Regina v. Collymore et al.*
[Indexed as: R. v. Collymore]
45 O.R. (3d) 713
[1999] O.J. No. 2759
Docket No. C24694
Court of Appeal for Ontario,
Brooke, Osborne and Goudge JJ.A
July 26, 1999**
*Application to Supreme Court of Canada for extension of time granted and leave to appeal dismissed September 28, 2000. (L’Heureux-Dub, Bastarache and LeBel JJ.) S.C.C. Bulletin, 2000, p. 1523.
**Note: Amended reasons for judgment released October 29, 1999.
Charter of Rights and Freedoms — Search and seizure — Cocaine sent to Canada in envelopes allegedly containing documents — Envelopes clearing Customs — Courier partially opening one envelope after unsuccessful attempt to deliver and discovering paste-like substance — Courier referring matter to Canada Customs — Customs employees opening envelopes
— Customs officers acting in accordance with constitutionally valid authority given to them by s. 99(1)(d) and (e) of Customs Act — Section 8 of Charter not infringed — Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 99(1) — Canadian Charter of Rights and Freedoms, s. 8.
The accused were charged with conspiracy to import cocaine, trafficking in cocaine and possession for the purpose of trafficking in cocaine. The Crown contended that the accused were part of an agreement with an associate in Trinidad to receive envelopes from Trinidad, which were represented to contain documents but which, in fact, contained cocaine. The envelopes were sent to fictitious addressees in Canada. The envelopes cleared Customs. A courier tried unsuccessfully to deliver them and partially opened one of the envelopes to ascertain if the “documents” inside contained a correct address. She became suspicious when she found something wrapped in carbon paper. The president of the courier company conducted his own inspection of the envelope and noticed that the contents felt like paste. He referred the matter to a Canada Customs Superintendent, who instructed him to return the undelivered envelopes to Customs. Customs employees, purportedly acting under the authority of s. 99(1) of the Customs Act, opened the envelopes and discovered cocaine.
The trial judge found that Customs Canada had no statutory right to examine any of the envelopes once they had cleared Customs and that the search, which was conducted without a warrant and without statutory authority, violated the right of the accused under s. 8 of the Canadian Charter of Rights and Freedoms to be secure against unreasonable search or seizure. He excluded the evidence of what was found in the envelopes under s. 24(2) of the Charter. The accused were acquitted. The Crown appealed.
Held, the appeal should be allowed.
Section 99(1)(d) of the Customs Act permits the examination of goods where the officer suspects on reasonable grounds that an error has been made in the tariff classification. Section 99(1)(e) permits the examination of goods where the officer suspects on reasonable grounds that the Act or regulations or any other Act or regulations administered or enforced by the officer have been or might be contravened in respect of such goods. Other paragraphs of s. 99(1) limit the right of Customs officers to examine goods “up to the time of release”. Such wording is conspicuously absent from s. 99(1)(d) and (e). Those paragraphs permit inspection after the goods have been released and before they have been delivered. The threshold of suspicion on reasonable grounds survives constitutional scrutiny. That threshold requirement was met in this case. The search was authorized by s. 99(1)(d) and (e) of the Customs Act and did not violate s. 8 of the Charter. R. v. Simmons, [1988] 2 S.C.R. 495, 67 O.R. (2d) 63, 30 O.A.C. 241, 55 D.L.R. (4th) 673, 89 N.R. 1, 38 C.R.R. 252, 45 C.C.C. (3d) 296, 18 C.E.R. 227, 66 C.R. (3d) 297, apld
Other cases referred to
Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 41 C.R. (3d) 97, 2 C.P.R. (3d) 1, 84 D.T.C. 6467, [1984] 6 W.W.R. 577 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigation Branch); R. v. Collins, [1987] 1 S.C.R. 265, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193; R. v. Jacques, [1996] 3 S.C.R. 312, 180 N.B.R. (2d) 161, 139 D.L.R. (4th) 223, 202 N.R. 49, 458 A.P.R. 161, 38 C.R.R. (2d) 189, 110 C.C.C. (3d) 1, 24 M.V.R. (3d) 1, 1 C.R. (5th) 229; R. v. McKay (1992), 134 A.R. 188, 5 Alta. L.R. (3d) 335, [1993] 3 W.W.R. 9 (Q.B.); R. v. Monney, [1999] 1 S.C.R. 652, 171 D.L.R. (4th) 1, 237 N.R. 157, 61 C.R.R. (2d) 244, 133 C.C.C. (3d) 129, 24 C.R. (5th) 97; R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, 113 N.R. 373, 1 C.B.R. (3d) 290, 58 C.C.C. (3d) 257, 79 C.R. (3d) 390; R. v. Stillman, [1997] 1 S.C.R. 607, 185 N.B.R. (2d) 1, 144 D.L.R. (4th) 193, 209 N.R. 81, 472 A.P.R. 1, 42 C.R.R. (2d) 189, 113 C.C.C. (3d) 321, 5
C.R. (5th) 1 Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 8, 24(2) Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109
Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), ss. 2 “officer”, 99(1), 159
Narcotic Control Act, R.S.C. 1985, c. N-1 — now Controlled Drugs and Substances Act, S.C. 1996, c. 19
Authorities referred to
Driedger on the Construction of Statutes, 3rd ed. (Markham, Ont.: Butterworths Canada Ltd., 1994), pp. 168-72
APPEAL by the Crown from acquittals on narcotics charges.
James W. Leising and Antoinette T. Issa, for the Crown, appellant.
Paul B. Slansky, for respondent, Lawrence Collymore. Leslie C. Pringle, for respondent, Maxine Nugent.
Anthony N. Robbins and Stephen R. Bernstein, for respondent, Kevin Gayle.
The judgment of the court was delivered by
OSBORNE J.A.: — The respondents were charged with conspiracy to import cocaine, trafficking in cocaine and possession for the purpose of trafficking in cocaine. On April 24, 1996 they were acquitted by the Honourable Mr. Justice Matlow, sitting without a jury. Their acquittal followed the trial judge’s ruling on a voir dire which generally concerned the admissibility of evidence (cocaine) seized by Canada Customs. The Crown has appealed.
Overview
The Crown contended that the respondents were part of an agreement with an associate in Trinidad to receive envelopes from Trinidad which were represented to contain documents, but in fact contained cocaine. The respondent Collymore provided fictitious names and addresses for the stated Canadian recipients of the envelopes.
The role of the respondents Gayle and Nugent was to receive, or pick up, the envelopes and give them to Collymore who was, in turn, to transfer them to a person who he referred to as Larry. None of Collymore, Gayle or Nugent claimed an ownership interest in the envelopes or their contents. Nor did they profess to know that the envelopes contained cocaine.
As it turned out, Canadian Customs cleared six 8-1/2 x 11-inch envelopes from Trinidad through Customs and a local courier attempted to deliver them to the names and addresses indicated on them. Since the names and addresses were fictitious, delivery presented a problem. Thus, an employee of the courier company, who was attempting to deliver one of the envelopes, opened the outside courier envelope to see if the inner envelope revealed a correct address. In doing so, the employee became suspicious and revealed her suspicions to her superior who, in short order, contacted Canada Customs. In the result, that envelope and five other similar envelopes were returned to Customs, where on the basis of information to which I will refer in more detail shortly, Customs opened the envelopes. All envelopes contained cocaine. In opening the envelopes, Customs’ employees purported to act under a statutory authority provided by s. 99(1) of the Customs Act,
R.S.C. 1985, c. 1 (2nd Supp.).
At the beginning of the trial, the respondents sought to exclude the evidence of the contents of the six envelopes that Customs opened. They contended that Customs had breached their constitutional right, found in s. 8 of the Charter, to be protected from unreasonable search and seizure. After a voir dire, the trial judge concluded that the respondents’ s. 8 Charter rights had been breached and that the admission of the evidence (cocaine) would bring the administration of justice into disrepute. Thus, he excluded the evidence. The Crown proffered no further evidence and the respondents were acquitted.
The agreed facts
The s. 8 voir dire proceeded on the basis of an agreed statement of facts and viva voce evidence which generally concerned the actions of the courier company and Canada Customs employees. The significant facts are set out below.
On March 14, 1994, six 8-1/2 x 11-inch envelopes from Trinidad were delivered by international courier to Canadian Customs at Pearson International Airport. The envelopes cleared Customs as “documents”. They were to be delivered to the addresses indicated on the envelopes by Elite Link International, an Oakville courier company.
On March 14, 1994, an Elite driver tried to deliver one of the envelopes. He was unsuccessful in delivering the envelope because the company listed on the air waybill was not at the address indicated on the package. Consequently, he returned the undelivered envelope to Elite’s business premises. [See Note 1 at end of document]
When the envelope was returned to Elite’s office, Caroline Haynes, an Elite employee, attempted to locate the addressee company. She was not able to find a listing for either the company or the name indicated on the envelope. She then partly opened the envelope in an attempt to find another address inside. She found no useful address related information. However, she noticed that the envelope’s inner contents were wrapped in sheets of carbon paper. This aroused her suspicions. In her evidence in-chief, she put it in this way:
Usually with shipments or a pouch, there’s an envelope inside, and in this case there was no envelope. It was just sheets of paper wrapped in carbon paper, and that’s when I called Hugo to come, because my suspicion was aroused when it was wrapped in carbon paper. . . . I had learned or heard from carbon paper, if something was wrapped in carbon paper, it would void an x-ray machine from seeing inside a parcel.
Ms. Haynes reported her findings to Hugo Kamerling, the President of Elite, who conducted his own inspection of the envelope. He noticed that the contents “felt like paste type of substance definitely not documents.” Mr. Kamerling’s suspicions were also aroused by the presence of the carbon paper. He said, “. . . anybody knows that something shipped in carbon paper is to hide the real nature of the package because it cannot be x- rayed.” [See Note 2 at end of document]
Because of his concerns about the contents of the envelope, Mr. Kamerling contacted Julian Harris, a Revenue Canada employee who was a Customs Superintendent at Pearson International Airport. Kamerling told Harris about the specific envelope and about other envelopes that were similarly suspicious in that they were also undeliverable. After he spoke briefly with Mr. Kamerling, Mr. Harris asked Mr. Kamerling to return the then undelivered envelopes to Customs.
Mr. Harris asked Mr. Kamerling to return the envelopes because:
— the envelopes were undeliverable;
— the first envelope contained carbon paper, not documents as advertised.
As a result of his conversation with Mr. Harris, Kamerling instructed his drivers to return all six suspicious envelopes to Customs. These envelopes were similar in appearance and all came from Trinidad via the same courier.
Within a short time these envelopes (including the envelope that was first opened by the courier) were returned to customs. In the end, six envelopes from Trinidad, all said to contain documents, were returned to Customs and opened. The inner contents of all six envelopes were wrapped in carbon paper and all six envelopes contained cocaine.
Mr. Harris testified that he thought he was authorized by the Customs Act to examine the envelopes after they had cleared Customs. In addition to the previously listed factors raising the suspicions of the courier company, he noted that the envelopes, said to contain documents, came into Canada duty and tax free. Thus, if the contents were other than documents a different duty/tax classification code might have to be applied and, depending on the classification of the contents, duty and taxes collected.
Once preliminary testing revealed that all the envelopes contained cocaine, [See Note 3 at end of document] the R.C.M.P. arranged a controlled delivery of the envelopes. On March 15, 1994, Maxine Nugent attended at the Elite courier premises. She told the constable that she was there to pick up an envelope for S. Protech, Media Supplies Ltd. The officer obtained an envelope with that address on it and asked Ms. Nugent to print and sign her name where indicated. She printed and signed the name Dianne Williams and left with an envelope addressed to Samuel Fullinton.
Mr. Gayle came to Elite’s office and asked for an envelope for Complete Software. The constable asked him if he was Mr. Correia. Mr. Gayle said yes. He was given the waybill and asked to sign and print his name on it. He printed and signed the name Carlos Carrara and took an envelope addressed to Carlose Correia.
After that, Mr. Collymore arrived at Elite’s office and asked for the envelope for Transdate Limited. He was shown a waybill and asked to print and sign his name on it. He printed the name Patrick Belgrave, scribbled the signature and took possession of that envelope.
The waybills did not identify any of the respondents as the intended recipients of the envelopes. There was no person able to be identified as Samuel Fullinton, Carlos Carreia or Patrick Belgrave, and Protech Media Supplies Limited, Complete Software and Transdate Limited could not be located.
All three respondents were arrested shortly after the controlled delivery. At the time of his arrest the three envelopes that were the subject of the controlled delivery were found in the physical possession of Mr. Collymore.
The ruling on the s. 8 voir dire
The trial judge accepted that Ms. Haynes, the courier employee who opened the first envelope, did not act unlawfully. However, he concluded that the Customs officer, Mr. Harris, “. . . had no reasonable and probable grounds to believe, nor did he actually believe, that any violation of the law had occurred in relation to that parcel.” The trial judge acknowledged that Mr. Harris was subjectively suspicious that the envelope which he examined did not contain documents, contrary to what was stated on the Customs documentation.
The trial judge went on to find that:
— Mr. Harris of Customs Canada had no lawful right to “require” the courier company to return any of the six parcels to Customs for further examination.
— Customs Canada had no statutory authority to examine any of the parcels, once they had cleared Customs, since Mr. Harris, the Customs Officer who “ordered” the return of the envelopes could not have “suspected on reasonable grounds” that any of offences contemplated by the statute had occurred or might occur. Thus, the trial judge concluded that the search of the six envelopes was effected without a warrant and without statutory authority.
— The evidence (cocaine) was conscriptive evidence and its admission “would result in unfairness to the accused.” The trial judge therefore excluded the evidence of what was found in the six envelopes under s. 24(2) of the Charter.
The appellant contends that the trial judge erred in reaching these conclusions.
Analysis
In my opinion, the Customs officers who opened the six envelopes after they had cleared Customs, but before they were delivered, did so in the exercise of the constitutionally valid authority given to them by s. 99(1)(d) and (e) of the Customs Act. My reasons for reaching that conclusion follow.
I should state that in dealing with the issue whether the Customs officers acted under a valid statutory authority, I have assumed that all respondents had a sufficient privacy interest in the relevant envelopes to engage their s. 8 Charter rights. Whether the respondents had any expectation of privacy sufficient to give them s. 8 Charter rights in the envelopes is an issue that I need not, and do not, decide in light of my conclusion on the scope of the authority provided by s. 99(1) of the Customs Act.
The Customs Act
Section 99(1) of the Customs Act, the section under which the envelopes were opened, provides:
99(1) An officer may
at any time up to the time of release, [See Note 4 at end of document] examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
at any time up to the time of release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that he suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament, and take samples of anything contained in such mail in reasonable amounts;
at any time up to the time of exportation, examine any goods that have been reported under section 95 and open or cause to be opened any package or container of such goods and take samples of such goods in reasonable amounts;
where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods accounted for under section 32, or where a refund or drawback is requested in respect of any goods under this Act or pursuant to the Customs Tariff, examine the goods and take samples thereof in reasonable amounts; (d.1) where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods accounted for under section 32, examine the goods and take samples thereof in reasonable amounts.
where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of such goods, examine the goods and open or cause to be opened any package or container thereof; or
where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.
(Emphasis added)
Section 99(1)(a), (b) and (c) authorize the examination of goods (paras. (a) and (c)) and mail (para. (b)) without a warrant and without threshold grounds. These paragraphs are not in issue here. Section 99(1)(d), (d.1), (e) and (f) all impose a “suspect on reasonable grounds” threshold requirement.
Section 99(1)(a) and (b) limit the right of Customs to examine goods “up to the time of release”. Section 99(1)(c) limits the right of examination “up to the time of exportation”. Conspicuously paras. (d) (d.1), (e), and (f) contain no such, or similar, words of temporal limitation. It seems to me that there is a message in this silence. In my view, Parliament did not intend to limit Customs’ right to examine goods, for example, “to the time of release” where any of paras. (d), (d.1), (e), and (f) are engaged: see R. v. Multiform Manufacturing Co., [1990] 2 S.C.R. 624, 79 C.R. (3d) 390; Dreidger on the Construction of Statutes, 3rd ed. (Markham, Ont: Butterworths Canada Ltd., 1994), at pp. 168-72.
Section 99(1)(d) authorizes the examination of goods and taking samples, where an officer “suspects on reasonable grounds” that an error has been made in “tariff classification.” Section 99(1)(e) is more general. It permits an officer to “examine the goods and open or cause to be examined any package” if the officer suspects on reasonable grounds that the Customs Act or any other Act administered or enforced by the officer have been or might be contravened. Constitutionality of s. 99(1)
The respondents provided a notice of constitutional question as required by s. 109 of the Courts of Justice Act, R.S.O. 1990, c. C.43. As the constitutional issue was framed, the respondents challenge the constitutionality of warrantless searches and seizures of goods that had cleared Customs (post- release goods). Looked at broadly, the respondents’ position is that s. 99(1) should be read down so as to require that the post-release examination of goods be done “only with prior authorization and upon reasonable and probable grounds.” This would replace the existing “suspects on reasonable grounds” standard now found in s. 99(1)(d) and (e).
I see no basis upon which to conclude that s. 99(1) as it now stands does not survive constitutional scrutiny: see R. v. McKay (1992), 134 A.R. 188, [1993] 3 W.W.R. 9 (Q.B.). It must be emphasized that the search in this case took place before the envelopes had been delivered. In the circumstances, it is therefore not necessary to consider Customs post-release search rights in the context of goods that have been delivered.
In determining whether a seizure and search without warrant was justified in these circumstances, the controlling principles are set out in Chief Justice Dickson’s judgment in R. v. Simmons, [1988] 2 S.C.R. 495, 45 C.C.C. (3d) 296. In Simmons, a border personal search case, Dickson C.J.C. recognized that border crossings present special circumstances for purposes of a s. 8 Charter analysis: see also R. v. Monney, [1999] 1 S.C.R. 652, 133 C.C.C. (3d) 129 and R. v. Jacques, [1996] 3 S.C.R. 312, 110 C.C.C. (3d) 1. In Simmons, Dickson C.J.C. referred to the state’s interest in securing its borders in these terms at pp. 528-29 S.C.R., pp. 320-21 C.C.C.:
I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at Customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. . . . Physical searches of luggage and of the person are accepted aspects of the search process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibited goods.
. . . . .
In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing our customs laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 of the Customs Act [now s. 98] are not inconsistent with s. 8 of the Charter. (Emphasis added)
From the passage quoted above it is apparent that Dickson C.J.C. recognized a state interest in not only who, but also what, crosses Canada’s borders. For purposes of this case, it seems to me that the same principles and logic apply to s. 99(1) of the Customs Act, which gives “an officer” [See Note 5 at end of document] authority to examine goods, mail, a conveyance or a container at Canada’s borders.
In Simmons, Dickson C.J.C. also accepted that border searches of both persons and goods were of a sufficient national importance to justify departure from the Hunter v. Southam Inc. standards [Hunter v. Southam Inc., [1984] 2 S.C.R. 145]. Looked at generally, the examination, or search, of unaccompanied goods is manifestly less intrusive than a personal border search. I see no basis upon which to reject Parliament’s “suspects on reasonable grounds” standard, particularly as it relates to the circumstances presented here.
The threshold test
There remains to be considered the issue whether the Customs officers suspected on reasonable grounds that there had been an error in tariff classification (s. 99(1)(d)) or that there had been a contravention of the Customs Act or, in the circumstances here, the Narcotic Control Act, R.S.C. 1985, c. N-1 (s. 99(1)(e)).
In response to Mr. Harris’ request, Mr. Kamerling, the president of the courier company, returned the envelope to Canada Customs shortly after 3:00 p.m. on March 14. The enveloped that was returned was described as a “courier envelope”. The envelope contained the importer’s name and address and the address of the sender. The sender was noted as high-Tech, Port of Spain, Trinidad. Mr. Harris testified that Trinidad was regarded as a source country for illegal drugs.
When asked what Mr. Kamerling told him, Mr. Harris said:
When I say suspicious, he told me that his suspicions had been aroused by the fact that he couldn’t deliver this envelope, and that it had carbon paper — when — I presume that it had been opened to some extent, that he found carbon paper on the inside. That to the best of my recollection, is his conversation to me and he said that he was suspicious of a package he basically didn’t like, you know. He felt that it was something other than what it was described as.
Against that general background the envelope was opened. Mr. Harris found another envelope wrapped in carbon paper inside the courier envelope. The second or inner envelope contained a white, powdery substance. Its contents tested as cocaine.
As I have noted, when Mr. Harris requested the return of the envelopes to Customs, and later caused the envelopes to be opened, he knew that:
— there were delivery problems, with respect to one of the envelopes;
— the envelope first examined by the courier employee contained an inner envelope that was wrapped in carbon paper;
— the envelope first opened did not appear to contain “documents”, contrary to what was stated on the Customs documentation.
The first envelope that Customs opened was not the envelope that Elite Courier had opened. Another envelope, which was already out for delivery, was the first envelope returned and opened by Customs. In causing the envelopes to be opened, Mr. Harris thought that he had authority to examine them under
s. 99(1) of the Customs Act. He said:
. . . that number 99 has lots of sub-headings, but basically authorizes Customs inspectors to open goods that come into Canada, and the first heading it’s before release, but there are sub-headings that apply after release . . . I believe that its [sic] 1(d) that would give authority to go ahead and examine goods that have already been imported into Canada.
. . . I feel that if goods had not been delivered, if the goods were in limbo, as I felt they were, if we didn’t know what the goods were inside, if there was a question as to what they were, that they had not been delivered, that they are, perhaps undeliverable, I felt that it was in my realm of power as a Customs superintendent to ask to bring those back.
The trial judge accepted that the courier employee did nothing wrong in examining the envelope to obtain a better address for delivery. He also accepted that the courier employee had “reason to be suspicious” and that he was reasonably suspicious whether the contents of the envelope were documents, as stated. However, the trial judge went on to conclude that when the Customs official (Mr. Harris) was told about the courier’s reasonable suspicions he did not have a right to require the return of the envelope. This, in my view, is not an issue in this case since the courier was in no way compelled by Customs to return the envelopes to Customs. As the trial judge said:
. . . what occurred here was no longer a border search as the parcel had already been released by Canada Customs and the local courier had been authorized to deliver it to its receiver.
The trial judge found that the Customs officials who gave evidence lacked knowledge of their statutory right to examine the envelopes. He concluded that they acted on instinct and expediency rather than on a clear appreciation of their limits and powers set out in the Customs Act. As the testimony quoted above illustrates, the Customs official was, in fact, generally aware of his statutory authority to examine the envelopes. He specifically referred to s. 99 in his evidence.
When the trial judge considered the provisions of s. 99(1) of the Customs Act, he concluded that goods could be examined following their release “where an officer suspects on reasonable and probable grounds that one or more specified things had occurred or might occur”. He thus accepted the statutory threshold — suspects on reasonable grounds and the Crown’s contention that some goods may be examined “following their release”. Nonetheless, in what seems to be a contradictory statement, he then concluded that there was no statutory provision “that authorizes post-release examinations.” He went on to find that six envelopes were opened without statutory authority. He said:
I have not been referred to any provision that authorizes post-release examinations. It is my conclusion that the senior Custom official who ordered the return of the parcels and subsequent opening by another Customs official did not and could not reasonably have “suspected on reasonable grounds” that any of those things contemplated by the statute had occurred or might occur. It follows, therefore, that the opening of the six parcels by Canada Customs was done without statutory authority and constituted a warrantless search.
In the passage quoted above, the trial judge seems to have proceeded on the basis that there was no statutory provision that authorized the post-release examination of goods. This seems to be inconsistent with his earlier finding that s. 99(1) did provide for post-release examination of goods in certain circumstances. In any event, it seems to me to be clear from the language chosen by Parliament that post-release examinations are authorized by s. 99(1)(d) and (e). The threshold requirement (suspect on reasonable grounds) is low and was met in this case.
Section 24(2)
Before concluding I should make brief reference to the trial judge’s finding on the issue whether the evidence (cocaine) should be excluded under s. 24(2) of the Charter. The trial judge did not refer the factors set out in R. v. Collins, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1. His reasons indicate that he excluded the evidence on the basis that its admission would result in unfairness to the accused. He said:
. . . it is my view that to permit the Crown to tender into evidence against the accused what was discovered by the opening of the parcels would bring the administration of justice into disrepute and that the evidence ought to be excluded. Had the parcels not been opened as they were, it is unlikely that the contents of the parcels would have been determined in any lawful way by any person in authority. The
s. 24(2) test requires a careful balancing of competing objectives in the administration of justice.
. . . To allow the challenged evidence to be tendered would countenance a violation of the Charter rights of the accused and would result in unfairness to the accused in their present trial. I am persuaded that their right to a fair trial must prevail and that the evidence must be excluded.
The respondents accept that the trial judge did not apply the correct test in his s. 24(2) analysis. As Cory J. stated in R. v. Stillman, [1997] 1 S.C.R. 607, 113 C.C.C. (3d)
321 if the accused was not compelled to participate in the creation or discovery of the evidence (that is if the evidence existed independently of the Charter breach in a form usable by the state), the evidence will be classified as non- conscriptive. The admission of evidence which falls into this category will, as stated in Collins, supra, rarely operate to render the trial unfair. If the evidence has been classified as non-conscriptive the court should move on to consider the second and third Collins factors, namely, the seriousness of the Charter violation and the effect of the exclusion on the repute of the administration of justice. Because I think there must be a new trial, I propose to say nothing more about the s. 24(2) issue beyond simply noting that the trial judge did not follow the correct path in dealing with it.
Conclusion
For these reasons, I would allow the appeal, set aside the verdicts of acquittal and direct that there be a new trial.
Appeal allowed.
Notes
Note 1: While the driver was attempting to deliver the envelope Caroline Haynes, an Elite employee, received several telephone calls from a woman inquiring whether a particular parcel had arrived. She advised the caller that the envelope in question was in the process of being delivered.
Note 2: Apparently, the theory that goods wrapped in carbon paper cannot be x-rayed is incorrect.
Note 3: Section 159 of the Customs Act makes it an offence to smuggle goods, the importation of which is prohibited by the Customs Act or any other Act of Parliament.
Note 4: “release” means in respect of goods, to authorize the removal of the goods from a Customs office, sufferance warehouse, bonded warehouse … for use in Canada.
Note 5: “officer” means a person employed in the administration or enforcement of this Act … and includes any member of the Royal Canadian Mounted Police;