Border search violated accused smuggler's rights: judge

[cjcrew022000]

Border search violated accused smuggler's rights: judge
Prosecutors appeal ruling that excludes 50 kg of seized cocaine from evidence
Catherine Rolfsen, Vancouver Sun
Published: Monday, July 16, 2007
In a ruling that cuts to the heart of how Canadian border guards do their jobs, a Provincial Court judge has ruled that the rights of a man charged with smuggling 50 kilograms of cocaine into the country were violated when he was searched at the border.

Justice Ellen Gordon ruled Friday that border officers -- who routinely question travellers and search their vehicles -- violated three sections of the Canadian Charter of Rights and Freedoms when they interrogated Ajitpal Singh Sekhon and dismantled the truck he was driving without a search warrant.

The ruling means the drugs seized must be excluded from the evidence against Sekhon.


Federal prosecutors have already filed an appeal.

According to Gordon's reasons for judgment, Sekhon, a Canadian citizen, tried to enter Canada via the Aldergrove border crossing on Jan. 25, 2005.

The border guard decided Sekhon was suspiciously tense and sent him to be questioned in the customs office, where he was locked inside while another inspector searched the truck.

With the help of a drug-sniffing dog, the ruling says, guards found a false compartment below the truck bed, at which point Sekhon was informed that he would be detained and that he had the right to legal counsel.

However, Gordon concluded that Sekhon had been detained from the moment he was locked inside the office, violating sections 9 and 10 of the Charter, which prohibit arbitrary detention and guarantee the right to a lawyer.

Gordon's judgment says inspectors eventually dismantled the vehicle to find 50 bricks of cocaine.

But the most important part of the ruling is Gordon's conclusion that guards violated section 8 of the Charter -- freedom from unreasonable search or seizure -- since they never applied for a search warrant.

The Crown lawyer pointed out that the Customs Act routinely allows such searches without a warrant based on reasonable grounds for suspicion.

The two border inspectors involved said they had never applied for -- or even conceived of applying for -- a search warrant in their careers.

But the judge wrote that officers followed a "lucky hunch," not reasonable suspicions, in launching their search.

But she said the key to the ruling was that the customs act includes provisions for a search warrant, and there was no reason they couldn't have applied for one.

"In such circumstances it was incumbent upon the investigators to seek the judicial authorization of a search warrant. They did not," Gordon wrote.

Sekhar's lawyer Lawrence Myers said the ruling is ground-breaking. "It's the first decision that I'm aware of that defines individual rights in conjunction with the Customs Act since 9/11," Myers said.

If Gordon's decision is upheld by a senior court, it could serve as a precedent for how border searches are carried out. Myers said he doesn't think it's an unreasonable impediment to require border guards to obtain a search warrant before searching a vehicle.

http://www.canada.com/vancouversun/n...35423c&k=56804

[sparty]

When I first saw the title to this thread I thought the ruling came out of the Ninth Circuit. It's nice to see we don't have a monopoly on idiot judges.

[Big Sexy]

BIG believes that here in the U.S., the legality of border searches are pretty well established. Obviously not in Canada.

[sparty]

BIG believes that here in the U.S., the legality of border searches are pretty well established. Obviously not in Canada.

One of the problems we have on this side of the border is CBP guidelines can be more restrictive than what the law allows. And then we have to deal with the supervisors . . .

[North Patrol]

So she is saying that the canine alert was a "hunch"? :confused:

[Valor55]

If he was a white male named John Smith would his rights have been violated?

[CTUCop]

They need to keep that judge's home address on file and start showing up at her house a few hundred times a day to get warrants approved- 24/7/365.

[Big Sexy]

If he was a white mail named John Smith would his rights have been violated?

If he was a piece of white mail, with a name and committing a crime no less. That would indeed be newsworthy. ;)

[Cat_Doc]

If he was a piece of white mail, with a name and committing a crime no less. That would indeed be newsworthy. ;)

Big will definitely have to use caution regarding spelling errors in any of Big’s near future posts. ;)

[cjcrew022000]

Border searches are a fair tradeoff to ensure public safety
Vancouver Sun
Published: Tuesday, July 17, 2007
In a ruling that appears to defy common sense, a provincial court judge has found that border guards violated the constitutional rights of an alleged cocaine smuggler when they detained him and searched his truck.

The events that precipitated this judgment are elementary. A border guard found Ajitpal Singh Sekhon suspiciously tense as he tried to enter Canada at the Aldergrove crossing on Jan. 25, 2005, and sent him to the customs office for questioning. Meanwhile, inspectors, with the help of a drug-sniffing dog, found 50 bricks of cocaine in a false compartment below the truck bed. Sekhon was then told he'd be detained and that he had the right to legal counsel.

Judge Ellen Gordon ruled last Friday that border guards violated three sections of the Canadian Charter of Rights and Freedoms -- Section 9, which prohibits arbitrary detention; Section 10, which guarantees the right to legal counsel; and Section 8, which covers freedom from unreasonable search or seizure -- the latter breach the result of not applying for a search warrant.


Font: ****The two border guards caught up in this nonsense testified that they had never applied for a search warrant; it had not occurred to them to do so in their entire careers. After all, searching vehicles at border crossings is routine and the Customs Act gives border officers wide discretion and broad powers under its exigent circumstances clause to search and seize without a warrant.

It isn't practical -- it's preposterous -- to require border guards to apply for a search warrant every time they inspect a vehicle entering Canada. Federal prosecutors have already appealed Gordon's decision.

But get this; the same judge ruled last October that RCMP drug squad officers violated the Charter by faxing a justice of the peace to get search warrants. She argued that the Criminal Code requires police officers to appear in front of a judge to defend their requests. By this logic, border guards would have to present themselves before the court for every vehicle inspection.

In the drug case last year, Gordon acquitted the accused marijuana grower who police had charged after seizing his 649 pot plants. A similar outcome is likely in this latest case since her ruling on Friday means the cocaine seized at the border can't be used as evidence.

Gordon has handed down some other interesting rulings since she was appointed to the bench in May 2005. She sentenced to two years in jail a woman who, with a blood-alcohol level twice the legal limit, drove the wrong way up an exit ramp onto a divided highway and slammed her Toyota head-on into a BMW driven by an innocent 23-year-old motorist, killing him instantly. Other drivers were forced to swerve to avoid a similar fate as she careened down Highway 1. Gordon delayed sentencing for five months so the alcoholic driver wouldn't have to spend Christmas in jail. An appeals court overturned Gordon's sentence and doubled the jail time, adding that Gordon's ruling "should have emphasized the need to denounce drinking and driving."

She also acquitted another drunk driver who was stopped by a border guard at the Boundary Bay crossing in 2004. The man refused to provide a breath sample and was later charged with causing a disturbance for trying to kick out the windows of a police cruiser. The guard said the man was unsteady on his feet, smelled of alcohol, was rude and belligerent, and threatened to sue the guards who detained him.

Gordon ruled that the border guard violated the drunk driver's rights when he asked him to step out of the car and open the trunk. "There was no basis for an inspection of the trunk," she wrote in her acquittal ruling. "The guard lied to the court when he stated that he wanted to inspect the trunk. It is clear he wanted to see if the odour of liquor that he detected emanated from Gorman and not from the car."

In another decision, Gordon sentenced a teenager who attacked a man with a knife, inflicting wounds to his arm and torso that required two operations and eight days in hospital, to one-year's probation and 50 hours of community service. The knife-wielding teen, Gordon said, "has suffered so much stress over this matter that he has developed ulcers."


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Font: ****Gordon also gave an absolute discharge to June Matheson, who killed a stand of trees in Stanley Park so she could get a better view of English Bay from her condominium. "The public has denounced her conduct much more than the court could," Gordon explained.

If Gordon's ruling on the cocaine seizure stands, it makes a mockery of our border defences. If the Charter prevents border officers from detaining people and searching vehicles in the absence of a warrant, they have no practical means of keeping drugs, weapons and other contraband out of the country. Their only option will be to turn a suspect vehicle around and send it back to the United States where offenders will find the welcome even less hospitable.

Travellers are not forced to cross borders. When they choose to do so, they waive certain rights, among them freedom from search and seizure. It is a necessary restriction on our freedom to ensure public safety. Taking away the power of our law enforcement authorities to protect us puts everyone in jeopardy. That is not the intent of the Charter.


http://www.canada.com/vancouversun/n...eadfa12c8b&p=2

[Norm357]

Why did they need a warrant if they got a positive sniff by the dog?

Wouldn't that be PC?

[Cat_Doc]

But get this; the same judge ruled last October that RCMP drug squad officers violated the Charter by faxing a justice of the peace to get search warrants. She argued that the Criminal Code requires police officers to appear in front of a judge to defend their requests. By this logic, border guards would have to present themselves before the court for every vehicle inspection.

Waste of time and resource management. We fax or use telephonic search warrants on a regular basis.

[Big Sexy]

Why did they need a warrant if they got a positive sniff by the dog?

Wouldn't that be PC?

Remember, though the U.S. & Canada are similar, there still are variations between the two, the law being the least of those differences. Not saying the Canadiens don't use the same RS and PC that we here in the states do, but not saying they do.

[Big Sexy]

Big will definitely have to use caution regarding spelling errors in any of Big’s near future posts. ;)

Don't be hating. :D

[Cat_Doc]

Don't be hating. :D

May I borrow that line once you see the USMC vs Navy thread? :D:D