R. v. Tofangchi, 2021 BCPC 247

Citation: R. v. Tofangchi 2021 BCPC 247 Date: 20210531 File No: 63781-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HIRBOD TOFANGCHI RULING ON VOIR DIRE OF THE HONOURABLE JUDGE N. ADAMS Counsel for the Crown: D. Clements Counsel for the Defendant: H. Patey Place of Hearing: Richmond , B.C. Date of Hearing: November 6-7, 2020, January 4, 2021 Date of Judgment: May 31, 2021 A Corrigendum was released by the Court on October 20, 2021. The corrections have been made to the text and the Corrigendum is appended to this document.

[1] On May 31, 2021, I ruled that the accused’s s. 7, s. 8 and s. 10

a) and s. 10

b) rights under the Canadian Charter of Rights andFreedoms (“the Charter”) had been breached and the evidence obtained as a result of those breaches was excluded under s. 24(2) of theCharter, with reasons to follow. These are my reasons for judgment. Introduction [2] On March 8, 2019, Hirbod Tofangchi was stopped by Canadian Border Service Agency (CBSA) officers at the VancouverInternational Airport (YVR), in Richmond, BC while waiting to board a flight to Paris. [3] Mr. Tofangchi was in possession of unreported cash above the $10,000 CAD limit.

Border Service officers questioned him, firstin the jet way and then in a secondary location at YVR, over a period of two hours, twenty minutes. During a currency search of hischecked luggage, almost mid-way through the examination, a bottle containing oxycodone was found. [4] Mr. Tofangchi was arrested, provided his Charter rights for exporting a controlled substance, and given access to counsel. TheRCMP were called. The questioning by border service officers continued for another hour after his arrest.

The Trial Process [5] On September 6, 2019 the accused was charged with unlawfully possessing a controlled substance, to wit, oxycodone, contraryto s. 4(1) of the Controlled Drugs and Substances Act (CDSA). [6] The matter came on for trial on November 6, 2020.

The Crown, seeking to tender statements made by the accused to the borderservice officers relating to the care and control of the oxycodone, requested a voir dire to prove the voluntariness of those statementsbeyond reasonable doubt. [7] The accused requested a voir dire to challenge the search of the pill bottle and to establish that he had been constitutionallydetained during the examination, and denied his s. 7 and s. 10

a) and 10

b) Charter rights during that detention. [8] After a contested preliminary application, I ruled that the accused’s constitutional challenges met the threshold established in R.v.

Vukelich, (BC CA), [1996] 108 C.C.C. (3d) 193 (BCCA) and could proceed. [9] Evidence was lead in an omnibus, blended voir dire dealing with the voluntariness of the statements and the Charter challenges.Officers Neville and Lal testified for the Crown; the accused did not call any evidence. [10] At the conclusion of the voir dire, Crown abandoned its attempt to prove the voluntariness of the accused’s unrecordedstatements beyond reasonable doubt or to tender any part of the accused’s statements in its case.

Positions of the Parties [11] The Crown submitted that the search of the luggage and the questioning by the border service officers, both before and after thearrest for drugs, were part of routine airport screening procedures for travellers crossing international borders. The accused was neverconstitutionally detained and accordingly, there were no corresponding breaches under the Charter. However, if any breaches occurred,the Crown submitted the evidence should not be excluded under s. 24(2) of the Charter, following the framework for analysis set out inR. v.

Grant, 2009 SCC 32 , [2009] 2 SCR 353. [12] The accused submitted that the examination by the officers went well beyond routine screening and became a focused inquiryregarding his criminal activity. The nature of the questioning and the actions of the officers resulted in his detention from an early stage.As the Crown had failed to prove that the search of the pill bottle was authorized by law and given the cumulative impact of thebreaches, the accused submitted that a Grant analysis favoured exclusion.

The Evidence [13] On March 8, 2019 Canadian Border Officer Margaret Neville, was working as a uniformed officer in the International Departuresarea of YVR administering the Proceeds of Crime (Money Laundering), and Terrorist Financing Act (“PCMLTFA”) and the CustomsAct. [14] Officer Neville had been with CBSA since 2013. That day she was the acting supervisor of the roving Specialized OutboundEnforcement Team. The team was conducting routine currency verifications for passengers boarding an Air France flight.

Officers wererandomly questioning departing travellers, asking to see passports and boarding passes, checking the accuracy of currency reports, andexamining passengers for unreported currency. [15] The accused, Hirbod Tofangchi, was traveling with Dennis Nguyen and Steven Macdonald. These three men were the finaltravellers to enter the jetway to board the Air France flight. Officer Darren Lal approached Mr. Nguyen, Officer Tse approached Mr.Macdonald and Officer Neville approached Mr. Tofangchi. [16] As Officer Neville introduced herself, Mr.

Tofangchi opened his purse and told her he “knew the drill”, “she could go ahead andcount the money”, he “did not have ten”. While producing a wad of Euros from his purse and Canadian dollars from his wallet, he statedhe knew the rule about reporting. Officer Neville immediately selected him for examination. The time was 13:23. [17] Officer Neville asked “routine” questions about travel plans, ticketing, routing, compliance with reporting rules, occupation,income, residence, and the currency in his possession. Mr. Tofangchi replied that he was on vacation to Paris, Barcelona and Rome, returning on March 24th.

He had purchased tickets a month earlier at a Flight Centre. He owned a commercial kitchen equipmentbusiness in Saskatchewan and had declared more than $ 100,000 income the previous year. While he lived in Saskatoon, he spent mostof his time in Vancouver. He had withdrawn the funds in his possession from a bank a few days earlier and exchanged $ 7,000 CAD at a

currency exchange. He initially agreed to show her the banking transactions, then declined, advising he could not access the business account on his phone. [ 18 ] Nearby, Officer Lal counted Mr. Nguyen’s currency and stated that Mr. Nguyen had $ 9,965.82 CAD in his possession. On hearing this, Mr. Tofangchi stated, “If there’s one thing we know, it’s how to count money”. This comment raised Officer Neville’s concern about the legitimacy of the currency in the accused’s possession. [ 19 ] Officer Lal asked both Mr. Nguyen and Mr. Toganchi “who they were associated to”, referring to their criminal associates. Mr.

Tofangchi replied, “We don’t have to tell you that”. This response raised a concern for Officer Neville that the accused may have been, or may currently be, involved with a criminal organization. [ 20 ] Officer Neville counted Mr. Tofangchi’s money. He had $ 300 CAD and $ 7,100 EUR – the equivalent of $ 11,009.64 CAD - in his possession. His travelling companions were also carrying large amounts of cash near or just under the threshold.

These amounts of unreported currency amongst the three travellers further raised Officer Neville’s concerns. [ 21 ] Officer Neville asked the accused about any prior CBSA examinations, customs infractions, arrests, charges, convictions and prior police involvement. She asked these questions given the amount of money in his possession and believing that his cavalier attitude towards law enforcement may reflect a criminal past. She explained that past criminal involvement could point to recent criminal involvement. [ 22 ] In response, Mr.

Tofangchi advised her of an arrest ten years earlier on possession for the purposes of trafficking (PPT) charges and that he had moved to Alberta to distance himself from criminality. Officer Neville queried him about any other convictions, which he denied. She was adamant that this was not an attempt to investigate the accused’s involvement in crime, it was merely “an invitation to allow him to expand on his answer” if he chose. “Often we get partial answers, so I was giving him an opportunity to give a full picture”. [ 23 ] After being questioned about his criminal record, Mr.

Tofangchi asked if he could call a lawyer. Officer Neville denied his request explaining that, as he was not detained, he did not have a right to contact counsel. She was performing a customs examination. He would have to wait until the completion of that to contact counsel. [ 24 ] At the end of questioning in the jetway, Officer Neville believed that Mr. Tofangchi may have current involvement in the drug trade.

She based this belief on his admitted history of drug trafficking, the large amount of cash in his possession, his odd behaviour in pulling out loose money to count, his cavalier attitude toward officers, his lack of a legitimate explanation for the funds, and contradictions in his responses. [ 25 ] Officer Neville contacted her supervisor to advise that she had Mr. Tofangchi in detention and was off-loading him from his flight which was about to depart.

She was re-locating the currency verification examination, as allowed pursuant to s.16 of the PCMLTFA with the intention of compiling grounds that the money was the proceeds of crime. [ 26 ] Walking to the elevator en route to secondary examination, Mr. Tofangchi asked her if the examination would go quicker if he didn’t answer the questions.

Officer Neville told him she could not force him to provide answers but she was going to ask all her questions to find indicators to establish grounds that the currency was the proceeds of crime, and to give him a full opportunity to demonstrate that the non-reported currency was from a legitimate source. He would need to demonstrate to her that the funds were legitimate, as by that time she believed they were not. She told him that even if he refused to answer, the examination would continue.

While a traveller can refuse to answer questions, they cannot refuse to attend secondary. [ 27 ] He asked, “Can’t you just seize my money?”. [ 28 ] While walking to the elevator, Officer Neville continued the examination, asking him about the location, amount and number of currency exchanges. Mr. Tofangchi asked if he could answer once they arrived downstairs. She asked him “if he needed time to make up a story”. [ 29 ] While approaching the elevator, Mr. Tofangchi again offered to forfeit the money and come back later with his lawyer to deal with it. [ 30 ] While waiting at the elevator, Mr.

Tofangchi asked if he could call a lawyer. Officer Neville denied his request for a second time. She explained to him that he was being examined under the PCMLTFA which was a civil act so his Charter rights were not invoked and he could not call his lawyer. This second request to call counsel was only disclosed in cross-examination.

It was not found in her notes. [ 31 ] On arrival at secondary, about forty minutes after the examination had begun, Officer Neville returned to questions about the kitchen business: the earnings in the previous year; annual and monthly gross and net income; business expenses; locations and telephone numbers in Saskatchewan and BC; when it was purchased; how it was financed; business investments; investment income; business partners; company assets; the number and names of his employees. On learning Mr.

Tofangchi was part owner of a hair salon in Port Coquitlam, the same questions were asked about that business. [ 32 ] Officer Neville conducted open source checks of both businesses on Google with no results. This confirmed to her he was untruthful when he claimed the funds in his possession came from his business. [ 33 ] Officer Neville asked for details of all other sources of income, bank accounts, credit cards, credit limits, credit applications, purpose of travel, and the ticket purchase.

She asked for details about properties, owned or rented, roommates, utility costs, business travel expenses, hotel use, business loans, capital investments, profit splitting, rental cars, where his mother and sister lived, and what work they did. He advised he held, together with his sister, just under $ 30,000 in cryptocurrency. He was interested in a legal cannabis investment and had tickets to attend the Spannibis event in Barcelona. Throughout, she pointed out to him the inconsistencies in his responses.

[ 34 ] Earlier, Officer Neville had asked Officer Lal to obtain Mr. Tofangchi’s criminal indices and to retrieve his checked luggage from carousel 35. While she could not remember when she received the results of the criminal record check, I was satisfied by Officer Lal’s subsequent evidence that she received these indices upon her arrival at secondary. The criminal record showed a more recent PPT conviction in 2016. The checked luggage contained a BQ Aquaris phone. [ 35 ] Earlier, Officer Neville had asked Officer Tse to conduct an ion scan of Mr. Tofangchi’s belongings.

She could not recall when Officer Tse advised that the scan tested positive for cocaine but she inserted this new information into her examination. [ 36 ] Officer Neville asked Mr. Tofangchi about his recent cocaine use, his unreported 2016 conviction, the names of his drug trafficking associates and the name of his drug supplier. As the BQ Aquaris phone was associated with criminal organizations due to its encryption capabilities, she asked why he had it and who gave it to him. He refused to provide a name.

She asked for the password to which he responded “does it look like my first day”. [ 37 ] Officer Lal was in secondary still searching Mr. Tofanghi’s checked luggage. He testified that it was not a random search. He was searching only for currency as authorized pursuant to s. 16 of the PCMLTFA. [ 38 ] At 14:14 hours he found a clear plastic bag containing a pill bottle labelled oxycodone. It did not appear to have a doctor’s prescription label. The bottle had some weight to it. He shook it and sounded like it contained pills, not currency. Officer Neville and Mr.

Tofangchi were standing opposite Officer Lal at the counter at this time. [ 39 ] Officer Lal asked Mr. Tofangchi if he had a prescription for the oxycodone. The officer testified that there were only two answers to that question – yes or no. If Mr. Tofangchi answered no, it would implicate him in illegal possession while crossing an international boundary. Knowing the accused may incriminate himself, Officer Lal candidly admitted that he did not provide the accused with his Charter rights, or caution him before asking the question. Mr.

Tofangchi replied no; he did not have a prescription. [ 40 ] At 14:15 Officer Lal arrested him for exporting, handcuffed him and provided him with his Charter rights for that offence alone.

Officer Lal admitted that he did not provide Charter rights or warning for other offences under investigation as he was not aware that possessing proceeds of crime or being a member of a criminal organization were criminal offences until being advised of that in cross- examination at this trial. [ 41 ] Officer Lal readily agreed that when investigating money which appears to be derived from crime, conducting his duties under the PCMLTFA may require him to investigate a passenger’s involvement in crime.

Officer Lal’s easy concession on this point was in marked contrast to Officer Neville’s adamant refusal to appreciate there was any connection between these concepts. [ 42 ] At 14:18, Mr.Tofangchi placed a call to counsel. He completed the call at 14:26. At 14:27, Officer Neville continued her examination in secondary. [ 43 ] Officer Neville testified that during those twelve minutes she merely “pressed the pause button” on the examination. She testified that after his arrest for drug charges and while in custody awaiting police, Mr. Tofangchi was still not detained by her.

He was subject to a continuing “routine” examination and not entitled to any further Charter rights. At no time did she advise him he had the right to remain silent or warn him that anything he said may be used against him.

Notably, there was no recording of any part of her examination before or after his arrest in secondary, even though recording equipment was available. [ 44 ] While she had attempted to take comprehensive, contemporaneous notes during the examination, she agreed that much more was said by the accused than what was related to the court and some portions of the examination were out of sequence. [ 45 ] On re-commencing the interview, Officer Neville returned to more questions about the trip, the travel itinerary, how tickets and hotels were paid for, and by whom.

She noted that the accused’s answers did not square with those given on the same subjects by Mr. MacDonald to Officer Tse in the jetway and pointed out to him the discrepancies between their stories. [ 46 ] Officer Neville asked more questions about the origins of the money. He said some of the money had come from his mother. Some money came from an ICBC settlement. She asked for the details of the claim, the amount involved and what he did with that money. Some money had been used to buy gold. She asked about the buy and sell dates of the gold.

At some point, he admitted he only made half the income he had earlier reported. Again, Officer Neville pointed out to him the mounting discrepancies about the origins of the money as the examination continued. [ 47 ] Office Neville asked why he had lied about his criminal record. He apologized. She asked for the details of the 2009 and 2016 convictions. He provided them to her. She asked the name of the person who had supplied the drugs and to whom he sold drugs. He said he’d “rather die two times than tell her”. He was asked again to name his criminal associates.

He said “I’d rather put a gun in my mouth and pull the trigger, I’m not a rat and I’ll never say anything about the things I’ve done. “ [ 48 ] Mr. Tofangchi became physically stressed. Officer Neville told him to take a few breaths and offered him water. She told him that his first account of the money held the most weight. She reminded him he may have papers showing the banking withdrawals and asked if he was willing to show them to her. He said he would when he came back with his lawyer.

He told her that one of his traveling companions had asked him to keep some of his money as they entered the jetway so not to be over the threshold. She discredited that account and told him the amounts he provided her did not add up. [ 49 ] Mr. Tofangchi said he knew friends in gangs so he knows the rules. He had watched a friend die after being shot. Officer Neville asked if he had ever been shot and asked for the details of a stabbing that occurred during a knife fight at a house party. He provided details and showed her the healed injuries.

She asked about his oxycodone use, its connection to his injuries and about friends of his who had been killed or injured. [ 50 ] Officer Neville testified that all her questions were intended only to reveal information about the origin of the funds. None were questions about criminality.

[51] Officer Neville asked him about any debts he owed. At this point he became upset, swore at her and said she could just take hismoney, he didn’t care and he’d have his lawyer get it back. [52] Officer Neville concluded the interview at 15:42. She spent the next two hours preparing a report to her supervisor, setting out 23grounds for seizing the money as proceeds of crime at the highest level. Her report was submitted at 17:45. At 18:45 the funds wereseized and the related paperwork completed. At 19:15 the RCMP arrived and took over custody of Mr. Tofangchi on the exportationinvestigation.

At 19:42 the police released him on a PTA. [53] Seven hours after being selected for examination Mr.Tofangchi left YVR with all his belongings, less the cash and the pill bottle,happy and with a smile on his face according to Officer Neville. The Law [54] In R. v. Therens, (SCC), [1985] 1 S.C.R. 613 the Supreme Court of Canada determined that not allcommunications with police officers and other state authorities will amount to a detention.

There is a detention within s. 10 of theCharter when an agent of the state assumes control over the movement of a person by demand or direction which may have significantlegal consequences and which prevents or impedes access to counsel. [55] In R. v. Simmons, (SCC), [1988] 2 S.C.R. 495 the SCC dealt with the issue of a passenger arriving from Jamaica,without proper identification and a visible bulge around her abdomen, who was strip searched during secondary inspection at TorontoInternational Airport without being advised of her s. 10

a) and 10

b) Charter rights. Dickson, CJC, writing for the majority, describedthree distinct types of border searches. The first starts with routine questioning at a port of entry, accompanied sometimes by a search ofbaggage and a frisk of outer clothing, to which no stigma is attached and no constitutional issues are raised. That is followed byincreasingly more invasive strip or skin searches and ends with body cavity searches, both of which will usually result in deprivation ofliberty and constitute a detention. [56] Dickson, CJC stated: ….

I have little doubt that routine questioning by customs officials at the border or routine luggage searches conducted on a random basisdo not constitute detention for the purposes of s 10. There is no doubt, however, that when a person is taken out of the normal course andforced to submit to a strip search that person is detained within the meaning of s 10. (Page 521 , emphasis added) [57] R. v. Sekhon, 2009 BCCA 187 dealt with the screening process of an accused and the search of his truck at the Aldergrove bordercrossing.

Custom officials discovered a hidden vehicle compartment containing 50 kilograms of cocaine. Ryan, JA writing for the court,stated that travellers can expect to encounter a screening process when they cross the border. That process will include the requirementthat documentation be produced and may involve searches. Throughout this process, the traveller will not be free to leave. As long as theactivities remain part of the normal course of the screening process, it cannot be said that the person, while in the screening process, isdetained for the purposes of the Charter. (para 74) [58] In R. v.

Darlington 2011 ONSC 2776 Mr Justice Hill provided a useful

summary of border crossing jurisprudence. He noted thatconstitutional interests become engaged where the generality and routineness of the screening exercise gives way to to more specific andintrusive measure. This may occur when an individual becomes the target of a focused criminal investigation in circumstances wherethere exists a sufficiently strong particularized suspicion of the contravention of the law, or where there is an interrogation relating to thepossibility of custom violations. [59] In R. v.

Nagle, 2012 BCCA 373 the court confirmed that the border crossing context applies not only to incoming travellers butalso departing ones as well. At trial, Officer Coopman testified that while conducting random screening in the jetway, officers are trainedto engage in conversations not only about funds but also about criminality. He had initially questioned Ms. Nagle for about five minutes,touching on the currency report, ticketing and travel. Her answers to his questions made him suspicious. He searched her purse andfound contact information for a person believed to be involved in the drug trade.

Officer Coopman detained her and advised her of herCharter rights. She was removed from the flight, her checked luggage was off-loaded and she was brought to secondary for furtherexamination. When her luggage was searched, a quantity of methamphetamine was found and she was arrested.

The trial judge found shehad been detained and should have been provided Charter rights before the purse was searched. [60] The BCCA overturned the trial judge’s decision, stating: 34 In the context of border crossings, routine questioning, the search of baggage and pat-down searches are standard practices,applicable to every ordinary traveller, and is expected and tolerated by anyone wishing to travel internationally. This conduct by borderagents does not engage constitutional rights, including detention, the right to counsel or a reasonable expectation of privacy.

Again, asaptly said by Doherty J.A. in Jones at para. 37: [37] The conclusion, firmly rooted in the jurisprudence, that routine questioning and inspection of luggage at the border does not resultin a detention, give rise to any right to counsel, or interfere with a traveller's reasonable expectation of privacy compels the conclusionthat personal autonomy and privacy - the values animating the protection against self-incrimination - were not implicated when theappellant was compelled to answer routine questions about his residence and his marital and employment status.

The exclusion fromevidence at his subsequent trial of these statements, therefore, could not vindicate or protect those values. Exclusion of the answers,however, could diminish the state's ability to effectively enforce its legitimate border interests while at the same time impairing thesearch for the truth in the criminal proceeding by excluding relevant evidence.

The balancing of competing principles of fundamentaljustice does not favour extending the principle against self-incrimination to statements made in the circumstances in which the appellantmade his statements to the Customs authorities. 35 A person's liberty and freedom of movement will often be restricted during the period of routine inquiries, sometimes for lengthyperiods of time. If the inquiries do not go beyond the normal screening process, then the person will not be said to be detained…..

[ 61 ] The BCCA confirmed that the Customs Act permitted the further search of Ms. Nagle after she had been detained and that s. 16 of the PCMLTFA allowed a search for currency. The Court concluded that while people may be held up at the border crossing, sometimes for lengthy periods of time, and subject to the direction of authorities, not all persons are detained. Detention only occurs when the authorities go beyond permissible routine inquiry. Until Officer Coopman suspected drug trafficking, the search of the accused’s purse was routine screening and did not engage Charter protections. [ 62 ] In R. v.

Gilmore, 2016 ONSC 7602 the court concluded that questions of the accused asking her to explain a second positive ion scan were not routine and violated the passenger’s Charter rights. The court accepted that the officer did not subjectively believe the accused was detained or that she had to be provided Charter warnings but held that, objectively, the questioning went beyond routine inspection and questioning. Analysis Was Mr. Tofangchi Constitutionally Detained by Officer Neville During the Screening Examination? [ 63 ] Each case turns on its facts.

Despite Officer Neville’s testimony that the accused was never detained during the course of the examination, I have come to quite the opposite conclusion. I have found that the officer’s examination went well beyond routine screening and the accused was taken out of the normal course early on. [ 64 ] The point in time when routine questioning turns into a constitutional detention can be difficult to determine even for well trained officers and for courts. The problem in this case, however, was more serious than that.

Officer Neville failed to appreciate that a detention may occur whether or not she declared it. [ 65 ] Officer Neville testified about her usual practice. When currency is under the reporting threshold of $ 10,000, she stops the examination and lets the traveller board. When there is unreported currency above the threshold, she tries to verify the origins of the money. If the passenger cannot provide a legitimate source for the money, she concludes it is illegitimate.

She looks for indicators that the currency is connected to proceeds of crime, organized crime, money laundering or, less often, terrorist financing. When she reaches the threshold of reasonable grounds to suspect the money is proceeds of crime, she stops her investigation. [ 66 ] She emphasized that she does not and would not investigate the passenger’s criminality or connection to organized crime. She is only investigating the origins of the funds, in particular, if the money in the passenger’s possession is connected to proceeds of crime or organized crime.

She was unable to articulate how she would investigate proceeds of crime or a connection to organized crime without embarking on an investigation into criminality. She suggested that the intent of her questions was the distinguishing feature. If she intended only to ask about the currency, that protected the passenger from any legal jeopardy. [ 67 ] In my view, Mr.

Tofangchi was detained in a constitutional sense when Officer Neville formed a strong, particularized suspicion that the funds were the proceeds of crime, likely from drug trafficking, and she launched into an objectively focused inquiry in that regard. This occurred concurrently with Officer Neville’s decision to remove him from the flight, relocate the examination, off-load his luggage, report his detention to her supervisor, and order an ion scan of his belongings and his criminal indices. [ 68 ] Mr.

Tofangchi was detained by the time Officer Neville escorted him from the jetway and steered him towards secondary. His detention was crystallized by the time he was in the elevator. An exact line is difficult to draw given the length of the examination, the lack of any recording and the distinct possibility, from the officer’s own evidence, that the sequence and completeness of the examination is not fully before the court.

Nonetheless, I am satisfied that the accused was objectively detained by Officer Neville well prior to his arrest by Officer Lal. [ 69 ] Within the first 40 minutes of her examination, Officer Neville suspected the accused of criminal activity, including drug trafficking and possessing proceeds of crime. Her suspicions were based on the large amount of unreported money in his possession for which he could not provide a legitimate source. That his two travelling companions had large amounts of currency just under the reporting limit. That he claimed he and his friends knew how to count money.

That he had made inconsistent statements about the origin of the funds and about his businesses, neither of which had any on-line presence. That he had been unwilling to show her banking records on his phone. That he had a history of drug trafficking. In addition to these concerns, her views about his evasive, untruthful, loud, cavalier behaviour and his apparent lack of concern about law enforcement indicated to her not only a past, but a continuing, involvement in a criminal lifestyle. [ 70 ] While still in the jetway, the officer had pegged Mr.

Tofangchi as suspicious and possibly involved in drug trafficking and possession of proceeds of crime. She quickly set out to compile reasonable grounds to seize the money as proceeds of crime. The steps she took and the lines of investigation she pursued in order to establish the necessary grounds took this out of a routine inquiry. [ 71 ] Officer Neville testified that her practice is to keep an open mind until the end of an examination. That meant she did not consider or weigh the information obtained from Mr. Tofangchi over the course of the two hour plus examination as it was received.

She testified that no answer increased or decreased the possibility that the funds were the proceeds of crimes; each answer was independent in and of itself. She was focused on completing a fulsome inquiry into the funds and pursuing any avenues that opened up in that regard. She did not consider the ramifications of any of the answers she received until she finished the examination and prepared her report. [ 72 ] Officer Neville was seriously challenged in cross-examination about this practice of suspending her analysis of what information she had received until the end of the examination.

Her explanation was, in my view, illogical. It was akin to putting on blinders. It made little sense but did possibly explain how she would fail to appreciate the issue of whether a passenger was objectively detained. [ 73 ] Officer Neville suggested it was possible Mr. Tofangchi could have eventually satisfied her that there was a legitimate source of funds if she had continued the examination longer. I found this suggestion implausible. Given the number of inconsistences and contradictions she noted in his responses as they went along, prolonging the examination was never going to be for his benefit.

When Officer Neville asked if he needed time to make up a story en route to secondary, she telegraphed she did not believe him. Furthermore, Mr. Tofangchi had shown no interest in trying to convince her that there was a legitimate source of funds. To the contrary, not long into

the examination he asked her to seize the funds and let his lawyer deal with it later. He repeated this request twice more. [ 74 ] Officer Neville opined that a person can only be considered detained when she decides subjectively to detain them. As she had not done that, Mr. Tofangchi was never detained during the entirety of the examination and therefore not entitled to Charter protection or any warning about the right to silence. She expressed this same view to the accused while at the elevator on the way to secondary. [ 75 ] Officer Neville went further.

She opined that a person is never constitutionally detained during the course of any screening examination and accordingly, the provision of Charter rights will never be necessary. She did not limit that to a routine permissible inquiry, although she may have intended to. She professed that she is entitled to finish her examination to establish reasonable grounds without invoking the Charter . Her view was founded, in part, on the incorrect belief that a screening examination cannot continue after Charter rights are provided. [ 76 ] This creates a real conundrum.

In her view, Charter rights are only offered after the examination has ended at a time when they would be of little use to a passenger. [ 77 ] It was note-worthy that in her six years as a CBSA officer she had “never heard of anyone being detained during an examination” and consequently had “never heard of anyone ever being provided Charter rights or warnings” during an examination.

She was not familiar with any case, in bound or out bound, where counsel had been called, or where an examination had been paused to contact counsel. [ 78 ] Officer Neville’s views about when Charter rights arise and how they are implemented were concerning. She testified that when Mr. Tofangchi asked for a second time to contact counsel, she told him he could not. In cross-examination, she was asked if she had the discretion to let a passenger call counsel if they wanted to, or if there was a rule against it. She said there was no rule. She then said she would have to confirm if there was a rule.

After pondering the matter further she answered: “There was nothing prohibiting us from allowing a person to contact counsel”. “It was the middle of an investigation, so the person is not detained”. “It is a civil act”. “It would slow us down and not allow us to investigate”. “We can’t delay the airline.” [ 79 ] When asked how contacting counsel would interfere with, impede or hinder her ability to do her job, she said it would prolong the examination. After considering the matter further, Officer Neville reluctantly conceded that she “supposed” she would still be able to do everything she needed to do.

This idea appeared to come as a revelation to her and she conceded she was unsure how she would implement the call. [ 80 ] Officer Neville was rooted to the idea that allowing a passenger to contact counsel was a last resort. It was to be avoided whenever possible as it would hamper operations at the airport and the investigators. But her reluctance to allow or implement this Charter right was also based on another erroneous belief.

Officer Neville opined that she was prohibited from disclosing to the police any information gleaned from a passenger about his or her past crimes pursuant to s. 107 of the Privacy Act (sic). As it was not within her “jurisdiction” to tell police about past crimes she uncovered, she did not intend to provide police with this information. This appeared to alleviate any concern about passengers being questioned about past crimes. [ 81 ] Contrary to what she believed, s. 107 of the Customs Act does not prohibit disclosure. It allows officers in certain situations to inform police about criminal activity.

Indeed, Officer Neville used this

section to advise the RCMP of Mr. Tofangchi’s continuing criminal activity once they attended. [ 82 ] Office Neville testified that all the questions she asked of Mr. Tofangchi were part of a routine inquiry and her intent was only to canvass the issue of the origins of funds. Her screening examination flipped back and forth between detailed questions about finances and lifestyle and equally detailed questions about criminality.

The latter included questions about his 2009 and 2016 PPT convictions, including the identity of persons who supplied him drugs and to whom he sold them, the identity of his criminal associates, the identity of current drug suppliers, his personal cocaine and oxycodone use, and his association with violence. She asked him to explain lying to her about his criminal record. She asked him to explain the positive ion scan – an area of inquiry which in itself has resulted in an objective detention ( Gilmore supra ).

She remained oblivious at trial to any legal jeopardy created by her questions. [ 83 ] Many questions on their face were inherently about criminal activity and little else, no matter Officer Neville’s stated intention in asking them. Her usual practice may well include asking all these same questions when compiling grounds that money is the proceeds of crime. However, given my concern about her lack of understanding of what constitutes detention and her complete lack of experience with the Charter , I am not satisfied that her usual practice equates with a permissible routine inquiry.

Nor do I accept that her sole intention in asking many of the questions was only to nail down the origin of the funds. [ 84 ] I have difficulty accepting that the accused was never taken out of the normal course.

I do not accept, on Officer Neville’s evidence alone, without more, that removing a passenger from a flight as it departs, taking them to another area of the airport for a two hour plus examination, delving into the passenger’s complete criminal history, asking for the names of drug suppliers, examining past and present drug use, advising that Charter rights are not available as the PCMLTF A is civil legislation, denying requests to call counsel, and continuing an examination after an arrest for drugs, is routine, or within the normal course, at YVR or any other international airport in Canada. [ 85 ] Screening inquiries are dynamic and should be flexible.

An ebb and flow in the inquiry is to be expected. Curtailing an officer’s discretion is not necessarily desirable and may be counter- productive to what is asked of them under the PCMLTFA . These considerations may explain why Officer Neville put on blinders and initially plowed ahead. But only in part. They do no explain her steadfast determination to continue questioning the accused once the routine inquiry had passed well beyond that into a constitutional detention. [ 86 ] Officer Neville understood that a person who is detained must be provided their s. 7 , s. 10

a) and s. 10

b) Charter rights and warnings. She was alive to that issue. Even if she had forgotten, or had a momentary lapse of judgment, it was brought home to her by the accused on two occasions when he asked to call counsel. His question required her to give serious consideration to whether or not he was objectively detained and whether his constitutional rights had been engaged. It was apparent from her testimony and the ready

explanations given to the accused that she avoided doing that. [87] Office Neville’s reasons given to the accused for denying access to counsel were not those she provided to the court. Theunderlying rationale given in this hearing was inconvenience to the airline and the investigators. Notably, neither party would have beeninconvenienced in this case. When the accused first asked for counsel, he was still in the jetway but in short order he been taken from themanifest, and his luggage off-loaded. The flight departed.

Accessing counsel following arrest took minimal time compared to the time tocomplete the examination and write the report. [88] As the court stated in Nagle: [80] ….Circumstances will vary. Beyond concluding that the liberty interest and expectation of privacy of travellers is reduced at bordercrossings regardless whether they are arriving, in-transit or departing, the application of this proposition remains to be determined on acase-by-case basis. [81] Border crossing are not Charter-free zones. Border officials must be alive to the rights of travellers under Canadian law.

Whileborder officials have a right to make routine inquiries as part of the screening process, once border officials have “assumed control overthe movement of [a traveller] by a demand that had significant legal consequences” the person was detained and must be apprised of hisrights and afforded an opportunity to contact counsel. See R. v.

Jacoy [1988] 2 SCR 5488; (SCC), 45 CCC (3d) 46 at 53.At that point, constitutional rights are fully engaged. [89] With her suspicions alerted to a large amount of unreported currency possibly being the proceeds of crime, the officer undertooka focused examination which did not end until she had obtained reasonable grounds to seize the money.

The nature and extent of thequestions about criminal activity, the early refusals to accede to the accused’s requests to contact counsel, the failure to assess thetrajectory of the examination as it unfolded with complete disregard for the ramifications to the accused and the increasing control overthe accused as the examination continued took this out of a routine inquiry early on. Was the Search of the Pill Bottle Authorized by Law? [90] Officer Lal was straight forward and candid. He made reasonable and ready concessions during cross-examination and made afrank admission to the court.

He agreed that this was not a random search. It was authorized only under s.16 of the PCMLTFA whichallows a search for currency. [91] Officer Lal opened the bottle looking for pills, not currency. He went further and asked a question which he acknowledged wasdesigned to elicit an incriminating answer and which provided him with the grounds for arrest. He provided Charter rights and warningsimmediately afterwards but it was too little, too late. [92] In my view, s. 16 must be given strict construction as it authorizes a search without the necessity of grounds.

Taking that intoconsideration and on the evidence of Officer Lal, the Crown has failed to establish that the search of the pill bottle was authorized bylaw. I find in the circumstances that that the search was unreasonable and the accused’s s. 8 Charter right was violated. Should the Evidence be Excluded Under s. 24(2) of the Charter? [93] I am of the view that an analysis of the factors set out in R. v. Grant requires an exclusion of the evidence of the pills found in thepill bottle and Mr.

Tofangchi’s statement about the lack of prescription for those pills. [94] This case involved serious Charter infringing conduct prior to the pill bottle being searched. The accused had been objectivelyconstitutionally detained by Officer Neville before he arrived in secondary. She was unable to appreciate that as she incorrectly believedher subjective belief was paramount. [95] As a consequence of his detention. Mr Tofangchi was entitled to be provided his rights under s. 10

a) and 10

b) of the Charterand advised of his right to silence. Instead, the officer refused him these rights. [96] As a result, the accused’s Charter rights were violated in a blatant, wilful and prolonged manner by an officer who wasmisinformed or ignorant of her obligations. Too intent on completing the examination and establishing reasonable grounds for seizure,she disregarded the constitutional rights of the passenger. [97] Well before the luggage was searched, the accused had been constitutionally detained.

He was being investigated ostensibly itappeared for possession of the proceeds of crime, likely from drug trafficking. The accused should have been advised of his jeopardy,provided access to counsel and given a warning before finding himself standing across from Officer Lal holding the pill bottle. [98] Officer Lal knew he had no lawful authority to the open the bottle unless he was searching for currency. He did not blame anyonefor taking this step other that himself.

While his actions may have been momentary, inadvertent, done out of curiosity, or out ofexpediency, they reflected a continuation of the inquiry into the accused’s criminal activity. Officer Lal was no longer looking forcurrency – he was looking for drugs. But for the unlawful search, the pills would not have been seized. [99] The question asked by Officer Lal once the pill bottle was found showed a lack of forbearance on his part. He knew that even atthe time. But for his question being answered by the accused, the grounds for arrest may not have been established. [100] Mr.

Tofangchi’s Charter protected interests in being advised of the jeopardy he was facing, provided with access to counsel andwarned about the right to silence, were on the high end of the spectrum. [101] The court is charged with the responsibility of preserving public confidence in the rule of law and the administration of justice. Inmy view, considerable harm is done if the Courts condone such serious breaches in officers’ investigational activities.

[102] The court cannot send the message that these breaches can be overlooked. This is particularly true where the conduct was notinadvertent but appears to be a deliberate practice by one or more officers to avoid addressing whether a passenger has been detainedduring an examination, and to avoid providing passengers who have been detained the constitutional protections to which they areentitled. To admit the evidence in this case risks bringing the administration of justice into disrepute. [103] As a result of this ruling, the criminal charge will not be adjudicated on its merits.

Exclusion of the evidence will “gut” theCrown’s case. While regrettable, the offence of simple possession of 50 pills of oxycodone is not an extremely serious offence. [104] Nagle reminds us that while there is flexibility in the border crossing arena, they are not and cannot become Charter free zones.This is a message that must resonate. Conclusion [105] Breaches of the accused’s s. 7, s. 8 and s 10

a) and 10

b) Charter rights were committed when he was constitutionally detained inthe course of a lengthy screening examination under the PCMLTFA. The lead investigator officer failed to caution him about his right toremain silent, failed to advise him of his legal jeopardy and failed to advise him of his right to contact counsel before his arrest.

A secondofficer engaged in an unauthorised search for drugs in his luggage. [106] The evidence obtained as a result of those cumulative breaches, being 50 pills of oxycodone, and any statements regarding thosepills, is excluded pursuant to s. 24(2) of the Charter. ______________________________ The Honourable Judge N. Adams Provincial Court of British Columbia CORRIGENDUM – Released October 20, 2021 [1] This corrigendum to my Ruling on Voir Dire issued on May 31, 2021, is to incorporate the following changes: [2] At paragraph 8, the correct citation for R. v. Vukelich is: R. v.

Vukelich, (BC CA), [1996] 108 C.C.C. (3d) 193 (BCCA). [3] At paragraph 25, the first sentence is corrected to read as follows: Officer Neville contacted her supervisor to advise that she had Mr.

Tofangchi in detention and was off-loading him from his flight whichwas about to depart. [4] At paragraph 27, the end of the quotation “Can’t you just seize my money?” is corrected to include a question mark. [5] At paragraph 67, the second sentence is corrected to read as follows: This occurred concurrently with Officer Neville’s decision to remove him from the flight, . . . [6] At paragraph 75, the second sentence is corrected to read as follows: She did not limit that to a routine permissible inquiry, although she may have intended to. ______________________________ The Honourable Judge N.

Adams Provincial Court of British Columbia