R. v. Monney (I.), (1999) 237 N.R. 157 (SCC)

• Judge: L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court of Canada
• Case Date: December 04, 1998
• Jurisdiction: Canada (Federal)
• Citations: (1999), 237 N.R. 157 (SCC);[1999] SCJ No 18 (QL);1999 CanLII 678 (SCC);119 OAC 272;41 WCB (2d) 406;[1999] 1 SCR 652;24 CR (5th) 97;237 NR 157;133 CCC (3d) 129;171 DLR (4th) 1;61 CRR (2d) 244

R. v. Monney (I.) (1999), 237 N.R. 157 (SCC)

MLB Headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1999] N.R. TBEd. AP.022

Her Majesty The Queen (appellant) v. Isaac Monney (respondent)

(26404)

Indexed As: R. v. Monney (I.)

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ.

April 23, 1999.

Summary:

The accused was convicted of importing narcotics contrary to s. 5(1) of the Narcotic Control Act. The accused allegedly imported heroin into Canada by swallowing 84 pellets containing the narcotic before departing by airplane from Switzerland. The accused appealed arguing that his rights under ss. 7, 8 and 9 of the Charter were violated because of the way he was detained at the airport and therefore the evidence concerning the nar­cotics should be excluded under s. 24 of the Charter.

The Ontario Court of Appeal, Weiler, J.A., dissenting, in a decision reported 105 O.A.C. 1, allowed the appeal, quashed the convic­tion and entered an acquittal. The Crown appealed.

The Supreme Court of Canada allowed the appeal, set aside the judgment of the Court of Appeal and restored the conviction entered at trial.

Civil Rights - Topic 1217

Security of the person - Lawful or rea­sonable search - What constitutes un­reasonable search and seizure - Customs officials at an international airport detained a traveller in a "drug loo facility" until he passed pellets containing heroin - The Supreme Court of Canada held that this border search was reasonable for the pur­poses of s. 8 of the Charter - This type of search (i.e., a passive "bedpan vigil") was a category two type search as outlined in R. v. Simmons (i.e., the traveller was not subjected to an intentional application of force against his will) - "As is the case with other investigation techniques in the second category such as a strip search, subjecting travellers crossing the Canadian border to potential embarrassment is the price to be paid in order to achieve the necessary balance between an individual's privacy interest and the compelling coun­tervailing state interest in protecting the integrity of Canada's borders from the flow of dangerous contraband materials" - See paragraphs 29 to 48.

Civil Rights - Topic 1217

Security of the person - Lawful or rea­sonable search - What constitutes unrea­sonable search and seizure - Customs officials at an international airport detained a traveller in a "drug loo facility" until he passed pellets containing heroin - In the context of determining whether the travel­ler's s. 8 Charter rights were violated, the Supreme Court of Canada stated that "an individual's privacy interest in the protec­tion of bodily fluids does not extend to contraband which is intermingled with bodily waste and which is expelled from the body in the process of allowing nature to take its course. It is not necessary for determination of the issue in this appeal to address the question of whether, if the customs officers had adopted a more in­vasive form of collection, such as surgery or inducing a bowel movement, the result would necessarily be the same." - See paragraph 45.

Civil Rights - Topic 1421

Security of the person - Border searches - General - The Supreme Court of Canada stated that border crossings represent a unique factual circumstance for purposes of s. 8 analysis - "Accordingly, decisions of this court relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada's border." - See paragraphs 42, 43.

Civil Rights - Topic 1428

Security of the person - Border searches - Seizure of narcotics etc. - [See both Civil Rights - Topic 1217 ].

Civil Rights - Topic 1435

Security of the person - Border searches - Medical attention for detainees - Customs officials at an international airport sus­pected that a traveller had ingested pellets of heroin and detained the traveller in a "drug loo facility" until he passed the pellets - The traveller argued that customs officials put his life at risk contrary to s. 7 of the Charter because he was not detained under medical supervision - The Supreme Court of Canada held that s. 7 was not violated - Customs officials inquired as to the traveller's health and made it clear that medical assistance was available to him at any time - "Constitutional protection of life and security of the person under s. 7 did not extend to providing access to medical supervision during a passive 'bed­pan vigil' over and above the rejection of medical attention by the suspect being detained". - See paragraphs 54 to 56.

Constitutional Law - Topic 2501

Determination of validity of statutes or acts - General principles - General - The Supreme Court of Canada stated that "ad­mittedly, statutory interpretation in the context of constitutional review is not an exact science. While reference to common parlance and standard dictionary defini­tions are often of assistance in interpreting legis­lative provisions, regard must be had not only to the ordinary and natural mean­ing of the words, but also to the context in which they are used and the purpose of the provision as a whole ... The most signifi­cant element of this analysis is the deter­mination of legislative intent." - See para­graph 26.

Customs - Topic 2826

Report and entry inwards - Customs officers - Powers and duties - Arrest and detention - Section 98 of the Customs Act gave customs officers certain search powers where the officer suspected that the person had contraband "secreted on or about his person" - The Supreme Court of Canada held that by using the phrase "secreted on or about his person" Parlia­ment intended to confer authority on cus­toms officers, so far as the Charter per­mitted, to search for prohibited material not only on or about the surface of the travel­ler's body, but also secreted or con­cealed within the traveller's body - See para­graphs 25 to 28.

Customs - Topic 2826

Report and entry inwards - Customs officers - Powers and duties - Arrest and detention - Section 98 of the Customs Act gave customs officers certain search powers where an officer suspected on reasonable grounds that a person had con­traband secreted on or about his person - Customs officials at an international airport detained a traveller in a "drug loo facility" until he passed the pellets - The Supreme Court of Canada held that the customs officials had reasonable grounds within the meaning of s. 98 to suspect that the travel­ler was smuggling where, inter alia, the traveller appeared to have made his travel plans at the last minute, had limited finan­cial resources to travel and had travelled through Switzerland, a "transit routing" country for narcotics smuggling - Further, the traveller had visited Ghana, a "source" country, although when initially questioned he denied being in Ghana - See para­graphs 49 to 52.

Customs - Topic 2826

Report and entry inwards - Customs officers - Powers and duties - Arrest and detention - Section 98 of the Customs Act gave customs officials certain search powers if within a reasonable time after a person arrived in Canada the officials suspected on reasonable grounds that the person had contraband secreted on or about his person - Customs officials at an inter­national airport detained a traveller in a "drug loo facility" until he passed pellets containing heroin - It was two hours from the time that the customs officials deter­mined that they had grounds to detain the traveller until the customs enforcement officers arrived to take him to the "drug loo facility" - The Supreme Court of Canada held that the delayed response by the customs enforcement officers was not sufficient to establish that the search was not conducted within a reasonable time after his arrival in Canada as required by s. 98 - See paragraph 53.

Customs - Topic 2826

Report and entry inwards - Customs officers - Powers and duties - Arrest and detention - [See both Civil Rights - Topic 1217 ].

Customs - Topic 2827

Report and entry inwards - Customs officers - Powers and duties - Medical treatment for detainees - [See Civil Rights - Topic 1435 ].

Cases Noticed:

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 53 C.C.C.(3d) 316, refd to. [para. 12].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 13 B.C.L.R.(2d) 1; 28 C.R.R. 122, refd to. [para. 12].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257; 46 C.R.R. 1; [1990] 3 W.W.R. 577; 73 Alta. L.R.(2d) 97, refd to. [para. 12].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1; 115 C.C.C.(3d) 129, refd to. [para. 15].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1; 113 C.C.C.(3d) 321, dist. [para. 16].

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. 21].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1, refd to. [para. 26].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97, refd to. [para. 29].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 31].

R. v. Jacques (J.R.) and Mitchell (M.M.), [1996] 3 S.C.R. 312; 202 N.R. 49; 180 N.B.R.(2d) 161; 458 A.P.R. 161; 110 C.C.C.(3d) 1, refd to. [para. 42].

R. v. Dyment, [1988] 2 S.C.R. 417; 89 N.R. 249; 73 Nfld. & P.E.I.R. 13; 229 A.P.R. 13; 45 C.C.C.(3d) 244; 10 M.V.R.(2d) 1; 66 C.R.(3d) 348; 55 D.L.R.(4th) 503, refd to. [para. 44].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 17 D.L.R.(4th) 422; 14 C.R.R. 13; 12 Admin. L.R. 137, refd to. [para. 55].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 8, sect. 24(2) [para. 11].

Customs Act, R.S.C. 1970, c. C-40, sect. 143 [para. 33].

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 98(1), sect. 98(2), sect. 98(3) [para. 11].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 31(2) [para. 15].

Authors and Works Noticed:

Concise Oxford Dictionary of Current English (9th Ed. 1995) [para. 27].

Nouveau Petit Robert: Dictionnaire alphabétique et analogique de la langue française, 1996 [para. 27].

Counsel:

James W. Leising and Thomas Beveridge, for the appellant;

Russell S. Silverstein and David M. Tanovich, for the respondent.

Solicitors of Record:

Attorney General of Canada, Toronto, Ontario, for the appellant;

Pinkofsky, Lockyer, Toronto, Ontario, for the respondent.

This appeal was heard on December 4, 1998, before L'Heureux-Dubé, Gonthier, McLachlin, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Iacobucci, J., on April 23, 1999.