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Judge Gordon’s inconsistent rulings brought into question again
By Hempology | July 17, 2007
Vancouver Sun
July 17, 2007
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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