R. v. Simmons

R. v. Simmons
Collection
Supreme Court Judgments
Date
1988-12-08
Report
[1988] 2 SCR 495
Case number
18767
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.; L'Heureux-Dubé, Claire
On appeal from
Ontario
Subjects
Constitutional law
Customs and excise
Evidence
Notes
SCC Case Information: 18767
Decision Content
r. v. simmons, [1988] 2 S.C.R. 495
Laura Mary Simmons Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario Intervener
indexed as: r. v. simmons
File No.: 18767.
1988: January 28; 1988: December 8.
Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Right to counsel ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether accused detained and having right to counsel under s. 10 (b) of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right to counsel was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Constitutional law ‑‑ Charter of Rights ‑‑ Unreasonable search and seizure ‑‑ Customs searches ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether right against unreasonable search and seizure was subject to a reasonable limit prescribed by law justifiable under s. 1 of the Charter ‑‑ Whether search conducted in a reasonable manner ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Constitutional law ‑‑ Charter of Rights ‑‑ Admissibility of evidence ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Customs and excise ‑‑ Customs searches ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Whether the personal search provisions in the Customs Act inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms ‑‑ Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144.
Evidence ‑‑ Admissibility ‑‑ Bringing administration of justice into disrepute ‑‑ Narcotics found on accused following strip search conducted by customs officers ‑‑ Accused's right to counsel infringed ‑‑ Whether admission of evidence of narcotics would bring the administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2) .
Appellant, on entering Canada, proceeded to the primary customs inspection where she was routinely questioned by a customs officer. The officer found her to be overly nervous and referred her for a secondary inspection. The secondary inspector was also suspicious of the appellant and obtained permission from the Customs Superintendent to search her. Her suspicions were based on the primary inspector's doubts about the appellant, her dissatisfaction with her identification, and on her observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen. Appellant was taken into a search room and shown a sign on the wall which set out ss. 143 and 144 of the Customs Act . These sections provided the authority for conducting personal searches. The inspector, accompanied by an other female customs officer, told the appellant to undress. Appellant complied and removed some of her clothes, revealing white adhesive bandages around her midriff. Concealed in the bandages were plastic bags containing cannabis resin. The appellant was then arrested and informed of her right to retain and instruct counsel.
At trial, the judge held that the appellant had been detained from the moment she was taken into the search room and, because she had not been informed of her right to retain and instruct counsel before the search, her right under s. 10 (b) of the Canadian Charter of Rights and Freedoms had been violated. The trial judge then excluded the evidence under s. 24(2) of the Charter , holding that its admission into the proceedings would bring the administration of justice into disrepute. As a result, he acquitted the appellant. The Court of Appeal set aside appellant's acquittal and ordered a new trial. This appeal is to determine whether the appellant's rights under ss. 10 (b) and 8 of the Charter were violated when she was subjected to a strip search at customs; and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter .
Held: The appeal should be dismissed.
Per Dickson C.J. and Beetz, Lamer and La Forest JJ.: Appellant was detained within the meaning of s. 10 of the Charter when she was required, pursuant to s. 143 of the Customs Act , to undergo a strip search at customs and she should have been informed of her right to retain and instruct counsel at that time. This result is consistent with both the meaning given to detention in common parlance and with the definition set out in R. v. Therens, [1985] 1 S.C.R. 613. At the time of the search, appellant was clearly subject to external restraint. The customs officer had assumed control over her movements by a demand which had significant legal consequences. Appellant could not refuse to be searched and leave. Section 203 of the Customs Act makes it an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act .
Sections 143 and 144 of the Customs Act do not infringe the right to be secure against unreasonable search and seizure enshrined in s. 8 of the Charter . It is true that these sections do not meet the safeguards articulated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, but these standards do not apply to customs searches. The degree of personal privacy reasonably expected at customs is lower than in most other situations. Sovereign states have the right to control both who and what enters their boundaries. 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. Under sections 143 and 144 of the Customs Act , searches of the person are performed only after customs officers have formed reasonable grounds for supposing that a person has contraband secreted about his or her body. The decision to search is subject to review at the request of the person to be searched. The searches are conducted in private rooms by officers of the same sex. In these conditions, requiring a person to remove pieces of clothing until such time as the presence or absence of concealed goods can be ascertained is not so highly invasive of an individual's bodily integrity to be considered unreasonable under s. 8 of the Charter .
The search itself, however, was not conducted in a reasonable manner. The denial of the right to counsel in this case in conjunction with the absence of any explanation to the appellant of her rights under the Customs Act rendered the search unreasonable. The customs officers did not read the text of the personal search provisions to the appellant but simply pointed to a sign on the wall containing the text of ss. 143 and 144 . There is no evidence that the appellant read the provisions‑‑much less understood them‑‑and that she knew of her right, under s. 144 , to demand a second authorization. It is clear that the violation of the right to counsel deprived the appellant of her ability to exercise a legal right provided in the Customs Act . A search that might not have been conducted had the appellant had the benefit of legal advice was performed in circumstances in which the appellant was ignorant of her legal position. The violation of the right to counsel combined with the statutory right of prior authorization rendered the performance of the search unreasonable.
The violations of appellant's rights under ss. 10 (b) and 8 of the Charter could not be justified under s. 1 of the Charter . The violations of the appellant's right to counsel and of her right to be secure against unreasonable search and seizure resulted from the actions of customs officials. It was not a limitation imposed by law.
Although the breaches of the appellant's ss. 10 (b) and 8 rights was not trivial, the admission of the evidence in question would not bring the administration of justice into disrepute. There were ample facts to support the customs officer's suspicion that the appellant was concealing something on her body for the purpose of bringing it into Canada illegally. The evidence obtained as a result of the strip search was real evidence that existed irrespective of the Charter violations and its admission into evidence would not tend to affect adversely the fairness of the trial process. The customs officers acted in good faith based on accepted customs procedures. There was nothing deliberate or blatant in the denial of the appellant's rights. There was nothing to indicate that the customs officers treated the appellant in a discourteous fashion. Finally, this Court has previously held that the constitutional invalidity of a search power does not render evidence inadmissible if the officers conducting the search have relied in good faith on the constitutionality of the provision. In this instance, the customs officials acted in accordance with the existing statutory requirements at the time of the search. Under these circumstances, it is the exclusion of the evidence that would bring the administration of justice into disrepute.
Per Wilson J.: The constitutionality of appellant's strip search cannot be determined solely on the basis of whether there has been compliance with ss. 143 and 144 of the Customs Act . These statutory provisions must be read in accord with the obligation under s. 10 (b) of the Charter to inform those who are detained of their right to retain and instruct counsel and to respect that right. Any limit on the constitutionally guaranteed right to counsel, if it is to be valid under s. 1 of the Charter , has to be "prescribed by law". Sections 143 and 144 have to be examined to see whether a limit is provided for expressly or by necessary implication or through the operating requirements of the sections: see R. v. Therens, [1985] 1 S.C.R. 613, and R. v. Thomsen, [1988] 1 S.C.R. 640. There is nothing in ss. 143 and 144 which is incompatible with the right to counsel, nor do their operating requirements preclude such a right. Therefore, the violation of appellant's s. 10 (b) rights prior to the search renders the search unconstitutional given the complete compatibility of the authorizing statutory search provisions with the right to retain and instruct counsel without delay which is guaranteed in the Constitution. An unconstitutional search cannot be a reasonable one.
Although the unconstitutionality of the search renders the search per se unreasonable, the manner in which the search was conducted in this case was also unreasonable in light of the values and purposes protected by s. 8 of the Charter . It is unreasonable for a detained person to be simply directed to a sign on the wall of a search room setting out the legal provisions which authorize the search of his person. It is therefore not surprising that there is no indication that the appellant even read ss. 143 and 144 of the Customs Act , let alone exercised the legal options and rights conferred in those provisions. A person who is detained and about to be searched can hardly be expected to be his own lawyer. The right to counsel is the citizen's guarantee that his other rights will be respected. It prevents him from being overborne by the greater power of the state.
Per McIntyre and L'Heureux‑Dubé JJ.: Appellant was not detained within the meaning of s. 10 (b) of the Charter when she was subjected to a strip search at customs pursuant to s. 143 of the Customs Act . The definition of detention in R. v. Therens, [1985] 1 S.C.R. 613, does not go as far as to cover a search by a customs officer who carries out the routine procedures in order to control the illegal importation of goods and substances across the border. Persons entering Canada, whether or not they are citizens, are placed in a unique legal situation at the point at which they enter the country. They expect to submit to a certain degree of inspection of their baggage, and in some cases, their person. Their situation is distinguishable from one where an individual is stopped or detained in the course of his activities within Canada. It is incidents of this latter nature to which the definition in Therens was meant to apply.
The purpose of s. 10 (b) of the Charter gives also a clear indication that the provision does not apply to a border search. The purpose of the right to counsel is to ensure that the individual is treated fairly in the criminal process and, in particular, to prevent the individual from incriminating himself. In a border search the issue is not one of self‑incrimination. A search at the border is part of the process of entering the country and is not part of the criminal process. The right to counsel will arise only where a searched person is placed under custody as part of the criminal process. This does not mean, however, that no right to counsel can ever arise in searches which occur at ports of entry. Where the purpose of the detention, interrogation, or search arises in criminal proceedings, as distinct from those concerning entry into the country, the Charter protection against unreasonable search and seizure and the right to counsel will apply.
Finally, considering this unique situation and the state interest in preventing the entry of undesirable persons or goods, customs searches pursuant to ss. 143 and 144 of the Customs Act are reasonable and do not therefore infringe s. 8 of the Charter . The search itself was conducted in a reasonable manner. Appellant, who was not detained within the meaning of s. 10 (b) of the Charter , was sufficiently informed of her right to appeal the search to a higher customs authority when she was shown the text of ss. 143 and 144 of the Customs Act .
Cases Cited
By Dickson C.J.
Applied: R. v. Therens, [1985] 1 S.C.R. 613; R. v. Collins, [1987] 1 S.C.R. 265; distinguished: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; referred to: Chromiak v. The Queen, [1980] 1 S.C.R. 471; United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); United States v. Lincoln, 494 F.2d 833 (1974); United States v. Chavarria, 493 F.2d 935 (1974); United States v. King, 485 F.2d 353 (1973); United States v. Beck, 483 F.2d 203 (1973); R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Thomsen, [1988] 1 S.C.R. 640; R. v. Rodenbush and Rodenbush (1985), 21 C.C.C. (3d) 423; R. v. Jacoy, [1988] 2 S.C.R. 548, aff'g (1986), 30 C.C.C. (3d) 9 (B.C.C.A.), rev'g B.C. Prov. Ct. (Vancouver), October 25, 1985; R. v. Gladstone (1985), 22 C.C.C. (3d) 151; R. v. Jordan (1984), 11 C.C.C. (3d) 565; R. v. Jagodic and Vajagic (1985), 19 C.C.C. (3d) 305; Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643 (1961); R. v. Wray, [1971] S.C.R. 272; United States v. Guadalupe‑Garza, 421 F.2d 876 (1970); R. v. Dumas (1985), 23 C.C.C. (3d) 366; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Hamill, [1987] 1 S.C.R. 301.
By Wilson J.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Therens, [1985] 1 S.C.R. 613; R. v. Thomsen, [1988] 1 S.C.R. 640.
By L'Heureux‑Dubé J.
Distinguished: R. v. Therens, [1985] 1 S.C.R. 613; approved: United States v. Ramsey, 431 U.S. 606 (1977); Carroll v. United States, 267 U.S. 132 (1925); referred to: Clarkson v. The Queen, [1986] 1 S.C.R. 383.
Statutes and Regulations Cited
Act respecting the Customs, S.C. 1867, c. 6.
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 10 (b), 24(2) .
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C. 1970, c. C‑34, s. 618(2)(a) [rep. & subs. 1974‑75‑76, c. 105, s. 18(2)].
Customs Act, R.S.C. 1970, c. C‑40, ss. 143, 144, 203.
Customs Act, S.C. 1986, c. 1, s. 98.
Narcotic Control Act, R.S.C. 1970, c. N‑1, ss. 4(2), 5(1).
Authors Cited
LaFave, Wayne R. Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed., vol. 3. St. Paul, Minn.: West Publishing Co., 1987.
Michalyshyn, Peter B. "The Charter Right to Counsel: Beyond Miranda" (1987), 25 Alta. L. Rev. 190.
APPEAL from a judgment of the Ontario Court of Appeal (1984), 45 O.R. (2d) 609, 3 O.A.C. 1, 7 D.L.R. (4th) 719, 11 C.C.C. (3d) 193, 7 C.E.R. 159, setting aside appellant's acquittal on charges of importing narcotics and possession of narcotics for the purpose of trafficking (1983), 5 C.E.R. 396 and ordering a new trial. Appeal dismissed.
C. Jane Arnup, for the appellant.
J. E. Thompson et J. W. Leising, for the respondent.
Casey Hill, for the intervener.
The judgment of Dickson C.J. and Beetz, Lamer and La Forest JJ. was delivered by
1. The Chief Justice‑‑The appellant, Laura Mary Simmons, was indicted on two drug counts: (i) that she unlawfully "did, at the City of Mississauga, in the Judicial District of Peel and Province of Ontario, on or about the 14th day of November in the year 1982, import into Canada a Narcotic, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin", contrary to s. 5(1) of the Narcotic Control Act, R.S.C. 1970, c. N‑1, and (ii) that she unlawfully did, at the same place and date, "have in her possession a Narcotic for the purpose of trafficking, to wit: Cannabis sativa, its preparations, derivatives and similar synthetic preparations, namely Cannabis resin", contrary to s. 4(2) of the Narcotic Control Act. Drugs, contained in a body pack taped to her waist, were found on the person of the appellant by customs officers at Toronto International Airport. The trial judge ruled the evidence of the drugs, seized as a result of a body search, inadmissible, and found the appellant not guilty on both counts in the indictment.
2. Appellant's acquittal at trial was reversed on appeal and she has now appealed as of right to this Court, pursuant to s. 618(2)(a) of the Criminal Code, R.S.C. 1970, c. C‑34.
3. The principal issues in the case are whether the appellant's rights under ss. 10 (b) and 8 of the Canadian Charter of Rights and Freedoms were violated when she was subjected to a strip search at customs and, if so, whether evidence of narcotics obtained as a result of the search should be excluded under s. 24(2) of the Charter . These raise the following subsidiary issues: whether a strip search by customs officers constitutes a "detention" and thus gives rise to the right to retain and instruct counsel and to be informed of that right under s. 10 (b) of the Charter ; whether the personal search provisions (ss. 143 and 144 ) in the former Customs Act, R.S.C. 1970, c. C‑40, are inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Charter , and thereby, by reason of s. 52 of the Constitution Act, 1982 , of no force or effect to the extent of the inconsistency; and whether the violations, if any, of ss. 10 (b) or 8 may be justified under s. 1 of the Charter .
4. The statutory provisions to which reference is made in the foregoing paragraph read as follows:
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
8. Everyone has the right to be secure against unreasonable search or seizure.
10. Everyone has the right on arrest or detention
...
(b) to retain and instruct counsel without delay and to be informed of that right;
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Constitution Act, 1982
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Customs Act
143. Any officer, or person by him authorized there‑ unto, may search any person on board any vessel or boat within any port in Canada, or on or in any vessel, boat or vehicle entering Canada by land or inland navigation, or any person who has landed or got out of such vessel, boat or vehicle, or who has come into Canada from a foreign country in any manner or way, if the officer or person so searching has reasonable cause to suppose that the person searched has goods subject to entry at the customs, or prohibited goods, secreted about his person.
144. (1) Before any person can be searched, the person may require the officer to take him before a police magistrate or justice of the peace, or before the collector or chief officer at the port or place, who shall, if he sees no reasonable cause for search, discharge the person, but, if otherwise, he shall direct the person to be searched; but where the person is a female she shall be searched by a female, and any such magistrate, justice of the peace or collector may, if there is no female appointed for such purpose, employ and authorize a suitable female person to act in any particular case or cases.
If one traces ss. 143 and 144 as far back as Confederation one will find that the sections contained in the 1867 Customs Act (S.C. 1867, c. 6 ) are virtually the same as those in the 1970 Act. Both permit a search of the person when the customs officer "has reasonable cause to suppose that the person searched" has "prohibited goods, secreted about the person". In addition, both versions stipulate that a person may request to be brought before a justice of the peace, or before the collector or chief officer of the customs office for a second authorization before the search is performed. The 1970 provision adds a police magistrate to the list of officials who can give a second authorization.
5. Sections 143 and 144 have since been repealed and replaced by s. 98 of the Customs Act, S.C. 1986, c. 1. That section changes the standard of suspicion to "reasonable grounds" and narrows the number of persons, before whom a person about to be searched may be brought, to the senior officer at the place the search is to take place.
I
Facts
6. The appellant arrived at the Toronto International Airport on the evening of November 14, 1982 on Air Jamaica flight 071 from Jamaica. She proceeded to the primary customs inspection and was asked a series of standard questions by the customs officer. The appellant identified herself as "Maureen Claudia" Simmons, stated that she lived in Montréal, and declared a total of $25 as the value of all goods she was bringing into the country. Finding the appellant to be "overly nervous and jittery and a bit agitated", the primary customs officer concluded she should be referred for a secondary inspection and gave the appellant an inspection card bearing the number "86". The number 8 represented the code indicating the trav­eller should be referred to secondary inspection. The 6 indicated that the primary inspector had doubts about the goods the passenger had declared.
7. The secondary customs officer, Inspector Kathy Badham, asked the appellant for identification and conducted a search of the appellant's luggage. The appellant produced a photocopy of her baptismal certificate and stated that the rest of her identification had been stolen in Montréal. The search of the appellant's luggage did not reveal contraband. At some point during the secondary inspection, the appellant indicated that she was an unemployed, freelance commercial artist. The secondary inspector was suspicious of the appellant and requested permission from the Customs Superintendent to search the appellant's person. The suspicions were based on the primary inspector's doubts about the appellant, dissatisfaction with the appellant's identification, and the secondary inspector's observation that the appellant, although otherwise very slender, was slightly heavy and bulging in the area of her upper abdomen.
8. The secondary inspector informed the appellant that she was going to be searched as permitted by the Customs Act and together with another female customs officer showed the appellant into a search room located behind the secondary search area. She asked the appellant if she was hiding anything and the appellant responded that she was not. The officer then drew the appellant's attention to a sign on the wall of the search room which set out ss. 143 and 144 of the Customs Act quoted earlier. These sections, the inspector advised the appellant, provided the authority for conducting personal searches. There is no indication that the appellant read the provisions.
9. The secondary inspector told the appellant to undress. The appellant complied, removing her jacket, dress, and blouse. The inspector thought she saw something concealed underneath the appellant's girdle and again asked the appellant if she was hiding anything. Again the appellant responded that she was not. The appellant then removed her girdle, revealing white adhesive bandages around her midriff. When questioned about the bandages, the appellant responded that they were for her back. The inspector asked the appellant to remove the bandages. The appellant replied "is this really necessary?" then complied with the request. Removal of the bandages revealed six plastic bags containing 1.98 kilograms of cannabis resin, otherwise known as hashish oil, with a street value of $22,000. The appellant was then arrested for importing narcotics and was informed of her right to retain and instruct counsel. She forthwith telephoned counsel.
10. As Howland C.J.O. noted in the Court of Appeal, by agreement of counsel at trial, evidence was furnished that between April 1, 1982 and March 31, 1983, there were 442 drug seizures at the Toronto International Airport, of which 80 per cent were cannabis seizures from flights originating in Jamaica.
II
The Trial
11. At trial before Kent Co. Ct. J., the appellant argued that because of the small amount of narcotics involved and the surrounding circumstances of the offence, prosecuting the appellant for importing narcotics and for trafficking rather than lesser charges constituted unfair treatment, violating appellant's rights under ss. 7 and 12 of the Charter . The appellant also alleged that searches made pursuant to s. 143 of the Customs Act infringed s. 8 of the Charter , that there were no grounds under s. 143 for searching the appellant, that the appellant was arbitrarily detained in violation of s. 9 of the Charter , and that because the appellant had not been informed of her right to retain and instruct counsel before she was searched, s. 10 (b) of the Charter had been infringed.
12. In a judgment rendered on May 13, 1983, and reported at (1983), 5 C.E.R. 396, Kent Co. Ct. J. found the appellant not guilty of the charges. The judgment was based on the s. 10 (b) argument only. It will be recalled that s. 10(b) of the Char­ter, quoted earlier, assures everyone the right "on arrest or detention" to retain and instruct counsel without delay, and to be informed of that right. The judge held that the appellant had been detained from the moment she was taken into the search room for a body search, as she was then subject to compulsory restraint. In coming to this conclusion he emphasized the testimony of the inspector who conducted the search who stated that in her view the appellant had been detained in her custody and was not free to leave the search room. The appellant, the judge felt, should therefore have been informed of her right to retain and instruct counsel before the search was conducted and, as she had not been so informed, her right under s. 10 (b) of the Charter had been violated.
13. The trial judge excluded the evidence under s. 24(2) of the Charter , holding that in all the circumstances its admission into the proceedings would bring the administration of justice into disrepute. The judge pointed out that if the appellant had been advised of her Charter rights before the search, she might well have phoned her lawyer who could have advised her to request that she be brought before a justice of the peace, police magistrate or chief customs officer pursuant to s. 144 . In the opinion of the judge this took on particular significance in this case because of the limited evidence in support of the "reasonable cause" for a search as required by s. 143 of the Customs Act . He concluded therefore that the discovery of the illicit drugs was not inevitable and might not have taken place if the appellant's s. 10 (b) rights had not been infringed. He found the appellant not guilty as charged.
The Ontario Court of Appeal
14. A five member panel of the Ontario Court of Appeal reversed Kent Co. Ct. J.'s decision, Tarnopolsky J.A. dissenting in part: (1984), 7 D.L.R. (4th) 719. Howland C.J.O. for the majority held that the appellant had not been detained when she was subjected to a strip search at the border. In his view, the word "detention" in s. 10 of the Charter was to be accorded the meaning given to that word in s. 2(c) of the Canadian Bill of Rights, R.S.C. 1970, App. III, by this Court in Chromiak v. The Queen, [1980] 1 S.C.R. 471. It should be noted that the Court of Appeal did not have the benefit of this Court's decision in R. v. Therens, [1985] 1 S.C.R. 613. Howland C.J.O. also considered the American jurisprudence on border searches. He noted that American courts have considered border searches to be an exception to the protection against search and seizure embodied in the Fourth Amendment of the Constitution of the United States. Howland C.J.O. shared the view that customs searches constitute a distinct type of state involvement with the individual and for that reason should be regarded differently. He stated at pp. 740‑41:
In my opinion, border searches for contraband fall into a very special category. If a person reasonably arouses suspicion by giving the appearance of concealing something on his or her person, then he or she must expect to be asked to remove sufficient clothing to confirm or dispel this suspicion. There is nothing demeaning about such a request. The respondent was only requested to remove such of her clothing as was necessary to disclose that she was concealing illegal drugs. She was not touched in any way by Inspector Badham. The very large number of illegal drug seizures at the Toronto International Airport arising from Jamaica flights is indicative of the magnitude of the problem.
It would be wrong to conclude that the brief restraint involved in the ordinary progressive border search for contraband conducted by a customs officer pursuant to ss. 143 and 144 of the Customs Act constitutes a detention within the meaning of s. 10 of the Charter .
Howland C.J.O. also noted that s. 143 of the Customs Act formed part of comprehensive border regulation to which both citizens and non‑citizens alike were subject when seeking to enter Canada from abroad.
15. Howland C.J.O. found no merit to the appellant's argument that ss. 143 and 144 of the Customs Act violated s. 8 of the Charter . In his view, a body search conducted under ss. 143 and 144 should not be considered to be unreasonable within s. 8 of the Charter . He stated at p. 746:
I do not think it is unreasonable for sovereign nations, such as Canada, to provide for a temporary restraint on persons entering the country, and if necessary, for a search of their persons to see if they are bringing contraband into Canada.
16. Despite his finding that the appellant was not detained and therefore that her right to counsel under s. 10 (b) of the Charter had not been infringed, Howland C.J.O. went on to consider the appellant's arguments with respect to s. 24(2) . In considering the test for whether the admission of evidence would bring the administration of justice into disrepute, he enunciated the following factors: the nature of the illegality, the manner in which the evidence was obtained, the good faith of the persons who obtained the evidence, whether the accused's rights under the Charter were knowingly infringed, and the seriousness of the charge. In this case, Howland C.J.O. was of the view that all the factors militated towards admitting the evidence. The search occurred at the border and was specifically authorized by an Act of Parliament. It was not unreasonable and did not involve any unnecessary invasion of privacy. The customs officers acted in good faith and fully in accordance with the law as stated in the Customs Act . The seizure of drugs was sizable and the charges faced by the accused serious. Accordingly, the admission of the evidence would in no way shock the community. On the contrary, exclusion of the evidence would bring the administration of justice into disrepute.
17. Tarnopolsky J.A. agreed that the evidence in this case should not have been excluded by the trial judge but dissented on the question of detention. In his view, Chromiak, supra, dealt only with the question of roadside breath tests and did not determine whether a person who is required to submit to an examination by a government agency is detained. He also distinguished strip searches at customs from roadside breath testing on two grounds. In Chromiak the accused was free to leave the scene after refusing to take a breath test; the appellant in this case was not free to refuse to be subjected to a body search. Secondly, the search involved in this case was a far more serious intrusion into a person's dignity and privacy than the breath test contemplated in Chromiak. The highly intrusive nature of the search and the fact that it was performed under conditions of restraint compelled Tarnopolsky J.A. to the conclusion that the appellant was detained when she was strip searched and accordingly, her right to counsel had been infringed.
III
Interventions and Constitutional Questions
18. The Attorneys General for Ontario and Alberta filed notice of intention to intervene in the appeal to this Court. The Attorney General for Alberta later withdrew. The Attorney General for Ontario filed a factum in support of the respondent Crown.
19. Prior to hearing the appeal the following constitutional questions were stated:
1. Is a person who is required by a customs officer upon entering Canada to submit to a search of his or her person for contraband which is suspected of being secreted about his or her person, such search being pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, detained within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms , thereby requiring that such person be informed of the right to retain and instruct counsel without delay?
2. Are sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, inconsistent with a person's right to be secure against unreasonable search and seizure as guaranteed by s. 8 of the Canadian Charter of Rights and Freedoms , and thereby of no force and effect to the extent of that inconsistency?
3. If a failure to inform a person who is searched pursuant to ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, of his or her right to retain and instruct counsel without delay is in violation of s. 10 of the Canadian Charter of Rights and Freedoms , is such a violation justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
4. If sections 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, are found to be inconsistent with s. 8 of the Canadian Charter of Rights and Freedoms , are these sections justified by s. 1 of the Canadian Charter of Rights and Freedoms ?
IV
Customs Searches
20. In this Court counsel for the appellant advanced two main arguments. It was submitted that the appellant was "detained" when she was required to undergo a body search and thus her right to retain and instruct counsel and to be informed of that right under s. 10 (b) was infringed. Second, counsel contended that ss. 143 and 144 of the Customs Act were inconsistent with the right to be secure against unreasonable search and seizure guaranteed by s. 8 of the Charter . It was submitted that neither violation could be saved by s. 1 . On the basis of these violations, counsel for the appellant contended that admission of the narcotics into evidence would bring the administration of justice into disrepute under s. 24(2) of the Charter .
21. Crown counsel took the position that the appellant had not been detained and that ss. 143 and 144 of the Customs Act were not inconsistent with s. 8 of the Charter . Both arguments were largely based on characterizing border searches as a special case. Accordingly, the respondent argued that the brief restraint involved in the ordinary progressive border search conducted pursuant to the Customs Act did not constitute detention within the meaning of s. 10 of the Charter . Similarly, though conceding that the search provisions in ss. 143 and 144 did not conform to the criteria established by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, the Crown contended that Hunter v. Southam Inc. was inapplicable to the border search situation.
22. Before turning to the specific Charter issues, it is useful to consider briefly the significance of the border crossing situation. The respondent stressed that customs searches should be treated differently because of the important national interest that border regulation serves. In the respondent's submission, strip searches such as the one to which the appellant was subjected, are reasonable in the circumstances of monitoring the goods that enter the country. The delay travellers experience when required to undergo a personal search is incidental to the reasonable progression of increasingly more intrusive border searches and for that reason does not constitute a detention within the meaning of s. 10 of the Charter .
23. The American courts have long recognized border situations as an exception to the general protection against unreasonable search and seizure of the Fourth Amendment. The First Congress of the United States passed a customs statute in 1789 exempting border searches from the requirement of probable cause (LaFave, Search and Seizure: A Treatise on the Fourth Amendment (2nd ed. 1987), vol. 3, at p. 710). This was the same Congress which two months later proposed the American Bill of Rights including the Fourth Amendment. Border regulation legislation similar to this first statute has existed in the United States since the original enactment.
24. The United States Supreme Court did not have cause to pronounce directly upon the constitutional validity of the search provisions in American customs legislation until 1977 in United States v. Ramsey, 431 U.S. 606 (1977), a case concerning the search of international mail. Lower courts had, however, consistently upheld the validity of customs provisions