The BC Court of Appeal overturned the acquittal of Jennifer Nicole Nagle on a charge of possession of methamphetamine for the purpose of trafficking, ruling that travelers leaving Canada can be searched in much the same way as travelers entering Canada.
Ms. Nagle had been questioned by a Canadian Border Services Officer, who searched her purse to determine how much cash was in her possession. He found only $1,200, well within the $10,000 limit for international travel, but in the process of questioning her about the money in her possession, he became suspicious that she may be trafficking drugs. Her luggage was subsequently searched and one of her suitcases proved to contain 1.149 kilograms of methamphetamine.
The trial judge found that Ms. Nagle had a reasonable expectation of privacy and that the search of her luggage was random in nature, thereby engaging her rights under Sections 8 and 10 of the Charter of Rights and Freedoms. The Court of Appeal disagreed with this analysis, stating that:
“… a search of a purse, in the context of a border crossing, is part of the routine screening procedure. The expectation of privacy is considerably lower for an international traveller. There is clearly some expectation of privacy, which is addressed in many cases, commencing with Simmons, but no constitutional right to be free from the search of bags, purses, luggage or a pat down exists when one decides to cross a border. In our view, the trial judge erred when he concluded that the search of Ms. Nagle’s purse was in violation of s.8 of the Charter.”
The Court found that border crossings are not “Charter-free zones,” but that the reasonableness of searches must be determined on a case-by-case basis, and that the reasonable expectation of privacy is lower at border crossings than in other locations. This is in stark contrast with the general law of search, established in cases such as R. v. Mann, which prevents peace officers from using a specific, narrowly defined search power to engage in a “fishing expedition” for unrelated incriminating evidence.
Given the overall facts and circumstances of the case, the Court found that the evidence against Ms. Nagle should not be excluded, and that a new trial on the merits should occur.
Decided by the British Columbia Court of Appeal on September 20, 2012.
Click here for the full text of the decision.