



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ceballo, 2021 ONCA 791

DATE: 20211109

DOCKET: C67808

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Latoya Ceballo

Appellant

Nathan Gorham, appearing as duty counsel

Scott Wheildon, for the respondent

Heard: September 8, 2021 by video conference

On appeal from the conviction entered on August 8, 2019,
    by Justice Jennifer Woollcombe of the Superior Court of Justice, with reasons
    at 2019 ONSC 4617.

Paciocco J.A.:

OVERVIEW

[1]

Latoya Ceballo was arrested at Pearson International Airport on February
    2, 2014, after arriving from St. Maarten with 3.2 kilograms of cocaine in her
    possession. The cocaine was discovered when she was searched incident to her
    arrest, which occurred after she admitted during a secondary customs inspection
    that she had drugs strapped to her body. She was charged with importing
    cocaine, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19
.

[2]

At her trial, Ms. Ceballo applied pursuant to s. 24(2) of the
Canadian
    Charter of Rights and Freedoms

to exclude from evidence the cocaine
    that was found on her person. That
Charter

application was
    based, in part, on her submission that, by the time she admitted to having the
    drugs, she was already detained but had not been promptly advised of the reason
    for her detention, or of her right to consult counsel without delay, contrary
    to ss. 10(a) and 10(b) of the
Charter
.

[3]

The Border Services Officer who took charge of Ms. Ceballos secondary
    inspection was Border Services Officer Gilbey (BSO Gibley). As I will explain
    below, to establish that Ms. Ceballo was detained, thereby triggering her s. 10
Charter

rights, Ms. Ceballos trial counsel (trial counsel)
    had to establish that prior to Ms. Ceballos admission that she was in
    possession of cocaine, BSO Gilbey either engaged in intrusive, non-routine
    investigation of Ms. Ceballo, or had formed a strong particularized suspicion
    that Ms. Ceballo was committing an offence, and had decided to commence an
    intrusive investigation.
[1]


[4]

Ms. Ceballos trial proceeded as a blended
Charter voir dire
. The
    parties agreed that if her s. 24(2)
Charter

application failed
    to lead to the exclusion of the evidence Ms. Ceballo should be found guilty. The
Charter

application failed because the trial judge concluded
    that Ms. Ceballo had not been detained when she admitted to possessing the
    cocaine, and she was convicted. She was given a global sentence of six years
    and three months imprisonment.

[5]

Ms. Ceballo has appealed both her conviction and her sentence. Those
    appeals have been bifurcated, on consent. This is her conviction appeal. She
    submits
[2]
that the trial judge erred in denying her
Charter

application
    by failing to consider the cumulative effect of the evidence in determining
    whether she was detained when she made the admission and by misapprehending
    material evidence. For reasons that follow I would dismiss Ms. Ceballos
    conviction appeal.

MATERIAL FACTS

[6]

Upon her arrival, Ms. Ceballo was the subject of a Canada Border
    Services Agency Target Synopsis (known as a lookout). The computerized lookout
    provided her flight details and identified her as a target for contraband.
    The lookout alluded to her criminal record for fraud, noted that she was
    travelling alone on a go-show ticket after not having travelled since 2010,
    that she had been on a five day trip to a country of high interest for
    contraband smuggling, and that she had been the very last person to board the
    plane sequentially.

[7]

The lookout included the following requests to the border service
    officials who would be dealing with Ms. Ceballo: (1) Please conduct a
    progressive secondary examination to build any reasonable grounds, considering
    all methods of concealment such as body packing, ingestion and stuffing; (2) Please
    utilize all resources such as XRAY and ION; and (3) Please verify means and
    funding of travel  and purpose for last minute travel.

[8]

BSO Gilbey was responsible for roving among arriving passengers in the
    baggage hall. He spoke briefly with Ms. Ceballo and marked her arrival card for
    a secondary customs inspection. After she claimed her luggage, he conducted the
    secondary inspection, which commenced at 10:24 p.m.

[9]

In his evidence-in-chief, BSO Gilbey testified that Ms. Ceballo remained
    calm during that inspection. He questioned her about the purpose and funding
    for her travel. She told him she had stayed alone in a resort. She said her
    boyfriend purchased the ticket for her because she was upset about having
    miscarried a child, an explanation BSO Gilbey found to be an odd story. He
    asked her what she and her boyfriend did for a living and about their income.
    He examined the contents of her purse, which were unremarkable, and conducted
    an ion swab at 10:33 p.m. The ion swab came back with a positive reading for
    cocaine. This reading signified that the purse had been in contact with cocaine
    at some undeterminable point in time. BSO Gilbey advised Ms. Ceballo of the
    result of the ion test and she told him she had borrowed the purse from a
    friend. She said she did not use drugs. At 10:42 p.m. he asked Ms. Ceballo if
    she had drugs with her today, and she replied no. At 10:47 p.m., while he was
    examining her luggage, BSO Gilbey asked Ms. Ceballo straight out if she had
    drugs strapped to her body. He testified that he asks such direct questions to
    gauge a travellers reaction. It was at this point that Ms. Ceballo
    admitted that she was in possession of drugs, and he arrested her.

[10]

During cross-examination, trial counsel attempted to secure complete details
    about the questions BSO Gilbey had asked. This effort met with limited success
    because BSO Gilbey testified that he could not remember questions that produced
    the information he had recorded. BSO Gilbey also confirmed that there was a gap
    of approximately five minutes in his notes, between 10:42 p.m. to 10:47 p.m.,
    and testified that he could not recall if there was conversation during that
    five-minute period. He believed he was examining her baggage at the time.

[11]

When the suggestion was put to BSO Gilbey that he had told Ms. Ceballo
    that she would be searched, he responded that [i]ts fair to say that [he]
    might explain the customs process to her, including his authority to conduct
    more invasive searches under s. 98 of the
Customs Act
, R.S.C. 1985,
    c.1 (2nd Supp.) (s. 98). He could not recall specifically having done so but
    testified that this was his practice. He responded to the suggestions that he
    might have told Ms. Ceballo that she was going to be subject to a pat down by
    saying I dont recall. When it was suggested to him that he might have told
    Ms. Ceballo that she would be subject to a strip search he said [i]ts
    possible, but added that [g]enerally, its explaining the process. When the
    suggestion was repeated that he possibly told Ms. Ceballo she was going to be
    subject to a more invasive search he answered, Its possible that I explained
    the process.

[12]

BSO Gilbey was asked periodically during his testimony about his level
    of suspicion that Ms. Ceballo was committing a criminal offence, and whether he
    believed he had grounds to detain her pursuant to s. 98. BSO Gilbey denied
    having a particularized or strong suspicion that Ms. Ceballo was committing an
    offence, or sufficient grounds to detain Ms. Ceballo prior to her admission
    that she had cocaine on her body. He explained why individual indicia of
    possible criminality that he discovered prior to her arrest were not
    significant. For example, he testified that individuals placed on lookout may
    simply be wanted on a warrant, and many innocent people are coded that way;
    innocent people often have odd stories or strange answers; and he often fails
    to find narcotics after a positive ion test result, and the main impact of the
    ion test was to give him another question to ask.

[13]

During submissions, trial counsel challenged the credibility of BSO
    Gilbeys testimony. He submitted that BSO Gilbey had designed his notes to
    avoid scrutiny and was refusing to say what he said to [Ms. Ceballo] during
    the five-minute time-period when he took no notes. He asked the trial judge to
    infer that somewhere during the five-minute gap the questions BSO Gilbey asked
    Ms. Ceballo got more harsh and more specific. He also challenged the
    credibility of BSO Gilbeys testimony that he did not believe he had strong
    suspicion or grounds to detain Ms. Ceballo until she admitted that she had
    drugs strapped to her body.

[14]

The trial judge did not accept trial counsels submissions. She found
    that although BSO Gilbeys notes were deficient, his testimony was credible.
    She recognized the gaps in his testimony but said, [I]t is the applicant who
    must establish that she was detained. She found that the evidentiary record did
    not support a finding that Ms. Ceballo was detained. She accepted BSO Gilbeys
    testimony that he did not believe subjectively that he had grounds to detain
    Ms. Ceballo for a
Customs Act

search, and found that he
    lacked grounds, objectively, to detain [her] prior to her admission to having
    narcotics. She held, as well, that there is no evidence that [he] conducted
    anything other than a normal and routine screening procedure. She therefore
    denied the
Charter

application and ultimately convicted Ms.
    Ceballo.

ISSUES

[15]

Ms. Ceballo submits that the trial judge erred in finding that she was
    not detained prior to arrest because she examined the indicia of detention in a
    piecemeal fashion rather than evaluating the cumulative impact of the evidence.

[16]

She also argues that the trial judge misapprehended the evidence by
    making a finding that BSO Gilbey said that he does not recall, what, if
    anything further he asked in the period between 10:42 and 10:47 p.m. She
    submits that the trial judge further misapprehended the evidence by finding
    that BSO Gilbey testified that he did not recall reading the lookout, although
    he believed he had.

[17]

Although Ms. Ceballo marshalled the alleged misapprehensions of evidence
    in support of her claim that the trial judge did not consider the indicia of
    detention cumulatively, it is convenient to address the issues as follows:

A.

Did the trial
    judge err by considering the evidence piecemeal?

B.

Did the trial
    judge misapprehend evidence?

ANALYSIS

The Relevant Legal Principles

[18]

As Doherty J.A. explained in
R. v. Jones
(2006), 81 O.R. (3d)
    481 (C.A.), at paras. 30-35, given the importance of Canadas effective control
    over its borders, no one entering Canada reasonably expects to be left alone by
    the state. As a result, routine inspection of persons entering Canada is not
    stigmatizing, and principles of fundamental justice permit greater interference
    with personal autonomy and privacy than would ordinarily be acceptable in a
    free and democratic society. The concept of detention is tailored to this
    reality.

[19]

Accordingly, the restraint a traveller is under to either comply
    satisfactorily with a customs inspection or be denied entry into Canada does
    not constitute detention:
R. v. Kwok

(1986), 31 C.C.C. (3d) 196
    (Ont. C.A.), at p. 207. Nor is it enough to trigger a detention that the
    traveller has been subjected to secondary screening:
Dehghani v. Canada
    (Minister of Employment and Immigration)
, [1993] 1 S.C.R. 1053, at p. 1073.
    In the context of a traveller crossing the border, there are two alternative
    ways of identifying when the line has been crossed and a detention will occur.

[20]

The first approach is settled and non-controversial. It depends
    primarily on the intrusiveness of [the] state action:
Jones
, at para.
    32. Barnes J. described the intrusiveness test with clarity in
R. v.
    Sinclair
, 2016 ONSC 877, at para. 43, affd 2017 ONCA 287 (
Sinclair
    (ONCA)
), leave to appeal to SCC refused, 37625 (November 23, 2017), by
    observing that when the questioning and searches become less routine and more
    intrusive, the person is detained and that individuals s. 7, 8 and 10(b)
Charter
rights are engaged.

[21]

The line between detention and routine investigation is not always
    bright. However, in assessing whether a border investigation has reached the
    point where it is intrusive enough to trigger a detention, it must be
    appreciated that given the importance of border security, a robust concept of
    permissible routine forms of inspection operates. For example, the use of
    x-rays and ion scans capable of detecting drugs are routine forms of
    inspection:
R. v. Peters
, 2018 ONCA 493, at paras. 3, 11;
Sinclair
    (ONCA)
, at para. 6. So, too, is questioning related to the contents of
    luggage, or the provenance of those contents:

Peters
, at para.
    3. Similarly, questions intended to expose possible contraband or immigration
    issues, including questions about marital or employment status, income, or the
    purpose of a trip, or questions intended to probe the credibility of the
    answers a traveller has provided, are routine: see
Jones
, at paras.
    20-21, 37;
R. v. Sahota
, 2009 CanLII 44280 (Ont. S.C.), at para. 6.

[22]

By contrast, searches conducted pursuant to s. 98 of the
Customs Act
,
    including strip searches, body cavity searches, and bedpan vigils, are
    intrusive and will trigger a finding of detention:
R. v. Simmons
,
    [1988] 2 S.C.R. 495, at p. 521;
R. v. Monney
, [1999] 1 S.C.R. 652.

Of more immediate relevance to the instant case, questions cross the line and
    become intrusive when they amount to a coercive or adversarial interrogation,
    contain improper inducements, or exert unfair pressure:
Jones,
at
    paras. 41-42;
R. v. Darlington
, 2011 ONSC 2776, at paras. 75, 79.

[23]

In
Jones
,

Doherty J.A. recognized that there may be a
    second approach for identifying detention. Speaking in the context of
    investigative questioning, he left open the possibility that, although it will
    not be enough to establish detention that the border services officer has
    targeted the traveller for criminal investigation, if the border services
    officer has 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:
Jones
,

at para. 42.

[24]

In
Sinclair (ONCA)
, this court appears to have applied this
    approach in an endorsement decision. It upheld Barnes J.s conclusion that a
    detention occurred when a border services officer asked what was arguably a
    routine question in circumstances where objectively the border services officer
    had sufficiently strong particularized suspicion and subjectively decided to
    conduct a more intrusive inquiry. It also approved of his reasoning, quoting
    the heart of Barnes J.s analysis, at para. 9:

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 suspicion, Officer Rodgers decided
    to conduct a more intrusive inquiry.

[25]

In
Peters
, the trial judge used the alternative test that
    Doherty J.A. left open in
Jones
to determine whether Mr. Peters was
    detained. On appeal, again in an endorsement decision, a panel of this court described
    this more subjectively focused detention inquiry as the correct analysis:
Peters
,
    at para. 8. Similarly, in

Sahota
, at para. 48, van Rensburg J.,
    as she then was, found the accused to have been detained once the border
    services officer concluded he had reasonable and probable grounds to arrest him
    after finding suspicious bulges in a suitcase and x-raying the suitcase.

[26]

It may be that for a detention to occur, another step is required.
    Namely, in addition to having a sufficiently strong particularized suspicion,
    and a subjective decision to engage in an intrusive investigation or detain the
    subject, the border services officer may have to engage in some action that
    makes that intention known to the traveller. This requirement is consistent
    with the foundation for the constitutional concept of detention, resting as it
    does in the physical or psychological detention of the accused:
Simmons
,
    at pp. 515-21. There is also authority, including the decision of this court in

Kwok
,
to support the need for some act by the border services
    agent that indicates their intention to engage in more intrusive investigation
    or to detain the subject.

[27]

In
Kwok
,

the
    Crown conceded that the appellant, who was ultimately found to be importing heroin,
    was detained when a senior immigration officer decided to detain him. Finlayson
    J.A. could not accept that position. He stated, at p. 207:

Surely there must be
some action on the part of the
    immigration authorities to indicate that the restriction on the immigrants
    freedom has gone beyond that required for the processing of his application for
    entry
. In my opinion, the appellant was detained when [the senior
    immigration officer], having filled out the detained convention letter, invited
    the appellant  into his office with the intention of advising them of his
    decision to detain them (emphasis added).

[28]

In
Dehghani
, at p. 1068, Iacobucci J., writing for the court,
    cited this passage from
Kwok
with apparent approval. He then
    distinguished
Kwok

on the basis that there was no action on
    the part of the immigration authorities to indicate that the restriction on [the
    appellants] freedom ha[d] gone beyond that required for the processing of his
    application for entry:
Dehghani
, at p. 1072.

[29]

The need for some action by the border services agent that demonstrates
    their decision to engage in more intrusive measures also finds support in
Simmons
.
    There Dickson C.J. found, for a majority of the court, that a traveller was
    detained once informed that she would be strip searched. He noted, at p. 521,
    that when this occurred, the appellant could not have refused and continued on
    her way. He made a similar finding in the companion case of
R. v. Jacoy
,
    [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the
    accused was ushered into an interview room for the purposes of conducting a
    search. In each case the trigger for detention was not the formulation of the
    subjective intention to engage in intrusive investigation, but rather the steps
    that had been taken to commence the intrusive investigation, which steps would
    have made the subject aware that the border services officer had decided to go
    beyond a routine investigation.

[30]

I need not attempt to resolve the full reach of this second, alternative
    mode of identifying detention. As I will explain, in my view even if no conduct
    by the border services agent is needed to trigger a detention where objectively
    the border services agent has a sufficiently strong particularized suspicion,
    and has made the subjective decision to engage in an intrusive investigation, the
    trial judge did not err in this case in finding that Ms. Ceballo was not
    detained.

A.

Did the trial judge ERR by considering the evidence piecemeal?

[31]

I agree that it would be erroneous for a trial judge to approach a
    detention determination by looking at the indicia of detention piecemeal or
    individually, without considering the evidence cumulatively:
R. v. Chehil
,
    2013 SCC 49, [2013] 2 S.C.R. 220, at paras. 67-69;
Darlington
, at
    para. 75. However, in my view the trial judge did not do so.

[32]

In support of her position, Ms. Ceballo relied on the fact that the trial
    judge addressed the key indicia of detention serially  in this case the
    lookout, the ion scan, and the conversation. This, however, is not a dependable
    indication that the trial judge has failed to consider those indicia
    cumulatively. The significance of each individual indicia of detention must be
    assessed individually before their cumulative effect can be gauged. Here the
    trial judge properly described the task before her, noting explicitly that
    determining whether a traveller is detained for constitutional purposes, is
    fact-specific and includes consideration of all of the evidence.

[33]

Ms. Ceballos central submission in support of this ground of appeal appears
    to be that despite what the trial judge said, she must have evaluated the
    evidence piecemeal because if she had evaluated the evidence cumulatively she
    would inevitably have concluded that Ms. Ceballo was detained. Again, I
    disagree.

[34]

I am not persuaded that a cumulative view of the evidence reasonably
    required the trial judge to find that BSO Gilbey went beyond routine
    investigation and engaged in a more intrusive form of inquiry.

[35]

In considering whether routine forms of inspection were exceeded the
    trial judge was correct to emphasize that the burden was on Ms. Ceballo, the
Charter

claimant, to establish that she was detained. Yet Ms. Ceballo chose not to
    present evidence on this issue. The only material evidence the trial judge was
    left with came from BSO Gilbey, and that evidence established only routine
    searches of Ms. Ceballos belongings and routine questioning. It may well be
    that the line would have been crossed if Ms. Ceballo had proved that during
    questioning BSO Gilbey told her that she was going to be strip searched.
    However, BSO Gilbeys concession during cross-examination that it was possible he
    said this to her is not affirmative evidence that he did so, and in any event,
    his evidence, fairly interpreted, was that he believed he only described his s.
    98 powers but did not threaten to use them. Nor would it have been appropriate
    for the trial judge to speculate that some other unproven intrusive form of
    investigation may have occurred during the five-minute period during which BSO
    Gilbey took no notes. She was correct in declining the invitation to do so. I
    see no error in the trial judges determination that Ms. Ceballo failed to
    prove that BSO Gilbey exceeded routine forms of investigation.

[36]

Nor am I persuaded that the only reasonable conclusion that the trial
    judge could have come to was that objectively, BSO Gilbey had formed a sufficiently
    strong particularized suspicion and that he had subjectively decided to engage
    in an intrusive investigation.

[37]

With respect to the strength of BSO Gilbeys suspicion, I do not accept
    Ms. Ceballos apparent premise that targeting a traveller for
    investigation for a specific kind of offence amounts to a particularized suspicion.
    Whether it does so will depend on the cogency of the information supporting the
    suspicion. As Doherty J.A. pointed out in
Jones
, at para. 40:

In a general sense, everyone who is questioned at the border
    and whose luggage is examined is the target of an investigation. It only makes
    good sense that those responsible for enforcing border regulations will focus
    their routine questions and searches on persons who have for some reason
    attracted their interest.

[38]

There is therefore an important difference between having general
    suspicion that a person seeking entry could be engaged in criminality and
    having the sufficiently strong particularized suspicion that can open the door
    to a finding of detention. For this reason, the mere fact that the traveller
    has been targeted for investigation, even for a suspected general category of
    offence, does not constitute a sufficiently strong particularized suspicion:
Sahota
,
    at para. 47.

[39]

In my view, the trial judge was entitled to find that Ms. Ceballo was
    not detained. The tip or lookout was not particularly significant. It disclosed
    only that Ms. Ceballo presented with a general profile that warranted attention.
    Similarly, it was open to the trial judge on the evidence before her to find,
    as she did, that the ion scan result did not have particular significance. The
    trial judge also considered the exchange that occurred between BSO Gilbey and
    Ms. Ceballo. She was entitled, on this record, to conclude that prior to Ms.
    Ceballos admission that she had cocaine in her possession BSO Gilbey did not
    have objective grounds to detain her. Although it would have been preferable for
    the trial judge to have said expressly that she was not satisfied that BSO
    Gilbey had a sufficiently strong particularized suspicion to trigger a
    detention, that was the clear purport of her comments, and I would take no
    issue with that outcome.

[40]

Similarly, the trial judge was entitled to accept BSO Gilbeys testimony
    that he did not believe subjectively that he had grounds to detain Ms. Ceballo
    prior to her admission that she had cocaine strapped to her body. Ms. Ceballo
    has not challenged that factual finding, and during oral argument, duty counsel
    made clear that BSO Gilbeys credibility was not an issue in this appeal. Once
    again, although it would have been better had the trial judge spoken directly
    about whether BSO Gilbey had formed an intention to engage in more intrusive
    investigation prior to Ms. Ceballos admission, it is clear that she was not
    persuaded that he had.

[41]

I would therefore dismiss this ground of appeal.

B.

Did the trial judge misapprehend evidence?

[42]

I do not agree with Ms. Ceballos submission that the trial judge erred
    by misapprehending evidence.

[43]

The trial judges finding that BSO Gilbey said he does not recall what,
    if anything further he asked in the period between 10:42 and 10:47 p.m. is
    true to his testimony. The fact that BSO Gilbey was prepared to concede the
    possibility that lines of conversation suggested to him may have occurred is
    not evidence to the contrary. Indeed, as he explained in his testimony, the
    reason BSO Gilbey left open the possibility that he had discussed the
Customs
    Act

process was that he could not remember if anything had been
    discussed, and this is something that he would ordinarily discuss.

[44]

Things are modestly more complex with the trial judges comment that BSO
    Gilbey testified that he did not recall reading the lookout [or Target
    Synopsis], although he believed that he had. This finding accurately describes
    the testimony that BSO Gilbey gave during his evidence-in-chief. But it does
    not accurately describe what BSO Gilbey said in cross-examination when he agreed
    with the suggestion that he read the target synopsis before he spoke to Ms.
    Ceballo.

[45]

It may therefore be that the trial judge misapprehended the evidence by
    failing to consider BSO Gilbeys answers in cross-examination, but it is also
    possible that she may simply have preferred his evidence-in-chief. It is
    controversial whether I should make a finding that the trial judge
    misapprehended the evidence in the circumstances. But I need not decide. A
    misapprehension of evidence will not lead to a miscarriage of justice unless it
    is a mistake as to the substance of material parts of the evidence and those
    errors play an essential part in the reasoning process resulting in a
    conviction:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541;
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Even if
    the trial judge did misapprehend the evidence as to whether BSO Gilbey read the
    lookout, that misapprehension did not play an essential role in the reasoning
    process. It would have done so if the trial judge had decided that the lookout
    should not factor into her determination of whether BSO Gilbey had a
    sufficiently strong particularized suspicion because he was unsure whether he
    even read it. But that is not how the trial judge proceeded. She considered the
    lookout in coming to her conclusion. In particular, she accepted BSO Gilbeys
    testimony that the lookout was not significant, and reasoned correctly, that a
    person is not detained simply because they are flagged for secondary inspection
    because of a lookout.

[46]

The trial judge did not err by misapprehending evidence.

CONCLUSION

[47]

I would dismiss Ms. Ceballos conviction appeal.

Released: November 9, 2021 A.H.

David M. Paciocco
    J.A.

I agree. Alexandra
    Hoy J.A.

I agree. Gary Trotter
    J.A.





[1]
As I will also explain below, it may be the case that in order to establish
    detention based on a strong particularized suspicion, it must be shown that the
    person conducting the customs inspection in some way communicated to the
    subject that the decision to detain them or subject them to more intrusive
    investigation has been made.



[2]

The conviction appeal was an inmate appeal, and Ms. Ceballo
    was generously and ably assisted by duty counsel on her behalf. It is convenient
    to refer to the arguments made on appeal as her submissions.


