Court Information
Court: Ontario Court of Justice
Before: Justice E. Deluzio
Heard: May 27th, 28th, 29th, 2019
Reasons for Judgment Released: June 18th, 2019
Parties and Counsel
Between:
Her Majesty the Queen
— AND —
Gurbir Singh
Counsel:
- A. Findlay, for the Crown
- C. Penny, for the defendant Gurbir Singh
Judgment
Introduction
122 year old Gurbir Singh is charged with possession of child pornography contrary to Section 163.1(4) of the Criminal Code.
2Mr. Singh was arrested and charged with this offence on January 23, 2018 at the Prescott, Ontario Port of Entry.
3Mr. Singh now seeks to exclude the evidence of child pornography found on his cell phone pursuant to Section 24(2) of the Charter. He argues that the evidence was obtained in a manner that violated his Section 8 Charter Rights.
Background
4At approximately noon on January 23, 2018, Mr. Singh had attempted to enter the United States and was denied entry. No reason was provided by U.S Border Security explaining why Mr. Singh was denied entry. At that time, Mr. Singh, who is a citizen of India, had been living and attending school in Canada, as a foreign national, on a Student Visa.
5Mr. Singh presented himself at the Prescott Port of entry with an Indian Passport. He told Border Services Officer Sharon Provost that he had tried to enter the U.S. for the purpose of returning to Canada and changing his student visa to a work visa. He told Officer Provost that he lived near Toronto, that he had finished school on January 9, 2018, that he was starting a job in Alberta soon, and that friends had told him to come to the Prescott Port of Entry. Mr. Singh was detained by Officer Provost for a "secondary inspection".
6Canada Border Security Officer Buechert, a border security officer with six years' experience, was working secondary inspection that day. At 12:30 p.m. he received information that Mr. Singh was being referred to secondary inspection.
7Officer Buechert's role, initially, was to determine Mr. Singh's admissibility back to Canada.
8Officer Buechert asked Mr. Singh why he was crossing the border and Mr. Singh told him that he was looking for a work permit. Mr. Singh told Officer Buechert that he was a full time student at Algonquin College, which Officer Buechert believed was located in the Mississauga/Toronto area.
9Officer Buechert was aware that the conditions of Mr. Singh's study permit prevented him from working for more than 20 hours and he began to question Mr. Singh about his employment while in Canada.
10Mr. Singh told the officer that from January to December 2017 he had been working 40 hours per week at an Esso gas station, and that he needed a work permit because he had a job in Alberta in the electrical field. As Officer Buechert questioned Mr. Singh, Mr. Singh changed his story and said he did not actually have a job in Alberta but wanted to work there.
11Officer Buechert testified that as he continued to question Mr. Singh about his employment, Mr. Singh's demeanor changed from open and sociable to "very withdrawn".
12Officer Buechert also questioned Mr. Singh about his decision to travel to the Prescott Port of entry rather than an entry point closer to the Toronto area, and Mr. Singh explained that he had been told it "was easier at Prescott".
13Officer Buechert testified that at this point Mr. Singh was in violation of Section 16 of the Immigration and Refugee Protection Act ("the IRPA") which requires persons seeking entry to Canada to answer all questions truthfully. Taking into account Mr. Singh's information about having worked full time hours for a year in contravention of the terms of his student visa, his failure to answer truthfully about his job in Alberta, his changed demeanor, and his choice of what seemed to Officer Buechert to be an illogical entry point, Officer Buechert had concerns about Mr. Singh's admissibility to Canada and decided to "escalate" his examination of Mr. Singh.
14Officer Buechert testified that when he decided to escalate his search of Mr. Singh by demanding his cellphone he had both admissibility concerns relating to the work/study information provided by Mr. Singh and Customs Act concerns relating to the illogical entry point chosen by Mr. Singh and the reasons for his attempt to enter the United States before seeking re-entry to Canada.
15Officer Buechert directed Mr. Singh to accompany him to a private interview area and asked Mr. Singh for his cell phone. Mr. Singh turned over his Apple iPhone and provided his password "without hesitation", according to Officer Buechert.
16Officer Buechert immediately began searching the photo/video gallery in Mr. Singh's phone. The purpose of his initial search was to look for documents which would confirm or refute Mr. Singh's information about his student status and his employment.
17At 1:15 p.m., within minutes of starting his search of Mr. Singh's cell phone, Officer Buechert found a video he believed met the definition of child pornography. The video depicted a naked female engaged in sexual intercourse with a prepubescent boy.
18At 1:45 p.m. Officer Buechert arrested Mr. Singh for the Customs Act offence of smuggling child pornography, pursuant to Section 159 of the Customs Act.
19Mr. Singh was placed in a cell, cautioned and given his 10(b) rights. He spoke with duty counsel.
20At 2:58 p.m. Officer Buechert resumed his examination of Mr. Singh's cell phone. Officer Buechert testified that when he resumed his search of Mr. Singh's phone he was no longer looking for employment documents relating to Mr. Singh's immigration status. The purpose and focus of his search had changed. His continuing search of Mr. Singh's phone was strictly focused on searching for further evidence of child pornography.
21After finding the single image he believed to be child pornography, and arresting Mr. Singh under the Customs Act, Officer Buechert continued search of Mr. Singh's phone pursuant to his authority under Section 99 of the Customs Act which gives Border Officers broad authority to seize and examine cell phones and other electronic devices for Customs Act purposes.
22Officer Buechert testified that he believed that he needed to find 3 or more images of child pornography before police would be contacted. He explained that the basis for this belief was his previous experience as a Border Officer. He also referred to a document entitled "Duty Officer Matrix" that directs border officers to contact police "when three or more images/videos of child pornography are present".
The Search of Mr. Singh's Phone
23During the next 2½ hours, between 2:58 p.m. and 5:27 p.m., Officer Buechert continued to search the gallery section of Mr. Singh's phone, which contained almost 18,000 images and videos.
24At 3:14 p.m. Officer Buechert found a second image which depicted an adult female with semen on her face. Officer Buechert testified that although this image was not child pornography, because of what he considered to be its "perverse" nature, he believed that if he continued his search he would find more child pornography on Mr. Singh's phone.
25At 3:20 p.m. Officer Buechert found a video depicting two male toddlers placing the leads of a voltmeter on their penis. He believed this image to be child pornography.
26After finding this second video, Officer Buechert located a series of 16 pictures of a young girl who was fully clothed, but each picture had a "watermark" with the name Candy and five stars. Officer Buechert believed although these photos were not child pornography, they might be connected to child pornography. At 3:52 p.m. he contacted the Canadian Border Service Agency (the "CBSA") Intelligence Division and at 4:12 p.m. he received a call back and was directed to call the OPP for further direction regarding the "Candy" photos.
27Officer Buechert testified that he did not call the OPP at that time, because he had not yet found what he believed to be the requisite 3 or more images depicting child pornography.
28At 4:52 p.m. Officer Buechert found another video he believed to be child pornography. The video depicted a prepubescent boy removing his shorts and trying to have sexual intercourse with a chicken.
29Although he had now located three distinct images or videos containing child pornography Officer Buechert continued his search of Mr. Singh's phone. He testified that it had been his experience, as a Border Security Officer for six years, that in cases involving the possession of child pornography, the Investigations Division at Customs would not take further investigative steps unless the case was "very strong".
30At 5:01 p.m. Officer Buechert found another video. This video depicted 2 prepubescent girls in night gowns pretending to shave their bodies. Both girls are wearing no underwear and the camera is focused on their vaginal areas.
31At 5:15 p.m. Officer Buechert, having now found four images that he believed contained child pornography, did contact the Criminal Investigations Division again. He spoke with the on-duty Investigator and described what he had found on Mr. Singh's phone. The Investigator said he would contact his own Supervisor to see if they would lay Customs Act smuggling charges against Mr. Singh.
32While waiting to hear back from the on-duty Investigator, Officer Buechert continued his search of Mr. Singh's phone. At 5:37 p.m. he found another video. This video depicted a young Asian girl performing oral sex on an adult male, and then being vaginally penetrated by the adult male.
33At this point Officer Buechert believed that he now had a "strong case" and was confident that the criminal investigations unit would attend. He ended his search at 5:46 p.m.
34However, at 5:49 p.m. Officer Buechert was informed by the Criminal Investigations Unit that in fact they would not attend and no Customs Act charges would be laid.
35At 5:52 p.m. Officer Buechert contacted the OPP.
36While waiting for the OPP to arrive, Mr. Singh was given a second opportunity to speak with duty counsel.
The Arrest
37At 10:36 p.m. the OPP officers attended and arrested Mr. Singh for the Criminal Code offences of Possession and Importation of Child Pornography.
38Although Officer Buechert initially arrested Mr. Singh pursuant to the Customs Act charge of smuggling child pornography, no Customs Act charges were ever laid.
39The OPP obtained a search warrant and a further forensic search of Mr. Singh's phone was conducted. In addition to the videos and images located by Officer Buechert during his search, one additional video depicting child pornography was found on Mr. Singh's phone.
Practice and Procedures Followed by the Canadian Border Services Agency When Child Pornography is Found
40Alain Bouchard is currently employed with CBSA as a Liaison Officer based out of the Embassy of Canada in Paris. At the time of this incident Officer Buechert was Superintendent at the Port of Prescott. He had been Superintendent since 2015 and has been with the CBSA since 2002. His main responsibilities were traffic and Immigration superintendent.
41The evidence of Mr. Bouchard was tendered by the Crown, on consent, through an Agreed Statement of Facts.
42Officer Buechert contacted Mr. Bouchard at 1:45 p.m. to advise him that Mr. Singh was under arrest for possible child pornography. Officer Bouchard re-assigned a second border officer, Officer Dixon, to assist Officer Buechert with the arrest. He has no other recollection of the incident and his shift ended before Mr. Singh left CBSA custody.
43Mr. Bouchard provided the following evidence about practices and procedures at the border:
44The secondary examination searches of devices such as mobile phones possessed by person such as Mr. Singh seeking entry based on a student visa are conducted under the authority of both the Customs Act and the Immigration and Refugee Protection Act (the "IRPA"), since Mr. Singh was not a Canadian Citizen and therefore had no right of entry into Canada.
45If the Border Services Officer (the "BSO") finds material on the device that he is unsure falls within definition of child pornography the practice is for the officer to stop and seek assistance from one or both of the Canada Border Services Prohibited Importations Unit and/or the Regional Intelligence Officer (the "RIO").
46If the BSO determines that an image or video on the device is child pornography the practice is for the BSO to arrest the person for smuggling contrary to Section 159 of the Customs Act and to then provide the person with his or her right to counsel as required by Sections 10(a) and (b) of the Charter.
47Regardless of further action that might be taken by way of investigation, detention and/or prosecution, the device containing the child pornography is seized since it cannot be returned with child pornography on it.
48After the person is arrested for the Customs Act smuggling offence the practice is for the BSO to reach out to the RIO for further assistance regarding what further investigative steps to take, to inquire whether the RIO or someone from that office will attend and to seek direction about whether to refer the matter to a police agency for prosecution under the Criminal Code of Canada.
49The practice is that the RIO will rarely take or recommend action unless the BSO locates three or more files falling within the definition of child pornography.
50Regardless of if or when the RIO responds, the BSO will continue the search looking for more child pornography. This continued search is done because the RIO will rarely take or recommend action unless the BSO locates three or more files falling within the definition of child pornography.
51If the RIO recommends that the appropriate police agency be contacted the BSO will contact the police.
52If the RIO recommends against contacting the police or takes no position the BSO will make their own independent determination regarding whether to contact the police.
53The overall governing border policy, as indicated at paragraph 57 of the Customs Enforcement Manual, is what "when child pornography is intercepted the case will be referred to the appropriate police agency for prosecution pursuant to the Criminal Code". Although persons may be arrested under the Customs Act for Smuggling, they will not be prosecuted under the Customs Act and their investigative steps in locating child pornography is to assist the ultimate Criminal Code prosecution by the appropriate police agency.
54In his years with the Canadian Border Services Agency, Mr. Bouchard has never been involved with or heard about a prosecution for the smuggling offence of importation of child pornography, contrary to the Customs Act. Either a decision was made not to proceed with any prosecution or the person was prosecuted under the Criminal Code of Canada after the case was transferred to the police.
The Practice and Procedures Followed by the Police When Notified That Child Pornography Has Been Seized at the Border
55Detective Jeremy Spence testified. He has been an OPP Officer for 30 years and has been with the Child Sexual Exploitation Unit in Orillia since 2006.
56Detective Spence testified that until 3 or 4 years ago, Officers from the Child Sexual Exploitation Unit would attend when notified that a person at the border was found to be in possession of child pornography, but they no longer attend. Border officers received training and are instructed that police would like them to find at least three images before police will attend to lay Criminal Code charges.
57Detective Spence testified that he is not aware of any smuggling offences being prosecuted when child pornography is found on a person at the border. He said that between 2011 and 2015 smuggling charges would be laid but not proceeded with; and, since 2015 when officers from the Child Exploitation Unit stopped attending due to police budget cuts, as far as he is aware, there have been no smuggling charges laid.
58Detective Spence testified that even though the person found with child pornography at the border is arrested by the BSO on Customs Act charges, only Criminal Code offences are proceeded with. Under cross examination Detective Spence agreed that when a person is arrested on smuggling charges and given his 10(a) and 10(b) rights to counsel he is not told that the process will ultimately result in a Criminal Code prosecution. It is only after a Police Officer arrives that the person is arrested for the Criminal Code offences of possession and importation of child pornography.
Canadian Border Service Agency Protocols
59Crown and Defence filed copies of CBSA protocols which are relevant to procedures to be followed by BSO officers who find child pornography. Both counsel concede that these protocols are relevant but not determinative when considering the lawfulness of the search.
60The CBSA operational Bulletin regarding the Examination of Digital devices and Media at the Port of Entry, issued June 30, 2015, sets out CBSA guidelines regarding the examination of digital devices and media. The bulletin confirms that these devices include the digital documents and software they contain, are classified as "goods" in the context of the border. A CBSA officer's authority to examine goods is specified under both the Customs Act and the Immigration and Refugee Protection Act (IRPA).
61The bulletin reads: "Paragraph 99(1)(a) of the Customs Act provides CBSA officers with the legislative authority to examine goods including digital devices and media, for customs purposes only. Although there is no defined threshold for grounds to examine such devices, CBSA's current policy is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media."
62The bulletin specifically instructs officers to limit their examination of digital devices to their role of administering and enforcing CBSA mandated program legislation: "CBSA officers shall not examine digital devices and media with the sole or primary purpose of looking for evidence of a criminal code offence under any act of parliament. Officers must be able to explain their reasoning for examining the device, and how each type of information, computer, device, program and/or application they examine may reasonably be expected to confirm or refute those concerns."
63Under the heading "Actions required by CBSA officers", the following direction is written: "Where evidence of a criminal offence is discovered during the examination process, officers must be cognisant of where the regulatory examination crosses over to the realm of a criminal investigation. Officers must determine on a case-by-case basis, through consultation with their supervisor, whether or not to continue the regulatory examination and identify any possible impacts on potential criminal investigations."
Analysis
64The Customs Act gives Border Security Officers broad search powers that would be constitutionally impermissible if exercised over individuals already in Canada. Individuals seeking to cross the border must present themselves to border officers who are empowered to detain and question them, perform searches and examinations, and seize goods. Since it is an offence for persons seeking entry into Canada to fail to answer truthfully any questions asked by a BSO in the performance of his or her duties pursuant to the Customs Act, individuals seeking to cross the border into Canada can be compelled to provide self-incriminating evidence.
65Officer Buechert therefore had broad search powers pursuant to Section 99(1) of the Customs Act. His enhanced secondary search of Mr. Singh, including his seizure of the phone, request for Mr. Singh's password, and initial search of Mr. Singh's phone, seeking documents to confirm or refute Mr. Singh's answers about his student and employment status, for both admissibility and customs act reasons, was lawful.
66When Officer Buechert began his secondary examination of Mr. Singh, Mr. Singh was not the target of any criminal investigation, but was instead the subject of the kind of scrutiny that persons attempting to gain entry into Canada, both citizens of Canada, and noncitizens, should expect.
67Therefore, all questions asked by Officers Buechert and Provost before Officer Buechert found the first image were lawful and routine.
68However, when Officer Buechert found the first image on Mr. Singh's phone and believed that image to be child pornography the relationship between Mr. Singh and Officer Buechert changed and the focus of Officer Buechert's continued search of Mr. Singh's phone also changed.
69At 1:45 p.m. Officer Buechert arrested Mr. Singh and provided him with his right to counsel for the offence of smuggling child pornography under the Customs Act.
70The issue to be determined is whether Officer Buechert's continued search of Mr. Singh's cell phone, post arrest, was lawful.
71A search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was carried out is reasonable: see R v Collins, [1987] 1 S.C.R. 265.
72Dealing first with the lawfulness of the search, the Court must consider Section 99(1) of the Customs Act. Section 99(1) of the Customs Act provides that an officer may "at any time up to the time of release, examine any goods that have been imported and open or cause to be open any package or container of imported goods and take samples of imported goods in reasonable amounts". The IRPA also confers broad search powers on border officers. Sections 15, 16 and 18 of the IRPA authorize Border Officers to search any record or document. It is well settled that images on a cell phone are documents in electronic form and are subject to search at the border.
73Section 99(1) of the Customs Act does not specifically deal with the powers of Border Officers to continue to search persons post arrest, and unfortunately neither counsel was able to provide the Court with case law dealing specifically with the search powers of border officers post arrest. The CBSA protocols address this issue and must be considered, but they are not determinative.
74Section 163.5(4) of the Customs Act specifically limits the investigative powers of Border Officers to searching for evidence that is at least partly for the purpose of gathering evidence to support Customs Act offences: "A designated officer may not use any power conferred on the officer for the enforcement of the Act for the sole purpose of looking for evidence of a criminal offence under any other Act of Parliament".
75The Ontario Court of Appeal decision of R v Brode, [2012] O.J. No 985, a case which deals with the investigatory powers of specially designated border officers dealing with an impaired driver, provides some assistance. At paragraph 26 Justice Epstein, referring to Section 163.5(4) of the Customs Act, writes "there is a limitation on these powers: a designated BSO 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".
76It follows from this that there may be dual purpose for the investigation, but the investigation of a criminal offence cannot be the sole purpose.
77The lawfulness of the search of Mr. Singh's phone therefore depends on the purpose of the continued cell phone search by Officer Buechert, on the evidence.
78The operational bulletin issued for the purpose of providing guidance on a CBSA officer's authority to examine digital devices or media at ports of entry, makes it clear that border officers must be cognizant of where their examination crosses over into the realm of a criminal investigation. If the officer was exercising his Customs Act search powers for the purpose of finding evidence to support the Customs Act charge of smuggling child pornography then Mr. Singh's charter application fails.
79However, it is clear, from the totality of the evidence, including the testimony of Officer Buechert, Mr. Bouchard and Detective Spence, that at the time of Mr. Singh's arrest, there was and continues to be a long standing practice in place. Although a person may be arrested under the Customs Act for smuggling child pornography, it is understood by both customs officials and police officers, that that person will not be prosecuted under the Customs Act.
80This is a systemic practice which according to Detective Spence's evidence, may have been precipitated by budget cuts that ended the practice of specialized child exploitation officers being called and attending to arrest persons caught with child pornography at the border.
81Officer Buechert maintained throughout his evidence in chief and under cross examination that his continuing search of Mr. Singh's cell phone, even after finding three images containing child pornography, was pursuant to his authority under Section 99(1) of the Customs Act and for the purpose of establishing a "strong case" so the RIO would take action and lay a smuggling charge. However, he agreed under cross examination that he knew of no case where a person was actually charged under the Customs Act with smuggling child pornography.
82Officer Buechert's evidence about why he continued to search Mr. Singh's phone must be considered in the context of the totality of his own evidence, and the evidence of both Mr. Buechert and Detective Spence.
83Mr. Bouchard worked as Border Officer and a Superintendent at the Prescott port of entry from 2007 – 2018 and during that time he never heard of a prosecution for the smuggling offence against a person found in possession of child pornography at the border. He indicates in his statement that in cases where a person was arrested and detained by the Border Officer, for the smuggling offence, either there was no prosecution proceeded with at all, or police were notified and the person was prosecuted under the Criminal Code.
84Detective Spence testified that he is not aware of any smuggling offences being prosecuted when child pornography is found at the border. Before he was arrested and charged by OPP officers Mr. Singh was detained by Border Officers who were concerned about the reasons why Mr. Singh was seeking re-entry to Canada after being turned away at the United States border, and answers given by Mr. Singh in response to questions regarding his status in Canada on a Student Visa, his work history while a student, and his future plans to secure employment in Canada.
85This evidence does not support a finding that Officer Buechert's ongoing search of Mr. Singh's phone was for the dual purpose of both a Customs Act and a Criminal Code investigation. It is clear from Officer Buechert's evidence that his purpose in continuing to search Mr. Singh's phone, even after he found the requisite three images, was to collect enough evidence to attract the attention of police, and support a Criminal Code prosecution. Although he followed procedure and contacted the Investigations Unit, his purpose was to convince someone to take action. Based on his own experience Officer Buechert was aware the smuggling offences were not proceeded with once child pornography was found, and that if any action was to be taken, it would be police action.
86When the Officer continued his search of Mr. Singh's phone for the sole purpose of collecting evidence to activate and support a Criminal Code prosecution the officer he was no longer acting pursuant to his search powers conferred by the Customs Act.
87The practice that has evolved over the past four or five years at the Prescott Port of Entry involves Border Officers continuing to search devices until they find a sufficient quantity of child pornography to bring Police Officers to the border to lay criminal charges. Border Officers are therefore essentially acting as agents of the police, using their broad search powers to find evidence to support criminal prosecutions.
88It is important and necessary that Border Security Officers have broad search powers. Their job is to secure our borders and keep our citizens and our country safe. People who seek entry into Canada must answer questions truthfully and they must provide information and evidence. As long as Border Officers act for Customs Act and/or IRPA purposes, they can conduct these searches without a warrant.
89However, because there is no protection against self-incrimination during lawful searches and investigations conducted by Border Officers that the purpose of investigations and examinations conducted by Border Officers must be limited by the statutes that confer these broad search powers. The practice being followed by Border Security Officers at the Prescott Port of Entry, when Border Officers find evidence of child pornography, has taken these officers outside of the limitations of their statutory search powers. Since smuggling act charges are never laid, searches for child pornography images, conducted by Border Officers, cannot be viewed as searches for Customs Act purposes.
90I find, on the basis of the evidence I have heard and considered, that Officer Buechert used his search powers under Section 99(1) of the Customs Act solely for the purpose of collecting evidence to support a criminal prosecution. Therefore Officer Buechert acted outside of the limits of his search powers as a Border Security Officer and his search of Mr. Singh's phone, without a warrant, was unlawful.
91Although the first image found by Officer Buechert was found by him during a lawful search conducted pursuant to his Customs Act and IRPA search powers, I find that this image was also "obtained in a manner" that violated Mr. Singh's Section 8 rights.
92In the Ontario Court of Appeal decision of R v Pino, 2016 ONCA 389, dealing with the issue of whether evidence obtained before a Charter breach, can be excluded pursuant to Section 24(2), Justice Laskin writes: "Based on the case law, the following considerations should guide a court's approach to the 'obtained in a manner' requirement in s. 24(2): the approach should be generous, consistent with the purpose of s. 24(2); The Court should consider the entire 'chain of events' between the accused and the police; The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct; the connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections; but the connection cannot be either too tenuous or too remote".
93The entire search of Mr. Singh's phone occurred in the same location and was conducted by the same Officer. This was a continuing search of the same object. Given the strong temporal and contextual connection between the finding of the first image and the unlawful search leading to the finding of the other images by the Border Security Officer, I find that Officer Buechert's observations, including the first image he found, and the search warrant results, including six unique videos and four unique images of child pornography located on Mr. Singh's phone, satisfy the "obtained in a manner" requirement in Section 24(2) of the Charter. See: R v Pino, 2016 ONCA 389.
94Before evidence, found to have been obtained in a manner that infringed or denied Charter rights can be excluded, the Court must be satisfied on a balance of probabilities, having regard to all of the circumstances, that the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
95In determining whether the admission of the evidence would bring the administration of justice into disrepute the Court must take into account and balance the three factors identified by the Supreme Court of Canada in R v Grant, 2009 SCC 32: the seriousness of the Charter infringing state conduct; the impact of the breach or breaches on the Charter-protected interests of the accused and; society's interest in adjudication of the case on its merits.
96The evidence establishes that the Charter infringing state conduct in this case is serious, longstanding and systemic. Border Officers are instructed to continue searching cell phones and other electronic devices after they find child pornography, until they find at least three images. The system that has been in place at the Prescott Port of Entry involves Border Officers essentially acting as agents of the police, conducting searches of cell phones and other devices for the sole purpose of gathering evidence to support criminal code charges and criminal code prosecutions.
97Border Officers have broad search powers conferred on them by the Customs Act and the IRPA and these powers are necessary so that they can fully investigate customs and immigration concerns and keep our citizens and our country safe. But these powers, because they are so broad, must be limited to their investigative role as Border Officers. CBSA protocols and manuals specifically direct border officers not to search digital devices for the sole or primary purpose of looking for evidence of a Criminal Code offence. And yet that is exactly what happened in this case and happens routinely in cases when Border Officers find evidence of child pornography on cell phones and other devices.
98It should also be noted that Border Officers are not trained forensic investigators. Although there is no evidence in this case, that any data on Mr. Singh's phone was altered, modified or destroyed, Officer Buechert acknowledges during his evidence that there is always a risk of electronic evidence compromised if phone and computer searches are not conducted properly. The CBSA policy manual states that Border Officers are only responsible for "cursory examinations to detect child pornography" and directs officers that once an officer believes that a laptop contains child pornography images he/she should "close the laptop and control it… until a forensic examination expert can conduct an exam". Officer Buechert admitted that he forgot to put the phone on "airplane mode" when he first started his search and didn't put the phone on "airplane mode" until he resumed his search after arresting Mr. Singh, even though he is aware that this step is necessary to ensure that data on the phone is not lost or modified.
99The first branch of the Grant test favours exclusion of the evidence.
100The second branch of the Grant test also favours exclusion of the evidence. Cell phones often store a large amount of personal and private data and information, and any search of a cell phone has the potential to be a significant invasion of a person's informational privacy interests. Mr. Singh had a limited expectation of privacy at the border, while he was being subjected to a Customs Act and IRPA investigation, triggered by the information he provided to the Border Officer about his student status and work history. However, once Mr. Singh was arrested, and the focus of the search changed to a search for evidence to support a Criminal Code investigation, Mr. Singh's expectation of privacy increased.
101The third branch of the Grant test favours inclusion of the evidence. The evidence here, in the form of video and picture images containing child pornography is real and reliable. There is a strong societal interest in the prosecution of child pornography cases. Its exclusion will likely end the Crown's case against Mr. Singh.
102After balancing all of the Grant factors and considerations, and in particular the systemic state conduct involving Border Officers, routinely relying on search powers conferred upon them by the Customs Act and IRPA for the sole purpose of Criminal Code child pornography investigations, it is my view that admission of the evidence, including the first image found by Officer Buechert, would bring the administration of justice into disrepute.
Released: June 18, 2019
Signed: Justice E. Deluzio
