R. v. Oluwa (J.), (1996) 75 B.C.A.C. 284 (CA)

• Judge: McEachern, C.J.B.C., Goldie and Donald, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: February 01, 1996
• Jurisdiction: British Columbia
• Citations: (1996), 75 B.C.A.C. 284 (CA)

R. v. Oluwa (J.) (1996), 75 B.C.A.C. 284 (CA);

    123 W.A.C. 284

MLB headnote and full text

Regina (respondent) v. Jonathon Oluwa (appellant)

(CA019045)

Indexed As: R. v. Oluwa (J.)

British Columbia Court of Appeal

McEachern, C.J.B.C., Goldie and Donald, JJ.A.

May 16, 1996.

Summary:

The accused appealed his conviction for importing heroin into Canada and for pos­session of heroin for the purpose of traf­ficking.

The British Columbia Court of Appeal, Donald, J.A., dissenting, dismissed the appeal against the conviction for importing. The court did not rule on the possession charge.

Civil Rights - Topic 1404.2

Security of the person - Law enforcement - Hair and bodily fluid samples - An in transit airline passenger, on a stopover in Canada, was arrested on suspicion of being a drug "swallower", i.e., of transporting drugs within his person - Just before an x-ray was to be taken, the passenger con­fessed that he had drugs in his stomach, volunteered information and signed a consent to be x-rayed - The passenger was then placed in a secure hospital room, while police waited for him to pass the incriminating evidence - The British Columbia Court of Appeal affirmed that the "bedpan vigil" did not violate the passen­ger's s. 8 Charter rights - Waiting was a permissible investigative technique - See paragraphs 67 to 69.

Civil Rights - Topic 1421

Security of the person - Border searches - General - [See Customs - Topic 3001 ].

Civil Rights - Topic 1423

Security of the person - Border searches - Strip searches - An in transit airline pass­enger, on a stopover in Canada, was strip-searched because of suspicions he was a drug smuggler - Reasonable grounds for suspicion that narcotics would be obtained from a search of his person were estab­lished by the passenger's unsatisfactory answers to routine questions and from the contents of his baggage - Before the search was conducted he read or was read the contents of s. 98 of the Customs Act, which authorized personal searches - He was informed of his Charter rights - He did not ask to be taken before a senior officer - The British Columbia Court of Appeal affirmed that the personal search did not violate the passenger's s. 8 Charter rights - See paragraphs 39 to 44.

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - Customs officers began questioning an in transit airline passenger, on a stopover in Canada, at 9:30 a.m. - At 9:55 a.m. the officers obtained authori­zation to remove the passenger's luggage from the plane, explained to him why he was being detained and explained his right to counsel - At 10:20 a.m. he was told he would be physically searched - The Brit­ish Columbia Court of Appeal held that the accused was detained at 9:55 a.m. - See paragraphs 30 to 32.

Criminal Law - Topic 3212

Compelling appearance, detention and release - Arrest - Arrest without warrant - Customs officers arrested without war­rant an in transit airline passenger, on a stopover in Canada - The British Colum­bia Court of Appeal held that the officers had sufficient grounds for arrest based on the passenger's unsatisfactory answers to routine questions, the contents of his bag­gage, and from observations made at the time of a strip search - These would lead a reasonable and objective person to believe that the accused was carrying narcotics within his person - The court held that the test for a warrantless arrest was established - See paragraphs 48 to 51.

Criminal Law - Topic 5355

Evidence - Witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - An in transit airline passenger, on a stopover in Canada, was arrested on suspicion of being a drug "swallower", i.e., of transporting drugs within his person - Just before an x-ray was to be taken, the passenger con­fessed that he had drugs in his stomach, volunteered information and signed a consent to be x-rayed - The British Columbia Court of Appeal affirmed that the confession and consent were given volun­tarily - The court held that the officers had objective grounds to believe that the passenger was importing narcotics within his person - There was a logical, closely related connection between what the officers reasonably believed and the need for invasive searching - See para­graphs 52 to 66.

Customs - Topic 2825

Report and entry inwards - Customs officers - Powers of - Right to question - The British Columbia Court of Appeal affirmed that Canada Customs officers have a right to question in transit airline passengers, on a stopover in Canada - This right imposed on in transit passen­gers the obligation to answer truthfully - The court affirmed that an in transit pass­enger was "coming into Canada" within the meaning of s. 94(1)(b) of the Immigra­tion Act - The court held that there were no immunities from normal customs and immigration processes and that routine questioning of anyone coming into Canada was lawful - See paragraphs 20 to 29.

Customs - Topic 3001

Search and seizure - General - The Brit­ish Columbia Court of Appeal affirmed that ss. 98 and 99 of the Customs Act, which authorized personal and property searches of in transit airline passengers, on a stopover in Canada, did not violate Charter principles - See paragraphs 45 to 47.

Customs - Topic 3023

Search and seizure - Search - Strip search - [See Civil Rights - Topic 1423 ].

Customs - Topic 3025

Search and seizure - Search - Warrantless searches - The British Columbia Court of Appeal held that the baggage of an in transit airline passenger, on a stopover in Canada, may be searched pursuant to s. 99 of the Customs Act - However, searches of baggage belonging to persons who were detained must be preceded by appropriate Charter instructions - See paragraphs 34 to 38.

Narcotic Control - Topic 527

Offences - Importation - Elements of offence - An in transit airline passenger, on a stopover in Canada, was convicted of importing heroin into Canada after he was found with packaged heroin in his stomach and intestines - There was no mention on the passenger's ticket that there was a sched­uled stopover in Canada, but all passengers were required to fill out a Canada Customs form in flight and the passenger was a seasoned traveller - The British Columbia Court of Appeal held that the passenger's intention to import into Canada or wher­ever the aircraft took them, could be inferred - It could be inferred the passen­ger actually knew of the Canadian stop or was wilfully blind or reckless as to that fact - The actus reus and mens rea of the offence were established - See para­graphs 72 to 99.

Police - Topic 3103

Powers - Investigation - Powers respect­ing persons under arrest - [See Civil Rights - Topic 1404.2 ].

Cases Noticed:

R. v. Hasselwander, [1993] 2 S.C.R. 398; 152 N.R. 247; 62 O.A.C. 285, refd to. [para. 26].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 26].

R. v. Sheldon (S.), [1990] 2 S.C.R. 254; 110 N.R. 321; 41 O.A.C. 81, refd to. [para. 26].

R. v. S.S. - see R. v. Sheldon (S.).

R. v. D.A.Z., [1992] 2 S.C.R. 1025; 140 N.R. 327; 131 A.R. 1; 25 W.A.C. 1, refd to. [para. 26].

R. v. Tapaquon, [1993] 4 S.C.R. 535; 159 N.R. 321; 116 Sask.R. 81; 59 W.A.C. 81, refd to. [para. 26].

R. v. Simmons, [1988] 2 S.C.R. 495; 89 N.R. 1; 30 O.A.C. 241, refd to. [para. 27].

United States v. Muench (1982), 649 F.2d. 28, refd to. [para. 27].

United States v. McKenzie (1987), 818 F.2d 115 (1st Cir.), refd to. [para. 27].

R. v. Barnes, [1991] 1 S.C.R. 449; 121 N.R. 267, consd. [para. 29].

R. v. Cahill (M.S.) (1992), 12 B.C.A.C. 247; 23 W.A.C. 247; 13 C.R.(4th) 327 (C.A.), refd to. [para. 43].

R. v. Greffe, [1990] 1 S.C.R. 755; 107 N.R. 1; 107 A.R. 1, consd. [para. 57].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161; 75 C.R.(3d) 1; 53 C.C.C.(3d) 316, refd to. [para. 69].

R. v. Bell, [1983] 2 S.C.R. 471; 50 N.R. 172; 8 C.C.C.(3d) 97, refd to. [para. 72].

R. v. Salvador, Wannamaker, Campbell and Nunes (1981), 45 N.S.R.(2d) 192; 86 A.P.R. 192; 59 C.C.C.(2d) 521, consd. [para. 73].

R. v. Booker, [1995] O.J. No. 2793 (Gen. Div.), refd to. [para. 76].

He Kaw Teh v. R. (1985), 157 C.L.R. 523 (Aust. H.C.), refd to. [para. 78].

R. v. Tolson (1989), 23 Q.B.D. 168 (U.K.), refd to. [para. 84].

Beaver v. R., [1957] S.C.R. 531, refd to. [para. 84].

R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 88].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 90].

R. v. Blondin (1970), 2 C.C.C.(2d) 118 (B.C.C.A.), refd to. [para. 96].

R. v. Aiello (1978), 30 N.R. 559; 38 C.C.C.(2d) 485 (Ont. C.A.), refd to. [para. 97].

R. v. Sandhu (1989), 35 O.A.C. 118; 50 C.C.C.(3d) 492 (C.A.), refd to. [para. 96].

R. v. Tewari (1987), 36 C.C.C.(3d) 150 (B.C.C.A.), refd to. [para. 96].

R. v. Zundel (1987), 18 O.A.C. 161; 31 C.C.C.(3d) 97 (C.A.), refd to. [para. 96].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [para. 68]; sect. 10(a), sect. 10(b) [para. 31].

Criminal Code, R.S.C. 1985, c. C-46, sect. 487.01(2) [para. 55].

Customs Act, R.S.C. 1985 (2nd Supp.), c. 1, sect. 2(1), sect. 11(1), sect. 12(1) [para. 20]; sect. 98(1)(a) [para. 41]; sect. 99(1)(a), sect. 99(1)(e), sect. 99(1)(f) [para. 34].

Customs Act Regulations (Can.), Reporting of Imported Goods Regulations, SOR/86-873, sect. 3, sect. 7(1)(b) [para. 24].

Immigration Act, R.S.C. 1985, c. I-2, sect. 12(1), sect. 12(1.1) [para. 21]; sect. 94(1)(b), 94(1)(h) [para. 25].

Narcotic Control Act, R.S.C. 1985, c. N-1, sect. 5(1) [para. 109].

Reporting of Imported Goods Regulations - see Customs Act Regulations (Can.).

United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, art. 2, para. 1 [para. 110]; art. 3, para. 11 [para. 111].

Authors and Works Noticed:

Stuart, Don, Canadian Criminal Law A Treatise (2nd Ed. 1987), pp. 123 to 124 [para. 130]; 134 to 145 [para. 113].

Williams, Criminal Law: The General Part (2nd Ed. 1961), p. 159 [para. 92].

Counsel:

Michael D. Sanders, for the appellant;

Cory Stolte, for the respondent.

This appeal was heard in Vancouver, British Columbia, on February 1, 1996, before McEachern, C.J.B.C., Goldie and Donald, JJ.A., of the British Columbia Court of Appeal. The decision of the court was delivered on May 16, 1996, and the follow­ing opinions were filed:

McEachern, C.J.B.C. (Goldie, J.A., con­curring) - see paragraphs 1 to 101;

Donald, J.A., dissenting - see paragraphs 102 to 139.