questioning them as to whether or not they need to comply with the reporting requirements of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, as well as any associated legislation that I enforce, including the Customs Act. Q: Were you in uniform that day? A: Yes, I was in full uniform. Q: And what are the basic inquiries that you pursue under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act when you are working the departures lounge? A: Basically what we do is we will move freely within the international departures area.

We will stop travellers at random and we will explain to them, after we have asked for their boarding passes and passports, that we are Customs officers. We say Customs officers even though we are CBSA because people, even after, what, five years or six years, they are unfamiliar with who CBSA is.

We will explain to them that it is not illegal to export currency from Canada, there are no restrictions, there are no taxes; however, if they are in possession of currency that's valued at or over 10,000 Canadian dollars they're required by law to make a report and that we have the reporting forms with us if they need to make a report.” ( Transcript May 26, 2010 pg 3 line 5) [ 5 ] JAL ground personnel called for passengers to board the plane. Each traveller individually presented their boarding pass, along with their identification (passports or driver’s license), to the airline official.

The official verified the passenger’s credentials and directed him or her to walk to the airplane. The passengers next walked down a corridor to the airplane. Border Services Officer Coopman stationed himself immediately behind the aforesaid airline official, watching each passenger provide the boarding pass and credentials to the official. [ 6 ] Ms. Nagle gave her boarding pass, like all the others. [ 7 ] As above-noted, Officer Coopman said that he would stop travellers at random. He selected Ms. Nagle and requested her to step aside as she went along the corridor to the plane.

He commenced asking her questions. The time was 12:13 pm. [ 8 ] He testified that he wished to question her to determine her compliance with the Customs Act (sections 11, 12 and 95) and the Proceeds of Crime (Money Laundering) Terrorist Financing Act ( PCMLTFA ) sections 12 and 16). Specifically, he said he was paying attention to the money export component of the aforesaid legislation. [ 9 ] Officer Coopman asked for her passport and boarding pass. He then told her that he was a Customs Officer and explained the requirement for reporting under the PCMLTFA .

The transcript reveals the following testimony of Officer Coopman: “I told her that I was checking for the export of currency, that it was not illegal to carry money out of Canada, nor was there any tax payable on any money that was carried out the country; however, if she was in possession of currency valued at or over 10,000 Canadian she was required by law to make a report, and I then asked her if she needed to complete one of those reporting documents. She said no. (emphasis added) MR. LE DRESSAY: Q Did she tell you how much currency she had? A Yes, she did. She said she had $1200 with her.

Q And did you continue the inquiry?

A Yes, I did. Q And why is that?

A Previous experience has shown that when I am talking to people who are departing the country if I was merely to ask them whether or not they needed to make a report or not and they said yes or no I would never be in any way successful in locating people who were trying to circumvent the reporting requirements of the Act . (emphasis added) A..........In talking to people who are leaving the country , if I am merely asking them if they need to report or not.....and not asking further questions....I would not be able to make a determination as to whether or not they may actually be in possession of currency valued at $10,000 or more.

It would simply be a low risk sort of scenario for them, they simply say no and they carry on to the aircraft . (emphasis added) THE COURT: So you decided to ask more questions? A I did, yes. (Transcript page 6 May 26 th 2010 line 1) [ 10 ] The accused told the Border Services Officer that she was taking $1,200.00 with her, well below the regulated $10,000.00 limitation and, thus, filing a report was unnecessary. [ 11 ] Nonetheless, Officer Coopman continued questioning her, at one point directing her to step off to the side of the corridor. He told her to put her purse on a shelf and he then searched through it.

He found various documents and the $1,200.00 that she had earlier claimed. He testified that this search was authorized by the PCMLTFA and the Customs Act . [ 12 ] As he searched her purse, he asked various questions beyond the concern for money compliance. He inquired about her ticketing, routing and ticket purchase payment. He asked about her occupation and her travel plans, the persons she was visiting, the locations and the duration of her visits. He also asked about her use of drugs. According to Officer Coopman, the answers she provided raised more questions, causing him to suspect that something was amiss.

One example, the accused did not know the last name of the person who financed her trip. Further, the travel plans were haphazardly arranged and the venture was not as one would expect. [ 13 ] Officer Coopman acknowledged in cross-examination that his questioning of the accused was intentionally persistent. He said that his technique was to ask questions and “pursue” answers. When asked why his investigation turned to drugs he remarked her answers “ led him in that direction ”.

The end result was that Officer Coopman suspected the accused was a commissioned drug smuggler or courier for the exportation of drugs from Canada. [ 14 ] The following exchange took place during cross-examination of Officer Coopman regarding his change of focus from money to drugs, as well as

Section 10(

a) and 10(

b) of the Charter of Rights and Freedoms ( Charter ) . “Q: You testified earlier when you were speaking to my friend that your investigation shifted to drugs when you had suspicions about her routing or her routing, correct? A Yes. If I was to choose a point at which I felt it turned, that would be the point I would choose. Q Right. And at that point you didn't advise Ms. Nagle of her right to counsel? A No, that's correct. Q Instead you continued asking her more specific questions about what she would be doing specifically in Tokyo or Australia, correct? A Yes, that's correct.

Q You also then proceeded to ask her about her luggage on the aircraft, correct? A Yes, that's correct. Q You asked her what was inside those bags on the aircraft? A Yes. Q You also questioned her about drug use? A Yes. Q You questioned her about the cost of the ticket? A Yes. Q And all of this happened before you officially read her what you read off the officer's reference booklet? (police warning, sections10(

a) and (b))

A Yes. Q And so, again, it is your understanding that even when you formed the suspicion that she may be exporting drugs that it was appropriate for you to continue asking questions before giving her an opportunity to contact counsel? A The point at which I was thinking that it was going down the angle of a drug exam was that point. I still was seeking other information to either help me make the decision that she was going to be detained or to release her, let her board the flight.

I am not saying that at that point there was a line in the sand where I thought okay, I am dealing with a potential drug courier here. Q But certainly you're asking these questions to confirm -- A Or deny -- Q -- whether or not -- A -- the indicators, yes. Q Right. And so you have a hunch at that point, you're trying to confirm that hunch? A Yes. Q And so you're fishing for that information? A I am asking for the information, yes. Q And you're doing so without telling her, again, that this has nothing to do with currency? A No, I never told her that it had nothing -- yes -- sorry.

I did not tell her that it did not pertain to currency. Q You say that at 12:18 p.m. you decided to then read her her formal detention rights? A Yes. Q And that -- THE COURT: I'm sorry, what time? MS. NG: 12:18 p.m. Q And that at that point you spoke with Acting Superintendent Steven Baxter? A Yes, that's correct. Q And did you require his permission to remove her from the flight? A Yes. Q Did you require his permission to remove her luggage from the flight? A Yes.” (Transcript page 44-45 May 26 th 2010 line 14) [ 15 ] At 12:18 hours, Officer Coopman detained Ms.

Nagle on reasonable grounds (hereinafter provided) and read her

Section 10(

a) and 10(

b) of the Charter and issued a warning that she was not obliged to say anything. He inquired if she understood the warning and

Section 10(

a) and 10(b). She replied that she did. He asked if she wished to speak to a lawyer and she said she did not. [ 16 ] Officer Coopman testified that the reasonable grounds for detention were as follows: (

a) Her ticket routing was illogical as she flew from Edmonton to Vancouver to purchase the ticket and then she returned to Edmonton. She then flew back to Vancouver to board the flight to Tokyo and then onto Australia. The ticket was purchased three (3) days prior to her travel. She said that she “was going to look around” Japan for the one and one- half days (1½) prior to departure for Australia. (

b) Her physical demeanour was one of general nervousness (shaking and her lips were pasty white) and she appeared unwell. Officer Coopman asked her if she was sick or taking medications. Ms. Nagle denied medications but commented that she had a cold. Officer Coopman said that it was her trembling while he was talking to her that he noticed. Officer Coopman conceded he made no inquiries as to why this might have been occurring. He also said he did not make any other inquiries of her background. (

c) Her explanation as to the ticket purchase was inconsistent. Someone, whose surname she said she did not know, bought the ticket. She also told Officer Coopman that she had bought the flight ticket herself. Ms. Nagle later stated that her friend “Charlie” bought the ticket. The cost of the ticket was $3,500.00. Ms. Nagle told Officer Coopman that she worked previously as a care-giver in Vancouver and had returned to Edmonton four (4) months earlier to work in the construction industry.

(

d) When Officer Coopman searched her handbag, he found money and a ticket for a West Jet flight along with a Western Union transfer dated the same day of travel. He also discovered an Air Canada itinerary which she explained arose from a discrepancy in the spelling of a name on the tickets. (

e) Officer Coopman testified his authority to search Ms. Nagle’s handbag was found in PCMLATFA which allowed him to examine baggage for unreported currency. The Customs Act also authorized examination of eventual exported goods and he considered that whatever was inside of Ms. Nagle’s handbag was going to be exported. (

f) Officer Coopman asked her why she had said she bought the ticket when in fact someone else had purchased the ticket for her. Ms. Nagle did not answer. (

g) He said that he believed that Ms. Nagle had very vague travel plans. She stated that she was going to Australia to visit her cousin, though she did not know her cousin’s telephone number or address. She said that she would telephone her mother in Edmonton to get the contact information. (

h) She would be in Australia for eighteen days (18). If she could not contact her cousin, she would stay in a hotel. She later said, when asked about her travel plans, that she did not have any specific plans and that “she was going to ‘look’ around”. (

i) Officer Coopman asked Ms. Nagle about drug usage and Ms. Nagle admitted using illegal drugs. She said she had used marihuana that morning before boarding the Edmonton flight. She admitted to previously using cocaine three (3) years earlier and had used ecstasy in her teen years. (

j) Officer Coopman asked about the number of suitcases she had checked their contents. She did not answer that question. (

k) Officer Coopman added that the ticket was issued recently and this fact fit the profile of a drug courier. Further, he knew that other drug smugglers had been arrested for transporting drugs from Canada to Tokyo and then Australia. (

l) The profit margins are very high for methamphetamine in Australia and New Zealand. (

m) Officer Coopman testified his concerns switched from currency investigation to a drug smuggling inquiry when the airline ticketing purchase was discussed. He believed it did not make sense for Ms. Nagle to say that she bought the ticket, but then subsequently offer that another person bought the ticket (Charlie). He felt that persons are usually honest when talking about the purchase of an airline ticket.

He further testified that: “My past experience with that also has been that often couriers will not know as to what their ticketing arrangements will be until the last possible moment and it's also one of those things that people tend to let slide.

They will work on a cover story as to what they are going to do overseas, their handler, for lack of a better term, will provide them with the means to transport whatever it is they need to carry out of the country and that's something that tends to slip through the cracks and if you ask a question about that and then pursue it, to have someone turn around and say well, no, I didn't buy it, someone else bought it, why would you be untruthful about that?” (Transcript page18 May 26 th 2010 line 8) [ 17 ] As stated above, Officer Coopman first came into contact with the accused at 12:13 hours.

At 12:18 hours, Coopman had formed a reasonable suspicion that the accused was a drug offender, formally detained her, warned her and advised her of the Charter , sections 10(

a) and 10(b) . The accused waived her right to counsel. [ 18 ] Officer Coopman said he then sought and received permission from Acting Superintendent Baxter to have Nagle’s two pieces of baggage removed from the plane. He thereafter stated his reasonable grounds to Acting Superintendent Baxter. [ 19 ] Acting Superintendent Baxter testified that at approximately 12:15 hours, Officer Coopman asked him to contact JAL flight officials to have two pieces of luggage (Ms. Nagle’s bags) removed from the airplane for inspection. Officer Coopman gave Acting Superintendent Baxter two baggage tags.

Acting Superintendent Baxter directed Officer Johnson to ensure the bags’ removal and placement in the secondary inspection area. According to Acting Superintendent Baxter, a few minutes later he received the reasonable grounds for Ms. Nagle’s detention from Officer Coopman and that she would not be flying. [ 20 ] Officer Coopman testified that he first detained the accused and then directed the baggage removal.

Acting Superintendent Baxter said the removal of baggage order came before he was informed by Officer Coopman of the detention of the accused. [ 21 ] Acting Superintendent Baxter testified, once detained in these circumstances, the accused would be neither allowed to board the plane nor free to leave the airport. [ 22 ] Furthermore, if she had refused to answer any of the questions first posed by Officer Coopman, she would not be allowed to board the aircraft. In order for Ms. Nagle to leave the airport, the officers believed that the Customs Act required Ms.

Nagle to first re- enter Canada by presenting herself to border officers just like any other traveller entering Canada. In other words, the Border Services Officers concluded that she would be treated as a returning traveller and would be required to “clear customs”. In so doing, she would certainly have her luggage searched. [ 23 ] The baggage was brought to the secondary inspection counter area for search. Ion scans (for explosives) were also conducted. The results were positive for methamphetamine and/or cocaine. [ 24 ] At the secondary counter Officer Coopman asked Ms. Nagle the following questions:

"Are these all your bags?" She said, "Yes." I said, "Did you pack your bags yourself?" She said, "Yes." I said, "Are you fully aware of the contents of your bags?" She said, "Yes." I asked, "Did anyone help you to pack these bags?" And she said, "No." And the final question I asked was, "Did anyone give you anything to take out of the country," and she said, "No." (Transcript page 22 May 26 th 2010) [ 25 ] Ms. Nagle’s purse was searched and the Western Union money order for $500.00 was retrieved. The name of the sender was Hishyar Tilli-Choli. Ms.

Nagle said this was the person she earlier referred to as “Charlie”. [ 26 ] The bags were x-rayed and abnormal bulges were detected. Officer Coopman arrested Ms. Nagle for smuggling or attempted smuggling. The search disclosed 1149.1 grams (1.149 kilograms) of methamphetamine secreted in the compartments. [ 27 ] Ms. Nagle was once again asked if she wished to speak to a lawyer. She was crying and upset. Officer Coopman advised Ms. Nagle that he would contact duty counsel on her behalf as he was “simply trying to assist her”. At no time had Ms.

Nagle ever asked to speak to a lawyer. [ 28 ] Officer Coopman said the following: “QUESTION: And did you ask her about counsel again? ANSWER: Yes, I did ask her if she wished to speak to counsel. She indicated to me she did not know what to do. She was very upset, she was crying, her nose was running.

I asked her again and she said again that she didn't know what to do, so I said that I would place a call to duty counsel for her at the first opportunity.” (Transcript page 25 May 26 th 2010) [ 29 ] Border Services Officer Coopman acknowledged, as stated above, that he decided to place a call to duty counsel on his own initiative. [ 30 ] At approximately 1:00 pm, Officer Coopman contacted duty counsel and Ms. Nagle and the lawyer conferred. Officer Coopman confirmed Ms. Nagle was not advised of the possibility of calling her family for a lawyer’s name. The only recitation or reference to s.10 (

b) was immediately after Officer Coopman detained the accused at 12:18 hours and the above-noted indication in the previous paragraph. [ 31 ] Officer Coopman acknowledged that he did not advise Ms. Nagle that she would be subject to a

section 98 personal search prior to her speaking to duty counsel. He conceded that Ms. Nagle probably would be unaware of this fact and thus she may not have canvassed legal advice on the propriety of a personal search. Ms. Nagle was neither advised nor provided an opportunity to re-contact the duty lawyer when she was finally informed that she would be personally searched under s. 98. [ 32 ] Officers Coopman and Acting Superintendent Baxter indicated that a Customs Act s.98 personal search is carried out as routine whenever a commercial quantity of suspected drugs are located and Ms.

Nagle was subject to such an examination. Acting Superintendent Baxter and Officer Krumhardt testified that Ms. Nagle was not permitted to leave the secondary examination area until such time as the border services officers deemed appropriate. Ms. Nagle also would not have been allowed to refuse to participate in the s.98 personal search. Simply put, her person would have been searched regardless of whether or not she consented. [ 33 ] Officer Coopman described the s. 98 search as follows: “QUESTION: And can you describe to me what a

Section 98 search is? ANSWER:

Section 98 is a personal search where a person removes their clothing. Officers do not touch the subject, the subject obviously doesn't touch the officers. It is done in a private room with two members of the same sex present. The

Section 98 is read to the person who is being searched or some officers will ask that person to read it out loud and then they will be asked if they understand what it is that's being read to them or what they have read. They will be asked if they wish to speak to the senior officer present at the airport. That would be the person who is the airport director or a chief -- someone within senior management. If they decide that they wish to speak to somebody at that level the senior officer will come out, they will talk to the officers involved, they will establish as to what grounds they have to proceed with the

Section 98 personal search. They will then go and speak with the subject and if they decide that the search is going to take place they authorize the search, carry on. If they feel that the grounds are not there the subject is released.” (Transcript page 52 May 26 th 2010) [ 34 ] At 2:34 pm, the s.98 personal search was to be conducted by female Border Services Officers Krumhardt and Primo in a private locked room. Officer Krumhardt read aloud (from a wall poster) to the accused

section 98 of the Customs Act and advised Nagle of her right to speak with a senior CBSA officer regarding the search. Ms. Nagle declined to speak to a senior CBSA officer. Officer Krumhardt, in cross-examination, stated that Nagle had earlier spoken to counsel and she was not advised that she could speak with counsel again prior to the s.98 search. The only option provided to Nagle was to speak with a senior CBSA officer. [ 35 ] Nagle was stripped naked for the all-encompassing search. Nothing relevant was discovered. The search ended at 2:45 pm. [ 36 ] Acting Superintendent Baxter testified that Ms. Nagle was in an area where she had demonstrated that it was her intention to

leave Canada. He said this was especially so after she had shown her boarding pass and identification to the JAL official immediatelyprior to boarding the flight. [37] He said that Ms. Nagle was not free to leave the airport without authorization immediately after she entered the security zone tobe searched prior to flight. Officer Baxter said that any passenger, once past the security screening, is not free to leave the airportwithout the consent of Canada Border Services officials. [38] He said his powers to search were authorized so that he could search a person’s carry-on bag without any grounds whatsoever.

He believed he was so empowered under the PCMLTFA and the Customs Act. Furthermore, Officer Baxter said that if someone refusesto answer his questions, this heightens his suspicions and a person is subject to a search of their belongings and further questioning. Hesaid that he asks questions and a person is not “free to go” until his questions are answered to his satisfaction. LAW: [39] Before venturing further, I believe it is necessary to briefly discuss the law and procedures at the border entry at VancouverInternational Airport. Regina v.

Simmons (SCC), [1988] 2 S.C.R. 495 considered the routine questioning of atraveller at an entry port in the context of “detention” and the Charter. At para.27 Dickson C.J., after considering the Americanjurisprudence, said the following: “It is, I think, of importance that the cases and the literature seem to recognize three distinct [page517] types of border search. First isthe routine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage andperhaps a pat or frisk of outer clothing.

No stigma is attached to being one of the thousands of travellers who are daily routinely checkedin that manner upon entry to Canada and no constitutional issues are raised. It would be absurd to suggest that a person in suchcircumstances is detained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type ofborder 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 ofsearch is that sometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, toemetics, and to other highly invasive means. I wish to make it clear that each of the different types of search raises different issues.” [40] Dickson C.J. thus gave three (3) search examples that arise when citizens or non-citizens cross the border seeking entryinto Canada. The first and second examples are applicable to the case at bar.

Gaining entry to Canada requires a traveller toprovide truthful answers and submit to various routine searches without attracting or engaging constitutional protections. Thesimple equation is: no answers, no entry. Refusing or resisting a

section 98 personal search can be met with physical forcecompelling compliance. [41] There does not appear to be a corresponding statutory or common law duty or compulsion to answer questions of a BorderServices Officer when exiting Canada, save and except as required by statute. There is, for example, the duty to report certain goods(Customs Act s. 95) and money for export (PCMLTFA s. 12). Truthful answers are required for the same under both the Customs Act(s.95 (3)) and PCMLTFA (s. 12(4)). [42] Is the rationale as described in the first example in Simmons applicable for an outgoing passenger?

In other words, “would (it)be absurd to suggest that a person (Ms. Nagle) in such circumstances (Officer Coopman questioning her about regulatory compliance) isdetained in a constitutional sense and therefore entitled to be advised of his or her right to counsel”?

I have not been made aware of anyCanadian case that provides an answer to this question, or for that matter, answers to search issues that, usually, arise concurrently. [43] When an international traveller arrives at Vancouver International Airport, the first stop in the entry process is at primaryinspection where documentation is provided and inspected, questions are asked and answers are given. The traveller is next directed toretrieve their luggage and some are required to attend for secondary inspection, which usually involves inspection of belongings.

In thetypical circumstances, the traveller is then allowed to go on their way. In the event that Canada Border Services decide to conduct apersonal search, the traveller is directed to a private room for a personal search. The foregoing are Chief Justice Dickson’s first twoscenarios. [44] For airline safety concerns, all travellers boarding an outbound aircraft are subject to a security screening check. In the normalcourse of events, after the security inspection, a traveller next boards the aircraft.

Typically, there should not be any intervening events,except for the possible inquiry by a Border Services Officer. Officer Coopman testified that, as part of his routine duties, he questionedall sorts of outbound travellers about compliance with various Acts of Parliament. (See para.3 above): “My assigned duties were to rove travellers. That's basically going around stopping people, questioning them as towhether or not they need to comply with the reporting requirements... CUSTOMS ACT: (

i) Arriving Travellers: [45] Section11 provides that “... every person arriving in Canada shall’... report to an officer and answer truthfully any questionsasked by the officer (in the performance of his or her duties under this or any other Act of Parliament). This is commonly referenced,

noted above, as primary and secondary inspection .

Section 12 requires the arriving person to report any goods acquired and brought into Canada. The traveller must answer questions truthfully.

Section 13 requires the traveller to produce for inspection any goods imported into Canada. The border services officer is empowered to inspect luggage to determine compliance with the statute and regulations. In

summary, there is a duty to report and truthfully answer questions at an entry port (such as a border crossing or airport arrival from international travel). The officers are entitled to search belongings and pat-down an arriving person. (ii) Departing Travellers: [ 46 ] Section 95(1) of the Customs Act provides that a traveller leaving from Canada shall report “ all goods that are exported .” The person exporting goods shall file a report and under s. 95(3) (

a) answer truthfully any question asked by an officer with respect to the goods to be exported. Furthermore, s. 95(3) (

b) permits the officer to inspect the goods. [ 47 ]

Section 98 of the Customs Act is usually described as authorizing “personal searches”.

Section 98 provides the following: (

i) An officer may search (a)....... (

b) any person who is about to leave Canada, at any time prior to his departure, or (

c) any person who has had access to an area designated for use by persons about to leave Canada and who leaves the area but does not leave Canada, ........ “if the officer suspects on reasonable grounds that the person has secreted on or about his person anything, or anything that would afford evidence with respect to a contravention of this Act or any goods the importation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament”. [ 48 ] Section 98 (2) provides authority for the “search” of a person, including a “strip search” upon the authorization of a senior officer. [ 49 ] Section 99(1)(

e) authorizes a border services officer, on the basis of reasonable suspicion that the person has breached the Customs Act or any other act of Parliament, to search luggage of persons leaving the country . (ii) Proceeds of Crime (Money Laundering)Terrorist Finance Act ( PCMLTFA) ( Currency and monetary instruments for Departing Travellers) [ 50 ] A traveller , exporting more currency than authorized by law, must file a report. The PCMLTFA ( sections 12 and 16) permits an officer to question a traveller about currency export and authorizes the removal and search of baggage to ensure compliance.

No grounds are required of the officer for the search. If a report is made, the traveller must answer truthfully the questions asked by the officer (section 12(4)). Section 12 (2) provides that a person is NOT required to file a report if the prescribed conditions are met, AND if the person SATISFIES an officer that the conditions have been met. [ 51 ] The “triggering mechanism” for requiring truthful answers under the PCMLTFA is the traveller’s obligation to file a report when departing Canada.

The outgoing traveller is prosecutable if they do not file a report of export of goods or the export of money in excess of the allowable limit. [ 52 ]

Section 12 of the PCMLTFA came into force January 6, 2003. This Act requires that all persons arriving in or departing from Canada report any currency valued at or above the prescribed amount.

Section 12 states: "Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount." The "prescribed amount" is set by regulation SOR 2002/-412 at section 2(1) and is set at $10,000.

Section 74 of the Act creates an offence for a violation of

section

Section 74 makes a person who does not report currency over the prescribed amount, and thereby breaches

section 12 of the Act,: "guilty of an offence and liable (

a) on

summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than six months, or to both; or (

b) on conviction on indictment, to a fine of not more than $500,000 or to imprisonment for a term of not more than five years, or to both." ISSUE 1: Was Ms. Nagle detained and, if so, when ? [ 53 ] The first issue to be resolved is the Border Services Officer’s detention time. Whether or not dealings between a citizen and the state lead to or constitute a detention depends upon the context of that interaction. Determining if and when the accused was detained will allow this Court to address whether and when Ms. Nagle’s Charter rights were violated during her interactions with members of the Canada Border Services Agency.

[54] Mr. Le Dressay, for the Crown, in discussing this issue (Charter sections 9 and 10) says the following: “.....the jurisprudence recognizes that in the border context, routine screening of international travellers is not a detention within themeaning of the Charter. Neither sections 9 and 10 of the Charter are engaged until customs officers remove a traveller from the routinescreening process and assume control over the traveller’s movements by making a demand with significant legal consequences, forexample ushering the traveller into a private room to conduct a strip search.

In the case at bar, all of Customs Officer Coopman’s dealings with Nagle were in the nature of routine questioning that did not trigger adetention under sections 9 and 10 of the Charter, up to the point where Coopman made a decision to prevent Nagle from travelling andhad her baggage removed from the plane. The second issue is whether a particular physical examination of a traveller or the traveller’s belongings constitutes a search within themeaning of

section 8 of the Charter, and if so whether the search is reasonable. The jurisprudence recognizes that internationaltravellers crossing Canada’s border know and expect that they will be subject to routine screening, which may include physicalexamination of their personal belongings. The screening of persons and their belongings does not intrude upon or engage anyreasonable expectation of privacy within the meaning of

section 8 of the Charter. In the case at bar, Coopman’s examination of Nagle’s purse was undertaken in the course of routine questioning of an internationaltraveller at the border, did not intrude upon any reasonable expectation of privacy, and was not a search under

section 8 of the Charter. In the alternative, if the examination of the purse was a search, it was authorized under section 16(2) of the Proceeds of Crime MoneyLaundering and Terrorist Financing Act (the “PCMLTFA”), which as described below, permits customs officers to inspect bags toensure compliance with the regulatory scheme. The subsequent search of Nagle’s checked luggage was based on reasonable suspicion,and was authorized under section 99(1)(

e) of the Customs Act and thus not unreasonable under

section 8 of the Charter.” (CrownSupplemental Submissions para.3-6) [55] Therefore, the Crown’s position is that the accused was only detained in the constitutional sense when Border Services OfficerCoopman explicitly advised her that she was detained at 12:18 hours. [56] The Crown position is that the test set is as out in Simmons, namely that international travellers are not detained until removedfrom routine screening processes at the border. (Crown Supplemental Submissions para.26).

The Supreme Court of Canada in Simmonsruled that detention takes place when the Border Services officers remove the traveller for a personal search (Section 98 of the CustomsAct). Until that point is reached the Court held that a “detention” does not arise. [57] The Crown concedes that if there was a detention before Officer Coopman advised Ms. Nagle that her bags would be removedfrom the flight, there was a breach of

section 10(

b) of the Charter. (Crown Supplemental Submissions para.79-82). [58] If any statements were made by Ms. Nagle after the point at which a detention occurred, they should not be considered indetermining whether Officer Coopman had, both objectively and subjectively, reasonable suspicion that an offence had been committed.It may be, depending on the timing of when a finding of detention is made, that there was not reasonable suspicion. If there was noreasonable suspicion, the search of the bags and the finding of the methamphetamine would have been a breach of

section 8 of theCharter. (Crown Supplemental Submissions para.79-82) [59] Alternatively, if there was no detention (as urged by the Crown) but there is a finding that the search of the purse was a breachof

section 8 of the Charter, the Court may determine it is appropriate not to consider any statements made by Ms. Nagle to OfficerCoopman that arose because of the purse search, in determining whether there was reasonable suspicion to permit the search of theluggage. The answer to this question may be difficult as Coopman’s

summary of his reasons for suspicion (page 15, ll.19 to page 17,ll.30) include matters that arose both before and after the search of the purse. If there was not reasonable suspicion, again the search ofthe bags and the finding of the methamphetamine would be a breach of

section 8 of the Charter. (Crown Supplemental Submissionspara.79-82) [60] In the Crown submission, the evidence of the seized drugs should be admitted into evidence, even if the actions of OfficerCoopman are found to have breached the Charter. The test, as set out in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353,considers three factors. (Crown Supplemental Submissions para.79-82). [61] The defence argues that Ms. Nagle was detained when Officer Coopman directed her to the side and ordered her to place herpurse on a shelf.

This direction to move aside took place very early on in the questioning, well before 1218 hours. Alternatively, thedefence submits that she was detained when Officer Coopman switched his investigation from one of checking whether the accused wasin compliance with her reporting obligations under the PCMLTFA, to one focused on drugs. The detention became fixed when theBorder Services Officer’s focus shifted before 12:18 hours. Ms.

Ng suggests that the time was 12:15 hours, at or about the time whenOfficer Coopman was searching through the travel documents. [62] The leading case of Grant, (supra) provides guidance for determining when a detention is crystallized during an interactionbetween an individual and state officials (police or Canada Border Services Agency). In Grant, the Supreme Court of Canada recognizedthat “the point at which an encounter becomes a detention is not always clear, and is something with which courts have struggled” (atpara.133). [63] Here, the interaction between Ms.

Nagle and Border Services Officer Coopman requires analysis in several stages: (

a) Initial Questioning [64] In this case, the relevant interactions between Ms. Nagle and the Canada Border Services Agency began when Border ServiceOfficer Coopman randomly stopped Ms. Nagle for questioning in the jet-way (corridor) leading to the JAL airplane. At this point, Ms.Nagle had already presented her boarding pass and identification to a JAL airline official and was on her way to boarding the airplane.Officer Coopman had watched her comply with JAL boarding personnel. Officer Coopman’s questioning began at approximately 12:13

hours and centred on whether Ms. Nagle was carrying currency valued at or over $10,000 CDN, triggering the filing of a report. [ 65 ] Was Ms. Nagle detained at this time, when Officer Coopman first began to ask her questions in the jet-way? I conclude that she was not. Officer Coopman’s initial questioning was administrative in nature, intended to ensure Ms. Nagle’s compliance with the PCMLTFA .

Indeed, Officer Coopman advised the accused at this point that he was “checking for the export of currency”. (Transcript page 7 May 26 th 2010 line 1). [ 66 ] As well, in my view, Officer Coopman’s initial questioning was akin to the first category of border search outlined in Simmons , described as being a “routine questioning which every traveller undergoes at a port of entry...no stigma is attached to being one of thousands of travellers who are daily routinely checked in that manner...and no constitutional issues are raised” (at para.27).

However, I note that although Simmons mentions that this routine questioning may be “ accompanied in some cases by a search of baggage ”, I find it questionable that a search of Ms. Nagle’s purse was appropriate in the circumstances, as discussed in further detail below. In any event, I see Officer Coopman’s initial questioning as being of a ‘routine’ nature. [ 67 ] Furthermore,

section 12 of the PCMLTFA allows for an officer to ask a traveller questions until the officer is satisfied that the traveller has followed the reporting requirements for the exportation of currency. As such, Officer Coopman had the statutory authority to ask Ms. Nagle questions in relation to money, and she had a legal duty to truthfully answer the questions to his satisfaction. (

b) Search of Ms. Nagle’s Purse: [ 68 ] The Crown submitted that Ms. Nagle had no reasonable expectation of privacy in her purse and contents at the time that Officer Coopman searched. Mr. Le Dressay said: “The Customs Act and the PCMLTFA specify that her purse can be examined in a variety of contexts. And all international travellers know and expect that they will be subject to such scrutiny when they travel.

In all the circumstances, the examination of Nagle’s purse by Customs Officer Coopman immediately before Nagle was to board a plane with the expectation of leaving the country simply did not intrude upon any reasonable expectation of privacy. As a result, Coopman’s actions did not engage or intrude upon Nagle’s right to be secure from unreasonable search under

section 8 of the Charter .” [ 69 ] Mr. Le Dressay submitted that in Simmons (para.27), routine screening at the border does not give rise to constitutional issues. This screening would include an examination of purse or pockets without attracting

section 8 issues. (Crown Supplemental Submissions para.27). [ 70 ] In the alternative, the Crown submitted that if the examination of the purse and contents did engage Nagle’s rights under

section 8 of the Charter , the Border Service officer‘s conduct was authorized by section 16(2) of the PCMLTFA , so as to allow for a determination if there was cash in excess of $10,000 in the purse. [ 71 ] Section 16 (2) of the PCMLTFA provides the following: “An officer may, in order to determine whether there are, in baggage, currency or monetary instruments that are of a value equal to or greater than the amount prescribed for the purpose of subsection 12(1) and that have not been reported in accordance with that subsection, search the baggage, examine anything in it and open or cause to be opened any package or container in it and direct that the baggage be moved to a customs office or other suitable place for the search, examination or opening.” [ 72 ] It is clear that Officer Coopman considered the purse to be part of the baggage and thus available for inspection, without the requirement of cause.

Furthermore, he examined documents, other than money, under the authority of “anything in it”; meaning in the purse. [ 73 ] However, Officer Coopman’s questioning did not end when Ms. Nagle informed him that she was only carrying $1,200. Instead, the officer then directed Ms. Nagle to step off to the side of the corridor and put her purse on a shelf. Officer Coopman then searched through the purse, finding various documents and the $1,200 cash. Throughout his search of the purse, the officer asked a number of questions beyond the concern for money compliance, including inquiring about Ms.

Nagle’s ticket purchase, her travel plans, and her use of drugs. Ultimately, Ms. Nagle’s answers to those questions were incriminating ones that led Officer Coopman to believe that Ms. Nagle was a drug courier. [ 74 ] In my view, the accused was detained when Officer Coopman asked her to step aside from the jet-way and put her purse on the shelf. It was at this point that Ms. Nagle was under the direction and control of the officer. I conclude that Ms.

Nagle was neither free to board the aircraft nor free to leave the departure area until Officer Coopman was satisfied that she was in compliance with the PCMLTFA , and the Customs Act , as well as any other Act of Parliament. Alternatively, if Ms. Nagle was not detained in the constitutional sense as above-stated, I find that when the Border Services Officer discovered that she need not file a report, she was detained thereafter. I conclude, therefore, that a psychological detention had crystallized before Ms. Nagle began making incriminating statements.

I am of the view that the detention started at this point and continued solidifying throughout, as evidenced by the change in investigative direction. [ 75 ] In concluding that Ms. Nagle was under a psychological detention at the point where she was directed to move off to the side of the jet-way and place her purse on a shelf, I am guided by the majority decision in Grant , The Court summarized the framework that should be followed when determining whether a detention has occurred, at para. 44 the Court said:

“Detention, under ss.9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical orpsychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with therestrictive request or demand, or a reasonable person would conclude by reasons of the state conduct that he or she had no choice but tocomply.” [76] It is clear the Officer Coopman wanted to examine and search the purse under the authority of s. 12 and 16 of the PCMLTFA. [77] In this situation, did Ms. Nagle have a legal obligation to comply with Officer Coopman’s request? Under s. 12(4)(

b) of thePCMLTFA, the accused would have had a legal duty to “present the currency or monetary instruments that [she was] carrying ortransporting, unload any conveyance or part of a conveyance or baggage and open or unpack any package or container that the officerwishes to examine.” I interpret this duty to mean that Ms. Nagle would have been obligated to unpack her purse and show the $1,200 cashto Officer Coopman. In other words, Ms.

Nagle was under the direction and control of Officer Coopman. [78] I must next consider whether this was a situation where “a reasonable person would conclude by reason of the state conductthat he or she had no choice but to comply” (Grant at para.44).

In determining what is reasonable, the majority in Grant indicated that“the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceivedpower imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice butto comply with the police directive” (at para.32). [79] In this case, I have considered the fact that Ms. Nagle was stopped by Officer Coopman in a jet-way immediately before Ms.Nagle was to board her international flight.

Physically, the accused was in a confined area where the only means of exiting would be toeither board the aircraft, or turn around and go back into the airport, in order to clear Canadian customs. Psychologically, the accusedwas in a situation where she was being directed to act by a uniformed Canada Border Services Agency officer who had advised her thathe was working under statutory authority. [80] Taking into account the above circumstances, I find that it was reasonable for Ms. Nagle to perceive that she had no choice butto comply with Officer Coopman’s directions.

As such, she was detained at the time in which the officer made the request of her to stepaside and put her purse on the shelf, and it was at that point that her Charter rights were engaged. Ms. Nagle should have then beeninformed of her rights under s. 10(

a) and (b). In reality, however, she was not advised of these rights until after she had givenincriminating answers that led to the formation of reasonable suspicion. Issue 2: Was the detention an arbitrary detention? [81] As I have found that Ms. Nagle was detained by Officer Coopman in the jet-way sometime before 12:18 hours, the next issue iswhether this was an arbitrary detention contrary to s. 9 of the Charter. (

a) Officer Coopman’s discretion to stop Ms. Nagle: [82] In my view, it is critical that Officer Coopman randomly selected Ms. Nagle for questioning. Although the Border ServicesOfficer was acting pursuant to the power granted to him under the PCMLTFA and the Customs Act, these pieces of legislation on theirface leave the choice of the travellers to be stopped to the sole discretion of the Border Services Officer. [83] The common law has shown that a discretion is arbitrary if there were no criteria, express or implied, which govern its exercise(see R. v. Hufsky, (SCC), [1988] 1 S.C.R. 621; R. v.

Ladouceur, (SCC), [1990] 1 S.C.R. 1257). I nHufsky, the Supreme Court of Canada ruled that the appellant was arbitrarily detained, within the meaning of s. 9 of the Charter, as aresult of the random stop for the purposes of a motor vehicle spot check procedure. The selection of drivers to stop was in the absolutediscretion of the police officer and therefore arbitrary.

As well, consideration must be given to the following: “During a random motor vehicle stop, a police officer is not authorized to conduct an investigation that goes beyond the concerns forhighway safety unless he otherwise has reasonable grounds for doing so. Absent such grounds, he may not search the driver or thevehicle.” (See: Regina v. Mellenthin, (SCC), [1992] 3 S.C.R. 615 at para. 27; and Ladouceur (supra) at para. 60). [84] The random stopping of motor vehicles is not dissimilar to the randomness of Officer Coopman stopping Ms. Nagle. In thiscase, the selection of Ms.

Nagle for questioning was in the absolute discretion of the Border Services Officer. As such, althoughauthorized by statute and carried out for lawful purposes, the random stop of the accused for the purposes of checking compliancenevertheless resulted in an arbitrary detention because there were no criteria in the legislation for the selection of the travellers to bestopped and subjected to a check. [85] The actions of Officer Coopman were entirely speculative and without any grounds when he chose to check for compliance on apurely random basis.

In stopping her, Officer Coopman engaged the accused in an interrogation that would eventually lead to suspicionsthat the accused was a drug courier. He performed a random veracity test and, even though his actions are permitted by statute, I amconcerned with this state intrusion upon individual liberty. (

b) Was Officer Coopman performing an investigative detention when he detained Ms. Nagle?

[86] I have also, though probably unnecessarily, analysed the actions between Ms. Nagle and Officer Coopman from the perspectiveof a form of investigative detention. In investigative detention cases, the law is clear. A police officer may, in exercising a common lawduty, briefly “delay” or “keep an individual waiting” if there are “objectively discernable facts which give the detaining officerreasonable cause to suspect (reasonable suspicion”) that the detainee is criminally implicated in the activity under investigation”(Regina v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.).

The detention must be brief and no search isavailable except for officer safety or weapons concerns (R. v. Mann, 2004 SCC 52). In short, the powers given to a Police Officer incircumstances allowing for an investigative detention are restricted. [87] I am cognizant that the international airport and border entry/exit cases are treated as exceptional, in regard to the establishedprinciples under the Charter. The question however is: To what degree and under what circumstances? [88] In this case, did Officer Coopman’s detention and questioning of the accused arise out of the officer’s reasonable suspicion thatMs.

Nagle was involved in criminal activity? Specifically, did Officer Coopman reasonably suspect that Ms. Nagle was disobeying alegal duty to make a report under the PCMLTFA? The short answer to this is no. There was nothing, according to the evidence at hand,that indicated any criminal activity or the breach of any Parliamentary Act was taking place involving Ms. Nagle. [89] I find that Officer Coopman’s questioning of the accused was arbitrary and did not arise out of true investigative detentionpurposes.

Section 12(2) of the PCMLTFA provides that a person need not make a report “if the prescribed conditions are met (less than$10,000)...and if the person...satisfies an officer that these conditions have been met” (emphasis added). But what is the meaning of“satisfies an officer” in this section? Firstly, the word implies a broad subjective opinion of the Border Services Officer. Secondly, thereis neither qualifier nor criteria, express or implied, which govern the exercise of the Border Services Officer’s discretion. That is, there isno evident standard for the application of the officer’s discretion.

It is this deficiency, in my view, that makes the circumstance arbitrary. [90] In other words, when Officer Coopman detained and questioned Ms. Nagle in the jet-way, it was on a random basis and notbecause he initially suspected her of wrongdoing according to any criteria provided in the PCMLTFA. It was only after Ms. Nagleprovided suspicious answers that Officer Coopman began to suspect the accused of drug involvement. By his own admission, the officersaid that he asked questions persistently and the answers that Ms. Nagle provided led to other questions, and that he followed them towherever they led.

As such, Officer Coopman was engaging in broad investigative questioning, without proper grounds to do so. Ms.Nagle’s detention was therefore arbitrary and her s. 9 Charter rights were infringed. Furthermore, according to Grant and Regina v.Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, Ms. Nagle should have been provided with

Section 10(

a) and 10(

b) of theCharter. She was not. Issue 3: Was Ms. Nagle subjected to an unreasonable search and seizure? [91] To answer this question, an analysis of Charter

section 8 is required. It is well accepted that

section 8 protects the public’sreasonable expectation of privacy from state intrusions. Where there is no reasonable expectation of privacy,

section 8 does not apply. In addition, it is agreed that a diminished expectation of privacy (such as in cases of prisons, schools and border crossings) will lowerthe standard of reasonableness. [92] If Ms. Nagle establishes a reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whetherOfficer Coopman’s search was conducted in a reasonable manner. Regina v. Belnavis (SCC), [1997] S.C.J. No. 81 atpara.20. [93] The law is clear that a reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances.

The factors to be considered in assessing the totality of the circumstances may include, but are not restricted to, the following: (1) presence at the time of the search; (2) possession or control of the property or place searched; (3) ownership of the property or place; (4) historical use of the property or item; (5) the ability to regulate access, including the right to admit or exclude others from the place; (6) the existence of a subjective expectation of privacy; and (7) the objective reasonableness of the expectation. (

a) Search of Ms. Nagle’s Purse: [94] I have already concluded that Officer Coopman arbitrarily detained Ms. Nagle when he requested that she step aside from thejet-way and place her purse on a shelf. The next issue is whether the officer’s search of the purse was unreasonable under thosecircumstances. [95] The Crown argues that the expectation of privacy in an international airport is extremely low. Travellers can expect to be

subjected to a number of screenings and potential searches, none of which require any grounds to be pursued. [96] In R. v. Truong,

(2002) BCCA 315, the B.C. Court of Appeal (a case pre-PCMLTFA) acknowledged that an individual’sexpectation of privacy in an airport is different than in other locations and situations, due to air safety reasons.

However, Newbury J.A.,in concurring reasons, stated that, “I do not wish to be taken to suggest that the police and other law enforcement authorities are entitled,because of the reduced expectation of privacy, to carry out searches arbitrarily and unreasonably at airports and similar facilities” (atpara.25). [97] The question that arises in this case is whether a general reduced expectation of privacy in airports means that OfficerCoopman’s search of Ms. Nagle’s purse in the jet-way was reasonable. The burden falls on the Crown to show that it was indeed areasonable search.

In order to meet the reasonableness requirement, three criteria must be met: 1) the Crown must be able to point to aspecific statute or common law rule that authorizes the search; 2) the search must be carried out in accordance with the procedural andsubstantive requirements the law provides; and 3) the scope of the search is limited to the area and to those items for which the law hasgranted authority to search (R. v. Caslake, (SCC), [1998] 1 S.C.R. 51). [98] In terms of the first two criteria, as mentioned earlier, s. 12 (4) (

b) of the PCMLTFA provides that an individual has a legal dutyto “present the currency or monetary instruments that they are carrying or transporting, unload any conveyance or part of a conveyanceor baggage and open or unpack any package or container that the officer wishes to examine.” Accordingly, although I recognize thatOfficer Coopman had the legal authority to see the contents of Ms. Nagle’s purse, I am not satisfied that he had the statutory or commonlaw authority to search through Ms.

Nagle’s purse without specifically seeking her consent or at the very least inform her he wassearching her purse in aid of his stated purpose to confirm monetary compliance. He did neither in the circumstances of this case. Theact authorizing the carrying out of his duties is premised upon a cooperative endeavour between a self-reporting individual and acompliance officer. I doubt that the Act was intended to allow a warrantless search without some notice given to a detainee of actionsmore invasive than the asking of questions. [99] Moreover, even if Officer Coopman was acting pursuant to s. 12(4)(

b) or s. 16(2) of the PCMLTFA, I am disturbed that hecontinued his warrantless search of Ms. Nagle’s purse even after he saw that she had followed the monetary reporting requirements,without fully disclosing his reasons for continuing to do so. While the officer may have initially been searching through Ms. Nagle’spurse to check for compliance with the PCMLTFA, the officer soon moved to questioning and investigating Ms. Nagle’s involvementwith drugs by asking about her drug usage, ticketing purchase, and personal circumstances. Officer Coopman did not advise the accusedthat his focus had gone from money to drugs.

He at no time told her the reasons for his questions, other than at the outset when he askedMs. Nagle whether she needed to file a report for money concerns. Once Officer Coopman discovered the truth of the monetarysituation, he nevertheless continued to search through her purse. As such, I am satisfied that his search was not only arbitrary but alsounreasonable. [100] I also find the following quote from the Supreme Court of Canada in R. v.

A.M., 2008 SCC 19 , [2008] 1 S.C.R. 569,to be an instructive articulation of an individual’s reasonable expectation of privacy in regards to a purse: “As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who leaditinerant lifestyles during the day as in the case of students and travellers.

No doubt ordinary businessmen and businesswomen ridingalong on public transit or going up and down on elevators in office towers would be outraged at any suggestion that the contents of theirbriefcases could randomly be inspected by the police without “reasonable suspicions” of illegality. Because of their role in the lives ofstudents, backpacks objectively command a measure of privacy” (at para.62, emphasis in original). [101] In essence, I view Officer Coopman’s search of Ms. Nagle’s purse as being a ‘trolling expedition’ through the accused’spersonal belongings without proper regard for her Charter rights.

At the point that the officer became suspicious of various items in Ms.Nagle’s purse and began to focus on her possible drug involvement, the officer needed to inform the accused of his reasons for detainingher and searching her belongings. (

b) Search of Ms. Nagle’s Luggage: [102] Officer Coopman’s questioning of Ms. Nagle in the jet-way eventually led the officer to request JAL flight officials to removeMs. Nagle’s two pieces of luggage from the airplane for inspection. Ultimately, the search of this baggage disclosed 1149.1 grams (1.149kilograms) of methamphetamine secreted in the compartments. [103] Was the Canada Border Services Agency’s search of the accused’s luggage reasonable?

Again, I turn to the criteria for areasonable search outlined in Caslake (supra). [104] First, I am satisfied that there is, in fact, legislation that authorizes an officer to search luggage in airports for illegal goods undercertain conditions. Specifically, s. 99(1)(

e) of the Customs Act provides that: “where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered orenforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and openor cause to be opened any package or container thereof”. [105] However, even though there is statutory authority for officers to search baggage for illegal goods, I note that there must first be“reasonable grounds” to do so. Therein lies the problem in this case: Officer Coopman only came to suspect Ms.

Nagle’s involvement inthe exportation of drugs after he had arbitrary detained her, unreasonably searched her purse, and persistently questioned her withoutinforming her of her Charter rights.

[106] Accordingly, I consider the search of Ms. Nagle’s luggage and the resulting seizure of the illegal methamphetamine to comeonly as a result of several Charter breaches. It follows that I am not satisfied that this was a reasonable search in accordance with theauthority granted to officers under s. 99(1) (

e) of the Customs Act. Issue 4: Was Ms. Nagle properly provided with her s. 10(

A) and (

b) rights? [107] The PCMLTFA has penal consequences for non-compliance. Ms. Nagle was in jeopardy under this Act. [108] Officer Coopman testified that during his interaction with Ms. Nagle, he advised her of s. 10(

a) and (

b) rights at 12:18 hours,when she was formally detained. However, as I have found that the accused was detained sometime prior to 12:18 hours (at the pointwhen she was directed to step aside and place her purse on the shelf), I conclude that Ms. Nagle was not provided with these rights at theproper time in accordance with the Charter. [109] In regards to her right to be informed promptly of the reasons for her detention, Ms. Nagle was not informed that she was beingdetained in the jet-way for the purposes of questioning her possible role as a drug courier.

As discussed earlier, Officer Coopmanchanged the focus on his questioning from monetary compliance to drug involvement without informing Ms. Nagle of this fact. Accordingly, Ms. Nagle was not explicitly informed of the reasons for her detention in the jet-way. [110] In terms of an accused’s right to counsel, the majority of the Supreme Court of Canada stated in Grant: “In R. v. Suberu, [2009] SCC 33, we conclude that the s. 10(

b) right to counsel arises immediately upon detention, whether or not thedetention is solely for investigative purposes. That being the case, s. 10(

b) of the Charter required the police to advise Mr. Grant that hehad the right to speak to a lawyer, and to give him a reasonable opportunity to obtain legal advice if he so chose, before proceeding toelicit incriminating information from him. Because he now faced significant legal jeopardy and had passed into the effective control ofthe police, the appellant was ‘in immediate need of legal advice’: R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, at p. 206.Because the officers did not believe they had detained the appellant, they did not comply with their obligations under s. 10(b). Thebreach of s. 10(

b) is established” (at para. 58). [111] In my view, Ms. Nagle’s situation is analogous to the above passage from Grant, in that she should have been advised of herright to counsel immediately upon being detained in the jet-way, and before she gave her incriminating answers in response to OfficerCoopman’s questioning that went beyond the scope of investigating compliance with the PCMLTFA. [112] The defence also takes issue with the implementation of the accused’s right to counsel. Specifically, the defence submits thatOfficer Coopman should not simply have dialled duty counsel for the accused.

I agree that this was not ideal, and that Officer Coopmanought to have first advised Ms. Nagle of her other options (i.e. to call her own lawyer, to call a relative to find out the contact informationfor a lawyer, or to look for a lawyer in a phone book), rather than only provide Ms. Nagle with access to duty counsel. [113] Furthermore, the defence takes issue with the fact that Ms.

Nagle was not advised by any member of the Canada Border ServicesAgency prior to her contact with duty counsel that she would be subjected to a full body strip search pursuant to s. 98 of the Customs Act,nor was she advised immediately before the search that she could contact counsel again for advice in relation to the strip search. Again, Iagree that this was not ideal and that the officers were not fully recognizing Ms. Nagle’s Charter rights by neglecting to inform her ofthese options. I note that no evidence was obtained by the Border Services Officer from the breach of

Section 10(

a) and 10(

b) when thecall was placed to duty counsel. Nor was any evidence obtained from the s.98 search. Entering Canada as opposed to Leaving Canada: [114] The law is clear that the routine screening that occurs when a person enters Canada does not amount to a detention.

At theborder, a detention occurs only when the traveller is removed from the usual and ordinary flow of people and goods that are subject toroutine screening (including basic questioning, examination of luggage, or a search of exterior pockets). [115] The Crown argued that a traveller who is leaving Canada is not detained when they are subject to routine questioning orscreening processes, just the same as a person entering Canada. The contextual analysis is the same. The same reduced reasonableexpectation of privacy and scrutiny is applicable.

A traveller has an expectation that their luggage and belongings will be subject tosearch and some nature of screening when they exit Canada and when they enter their destination and any stops in between. There is nostigma attached to an inspection or interview. In order to enforce various Acts of Parliament, Border Services Officers are duty bound toensure regulatory compliance. There are also arrangements between countries for reciprocal procedures in order to prevent thesmuggling of contraband and other related issues.

The international community has a shared interest in preventing criminal and terroristrelated activities. [116] The Crown submitted that the Customs Act and the PCMLTFA have many provisions that apply to exports. They reflect apositive obligation to report goods or currency being exported, subject to personal limits. Additionally, once any report is made,Customs officers can search randomly in order to ascertain the accuracy of the declaration (section 99(1)(

c) of the Customs Act andsection 16 of PCMLTFA). And regardless of any report, Border Services Officer can search anything or anyone if they have areasonable suspicion that an offence has been committed. In a self-reporting system, it must be the case that a Border Services Officercan ask routine questions in order to determine if there has been compliance with the reporting regime, without triggering a detention andthe right to counsel. While there are some minor distinctions between the process and obligations when entering Canada and when

leaving Canada, the two situations are very similar and the same considerations should lead the court to the conclusion that the test for detention is the same. (Crown supplemental submissions para.44-46). [ 117 ] United States v. Hernandez-Salazar , 813 F.2d 1138 dealt with a defendant departing the U.S. for Columbia. A United States Customs inspector had reasonable and articulable grounds for believing that the defendant’s suitcase contained undeclared income based on three characteristics.

The officer seized and forced open the suitcase and removed a package that subsequently was found to contain approximately $200,000.00 cash. Forty-five minutes before the plane was to depart, Customs Officials announced over the public address system of the need to comply with monetary regulations and report the export of amounts greater than $10,000.00. No passenger came forward to make a report. When the passengers were boarding the plane, the Customs Official matched the defendant’s bag tags with the tags from the opened luggage. The defendant was arrested, questioned and searched. He confessed.

The Court held that the actions of the Customs Officer were based on reasonable suspicion from the outset and upheld the original conviction. The Court said the following in relation to reasonable expectation of privacy in checked luggage. As we stated in United States v. Goldstein, 635 F. 2d 356 (5 th Cir.

Unit B 1981), “when airport security is not involved, every passenger who has luggage checked with an airline enjoys a reasonable expectation of privacy that the contents of that luggage will not be exposed in the absence of consent or a legally obtained warrant”. [ 118 ] In Goldstein (a drug case involving airport dog sniff of outgoing travel bags), the Court held: “It is clear that, because of the great danger posed to the public safety by air piracy, searches conducted in the interest of airport safety are subject to a more relaxed test of reasonableness. See e. g., United States v.

Palazzo 488 F.2d 942 (5th Cir. 1975). However, it should be noted that searches in the interest of drug enforcement cannot be justified on the same basis as those in the airport security context; instead drug searches are to be analyzed under traditional Fourth Amendment principles.” [ 119 ] These two cases are no longer representative of U.S. law as of the 1986 Amendment to 5316-5317. [ 120 ] The case of United States of America v.

Vincent Ezeiruaku No. 91-1051 United States Court of Appeals 3 rd District dealt with airline searches and the Fourth Amendment. [ 121 ] The authority for the search of the checked baggage (as demonstrated by Hernandez-Salazar and Goldstein above) was premised on the 1986 amendment to 31 U.S.C. Sec. 5317(b), which provides: “ For purposes of ensuring compliance with the requirements of

section 5316 [the currency reporting statute], a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States.” [ 122 ] The 1986 amendment eliminated "reasonable cause" language from the statute. Prior to its amendment,

section 5317 authorized the Secretary of the Treasury to apply for a search warrant when the Secretary had reasonable cause to believe

section 5316 had been violated. [ 123 ] Under the "border exception" doctrine, customs officials may conduct routine searches of persons and effects crossing the border even in the absence of individualized suspicion. [ 124 ] In Almeida-Sanchez v.

United States , 413 U.S. 266, 273, 93 S.Ct. 2535, 2539, 37 L.Ed.2d 596 (1973), the Court ruled that international airports are functional equivalent to the border crossing. [ 125 ] The Supreme Court consistently has held that searches of persons and items entering the borders of the United States are constitutional without a warrant, probable cause or reasonable suspicion. [ 126 ] The American Courts have over the years have held consistently that the border search of luggage is "routine" and requires no degree of suspicion. See: United States v.

Benevento , 836 F.2d 60 , 68 (2d Cir.1987) (search of luggage checked from New York to Geneva), cert. denied, 486 U.S. 1043, 108 S.Ct. 2035, 100 L.Ed.2d 620 (1988). [ 127 ] It is thus clear that the United States authorities consider an international airport as a border and that the Fourth Amendment has a border exception allowing for free ranging “no grounds needed” inspection of a traveller’s personal belongings. [ 128 ] It is interesting to note that in Ezeiruaku , the border officers had a particular plan in place, having purposely selected certain travellers for investigation unlike the random selection at bar. [ 129 ] Unlike the United States cases, there does not appear to be any judicial direction or finding that designates an international airport to be a functional border crossing.

I note that when flying from Canada to the U.S., a traveller “clears” U.S. Customs at the Vancouver International Airport prior to boarding a U.S. bound plane. Issue 5: Should the seized evidence be excluded from trial? [ 130 ] The ultimate question in this voir dire is whether the drug evidence obtained from Ms. Nagel’s luggage ought to be excluded

from trial because it was obtained in breach of Ms. Nagel’s Charter rights. [ 131 ] The Crown submitted in connection with s. 24(2) the following: (

a) The seriousness of the Charter -infringing state conduct : [ 132 ] The breach here is at the low end of the spectrum. There has been no case decided in Canada which says that a person is detained when they speak to Customs officers in the international departure area of the airport. And there are many years of decisions that confirm that a person is not detained when speaking to Customs officers in international arrivals areas. Therefore, it was reasonable for the Customs officers to believe that their actions were consistent with the Charter . (

b) Impact on the Charter -protected interests of the accused : [ 133 ] The impact is minor given the relatively unobtrusive nature of the questioning and the low expectation of privacy in luggage at an international airport. (

c) Society’s interest in an adjudication on the merits : [ 134 ] The offence is serious and the Crown’s case is entirely dependent on the evidence of the drugs seized from the accused’s luggage. When the Court balances all of these factors, they weigh heavily in favour of admitting the evidence. [ 135 ] Ms. Ng for the accused provided in her written submissions various reasons why the evidence should be excluded and I have considered those arguments in arriving at my decision.

Section 24(2) Analysis: [ 136 ] The leading case on exclusion of evidence under s. 24(2) of the Charter is Grant , which articulates the test as follows: “When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct...(2) the impact of the breach on the Charter -protected interests of the accused....and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute” ( at para. 71 ). (

a) The seriousness of the Charter-infringing conduct : [ 137 ] In this case, it is necessary at the outset to consider whether the drug evidence was obtained in a manner that violated Ms. Nagle’s Charter rights. Here, Ms. Nagle’s s.8 right to be secure against unreasonable search and seizure was violated when Officer Coopman searched her purse for evidence beyond monetary items. The accused’s s.9 right not to be arbitrarily detained was breached when she was asked to step aside from the jet-way, and was questioned on topics beyond money compliance in a manner in which any reasonable person would expect that he or she had no choice but to answer those queries. And Ms. Nagle’s s.10(

a) and (

b) rights were not provided to her in a timely manner, as she was not informed of those rights at the time that she was originally detained by Officer Coopman. Overall, there were a number of Charter violations that occurred during the Border Services Officer’s interactions with Ms. Nagle.

I am satisfied that the discovery of the drug evidence was both temporally and causally connected to the above infringements, and it follows that the evidence was obtained as a consequence of those Charter breaches. [ 138 ] In considering the seriousness of the Charter -infringing conduct, I turn to para.133 of Grant for guidance, which states: “The police conduct here, while not in conformity with the Charter , was not abusive. There was no suggestion that Mr. Grant was the target of racial profiling or other discriminatory police practices.

The officers went too far in detaining the accused and asking him questions. However, the point at which an encounter becomes a detention is not always clear...Though we have concluded that the police w

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