Kelly v. Palazzo,

• Jurisdiction: Ontario
• Judge: Doherty, Moldaver and Gillese, JJ.A.
• Neutral Citation: 2008 ONCA 82
• Citation: (2008), 233 O.A.C. 160 (CA),2008 ONCA 82,89 OR (3d) 111,290 DLR (4th) 315,[2008] OJ No 412 (QL),164 ACWS (3d) 780,168 CRR (2d) 256,233 OAC 160,89 O.R. (3d) 111,(2008), 233 OAC 160 (CA),290 D.L.R. (4th) 315,233 O.A.C. 160,[2008] O.J. No 412 (QL)
• Date: 11 February 2008
• Court: Court of Appeal (Ontario)

Kelly v. Palazzo (2008), 233 O.A.C. 160 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. FE.026

Richard Kelly (appellant/plaintiff) v. Anthony Palazzo, Badge No. 13403, Jason Noble, Badge No. 13398, Elizabeth Warren, Badge No. 13591, Alison Demchyshyn, Badge No. 10049, Robert Hogan, Badge No. 1311, and Her Majesty the Queen (Minister of Canada Customs & Revenue Agency) (respondents/defendants)

(C44727; 2008 ONCA 82)

Indexed As: Kelly v. Palazzo et al.

Ontario Court of Appeal

Doherty, Moldaver and Gillese, JJ.A.

February 11, 2008.

Summary:

Upon Kelly's return to Canada from Jamaica, a customs officer at the Pearson Toronto Airport suspected Kelly of carrying contraband. He was questioned and eventually detained, strip searched and "loo searched". Kelly sued the Crown (Minister of Canada Customs and Revenue Agency) and the individual customs officers who were involved in his detention and search. Kelly claimed that the customs officials had no proper grounds to detain or search him and that they did so because he was a Black African-Canadian.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 288, dismissed the action. Kelly appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - When Kelly returned to Canada from Jamaica, an airport customs officer suspected him of carrying contraband - Kelly was questioned and eventually detained, strip searched and "loo searched" - Kelly sued the Crown (Minister of Canada Customs and Revenue Agency) and the individual customs officers who were involved in his detention and search - The Ontario Court of Appeal held that Kelly was not detained for the purposes of s. 10 of the Charter when: he was questioned by Officer Demchyshyn, a rover who randomly selected him because he was arriving from a high risk flight; or when he was directed to the secondary area where he was further questioned, his luggage and wallet searched, and his jewellery scanned for evidence of drug residue - Nor did any of these activities interfere with Kelly's reasonable expectations of privacy - Consequently, these actions could not violate s. 8 of the Charter - See paragraphs 52 to 54.

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 1655

Property - Search and seizure - Warrantless search and seizure - Customs - [See Civil Rights - Topic 1508 ].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes detention - [See Civil Rights - Topic 1508 ].

Courts - Topic 691

Judges - Disqualification - Bias - Reasonable apprehension of bias - The Ontario Court of Appeal stated that "It takes much more than a demonstration of judicial impatience with counsel or even downright rudeness to dispel the strong presumption of impartiality. While litigants may not appreciate that presumption and thus may misread judicial conduct, lawyers are expected to appreciate that presumption and, where necessary, explain it to their clients. Baseless allegations of bias or of a reasonable apprehension of bias founded on a perceived slight or discourtesy that occurred during a trial, will not assist the client's cause and do a disservice to the administration of justice." - See paragraph 21 - The court reviewed exchanges between the trial judge and counsel in the case before it and found no reasonable apprehension of bias - See paragraphs 17 to 33.

Customs - Topic 3003

Search and seizure - Application of search and seizure provisions (Customs Act) - Section 98(1) of the Customs Act authorized searches of the person by Customs officials - It provided in part that "An officer may search, (a) any person who has arrived in Canada ... if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act has been or might be contravened ..." - The Ontario Court of Appeal held that the reasonable suspicion standard was akin to the standard required for an investigative detention - It combined a subjectively based suspicion with the objective requirement that the suspicion be reasonable in all of the circumstances - Insofar as the scope of the search was concerned, it was recognized that a s. 98(1) search could include both a strip-search and a "loo search" - The court held that, in the case before it, it was open to a trial judge to conclude on the evidence that a Customs officer had reasonable grounds to suspect that the plaintiff had drugs on or in his person when she ordered him searched pursuant to s. 98(1) - Those grounds included the facts that he was uncooperative during most of the questioning, his lips were trembling and his legs were shaking and eventually he was shouting at the officer and causing a disturbance - See paragraphs 34 to 41 and 55 to 57.

Customs - Topic 3003

Search and seizure - Application of search and seizure provisions (Customs Act) - Section 98(1) of the Customs Act authorized searches of persons entering Canada where a Customs officer "suspects on reasonable grounds" that a person is carrying contraband - Section 98(3) directed that where the person to be searched so requests, that person must be taken before a senior officer - The senior officer must discharge that person without a search if the senior officer "sees no reasonable grounds for the search" - The Ontario Court of Appeal held that "s. 98(3) contemplates a review of the decision made under s. 98(1). It flows from that characterization that the section does not provide a different and more stringent standard than the standard contemplated under s. 98(1). ... If the senior officer is satisfied that there was a reasonable basis for the decision made under s. 98(1) and that the basis for the reasonable suspicion remains intact, the search may proceed. The senior officer's review must be based on the information relied on by the Customs officer in making the initial decision considered in the light of any additional information provided to the senior officer by the person to be searched or from some other source." - See paragraphs 71 and 72.

Customs - Topic 3003

Search and seizure - Application of search and seizure provisions (Customs Act) - Section 98(1) of the Customs Act authorized searches of persons entering Canada where a Customs officer "suspects on reasonable grounds" that a person is carrying contraband - Section 98(3) directed that where the person to be searched so requests, that person must be taken before a senior officer - The senior officer must discharge that person without a search if the senior officer "sees no reasonable grounds for the search" - The Ontario Court of Appeal stated that "Section 98(3) is an important and final protection afforded to the individual against what may be a very invasive search carried out under s. 98(1). The section can only serve its purpose if the individual to be searched is given a meaningful opportunity to satisfy the senior officer that he or she should not be searched. That opportunity is meaningful only if the person to be searched understands the nature of the search to which he or she will be subjected and appreciates the role of the senior officer in the process. In addition, the person to be searched must understand, at least in general terms, the grounds for the search and must be given an opportunity to respond to those grounds. The senior officer should make sure that the person to be searched has the requisite understanding of the process, the senior officer's role in that process, and is given a fair opportunity to respond to the grounds upon which the search is based." - See paragraph 77.

Customs - Topic 3025

Search and seizure - Search - Warrantless searches - [See Civil Rights - Topic 1508 ].

Practice - Topic 7037

Costs - Party and party costs - Entitlement to - Factors or circumstances reducing entitlement - When Kelly returned to Canada from Jamaica, an airport customs officer suspected him of carrying contraband - Kelly was questioned and eventually detained, strip searched and "loo searched" - Kelly sued the Crown (Minister of Canada Customs and Revenue Agency) and the individual customs officers (the defendants) who were involved in his detention and search - Kelly claimed that the customs officials had no proper grounds to detain or search him and that they did so because he was a Black African-Canadian - The trial judge dismissed the action - The trial judge awarded costs to the defendants who were entirely successful on the trial - However, the trial judge significantly reduced those costs to reflect the negligent late disclosure of material information by the defendants - Kelly appealed and sought leave to appeal the costs order made at trial - The Ontario Court of Appeal held that the costs order reflected a proper exercise of the trial judge's discretion - See paragraph 5.

Cases Noticed:

Peart et al. v. Peel Regional Police Services Board et al. (2006), 217 O.A.C. 269; 43 C.R.(6th) 175 (C.A.), refd to. [para. 19].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 20].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241; 66 C.R.(3d) 297; 45 C.C.C.(3d) 296, appld. [para. 52].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241; 101 D.L.R.(4th) 654, refd to. [para. 52].

R. v. Monney (I.), [1999] 1 S.C.R. 652; 237 N.R. 157; 119 O.A.C. 272; 133 C.C.C.(3d) 129, refd to. [para. 52].

R. v. Jones (K.C.) (2006), 214 O.A.C. 225 (C.A.), refd to. [para. 52].

R. v. Hudson (D.A.) (2005), 206 O.A.C. 318 (C.A.), refd to. [para. 52].

R. v. Mann (P.H.) (2004), 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 185 C.C.C.(3d) 308 (S.C.C.), refd to. [para. 56].

Statutes Noticed:

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 98(1) [para. 55]; sect. 98(3) [para. 58].

Counsel:

Osborne G. Barnwell, for the appellant;

Christopher Parke, for the respondent.

This appeal was heard on December 4 and 5, 2007, by Doherty, Moldaver and Gillese, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on February 11, 2008.