Q: I recently came back from Mexico and had a huge hassle at Customs. They searched my luggage, searched me, even had a dog sniffing everything. How far can they go and what are they looking for?
A: I’m going to assume you had problems at Canada Customs.
Because they are protecting borders, they have wide legal powers to conduct searches. In some ways, their powers are actually greater than those enjoyed by police. Customs officers may search your vehicle or luggage and you. They can direct you to open any suitcase or part of your vehicle. They can make you empty your pockets and can do a pat-down search.
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The important distinction between these powers and those of police is that their powers can be exercised without the customs officer having reasonable grounds. For a regular police officer to do these things, he or she generally has to have a reasonable factual foundation.
The powers of customs officers expand when they do have reasonable grounds. If there is a reasonable factual basis to believe you are violating the law, they can go further. They can conduct an in-depth search, including a body cavity search or strip search.
There is a process that the law makes these officers follow, but few people know about it. If they want to do a strip search, you are entitled to consult with a lawyer before that happens.
You may also demand to be taken before a justice of the peace and make the customs people convince him there are proper grounds for the search. If there aren’t, the search can be refused.
While the Canadian Charter of Rights and Freedoms applies to these situations, you should also know that all of this might delay your border crossing or entry to Canada for hours or days.
I am not suggesting that anyone abandon those rights, but to insist on them will certainly prolong the process. Lawyers and justices are not always readily available when you are crossing the border, especially on some charter air flights that arrive in the wee hours of the morning.
If you have any complaints about what a Canada Customs officer does or says, ask for the superintendent on duty.
The most serious items being sought by customs officers are narcotics and other illegal substances. If you fail to declare items, they can be confiscated, or if you’re lucky, you just have to pay extra duty.
Keep careful track of items purchased on your trip. When I drove my family into the U.S. years ago, each person had an envelope in which they put receipts and wrote the item and cost on the front. The customs officer said he was impressed and we sailed past a couple of folks getting their vehicle disassembled.
Last year, the federal government introduced Bill C-43, to amend the Customs Act. It didn’t pass before the house adjourned in September of 2008, but will likely be reintroduced.
Among other things, that proposed law would increase or clarify the powers of customs officers to conduct a non-intrusive examination of items in your possession in a customs controlled area.
If this law passes, a customs officer will not only be authorized to examine those items, but will be able to open any baggage, package or container and even take samples of their contents. The officer has to have reasonable grounds to suspect the Customs Act has been violated.
Because they are essentially engaged in border protection, these officials have wide powers of search and seizure. If you’re not doing anything wrong, co-operate and your re-entry should go smoothly.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.
