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CUSTOMS AND EXCISE - Offences - Failure to report goods - Unlawfully imported goods

Thursday, January 30, 2020 @ 6:18 AM  

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Appeal by the Crown from an order dismissing the information charging the respondent under the Customs Act with failing to report imported goods, attempting to evade payment of duties for goods, possession of imported goods and with possession of explosives contrary to the Explosives Act. The respondent was a Canadian citizen and resident of Cornwall Island. Cornwall Island was a Canadian island situated between Massena, New York and Cornwall, Ontario. Residents of Cornwall Island were required to present themselves at the Canadian port of entry in Cornwall to get into the city. The respondent attended at the primary inspection point at the port of entry in Cornwall in his truck. The Border Services Officer (BSO) ascertained that the respondent was coming from Cornwall Island but nonetheless asked him questions and advised him to turn off his ignition and exit his vehicle. The vehicle was directed to secondary inspection where a search revealed firecrackers marked as coming from the United States. The respondent was charged. The trial judge found that the BSO detained the respondent arbitrarily contrary to s. 9 of the Canadian Charter of Rights and Freedoms (Charter) and also found that the search of his truck contravened s. 8. Further, he found that the respondent was not given his rights to counsel, in contravention of s. 10. As a result, the evidence located in the respondent’s truck vehicle was excluded and the respondent was acquitted. The Crown argued that the judge erred in finding that secondary inspections did not apply to domestic travelers in a mixed-traffic corridor. The Crown further argued that the judge erred by finding Charter breaches.

HELD: Appeal dismissed. For the search of the respondent’s vehicle to be lawful, the BSO must have reasonable grounds to suspect an offence was being committed. The indicators relied on by the BSO were the respondent’s criminal record, the fact that the respondent kept company with individuals with a criminal record, that he made a suspicious lane change, that he had a propane tank and oversized gas tank in the bed of his truck that did not appear to move through several border crossings, and that the truck was of low value. The evidence showed that the respondent’s criminal record was not for smuggling and almost every family who resided on Cornwall Island had a family member with a criminal record. Thus, the fact that the respondent kept company with individuals who had a criminal record was not surprising and was not a ground for reasonable grounds to suspect. Neither was the lane change. People often changed lanes to avoid delay when going through the border. The significance of the value of the truck was not explained, and the reality was that people with trucks often carry items in the bed of the vehicle. The verdict of acquittal was appropriate on the face of the record.

R. v. Swamp, [2019] O.J. No. 6330, Ontario Superior Court of Justice, N. Champagne J., December 13, 2019. Digest No. TLD-January272020007