BORDER SEARCH VIOLATED ACCUSED SMUGGLER'S RIGHTS: JUDGE

Prosecutors Appeal Ruling That Excludes 50 Kg of Seized Cocaine From
Evidence

In a ruling that cuts to the heart of how Canadian border guards do
their jobs, a Provincial Court judge has ruled that the rights of a
man charged with smuggling 50 kilograms of cocaine into the country
were violated when he was searched at the border.

Justice Ellen Gordon ruled Friday that border officers -- who
routinely question travellers and search their vehicles -- violated
three sections of the Canadian Charter of Rights and Freedoms when
they interrogated Ajitpal Singh Sekhon and dismantled the truck he was
driving without a search warrant.

The ruling means the drugs seized must be excluded from the evidence
against Sekhon.

Federal prosecutors have already filed an appeal.

According to Gordon's reasons for judgment, Sekhon, a Canadian
citizen, tried to enter Canada via the Aldergrove border crossing on
Jan. 25, 2005.

The border guard decided Sekhon was suspiciously tense and sent him to
be questioned in the customs office, where he was locked inside while
another inspector searched the truck.

With the help of a drug-sniffing dog, the ruling says, guards found a
false compartment below the truck bed, at which point Sekhon was
informed that he would be detained and that he had the right to legal
counsel.

However, Gordon concluded that Sekhon had been detained from the
moment he was locked inside the office, violating sections 9 and 10 of
the Charter, which prohibit arbitrary detention and guarantee the
right to a lawyer.

Gordon's judgment says inspectors eventually dismantled the vehicle to
find 50 bricks of cocaine.

But the most important part of the ruling is Gordon's conclusion that
guards violated section 8 of the Charter -- freedom from unreasonable
search or seizure -- since they never applied for a search warrant.

The Crown lawyer pointed out that the Customs Act routinely allows
such searches without a warrant based on reasonable grounds for suspicion.

The two border inspectors involved said they had never applied for --
or even conceived of applying for -- a search warrant in their careers.

But the judge wrote that officers followed a "lucky hunch," not
reasonable suspicions, in launching their search.

But she said the key to the ruling was that the customs act includes
provisions for a search warrant, and there was no reason they couldn't
have applied for one.

"In such circumstances it was incumbent upon the investigators to seek
the judicial authorization of a search warrant. They did not," Gordon
wrote.

Sekhar's lawyer Lawrence Myers said the ruling is ground-breaking.
"It's the first decision that I'm aware of that defines individual
rights in conjunction with the Customs Act since 9/11," Myers said.

If Gordon's decision is upheld by a senior court, it could serve as a
precedent for how border searches are carried out. Myers said he
doesn't think it's an unreasonable impediment to require border guards
to obtain a search warrant before searching a vehicle.