BORDER GUARDS NEED THE RIGHT TO SEARCH

Judge's Narrow Interpretation of Charter Makes a Tough Assignment Even
Tougher

The B.C. provincial court decision to throw out charges against a man
caught smuggling 50 kilograms of cocaine across the border is a
classic case of the Charter of Rights trumping common sense.

In her decision, Judge Ellen Gordon found three breaches of the
charter after border guards detained Ajitpal Singh Sekhon while he
tried to enter Canada at the Aldergrove border crossing. A look at the
facts of the case, however, suggests Gordon's interpretation of the
evidence is less than convincing.

Sekhon was tense and nervous as he initially spoke to a border guard,
who asked him to pull over. Noticing an ill-fitting truck liner --
often a telltale sign of smuggling, court heard -- another guard
performed a so-called "tap test," listening for the echoes of a hidden
compartment, which appeared to exist. A drug-sniffing dog indicated
contraband was likely aboard the truck.

That's "reasonable suspicion."

Not in Gordon's eyes, though, who found that the guards' subsequent
drilling into the hidden compartment -- which revealed cocaine to be
present -- was "unreasonable" because the guards didn't obtain a
search warrant first.

This isn't a case of state agents ignoring a citizen's rights, which
appears to be how Gordon interpreted the facts. This is two border
guards doing their jobs.

Restricting the guards' ability to inspect vehicles when they have
reasonable grounds for suspicion, as Gordon's decision effectively
does, is not in the public interest.

The other charter breaches Gordon found had to do with how Sekhon was
detained. Asked to sit in an interview room while his truck was
examined, Sekhon paced nervously. After half an hour, as soon as the
guards found evidence of the cocaine, he was read his rights.

Gordon found Sekhon's detention violated the charter because he wasn't
read his rights when he was first brought into the interview room,
prior to the actual discovery of the drugs.

A half-hour delay while crossing the border hardly seems
unconstitutional -- most people spend longer than that in the car lineup.

And when someone appears as nervous as Sekhon did, could the guards be
faulted for pushing on with their examination of his truck, especially
with the corroborating signs that something was amiss with the vehicle?

In a technical sense, Gordon's findings could be considered correct,
but only by a very narrow interpretation of the charter. Taken in a
broader sense, Gordon has chosen to hamstring border guards by taking
away reasonable suspicion as one of their tools.

These are trained professionals. They have a tough job, one which has
been made even tougher by the judge's findings.

Fortunately, the Canada Border Services Agency has said it plans to
make no changes to the way it searches vehicles, as the case is being
appealed. With any luck, the appeals court will interpret the Charter
in a more reasonable way and reinstate the charges.

For Sekhon to walk away from this case on this kind of technicality
would be a vast travesty of justice.