The story: Mr. Ajitpal Singh Sekhon showed up at the Aldergrove Border Crossing in a muddy pickup truck. A Canadian Border Service Agency (CBSA) officer spoke with Mr. Sekhon, who made good eye-contact, had a plausible explanation for the mud, and a perfectly legal and reasonable purpose (delivering paycheques to a farm) for visiting the US for an hour and a half. The officer was satisfied with Mr. Sekhon's story, and so naturally he ordered Mr. Sekhon to pull into the parking area to undergo a secondary observation and further questioning regarding the paycheques. Mr. Sekhon became progressively more nervous, and was eventually locked in a room. The border officers took a gander at Mr. Sekhon's truck, and decided to test out their ideas of where contraband might be hidden. They called for a drug-sniffing dog, and drilled into the truck bed: both of these procedures indicated the presence of cocaine in the vehicle. After this they decided to "search" the truck (tear off the box-liner) and "detain" (formally arrest) Mr. Sekhon.
Interestingly, the CBSA officers admitted during the trial that they didn't know how to apply for a search warrant, and that in fact they believed none were necessary in their line of work. They also considered "detention" to be a special kind of confinement that only arose if their secondary inspections resulted in a discovery; Apparently being locked in a room and being physically prevented from leaving wasn't detention. Finally, the CBSA officers admitted they believed they have the right to search anyone or any vehicle without any grounds whatsoever.
Where did they get these ideas? It seems that because there is a legitimately-reduced expectation of privacy at a border crossing, there just hasn't been the same level of judicial scrutiny of CBSA behaviour. What really bothers me is the belief by the CBSA officers that, somehow, they were in (as Judge Gordon called it) "a Charter-free zone." If so, how far from the border was this zone supposed to extend? How high into the sky did it go? Were they immune to the entire Charter, or only the Legal Rights in ss. 7 - 14?
Thankfully, Mr. Sekhon's counsel made good arguments before an intelligent judge. Of course, the Crown will appeal this as far as they can. I sincerely hope Mr. Sekhon does the same. In my new capacity working in immigration law I have already seen enough to convince me that CBSA needs to be significantly brought to heel -- their behaviour is inconsistent with that expected and necessary in a free and democratic society.
Some of my favourite passages from the reasons:
"Inspector Ingalls did not elect to advise either of the officers who were dealing with Mr. Sekhon that what he believed to be Cocaine had been located and that he was going to have the vehicle dismantled. He nonetheless “believed” that somehow, magically, Mr. Sekhon was notified that it was the intention of the Inspectors’ that the vehicle that he had been driving be dismantled." [Any judge who uses the term "magically" in her reasons has my admiration.]
"The Charter is the backbone of our justice system and cannot be ignored because of free-floating border anxiety.""...[E]ach Inspector who testified was of the view that until such time as the officer concludes otherwise, that an individual who enters Canada has no Constitutional rights. In such circumstances, it is up to the Courts to remind persons in authority to respect Charter rights."
"The Charter does not have geographical limits and notwithstanding the lowered expectations of privacy at border crossings, the Charter still exists and has relevance and application. It is for the Court to determine if a Constitutional right is to be diluted and not a Border Services Agency officer."
I invite you to read the decision: it's quite accessible, not especially long (for judicial reasons), and inspires some small appreciation for the Rule of Law when deployed by an intelligent and democratically-inclined judiciary. I know you won't read it, of course, but I thought I'd put the idea out there anyway.
