Pubdate: Tue, 17 Jul 2007
Source: Vancouver Sun (CN BC)
Copyright: 2007 The Vancouver Sun
Contact:  http://www.canada.com/vancouver/vancouversun/
Details: http://www.mapinc.org/media/477

BORDER SEARCHES ARE A FAIR TRADEOFF TO ENSURE PUBLIC SAFETY

In a ruling that appears to defy common sense, a provincial court 
judge has found that border guards violated the constitutional rights 
of an alleged cocaine smuggler when they detained him and searched his truck.

The events that precipitated this judgment are elementary. A border 
guard found Ajitpal Singh Sekhon suspiciously tense as he tried to 
enter Canada at the Aldergrove crossing on Jan. 25, 2005, and sent 
him to the customs office for questioning. Meanwhile, inspectors, 
with the help of a drug-sniffing dog, found 50 bricks of cocaine in a 
false compartment below the truck bed. Sekhon was then told he'd be 
detained and that he had the right to legal counsel.

Judge Ellen Gordon ruled last Friday that border guards violated 
three sections of the Canadian Charter of Rights and Freedoms -- 
Section 9, which prohibits arbitrary detention; Section 10, which 
guarantees the right to legal counsel; and Section 8, which covers 
freedom from unreasonable search or seizure -- the latter breach the 
result of not applying for a search warrant.

The two border guards caught up in this nonsense testified that they 
had never applied for a search warrant; it had not occurred to them 
to do so in their entire careers. After all, searching vehicles at 
border crossings is routine and the Customs Act gives border officers 
wide discretion and broad powers under its exigent circumstances 
clause to search and seize without a warrant.

It isn't practical -- it's preposterous -- to require border guards 
to apply for a search warrant every time they inspect a vehicle 
entering Canada. Federal prosecutors have already appealed Gordon's decision.

But get this; the same judge ruled last October that RCMP drug squad 
officers violated the Charter by faxing a justice of the peace to get 
search warrants. She argued that the Criminal Code requires police 
officers to appear in front of a judge to defend their requests. By 
this logic, border guards would have to present themselves before the 
court for every vehicle inspection.

In the drug case last year, Gordon acquitted the accused marijuana 
grower who police had charged after seizing his 649 pot plants. A 
similar outcome is likely in this latest case since her ruling on 
Friday means the cocaine seized at the border can't be used as evidence.

Gordon has handed down some other interesting rulings since she was 
appointed to the bench in May 2005. She sentenced to two years in 
jail a woman who, with a blood-alcohol level twice the legal limit, 
drove the wrong way up an exit ramp onto a divided highway and 
slammed her Toyota head-on into a BMW driven by an innocent 
23-year-old motorist, killing him instantly. Other drivers were 
forced to swerve to avoid a similar fate as she careened down Highway 
1. Gordon delayed sentencing for five months so the alcoholic driver 
wouldn't have to spend Christmas in jail. An appeals court overturned 
Gordon's sentence and doubled the jail time, adding that Gordon's 
ruling "should have emphasized the need to denounce drinking and driving."

She also acquitted another drunk driver who was stopped by a border 
guard at the Boundary Bay crossing in 2004. The man refused to 
provide a breath sample and was later charged with causing a 
disturbance for trying to kick out the windows of a police cruiser. 
The guard said the man was unsteady on his feet, smelled of alcohol, 
was rude and belligerent, and threatened to sue the guards who detained him.

Gordon ruled that the border guard violated the drunk driver's rights 
when he asked him to step out of the car and open the trunk. "There 
was no basis for an inspection of the trunk," she wrote in her 
acquittal ruling. "The guard lied to the court when he stated that he 
wanted to inspect the trunk. It is clear he wanted to see if the 
odour of liquor that he detected emanated from Gorman and not from the car."

In another decision, Gordon sentenced a teenager who attacked a man 
with a knife, inflicting wounds to his arm and torso that required 
two operations and eight days in hospital, to one-year's probation 
and 50 hours of community service. The knife-wielding teen, Gordon 
said, "has suffered so much stress over this matter that he has 
developed ulcers."

Gordon also gave an absolute discharge to June Matheson, who killed a 
stand of trees in Stanley Park so she could get a better view of 
English Bay from her condominium. "The public has denounced her 
conduct much more than the court could," Gordon explained.

If Gordon's ruling on the cocaine seizure stands, it makes a mockery 
of our border defences. If the Charter prevents border officers from 
detaining people and searching vehicles in the absence of a warrant, 
they have no practical means of keeping drugs, weapons and other 
contraband out of the country. Their only option will be to turn a 
suspect vehicle around and send it back to the United States where 
offenders will find the welcome even less hospitable.

Travellers are not forced to cross borders. When they choose to do 
so, they waive certain rights, among them freedom from search and 
seizure. It is a necessary restriction on our freedom to ensure 
public safety. Taking away the power of our law enforcement 
authorities to protect us puts everyone in jeopardy. That is not the 
intent of the Charter.
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MAP posted-by: Jay Bergstrom