Idada v. Canada

Idada v. Canada
Court (s) Database
Federal Court Decisions
Date
2010-05-21
Neutral citation
2010 FC 218
File numbers
T-1238-02
Decision Content
Federal Court
Cour fédérale
Date: 20100521
Docket: T-1238-02
Citation: 2010 FC 218
BETWEEN:
ESEMUEDE HENRY IDADA
Plaintiff
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
AMENDED PUBLIC REASONS FOR JUDGMENT
(Confidential Reasons for Judgment released February 24, 2010)
ZINN J.
[1] On March 3, 2002 the plaintiff’s flight from Nigeria via Milan landed at Terminal 1, Pearson International Airport in Toronto. He was required to clear immigration and customs. This process was not as uneventful for Mr. Idada as it is for most of the thousands of travellers who pass through the airport every day. His luggage and personal effects were searched and he was required to undergo a strip search and a loo search, as it is euphemistically called by the customs authorities. During the course of his entry into Canada, and while undergoing these searches, Mr. Idada claims that he suffered physical and emotional harm as a result of the actions of customs officers, who are employees of Canada Customs and Revenue Agency (CCRA).[1]
The Action
[2] Mr. Idada claims damages from the defendant arising from his alleged illegal detention and search, his alleged assault and battery, and the alleged slander of him by customs officers.
[3] The parties agreed at a Pre-Trial conference that there were five issues to be determined at the trial of this action which I re-phrase, as the following:
a. Whether there were reasonable grounds for the customs officers to detain and search Mr. Idada’s person and luggage on March 3, 2002;
b. Whether the search was conducted improperly;
c. Whether, in the course of the search, the customs officers used reasonable force;
d. Whether the plaintiff suffered any injury, loss or damage as a result of the search or detention and if so, the extent of the injury and the quantum of the loss or damage; and
e. Whether the defendant slandered the plaintiff and, if so, the damages that flow from that slander.
[4] At the commencement of trial, counsel for Mr. Idada advised the Court that the plaintiff would not be proceeding with his claim for damages for slander because the person to whom the alleged slanderous remarks were made, Mr. Idada’s former spouse, would not attend at Court in Canada to give evidence.
[5] By Order dated October 8, 2009, the trial of the action was bifurcated. Accordingly these reasons are limited to the issue of liability.
Credibility of Witnesses
[6] Mr. Idada was the only witness called for the plaintiff. The defence called eight witnesses, all employees of CCRA: William Kelly, Dennis Chin-Sang, Nick Kostovski, Dan Tangney, Ken Kirkpatrick, Mary Parente, Jerry Jesso and Paul Brady.
[7] There was some inconsistency in the evidence of the witnesses as to the critical events that occurred at the customs area of Terminal 1 on March 3, 2002, and accordingly, a credibility finding is necessary. My findings on credibility are based on hearing all of the evidence, the consistency and rationality of the evidence, and the demeanour of the witnesses.
[8] I found Mr. Idada to be a credible witness. He did his best to be responsive to questions put to him under oath and he did not exaggerate his evidence. He did not try to minimize prior statements he made that were not consistent with his evidence at trial. His initial letter of complaint sent in 2002 to the defendant concerning his treatment by its customs officers exaggerated the conduct of those officers. Any discrepancy between his evidence at trial and his earlier written statements were not fundamental to his claim. His somewhat exaggerated version of events as set out in his letter of complaint is explained by the intense situation and the acute embarrassment he experienced in being searched personally and in having to comply with the demand that he produce stool samples for inspection.
[9] Officer Tangney when giving his evidence heavily relied on notes made that day in his notebook. These notes were made from other notes that he made on foolscap that were contemporaneous with the events, but which he had subsequently destroyed. I accept the suggestion made by counsel that the Court has no way of knowing whether the original notes contained information that was helpful to the plaintiff or whether the notes in the notebook were tailored to obtain the permission sought to conduct a personal search.
[10] Although Officer Tangney admitted that he had little present recollection of the events aside from these notes, his evidence at trial was significantly more detailed than his notes and in some instances was inconsistent with his notes. I find that he tailored his evidence at trial on the key events to minimize his own conduct. I also found him to be evasive on key points during cross-examination. As an example, he refused to accept that Mr. Idada moved his hand and briefcase away in order to keep it from Officer Tangney as he was reaching for it until the response he gave on his examination for discovery was read to him.
[11] I found Officer Kirkpatrick generally to be a credible witness; however, his evidence at trial was occasionally in conflict with the notes he had made at the time, or shortly thereafter, of the events at issue. His testimony at trial was often more helpful in exonerating the conduct of Officer Tangney than the notes he took at the time. I accept without hesitation his contemporaneous notes; however, to the extent that his evidence at trial was contradictory or inconsistent with his notes, I reject his evidence at trial.
[12] As with most cases, the truth as to the events that occurred is to be found among the stories provided by the witnesses; the evidence of none is entirely accepted. The following sets out the facts as I have found them.
The Facts
[13] Mr. Idada was born in Nigeria in 1959. He moved to the United States of America in 1989 and became a citizen of the U.S.A. in 2002. He lives in Boston, Massachusetts.
[14] After arriving in the U.S.A., Mr. Idada first worked at a number of jobs ranging from security to being in the “transportation business” and eventually he became an owner in the transportation business. When asked in chief and cross-examination he clarified that by “transportation business” he meant the taxi business and testified that that he was an owner of a taxi and limo business in Boston. Much was made by Officer Tangney in 2002, and at the trial, of Mr. Idada’s description of his business activity as being the transportation business. In my view, Officer Tangney’s suspicion was misplaced. First, while it is probably the case that a native Canadian or American would be unlikely to describe an independent cab driver as someone in the transportation business, Mr. Idada is not native to either country; English is his learned language. Secondly, it is neither false nor misleading to say that a self-employed cab driver is in the transportation business.
[15] Mr. Idada testified that in 2002 he was expanding his business into an import export business. Again, the defendant made much of the fact that this business was only incorporated later. Mr. Idada explained that incorporation and the business licences required take time and that he initially conducted his import and export business under the corporate name of his transportation business.
[16] In early 2002 he travelled from Boston to Nigeria. He entered Nigeria on January 18, 2002. He had shipped two containers of frozen turkey from the U.S.A. to Nigeria and was travelling there to sell the consignment of frozen turkey. He testified that this was the beginning of his new import export business and that this was a successful transaction.
[17] He remained in Nigeria until March 2, 2002, when he boarded a flight from Lagos, Nigeria to Milan, Italy and from there to Toronto, Canada. He decided to return to North America as he had completed his business in Nigeria. Although he had travelled to Nigeria on a round-trip ticket from Boston, he did not use it to return to Boston. He had decided to travel back to Canada. He says that he did so because while in Nigeria he learned that there were turkey products available in Canada that would be less expensive than those he had purchased in the U.S.A. His Nigerian customer had shown him samples of turkey shipped from Canada and had asked him to enquire about the company and the possibility of shipping turkeys from Canada.
[18] He asked his company manager in Nigeria, Mr. Solomon Worghiren, to purchase an airline ticket for him to Toronto. Mr. Idada explained that he trusts Mr. Worghiren to sell product that he ships to Nigeria when he does not personally travel there and to remit the money to him. Mr. Idada asked Mr. Worghiren to purchase the necessary tickets, which he did, in cash. Mr. Idada testified that all financial transactions at that time in Nigeria, even those that are very expensive, were cash transactions and that credit cards were not used. His evidence was not contradicted.
[19] International travel restrictions on flights leaving Nigeria required that an airline leaving Nigeria must first land in its home country. As a consequence, Mr. Idada flew Al Italia to Milan, Italy, and then Air Canada to Toronto.
[20] Mr. Idada candidly admitted that other than his Nigerian customer showing him samples of Canadian turkey he had done no research regarding the Canadian turkey market prior to travelling to Canada. He testified that “I had the name in my head and I thought if I could get here, I will be able to Google it, and then make calls, and then travel out to see, like I do in the US.” He expected to conduct this internet research and to make his telephone calls from a hotel room in Toronto. He had booked no hotel reservation prior to his arrival at Pearson Airport. This was his first visit to Canada.
[21] While in the air, he ate and drank. He says he had two meals during the flight from Lagos to Milan and another two meals and a snack on the flight from Milan to Toronto.
[22] He arrived in Canada at Terminal 1 on March 3, 2002, at approximately 14:30 hours. Like most travellers, he met with several immigration and customs officials as he passed through the clearance process. His recollection as to the number he met that day was in error; however, nothing turns on this. He did clearly recall his dealings with the most significant officials.
[23] Each traveller arriving at customs primary is asked to present his customs declaration card, his E311 Card and passport to the customs officer. The primary customs line is the first contact travellers have with a customs officer when they enter Canada. If the customs officer on the primary line has concerns about a passenger from an immigration standpoint the officer can refer the traveller to the immigration secondary area by making a mark on the passenger’s E311 Card, otherwise the officer can admit the traveller to Canada. If the officer has concerns from a customs standpoint he puts a notation on the E311 Card alerting officers to refer the passenger to the customs secondary area.
[24] From the primary customs line the traveller will approach an officer at the immigration point who will direct the passenger to the appropriate location. The immigration point officer is looking for a notation on the E311 Card. If there is one, then the passenger will be directed to immigration for processing by an immigration officer. If there is none, the traveller will be directed to the baggage hall to pick up his baggage.
[25] If there is a referral to customs secondary, the secondary customs officer will likely do a search of the traveller’s luggage and, as in this case, may require that further searches be done.
[26] William Kelly was a student customs officer working on the primary customs line at Pearson Airport on March 3, 2002. He testified that he had no present recollection of his dealings with Mr. Idada on March 3, 2002. He was shown an email he sent on March 24, 2002, to Edna Soifer in response to Mr. Idada’s complaint made to the customs authorities shortly after the events giving rise to this action. That email reads as follows:
I looked through my notebook and didn’t make any entry for the passenger in question. What I do remember is based on pure memory recall.
From what i [sic] remember Mr. Idada handed me an American passport and said he was in Nigeria visiting his family. He stated he was in transit to get home to Boston where he said he owned a taxi company. He presented me a card of the taxi company. I asked him how he was getting home and he stated he didn’t know at this time and hoped to get a flight to Boston. He then stated that he knew no one here in Canada and didn’t know where he would stay in the meantime.
This is all I can remember. I hope this helps.
[27] Officer Kelly has no recollection of how he marked Mr. Idada’s E311 Card from either an immigration or customs standpoint and the card was not found by the defendant. After leaving Officer Kelly, Mr. Idada placed his E311 Card inside his passport.
[28] Officer Kelly made no notes of his encounter with the plaintiff. He testified that he would only make a note when he thought that there was something that might come of his interaction with the traveller. He said, as an example, that if the traveller was extremely hostile or if he strongly suspected the person of narcotics smuggling, he would make a note.
[29] Dennis Chin-Sang was working as an immigration officer at Terminal One on March 3, 2002. He testified that he had no recollection of having had any dealings with the plaintiff. When shown Mr. Idada’s passport he identified that the Canadian Immigration stamp therein that admitted Mr. Idada to Canada on March 3, 2002, as having been made by his stamp and also identified his initials on the stamp mark.
[30] The stamp mark also contained his notation that read as follows: “VH – 05MR2002” which he testified meant that the person was in transit and permitted to be in Canada until March 5, 2002. With this authorization, there was nothing that prevented Mr. Idada from staying in a hotel in Canada until March 5, 2002.
[31] Mr. Idada recalls first going through immigration where he was asked why he was coming into Canada and what he was going to do in Toronto. He recalls having his winter jacket, his briefcase, and his wallet with him. Much was made by the defence about the wallet and, in particular, whether it was a “wallet” or a “bi-fold.” Mr. Idada called it his wallet or purse and testified that it contained his passport, credit cards, business cards and cash. I will refer to it throughout as a wallet. It was entered as an exhibit at trial and it is a man’s wallet, typical of those carried by many men. Nothing turns on its description and there was no evidence to suggest that it did not contain exactly what Mr. Idada said.
[32] Mr. Idada says that he was treated professionally and he has no complaint with the process he experienced up to this point. After passing through immigration he went to pick up his luggage and recalls that he then joined a line and was directed to go through customs. He testified that he was asked much the same questions by the customs officer as the immigration officer had asked and that he gave “almost the same answer”. This customs officer was Nick Kostovski.
[33] Officer Kostovski had some recollection of his dealings with Mr. Idada on March 3, 2002. He made no notes of their interaction at that time; however, he sent an email on March 23, 2002 in response to the investigation of Mr. Idada’s complaint setting out his recollection of their interaction. He used that document at trial to refresh his memory.
[34] When Officer Kostovski called Mr. Idada to his counter he asked for his E311 Card and passport and possibly his airline ticket. He was standing on one side of the counter facing Mr. Idada. He asked Mr. Idada where he was coming from and he was told that he was coming from Nigeria. He was asked to clarify as Officer Kostovski knew that there were no direct flights to Toronto from Nigeria. Mr. Idada told him he flew from Nigeria to Milan, Italy, and then to Canada.
[35] Officer Kostovski recalls that the E311 Card indicated that Mr. Idada had been referred to customs secondary by the primary officer as he had some doubt as to the accuracy of his declaration. He testified that Mr. Idada “had his passport in a wallet that was sticking out of his coat” and he recalled that the wallet contained the passport and other papers. It also contained US $1300.00.
[36] Officer Kostovski says that he asked Mr. Idada why he had not flown directly to the U.S. but he has no recollection of the response. When he was asked what Mr. Idada did when he asked him for his passport he testified:
He had taken it [i.e. his wallet] out of his coat and he was just fidgeting through as if he was going through it, and it just took a long time. I’m like, ‘I need your passport.’ And then what I did is, as he was holding it, like, ‘Just give me that, the whole thing’.
During this testimony as he said “and then what I did is,” Officer Kostovski demonstrated his action of grabbing the wallet from Mr. Idada’s hand. Both Mr. Idada and Officer Kostovski demonstrated this during trial and it is fair to say that the wallet was jerked from Mr. Idada’s hand with some force by Officer Kostovski. Mr. Idada complained to Officer Kostovski that he had taken his wallet and not just his passport to which Officer Kostovski responded that he had the right to return him back to where he came from and the right to search him.
[37] On cross-examination Officer Kostovski admitted that it was after he took the wallet from Mr. Idada that he began to get upset and began to speak loudly and that got Officer Kostovski “agitated”. In short, they were both loud and agitated. The difference is that Mr. Idada had cause to be agitated and Officer Kostovski did not; he was the cause of Mr. Idada’s agitation.
[38] Officer Kostovski’s evidence at trial differs from the email he wrote responding to Mr. Idada’s complaint. In it he says that Mr. Idada got agitated when he was asked to hand over for inspection his wallet that contained the passport and papers. In my assessment, Officer Kostovski knew then that he had acted inappropriately and was trying to minimize his actions to his superiors.
[39] Mr. Idada reacted angrily to the taking of his wallet. He became loud. Officer Kostovski testified that he kept saying that he was an American citizen and that he “didn’t need to do this” which, when pressed he said meant that “he didn’t need to hand me his passport over. I don’t remember exactly what he said, but he got agitated, he got loud and told me that, ‘Oh, I don’t have to. I’m an American.’” I accept that Mr. Idada became loud and he may well have said that he was an American citizen. I do not accept that by this he meant that he did not have to hand over his passport for inspection. First, he had already done so to Officer Kelly and Officer Chin-Sang, without incident or objection. Second, he had travelled frequently and knew that an examination of one’s passport is the usual protocol when entering a foreign country. Third, he was trying to hand over his passport when his wallet and passport were grabbed from his hand.
[40] I find that the reference to his citizenship was more probably said in reference to how he was being treated, rather than any objection he had in complying with the officer’s request.
[41] I accept Mr. Idada’s evidence that Officer Kostovski then said that he did not have time to deal with this “nonsense” and that he directed Mr. Idada to step aside, which he did, while Officer Kostovski retained his wallet, its contents, and his passport.
[42] Mr. Idada took a seat on the bench behind. When Officer Tangney entered the secondary customs area at 16:00 hours, he saw Officer Kostovski and Mr. Idada having what he described as an “argument” at the counter. I accept the evidence of the plaintiff and Officer Tangney that Officer Kostovski approached Officer Tangney and asked him to take over the inspection as he was going off duty. I reject the evidence of Officer Kostovski that Officer Tangney asked him if he wanted him to take over processing Mr. Idada.
[43] Officer Tangney took over and Officer Kostovski had no further dealings with the plaintiff as his shift had ended. All that Officer Tangney knew at this point was that there had been some dispute between Mr. Idada and Officer Kostovski but he did not know, and never asked what the cause of that dispute had been. It may be that, if he had, the events that were to follow would have occurred differently.
[44] Mr. Idada says that he was humiliated by the conduct of Officer Kostovski. He described himself as an experienced traveller who understood and accepted the usual immigration and customs procedures but that he felt embarrassed by how he had been treated and, in particular, by the statement made that he could be sent back from where he came. When asked whether he got upset at this, he candidly admitted that he did.
[45] Officer Tangney came over to Mr. Idada and told him to follow him with his luggage, which he did. Officer Tangney opened up his bags and briefcase and searched their contents thoroughly. As part of his search, Officer Tangney removed the lining from the edges of the briefcase, causing some damage to it. I do not find that he caused damage to Mr. Idada’s luggage during his search as has been claimed. If the luggage was damaged so that it could not be closed then it is reasonable to expect that Mr. Idada would have raised it at the time. He did not. I also do not accept the evidence of Mr. Idada that he was asked at this time to remove his shoes, coat and belt. Such a request at this point in the process would be usual in the extreme and if it had occurred then Ms. Parente would surely have observed it when she spoke to the plaintiff.
[46] Mr. Idada testified that Officer Tangney asked him much the same questions as he had previously been asked, but in greater detail. Officer Tangney testified as to their conversation in much more detail.
[47] Officer Tangney recalls that the airline ticket showed that it had been purchased in cash one day prior to the flight and was for a flight from Nigeria, through Milan, to Toronto. He says that he found it strange that a business traveller would purchase a ticket in cash. He also found it odd that it had been purchased one day before travel as this was the most expensive way to fly. He testified that drug smugglers often travel on tickets paid for with cash so that it is not traceable.
[48] He asked Mr. Idada why he was travelling to Toronto and was told it was for the turkey business. When asked to expand, Mr. Idada told him that he had a company that exports turkey products from the U.S. to Nigeria and that he was in Toronto to work on that business. Mr. Idada told him that he knew no-one in Toronto, that he did not have a hotel reservation but would find one, that he had no arrangements made to meet anyone but that after checking in he would use the internet to “make contacts or do research”. He said that he came to Toronto because when in Nigeria he was in a large walk-in freezer where he saw a box that said “Toronto Turkey” on it and based on this and his customer’s information, he decided to come to Toronto.
[49] When he asked Mr. Idada to describe his business in Boston, Officer Tangney testified that he “described it as being very large, a number of trucks on the road, a number of – you know, a number of overseas movements. And he made it out to be a very large business.” He also stated that when he asked Mr. Idada what he meant by the transportation business he told him that he had a number of limousines on the road. I reject this evidence. It is not consistent with the notes Officer Tangney copied into his notebook on March 3, 2002, which read as follows: “Employed as a cab owner w/ two cabs.” There is no mention of having trucks on the road or of having a “number of limousines”. I further reject Officer Tangney’s testimony that Mr. Idada made out that his import export business was highly successful. Again, the officer’s notes read that Mr. Idada told him that he “is trying to start business exporting turkey from US to Nigeria.”
[50] Mr. Tangney testified that Mr. Idada could not tell him the cost of sending a container from Boston to Nigeria. When asked what size container he used and the use of refrigerated containers, he testified that Mr. Idada had little or no knowledge of such facts. Even if true, it is hardly surprising since Mr. Idada had made only one shipment at that time, he was not an experienced exporter. Further, there is no mention made of this line of inquiry in his notes.
[51] Officer Tangney testified that as he was asking questions regarding his business, Mr. Idada became agitated and aggressive with his answers, asking him why he was being asked these things and stating that he was an American citizen. He described Mr. Idada’s mood as going up and down. When asked questions about his business he became agitated and provided vague answers but when asked general questions about his flight he was calm. When asked who had purchased the airline ticket, Mr. Idada told him that it was his manager in Nigeria. When asked the cost and why it was purchased the day prior to flight he responded that he had no knowledge of it as that was his manager’s decision.
[52] Officer Tangney testified that when he asked Mr. Idada for his original ticket from Boston to Nigeria, Mr. Idada told him that he did not have the ticket. When asked if it was one way or return, he says that Mr. Idada told him that he did not know as his Boston manager had purchased it. When asked for information concerning the Boston Manager, Mr. Idada was unable to provide any information.
[53] Officer Tangney testified that Mr. Idada told him he would be returning to Boston by bus or train, which Officer Tangney found odd for someone who claimed to be a successful businessman. This evidence is inconsistent with Officer Tangney’s own notes from March 3, 2002. He wrote: “Subject decided on aircraft that he misses his children – has decided not to stay in Toronto but will take train or plane home to Boston immediately – is also feeling sick (common cold).”
[54] Officer Tangney searched Mr. Idada’s briefcase but found nothing that “related to Mr. Idada’s purpose to come to Canada in regards to his turkey business.” Mr. Idada gave him his business card but he testified that he believes that it merely indicated his name and address. In his notes he writes: “Has business card for this venture [i.e. the export business] but has not started it yet.” Officer Kelly in his email dated March 24, 2002, wrote that from his recollection Mr. Idada said he owned a taxi company and presented him with a card of the taxi company. I find that it is more probable that Mr. Idada provided Officer Tangney with his business card from his taxi business.
[55] Officer Tangney testified that he found the return portion of the round trip ticket from Boston to Nigeria in the briefcase. This is reflected in Officer Tangney’s notes where he writes: “Return airline ticket found in subject’s briefcase shows return date from Lagos to JFK as 14 March. Subject originally stated his Mgr. in Boston had bought this ticket. Now says he bought it himself.” Mr. Idada testified that he never told Officer Tangney that he had a Manager in Boston. I accept his version of this part of their conversation. There was simply no reason why Mr. Idada would tell the officer he had a manager in Boston. At best, there was miscommunication between Officer Tangney and Mr. Idada – Mr. Idada was most likely referring to his most recent trip from Nigeria and Officer Tangney was referring to the earlier trip to Nigeria.
[56] Officer Tangney emptied both the briefcase and suitcase and x-rayed both but found no contraband.
[57] Officer Tangney testified that he then went to see Officer Kelly to ask why he referred Mr. Idada to secondary and says that he was told three things: (1) that Mr. Idada said that he had changed his mind while flying to Toronto about staying in Toronto because he missed his children and that he would be transiting on to Boston; (2) that he would be doing this immediately, either by train or plane, and (3) that the ticket to Toronto was the only ticket he could get. This evidence is not consistent with Officer Tangney’s notes wherein he writes: “Check w/Primary Officer Kelly he states he asked subject why he is coming to Canada. Subject replied it is the only ticket he could get.” Officer Kelly, in his email dated March 24, 2002 makes no mention of it being the only ticket he could get; rather, he wrote that Mr. Idada told him he was in transit to get home to Boston, that he hoped to get a flight to Boston, and that he knew no one in Canada and did not know where he would stay in the meantime.
[58] Officer Tangney says that he then sought out the immigration officer who had admitted Mr. Idada, Officer Chin-Sang, and asked him what he recalled of their conversation. He testified that the immigration officer had admitted him on the basis that it had “something to do with the turkey business.” There is nothing in Officer Tangney’s notebook indicating that he spoke to Officer Chin-Sang.
[59] Officer Tangney says that he then returned to the secondary area where he had a further discussion with Mr. Idada concerning his wife and family. He asked when Mr. Idada had last spoken with them and he said that he had spoken to his wife after receiving his ticket to Toronto, which would have been the night before. Officer Tangney says that he then obtained his home phone number and placed a call to Mrs. Idada in Boston. He identified himself as a customs officer calling from Toronto, Canada and says that he indicated that that this was a routine call relating to a person arriving in Canada. He asked whether she could tell him why her husband was in Toronto. He says that she responded that she believed her husband was in Nigeria. When asked what Mr. Idada did for a living she said that he was a taxi driver. He testified that she further said that he was not involved in any other business. There is nothing in Officer Tangney’s notes that reflects any such conversation.
[60] Officer Tangney says that he then returned to Mr. Idada and asked him further questions concerning his “turkey business” including how successful it was. He asked what sort of money Mr. Idada was making and says that he responded that he was making about $75,000 a year. Officer Tangney says that he then excused himself and came back a few minutes later and falsely reported that he had called the IRS and the IRS had not given him the same answer as he about his income. Officer Tangney says that Mr. Idada then told him that he had actually taken a $7,000 loss last year. Again, this is not reflected in Officer Tangney’s notes, and I accept the evidence of Mr. Idada that there was no such conversation concerning his declared income, although there may well have been some conversation concerning the filing of tax returns.
[61] Officer Tangney then told Mr. Idada that he didn't believe his story and asked whether there was anything he wanted to tell him at this point as to the real reason for his trip to Canada. He testified that the plaintiff maintained his explanation for his trip to Toronto. Officer Tangney says he then raised with Mr. Idada the concerns he had with his explanation.
[62] He said that he was concerned that Mr. Idada had changed his story from what he had told the primary officer, that he had told a different story to the immigration officer, that he was unable to provide them with a contact number for his business manager in Nigeria, that he had told him that he had no knowledge of the return ticket from Boston to Nigeria because his Boston manager had purchased it when Mr. Idada now said that he had bought the ticket himself, and lastly that his explanation of the turkey business seemed unbelievable. Further, he told the plaintiff that his wife had been called and described him as a taxi driver and did not know he was in Toronto. Officer Tangney says that he also noted that Mr. Idada had a “pasty mouth" but when offered a drink, Mr. Idada said that he was fine. When asked, Mr. Idada said that he was thirsty and hungry, but when offered food, he declined. At this point Officer Tangney testified that he told the plaintiff that he suspected that he may have ingested narcotics or be carrying narcotics or contraband.
[63] Officer Tangney testified that he based his decision to seek authorization from the Superintendent to do a personal search of Mr. Idada, because he suspected that he had ingested a narcotic. He testified that he based that suspicion on the following observations:
i. Mr. Idada had a pasty mouth, which is an indication of thirst, but he refused water. People who have ingested narcotics do not want to take on food or liquid because it may cause them to go to the bathroom.
ii. Mr. Idada told the primary officer things that differed or were omitted when he spoke to Officer Tangney. Specifically, (a) he told the primary officer but not Officer Tangney that although he had a purpose in visiting Toronto, he had changed his mind while on the aircraft, (b) told the primary officer that it was the only airline ticket he could get, which Officer Tangney thought was unlikely as March was not peak travel season, and (c) he told the primary officer that he would be going back to Boston immediately but told Officer Tangney that he would be staying in Canada to explore the turkey business.
iii. While Officer Tangney attests that he discounted the argument between Officer Kostovski he found his demeanour was very up and down and when he was asked pointed, direct questions he’d become agitated in angry.
iv. He constantly asked why he was being asked certain questions and kept saying that he was an American citizen, but when asked why that was relevant he had no response.
v. He originally made himself out to be a successful business person with an ongoing business that was very viable with a number of trucks on the road, but later changed his story and said that it was a start-up business.
vi. The airline ticket to Canada had been purchased in cash which is common for smugglers of contraband because it cannot be traced.
vii. The ticket had been purchased one day before travel which is commonplace among drug smugglers because they often travel on short notice when drugs are available to them.
viii. The ticket had been purchased by a third party, which is also common for drug smugglers who say that someone else made the travel arrangements for them and the fact that Mr. Idada’s manager in Nigeria was unreachable for confirmation of his story.
ix. The travel originated in Nigeria, which is a source country for narcotics.
x. He first said that his ticket from Boston to Nigeria had been purchased by his Boston manager, but subsequently changed saying that he had purchased it himself.
xi. He had not changed his return ticket, but rather purchased a new ticket to Canada.
xii. He told Officer Kelly that he was in transit that night to Boston but told Officer Tangney that he was staying in Toronto to conduct research on the turkey business.
xiii. Mr. Idada's wife said that she was unaware that he was in Toronto whereas he had indicated that they had spoken the night before and had made her aware of where he was and that he was traveling to Toronto.
xiv. His wife said that he was a taxi driver and had no other business interests, whereas he had indicated that he had a successful business transportation business operating many limousines.
xv. He had initially said that he made $75,000 the previous year but after Officer Tangney pretended to call the IRS to check that fact, he changed to say he had taken a loss.
xvi. He had no documents that could provide proof of his business.
xvii. He knew so little about the costs associated with exporting turkeys and Officer Tangney considered his story that he came to Toronto on the basis of seeing a crate of turkey parts in Nigeria and without any knowledge of any contact in the Toronto area to be implausible.
xviii. He said that he'd eaten on board the plane a number of times which is a common statement drugs smugglers are coached to say to suggest that it is unlikely that they have swallowed drugs.
xix. He said that he had a bowel movement on the plane. Drug smugglers are often coached to say this to suggest that it is unlikely that they have swallowed drugs.
[64] Officer Tangney testified that after noting “some” of those grounds in his notebook, he then approached his superintendent, Mary Parente, presented his arguments and requested authorization to perform a personal search, including a loo search of Mr. Idada.
[65] Officer Tangney testified that the first notation in his notebook shows a time of 15:58 hours as the time that he commenced his discussions with Mr. Idada. His notebook further indicates that he approached Ms. Parente at 17:20 hours and she gave her approval to the search after their discussion and indicated it by initialling and dating his notebook. The notebook indicates “okay" and the time is written 17:20 hours and the date is provided. Accordingly, the record shows, at most, a one-minute discussion with Ms. Parente.
[66] It is reasonable to assume that this brief conversation was based on the items noted in the notebook, as the one-minute discussion could not possibly cover all of the 19 items mentioned by Officer Tangney in his evidence at trial.
[67] Ms. Parente testified that she has no specific recollection of their discussion prior to approving the strip and loo search. She says that her usual process involves a “somewhat lengthy discussion” with the officer and that she may send the officer back to obtain clarification of the grounds alleged for the search request. In cross-examination she testified that she approves only 30% to 50% of the search requests officers ask her to approve. As she put it: “I believe there needs to be strong reasonable grounds to take someone in for a search. It is just not something you just do. It’s a very serious – I view it as a very serious matter.” She also testified that approximately 80% of the personal searches result in no contraband being found on the person searched.
[68] In spite of her evidence that she takes requests to conduct personal searches very seriously and that she approves less than half of such requests, there is no evidence to support that in this particular case she exercised the diligence she says that she usually does. In fact, the very brief time she spent with Officer Tangney before authorizing the search indicates that there was a lack of diligence on her part in this particular case.
[69] Ms. Parente corroborates Mr. Idada’s evidence that at his request he spoke to a supervisor before he was placed in detention. In her memo dated March 31, 2002, sent in response to the complaint, she says that she saw Mr. Idada sitting on the bench in the secondary area “making notes” and that he wanted to see a supervisor. She went to see Mr. Idada. He requested her name, but she refused to provide it but gave him her badge number. Mr. Idada told her that he wished to speak to legal counsel. She writes in her memo that “I informed him that he was not under detention or arrest at this time and if this were to happen he would be offered legal counsel.” On cross-examination, she admitted that she was in error, as the policies of the CCRA stipulate that a traveller is entitled to legal counsel whenever requested.
[70] After Ms. Parente approved the personal search of Mr. Idada, she ass