Mar 20

Almost everyone has been to an airport, most have been subjected to questioning and searches, and some have been charged with entering the country with illegal substances. The question by all is what are my rights at the airport?

All actions by state agents are governed by the Charter of Rights and Freedoms. If state agents act contrary to the Charter, it is possible to exclude all evidence discovered in breach of the Charter.

Although the Charter applies to all state actions, when they occur within an airport, most likely from a Border Service Agent, the state agents are allowed more leeway before the Charter applies. Canada has the right to protect their borders and therefore when the Charter is engaged is different than a typical interaction with the police on the street.

When entering Canada, passengers are subjected to routine scrutiny and screening and they are also obliged to respond truthfully to questions asked by officers in the course of their duties. This is unique to airports and will not attract Charter protections. But when the routineness of  the screening gives way to more specific and intrusive measures the Charter applies.

The Ontario Court of Appeal in R. v. Jones (2006), 81 O.R (3d) 481, held that the pivotal issue in determining whether the person is “detained” and therefore the Charter applies is whether the questioning has gone beyond routine, based on some sufficiently strong particularized suspicion. In all cases the point at which routine questions becomes a focused investigation is a fact driven exercise, which must be assessed in context.

The subjective belief of the Border Service Officer is a crucial factor in determining whether an individual was detained and the Charter was engaged. Recently, the Ontario Court of Appeal in R. v. Peters, 2018 ONCA 493, held that an officer’s subjective belief must be objectively reasonable in the circumstances of the case. This is determined by weighing all the evidence.

In a recent decision by Justice Baltman in R. v. Juma, 2018 ONSC 3652, reviewed all the circumstances of the case and found that the officer’s subjective belief that the individual was not detained was unreasonable in the circumstances. Baltman J. held that when the officer “conducted a particularized and unprecedented search online and found ominous information that matched the accused’s travel trajectory, the questioning changed from routine inquiries to a focused investigation of an offence.” She went on to exclude nearly 1.5 kg of heroin since the Border Service Officers breached the accused’s Charter rights.

Once a passenger is detained, the Charter applied as it would in any other interaction with a state agent. Passengers must be informed of the reason for their detention, must be provided rights to counsel and, most importantly, are given the right to silence and the right against self-incrimination. That means if the conduct of the officers is not Charter compliant, any answers provided after detention may not be used as evidence. This is crucial as it may be the only direct evidence to establish knowledge of drugs found in a passenger’s luggage.

Further, if Charter breaches are established, the drugs located in breach of a passenger’s Charter rights may be excluded from the trial. Once a breach is established, the Court weighs three factors:

  1. The seriousness of the Charter-infringing conduct;
  2. The impact on the Charter-protected interests of the accused; and
  3. Society’s interest in the adjudication on the merits.

After weighing these factors, if the trial judge determines that the facts of the case weigh in favour of exclusion of the evidence, the drugs recovered in breach of a passenger’s rights will be excluded from evidence. This would end the prosecution before it begins.

Although Border Service Officers are afforded much leeway in protecting our borders, once their actions go beyond routine, an individual is afforded all the protections the Charter guarantees. Therefore, it is crucial to scrutinize the conduct of state agents at airports to determine if their conduct was Charter compliant.