NO WARRANT, NO SEARCH AT BORDER
Drug Conviction Void Because of Guards' Unsanctioned Inspection of Truck
Canada's border guards may be forced to change their ways after a B.C. provincial court judge threw out a drug-smuggling case because there had been no search warrant.
The Canada Border Service Agency is appealing last week's acquittal of Ajitpal Singh Sekhon on charges of importing 50 kilograms of cocaine into Canada.
The ruling is believed to be the first of its kind in Canada. B.C. Provincial Court Judge Ellen Gordon ruled that border officers violated three sections of the Canadian Charter of Rights and Freedoms when they interrogated and dismantled the truck Sekhon was driving without first obtaining a search warrant.
The ruling meant the drugs seized by border officers could not be used as evidence against Sekhon.
Sekhon, a Canadian citizen, tried to enter Canada at the Aldergrove border crossing Jan. 25, 2005. A border guard decided Sekhon looked suspiciously tense and sent him to be questioned in the customs office.
With the help of a drug-sniffing dog, guards found a false compartment below the truck bed, at which point Sekhon was informed that he would be detained and that he had the right to a lawyer.
Gordon concluded that Sekhon had been detained from the moment he was locked inside the office, violating Sections 9 and 10 of the Charter, which prohibit arbitrary detention and guarantee the right to a lawyer.
Custom Excise Union spokesman Steve Pellerin-Fowlie said yesterday the implications of Gordon's ruling are huge for the country's 10,000 border service officers.
"This is unprecedented -- I've never heard of any border operation requiring a search warrant. This would be such a break in procedure and I don't know how it would be handled," he said.
In her ruling, Gordon said the search of the vehicle was unconstitutional because the officers acted on their own without judicial authorization.
"This is a wholesale change in procedure," said Pellerin-Fowlie. "It would require hundreds if not thousands more people."
Telephone warrants are routine and can be provided in minutes. But Pellerin-Fowlie said if officers are constantly trying to get search warrants, it could create huge backlogs.
"Would a judge be on call 24 hours a day?" he asked. "It would require hundreds, if not thousands, more people."
Chris Williams, a spokesman for the Canada Border Service Agency, said the acquittal of Sekhon is being appealed. And, pending a further ruling, there will be no changes in procedure at the border.
"The procedures and practices in place now . . . are based on previous court precedents," he said.
Mike Milne of U.S. Customs and Border Protection said U.S. "border search authority" -- long backed up by the courts -- "makes you subject to a search without a warrant."