In a timely news item, following on the heels of my earlier post on misplaced pride in gut feelings, we have the following:
A British Columbia Provincial Court judge ruled last week that Canadian border guards seeking to dismantle and search a vehicle need a warrant to do so. The judgement is already being appealed.
For comment, we have Ron Moran, president of the Custom Excise Union. I’m not sure why a union official feels a critique of Charter jurisprudence to fall under his mandate, but he gives some good sound-bites in his interview with As It Happens, which appears about 10 minutes into the show. He is also quoted in this Globe and Mail article,which includes a lot of Charter- and judge-bashing in the comments by people who have obviously not read the judgement.
If you do read the judgement, R. v. Sekhon 2007 BCPC 0224, it seems clear the judge understands the necessity of border searches but was not impressed by the customs officers behaviour – either at the border or in court – and wanted to send a message:
The Inspectors, to a person, took the view that all borders are Charter-free zones… Canada Border Services Agency officers must somehow be made aware that while individuals seeking to enter or return to Canada have a reduced expectation of privacy from that which they have on the streets of Canada, that such people do in fact have Constitutional rights that must be respected.
Whatever the merits of the case, I mention it here to illustrate how gut feelings – in this case hunches – are routinely considered by border officers to be sufficient grounds for a search. Take the example of Ron Moran, who says in the CBC interview:
The intuition of officers is probably one of their strongest tools, and certainly nobody comes up to us and tells us when they care carrying that type of contraband, so we are left with our intuition and our hunches, unless there is specific intelligence involved.
Gut feelings are the principal mode of investigation for border officers? How reassuring.
While the courts have taken a relaxed view of customs searches since R. v. Simmons 1988 CanLII 12 (S.C.C.), they have yet to approve of gut feelings as a sufficient reason for an detention and search. Quite the opposite is true: In R. v. Jacques, 1996 CanLII 174 (S.C.C.) and later in R. v. Mann, 2004 SCC 52, a majority of Supreme Court of Canada followed the Ontario Court of Appeal in R. v. Simpson, 1993 CanLII 3379 (ON C.A.). As a result, “hunches based on intuition gained by experience” are not good enough.
I wonder how border officials will cope with being denied what they see to be their strongest tool. So far, the Canada Border Services Agency has yet to release a statement beyond that carried by the Globe and Mail article.