R. v. Jacoy

The Chief Justice‑‑The appellant, Paul Peter Jacoy, was charged with importing cocaine and possession of cocaine for the purpose of trafficking. In Vancouver Provincial Court the appellant was acquitted following a voir dire to determine the admissibility of the drugs seized. The judge held that the constitutional rights of the appellant under s. 10(b) of the Canadian Charter of Rights and Freedoms had been infringed and in consequence, that the evidence so obtained should be excluded under s. 24(2) of the Charter as its admission would bring the administration of justice into disrepute. The Court of Appeal reversed, set aside the acquittal and ordered a new trial. The appellant appeals to this Court as of right pursuant to s. 618(2)(a) of the Criminal Code .

The two sections of the Charter read as follows:

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.

The appeal raises the question whether the accused's right to retain and instruct counsel, under s. 10(b) of the Charter , was violated when he was stopped and searched at Canadian customs following a tip from the Royal Canadian Mounted Police (R.C.M.P.) If the answer to that question is affirmative, this Court must then consider whether the narcotics obtained as a result of the search should be excluded from the evidence under s. 24(2) of the Charter .

Counsel for the appellant frames the issues in these terms:

Issue 1: The Court of Appeal erred in law by holding that the learned trial judge erred in law in his interpretation and application of the reasoning of the Court of Appeal for British Columbia in R. v. Gladstone (1985), 22 C.C.C. (3d) 151.

Issue 2: The Court of Appeal erred in law by holding that evidence was improperly excluded by the learned trial judge pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms .

I

Facts

On May 2, 1985 at 10:30 a.m. the appellant arrived aboard a United Airlines flight at the Seattle‑Tacoma Airport outside of Seattle in the State of Washington. He entered a car parked at the airport garage and drove north towards the British Columbia border. From the moment of his arrival at the Seattle Airport, the appellant was under surveillance by the R.C.M.P. who suspected him of attempting to import narcotics. The R.C.M.P. officers contacted customs officials at Douglas point crossing, the port of entry in British Columbia, and advised them of the appellant's impending arrival. They advised Canadian customs officers that the appellant would shortly be attempting to bring narcotics across the border and suggested that customs officials perform a routine inspection of the appellant, including a secondary inspection. As a result of receiving this information Customs issued a "watch for" for Jacoy shortly before his arrival at the border crossing.

The appellant arrived at the border at approximately 1:10 p.m. He was asked a few routine questions by the customs officer, Inspector Senecal, and as a result of the request by the R.C.M.P., was ordered to stop at the main customs building. There he was questioned by customs Inspectors Graham and Findlay. Inspector Graham was a member of the customs drug team, a unit specifically designed to detect the smuggling of narcotics. At 1:15 p.m., after asking the appellant a few questions, the inspectors ordered the appellant to enter an interview room where they questioned him about his business in the United States. There was nothing to suggest that this was anything but a routine inspection.

At approximately 1:26 p.m. Superintendent Wilson, also a member of the drug team, entered the interview room and introduced himself to the appellant. He asked the appellant for identification and ordered the appellant to empty his pockets onto the table. The appellant complied, and produced coins and a small white envelope. The envelope was not opened at the time but was later found to contain three grams of cocaine. Superintendent Wilson ordered the appellant to place his hands against the wall and to spread his feet apart. He then frisked the appellant. A bag containing two hundred grams of cocaine was discovered in the appellant's left sock. At that time, Superintendent Wilson handcuffed the appellant and advised him:

(i) that he was under arrest for importing a narcotic into Canada;

(ii) that he had the right to retain and instruct counsel without delay; and

(iii) that he did not have to say anything and that anything he did say might be used in evidence.

The appellant immediately asked to telephone his lawyer. He was told that he would be permitted to do so "at the earliest possible convenience".

Superintendent Wilson continued his search and discovered a bag containing an additional two hundred and four grams of cocaine. In total, four hundred and seven grams of cocaine were discovered having a potential street value of between $121,000 and $161,000. At no time during the inspection was the accused informed of ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40, which provided the authority for conducting personal searches. Section 144 also provided the accused with the right to require customs officials to appear before a justice of the peace, police magistrate or the collector or chief customs officer at the port to justify the search. These sections have since been repealed and replaced by s. 98 of the Customs Act, S.C. 1986, c. 1.

At 2:26 p.m. two R.C.M.P. officers entered the interview room. They informed the appellant that he was charged with importing a narcotic into Canada, cautioned him that anything he said could be introduced in evidence and informed him of his right to retain and instruct counsel. The appellant made several requests to contact his lawyer and was informed he would be able to do so once a search warrant had been executed on his residence. The appellant was allowed to call his lawyer at 3:30 p.m., upon his arrival at police headquarters.

II

The British Columbia Courts

Trial

At trial, Cronin Prov. Ct. J. held a voir dire to determine whether the narcotics should be admitted into evidence. He found that Jacoy had been detained from the moment he arrived at the primary checkpoint at the border. Since Jacoy was not advised of the reasons for his detention or of his right to retain and instruct counsel, Cronin Prov. Ct. J. held that the appellant's rights under s. 10(b) of the Charter were infringed. Cronin Prov. Ct. J. then considered whether the narcotics should be excluded under s. 24(2). Based on the reasoning of this Court in R. v. Therens, [1985] 1 S.C.R. 613, Cronin Prov. Ct. J. characterized the violation of the appellant's right to counsel as both deliberate and flagrant. In his view, the conduct of the officers demonstrated a complete disregard for the Charter . He rejected the argument that the officers were acting in good faith because they were relying on the authority of R. v. Simmons (1984), 11 C.C.C. (3d) 193 (Ont. C.A.) (judgment in this Court being delivered concurrently herewith) in which the Ontario Court of Appeal held that a strip search at customs did not amount to detention under the Charter . It was Cronin Prov. Ct. J.'s view that at best, the inspectors could only be said to have been operating under a mistake of law. In the circumstances, admission of the evidence would condone disregard for the Charter and would therefore bring the administration of justice into disrepute.

Court of Appeal

The British Columbia Court of Appeal allowed the Crown's appeal and set aside the appellant's acquittal: (1986), 30 C.C.C. (3d) 9. Anderson J.A. speaking for court held that the trial judge had erred in law by failing to follow the decision of the British Columbia Court of Appeal in R. v. Gladstone (1985), 22 C.C.C. (3d) 151. In Gladstone, the accused was subjected to a strip search at customs after returning to Canada from Peru. Five packages of cocaine were found concealed inside the waistband of the accused's trousers. At no time during the search was the accused informed of his right to retain and instruct counsel under s. 10(b) of the Charter . The accused was charged with importing cocaine and possession of cocaine for the purposes of trafficking and was convicted at trial. The British Columbia Court of Appeal dismissed the accused's appeal. Anderson J.A. speaking for himself and Seaton J.A. (Lambert J.A. rendering separate concurring reasons) held that the evidence had been properly admitted by the trial judge. He assumed without deciding that the accused's rights under ss. 10(b) and 8 had been violated. He held that for the purposes of s. 24(2) the "good faith" of the customs officers was to be judged in relation to what the officers knew or ought to have known in respect of Charter rights at the time the search took place. At the time Gladstone was searched, the officers had no reason to know that they might have acted in violation of the accused's Charter rights. Anderson J.A. concluded that the good faith of the officers brought the case within the "good faith" exception to exclusion under s. 24(2).

In the present case, Anderson J.A. held that the trial judge had erred in refusing to follow Gladstone and Simmons. At the time Jacoy was searched, the Ontario Court of Appeal had already rendered its decision in Simmons to the effect that a person subjected to a strip search at the border was not detained. In accordance with Gladstone, the conduct of the customs officers was to be judged on the basis of Simmons. The trial judge's error in failing to follow Gladstone and Simmons played a substantial role in his conclusion to exclude the evidence. Accordingly, Anderson J.A. directed that the question of admissibility should be re‑examined in a new trial. The court did not address the issue of detention.

III

Section 10(b) of the Charter

The first issue raised in this appeal is whether the appellant was detained. Counsel for the Crown adopted the submissions of the Crown in R. v. Simmons, [1988] 2 S.C.R. 495, argued before this Court on the same day. It was the Crown's position in that case that routine customs searches, including strip searches, do not constitute detention within the meaning of s. 10(b) of the Charter . For the reasons given by this Court in R. v. Simmons, I do not accept this proposition.

The trial judge held that the appellant was detained from the moment he arrived at the border. In my view it is not necessary to decide whether detention occurred at this point. For the reasons given in R. v. Simmons, there is no doubt that the appellant was detained when he was ushered into the interview room by Inspectors Graham and Findlay. At this point the customs inspectors had assumed control over the movement of the appellant by a demand that had significant legal consequences for him. The evidence indicates that the customs officials intended to search the appellant regardless of his responses to their questions. The trial judge found at p. 2 of his reasons that:

The police and Customs inspectors had pre‑arranged between themselves that Jacoy would not be permitted to proceed beyond the Customs point, that he'd be detained and that he'd be searched, both his person and his vehicle, in order to locate the cocaine which it was believed he was importing into Canada.

In my view, this indicates that the decision to search the appellant, and to strip search him if necessary, had been made by the time the appellant entered the interview room. The appellant was clearly subject to restraint. He could not have refused to be searched and could not have continued on his way. I am therefore satisfied that the appellant was detained, at least from this point onward, and should have been informed of his right to retain and instruct counsel.

IV

Section 24(2) of the Charter

The first issue framed by the appellant turns on Gladstone, supra. On this point counsel, in his factum, says:

The Gladstone case held that if the rights of an accused were infringed in "good faith", then that factor would be important if not decisive in determining whether evidence so obtained should be excluded pursuant to the provisions of s. 24(2) of the Charter . If "good faith" is demonstrated, it becomes unnecessary to explore the important Charter issues raised by the nature of the Charter breach. Moreover, "good faith" is made out if the officer who infringed an accused's constitutional rights did so in accordance with what he knew or ought to have known in respect of Charter rights at the time.

In determining whether the evidence should be excluded under s. 24(2) of the Charter , I have little to say on the Gladstone case. It has been overtaken by the later decision of this Court in R. v. Collins, [1987] 1 S.C.R. 265. The Court must have regard to the factors enunciated in Collins.

To reiterate briefly the criteria set out in Collins, Lamer J. speaking for the majority grouped the factors relevant to the determination into three groups. First, the court must consider whether the admission of evidence will affect the fairness of the trial. If this inquiry is answered affirmatively, "the admission of evidence would tend to bring the administration of justice into disrepute and, subject to a consideration of other factors, the evidence generally should be excluded" (p. 284). One of the factors relevant to this determination is the nature of the evidence; if the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.

The second set of factors concerns the seriousness of the violation. Relevant to this group is whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.

Finally, the court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence would result in an unfair trial, the seriousness of the offence would not render the evidence admissible.

Having considered these factors with reference to this case, I am of the view that the evidence should not have been excluded. Evidence of narcotics is real evidence that existed independently of the Charter violation. This factor distinguishes this appeal from Therens, where the evidence was created by the accused as a result of the violation. Admission of evidence of this latter sort detracts from the fairness of the trial process, real evidence does not.

I am of the view that the customs officers were acting in good faith. I agree with the submission of Crown counsel that the trial judge erred in limiting "good faith" as a factor to be considered under s. 24(2) to those situations which might otherwise be categorized as "exigent circumstances"; that "good faith" is not so restricted is evidenced by this Court's decisions in R. v. Hamill, [1987] 1 S.C.R. 301, at p. 308, and R. v. Sieben, [1987] 1 S.C.R. 295, at p. 299. In both of these cases, police officers were held to be acting in good faith when they conducted warrantless searches of dwelling‑houses pursuant to a statutory power which the police officers had no reason to believe violated s. 8 of the Charter . Similarly, the customs officers in this appeal were acting on a policy directive based on a decision of the Ontario Court of Appeal. The trial judge found that they held no malice towards the appellant. The appellant was not mistreated. The inspectors informed the appellant of his right to counsel immediately upon arrest. Under these circumstances the violation can hardly be seen as deliberate or flagrant.

The offence with which the appellant was charged constitute serious social evils. The narcotics are an essential piece of evidence to substantiate the charge. It was conceded by the defence at trial that the customs inspectors, acting on the information received from the R.C.M.P. had reasonable and probable grounds to stop and search the appellant. In my view, the decision to exclude the evidence in light of all the circumstances would do violence to the repute of the justice system. I am therefore of the view that admission of the evidence would not bring the administration of justice into disrepute.

For these reasons I would dismiss the appeal.

The following are the reasons delivered by

McIntyre J.‑‑Following this Court's judgment (given concurrently) in R. v. Simmons, [1988] 2 S.C.R. 495, I would dismiss the appeal for the reasons given by the Chief Justice.

The following are the reasons delivered by

Wilson J.‑‑I have had the benefit of the reasons of the Chief Justice and, although I am in agreement with his disposition of the appeal, I believe that the Court should address the question whether, in the circumstances, the search of the appellant was a reasonable one under s. 8 of the Canadian Charter of Rights and Freedoms . As will have been apparent from my concurring reasons in R. v. Simmons, [1988] 2 S.C.R. 495, I find it impossible to treat a denial of the right to counsel under s. 10(b) of the Charter prior to the conduct of a search under s. 8 as wholly distinct from the question whether the s. 8 search was reasonable. The two, in my opinion, are inextricably linked and clearly arise on the facts of this case.

When the appellant reached the border crossing at Douglas point he had been under active surveillance by members of the Royal Canadian Mounted Police (R.C.M.P.) and the customs officials had been alerted by the R.C.M.P. to the fact that the appellant would shortly be arriving at the border crossing and attempting to bring narcotics into the country. After a brief period of routine questioning the appellant was directed to enter an interview room in the main customs building. There was nothing to indicate to the appellant that this was other than a routine inspection. It was, of course, not a routine inspection. As the trial judge found: "The Customs inspectors were, in fact, acting on a pretense or pretending to Jacoy that this was, in fact, just a routine question period".

As the Chief Justice has found, the appellant was detained by the customs officials within the meaning of s. 10(b) of the Charter and denied his right to counsel when he was directed to enter the interview room at 1:15 p.m. It was at that point of time that he should have been informed of his right to retain and instruct counsel without delay. As was the case in Simmons, the advice of counsel would have been highly useful to the appellant in ensuring that he obtained the full benefit of ss. 143 and 144 of the Customs Act, R.S.C. 1970, c. C‑40. At no time was he apprised of his statutory right to demand higher authorization for the searches which were conducted.

The searches began at approximately 1:26 p.m. when Superintendent Wilson ordered the appellant to empty his pockets on the table and also to place his hands against the wall and spread his feet in order to be searched or "frisked". During this search a bag of cocaine was discovered in the appellant's left sock. The appellant was then arrested, handcuffed and informed that he was under arrest, that he had a right to retain and instruct counsel without delay, and that he did not have to say anything. As might be expected, the appellant asked to phone his lawyer at that point. He was not allowed to do so but was told that he would be allowed to do so "at the earliest possible convenience".

It goes without saying that "the earliest possible convenience" is not the constitutional standard under s. 10(b). In this case the "earliest possible convenience" turned out to be over two hours after the appellant's original request to call his lawyer was made and after several searches had been conducted which revealed additional evidence of cocaine. This delay in respecting the right to counsel is clearly unacceptable. Going through the mechanics of informing persons under arrest or detention of their right to retain and instruct counsel without delay and then denying them the right to do so does not meet the requirements of s. 10(b). The appellant's request should have been honoured and all attempts to elicit evidence should have ceased until a reasonable opportunity to contact counsel had been provided: see R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241‑44. The search, in my view, was therefore unconstitutional and unreasonable under s. 8. As in Simmons, the search under s. 8 was not only per se unreasonable because of its unconstitutionality, it was also conducted in an unreasonable manner in that, despite repeated requests by the appellant to call his lawyer, the police officers continued to deny him his right to contact counsel, telling him at one point that he would only be permitted to do so after a search warrant on his Vancouver residence had been executed. This is unacceptable under the Charter . It is totally incompatible with the plain words "without delay".

I would add that in situations involving searches and seizures during periods of arrest or detention the citizen's right to retain and instruct counsel without delay under s. 10(b) of the Charter and his or her right to be secure against unreasonable search and seizure are mutually re‑inforcing. The right to counsel is surely the main safeguard to the citizen that his or her other rights will be respected.

The following are the reasons delivered by

L'Heureux‑Dubé J.‑‑Given my reasons and the Court's judgment in R. v. Simmons, [1988] 2 S.C.R. 495 (given concurrently), I would dismiss the appeal.