International Law

Crossing Borders and Visiting Prisons: When is a Lowered Expectation of Privacy Assumed?

By Rebecca Ross

The Supreme Court of Canada has denied leave to appeal from R. v. Vandenbosch (K.A.), 2007 MBCA 113. The SCC would have considered whether the Manitoba Court of Appeal erred in its findings with regard to Ms. Vandenbosch?s section 8, 9 and 10(b) rights under the Canadian Charter of Rights and Freedoms. The MCA found that Ms. Vandenbosch was not arbitrarily detained prior to her admission that she was carrying contraband into a prison, and that her s. 9 rights were therefore not violated. The appeal court also failed to find that her right to counsel under s. 10(b) of the Charter was breached when she was detained. Finally, in finding that a search arising from her detention was not unreasonable and that the evidence arising from the search was not obtained in violation of her right against unreasonable search and seizure, the appeal court held that her s. 8 rights similarly remained intact.

With regard to the ss. 9 and 10(b) Charter issues, the SCC was more specifically asked to weigh in on the lower court?s holding on the issue of psychological detention, since the MCA stated that the crucial issue in this case was whether, in the context of a visit to a penitentiary, the accused was sufficiently detained to engage ss. 9 and/or 10(b). I would like to explore the MCA?s decision on this Charter argument in more detail, as the court draws an interesting comparison that may have future ramifications for SCC jurisprudence.

Ms. Vandenbosch attended the Stony Mountain Institution, a federal penitentiary, to visit an inmate. There are signs posted on the prison grounds that advise that all ?persons on this property may be searched? and that certain items such as illegal narcotics ?may be confiscated and criminal charges laid against the person bringing them onto the property.? At the visitor control point in the lobby, an additional sign reads, ?[a]uthorized security measures are being taken to observe and inspect visitors to this institution. No visitors are obliged to submit to a search of their person, or personal belongings if they choose not to visit.?

Upon her arrival at the penitentiary, Ms. Vandenbosch was subject to a visual inspection, asked to sign in, and was instructed to submit two pieces of personal identification for an Ionscan test. This test detects the residual presence of certain drugs on the identification, and it indicated a positive reading in this case. She was then asked to follow two corrections officers into an interview room, where an assessment to determine the risk associated with her visit was conducted; this step is taken every time the Ionscan results are positive.

For approximately ten minutes, the corrections officers conducted the visitor-risk assessment. First, they told Ms. Vandenbosch that in light of the positive reading generated by the Ionscan detector, they were going to conduct the assessment. She was told of the possible outcomes of such an assessment: an open visit, a visit under observation, a security booth visit or a denial of a visit altogether. After this, Ms. Vandenbosch was asked if she was in possession of any drugs, and she answered in the negative. The officers then said that they knew she had been asked to make a delivery of drugs to one of the inmates (even though they had not received this information). After she was told about the prospect of detention and police involvement, contained in the Corrections and Conditional Release Act, and the officers asked her about drugs again, she admitted that she had secreted drugs on her person.

At this point, the officers determined that they had reasonable grounds to believe that the accused was carrying drugs. She was advised that she would be detained and searched, and met privately with two female corrections officers and produced a condom, containing 21 grams of marijuana and nine morphine pills, which she had hidden in her vagina. An officer read to Ms. Vandenbosch her right to counsel pursuant to the Act, the police were called, and she was charged with two counts of possession for the purpose of trafficking.

At trial, a voir dire was held to determine the voluntariness of the accused?s statement that she possessed drugs and the admissibility of the drugs that were consequently seized. Ms. Vandenbosch, testifying at the voir dire, admitted that she had been at the penitentiary on at least four prior occasions, that she knew that drugs were not allowed, and that she would be subject to search. However, she testified that she did not read any of the visible signs regarding the interview or search process, and she said she was not told that she had the right to refuse to follow the corrections officers and to leave the institution at any time. Though she admitted that no one told her that she was restricted from leaving, she stated that she felt that she did not have the choice to leave or to refuse to hand over the drugs. Yet the corrections officers, who also testified at the voir dire, said that the accused could have left at any time and that, had she refused to answer their questions, they would have asked her to leave the penitentiary. They confirmed that it was only after she admitted to carrying the drugs that they would have prevented her from leaving.

In her decision, the trial judge agreed that the accused was free to leave at any time and that she was aware that she was subject to being searched upon entering the penitentiary. The trial judge concluded that the accused?s statement was voluntary and that she was not detained during the visitor-risk assessment, finding that it was a relatively brief, routine administrative screening process. She held that it was only after the accused admitted to having possession of drugs that she was sufficiently detained to engage her Charter rights. Ultimately, Ms. Vandenbosch was convicted on both counts of possession for the purpose of trafficking.

The Court of Appeal?s main justification in finding that Ms. Vandenbosch?s Charter rights were not violated was that her entering the prison subjected her to a lowered expectation of privacy. The MCA admitted that there are very few cases that have dealt specifically with detention of visitors in a prison, but based on a few lower court decisions, the appeal court drew out the principle that when an individual visits a prison, there is a reduced expectation of privacy. The appeal court also stated that Charter concerns will generally not be engaged when the purpose of prison officials is to prevent drugs and weapons from entering a prison. As well, individuals coming to visit inmates expect to be subjected to security processes which necessarily require a certain degree of restraint of liberty. The secured barriers, restricted admission, escorted travel, surrender of personal belongings, and non-intrusive searches that characterize prison environments would not be expected when dealing with state authorities in almost any other context.

The MCA was careful to use the word ?almost,? noting that similar restraints and investigative processes are common upon entering Canada. Customs and immigration legislation allows government officials to detain individuals in a similarly intrusive fashion. As border crossing has often been contemplated in SCC jurisprudence, the MCA surveyed the related jurisprudence relating to Charter rights when an individual enters the country. The Court of Appeal found that the trial judge?s comparison between borders and prisons was appropriately drawn, since the processes in place for individuals wanting to enter the country are comparable to those in place for individuals wanting to enter a prison. The similarities noted by the trial judge included: the requirement of filling out forms and showing identification; the provision of signage warning the person entering that they are subject to being searched; legislation that permits officials to conduct a random frisk search of the person, luggage, or belongings without a warrant or individualized suspicion; and the well-known practice of ensuring that the entry of people and goods into prisons and the country will be monitored for safety and security reasons.

The Court of Appeal further endorsed the trial judge?s analogy by describing the events surrounding Ms. Vandenbosch?s detention. The MCA found that the questioning to which Ms. Vandenbosch was subjected was a routine part of the general screening process for persons seeking entrance to a prison. Her consequent visitor-risk assessment was seen to be akin to the border-crossing SCC case of Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, wherein an individual was directed to a similar secondary examination for further questioning after he arrived in Canada without travel and identification documents. In Dehghani, the SCC held that he was not sufficiently detained at that point to attract Charter rights. The MCA found Ms. Vandenbosch?s circumstances to be analogous.

The MCA then quickly disposed of Ms. Vandenbosch?s psychological detention argument. The court noted that she had knowledge and familiarity with respect to prison procedures, having attended that prison on four prior occasions, and that there was a sign posted at the main entrance that stated that no visitors are obliged to submit to a search of their person. As stated in R. v. C.R.H., 2003 MBCA 38, the accused?s subjective belief that he or she is detained is not determinative, because the test also has an objective component. In this context, where Ms. Vandenbosch voluntarily attended a prison, and admitted she was aware that she was subject to search, the MCA could not conclude that her belief under the circumstances was reasonable.

The MCA did note that had Ms. Vandenbosch not been in a prison setting, constitutional detention principles may have been engaged. However, since her context was not akin to an individual walking down a street, and she had placed herself in a prison environment where there is a reduced expectation of liberty and privacy, these factors were not applicable. In the totality of circumstances, the MCA found that the trial judge’s holding that the officers? intervention did not constitute an arbitrary detention contrary to s. 9 and did not engage a s. 10(b) right to counsel was not in error. Though Ms. Vandenbosch was detained, her detention did not trigger constitutional protection. The Court of Appeal therefore dismissed her appeal.

The Court of Appeal?s reasoning appears sound, and it is relatively clear why the SCC denied leave to appeal in this case. It is indeed true that Ms. Vandenbosch was not merely an anonymous pedestrian, but was entering a highly secure environment in which privacy expectations are necessarily lowered. In this specific context, her detention did not engage s. 9. Of note, however, is the MCA?s remark that there has not been a definitive SCC decision on s. 9 detentions in a prison context. Though the trial judge quite appropriately draws a comparison between borders and prisons with regard to lowered expectations of privacy, in refusing leave in R. v. Vandenbosch, the SCC has passed on an opportunity to fill a significant gap in s. 9 jurisprudence. There are only so many analogies that can be drawn to a context before the need for specificity arises, and eventually, the Supreme Court may be required to address this issue head on.

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Full post as published by The Court on February 19, 2008 (boomark / email).