Andrew Bates, Telegraph-Journal, Local Journalism Initiative
In April last year, a Nova Scotia couple in their sixties arrived at the Canadian border in St. Stephen in a Dodge Caravan.
They told the border officer Jonathan Gunn that they had been in Florida for two and a half months, and that while they had liquor and imported goods, they didn’t have any firearms or weapons, court heard last week.
But when officers found a hiking bag with dried cannabis, three “partial THC units” in a cupholder, a purse with pepper spray and a stun gun, both prohibited, and a toiletry bag with two bullet casings inside, they intensified their search.
Inside the side panels of the minivan were three pistols, wrapped tight and taped up with a string “believed to have been meant for easy removal from the void panel,” along with three 9-mm ammo boxes with 50 rounds each, according to an agreed statement of facts. A fake Florida ID in the driver’s name fell out of a panel under the steering wheel.
The driver, Donald Scott Livingstone, 63, was convicted of four charges, including smuggling prohibited and restricted firearms, Oct. 7 in Saint John Court of King’s Bench.
He and his wife Joyce Ellen Livingstone, 61, both of Conquerall Bank, Lunenberg County, N.S., had been charged with 16 offences after border officials found guns hidden in their vehicle at the Ferry Point border crossing in St. Stephen April 5, 2024.
The pair had a preliminary inquiry in December and a hearing in July to challenge their arrest, claiming their Charter rights against unreasonable search and detention had been breached. After Justice Darrell Stephenson ruled in September that the searches had been constitutional, their trial had been scheduled for Oct. 6 to 9.
In court Oct. 7, Stephenson said he understood an agreement had been reached for Scott Livingstone to agree to some facts in the case and submit to a verdict, which would allow Livingstone the chance to appeal the Charter decision should he wish to do so.
The Livingstones had argued that their Charter rights had been breached, arguing that officers required reasonable grounds to fully search their vehicle.
In his ruling in September, Stephenson said Gunn had based the decision to send the couple for inspection on five factors, according to the preliminary inquiry transcript, including that they were over the personal exemption limit for goods “in an amount ($1,212) Officer Gunn thought was indicative of someone who had more” and that they physically presented their one bottle of liquor each while smiling, “which he thought suggested they had more alcohol.”
According to Stephenson, Gunn had also considered the fact they asked “was it bad here for snow yesterday,” as a “possible distraction” given that they would have been driving through snow for some time, and said he considered the fact the vehicle was “packed quite full”, and the length of time they were away.
Lawyers for the defence had argued that officers could have kept talking to the couple and examined “any suitcase or container in which the Livingstones advised that imported goods” were held, Stephenson wrote, but under the law, they could not have searched the whole vehicle without hearing something or seeing something that “objectively gave rise to a reasonable suspicion” in those specific bags.
“Taken to its logical conclusion, this gives rise to the obvious observation that in the view of defence counsel, a properly coached (well-prepared) smuggler who has carefully concealed contraband into their vehicle … could traverse the border with minimal fear of detection,” Stephenson wrote.
He said that past cases referred to an “expectation” that travelers at the border will be subject to a screening process which may include a search of their luggage or conveyance.
“Bottom line, the search of the Livingstones’ vehicle and luggage occurred … as part of a routine border screening that resulted in no violation of the Livingstones’ Charter rights,” the judge wrote.
The Livingstones had also argued that their rights had been breached because they had been asked further questions without being advised of their right to counsel in the 85 minutes between the time officials decided to intensify their search and the time that they were arrested.
Stephenson ruled that there was no issue with the search, and that while there was a 20-minute gap between when the ammunition boxes were found and when the Livingstones were formally arrested, he said the defendants hadn’t said “anything incriminating or useful” during that time.
In court Oct. 7, MacDonald and Crown prosecutor Peter Thorn entered an agreed statement of facts which applied to two Customs Act offences: that he smuggled prohibited or restricted firearms into Canada, as well as an overcapacity magazine, stun gun and pepper spray and that he made false or deceptive statements regarding the importation of goods and two Criminal Code offences, including possessing unloaded firearms in a vehicle with ammo and without a licence and importing firearms into Canada without authorization.
The pair were arrested following the search, according to the agreed statement of facts. The guns, a prohibited Glock 19 Gen4 9-mm with a 14-round magazine and two Polymer 80 firearms without serial numbers and a 10-round and 14-round magazine, one of which was prohibited and one restricted were tested and found to be functional, according to the statement.
Officers said they found Scott Livingstone’s thumbprints on the wrapping, which included “zip-lock and other plastic bags”, and a shipping confirmation for a parcel labelled “Walkie Talkies” to be sent to Livingstone from Augusta, Maine, to his Nova Scotia address, court heard. Canada Border Services Agency postal officials stopped the package in Montreal and found a Glock carrying case and a handgun holster in addition to the walkie talkies.
Police also searched three phones and found a photo of a handwritten statement where the Glock’s previous owner agreed to sell it to Scott Livingstone for $800, he said.
Livingstone said in court that he had a licence for restricted firearms, but agreed in the statement that he did not have a licence for prohibited firearms, had not registered the guns and did not have permission to import guns to Canada, court heard.
Thorn said that Scott Livingstone would be asked to agree to the facts to the degree that they proved “the essential elements of the offence,” but would maintain his not guilty plea.
MacDonald said that Livingstone could accept the consolidated charges and accept the statements of facts, “but that’s where his agreement has to stop.”
Scott Livingstone accepted the facts, and Stephenson found him guilty on the four specific charges, which Thorn said consolidate the various offenses alleged in the original 16-count indictment.
The charges against Joyce Livingstone were held in abeyance until Scott Livingstone’s sentencing, which was set for Nov. 20.
