Statutory compulsion to answer questions at border does not constitute detention

Right to counsel

Statutory compulsion to answer questions at border does not constitute detention

Border services officer was suspicious when accused told her that she had brought fruit juice into Canada and upon observing unusual behaviour of accused as she removed cans of fruit juice from her luggage. Officer conducted more intrusive inquiry and tested juice cans for drugs. Cans tested positive for cocaine. Accused was arrested for importing cocaine and officer gave accused caution and right to counsel. Accused sought to exclude statements to officer on basis that they were obtained in violation of ss. 7 and 10 of Charter. Statements admissible. There was no Charter breach. Statutory compulsion to answer questions at border does not constitute detention under s. 10(b) of Charter. Person is not detained when border official asks routine questions and conducts routine searches. Accused was not detained simply because of her look-out status and was subjected to same routine questioning and searches as anyone else referred for secondary inspection. Officer had strong particularized suspicion to warrant more intrusive form of inquiry after showing accused X-ray images of cans and accused asked “What’s in it?.” Only at that point was accused was detained and ss. 7 and 10(b) rights were engaged.
R. v. Sinclair (Feb. 3, 2016, Ont. S.C.J., Barnes J., CRIMJ(F)354/10) 128 W.C.B. (2d) 140.