



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sinclair, 2017 ONCA 287

DATE: 20170407

DOCKET: C60625

Feldman, Rouleau, and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Venese Sinclair

Appellant

Najma Jamaldin, for the appellant

Christopher Walsh, for the respondent

Heard: March 9, 2017

On appeal from the conviction
entered on April 14, 2015 by Justice K. Barnes of the
    Superior Court of Justice, sitting with a jury.


ENDORSEMENT

[1]

The appellant appeals her conviction for importing cocaine into Canada.

[2]

The appellant returned home to Canada after visiting a friend in
    Trinidad and Tobago. She carried in her luggage eight tins, which she told
    Canada Border Security officers contained juice. She was subject to routine
    questioning and search of her luggage, and made various statements to the
    officers. Upon x-ray inspection by the officers, it was discovered that the
    tins contained liquid cocaine.  The appellant was arrested.

[3]

The appellant brought a pre-trial application before the trial judge to
    exclude the various statements that she made to the border officers. The trial
    judge dismissed her application and admitted the statements into evidence at
    her trial. Following the jurys guilty verdict, she received a six-year
    custodial sentence.

[4]

The appellant submits that the trial judge: (a) misstated the test for
    detention; (b) misapprehended the evidence as to when she was detained and when
    her section 7 and 10(
b
) Charter rights were engaged. Her initial
    position was that she was detained from the moment of her arrival at the
    airport border, arguing that the border officers had a sufficiently strong
    particularized suspicion that she was committing a drug offence because she was
    the subject of a drug look-out. That position was not pressed in oral argument.
     In the alternative, she submits that she was detained after the officers
    opened her luggage and discovered the tins. In either event, she maintains that
    all of her statements to the border officers after her detention should have
    been excluded from the evidence at trial, and that the trial judge erred in
    failing to exclude them.

[5]

We do not accept these submissions.

[6]

As the trial judge correctly noted at para. 50 of his reasons, 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. Indeed, as this court stated in
R. v. Jones
, (2006) 81 O.R.
    (3d) 481, at para. 40, given the duties that border officers must discharge to
    protect Canadian borders under the
Customs Act
, in a general sense,
    everyone who is questioned at the border and whose luggage is examined is the
    target of an investigation. It is also 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:
Jones
, 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.

[7]

Referencing this courts decision in
Jones
, at paras. 40-42, the
    trial judge also properly observed that there reaches a point, however, where
    routine questioning and searches become a detention and Charter rights are
    engaged.  As this court 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.

[8]

The appellant argues that the border officers went beyond routine
    questioning and searches once they opened her luggage and saw the tins because
    it was then that they had a sufficiently strong particularized suspicion to
    warrant a more intrusive form of inquiry, namely the x-ray examination of the
    tins.  According to the appellant, the trial judge erred in failing to find
    that the appellant was detained at that point.

[9]

We disagree. The trial judge carefully reviewed the evidence concerning
    the appellants interactions with border officers and set out his conclusions
    on the issue of detention at para. 57 of his reasons, as follows:

In the present case, upon an objective review of all the
    circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I
    conclude that Officer Rodgers had a sufficiently strong particularized
    suspicion to warrant a more intrusive form of inquiry after she showed Ms.
    Sinclair the x-ray images and Ms. Sinclair asked, Whats in it?  At this
    point, on the basis of her sufficiently strong particularized suspicion,
    Officer Rodgers decided to conduct a more intrusive inquiry.

[10]

The
    trial judge found that it was at this point that the appellant was detained. There
    is no dispute that the appellant made no further statements to border officers.

[11]

We
    see no error in the trial judges analysis. It was open to him on the record to
    find that the questioning and searches carried out to the point where the x-ray
    images of the tins appeared, and the appellant asked her question, were routine.
    As a result, there was no error in the trial judges admission at trial of the
    appellants statements to border officers prior to that point. There is no
    basis to interfere.

[12]

Following
    the hearing of the appeal, appellants counsel asked to submit additional case
    law for our review:
R. v. Morgan
, [2017] O.J. No. 262 (S.C.J.). It
    does not change the outcome of this appeal.

[13]

Accordingly,
    the appeal is dismissed.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

L.B.
    Roberts J.A.


