THE BORDER

Ruling Neglects Reality

When most people approach international border crossings, they turn
down the radio, take off their sunglasses and sit up straight with
their identification at the ready. They don't do it out of respect
for customs officers per se but out of respect for their authority,
which is and must be significant given border guards are the first
line of defence against smugglers, terrorists and criminals.

International travelers know there is a chance they and their
vehicles may be searched and are respectful and deferential because
of it. They understand that waiving their right to be free from
unreasonable searches is the price they pay for accessing an
international border crossing. Anyone uncomfortable with that reality
can choose to avoid border crossings.

Customs officers have the power to ask probing questions and conduct
searches because it is their job to keep criminals and contraband
from crossing the border. They are trained to detect tremors in
voices or furtive glances and expected to conduct secondary
inspections on anyone who, for whatever reason, arouses their suspicions.

But a British Columbia judge believes differently and last week
acquitted a man charged with drug smuggling on the basis his
constitutional rights were violated when Canadian border guards
detained him and searched his vehicle without a warrant. The Canada
Border Services Agency is justifiably appealing the decision, which
could have broad repercussions on the ability of customs officers to
do their job effectively, as well as on the flow of goods and people
across the border.

Ajitpal Singh Sekhon, a Canadian citizen, was pulled over for
secondary inspection in January, 2005 when a Canadian customs officer
noticed he appeared nervous and was avoiding eye contact. Sekhon was
locked into a Canada Customs office when he tried to leave, without
being advised of his right to counsel. He was advised of that right
after officers used a drug sniffing dog to locate a false compartment
in his truck that subsequently yielded 50 kilograms of cocaine.

Provincial court judge Ellen Gordon ruled customs officers violated
sections 8, 9 and 10 of the Canadian Charter of Rights and Freedoms,
which, respectively, protect against unreasonable search and seizure,
prohibit arbitrary detention and guarantee the right to legal
counsel. Gordon ruled Sekhon should have been advised of his rights
immediately and that customs officers should have secured a warrant,
via a judge, before searching his vehicle.

The notion that customs officers have to secure a warrant before
searching a vehicle is ludicrous and, if this ruling stands, could
create congestion not only at border crossings but within this
country's court system. It could also result in many vehicles not
being searched because the standard for issuing search warrants is,
and should be, rigorous.

Police officers shouldn't be able to search vehicles or homes or
people based on suspicions or hunches. They should have solid
evidence of wrongdoing before embarking on a search. Simply acting
nervous in front of a police officer shouldn't be grounds for a
search, but acting nervous in front of a customs officer definitely should.

Customs officers have a limited time to make a risk assessment on
travelers and none to establish an evidentiary basis for a search.
They have their training, their experience, their gut instincts and
the broad discretion that is properly given them under the Customs Act.

No one reasonably objects to rigorous searches at airports. It is
simply the price we have to pay for safe air travel. The same
principle should apply at border crossings. International travellers
know they may be searched and they consent to a potential search by
accessing a border point. It's as simple as that.