Sunday November 23, 2014

Smuggling trial looks at Charter issues


Issues of detention and right to counsel came up last week at a trial in which the accused is charged with making false statements, evading paying duty and smuggling.

Brian Wilson of Cold Lake, Alta. faces the charges after he allegedly misled Canadian Border Service Agency officers by falsely claiming a boat he was importing from the United States was purchased for $5,500. The incident stems from the night of April 10 and 11, 2011 where upon further investigation, CBSA officer Quentin Dosch found a document revealing a money wire transfer for $57,596.59 from Fort Frances, Ont.

Dosch said the initial claimed price seemed “unreasonable” to him, considering it was a 23-foot, aluminum boat with a cabin and chambers. He said the boat could be used not just as a pleasure craft, but also could be considered a commercial vehicle.

He told the court that Wilson said the vessel had been sunk and required plenty of restoration work, which was how he came by it for a lower than expected price.

Wilson is a former special operative with the Canadian Armed Forces and said he paid $5,500 for the boat, while the greater amount went to restoring the marine vehicle. He never told the CBSA about the restoration work during their investigation.

Dosch testified that during the initial questioning, when he was told what Wilson paid for the boat, he was skeptical considering its size and quality. Dosch said he also wasn’t able to get a direct value of some other goods, like an outboard motor and generator, so he continued to question Wilson, who eventually declared them at about $500 or $600. Dosch said he found a receipt of $2,245.58 from Fargo for the generator.

Wilson brought his truck and boat into the inspection area. Dosch began to search the truck and immediately located documentation on the dashboard that included a bill of sale, signed for $5,500, as well as the receipt for a money wire transfer.

After finding the wire transfer however, Dosch said, “It was a lot more reasonable of a number than what he originally declared.”

The trial entered a voir dire, in which evidence was put forward and the judge ruled on the admissibility of the conversation between Wilson and Dosch after the truck and boat were moved into the inspection bay.

At that point Judge Karl Bazin asked if Wilson would be considered detained.

Dosch testified that Wilson could leave at any time and walk into the country as long as the goods that were seized, the truck, trailer and boat remained at the port of entry. He later said Wilson did have to answer his questions and wasn’t allowed to leave until Dosch cleared him, which was around 6 a.m.

“That’s pretty well a legal detention,” said Bazin.

Wilson was never told he was detained or arrested. Bazin asked why Wilson isn’t considered detained if he didn’t have the option of leaving.

The Crown prosecutor said at international borders, there is an expectation that privacy of the individual is lower than elsewhere. He suggested Wilson was simply required to answer questions relevant to the goods he was importing.

Bazin said it was likely Wilson’s rights were breached after he was taken to an interview room and not read his right to counsel. He was cautioned that criminal charges could be pending. The Crown suggested that based on previous cases, that the violations were not so egregious as to consider the exclusion of evidence discovered afterward.

Wilson testified during the voir dire that he felt detained as soon as he approached the border. Wilson had been on roughly a three-week trip to try and get this boat and had been driving for most of that time. He told the court he didn’t feel as though leaving was an option.

“I felt compelled to talk to (Dosch) and told him what he wanted to hear,” said Wilson, who noted he suffers from a condition that impacts his concentration and memory.

He testified he wouldn’t remember this occasion at all if it weren’t for reading the disclosure provided to him prior to the trial.

The matter was adjourned until June 25, when Bazin will make a decision concerning the evidence of the voir dire, which includes any statements Wilson made during the inspection. The trial will continue after that.



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