R. v. Simmons, (1988) 89 N.R. 1 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 28, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 89 N.R. 1 (SCC);[1988] 2 SCR 495;[1988] SCJ No 3 (QL);67 OR (2d) 63;84 NR 80;1988 CanLII 92 (SCC);JE 89-78;89 NR 1;45 CCC (3d) 296;66 CR (3d) 297;55 DLR (4th) 673;6 WCB (2d) 74;[1988] SCJ No 86 (QL);1988 CanLII 12 (SCC);38 CRR 252;30 OAC 241;[1988] 1 SCR 212

R. v. Simmons (1988), 89 N.R. 1 (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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Laura Mary Simmons (appellant) v. Her Majesty the Queen (respondent) and the Attorney General of Ontario (intervenor)

(No. 18767)

Indexed As: R. v. Simmons

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ.

December 8, 1988.

Summary:

The accused arrived at Toronto International Airport on a flight from Jamaica. Customs officials were suspicious of her. She was asked to submit to a strip search pursuant to ss. 143 and 144 of the Customs Act. 1.98 kilograms of cannabis resin (hashish oil) were found taped to her abdomen, having a street value of $22,000.00. She was charged with importing a narcotic contrary to s. 5(1) of the Narcotic Control Act and with possession for the purpose of trafficking contrary to s. 4(1) of the Act.

The trial judge, in a decision reported (1983), 5 C.E.R. 396, acquitted the accused. The trial judge held that she was detained when taken to the room for the strip search and therefore should have been informed of her right to counsel under s. 10(b) of the Charter. The trial judge excluded the evidence against her found in the search under s. 24(2) of the Charter on the ground that to admit the evidence would bring the administration of justice into disrepute in light of the violation of her right to counsel. The Crown appealed.

The Ontario Court of Appeal, Tarnopolsky, J.A., dissenting in part, in a decision reported 3 O.A.C. 1, allowed the appeal, set aside the acquittal and ordered a new trial. The majority held that the accused was not detained when she was subjected to the strip search and therefore her right to counsel was not infringed. The majority held further that such a body search was not unreasonable within the meaning of s. 8 of the Charter. The majority opined that in any event the evidence should not have been excluded because exclusion would bring the administration of justice into disrepute. The accused appealed.

The Supreme Court of Canada, per Dickson, C.J.C. (Beetz, Lamer and La Forest, JJ., concurring), dismissed the appeal and affirmed the order for a new trial. The court held that the accused was detained when she was taken for the strip search and therefore should have been informed of her right to counsel. The court held also that the provisions of the Customs Act under which the search was conducted, ss. 143 and 144, were not contrary to s. 8 of the Charter (the right to be secure against unreasonable search and seizure); however, the search was conducted in an unreasonable manner and therefore contrary to s. 8. The court declared that the seized evidence was admissible notwithstanding the Charter violations, because, inter alia, exclusion would bring the administration of justice into disrepute.

Wilson, J., delivered separate reasons but concurred with the result reached by Dickson, C.J.C., and some of his reasons. L'Heureux-Dubé, J. (McIntyre, J., concurring), delivered separate reasons wherein she also concurred in the result reached by Dickson, C.J.C., but disagreed that the accused was detained within the meaning of s. 10(b) of the Charter or that the search and seizure was unreasonable.

Civil Rights - Topic 1200

Security of the person - General - Wilson, J., of the Supreme Court of Canada, stated that "in advancing the commendable purpose of rendering all citizens secure from unreasonable searches and seizures courts should not be unduly influenced by hindsight, i.e., by the fact that many of the searches and seizures which come before us have in fact resulted in the discovery of evidence of criminal activity. The level of protection afforded to the citizen under s. 8 of the Charter must be geared to the innocent as well as to the guilty" - See paragraph 78.

Civil Rights - Topic 1211

Security of the person - Lawful or reasonable search - General - The Supreme Court of Canada stated that in light of the importance of preventing unjustified searches allowable departures from the search criteria established by the court in Southam Inc. v. Hunter, 55 N.R. 241; 55 A.R. 291, will be "exceedingly rare" - See paragraph 47.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - Wilson, J., of the Supreme Court of Canada, opined that an unconstitutional search (e.g. a search in violation of an accused's right to counsel) cannot be a reasonable search within the meaning of s. 8 of the Charter - See paragraph 75.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure defined - The Customs Act, s. 143, permitted customs officers to strip search a person at a border crossing where the officers had reasonable cause to suppose that the person had prohibited goods on their person - Section 144 permitted persons about to be searched to ask for further authorization - The Supreme Court of Canada held that the search and seizure authorized by ss. 143 and 144 was not unreasonable within s. 8 of the Charter, notwithstanding that the sections did not meet the criteria set out for reasonable searches in Southam Inc. v. Hunter, 55 N.R. 241; 55 A.R. 291 - See paragraphs 39 to 52 - The court noted that departures from the Southam Inc. criteria would be "extremely rare" - See paragraph 47.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - Unreasonable search and seizure - What constitutes - The accused entered Canada on a commercial flight from Jamaica - Customs officials strip searched her pursuant to ss. 143 and 144 of the Customs Act - The accused was found to have hashish oil strapped to her abdomen - The Supreme Court of Canada held that ss. 143 and 144 were not contrary to s. 8 of the Charter - However, the absence of an explanation to the accused of her right under the Customs Act to a further authorization combined with the denial of her right to counsel rendered the search unreasonable and contrary to s. 8 - The court held that the unreasonable search could not be justified under s. 1 of the Charter and the evidence obtained in the search should not be excluded under s. 24(2) of the Charter - See paragraphs 39 to 59, 71 to 78 - L'Heureux-Dubé, J. (McIntyre, J., concurring), disagreed that the search was unreasonable - See paragraph 100.

Civil Rights - Topic 1421

Security of the person - Border searches - General - The Supreme Court of Canada referred to three types of border searches - (1) routine questioning, luggage check and pat or frisk of outer clothing - No stigma is attached to this type of search and no constitutional issues are raised - (2) strip or skin searches in a private room after a secondary examination and with permission of the customs officer in authority - The case at bar involved this type of search and the court discussed the relevant constitutional issues - (3) body cavity searches where customs officers have recourse to doctors, x-rays, emetics etc. - The court refrained from discussing the constitutional issues raised by this type of search - See paragraphs 27, 28 - L'Heureux-Dubé, J. (McIntyre, J., concurring), expressed doubts about these categories - See paragraph 83.

Civil Rights - Topic 1421

Security of the person - Border searches - General - The Supreme Court of Canada held that questioning by customs officers, searches of luggage, frisk or pat searches and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges pursuant to ss. 143 and 144 of the Customs Act are not unreasonable within the meaning of s. 8 of the Charter - See paragraph 50.

Civil Rights - Topic 1422

Security of the person - Border searches - Frisk searches - [See first Civil Rights - Topic 1421 above].

Civil Rights - Topic 1423

Security of the person - Border searches - Strip searches - [See second Civil Rights - Topic 1217 above].

Civil Rights - Topic 1423

Security of the person - Border searches - Strip searches - [See third Civil Rights - Topic 1217 above].

Civil Rights - Topic 1641

Property - Search and seizure - General - [See Civil Rights - Topic 1211 above].

Civil Rights - Topic 3604

Detention and imprisonment - Detention - What constitutes - The Supreme Court of Canada stated that "routine questioning by customs officers at the border or routine luggage searches conducted on a random basis did not constitute detention for the purpose of s. 10 [of the Charter]. There is no doubt, however, that when a person is taken out of the normal course and forced to submit to a strip search that person is detained within the meaning of s. 10" - See paragraph 36 - L'Heureux-Dubé, J. (McIntyre, J., concurring), disagreed that a person forced to submit to a strip search by customs officers was detained within the meaning of s. 10 (b) - See paragraphs 79 to 102.

Civil Rights - Topic 4602

Right to counsel - Denial of - Evidence taken inadmissible - The accused was strip searched by customs officers at a border point and narcotics were found taped to her abdomen - The Supreme Court of Canada held that the accused was detained and denied her right to counsel contrary to s. 10(b) of the Charter and the search was carried out in an unreasonable manner contrary to s. 8 of the Charter - The court held however that the evidence seized was admissible, notwithstanding s. 24(2) of the Charter, because, inter alia, exclusion would bring the administration of justice into disrepute - See paragraphs 60 to 68, 70.

Civil Rights - Topic 4604

Right to counsel - Denial of - What constitutes - The accused entered Canada at Toronto International Airport on a flight from Jamaica - Customs officials were suspicious of her and requested that she submit to a strip search - The accused complied and it was discovered that she had hashish oil taped to her abdomen - The Supreme Court of Canada, held that the accused was detained when she was required to undergo a strip search pursuant to ss. 143 and 144 of the Customs Act and should have been informed of her right to retain and instruct counsel at that time - The court held that this denial of her right to counsel was not justified under s. 1 of the Charter - See paragraphs 29 to 38, 70 - L'Heureux-Dubé, J. (McIntyre, J., concurring), disagreed that the accused was detained and denied her right to counsel - See paragraphs 80 to 102.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - The Supreme Court of Canada stated that the right to counsel guaranteed by s. 10(b) of the Charter becomes available upon something less formal than arrest - See paragraph 30.

Civil Rights - Topic 4613

Right to counsel - Requirement of arrest or detention - [See Civil Rights - Topic 3604 above].

Civil Rights - Topic 4657

Right to counsel - Entitlement - Border searches - [See first Civil Rights - Topic 1421 above].

Civil Rights - Topic 8348

Charter - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - The accused entered Canada at Toronto International Airport on a flight from Jamaica - Customs officials were suspicious of her and requested her to submit to a strip search - Narcotics were found strapped to her abdomen - The Supreme Court of Canada held that the accused was detained and deprived of her right to counsel contrary to s. 10(b) of the Charter and the search was conducted in an unreasonable manner contrary to s. 8 of the Charter - The court held that the denial of her rights could not be justified under s. 1 of the Charter - See paragraphs 29 to 59, 70 to 78.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The accused entered Canada at Toronto International Airport on a flight from Jamaica - Customs officials were suspicious of her and asked her to submit to a strip search - The accused complied and it was discovered that she had narcotics taped to her abdomen - The Supreme Court of Canada held that the accused was detained and denied her right to counsel contrary to s. 10(b) of the Charter and the search was conducted in an unreasonable manner contrary to s. 8 of the Charter - The court held however that the evidence seized should not be excluded under s. 24(2) of the Charter because to do so would bring the administration of justice into disrepute - See paragraphs 60 to 68, 70.

Civil Rights - Topic 8368

Charter - Denial of rights - Remedies - Exclusion of evidence - The Supreme Court of Canada reviewed when evidence would be excluded under s. 24 (2) of the Charter, including evidence obtained through reliance in "good faith" on the constitutionality of a statutory provision - See paragraphs 60 to 68.

Civil Rights - Topic 8469

Charter - Interpretation - United States experience - In determining whether body searches at border points were contrary to s. 8 of the Charter, the Supreme Court of Canada examined the United States jurisprudence in this area of the law - See paragraphs 23 to 26 - The court stated that "while we must of course, be wary of adopting American interpretations where they do not accord with the interpretive framework of our Constitution, the American courts have the benefit of two hundred years of experience in constitutional interpretation. This wealth of experience may offer guidance to the judiciary in this country" - See paragraph 26.

Customs - Topic 3001

Search and seizure - General - [See first Civil Rights - Topic 1421 above].

Customs - Topic 3001

Search and seizure - General - [See second Civil Rights - Topic 1421 above].

Customs - Topic 3001

Search and seizure - General - [See third Civil Rights - Topic 1217 above].

Customs - Topic 3003

Search and seizure - Application of search and seizure provisions (Customs Act) - [See second Civil Rights - Topic 1217 above].

Cases Noticed:

R. v. Chromiak, [1980] 1 S.C.R. 471; 29 N.R. 441, consd. [paras. 14, 17, 65].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122; 18 C.C.C.(3d) 481; 45 C.R.(3d) 97; 18 D.L.R.(4th) 655; [1985] 4 W.W.R. 286; 32 M.V.R. 153, appld. [para. 14 et seq.].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 197; 41 C.R.(3d) 197; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, dist. [paras. 21, 39, 47, 76, 77].

United States v. Ramsey (1977), 431 U.S. 606, consd. [paras. 24, 25, 97].

United States v. Lincoln (1974), 494 F.2d 833, refd to. [para. 24].

United States v. Chavarria (1974), 493 F.2d 935, refd to. [para. 24].

United States v. King (1973), 485 F.2d 353, refd to. [para. 24].

United States v. Beck (1973), 483 F.2d 203, refd to. [para. 24].

Carroll v. United States (1925), 267 U.S. 132, consd. [paras. 24, 98].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 30].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [paras. 30, 72].

R. v. Rodenbush and Rodenbush (1985), 21 C.C.C.(3d) 423 (B.C.C.A.), consd. [paras. 32, 33].

R. v. Jacoy (1986), 30 C.C.C.(3d) 9, affd. 89 N.R. 61, refd to. [para. 34].

R. v. Gladstone (1985), 22 C.C.C.(3d) 151 (B.C.C.A.), refd to. [para. 34].

R. v. Jordan (1984), 11 C.C.C.(3d) 565 (B.C.C.A.), consd. [para. 43].

R. v. Jagodic and Vajagic (1985), 68 N.S.R.(2d) 271; 159 A.P.R. 271; 19 C.C.C.(3d) 305 (S.C.T.D.), consd. [para. 44].

R. v. Collins, [1987] 1 S.C.R. 265; [1987] 3 W.W.R. 699; 74 N.R. 276; 33 C.C.C.(3d) 1; 56 C.R.(3d) 193, appld. [paras. 60, 61].

Weeks v. United States (1914), 232 U.S. 383, refd to. [para. 60].

Mapp v. Ohio (1961), 367 U.S. 643, refd to. [para. 60].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 60].

United States v. Guadalupe-Garza (1970), 421 F.2d 876, refd to. [para. 64].

R. v. Dumas (1985), 66 A.R. 137; 23 C.C.C.(3d) 366 (Alta. C.A.), refd to. [para. 65].

R. v. Sieben, [1987] 1 S.C.R. 295; 74 N.R. 271; 56 C.R.(3d) 225; [1987] 3 W.W.R. 722; 32 C.C.C.(3d) 574; 38 D.L.R.(4th) 427, refd to. [para. 65].

R. v. Hamill, [1987] 1 S.C.R. 301; 75 N.R. 149; 56 C.R.(3d) 220; [1987] 3 W.W.R. 726; 33 C.C.C.(3d) 110; 38 D.L.R.(4th) 611, refd to. [para. 65].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114, refd to. [para. 90].

Statutes Noticed:

Canadian Bill of Rights, R.S.C. 1970, App. III, sect. 2(c) [para. 14].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 3, 4, 57-59]; sect. 8 [paras. 3, 4, 39 et seq.]; sect. 10(b) [paras. 3, 4, 11 et seq.]; sect. 24(2) [paras. 3, 4, 60-68].

Constitution Act, 1982, sect. 52 [paras. 3, 4].

Criminal Code, R.S.C. 1970, c. C-34, sect. 618(2)(a) [para. 2].

Customs Act, S.C. 1867, c. 6 [para. 4].

Customs Act, R.S.C. 1970, c. C-40, sect. 143, sect. 144 [paras. 3 et seq.]; sect. 203 [para. 35].

Customs Act, S.C. 1986, c. 1, sect. 98 [para. 5].

Narcotic Control Act, R.S.C. 1970, c. N-1, sect. 4(2), sect. 5(1) [para. 1].

United States Constitution, Fourth Amendment [paras. 14, 23, 96-100].

Authors and Works Noticed:

LaFave, Wayne R., Search and Seizure: A Treatise on the Fourth Amendment (2nd Ed. 1987), vol. 3, pp. 710 [para. 23]; 712 [para. 24].

Michalyshyn, Peter B., The Charter Right to Counsel: Beyond Miranda (1987), 25 Alta. L. Rev. 190, p. 191 [paras. 90, 92].

Counsel:

C. Jane Arnup, for the appellant;

J.E. Thompson and J.W. Leising, for the respondent;

Casey Hill, for the intervenor.

Solicitors of Record:

C. Jane Arnup and Barry A. Fox, Toronto, Ontario, for the appellant;

Frank Iacobucci, Ottawa, Ontario, for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor.

This appeal was heard on January 28, 1988, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson, Le Dain, La Forest and L'Heureux-Dubé, JJ., of the Supreme Court of Canada. The decision of the Supreme Court of Canada was rendered in both official languages on December 8, 1988, including the following opinions:

Dickson, C.J.C. (Beetz, Lamer and La Forest, JJ., concurring) - see paragraphs 1 to 68;

Wilson, J. - see paragraphs 69 to 78;

L'Heureux-Dubé, J. (McIntyre, J., concurring) - see paragraphs 79 to 102.

Estey and Le Dain, JJ., took no part in the judgment.