TYING HANDS AT THE BORDER

Judge's Call for Search Warrants Would Limit Security at Customs

The decision of a Vancouver judge that borders are not "a Charter-free
zone," is one of those decisions that shakes one's confidence in the
wisdom and probity of the Canadian judicial system. Only the certainty
- -- surely, the absolute certainty? -- that Judge Ellen Gordon's
decision will be overturned on appeal can restore Canadians' hope that
not only will justice be done, but wisdom also.

The case involved a Canadian citizen, Ajitpal Singh Sekhon, who
crossed the Canadian border northbound at Aldergrove in January 2005.
An alert border guard found his demeanour suspicious, and sent him for
secondary inspection. Using a drug-sniffing dog, customs agents
discovered 50 kg of cocaine in a concealed compartment in his truck.

Sekhon sued, claiming his Charter rights had been violated in that he
had been arbitrarily detained (Section 9), denied legal counsel
(Section 10) and his vehicle unreasonably searched and seized (Section
8).

Gordon agreed with Sekhon on all three counts, adding that the customs
agent acted on a "lucky hunch," rather than reasonable suspicion. The
consequences of her decision, if upheld, would be that the discovery
of the cocaine in his truck would be excluded from Sekhon's trial, and
more generally, that before a border agent could search a vehicle, he
would have to obtain a warrant.

Even that, however, apparently strains Gordon's sense of fair play. In
an unrelated case last October, Gordon ruled the RCMP violated the
Charter by faxing a justice of the peace to obtain search warrants,
and must instead physically appear in front of a judge.

One can readily imagine the difficulties such limitations would place
upon border agents in the conduct of their duties. It is one thing to
be vigilant for civil liberties, but the peculiar circumstances of
crossing a border are very much the point here: For the protection of
all Canadians, the state has a reasonable interest in examining people
and vehicles as they enter the country. Even if such an inspection
yields nothing illegal, no fundamental right has been breached.

It is not the first time Gordon has issued controversial rulings. The
Vancouver Sun, which routinely reports on her court, catalogues such
mercies as "two years in jail to 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 . . . Gordon
delayed sentencing for five months so the alcoholic driver wouldn't
have to spend Christmas in jail." (The sentence was doubled on appeal.)

In another border case, she acquitted a drunk driver stopped at the
Boundary Bay crossing in 2004, who not only refused to provide a
breath sample, but 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 the border guard violated the drunk driver's rights when he
asked him to step out of the car and open the trunk."

Gordon is evidently guided by principles that to protect the innocent
requires scrupulous observance of process by the state. In principle,
it is hard to disagree.

However, principles carried to their extreme may collide with others
equally worthy. Such appears to be the case here, in which certain
rights accorded an individual by the Charter clash with the more
general right of all Canadian citizens to be protected from
criminality or deliberate acts of terror.

It was a U.S. border guard's lucky hunch that led to the arrest of
would-be LAX bomber Ahmed Ressam. Canadians should hope their own
border guards are as susceptible to such hunches, and that a higher
court will not remove any advantage that they confer, by upholding
Gordon's unwise, arguably perverse, decision.