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What are Smuggling, Tobacco & Customs Offences?

Although international borders can involve allegations of criminal offences, most border offences are of a regulatory nature concerning the Customs Act, Excise Act, and Immigration and Refugee Protection Act. Even though these are not capital "C" criminal offences, you can still wind up going to jail or face massive (as in hundreds of thousands of dollars) fines for them. And a conviction in your name for any federal offence can wind up on CPIC (the RCMP's criminal records database) for life.

Why Fight Smuggling, Tobacco & Customs Charges?

Border offences have both effective resolution and trial legal strategies that knowledgable lawyers can employ for you. Those strategies can prevent your getting saddled with financial debts you may never be able to pay off in your lifetime, avoid you forfeiting a seized vehicle or other seized goods, keep you out of jail, or minimize any time in jail through techniques like combining provincial tobacco charges and federal tobacco charge resolution into a package deal. 

In an ideal world, you'll already have a lawyer in mind just in case you need one when crossing the border. The CBSA should facilitate your access to your lawyer of choice. That lawyer can also speak to the CBSA to negotiate your release, the release of your property, and possibly even convince them that no offence was committed. Because there are a lot more grey areas in customs law than there are in criminal law, what the CBSA can and can't do is often the subject of much more legal debate where the earliest involvement possible for a lawyer working for you can prove highly beneficial. 

How to Defend Against Smuggling Tobacco & Customs Charges: Top 4 Winning Trial Strategies

1. I didn't know it was there

While this strategy may not prevent you from getting charged (which only requires officers to have "reasonable and probable grounds" of an offence), it might result in your acquittal at trial if you testify in your own defence and are believed by the trial judge or jury. Due to the "proof beyond a reasonable doubt" criminal standard of proof (which you'll still benefit from even for these "regulatory" offences), even if your explanations are somewhat implausible, they still might be sufficient to raise a reasonable doubt.

This defence likely won't work if you've got a bad criminal record, particularly related to border offences or dishonesty offences, as the prosecution will cross-examine you at length about the record when you take the stand. 

2. It isn't illegal

The alcohol, tobacco, or other goods in your possession might be completely legal, even though the CBSA or police say otherwise. There may be disputes and doubts over unpaid taxes, unpaid duties, and the way whatever you have is regulated in Canada. You need to get legal advice. Your lawyer may be able to reason with the CBSA, or you may need to take your case to trial. This defence is especially important for Indigenous peoples. 

3. My Charter rights were violated

Although Border Services Officers at international ports of entry have much greater powers of search, detention, and questioning than do police within Canada, there are still limits to those powers. The exercise of those powers must still be "reasonable" depending on the context. So strip searches and detention without charge beyond a few hours would only be reasonable in extreme cases, and questioning completely unrelated to entry into Canada - for example about one's religion - may be found to be unreasonable. 

Intrusive searches of electronic devices remain highly controversial, with the law continues to rapidly evolve. If you're ever facing such a search, or think you will be in the future, we urge you to call us for the most up to date legal advice available. Searching a smart phone is a world away from searching a backup or personal diary, but courts continue to give mixed signal over what is and is not a permissible electronic data search. 

4. I was in a mixed traffic corridor travelling inside Canada

This defence currently only works at the Cornwall Border Crossing, as to date it's the only designated Mixed Traffic Corridor in Canada according to the Customs Act. CBSA officers are only permitted to ask people where they are arriving from, and if they say Canada, and the CSBA have no reason to believe otherwise, they must send those travellers on their way. It's unlawful to send them to secondary inspection, unlawful to otherwise question them, unlawful to detain them, and unlawful to search them. Period. 

Why Retain the Firm to Defend You on Your Customs, Smuggling or Tobacco Charges?

 The firm’s Managing Lawyer Gordon S. Campbell served as a Federal Crown Prosecutor for customs, smuggling and tobacco offences, working closely with and providing training to Canada Border Services Agency (CBSA) and RCMP officers. A focus of his The Investigator’s Legal Handbook series of books is regulatory offences including customs, smuggling and tobacco violations. The firm understands the investigative, charging and defence nuances of the Customs Act, Excise Act, and provincial tobacco and liquor law so as to be able to craft effective defences.