THE THIN BLUE LINE:CUSTOMS SEARCHES AND THE

CHARTER OF RIGHTS

Fergus Cohn 0 Donnell*

I. INTRODUCTION

We live in interesting times. The Canadian Charter of Rights andFreedoms1 i's still in its infancy. It stands as a symbol of our society'scommitment to the preservation of basic human rights. While it may wellbe true to say that the entrenchment of the Charter and the "patriation"of the Canadian constitution were events that "no one cheered",2 it isclear that the coming years will witness the mobilization of the country'sgreatest legal minds -judges, lawyers and academics - in an attempt toput meaning into the bare words of the Charter. At the same time, theCharter possesses a considerable potential to do harm. The mostimmediate cost imposed by the Charter is the widespread uncertaintyover the meaning of its various provisions, even now, some two yearsafter its main body came into effect. As Charter cases have emanatedfrom lower courts, judicial opinions have varied widely. As a result, thetrue effect of the Charter will not be fully known for some time. Essentialconsistency in Charter decisions will come only after the nation's highestcourt has had an opportunity to provide some measure of guidance. Thetime and thought devoted to formulating that guidance will havewidespread effects - for better or for worse - on the country.

The Charter is designed to regulate the conduct of government in itsdealings with the citizenry and to put some limits on the state's powers inthis relationship. One of the matters that may come under the highestlevel of judicial scrutiny with the entrenchment of the Charter is theborder search practices of Canada Customs. Some courts have alreadybeen called on to test the reasonableness of Customs searches undersection 8 of the Charter. The issue merits attention because of the vitalfunction Customs plays in this country. The Customs search process alsoraises the subsidiary issues of what constitutes a "detention" undersections 9 and 10 of the Charter, what reasonable limits on rights andfreedoms can be justified in a free and democratic society under section1, and what role the exclusion of evidence under section 24 should play

Student-at-law, Toronto.

Constitution Act, 1982, Part I, enactedby Canada Act, 1982, U.K. 1982,c. 11.2 AND No ONE CHEERED: FEDERALISM, DEMOCRACY AND THE CONSTITUTION

ACT (K. Banting & R. Simeon eds. 1983).

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in the Customs context. However, before one can proceed to considerthese questions it is imperative to have an accurate understanding of thefunctions of Canada Customs.

II. THE ROLES OF CUSTOMS IN GOVERNMENT

Customs and Excise is one of the divisions of the federal Departmentof National Revenue. Most Canadians have an adequate understanding ofthe functions of the taxation division of the same department. In contrast,one of the most striking characteristics of Canada Customs is that veryfew people fully understand its roles. The knowledge of most people -lawyers and judges included - is limited to their exposure to theCustoms process when they are entering Canada or some other country.To many, Customs is little more than a temporary inconvenience. Yet,unbeknownst to the great majority of Canadians, the same departmentthat seemingly accomplishes little more than delaying one's return homeafter a trip abroad actually handles the much larger task of implementing- and often formulating - much of Canada's national policy oninternational trade, the economic system, and public health and safety. 3

The extent of public understanding of this fact is very limited:

[Clustoms administration is one of the least visible and least understoodgovernment functions. . . . On the whole, there are few who understandcustoms administration beyond those who are regularly involved in theprocess - Customs personnel, importers, and a relatively small number ofcustoms brokers and lawyers specializing in customs matters. The system hasbeen, and to a large extent, still is, an insulated area, ingrown and relativelyunaffected by developments in other fields. 4

The unparalleled breadth of Customs' role in national public policyis indicated to some extent by the fact that the Department's officers areresponsible, in whole or in part, for the enforcement of a staggering listof some sixty-four federal statutes, a list that runs the alphabet from A toV. Among these responsibilities are the control of diseased animals,hazardous products, narcotics and other prohibited items, copyright andtrademark violations, cultural property, endangered species and energyexports. The Department also implements national policy in itsprotection of Canadian industry from dumping by foreign manufacturersand in its safeguarding of the national revenue.

Accordingly, over the past three fiscal years5 the Customs servicehas accounted for an average of almost five billion dollars in revenue for

3 Gerhart, Judicial Review of Customs Seriice Actions, 9 LAW & POL. INT'L Bus.1101, at 1103-04(1977).

4 Id. at 1103.- 1980-81, 1981-82, 1982-83.

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the federal coffers. 6 On average, Customs provides 9.25% of thegovernment's total budgetary revenue,7 far behind the personal incometax which is the source of almost half of federal revenue, but close behindthe second- and third-ranked federal income sources, the corporateincome tax and federal sales tax.

In addition to providing a substantial amount of the revenue neededto pay for federal programs, Customs controls the entry of all types ofgoods into the country. The 2,900 border examining officers8 make upone of the largest law enforcement agencies in the country. However,their number is small when one considers the length of the border Canadashares with the United States, the extent of its coastline and the numerousairfields in the country. In a typical year these officers performapproximately eighty million primary examinations of people seekingadmission to Canada and their goods. 9 Over ten million secondary (indepth) examinations are also performed.' 0 The magnitude of the task isfurther demonstrated by the fact that in the 1982-83 fiscal year Customsofficers completed 7,590,173 import entries and 2,880,357 exportentries. In the same year Customs seizures at ports of entry numbered16,644, with a seizure value of $6,519,348.55."1 These are fairly highfigures. Often, however, the value of the seizure lies not so much in therevenue and penalties assessed, but in its specific and general educativeeffect. Because of the massive number of people entering Canada eachday, the quantity of imports, and the impossibility of checking allvehicles and shipments thoroughly, Customs must of necessity be alargely self-assessing system, relying on the honesty and accuracy of allimporters. The seizure process is the key to maintaining the integrity ofthe entire system by providing an effective disincentive to dishonesty. Abroad range of powers to some extent makes up for the formidable taskthe Department faces.

'3 These figures and many others relating to Customs operations are based on dataprovided through the gracious offices of Mr. Sam Leslie, Chief, Collections andManagement Information, Customs Field Operations Branch, and S. Parent, Co-ordinator, Access to Information and Privacy, Customs and Excise, Ottawa.

Precise figures for the three years are: 1982-83: $4,456,588,714; 1981-82:$5,168,193,326; 1980-81: $4,784,392,761.

7 See CANADIAN TAX FOUNDATION, THE NATIONAL FINANCES 1982-83 (1983).1 In 1982-83 the Department employed 1,164 border examining officers in

commercial operations and 1,784 for "international traffic" (i.e., non-commercial).1 1980-81: 83,575,084; 1981-82: 78,773,995; 1982-83: 74,054,604; an average

of approximately 78.8 million per year. The recent decline reflects economic conditions.More than half of the total is accounted for by the nine largest ports of entry: Fort

Erie, 7.4 million; Windsor Tunnel, 6 million; Windsor Bridge, 5.3 million; NiagaraRainbow, 4.2 million; Toronto Terminal 2, 3.6 million; Pacific Highway, 3.6 million;Sarnia, 3.2 million; Niagara Queenston, 2.7 million, and Toronto Terminal 1, 2.3million (1982-83).

10 1980-81: 10,842,374; 1981-82: 10,181,344; 1982-83: 9,320,800.1 These figures do not include seizures made by the R.C.M.P. and by Customs

investigators inland, which numbered 2,779 in 1982-83, with a total seizure value of$3,399,942.

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Customs is concerned not only with thwarting the avoidance ofduties and taxes on smuggled goods; it also has a role to play inprotecting Canadian public health and safety by excluding prohibitedgoods. The Department must exclude diseased plant and animal materialand various hazardous products before they have the chance to do harm.Furthermore, Customs bears a large part of the burden of controlling thetrade in narcotics, prohibited and restricted weapons, and pornography. 2

In terms of weapons, the presence of the United States as a neighbouralong a three thousand mile frontier is a major threat to Canadian healthand safety. Weapons ownership is more widespread in the United Statesthan in Canada and American visitors often bring undeclared offensiveweapons with them when visiting. The danger faced by Customs officerswill eventually be faced by the Canadian public if proper border controlis not maintained:

In addition to physical assault, which is the most significant hazardconfronting customs inspectors, other health and safety problems listedinclude dealing with drug traffickers, wanted fugitives, smugglers, prisonersand intoxicated people. . . . The problems for customs inspectors havebecome more serious because of the increase in drug trafficking, smugglingand prison escapes in the last ten years. The job includes keeping a lookoutfor a "stunning total" of approximately 100,000 wanted individuals, manyof whom are armed and dangerous.13

The narcotics trade is a particular threat to national health andsafety. The peculiar concern the government has about the internationaldrug trade is manifested in subsection 5(2) of the Narcotic Control Act 4

which imposes a minimum penalty of seven years' imprisonment forimporting or exporting a narcotic. The drug trade also has a strongsnowball effect:

It is no secret that money used to buy drugs is often obtained from othercrimes such as robbery, burglary and the like. Those who profit in the drugtrade take a direct aim at the moral fibre of this country. They are doing it fortheir own greed and amusement without any concern for the ordinarylaw-abiding Canadian who pays the bill for the havoc they create.' 5

12 At one typical Customs port of entry last year, of 800 seizures made, 350

involved arms, drugs or pornography: Obscene Materials, Weapons Seized bY CustomsOfficials, The Sarnia Observer, 27 Dec. 1983, at 17, col. 1.

13 Corrective Measures.for Customs Inspectors, THE ARGUS-JOURNAL, 8 (Jun.1981).

14 R.S.C. 1970, c. N-I.15 R. v. Newall (No. 4), 70 C.C.C. (2d) 10, at 16, 2 C.R.R. 156, at 162

(B.C.S.C. 1982).

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It is significant that of the 16,644 seizures made by Customs in 1982- 83,2,894, or more than one in six, were cases of narcotics smuggling, andthis is only the tip of the iceberg. 16 As a result of a current world heroinglut and the sharp crackdown by United States Customs (with theassistance of the United States Coast Guard and armed forces) on theimporting of drugs to the United States via the Caribbean and the Floridacoast, Canada has become a much more attractive gateway to narcoticssmugglers. For example, in 1982, 14.1 million dollars worth of harddrugs were seized at Pearson International Airport in Toronto. In 1983the figure had risen fourfold to 56 million dollars.

Customs also performs an important role in controlling the entry ofpersons into Canada. The Customs primary officer is responsible for theprimary immigration examination. In 1982 Customs referred approxi-mately two million people to Immigration Secondary for detailedquestioning and documentation. 17 In addition to the usual issuing ofvarious visitors' permits, the 353 Immigration Examining Officers tookaction that resulted in the exclusion of 66,967 persons from Canada. In16,742 of these cases formal reports on the subjects were prepared andsubmitted to a Senior Immigration Officer for review. Almost 3,700 ofthe reports concerned people seeking entry, ostensibly as temporaryvisitors, but in fact as illegal immigrants. Another 1,611 dealt withconvicted criminals seeking admission to the country in violation of theImmigration Act, 1976.18 Had these people not been detected byCustoms and Immigration inspection, the integrity of Canada's immigra-tion selection process would have been compromised and Canadianswould have been exposed to the dangers of a large visiting criminalelement.

The final indicator of the importance of Customs to the nationalwelfare is the opinion of Parliament, as expressed in the Customs Act' 9

itself. The Act provides a scheme of administrative forfeitures andpenalties against smugglers, with the further option of criminalproceedings. The criminal sanctions are remarkable for their frequent useof minimum sentences.2" The Act also exhibits considerable caution bycreating specific offences in relation to Customs operations that are

16 It has been estimated that very little of the "'hard" drugs smuggled acrossnational boundaries is detected, perhaps as little as 1-3%: Turner, Comment, 56 B.U.L.REV. 940, at 942-43 & n. 20 (1976), and certainly less than 10%: Metro's Airport NewHard Drug Route: RCMP, Toronto Star, 5 Jan. 1984, at A6, col. 5.

17 From data provided by M. Roch Rollin, Ontario Region Public Affairs, CanadaEmployment and Immigration Commission.

18 S.C. 1976, c. 52.19 R.S.C. 1970, c. C-40.20 See, e.g., para. 192(2)(b) and sub. 192(3) for the offences of smuggling or

otherwise attempting to defraud the revenue; s. 184 on procuring persons to smuggle;and sub. 236(1) concerning bribery of Customs officers.

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already provided for generally in the Criminal Code. 2 Examples of thisare subsection 236(1) of the Customs Act, which prohibits collusiveseizures and the taking of bribes by Customs officers ,22 and subsection204(2), which makes it an offence to carry weapons while smuggling. 23

The government has also severely limited the public's opportunity to suea Customs officer for any act done in the performance of his duties. Inaddition to the typically short limitation period, 24 the Act requires thatbefore instituting an action the plaintiff must serve notice of hiscomplaint on the officer and give him time to "tender amends" .25 Noverdict at trial can be given for the plaintiff unless he proves that suchnotice was in fact given. If the officer has tendered amends and theplaintiff nonetheless proceeds to trial, a finding by the judge that theamends were sufficient entitles the officer to judgment and the full costsof his defence. 26 Finally, in any action for damage occasioned by anofficer's conduct, a finding that the officer acted on "probable cause"has the effect of limiting the plaintiff's recovery for the damage done totwenty cents and denying him the costs of his action. 27

As is noted below, the Customs Act also gives officers very broadpowers of search in the enforcement of the Act and related legislation. Itis one of the rare statutes under which writs of assistance are issuable. 28

This fact was bemoaned by Mr. Justice Collier in In Re Writs ofAssistance when he said: "As a relative new-comer to this Court, I wasinitially shocked and incredulous that the Court should be asked orrequired, on such fragile and unenlightening material, to lend itsauthority to the clothing of an unknown government officer with suchextensive unlimited powers. ' 29 However, Collier J. was writing underthe shadow of the remarkable excesses of the executive branch of theUnited States government at the time. 30 The same apprehension is notwarranted in the Canadian setting. The granting of broad powers toCustoms officers in order to allow them to perform a Herculean task issimply the obverse of the old Biblical adage: "For unto whomsoever

21 R.S.C. 1970, c. C-34.22 See also Criminal Code, R.S.C. 1970, c. C-34, s. 111 on breach of trust by a

public officer and s. 109 on bribery of peace officers and public officers. Under s. 2 ofthe Criminal Code, Customs officers are both peace officers and public officers.

23 See s. 83 of the Criminal Code on the use of a firearm during the commission ofan offence.

24 Customs Act, R.S.C. 1970, c. C-40, sub. 148(1) provides a three-monthlimitation period.

21 Subs. 146(1), 147(1).26 Subs. 147(2), 147(3).27 S. 149.28 Ss. 139, 145.29 [ 1976] 1 F.C. 254, at 255, 34 C.C.C. (2d) 62, at 63 (Trial D. 1975). See also In

re Writs of Assistance, [ 1965] 2 Ex. C.R. 645, at 647-48 (1965) (Jackett P.).30 Id. at 257, 34 C.C.C. (2d) at 65.

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much is given, of him shall be much required: and to whom men havecommitted much, of him they will ask the more." 3'

The final provision in the Customs Act that demonstrates theimportance that Parliament attaches to the due enforcement of Customslegislation is section 141. This section deals with the failure of a vessel inCustoms waters to come to a halt when called upon to do so by a Customsvessel. One would have to look far to find a more explicit authorizationof the use of deadly force in Canadian law enforcement, or a broaderindemnity for the Crown and its officers.3 2

What the foregoing serves to show is that the operations of Canada'sCustoms service are unique. The importance of Customs enforcement tothe national interest is hard to exaggerate. This will have to be a majorconsideration when courts consider the effect of the Charter on Customsexaminations and seizures.

III. THE CHARTER OF RIGHTS AND CUSTOMS SEARCHES

A. On Being Reasonable

Section 8 of the Charter states:

Everyone has the right to be secure against unreasonable search or seizure.

This provision, like the other legal rights provisions, is clearly notabsolute. The drafters of the Charter did not propose a blanketprohibition of searches and seizures. Rather, only those searches that are"unreasonable" are prohibited. It is best to keep in mind the OxfordDictionary's definition of "reason" as "[s]ense, sensible conduct, whatis right or practical or practicable, moderation", and of "reasonable"conduct as conduct that is "[i]n accordance with reason, not absurd;within the limits of reason, not greatly less or more than might beexpected; ...tolerable, fair".33 These definitions implicitly recognizethat what is reasonable or unreasonable in any given situation will dependultimately on the facts of that particular situation. For the Charter'spurposes, there can be no universally applicable definition of what is areasonable search. 34

31 Luke 12:48(King James).

32 Sub. 25(4) of the Criminal Code is considerably more circumspect in itsauthorization of the use of force to prevent the flight of a person about to be arrested.

11 THE CONCISE OXFORD DICTIONARY 930 (6th ed. 1976).31 A detailed examination of the burden of proof is beyond the scope of this paper.

However, it would seem that the opinion expressed by, inter alia, Seaton J.A. in R. v.Collins, [ 1983] 5 W.W.R. 43, at 51, 148 D.L.R. (3d) 40, at 46 (B.C.C.A.) is manifestlysound: he who alleges that a search was unreasonable has the onus of proving that fact ona balance of probabilities.

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Some other preliminary observations about the Charter are in order.The first is that the enactment of the Charter places a very real burden onCanada's judiciary. Never before have the members of this body been somuch in the public spotlight. Although the Charter may have blurred thedistinction, they continue to be judges rather than elected legislators. Thetask of defining the Charter's place in Canadian law is now theirs. Thishas been recognized by the Ontario High Court of Justice in R. v. Siegel35

and in Re R. and Potina .36 In the latter case, Eberle J. noted eloquentlythat:

[T]he Charter was not passed in a vacuum. This country has a well developedand long established system of laws .... It cannot be thought that the intentof the provisions of the Charter that are in issue in this case, is to undermineand bring to the ground the whole framework of laws and the legal system ofthe country at the stroke of a pen, even if it be a Royal pen.37

Together with its potential enlargement of judicial power, theCharter creates a corresponding duty in judges to recognize theirnew-found obligations as guardians of the Charter's integrity, a swordthat cuts both ways. As Zuber J.A. stated for the court in R. v. Altsemner:

In view of the number of cases in Ontario trial courts in which Charterprovisions are being argued, and especially in view of some of the bizarre andcolourful arguments being advanced, it may be appropriate to observe that theCharter does not intend a transformation of our legal system or the paralysisof law enforcement. Extravagant interpretations can only trivialize anddiminish respect for the Charter which is a part of the supreme law of thiscountry .38

In addition to safeguarding the Charter's integrity, judges must be carefulto maintain their own. There is still a clear separation between thejudicial and the legislative functions in this country. While the Charterbroadens the grounds on which a court can find an act of Parliament or ofa legislature "unconstitutional", constitutionality nonetheless remainsthe test. As Mr. Justice Laskin (as he then was) pointed out in Curr i%The Queen, courts must be careful to "resist making the wisdom ofimpugned legislation the test of its constitutionality" .

39

Finally, in interpreting the Charter, judges will be required to resistsuccumbing unthinkingly to all of the expansive and sometimesextravagant rhetoric of this area of law. It has become common to cite thejudgment of Lord Wilberforce in Minister of Home AJt/itrs v. Fisher,wherein he deals with the Bermudian Constitution and says in part:

These antecedents, and the form of Chapter I itself, call for a generousinterpretation avoiding what has been called "the austerity of tabulated

35 39 O.R. (2d) 337, at 348, 2C.R.R. 180, at 191 (H.C. 1982).36 370.R. (2d) 189, 67C.C.C. (2d) 19 (H.C. 1982).37 Id. at 200-01, 67 C.C.C. (2d) at 27-28.38 380.R. (2d) 783, at 788, 2C.R.R. 119, at 124 (C.A. 1982).

39 [1972] S.C.R. 889, at 903, 7 C.C.C. (2d) 181, at 194 (emphasis added).

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legalism," suitable to give to individuals the full measure of the fundamentalrights and freedoms referred to. 40

As Lord Wilberforce makes clear, bills or charters of rights, by theirnature and purposes, call for a more expansive interpretation than doordinary acts of the legislature. However, this predilection towards" generous" construction can become a trap for the unwary. ProfessorRussell is only one of those who have sounded a caution:

Even if Canada does experience a relatively liberal period of judicialreview under the Charter, it does not follow that all of the consequences forfundamental rights and freedoms will be positive. To begin with rights andfreedoms conflict with one another. A freedom may be expanded at theexpense of another right. It is not difficult to think of possibilities . . . con-traction of police powers through interpretation of legal rights may betterprotect the rights of criminally accused while diminishing the effectiveprotection to the right to life and personal security of the victims of crime.

[This suggests] how facile it is to regard a broad, liberal construction of aguarantee as always yielding the most reasonable balance .... 41

B. The Customs Act and Border Searches

In addition to the Charter's prohibition of unreasonable searches andseizures, there are provisions in the Customs Act itself that deal withsearches by Customs officers. These too impose a standard of reason-ableness. Under the heading "Powers and Duties of Officers" is thegeneral enabling provision:

133(1) Every [officer employed for the prevention of smuggling and theenforcement of this Act] . . may, upon information, or upon reasonablegrounds of suspicion, detain, open and examine any package suspected tocontain prohibited property or smuggled goods, or goods respecting whichthere has been any violation of any of the requirements of this Act, and maygo on board and enter into any vessel or vehicle of any description whatever,and may stop and detain the same, whether arriving from places beyond orwithin the limits of Canada, and may rummage and search all parts thereof forsuch goods. [Emphasis added]

Under the separate heading, "Search of the Person", it is providedthat:

143. Any officer. . . may search any person on board any vessel or boatwithin any port in Canada, or on or in any vessel, boat or vehicle enteringCanada by land or inland navigation, or any person . . . who has come intoCanada from a foreign country in any manner or way, if the officer . . . hasreasonable cause to suppose that the person searched has goods subject toentry at the customs, or prohibited goods, secreted about his person.[Emphasis added]

40 [ 1980] A.C. 319, at 328, [1979]3 All E.R. 21, at 25 (P.C. 1979) (Bermuda).41 Russell, The Political Purposes of the Canadian Charter of Rights and

Freedoms, 61 CAN. B. REv. 30, at 49-51 (1983).

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Section 144 provides that the person to be searched may require that hebe taken before a justice of the peace or the chief duty officer of the portto have the reasonableness of the grounds for a personal searchdetermined. This must be done with "all reasonable dispatch" .42 It isCustoms' practice to have the person to be searched read the provisionsof sections 143 and 144 before any personal search is conducted. Finally,section 233 of the Act provides that "[i]f any officer requires any personto be searched without reasonable cause, such officer shall incur apenalty not exceeding forty dollars".

C. The United States Fourth Amendment and the Charter

Before proceeding to consider the interaction of section 8 of theCharter and the Customs Act provisions concerning border searches, itwould be salutary to consider the experience in the United States. Indoing so, one is mindful of the admonishment of Brooke J.A. in R. v.Carter that when dealing with the provisions of the Charter,

it is important that we seek to develop our own model in response to presentvalues on the facts of cases as they arise rather than adopting the law ofanother country forged in response to past events. 43

However, as Mr. Justice Brooke admits, United States cases maynevertheless be persuasive references in particular situations. It would befoolish for us to refuse to learn from the experiences and errors of others.As we are often reminded, those who forget the past are condemned torelive it.

The Fourth Amendment to the United States Constitution reads:

The right of the people to be secure in their persons, houses, papers andeffects, against unreasonable searches and seizures, shall not be violated, andno warrants shall issue but upon probable cause....

Like section 8 of the Charter, the Fourth Amendment is part of the"Supreme Law of the land"." Also, like section 8, the FourthAmendment prohibits only unreasonable searches and seizures. Reason-ableness has always been the standard used by United States courts intesting the validity of police searches ."5 However, the general definition

42 Customs Act, R.S.C. 1970, c. C-40, sub. 144(2).43 39 O.R. (2d) 439, at 441, 144 D.L.R. (3d) 301, at 305 (C.A. 1982). See also R.

v. Therens, 23 Sask. R. 81, at 90, 148 D.L.R. (3d) 672, at 692 (C.A. 1983) (TallisL.A.), leave to appeal granted 148D.L.R. (3d) 672n (S.C.C. 1983).

4 U.S. CONST. art. VI, § 2. See also sub. 52(1) of the Charter.45 See United States v. Guadalupe-Garza, 421 F.2d 876, at 878 (9th Cir. 1970).

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of reasonableness has put fairly strict limits on police search powers. Thestandard as set out in Katz v. United States46 and reiterated by the UnitedStates Supreme Court in Coolidge v. New Hampshire47 equates areasonable search with one done under a search warrant: "[T]he mostbasic constitutional rule in this area is that 'searches conducted outsidethe judicial process, without prior approval by judge or magistrate, areper se unreasonable under the Fourth Amendment - subject only to afew specifically established and well-delineated exceptions'. '

"48 Thebasic underpinning of any United States search warrant, according to theFourth Amendment, is probable cause. To justify the issuance of a searchwarrant, probable cause may be defined as "facts or apparent facts,viewed through the eyes of an experienced police officer, which wouldlead a man of reasonable caution to believe that there is somethingconnected with a violation of law on the premises to be searched".49Among the "building blocks" the courts recognize in the creation ofprobable cause are flight or furtive movements, resistance to officers,evasive answers or unreasonable explanations, contraband or weapons inplain view, a prior criminal record, hearsay information and admis-sions. 50

However, as the court implied in Coolidge,51 there are someexceptions to the general warrant requirement. These are usuallysituations where the courts feel the public interest outweighs anindividual's Fourth Amendment rights. 52 The main exceptions are:consent searches;5 3 searches of certain heavily regulated businesses (e.g.liquor or firearms) where the expectation of privacy is reduced; 54 items in"plain view" and police inventory searches; 55 searches of highly mobilevehicles with probable cause; 56 searches incident to a valid arrest;57 street

46 88S. Ct. 507, at 514(1967).47 91 S. Ct. 2022(1971).48 Id. at 2032.49 J. CREAMER, THE LAW OF ARREST, SEARCH AND SEIZURE 8-9 (3d ed. 1980).50 Id. at 15.51 Supra note 47.52 Sims, Comment, 65 GEO. L.J. 1641, at 1644-45 (1977).53 Turner, supra note 16, at 947-48 & n. 59.54 Marshall v. Barlow's Inc., 98 S. Ct. 1816, at 1820-21 (1978); United States v.

Biswell, 92S. Ct. 1593, at 1596(1972).55 Harris v. United States, 88 S. Ct. 992, at 993 (1968). See also R. v. Shea, 38

O.R. (2d) 582, 2C.R.R. 1 (H.C. 1982).56 J. CREAMER, supra note 49, at 4. See also Martinez-Fuerte v. United States, 96

S. Ct. 3074, at 3084(1976).57 Turner, supra note 16, at 947-48& n. 59.

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frisks in some situations; 58 and border searches. 59 This final exceptionwill be discussed in more detail later in this article.

In their analysis of the individual's rights under the FourthAmendment generally, and in the border context specifically, UnitedStates courts have long considered "balancing" to be an acceptabletool. 60 Generally, if the citizen's "privacy interests outweigh the lawenforcement needs of the government, [his] expectations . . . to be freefrom government interference are protected by the Fourth Amend-ment".61 United States courts consider several factors in effecting abalance between the rights of the individual and the rights of societygenerally. Among these are: whether the intrusion is hostile or simply anannoyance; 62 whether there is a stigma attached to being the object ofenforcement action; 63 whether the government could attain its goal in aless intrusive manner; 64 and whether the ratio of innocent to guiltycitizens affected by the officer's conduct is low or high. 65 Later in thisarticle the outcome of the balancing process in the border situation willbe examined in some detail.

Balancing also has a long history of judicial acceptance in Canadiancourts. In dealing with the Canadian Bill of Rights 66 in Robertson andRosetanni r. The Queen, Mr. Justice Ritchie emphasized that:

It is to be remembered that the human rights and fundamental freedomsrecognized by the Courts of Canada before the enactment of the Canadian Billof Rights and guaranteed by that statute were the rights and freedoms of menliving together in an organized society subject to a rational, developed and

" Terry v. Ohio, 88S. Ct. 1868, at 1879-80(1968).59 Almeida-Sanchez v. United States, 93 S. Ct. 2535, at 2537 (1973); Rivas v.

United States, 368 F.2d 703, at 709 (9th Cir. 1966); Marsh v. United States, 344 F.2d317, at 324(5th Cir. 1965).

The majority of American cases dealing with border searches originate in the 5thand 9th Circuits of the United States Court of Appeals. Between them these two circuitscover all but one of the states that border Mexico and the southern seaboard.

60 Delaware v. Prouse, 99 S. Ct. 1391, at 1397-98 (1979); Martinez-Fuerte, supranote 56, at 3082-84; United States v. Brignoni-Ponce, 95 S. Ct. 2574, at 2581-82(1975); Camara v. Municipal Court of San Francisco, 87 S. Ct. 1727, at 1735 (1967).

61 Morrison, Comment, 68 Gao. L.J. 1035, at 1045 (1980).62 See Camara, supra note 60, at 1731 regarding area inspections as a means of

controlling building and health violations.63 Martinez-Fuerte, supra note 56, at 3084. This case involved an immigration

checkpoint 66 air miles north of the border which was held to be valid even withoutprobable cause. According to Powell J.: "Selective referral may involve someannoyance, but it remains true that the stops should not be frightening or offensivebecause of their public and relatively routine nature."

64 Delaware v. Prouse, supra note 60, at 1399. (Random stops to find drivingviolations give the individual officer too much discretion, in contrast to thequasi-permanent roadblock in Martinez-Fuerte, supra note 56.)

65 See United States v. Brignoni-Ponce, supra note 60, at 2581 in regard to rovingimmigration patrols designed to control illegal aliens. See also Morrison, supra note 61,at 1046-47.

61 R.S.C. 1970 (App. III).

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civilized system of law which imposed limitations on the absolute liberty ofthe individual.

67

Canadian courts have also used a balancing approach in their determina-tion of what is reasonable conduct under the Charter. In Re FederalRepublic of Germany and Rauca the Ontario Court of Appeal "recog-nized that the listed rights and freedoms are never absolute and that thereare always qualifications and limitations to allow for the protection ofother competing interests" .68 In section 8 cases specifically, this type ofbalancing analysis has been applied to determine the reasonableness ofseizing a hospital blood sample under warrant in an impaired drivingcase, 69 of Combines Investigation Act7 0 proceedings,'1 of strip searchesof prison inmates, ' 2 and of the taking of fingerprints 7'3 under theIdentification of Criminals Act.74 The Law Reform Commission ofCanada also recognizes the necessity of a balancing approach indetermining the reasonableness of searches and seizures in its workingpaper on search powers in criminal law enforcement. 75

It has been noted in passing that the generally applicable FourthAmendment rules are not applied to Customs searches in the UnitedStates. The relevant enabling provision in American Customs legislationstates:

Any officer of the customs may at any time go on board of any vessel orvehicle at any place in the United States or within the customs waters...and examine the manifest and other documents and papers and examine,inspect, and search the vessel or vehicle and every part thereof and anyperson, trunk, package, or cargo on board, and to this end may hail and stopsuch vessel or vehicle, and use all necessary force to compel compliance.7

1

This extremely broad power of Customs search has long been upheld byUnited States courts and border searches have been consciously

67 [1963] S.C.R. 651, at 655, 41 D.L.R. (2d) 485, at 492.68 41 O.R. (2d) 225, at 241, 4 C.R.R. 42, at 58 (C.A. 1983).61 R. v. Carter, 39 0.R. (2d) 20, 2 C.R.R. 97 (Cty. Ct. 1982).70 R.S.C. 1970, c. C-23.71 Southam Inc. v. Hunter, 42 A.R. 93, at 98-99, 4 C.R.R. 368, at 373-74 (C.A.

1983).72 Maltby v. A.G. Sask., 20 Sask. R. 366, 4 C.R.R. 348 (Q.B. 1982). See also

Bell v. Wolfish, 99 S. Ct. 1861, at 1884-85 (1979).71 R. v. McGregor, 3 C.C.C. (3d) 200, 145 D.L.R. (3d) 489 (Ont. H.C. 1983).71 R.S.C. 1970, c. I-1.75 LAW REFORM COMMISSION OF CANADA, POLICE POWERS - SEARCH AND

SEIZURE IN CRIMINAL LAW ENFORCEMENT, WORKING PAPER 30, at 11 (1983).76 Customs Duties, 19 U.S.C. §1581(a) (1976). This section has several close

parallels to ss. 133 and 143 of the Customs Act, in its expansiveness of authority and inits seemingly unlimited geographical scope. The reference to "all necessary force" isreminiscent of subs. 141(5), (6) of the Customs Act and sub. 25(1) of the Criminal Code.

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distinguished from police searches within the nation's boundaries. 77 Forthe most part, a search, either with or without a warrant, is onlyreasonable if it is based on probable cause. 78 However, the border searchcontext is one of the rare instances in which American courts have beenwilling to waive both the warrant requirement and the probable causerequirement]79 For instance, while some administrative searches" arefree from the requirement of underlying probable cause in the criminalsense, the courts have still insisted that officials obtain a warrant.81 Andwhile searches incidental to an arrest are free from a warrant require-ment, the absence of underlying probable cause for the arrest can be fatalto the constitutionality of the search.8 2

Yet the courts' apparent deference in border search cases is not aproduct of slavish acceptance of the wording of subsection 1581 (a) of theUnited States Code. United States courts are not noted for theirreluctance to put restraints on the powers of government. The dictum ofthe Ninth Circuit of the United States Court of Appeals in Alexander v.United States is noteworthy:

In conferring upon Customs officers such broad authority, circumscribedonly by Constitutional limitations of the Fourth Amendment, the Congress hasin effect declared that a search which would be "unreasonable" within themeaning of the Fourth Amendment, if conducted by police officers in theordinary case, would be a reasonable search if conducted by Customsofficials in lawful pursuit of unlawful imports .83

Congress' enactment must be considered by the court, but it is stillsubject to the ultimate test of its constitutionality. This is made moreexplicit by Mr. Justice Stewart's statement in the recent leading bordersearch case of Alineida-Sanchez v. United States that "no Act ofCongress can authorize a violation of the Constitution". 8 Ahneida-Sanchez and cases that have followed it make it eminently clear thatborder searches are given special treatment, not because Congress has sodictated, but because a rational distinction can legitimately be madebetween those searches and most other searches by law enforcementofficials. Accordingly, in United States v. Tilton85 the Ninth CircuitCourt of Appeals held that, notwithstanding the unlimited geographical

77 See, e.g., State v. Mitchell, 26 Cal. Rptr. 89, at 92 (Dist. Ct. App. 1962): "Thesearch which customs inspectors are authorized to conduct upon entry is of the broadestpossible character.... "

78 Wong Sun v. United States, 83 S. Ct. 407 (1963).79 Coolidge, supra note 47.80 See, e.g., Marshall v. Barlow's Inc., supra note 54; Camara, supra note 60.81 See Note, 5 N.Y.U.J. INT'L LAW & POL. 93, at 93 n. 1 (1972).82 J. CREAMER, supra note 49, at 99-100.83 362 F.2d 379, at 381 (9th Cir. 1966) (emphasis added).84 Supra note 59, at 2539.85 534 F.2d 1363, at 1364(9th Cir. 1976).

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scope of section 158 1(a), the Fourth Amendment requires that a Customssearch conducted without probable cause must take place at the borderitself or at the functional equivalent of the border.8 6 A search or seizureby Customs officials in the enforcement of Customs law away from theborder would have to meet the higher standard of probable cause, unlessthe government could show some apparent nexus between the act and theinternational frontier or foreign waters. 7

Having removed true border searches from the basic FourthAmendment regime of search warrants and probable cause, United Statescourts have nevertheless maintained a watchful eye over the process. Totest the conformity of border searches with the Fourth Amendment, theyhave fallen back on the fairly crude, but very flexible, standard ofreasonableness, a test which "is not capable of precise definition ormechanical application".88 Yet that standard is the basic standard foundin both the Charter and the Fourth Amendment. If probable cause is notthe essential element in a reasonable border search, what is? In UnitedStates v. Martinez-Fuerte Mr. Justice Powell indicated just how broad astandard reasonableness can be in the right circumstances:

86 I shall not deal in depth here with the question of the "functional equivalent" ofthe border. Ahneida-Sanchez, supra note 59, recognized that a valid "border search" (asdistinguished from the broader class of Customs searches) need not necessarily takeplace on the border. Such searches might legitimately take place hundreds of miles fromthe territorial frontier at an airport or even at a place some distance from the border, suchas the confluence of two roads that lead directly from the border, where a border crossingmight fairly be assumed to have taken place.

Another peripheral problem that has arisen in United States courts is the "two hat"problem. Immigration officers are also Customs officers. Because the power to searchfor aliens has a different basis than that for contraband, an Immigration officer mightinitiate a search for aliens that is valid as an alien search, and then discover contraband.This has the somewhat anomalous result of giving the Immigration officer, acting as aCustoms officer, greater search powers than an actual Customs officer in somesituations. The evidence uncovered by the Immigration officer would generally beadmissible in court because it would have fallen within the plain view of an officerlawfully entitled to be in that position.

In Canada, Immigration officers are not deputy Customs officers. However, byInstrument 1-13 in Chapter 1L3 of the Immigration Manual, the opposite is true: underthe power vested in him by s. 110 of the Immigration Act, the Minister has granted to allport of entry Customs officers the powers of an Immigration officer. This could includethe power of search granted to Immigration officers by sub. 91(1) of the ImmigrationAct. The only ground required for such a search is that a vehicle be bringing persons toCanada. Thus, a Customs officer wearing his Immigration officer's hat, might freelysearch a vessel for stowaways and in the course of such a search find contraband he hadno grounds to suspect was there. Putting on his Customs officer's hat, he could thenseize those items that are in "plain view". Such a development may be unlikely in lightof the Immigration Commission's restrictive interpretation of the s. 91 search power inparagraph IE 2.24 of the Immigration Manual. However, the manual is not law, but ismerely one of the possible interpretations of the Act, and s. 91 could easily support amuch broader interpretation than that given to it by the Department.

17 United States v. Stanley, 545 F.2d 661, at 664 (9th Cir. 1976).88 Bell v. Wolfish, supra note 72, at 1884.

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The defendants note correctly that to accommodate public and privateinterests some quantum of individualized suspicion is usually a prerequisiteto a constitutional search or seizure. . . But the Fourth Amendment imposesno irreducible requirement of such suspicion.8 9

The conclusion United States courts have reached, based on statutoryprovisions and the Fourth Amendment, is that a "basic" Customs searchwithin the border area may legally be initiated merely on the strength ofan officer's subjective suspicion of illegal activity9" or perhaps even on apurely random basis, 91 so long as there exist reasonable grounds for theofficer to believe that a border crossing has occurred. 92

D. Border Searches as a Unique Categor'

While we may take some guidance from United States cases, wemust beware of following their example blindly. The Charter is aCanadian document designed to respond to Canadian needs andcircumstances. We should adopt foreign concepts only if we canconclude on a clear analysis that they are applicable to our situation.

The first reason for regarding border searches as unique is that theyare implicitly consensual. To a certain extent this rationale is circular.However, the long history and practice of examinations at nationalboundaries itself renders the argument meritorious. International travel-lers are well aware that they may be subjected to an inspection when theyseek admission to any country, including their own. At the border they donot hold the same expectation of privacy that they might have in theirhomes or even on the streets. They do not generally consider a Customsexamination to be unreasonable. 93 Furthermore, because the individual ison notice that a search may take place at this pre-designated place,

[h]e can control the time and point along the border of his crossing, therebydetermining the time and place of any border search which may be performed.While he does not control the method of the search, he can decide whatproperty he will bring with him and thus determine what will be subject tosearch.

94

89 Supra note 56, at 3084.90 United States v. Ramsey, 97 S. Ct. 1972, at 1976-77 (1977); United States v.

King, 517 F.2d 350, at 352 (5th Cir. 1975); Shorter v. United States, 469 F.2d 61, at 63(9th Cir. 1972); United States v. Glaziou, 402 F.2d 8, at 12 (2d Cir. 1968); Alexander,supra note 83, at 382.

91 United States v. Stornini, 443 F.2d 833, at 835 (lst Cir. 1971). See alsoWaples, Note, 74 COLUI. L. REV. 53, at 56 (1974).

92 United States v. Ramsey, supra note 90, at 1980-81; United States v. Weil, 432F.2d 1320, at 1323 (9th Cir. 1970); United States v. Hill, 430 F.2d 129, at 131 (5th Cir.1970).

93 See, e.g., United States v. King,supra note 90, at 353.

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Another consideration that mitigates the invasion of the individual'srights occasioned by a border search is the fact that most of such searchesare performed on a "morally neutral class" 95 so that no rationalindividual with even an elementary understanding of the Customsfunction would feel any personal insult as a result of being singled out fora search. No stigma attaches to being selected by the primary officer for asecondary examination, as more than one person in ten is chosen for sucha search. If there is any affront to the individual's dignity it isnegligible. 96 In addition, because the examinations take place at apre-designated location and because travellers are on notice that theymay be required to submit to an examination, this kind of officialinvasion of privacy should not be in any way frightening. This can becontrasted with a roving border patrol examination that could take placeat any time or place without any forewarning whatsoever. 97 The lattersearch, while perhaps justifiable or reasonable, would be a greaterinfringement of the individual's privacy and security than the routineexamination at an international airport or land crossing.

In contrast to the slight privacy interests involved, there is a veryreal governmental interest in maintaining effective control of the nation'sborders. Just as a state is entitled to ward off aggression by another state,so it is entitled to act to protect itself and its citizens against otherexternal threats to its well-being. This is what the United States SupremeCourt has called "the long-standing right of the sovereign to protect itselfby stopping and examining persons and property crossing into thiscountry" .98 Can it be said to be unreasonable to make it incumbent upona person seeking entry to the country "to identify himself as entitled tocome in, and his belongings as effects which may be lawfully broughtin"? 99

The government's interest in control of its borders can fairly beregarded as paramount. The functions of Canada Customs have alreadybeen examined in some detail, but it may be useful to recall them brieflyhere. The Customs service is the first line of defence in the enforcement

91 Note, 93 HARV. L. REV. 725, at 734 (1980). See also United States v. Kayser,322 F. Supp. 52, at 55 (S.D. Ga. 1970) (Lawrence C.J.):

My idea is that anyone who comes into this country is subject to ordinarysearch within the area of the *barrier'. If he who is searched has nothing tohide, he has nothing to complain about. If he is squeamish about his FourthAmendment rights, let him stay out of the 'barrier'.

95 United States v. Stanley, supra note 87, at 667.N See, e.g., United States v. Stornini, supra note 9 1, at 835.97 Martinez-Fuerte, supra note 56, at 3083-84.98 United States v. Ramsey, supra note 90, at 1978. See also United States v.

Weil, supra note 92, at 1323.99 Carroll v. United States, 45 S. Ct. 280, at 285 (1925).

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of the Immigration Act, 1976100 and in the exclusion of illegal aliens andcriminals; it is often the primary actor in the exclusion of diseased plantand animal materials that could have a devastating effect on Canadianagriculture, forestry and public safety; it is still an important source ofnational revenue and the protector of Canadian manufacturers; finally, itis engaged in the ongoing battle to keep prohibited items out of thecountry, including narcotics, pornography and restricted and prohibitedweapons. The failure of the government to perform these tasks properlywould be an abdication of its responsibility to the people it serves.

Not only is border control of vital importance to Canada, it is also aparticularly difficult law enforcement task when one considers theamount of traffic involved and Canada's geography.10 1 While difficultyin enforcement alone cannot justify unreasonable official conduct, 102 itcan affect what conduct is considered unreasonable. The tension betweenindividual rights and enforcement problems cannot legitimately beresolved in all cases in favour of the individual and at the expense of allthe other individuals who comprise society. A comparison can be madebetween border searches and airport security checks:10 3 in both cases thegovernmental or societal interest so grossly outweighs the invasion ofpersonal privacy that special rules must be applied to these limitedsituations.

It is also apparent that the government considers that Customsmatters require a more expansive power of search than does criminal lawenforcement generally. The Customs Act 10 4 search provisions set arelatively low standard of cause: "reasonable grounds of suspicion" insubsection 133(1), and "reasonable cause to suppose" in section 143. Incontrast, subsection 443(1) of the Criminal Code,10 5 dealing with theissuance of search warrants, requires "reasonable grounds to believe"that some item is present and the case law has imposed standards ofspecificity. 0 6 On a plain reading of the statutory language the groundsneeded to support a "belief" are considerably greater than those thatwould be needed to support a "suspicion" or a "supposition". Anotherindication of the government's concern is that the much maligned writsof assistance can be issued to Customs officers. 0 7 In fact, the genesis ofthe writ as an instrument of public law enforcement can be traced back to

100 S.C. 1976, c. 52.101 See United States v. Glaziou, supra note 90.102 See, e.g., Torres v. Puerto Rico, 99 S. Ct. 2425, at 2431 (1979);

Alineida-Sanchez, supra note 59, at 273.103 United States v. Moreno, 475 F.2d 44, at 51 (5th Cir. 1973).104 R.S.C. 1970, c. C-40."I5 R.S.C. 1970, c. C-34.106 See, e.g., Re Purdy, 4 N.B.R. (2d) 848, 8 C.C.C. (2d) 52 (C.A. 1972); Alder

v. A.G. Alta., 5 A.R. 473, 37 C.C.C. (2d) 234 (S.C. 1977).107 Customs Act, R.S.C. 1970, c. C-40, s. 145.

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seventeenth century English Customs legislation.° 8 Extraordinary mea-sures were considered essential to vindicate a vital societal interest.

E. Dfferent Searches; Different Standards

Once we have concluded that Customs searches are a uniquesituation calling for the application of special standards of reasonable-ness, we have still answered only part of the inquiry. For our analysis hasbeen based on a balancing of the individual's interests against those ofthe government, and the balance can vary even within the Customscontext, depending on the type of search contemplated.

For our purposes, Customs searches can be divided into threeclasses: the "basic" search referred to earlier; "personal", "strip", or"skin" searches; and "body cavity" searches. What is a reasonablesearch will depend on both the intrusiveness of the search and thepeculiar facts of each situation. In general, the greater the intrusion onthe individual's privacy, the greater must be the justification forconducting such a search.

1. The Basic Customs Search

In order to conduct a vessel or vehicle search, a Customs officer isrequired by subsection 133(1) of the Customs Act to have "reasonablegrounds of suspicion" that he will find prohibited or smuggled goods.Section 8 of the Charter also requires that the search not be unreasonable.In conducting this examination the officer is empowered to "detain, openand examine any package" and "may rummage and search all parts" ofthe vehicle. The question thus becomes what should be considered"reasonable grounds of suspicion" in the border search context. Becausethe basic Customs search is so minimally intrusive, it is submitted thatthe standard should be satisfied by the simple fact of a border havingbeen crossed. "Since these searches do not intrude upon the bodilyprivacy of the entrant, little or no threshold suspicion must obtain prior tocommencing the search."' 1 9 In the circumstances, it would not seemunreasonable to accept the subjective suspicion of an experiencedCustoms officer.

Among the places that should be open to search under this basic

108 Supra note 75, at 35-36.109 Waples, supra note 9 1, at 73.

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standard are any automobile, boat or aircraft10 used in crossing theborder and any baggage carried on such vessel or vehicle. These areclearly included in the wording of subsection 133(1) of the Act. OtherCustoms search practices that should fall under the rubric of basic search,because of their limited indignity to the individual, include searching aperson's purse or wallet, requiring a person to empty his pockets and turnthem inside out or to remove for examination an overcoat or suit jacket,or to roll sleeves up or to remove footwear for examination. The onlycase that should be required to meet the strip search standard of suspicionis the case where "the subject is forced to disrobe to a state which wouldbe offensive to the average person"."1

2. The Strip Search

Because a strip search is considerably more of an indignity andembarrassment" 2 to the traveller than a search of one's effects, 13 it isfitting that a greater standard of suspicion be required before such asearch can validly be undertaken.

Section 143 of the Customs Act should pass a test of constitutional-ity under section 8 of the Charter in this regard. The standard is"reasonable cause to suppose" that the particular person searched hascontraband "secreted about his person". To warrant this type ofintrusion, section 143 should be taken to require a

subjective suspicion supported by objective, articulable facts that wouldreasonably lead an experienced, prudent customs official to suspect that aparticular person seeking to cross our borders is concealing something on hisbody for the purpose of transporting it into the [country] contrary to law.114

110 There appears to be a consensus among other common law jurisdictions

that searches of vehicles should be relatively free of the constraints ofwarrant procedure. This is partly because, although vehicles are privatedomains, they are less valued as such than places in which the individuallives or works.

LAW REFORM COMMISSION OF CANADA, supra note 75, at 175-76. See alsoMartinez-Fuerte, supra note 56, at 3084.

111 United States v. Chase, 503 F.2d 571, at 574 (9th Cir. 1974). By this standard,the case of United States v. Brown, 499 F.2d 829 (7th Cir. 1974) might be close to theline. In that case a woman cocaine smuggler was required by a female officer to lowerher skirt "a few inches" from the waist to show her midriff. The suspect's unusuallycareful fulfilment of this request gave the officer additional (and apparently sufficient)grounds to conduct a strip search, which disclosed a kilo of cocaine strapped to thewoman's body.

112 The strip search is an embarrassment not only to the traveller, but also to theofficers who are required to perform it. It is a necessary but unpopular practice.

113 While this proposition needs no authority, see R. v. Ella Paint, 51 N.S.R. 114,28C.C.C. 171 (S.C. 1917).

114 United States v. Guadalupe-Garza, supra note 45, at 879.

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This requirement of an objective basis for the officer's suspicion is animportant safeguard against capricious official conduct.115 Yet keepingthe threshold of suspicion relatively low recognizes the vital role stripsearches play in Customs enforcement. Parliament obviously considersthe hiding of goods about the person to be a serious threat to the nationalinterest. Section 204 of the Customs Act provides that any such goodsshall be seized and the smuggler shall in addition forfeit treble the valuethereof. Approximately 8,400 strip searches are performed by CanadaCustoms each year. This fairly low number (roughly one in 10,000people who enter Canada or fewer than one in 1,000 people referred forsecondary examination) indicates that the power is not being abused. Atthe same time, the number is high enough that to impose a higherstandard of suspicion might well interfere unreasonably with legitimatelaw enforcement interests. In sum, the proposed standard constitutes areasonable balance between the competing interests involved.

3. Body Cavity Searches

A body cavity search is one that involves "penetration of atraveler's mouth, rectum or vagina, or the expulsion of the contents ofthe traveler's stomach". 116 Of the three types of searches this is clearlythe one that most intrudes on the individual's rights to freedom fromofficial interference. Some writers maintain that searches of this typeshould not be permitted without a judicially issued search warrant. 117

However, this puts the standard too high, since approximately twenty percent of the international narcotics traffic is transported in bodycavities.1 18 In Reynen v. Antonenko" 9 the officers' conduct in having adoctor perform a cavity search in a domestic narcotics case was held tohave been reasonable. In contrast to that case stands the celebratedstatement of Hugessen J. in Re Laporte and The Queen:

I am not the first Judge, and I trust that I shall not be the last, to decide thatthe possibility that some guilty persons may escape the net of justice is not toohigh a price to pay for the right to live in freedom. If the Crown cannot proveits case against Laporte without doing physical violence to his person then itis better that the case be not proved.1 20

However, Laporte was not a border case and it involved actual surgery in

" Waples, supra note 91, at 77.116 Turner, supra note 16, at 950. Requiring a traveller to spread his buttocks for

visual examination properly belongs in the category of strip search rather than cavitysearch.

H7 Rempe, Comment, 10ARtz. L. REV. 457, at 467(1968).'1 Supra note 81, at 94 n.6.11 [1975] 5 W.W.R. 10, 20 C.C.C. (2d) 342 (Alta. S.C.).120 8 C.C.C. (2d) 343, at 354, 18 C.R.N.S. 357, at 369 (Que. C.S. 1972).

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search of possible evidence. There was also some chance of danger toLaporte's life as a result of the procedure.

In Schmerber v. California'' the United States Supreme Court dealtwith intrusive searches of the person in the context of a blood sampletaken from a suspected impaired driver. What the Court required tojustify such a "search" was "a clear indication that . such evidencewill be found" .122

In the same year, the Ninth Circuit Court of Appeals dealt with thecavity search issue in the border context in Rivas v. United States andrequired a "clear indication" or "plain suggestion" of this particulartype of smuggling. 123 However, this was still not as stringent a standardas probable cause, when the search had a nexus with the border. TheCourt went on to say:

If we hold that the Customs officers . . . have no right to make such asearch, how are our border guardians to stop such smuggling? We again arefaced with the practical problem: must the people of the United States permitthe wholesale introduction of narcotic drugs into the United States?

The existence of difficult problems of [law] enforcement cannot overridea constitutional prohibition against unreasonable search, but we think wemust recognize that the welfare of our country depends upon an honest andconscientious determination of what is a reasonable search, in view of all thecircumstances and conditions then faced by the officers proposing thesearch. 124

The "clear indication" rule again recognizes the competinginterests involved and should be adopted for those situations in Canadawhere cavity searches are necessary. It conforms with the concept ofreasonableness embodied in section 8 of the Charter. These searchesshould be conducted by qualified medical personnel.1 25 A pithy defenceof the rule's reasonableness is found in the dissenting judgment ofChambers J. in Henderson v. United States:

The "clear indication" rule of Rivas ... is a good one. Anal andvaginal probes should not be carried out at an agent's whim. But we must becareful not to make it difficult to initiate such searches where there is realsuspicion. Great quantities of narcotics enter this country every yearconcealed in body cavities. To impose unreal standards on our borderauthorities insures that the smuggler, by degrading himself, can with

121 86S. Ct. 1826(1966).122 Id. at 1835.12' Supra note 59, at 710.124 Id. at 711.125 This requirement cannot justify the inanity of some judicial decisions, such as

United States v. Carpenter, 496 F.2d 855 (9th Cir. 1974), in which a valid strip searchrevealed a drug-filled condom sticking one inch out of the subject's rectum. Theofficer's failure to have a doctor remove the condom was held, albeit "reluctantly", toinvalidate the search and the conviction was reversed.

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impunity import a substance that will inevitably contribute to the degradationof others.

126

4. Objective Underpinnings

The only element remaining is what "objective, articulable facts"will support the subjective suspicion that renders a border searchreasonable. It has already been suggested that the basic search should befree from any such objective standard. However, many indicia will bepresent in all types of Customs cases. The following are all factors thateither singly or together contribute to reasonable suspicion. The list isopen-ended because smugglers of all stripes are of necessity a deviousand creative lot. The factors include undue nervousness or suspiciousbehaviour at Customs; 127 wearing bulky or heavy clothing in warmweather or clothing with unusual bulges; the country of origin of thetraveller's flight; 12 8 a tip from a reliable informant;' 29 knowledge orindications that the subject is a drug addict or a previous smuggler; anunusual travel itinerary; and a match between the subject and a"smuggling profile" developed by Canada Customs from its previousexperiences.1 30 In addition, one degree of search can legitimately be"piggy-backed" on another. Thus, a valid search of a traveller's effectsmight provide grounds for a strip search (such as airline tickets disclosinga recent trip to a narcotics source country that the subject denies havingmade). The strip search might in turn indicate some type of lubricantaround a body cavity so as to justify a cavity search. Any items therebydiscovered would be the fruits of a reasonable search.

To date there have been few cases in Canadian courts dealing withthe reasonableness of Customs searches. Yet there is already some causefor concern. For example, in R. v. Corinthian'3' the Customs officer saidthat he felt justified in his personal search by the facts that the womanwas black, wore a loose-fitting top and had disembarked from a flightoriginating in Jamaica. A personal search disclosed over six pounds ofmarijuana strapped to the woman's legs. The fact that she was black isirrelevant. However, the other two factors are legitimate indicia ofpossible smuggling activity. Jamaica is a major source country fornarcotics and a loose-fitting top might be worn to cover an unusualdiscrepancy between the bulk of a traveller's torso and her legs. Sharpe J.seems to have failed to consider these factors fully in releasing theaccused at a preliminary hearing. A more realistic appreciation of the

126 Supra note 114, at 812, dissenting on the facts.127 United States v. Brown, supra note I 11.121 See, e.g., United States v. Barger, 574 F.2d 1283 (5th Cir. 1978).129 See, e.g., United States v. Castle, 409 F.2d 1347 (9th Cir. 1969).130 United States v. Forbicetta, 484 F.2d 645 (5th Cir. 1973).131 3C.R.D. 850.30-01, 10W.C.B. 9 (Ont. Prov. Ct. 1983).

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Customs function can be found in the decision of Tyrwhitt-Drake J. in R.v. Gladstone ,132 dealing with the personal search of a passenger on aflight into Vancouver from Lima, Peru.

IV. CUSTOMS EXAMINATIONS AND THE CONCEPT OF DETENTION

The second major issue that the Customs examination procedureraises in relation to the Charter is that of detention, which triggers therights set out in section 10. These rights include the right to be told of thereasons for one's detention, to be informed of the right to counsel and tobe given the opportunity to contact such counsel. 133 Most of the section10 cases that have arisen in the lower courts have concerned motorvehicle offences, and the decisions have gone both ways.134 There havealso been at least two cases dealing with detention and the right tocounsel under the Customs Act and section 10. These two cases havereached opposite conclusions. 35 Pending a decision by the Court ofAppeal in the Simmons 136 case, Customs has issued a cautionary directiveto officers in the five Ontario Customs regions and the Ontario ports ofthe Winnipeg region. That directive states that once a person has beenchosen for a personal search, he should be told the reasons and advised ofhis right to counsel. After being advised, but before he is allowed tomake any calls, the person is to be frisked for weapons in order to ensurethe safety of the Customs officers. The person should be given areasonable opportunity to contact counsel, but should remain in thepresence of an officer at all times. Customs officers should keep anappropriate distance, one that will permit confidentiality yet will thwartany attempt to dispose of contraband concealed on the person. Theseprecautions are taken without prejudice to the department's position thatthe Simmons case was wrongly decided.

Section 10 of the Charter states:

132 3C.R.D. 850.30-02, 10W.C.B. 412(B.C. Cty. Ct. 1983).133 We shall not deal here with the freedom from "arbitrary" detention guaranteed

by s. 9 of the Charter. Whatever meaning is given to "detention" in the Customscontext, it would stretch credibility for a court to find any Customs search other than amalicious one to be arbitrary. Customs examinations are clearly provided for by an Actof Parliament as a necessary tool in the fulfilment of an important governmental task. Infulfilling that goal, even a purely random border search would not be arbitrary. Thevirtue of the random search in Customs law enforcement is that it is a method ofdetection that is very difficult to thwart.

134 See, e.g., R. v. Engen, 45 A.R. I (S.C. 1983); R. v. Hatch, I1 W.C.B. 271(Ont. Cty. Ct. 1984); R. v. Johnson, 21 M.V.R. 28 (Alta. Prov. Ct. 1982).

135 See R. v. Gladstone, supra note 132; R. v. Simmons, 3 C.R.D. 825.30-01, 10W.C.B. 34 (Ont. Cty. Ct. 1983).

136 Id. See notes 205-18 and accompanying text hiffra.

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Everyone has the right on arrest or detention(a) to be informed promptly of the reasons therefor;(b) to retain and instruct counsel without delay and to be informed of that

right; and(c) to have the validity of the detention determined by way of habeas corpus

and to be released if the detention is not lawful.

It is essential not to lose sight of the fact that the Charter is aconstitutional document. Its language must cover all situations where theindividual and the government come into contact, so that one word in theCharter may legitimately have different shades of meaning in differentsituations. While a particular degree or type of restraint may constitutedetention in one set of circumstances, so as to trigger the legal rights ofsection 10, that same degree or type of restraint in different cir-cumstances may not constitute detention.

In light of these circumstances it is not enough to look at section 10of the Charter and then at the average citizen's idea of the meaning ofthose words. The Charter must certainly be comprehensible to theaverage Canadian, but it must not be treated simplistically. The fact thatthe word "detain" can be found in subsection 133(1) of the Customs Actis not enough on which to base a reasoned judicial decision.

Some guidance can be gained from the string of breathalyzer casesthat have dealt with the meaning of detention under the Charter. One ofthe leading cases so far is R. v. Therens, 37 in which a majority of theSaskatchewan Court of Appeal concluded that a breathalyzer situationinvolved detention within the meaning of section 10 of the Charter. TheCourt found that there was "a temporary restraint falling short of formalarrest which amounted to a 'detention' in the ordinary sense of theword". 138 The majority seemed to adopt the opinion of an "officiousbystander" in determining the meaning of detention and reached theconclusion that their holding "would not pose any hardship for lawenforcement officers" .139 A similar conclusion was reached by thePrince Edward Island Supreme Court in R. v. Ahearn .140

Yet there are a number of reasons for concluding that this"ordinary" perception of the meaning of detention is palpably wrong.The first is that Canada's highest court has already dealt with themeaning of that word in breathalyzer cases brought under the CanadianBill of Rights. 41 Subsection 2(c) of the Bill of Rights is almost identicalin substance to section 10 of the Charter:

[I]n particular, no law of Canada shall be construed or applied so as to(c) deprive a person who has been arrested or detained

137 Supra note 43.138 Id. at 87, 148 D.L.R. (3d) at 687 (Tallis J.A.).138 Id. at 88, 148 D.L.R. (3d) at 688 (Tallis J.A.).140 40 Nfld. & P.E.I.R. 345, at 349-50, 147 D.L.R. (3d) 555, at 559 (P.E.I.S.C.

1983).14 1 R.S.C. 1970 (App. III).

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(i) of the right to be informed promptly of the reason for his arrest ordetention,

(ii) of the right to retain and instruct counsel without delay, or(iii) of the remedy by way of habeas corpus for the determination of the

validity of his detention and for his release if the detention is notlawful ...

In Chroiniak v. The Queen 142 the Supreme Court of Canada quotedwith approval Pigeon J.'s statement in his dissenting judgment inBrownridge v. The Queen:

The legal situation of a person who, on request, accompanies a peaceofficer for the purpose of having a breath test taken is not different from thatof a driver who is required to allow his brakes to be inspected or to proceed toa weighing machine under s. 39(6) or s. 78(3) of the Highway Tratfc Act,

R.S.O. 1970, c. 202. Such a person is under a duty to submit to the test. If hegoes away, or attempts to go away, to avoid the test, he may be arrested andcharged but this does not mean that he is under arrest until this happens, He ismerely obeying directions that police officers are entitled to issue. Motoristscannot reasonably expect to be allowed to seek legal advice before complyingwith such orders.143

The Chroiniak concept of detention has been adopted by many courts inCharter breathalyzer cases.144 The majority in Therens said that Bill ofRights cases could be little more than helpful references in Chartercases. 145 However, surely the better view is that of Brownridge J.A. inhis Therens dissent:

I do not subscribe to the view that the Parliament of Canada in drafting theCharter intended to depart completely from the law as it existed the daybefore the Charter became effective. In my opinion, the word "detained" asused in the Bill of Rights and as interpreted under that Act should be given thesame meaning and the same interpretation under the Charter.46

The similarities between the Charter and the Bill of Rights in thisinstance greatly exceed the differences. It is not enough to state that theyare two different types of enactment, as does the Therens majority. Whilethe Bill of Rights is in no way constitutionally entrenched, it isnevertheless more than a mere statute; it might be termed a "quasi-constitutional" document. Further, to draw a distinction betweendetention under the Charter and under the Bill of Rights is to make amockery of the Parliamentary processes of Ottawa and Westminster.What has been said in the Charter is almost a carbon copy of what was

142 [1980) 1S.C.R. 471, at 479, 49 C.C.C. (2d) 257, at 262-63(1979).143 [1972] S.C.R. 926, at 943, 7 C.C.C. (2d) 417, at 429-30 (emphasis added).144 See, e.g., R. v. Trask, 21 M.V.R. 49, at 54, 150 D.L.R. (3d) 161, at 164-65

(Nfld. C.A. 1983); R. v. Therens, supra note 43, at 94, 148 D.L.R. (3d) at 680(Brownridge J.A. dissenting); R. v. Currie, 19 M.V.R. 15, at 29, 147 D.L.R. (3d) 707,at 713 (N.S.C.A. 1983); R. v. Altseimer, supra note 38, at 786-87, 2 C.R.R. at 123; R.v. Mitchell, 56 N.S.R. (2d) 228, at 230 (Cty. Ct. 1983).

145 Id. at 86, 148 D.L.R. (3d) at 686.146 Id. at 94, 148 D.L.R. (3d) at 680.

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said in the Bill of Rights and Parliament must be taken to know whatmeaning the courts have attributed to those words. If Parliament wanted adifferent result, it would have changed the wording of section 10.Parliament's intention, and not the court's own bias, must determine theissue. For these purposes the simple fact of entrenchment is of norelevance whatsoever.

In addition to the breathalyzer cases, there is other authority for theproposition that one is not necessarily detained within the meaning of theCharter merely because an "officious bystander" would reach thatconclusion by applying the "ordinary meaning" of the word. Thepotential scope of the usual meaning of "detained" is almost limitless.When it is used in the Charter, however, the word is used with a legalmeaning. In Jamieson v. The Queen 47 Durand J. dealt with the word inthe context of the Identification of Criminals Act: 148

Detaining someone is the act of holding or keeping someone against his willfor a period of indeterminate length, but again with this idea of captivity that occursin the concept of imprisonment.

The fact that the accused is required to submit to legal identification for thetaking of his fingerprints does not mean that he is detained while he is doing so. Hemay not perhaps do so completely willingly, but all that can be said on this subjectis that his freedom of choice is temporarily restricted. 4 9

The proper meaning of "detention" in section 10 of the Charter hasalso been strongly indicated in the section itself. Subsection 10(c) makesit eminently clear that what Parliament had in mind was a kind ofdetention, the legality of which might be tested by way of habeas corpus."A condition precedent to the invocation of the remedy of habeas corpusis that the applicant be in custody."' 150 Customs examinations andbreathalyzer tests are not properly susceptible to that remedy.

One can also find enlightenment as to the correct meaning ofdetention if one glances at the realities of this particular situation. Itwould be ludicrous to expect that on each primary examination of aperson or vehicle seeking admission to Canada the Customs officershould preface his questions with a Charter caution. It would be almost asridiculous to require such a caution at the outset of a secondaryexamination or a personal search. The notice in section 144 of theCustoms Act is a sufficient and easily comprehensible protection of theindividual's interests. The "Miranda" warning15 ' is not required of

147 3 C.R.R. 193, 142 D.L.R. (3d) 54 (Que. C.S. 1982). See also R. v. Gibson,11 W.C.B. 7(Ont. H.C. 1983).

148 R.S.C. 1970, c. I-1.149 Jamieson v. The Queen, supra note 147, at 202, 142 D.L.R. (3d) at 63.150 R. v. Currie, supra note 144, at 30, 147 D.L.R. (3d) at 721, quoting Ex parte

Simpson, 30 C.C.C. 334, 44D.L.R. 136 (N.S.S.C. 1918).151 Miranda v. Arizona, 86 S. Ct. 1602, at 1626-27 (1966); Escobedo v. Illinois,

84S. Ct. 1758(1964).

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United States Customs officers in the performance of their borderexaminations. 15 It is also helpful to keep in mind that the cautionary ruleoriginated in an atmosphere of what was perceived to be widespread,purposeful and malicious police conduct designed to deprive a suspect ofhis rights and to intimidate him until some sort of "confession" might beobtained. 53 However true that may or may not have been at the time andplace of the Miranda and Escobedo decisions, it is not generally true ofCanadian law enforcement today.

In light of the foregoing, the temporary restraint involved in aCustoms search should not be treated as a detention under section 10 ofthe Charter. Indeed, the Customs search is in many ways similar to thesituation dealt with in Chromniak:154 any person seeking admission toCanada is under a dual obligation to report to a Customs officer forCustoms and Immigration examinations155 and to answer truthfully allquestions put to him. 5 6 He is not at that point under arrest, but if heattempts to leave to avoid the examination he will be liable to arrest andto being charged with two separate offences.1 57 Until that point he hasbeen neither detained nor arrested so as to trigger the legal rights set outin section 10 of the Charter.

V. THE CHARTER'S LIMITING CLAUSE

Canadian courts considering Customs cases may have to have regardto the limiting provision in section 1 of the Charter. The meaning of thissection could come into issue if the court were to hold that a Customsexamination did constitute a "detention" within the meaning of section10. The government might then argue that even if this were a detention,the procedural rights enshrined in section 10 should nevertheless notattach by virtue of the operation of section 1. The substantive argumentsin favour of this contention are similar to those that can be made againstthe contention that examination constitutes a detention and for thecontention that Customs searches are reasonable. The private interestinvolved should on balance give way to the much greater governmentaland societal interests in adequate policing of the nation's boundaries.

Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights andfreedoms set out in it subject only to such reasonable limits prescribed by law

152 J. VARON, 1 SEARCHES, SEIZURES AND IMMUNITIES 644-45 (2d ed. 1974).153 Miranda v. Arizona, supra note 151, at 1625-26 (Warren C.J.).1" Supra note 142.155 Customs Act, R.S.C. 1970, c. C-40; Immigration Act, 1976, S.C. 1976, c. 52,

sub. 12(1).156 Customs Act, s. 239; Immigration Act, sub. 12(4).157 Customs Act, s. 243; Immigration Act, sub. 95(0.

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as can be demonstrably justified in a free and democratic society.

The limits on the right to privacy with which we are concerned are clearlyprescribed by law. However, there may be some question as to whatconstitutes demonstrable justification for those limits. It seems clearfrom the wording of section 1 that the burden of proving an exception lieson the party claiming the benefit of it, in this case the government.158 Theexception would have to be proved on the balance of probabilities. 159

Canadian judges should not defer to Parliament and the legislatureswhen abuses of the Charter are involved. Nor should they use the Charteras an opportunity to rewrite the statute books. To a large extent theCharter should be interpreted in light of the legal background at the timeof its enactment. Canadian courts can take guidance from the behaviourof their fellow courts in the Commonwealth when dealing with similarconstitutions:

The striking thing is that there exists only one Commonwealth decision inwhich a statute was held not to be -reasonably justifiable". In Akar v. A.G.Sierra Leone [[ 1970] A.C. 853] the Judicial Committee decided that it couldnot uphold an explicitly racist law which restricted citizenship in SierraLeone to persons who were "negroes of African descent". 16o

This reflects the general attitude displayed by Lord Fraser of Tullybeltonin Attorney-General v. Antigua Times Ltd. when he remarked that"[t]heir Lordships think that the proper approach to the question is topresume, until the contrary appears or is shown, that all Acts passed bythe Parliament of Antigua were reasonably required". '61

The wording of the onus in Canada may differ slightly from that ofsome other Commonwealth constitutions. Yet the burden should in thefinal analysis not be particularly difficult to meet. This is not an attemptto circumvent the provisions of the Charter, but rather to be faithful tothem. There is little difference between "demonstrably justifiable" and"reasonably justifiable". Furthermore, the operative words in section 1are "democratic society". The courts must not lose sight of that fact.The importance of this phrase is emphasized in the decision in Cheranciv. Cheranci:

I accept the submission that great weight must be attached to the judgment ofthe Legislature since it represents the majority of the people and that theremust be a presumption that a Law is constitutional and that its provisions arereasonably justifiable and necessary. I am impressed by the passage from the

' Rauca, supra note 68, at 240-41, 4 C.R.R. at 58; Quebec Ass'n of ProtestantSchool Bds. v. A.G. Que. (No. 2), 3 C.R.R. 114, at 139, 140 D.L.R. (3d) 33, at 59(Que. C.S. 1982); R. v. Carriere, 32 C.R. (3d) 117, at 136, 4 C.R.R. 97, at 113 (Ont.Prov. Ct. 1983).

"0 Rauca, id. at 241, 4 C.R.R. at 58.160 Hovius & Martin, The Canadian Charter of Rights and Freedoms in the

Supreme Court of Canada, 61 CAN. B. REV. 354, at 369-70 (1983).161 [ 1976] A.C. 16, at 32, [1975 ] 3 All E.R. 81, at 90 (P.C.) (Antigua).

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judgment of the Supreme Court of India in The State of Madras r. Row quotedin Basu's Commentary on the Constitution of India at page 155, where it issaid that interference by the courts with the judgment of the legislature mustbe limited by the judges', "sense of responsibility and self-restraint and thesobering reflection that the Constitution is meant not only for people of theirown way of thinking but for all, and that the majority of the electedrepresentatives of the people have, in authorising the imposition of therestrictions, considered them to be reasonable." 162

In a democratic society that has a charter of rights, the majority mustrecognize the basic rights of any minority groups in its midst. Yet thisrecognition cannot be used to justify a tyranny of the minority. There isconsiderable judicial and scholarly authority to the effect that courts mustnot, in defining the proper scope and limits of a right, lightly orfrequently strike down that which is the expressed will of the people .163

One writer puts the proposition this way: "[I]t will be assumed that theoverriding goal of maximizing the realization of human dignity is bestsecured when Parliament has the ultimate legislative authority.' '164

Finally, just as judges must be wary not to succumb to the tyranny ofthe minority in light of Canada's chosen system of government, so mustthey beware of the dangers of a tyranny of the judiciary. The laws thatjudges deal with are the product of a long and comprehensive process ofprofessional study, drafting, committee assessment, redrafting and"sober second thought". The judiciary should remain aware of its placein Canadian society and of its own limitations. Professor Russell notesthat if Canada's judges defer in all cases to the actions of governmentthey will do a disservice to the Charter, to their own traditions, and to thecountry. However:

It would be equally unfortunate if Canadian judges were to go to the otherextreme of "'government by judiciary" and become guilty of what anAmerican critic of the United States judiciary refers to as "a kind of moralarrogance and judicial imperialism in undertaking to solve a great manysocial problems for which they lack the competence, wisdom, or, for thatmatter, charter to undertake".165

162 EUROPEAN CONVENTION OF HUMAN RIGHTS YEARBOOK 724, at 732 (HighCourt of the State of Kano, Nigeria, 1960).

163 Quebec Ass'n of Protestant School Bds., supra note 158, at 156, 140 D.L.R.(3d) at 77; Alneida-Sanchez, supra note 59; Carmody, Comment, 27 VAND. L. REV.528 (1974); LaFor~st, The Canadian Charter of Rights and Freedoms: An Overview, 61CAN. B. REV. 19, at 25 (1983).

164 Barry, Law, Policy and Statutory Interpretation Under a ConstitutionallyEntrenched Canadian Charter of Rights and Freedoms, 60 CAN. B. REV. 237, at 241(1982).

165 Russell, supra note 41, at 52, citing L. THEBERGE, THE JUDICIARY IN ADEMOCRATIC SOCIETY 129 (1979).

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VI. THE EXCLUSION OF EVIDENCE

Border searches could also give rise to applications to the courts tohave evidence excluded from a trial under section 24 of the Charter. Thatsection states:

(I) Anyone whose rights or freedoms, as guaranteed by this Charter, havebeen infringed or denied may apply to a court of competent jurisdiction toobtain such remedy as the court considers appropriate and just in thecircumstances.

(2) Where, in proceedings under subsection (1), a court concludes thatevidence was obtained in a manner that infringed or denied any rights orfreedoms guaranteed by this Charter, the evidence shall be excluded if itis established that, having regard to all the circumstances, the admissionof it in the proceedings would bring the administration of justice intodisrepute.

In Therens, 166 Tallis J.A. and Bayda C.J. held that under subsection24(1) Canadian judges now have a power to exclude illegally obtainedevidence at trial even if its admission would not bring the administrationof justice into disrepute, that is, even if it fell short of the subsection24(2) standard. They reached this conclusion by distinguishing subsec-tion 24(2) as mandatory1 67 and by finding that that interpretation "leansin favor of emphasizing the fundamental rights guaranteed by theCharter".168 However, it does so at the expense of corrupting the trueintent of the Charter and is an example of a judicial arrogation of a powerthat the Canadian and United Kingdom Parliaments did not see fit to giveto Canadian judges. As such the case constitutes a dangerous precedent.

The true relationship between subsections 24(1) and 24(2) wasrecognized by Brownridge J.A. in his dissenting judgment in Therenswhen he said:

In my respectful opinion, s. 24(1) does not give the court power to excludesuch evidence unless to do so would bring the administration of justice intodisrepute. . . . It appears anomalous to me that the very power which is socircumscribed in s. 24(2) should be available to a court under s. 24(1)without any such restriction. 16 9

A similar conclusion was reached by the British Columbia Court ofAppeal in R. v. Collins,' 70 where it was noted that when Parliamentenacted the Charter it decided in its wisdom to compromise between nojudicial power of exclusion and an absolute power to exclude illegallyobtained evidence. The middle ground Parliament chose is the rule setout in subsection 24(2). It would be disingenuous for Canadian courts to

11" Supra note 43.167 Id. at 91-92, 148 D.L.R. (3d) at 676-77.168 Id. at 90, 148 D.L.R. (3d) at 690-91.169 Id. at 95, 148 D.L.R. (3d) at 681.171 Supra note 34, at 48, 148 D.L.R. (3d) at 44 (Nemetz C.J.); id. at 53, 148

D.L.R. (3d) at 48 (Seaton J.A.).

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use tenuous semantic distinctions between subsections 24(1) and 24(2) tocircumvent what is surely a clear example of the maxim expressio uniusest exclusio alteritts.

Yet a greater conflict will undoubtedly arise over the proper scope ofthe exclusionary rule in subsection 24(2). One of the most balanceddiscourses on this type of conflict is that of Lord Cooper in Lawrie 1'.Muir:

[T~he law must strive to reconcile two highly important interests which areliable to come into conflict - (a) the interests of the citizen to be protectedfrom illegal or irregular invasions of his liberties by the authorities, and (b)the interest of the State to secure that evidence bearing upon the commissionof crime and necessary to enable justice to be done shall not be withheld fromCourts of law on any merely formal or technical ground.

The protection is not intended as a protection for the guilty citizen against theefforts of the public prosecutor to vindicate the law. On the other hand, theinterest of the State cannot be magnified to the point of causing all thesafeguards for the protection of the citizen to vanish, and of offering apositive inducement to the authorities to proceed by irregular methods. 171

Judicial and academic opinion on the appropriateness of theexclusionary rule is varied. The rule was originally applied to evidenceobtained illegally by United States federal officers near the turn of thecentury in Weeks r. United States172 and was extended to cover stateaction a half-century later in Mapp v. Ohio .173 In State v. Cahan ,174

Traynor J. (as he then was), recognized that the rule was flawed but feltthat on balance it would increase respect for the individual's constitu-tional rights. He noted also that the case before him involved flagrant anddeliberate police excesses. In Rochin v. Calilirnia,'7 Mr. JusticeFrankfurter conceded that the evidence before the Court as a result of theunconstitutional search was perfectly trustworthy and relevant, and that"[d]ue process of law . . . is not to be turned into a destructive dogmaagainst the States in the administration of their systems of criminaljustice" .176 He concluded, however, that the evidence could not beadmitted in court because, in his opinion, "this course of proceeding byagents of government to obtain evidence is bound to offend evenhardened sensibilities. They are methods too close to the rack and thescrew to permit of constitutional differentiation." 177 A similar concernwas echoed by Mr. Justice Laskin (as he then was) in his dissenting

171 [1950] Scottish Sess. Cas. (6th) 19, at 26 (Ct. Just. 1949).172 34S. Ct. 341, at 344(1914).173 81 S. Ct. 1684, at 1691-92(1961).174 282 P.2d 905, at 910-11 (Cal. 1955).175 72S. Ct. 205 (1952).176 Id. at 208.177 Id. at 209-10.

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opinion in Hogan v. The Queen. It He too noted that the exclusionaryrule was imperfect and had undeniably harmful side-effects.

Yet where constitutional guarantees are concerned, the more pertinentconsideration is whether those guarantees, as fundamentals of the particularsociety, should be at the mercy of law enforcement officers and a blind eyeturned to their invasion because it is more important to secure a conviction.The contention that it is the duty of the Courts to get at the truth has in it toomuch of the philosophy of the end justifying the means . .. In the UnitedStates, the Supreme Court, after weighing over many years whether othermethods than exclusion of evidence should be invoked to deter illegalsearches and seizures in state as well as in federal prosecutions, concludedthat the constitutional guarantees could best be upheld by a rule ofexclusion.

179

On the other hand, the exclusionary rule has no shortage ofdetractors. One critic summarizes his objection particularly concisely:"Only a system with limitless patience with irrationality could toleratethe fact that where there has been one wrong, the defendant's, he will bepunished, but where there have been two wrongs, the defendant's and theofficer's, both will go free. ' 180 This concern was also expressed by Mr.Justice Jackson in Irvine v. California .18 The United States SupremeCourt, which first championed the rule and which is cited as authority forit by many Canadian judges, now has second thoughts about applying therule too broadly. The case of Stone v. Powell 8 2 was a significantretrenchment of the rule in the United States. In the judgment of theCourt, Mr. Justice Powell noted the concerns of Mr. Justice Laskin inHogan,1 but recognized that a reasonable balance was in order: "Whilecourts, of course, must ever be concerned with preserving the integrity ofthe judicial process, this concern has limited force as a justification forthe exclusion of highly probative evidence."' 84 Likewise, in State 1.Defore, Cardozo J., speaking for the New York Court of Appeal,wondered "whether protection for the individual would not be gained ata disproportionate loss of protection for society". 185 He refused to applythe rule in New York because of this lack of balance: "The pettiest peaceofficer would have it in his power, through overzeal or indiscretion, toconfer immunity upon an offender for crimes the most flagitious." 1 86

In addition to this lack of proportion, there are other flaws in theexclusionary rule. The first is that it tends to divert the focus of trials

178 11975] 2 S.C.R. 574, 18 C.C.C. (2d) 65 (1974).179 Id. at 597, 18 C.C.C. (2d) at 81.180 Oaks, Studying the Excltsionary Ride in Search and Seizure, 37 U. CHI. L.

REv. 665, at 755 (1970).181 74 S. Ct. 381, at 385 (1954).182 96 S. Ct. 3037(1976).183 Stqra note 178.'s Id. at 3048.185 150 N.E. 585, at 589 (N.Y. 1926).186 Id. at 588.

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away from the central issue of the guilt or innocence of the accused. InStone v. Powell, Chief Justice Burger remarked: "In evaluating theexclusionary rule, it is important to bear in mind exactly what the ruleaccomplishes. Its function is . . . the exclusion of truth from thefactfinding process.' 187 There are few surer ways to bring theadministration of justice into disrepute. Concern for a proper appearanceof justice is perfectly legitimate, but, to reverse a cliche, justice must notonly be seen to be done, it must in fact be done. If we become overlyengrossed in details, there is a danger of losing sight of the granderscheme:

I am criticizing, not our concern with procedures, but our preoccupation, inwhich we may lose sight of the fact that our procedures are not the ultimategoals of our legal system. Our goals are truth and justice, and procedures arebut means to these ends.

Truth and justice are ultimate values, so understood by our people, and thelaw and the legal profession will not be worthy of public respect and loyalty ifwe allow our attention to be diverted from these goals.1 8

The severest condemnation of the exclusionary rule is that it has inlarge part been a failure. It has often been justified as a means ofdeterring illegal police conduct, but "[a] more clumsy, less direct meansof imposing sanctions is difficult to imagine" .189 Because it operates toexclude evidence, it works only in favour of the guilty; it offers norecompense whatsoever for those victims of illegal police conduct whoare innocent. Claims that the rule does deter unconstitutional behaviourby law enforcement officials have never been empirically supported andhave in fact been discredited by some studies. Many courts are coming torecognize this fact. 190 Some twenty years ago, a United States Court ofAppeals judge who would later rise to considerable prominence wrote: "Isuggest that the notion that the suppression of evidence in a given caseeffectively deters the future action of the particular policeman or ofpolicemen generally was never more than wishful thinking on the part ofthe courts."' 191

The application of the exclusionary rule should, therefore, belimited as much as possible to those cases that genuinely approach Mr.Justice Frankfurter's "rack and screw", and to those cases where theunconstitutional police conduct might bring the reliability of the evidenceinto question. This latter class would usually involve "confessions"

187 Supra note 171, at 3053.188 Oaks, Ethics, Morality and Professional Responsibility, B.Y.U.L. REv. 1975:

591, at 596 (1975).189 Stone v. Powell, supra note 182, at 3054.180 Id. at 3055: "Notwithstanding Herculean efforts, no empirical study has been

able to demonstrate that the rule does in fact have any deterrent effect."; Terry v. Ohio,supra note 58, at 1876-77; Irvine v. California, supra note 181, at 384-85; LAw REFORMCOMMISSION OF CANADA, supra note 75, at 309.

191 Burger, Who Will Watch the Watchman?, 14 AM. U.L. REv. 1, at 12 (1964).

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obtained in an atmosphere of intimidation, to which the common lawvoluntariness requirements would also apply.

With this general overview of the controversy concerning theexclusionary rule we can now proceed to consider what cases of policemisconduct would be so egregious as to "bring the administration ofjustice into disrepute". There have been a number of cases in whichcourts have used the subsection 24(2) standard to exclude evidence. In R.i. Morrison, 192 cannabis resin discovered in the course of an unreason-able search was excluded from evidence for fear of sanctioning futureviolations and in the hope of deterring them. In light of what has beensaid, this conclusion is of questionable validity. In R. i. Carter,'93 LoganJ. excluded a hospital blood sample that was taken for medical purposesand later seized to prove an impaired driving charge. In R. v. Caron,194Bernstein D.C.J. held that the administration of justice would be broughtinto disrepute if he admitted certain evidence obtained by a search with awarrant. The police constable had lied to the magistrate in order to obtaina warrant to search for stolen cheques when he was in fact looking for andfound a gun. In R. v. Corinthian, 9' it was held that admitting intoevidence over six pounds of marijuana discovered as a result of an"unreasonable" Customs search would bring the administration ofjustice into disrepute, because the officer's conduct was a "wilful" and aserious Charter violation and because the narcotics might have been forpersonal use.

In all of these cases, the proper test for fulfilment of the criteria ofsubsection 24(2) should be that expressed by Mr. Justice Lamer of theSupreme Court of Canada in his dissenting judgment in Rothmnan v. TheQueen, where he discussed the admissibility of certain statements by theaccused:

The judge, in determining whether under the circumstances the use of thestatement in the proceedings would bring the administration of justice intodisrepute, should consider all of the circumstances of the proceedings, themanner in which the statement was obtained, the degree to which there was abreach of social values, the seriousness of the charge, the effect the exclusionwould have on the result of the proceedings. It must also be borne in mind thatthe investigation of crime and the detection of criminals is not a game to begoverned by the Marquess of Queensberry rules. The authorities, in dealingwith shrewd and often sophisticated criminals, must sometimes of necessityresort to tricks or other forms of deceit and should not through the rule behampered in their work. What should be repressed vigorously is conduct ontheir part that shocks the community. That a police officer pretend to be alock-up chaplain and hear a suspect's confession is conduct that shocks thecommunity ... injecting Pentothal into a diabetic suspect pretending it is hisdaily shot of insulin and using his statement in evidence would also shock the

19', 2 C.R.R. 25 (B.C. Prov. Ct. 1982).193 Supra note 69.194 3 C.R.R. 275 (Ont. Dist. Ct. 1982).195 Supra note 131.

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community; but generally speaking, pretending to be a hard drug addict tobreak a drug ring would not shock the community . . . in fact, what wouldshock the community would be preventing the police from resorting to such atrick.196

Considering the wording of subsection 24(2), the onus of establish-ing disrepute falls on the accused. With the two-element test set out in thesubsection, evidence obtained illegally would be prima facie admissi-ble. 197 The standard required to render it inadmissible should be adifficult one to satisfy. The section is not a direction to judges to act aspolice disciplinarians. It has already been noted that exclusion canperform no such role. Furthermore, considering the high standard ofconduct of the great majority of Canadian law enforcement officers, itwould be a rare case where the admission of evidence would bring theadministration of justice into disrepute. 198 Some Canadian courts haverecognized that, because the exclusion of evidence often frustrates thequest for truth, the exclusion rather than the admission would, in all thecircumstances, be more likely to bring the administration of justice intodisrepute. 199 Official violations of constitutional rights are not to betolerated, but the exclusionary rule accomplishes nothing in defence ofthe Constitution. A broad and unthinking application of the rule servesonly to free the guilty and engenders in the average citizen a lack of faithin, and respect for, the constitutional values that proponents of the ruleprofess to defend. If carried to an extreme, the rule sows the seeds ofvigilante-ism.

Subsection 24(2) requires that a court have regard to all thecircumstances before reaching a finding of "disrepute". Many of therelevant factors are set out by Lamer J. in Rothman2 °" itself. Noexhaustive list can be given, but the considerations should include thetriviality or seriousness of the violation and the wilfulness or malicious-ness of the officer's conduct, 20 1 the urgency of the situation, theseriousness of the offence, the reliability of the evidence sought to beexcluded, 20 2 the effect of the exclusion on the outcome of the trial, andthe individual and governmental interests involved. Unless the officer'sconduct and the use of the evidence thus obtained in court would be such

196 [1981] 1 S.C.R. 640, at 697, 59 C.C.C. (2d) 30, at 74-75 (1980), cited by

Seaton J.A. in R. v. Collins, supra note 34, at 52, 148 D.L.R. (3d) at 48. See also R. v.Gibson, supra note 147.

197 R. v. Collins, id. at 54-55, 148 D.L.R. (3d) at 49-50.198 Id. at 52-53, 148 D.L.R. (3d) at 48.199 R. v. Trask, supra note 144, at 55-56, 150 D.L.R. (3d) at 166; R. v. Collins,

id. at 59, 148 D.L.R. (3d) at 53; R. v. Gladstone, supra note 132."I Supra note 196.201 R. v. Samson (No. 7), 37 O.R. (2d) 237, 29 C.R. (3d) 215 (Cty. Ct. 1982); R.

v. Smith, 21 M.V.R. I (Man. Prov. Ct. 1983).202 R. v. Esau, 20 Man. R. (2d) 230, at 236-38, 147 D.L.R. (3d) 561, at 567-68

(C.A. 1983); R. v. Davidson, 40 N.B.R. (2d) 702, at 709-10, 2 C.R.R. 239, at 244(Q.B. 1983).

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as to shock the community, the court has no option but to admit theevidence. Courts should be particularly reluctant to exclude evidenceuncovered in Customs searches, because in most cases that will be theonly evidence pointing to the guilt of the accused, and the effect of theexclusion will be almost certain dismissal of any charges, howeverserious.

VII. CONCLUSION

Because the Charter is a document of universal application, courtsmust be flexible in interpreting and applying its provisions in varioussituations. In each case the courts will be called on to determine what isthe proper balance between the rights of the individual and the legitimateinterests of the society in which he lives. Whatever conclusions thecourts reach in other cases, they should recognize the importance ofCustoms to the national economy and to public health and safety.Effective enforcement of Customs laws is in some ways more vital to thenation than the enforcement of the general criminal law, and the balanceshould be adjusted accordingly. Courts might take their cue from therecent decision of the Ontario Supreme Court in the AmnwaV 20 3 case, inwhich the court imposed a twenty-five million dollar fine on the Amwaycorporation for Customs fraud. This, by far the largest criminal fine inCanadian history, recognizes the vital national interest that was to bevindicated. Courts in future Charter cases should support that recogni-tion.

VIII. POSTSCRIPT

Since the above was written, the constitutionality of Customssearches has been dealt with in R. 1,. Sim1ons ,204 a hitherto unreportedjudgment of the Ontario Court of Appeal, released on 11 April 1984.

Howland C.J.O., expressing the opinion of the majority,20 5 notedthe importance to national policy of Customs and Immigration examina-tions at the frontier. 20 6 The search provisions in sections 143 and 144 ofthe Customs Act were held not to violate the prohibition against"unreasonable" searches in section 8 of the Charter.20 The particularsearch in the Shnmons case was also considered "reasonable". The stripsearch, which disclosed 1.98 kilograms of cannabis resin taped around

203 Unreported, Ont. H.C., 10 Nov. 1983 (Evans C.J.).204 450.R. (2d) 609(C.A. 1984).205 Howland C.J.O., Martin, Lacourci~re, Houlden, JJ.A.20 Supra note 204, at 616-18.207 Id. at 635-36.

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the accused's midriff, was justifiable because the primary Customsofficer suspected Simmons from her answers to his questions, becausethe identification Simmons proffered was somewhat irregular, andbecause Simmons appeared to be bulky around the waist area, thoughotherwise slender. 20 8 It was also relevant to the reasonableness of thesearch that Simmons had disembarked from a flight originating inJamaica and that in Customs' experience, 80% of the drug seizures atPearson International Airport were from Jamaican flights. 20 9 ChiefJustice Howland also stressed that border searches fall into a very specialcategory.210

On the issue of detention, the majority decided that that word in theCharter has the same meaning it had under the Bill of Rights. IfParliament had wanted a different result, it would have manifested itsdesire for one. The reference to habeas corpus in subsection 10(c) of theCharter was also relevant to what type of restraint Parliament intended toconstitute "detention" .211 The type of restraint involved in even a stripsearch, as in this case, was not enough to be a detention triggering therights in section' 10.212

The majority proceeded, obiter, to consider whether, had this been adetention, and had the accused thus been denied her right to retaincounsel, section 24 should have been applied. In its opinion, theexclusion of evidence under subsection 24(2) should be based on anopen-ended list of considerations, including the nature and extent of theofficer's illegality, the presence or absence of good faith, how theevidence was obtained, and the seriousness of the charge. In thisparticular case, one had to consider that this was a border searchspecifically permitted by an Act of Parliament, that the search was"reasonable" and involved a limited invasion of privacy, that thecharges were serious ones involving a large quantity of illicit drugs, and,as was noted above with regard to Customs cases in general, that theevidence thus discovered was the only real way to prove the charge. Hadthere been a violation of the accused's Charter rights, the admission ofthe illegally obtained evidence would thus not have brought theadministration of justice into disrepute. Instead, the opposite would havebeen true. 213

208 Id. at 613-14, 629.209 Id. at 615.210 Id. at 630.211 Id. at 628.212 Id. at 631.213 Id. at 634-35.214 Id. at 635.

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The majority also considered briefly whether there exists a powerunder subsection 24(1) to exclude evidence even if the standard set bysubsection 24(2) is not met. Despite the broad wording of subsection24(1), the Chief Justice concluded that subsection 24(1) was not to beread as granting a discretionary power to exclude evidence.2 14

Mr. Justice Tarnopolsky dissented in part from the judgment of themajority. He recognized that Chroniak21

5 was the "threshold" casewhen considering the meaning of "detention" in section 10 of theCharter.21 6 However, on the facts, this was not the same type of situationas in Chroniak. The strip search here was more intrusive than theroadside breathalyzer in that case, and there was not the same sense ofimmediacy in a Customs search that existed under the statutory timelimits concerning breathalyzer tests. 217 Thus, notwithstanding thereference to habeas corpus in section 10, Simmons was, in his opinion,"detained" when she was required to submit to the strip search.However, Tarnopolsky J.A. agreed with the majority in the result,holding that although the evidence had been obtained as a result of aCharter violation, its admission would not bring the administration ofjustice into disrepute. 218

Although it is unlikely to be the last word on the matter, the majoritydecision of the Ontario Court of Appeal in Simmons is a welcomedevelopment. It goes a long way towards a Canadian recognition ofborder searches as a unique and functionally different class of lawenforcement activity, one that ought not to be judged by generallyapplicable search standards. It is to be hoped as well that its eminentlysensible and realistic conception of "detention" under the Charter willprevail in the Supreme Court of Canada.

215 Supra note 142.216 Supra note 204, at 636.217 Id. at 640-41, 643.218 Id. at 644-45.

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