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Appellate Litigation

Cameron Fiske, a partner at Milosevic & Associates, recently acted as co-counsel on an appeal by the Crown with respect to charges against a Cornwall resident under the federal Customs Act and the Explosives Act. The co-counsel for the respondent were successful in challenging the Crown’s appeal, resulting in the acquittal being upheld.

Charges Laid

Mr. Swamp is a Canadian citizen and a resident of Cornwall Island. The island is a part of Canada but lies on a path between the ports of entry in Massena, New York and Cornwall, Ontario. This path is designated as a mixed-traffic corridor under the Customs Act. Mr. Swamp, like all residents of Cornwall Island, was required to present himself to a Border Services Officer (BSO) before entering the City of Cornwall. At the border, there are two methods of screening: a primary inspection for all, and a secondary inspection that will be carried out in specified circumstances.

In July of 2017, Mr. Swamp attended a primary inspection point in Cornwall. The BSO, after some questioning, directed Mr. Swamp to a secondary inspection point. There, his truck was searched and American-made fireworks were found. He was charged with breaches of both the Customs Act and the Explosives Act as a result.

Justification for the Detention and Secondary Search

The BSO knew Mr. Swamp and saw him arrive at Cornwall in another customs lane. He saw Mr. Swamp reverse his truck out of the lane he was in but became suspicious when Mr. Swamp did not enter his lane, which was free of vehicles. He knew Mr. Swamp was wanted in the United States, that he had a criminal record and that he associated with people with criminal records. Finally, the BSO had seen Mr. Swamp cross the border several times in the recent past in a truck of modest value with a propane tank and a large gas tank in the back that had not appeared to move in all of those crossings. The BSO was also aware that others entering Cornwall had used propane tanks with false bottoms to smuggle goods into Canada.

A Question of Statutory Interpretation

The issue was not whether Mr. Swamp had committed an illegal act. Instead, the issues were related to the admissibility of evidence, which hinged on:

  1. Whether the search at the primary inspection level fell outside the BSO’s authority under section 99(1)(f) of the Customs Act. This was grounded by the fact that Mr. Swamp was a Canadian resident and traveller; and
  2. Whether the search violated Mr. Swamp’s constitutional rights under section 8 (unreasonable search), 9 (arbitrary detainment) and 10 (right to counsel) of the Canadian Charter of Rights and Freedoms (the “Charter”).

The Customs Act

Section 99(1)(f) allows a BSO to board, search or direct a vehicle to a secondary inspection location where the BSO has reasonable grounds to suspect that an Act of Parliament has been or has likely been violated.

Section 99.5 states that where a person claims that they have arrived at the inspection point from a location within Canada and the BSO has reasonable grounds to believe that they are not being truthful, the BSO can further question the person and examine any goods the person is travelling with.

Trial Decision: s. 99(1)(f) Relies on s. 99.5 When it Comes to Domestic Travellers

The trial judge found that the BSO did not have, on the evidence, reasonable grounds to detain, question and search Mr. Swamp’s vehicle. What motivated the BSO was a mere suspicion or hunch based on animus towards Mr. Swamp.

Further, the trial judge found that s. 99(1)(f) could not be applied to domestic Canadian travellers without first establishing reasonable grounds under s. 99.5. In this case, there was no question that Mr. Swamp had arrived at the first inspection point from within Canada, and so “reasonable grounds” under s. 99.5 had not been satisfied. As a result, Mr. Swamp was acquitted and the Crown appealed.

Appeals Court: No Reasonable Grounds

On appeal, the Ontario Superior Court of Justice (ONSC) found errors in the trial judge’s approach and reasoning. Further, there was no evidence cited that could justify a finding of animus. The trial judge erred in not setting out his reasons and the evidence that supported this conclusion.

However, the ONSC followed the caution of the Supreme Court of Canada (SCC) in R. v. Gagnon (2006) that appeal courts should not readily find that the reasons given were not sufficient and not to confuse this issue with the real question which is, was the decision reasonable?

In the matter before me, the evidence shows that Mr. Swamp’s criminal record was not for smuggling and almost every family who resides on Cornwall Island has a family member with a criminal record. Thus, the fact that Mr. Swamp kept company with individuals who had a criminal record is not surprising and is not in my estimation a ground for reasonable grounds to suspect. Neither is the lane change. By BSO Bay’s own admission, people change lanes to avoid delay when going through the border. This leaves the fact that Mr. Swamp was driving a low-value vehicle which contained a propane tank and an oversized gas tank. In my view, this is insufficient to establish reasonable grounds to suspect. The significance of the value of the truck Mr. Swamp was driving was not explained, and the reality is that people with trucks often carry items in the bed of the vehicle; that in and of itself is not sufficient to meet the threshold of reasonable grounds to suspect.

While I find the trial judge’s reasons to be objectively inadequate, when I consider the entire record, the verdict of acquittal is appropriate on the face of the record. In the circumstances, a new trial is not required notwithstanding the trial judge’s errors.

At Milosevic & Associates, our team of Toronto lawyers regularly represent clients in appellate litigation on a variety of issues. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Our impressive track record speaks for itself.  Call us at 416-916-1387 or contact us online for a consultation.