The Ability of Border Service Officers to Gather Evidence of Insobriety at Canadian Border Crossings 

By Linas Antanavicius, Barrister & Solicitor

In the recent case of R. v. Brode, 2012, ONCA 140, the Ontario Court of Appeal confirmed that certain border service officers have the authority to gather evidence of insobriety from drivers who cross the border into Canada. The border service officers who have this power have to be specifically designated under the Customs Act.

The Facts

The facts underlying the decision in R. v. Brode were as follows. Mr. Brode, a Canadian citizen, stopped his car at the Canadian Customs booth while crossing the border from the United States into Canada in Windsor, Ontario. The border service officer (who was not designated under the Customs Act to respond to suspected impaired drivers) asked Mr. Brode routine questions about his citizenship, the length of time he spent outside of Canada, and his place of residence. During his verbal interaction with Mr. Brode, the border service officer observed that Mr. Brode’s speech was slurred, that his eyes were a little glossy and red, and that there was a faint smell of alcohol on his breath. The border service officer asked Mr. Brode if he had been drinking, and Mr. Brode responded that he had consumed three drinks. The border service officer formed the opinion that Mr. Brode was intoxicated, and asked him to turn his car off and hand over the keys. Mr. Brode complied.

At this point, the border service officer called for a border servicer designated under the Customs Act as having powers to respond to suspected impaired drivers. Two such designated border service officers arrived, and were informed by the first undesignated border service officer of his observations of Mr. Brode’s signs of impairment. The two designated border service officers directed Mr. Brode to get out of the car. Mr. Brode complied, and the two designated border service officers made further observations of impairment: Mr. Brode stumbled as he left the car, he had bloodshot eyes, smelled of alcohol and spoke in a “loud and cocky” manner. Based on these observations, one of the designated border service officers formed the opinion that the appellant’s ability to drive was impaired, and arrested Mr. Brode for impaired driving. He then advised Mr. Brode of his right to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. Mr. Brode was then taken to the police station, where he provided a sample of his breath. The trial judge convicted Mr. Brode of impaired driving on the basis of the observations made by the border service officers with respect to Mr. Brode’s symptoms of impairment.

The Law

Mr. Brode appealed his conviction to the summary conviction appeal court, and later to the Ontario Court of Appeal. Both his appeals were dismissed. The Ontario Court of Appeal confirmed that section 163.5 of the Customs Act conferred the following three powers on certain designated border service officers:

1. Power to Arrest: In relation to any criminal offence under any Act of Parliament, a designated border service officer has the powers and obligations of a peace officer under sections 495-497 of the Criminal Code to arrest without a warrant a person where there are reasonable and probable grounds to believe he or she has committed an indictable offence or is about to commit such an offence. 

2. Power to Demand Breath / Blood Sample: A designated border service officer may also, where he or she has reasonable grounds to suspect impaired operation of a motor vehicle, make demands for samples of a person's breath, or in some circumstances samples of a person’s blood.

3.  Power to Detain: The designated border service officer may also require that a person accompany him or her for the purpose of taking samples, and may detain that person until they can be placed in the custody of a peace officer.

There is a limitation on these powers: a designated border service officer may not use any power conferred for the enforcement of the Customs Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament.

The Court of Appeal noted that the powers described in s. 163.5 of the Customs Act were introduced in 1998 to curb accidents caused by impaired drivers crossing the Canadian border. Prior to 1998, border service officers had authority to investigate or detain individuals only in respect to matters relating to the Customs Act.