Charter Rights at the Border

Routine Searches and Questions

Travellers seeking admission to Canada are not subject to detention engaging their section 7 and 10(b) Charter rights simply because they are required under the Customs Act to answer routine questions or submit to routine searches.

R. v. Sinclair, 2017 ONCA 287, at para. 6.

It is well-established in the case law that a person arriving at the border can reasonably expect that luggage will be put through a routine search.

R. v. Jones, (2006) 81 O.R. (3d) 481, at para. 30.  

This may include x-raying or ion scanning.

R. v. Darlington, 2011 ONSC 2776, [2011] O.J. No. 4168, at para. 75, referencing Kelly v. Palazzo (2008), 89 O.R. (3d) 111 (C.A.), at para. 53, leave to appeal refused [2008] S.C.C.A. No. 152.    

As well, routine screening, at a permissibly unobtrusive level not engaging a reasonable expectation of privacy [the threshold interest engaging section 8 of the Charter], can include a pat or frisk of outer clothing (Simmons, at p. 312) or a direction to empty pockets.

R. v. Hudson 2005 CanLII 47233 (ON CA), (2005), 203 C.C.C. (3d) 305 (Ont. C.A.), at paras. 2, 4, 22-3, 38.

In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. The mere fact that a person has attracted the suspicion of a Customs official, thereby causing that officer to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.

            

Jones, at paras. 38, 40.

The standard of “sufficiently strong particularized suspicion” 

There reaches a point, however, where routine questioning and searches become a detention and Charter rights are engaged.  As the Court of Appeal for Ontario noted in Jones, at para. 42:  

[T]he extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see Jacoy v. The Queen, [1988] 2 S.C.R. 548.

Focused interest not the same as strong particularized suspicion

Routine screening does not engage a coercive or adversarial relationship between government agents and an incoming traveller.

Jones, at para 33. 

This is so whether the screening is entirely random or as a result of referral to customs secondary examination in an effort to focus the exercise on persons of interest, for example, upon a “look-out”.

Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053 at p. 1073; Hudson, at paras. 35, 38.

Right to Counsel

A person detained within the scope of ss. 9 and 10 of the Charter must immediately be informed of the right to counsel and provided access to counsel when requested:

R. v. Suberu, 2009 SCC 33 (CanLII), [2009] 2 S.C.R. 460, at paras. 37-42.

This state obligation arises prior to a search of a person for drugs, whether the person is under arrest

R. v. Debot, [1998] 2 S.C.R. 1140, at paras. 43-5; R. v. Glykis 1995 CanLII 1277 (ON CA), (1995), 100 C.C.C. (3d) 97 (Ont. C.A.), at pp. 99-101)

or under detention for example for a Customs Act personal search.

Simmons, at pp. 315-6; Jacoy, at paras. 6-8, 14; R. v. Granston 2000 CanLII 5743 (ON CA), (2000), 146 C.C.C. (3d) 411 (Ont. C.A.), at paras. 26, 30, 43-7.