Court of Appeal for Ontario

Date: November 28, 2019

Docket: C65195

Judges: Feldman, van Rensburg and Huscroft JJ.A.

Between

The Attorney General of Canada on behalf of the United States of America

Respondent

and

Akohomen Ighedoise AKA "Kabila", "Kay Hester"

Appellant

Counsel:

• Akohomen Ighedoise, acting in person
• Amy Ohler, appearing as duty counsel
• Roy Lee, for the respondent

Heard: June 4, 2019

On appeal from: The committal order of Justice Michael R. Dambrot of the Superior Court of Justice, dated February 16, 2018, with reasons reported at 2018 ONSC 727, 367 C.C.C. (3d) 98.

van Rensburg J.A.:

A. OVERVIEW

[1] This appeal concerns alleged errors in the committal judge's disposition of an application under the Canadian Charter of Rights and Freedoms seeking to exclude two paragraphs from the Record of the Case ("ROC"), relied on in support of the extradition of the appellant, Akohomen Ighedoise,[1] to the United States. The paragraphs summarize information obtained from searches of certain electronic devices of the appellant and his co-accused. These searches were authorized by warrants obtained in reliance on information from an iPhone that was examined and later seized from the appellant in the course of his preclearance for travel to the United States.

[2] It was conceded that, if the Charter application were unsuccessful, there would be sufficient evidence to order the appellant to be committed for extradition. The committal judge dismissed the application and the committal order was accordingly made.

[3] For the reasons that follow, I conclude that the examination of the appellant's iPhone by the U.S. Customs preclearance officer violated s. 8 of the Charter. I would allow the appeal and set aside the committal order. I would order that the committal judge hold another extradition hearing to determine: (1) whether the evidence obtained in violation of the Charter must be excluded from the ROC under s. 24(2); and (2) if the evidence is excluded, whether there is sufficient evidence to order the appellant's committal.

B. FACTS

[4] On August 21, 2014, the appellant, a Canadian citizen, was scheduled to board a flight from Toronto to Atlanta, Georgia. He presented himself to U.S. Customs and Border Protection officials in the preclearance area at Pearson Airport. He was directed to secondary inspection, where he was questioned and his baggage and belongings were searched. During the search, a U.S. Customs preclearance officer located two cell phone SIM cards attached to contracts in names other than the appellant's, as well as a credit card in a different name. The appellant provided explanations that, in response to further questioning by the officer, he admitted were false. The officer then examined the appellant's iPhone and found what he believed was evidence of fraudulent activity. He contacted the Peel Regional Police, who arrested the appellant and charged him with offences under the Criminal Code, R.S.C. 1985, c. C-46.

[5] In the course of their investigation of the appellant and his co-accused on these and other charges, the Canadian authorities obtained warrants authorizing their searches of the devices that were seized on the appellant's arrest and devices seized subsequently from the appellant's and the co-accused's residences. The warrants were based in part on two informations to obtain ("ITOs") sworn in October 2014 and October 2015. The October 2014 ITO included the preclearance officer's statements and notes about his interactions with the appellant in the preclearance area and the information he had seen on the appellant's iPhone. The October 2015 ITO stated that the appellant was refused entry to the United States subsequent to the examination of the iPhone and explained what became of the appellant's devices seized upon his arrest.

[6] The United States sought the appellant's extradition to face fraud charges in that country. The U.S. authorities relied on the ROC, which contained the two impugned paragraphs summarizing what was found in the forensic analysis of the electronic devices of the appellant and his co-accused.

[7] The evidence on the Charter application consisted of an application record filed by the appellant (and his co-accused, who is not involved in this appeal) and the ROC. The application record contained the two ITOs and an affidavit sworn by the appellant. There was no cross-examination on the affidavit nor was any oral evidence called at the hearing. As noted by the committal judge, the parties were content to proceed with the Charter application based on this evidence.[2]

C. THE CHARTER APPLICATION BEFORE THE COMMITTAL JUDGE

[8] Before the committal judge the appellant asserted that: (1) his rights under s. 8 of the Charter were violated by the preclearance officer's warrantless search of his iPhone; (2) he had been arbitrarily detained contrary to s. 9 of the Charter; (3) his rights under s. 8 were violated when no report to a justice was filed following the seizure of his iPhone by a Peel Regional Police officer; and (4) under s. 24(2) of the Charter, the two impugned paragraphs in the ROC should be excluded from the evidence.

[9] On the first s. 8 argument, the committal judge concluded that the preclearance officer was authorized to conduct, without warrant, the limited search of the appellant's iPhone that revealed the information leading to the two impugned paragraphs. He determined that the preclearance officer was continuing to assess the appellant's admissibility to the United States when he searched the iPhone, and that he was not examining the iPhone for a criminal law investigation purpose. The committal judge reasoned that the officer was entitled to consider the appellant's criminality in determining his admissibility to the United States, and that the officer's belief that the appellant had lied to him about the reason for his travel to the United States and for the false names on the SIM cards led him to inspect the iPhone for confirmation of his concerns. The committal judge concluded at para. 50 of his reasons that, "[w]hatever [the preclearance officer's] precise reason for inspecting the iPhone may have been, it was entirely permissible for him to do so in order to assist him in determining whether, under United States immigration law, [the appellant] should be permitted to enter the United States." Indeed, the committal judge noted that, once the officer determined that the iPhone contained evidence of criminality, he discontinued his examination of it, refused the appellant admission, and contacted the Peel Regional Police.

[10] In dismissing the first s. 8 argument, the committal judge rejected the submission that a preclearance officer who believes on reasonable grounds that the traveller has contravened s. 33 of the Preclearance Act, S.C. 1999, c. 20[3] (providing a false or deceptive statement), or committed a criminal offence, must at that point "hold off" from conducting any further search and deliver the traveller and any detained goods into the custody of the Canadian police. In the committal judge's view, the development of reasonable grounds does not bring to an end the officer's powers in relation to determining the traveller's admissibility to the United States. Rather, as in this case, the committal judge accepted that the preclearance officer completed his preclearance functions only after he examined the appellant's iPhone, and then denied him entry into the United States.

[11] On the s. 9 issue, the committal judge concluded that the officer had reasonable grounds to detain the appellant for breach of s. 33 of the Preclearance Act. Given that the officer knew that the appellant had both SIM cards and a credit card in his possession in the name of other persons, and was aware of a constellation of other incriminating facts, the officer "unquestionably had reasonable grounds to believe that [the appellant] had contravened s. 33, and on the evidence could not have thought otherwise": para. 89.

[12] On the third issue, the committal judge was not convinced, on a balance of probabilities, that there had been a contravention of s. 489.1(1)(b) of the Criminal Code when the authorities failed to file a report with a justice following the seizure of the appellant's iPhone at Pearson Airport. However, he concluded that if he was wrong, and if this was a Charter breach, the violation was a small one.

[13] Finally, on the fourth issue, the committal judge conducted a s. 24(2) analysis only with respect to the failure to report, not the iPhone search. After balancing the Grant factors (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353), and assuming there was a breach, he concluded that the evidence in question should not be excluded.

D. ISSUES

[14] The appellant, with the assistance of duty counsel, makes two arguments on appeal.

[15] First, the appellant says that the committal judge erred by inferring that the preclearance officer was still deciding whether to grant him entry into the United States when he searched his phone. The appellant contends that the officer's search was motivated by a criminal law purpose, not the determination of whether to grant him entry, and therefore violated s. 8 of the Charter. According to the appellant, the committal judge engaged in impermissible speculation about the officer's motivations in the absence of evidentiary support.

[16] Second, the appellant argues that the search of his iPhone contravened s. 8 of the Charter because, once he was detained for having committed an offence under s. 33 of the Preclearance Act, the preclearance officer was obliged to turn him over immediately to Canadian officials and had no authority to continue the search of his belongings.

E. ANALYSIS

(1) The Statutory Framework

[17] The point of departure is the provisions of the Preclearance Act.

[18] The Preclearance Act specifically provides that its purpose is to permit the administration of preclearance laws in Canada, subject to Canadian constitutional safeguards, in order to facilitate the movement of travellers and goods between Canada and the United States, based on the principle of reciprocity: s. 4. Preclearance laws may be administered in Canada in a preclearance area with respect to travellers who seek admission to, and with respect to goods to be imported into, the United States, subject to the Charter, the Canadian Bill of Rights, S.C. 1960, c. 44, and the Canadian Human Rights Act, R.S.C. 1985, c. H-6: s. 6(1).

[19] "Preclearance laws" are defined as "the law of the United States with respect to customs, immigration, public health, food inspection and plant and animal health that is applicable to the admission of travellers or the importation of goods to the United States, including [the laws listed in a schedule to the Act]…". "Preclearance officer" is defined as "a person authorized by the United States to perform preclearance duties in Canada for the purposes of customs, immigration, public health, food inspection and plant and animal health": s. 2.

[20] The powers of preclearance officers with respect to the inspection of goods and travellers are set out in the Preclearance Act.

[21] Section 24(1) authorizes a preclearance officer to detain a traveller in certain circumstances:

A preclearance officer may detain any traveller if the officer believes on reasonable grounds that the traveller has contravened section 33 [false or deceptive statements] or has committed an offence under an Act of Parliament that is punishable by indictment or on summary conviction. [Emphasis added.]

[22] Section 24(2) requires the delivery of a detained traveller to a peace officer "as soon as possible":

The preclearance officer must deliver any traveller detained under subsection (1) as soon as possible into the custody of a peace officer within the meaning of paragraph (c) of the definition peace officer in section 2 of the Criminal Code.

[23] Section 25(1) provides for the examination of goods submitted for preclearance:

A preclearance officer may examine any goods that are submitted for preclearance and may open or cause to be opened any package or container and take samples of the goods in reasonable amounts.

[24] Section 26(1) provides for the detention of goods by a preclearance officer:

A preclearance officer

(a) may detain any goods that are submitted for preclearance, until the officer is satisfied that the goods have been dealt with in accordance with this Act, the regulations and preclearance laws; or

(b) may detain anything designated by regulations under paragraph 38(1)(d) [where the possession, import, export or handling of which is prohibited, controlled or regulated], and must without delay transfer that thing to a Canadian officer.

[25] Section 26(2) requires the detention of goods where the officer believes on reasonable grounds their possession, import, export or handling is a Canadian criminal offence, or will afford evidence of an offence, and requires the transfer of anything so detained to a Canadian officer who is authorized to receive it:

A preclearance officer must detain anything the possession, import, export or handling of which the officer believes on reasonable grounds to be an offence under Canadian law punishable by indictment or on summary conviction and anything that the officer believes on reasonable grounds will afford evidence of that offence, and must without delay transfer anything so detained to a Canadian officer who is authorized to receive it.

[26] Section 27 authorizes the preclearance officer to seize goods in certain circumstances:

(1) A preclearance officer may seize any goods referred to in paragraph 26(1)(a) that the officer believes on reasonable grounds relate to a false or deceptive statement made in contravention of section 33.

(2) A preclearance officer may, if the officer believes on reasonable grounds that there has been a contravention of section 33, seize any goods that the officer believes on reasonable grounds will afford evidence of the contravention.

[27] Section 33(1) makes it an offence for a person to make false or deceptive statements to a preclearance officer:

Every person who makes an oral or written statement to a preclearance officer with respect to the preclearance of the person or any goods for entry into the United States that the person knows to be false or deceptive or to contain information that the person knows is false or deceptive is guilty of an offence punishable on summary conviction and liable to a maximum fine of $5,000.

[28] As the committal judge observed, the source of the powers of preclearance officers is in the Preclearance Act, and while U.S. officials are permitted to administer preclearance laws in Canada, this permission does not extend to the administration of criminal law.

(2) Did the Committal Judge Err in Concluding that the Preclearance Officer Was Continuing His Preclearance Activities When He Searched the iPhone?

[29] The appellant's first argument on appeal is that the committal judge's conclusion that the preclearance officer was continuing his preclearance activities when he searched the iPhone was unreasonable, not supported by the evidence, and speculative. The appellant argues that there was no evidence as to why the officer searched the phone and that, given that the officer already knew that the appellant had lied about his reason for travelling to the United States and about the false names on the SIM cards, his search was motivated by a criminal law purpose.

[30] I agree that the officer would have had no authority to search the phone for a criminal law purpose. The authority of a preclearance officer is limited to the administration of preclearance laws, and, as the committal judge noted at para. 7 of his reasons, does not extend to the administration of criminal law.

[31] The committal judge, at paras. 52-66 of his reasons, initially assumed the accuracy of the appellant's evidence that the officer told him that he would be calling the police when he discovered the credit card, and before he examined the cell phone. Relying on cases such as R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, and R. v. Annett (1984), 17 C.C.C. (3d) 332 (Ont. C.A.), the committal judge concluded that the officer could have had both a regulatory purpose and a criminal law purpose when he examined the cell phone, and that whether the officer suspected or believed that the appellant had committed a crime would not bring to an end his statutory authority. In my view, however, the Nolet and Annett cases, which are authority that a concurrent interest in potential criminal activity does not convert a legal search for a regulatory purpose into an unlawful search, are not applicable to the present context, given that the preclearance officer's authority is limited to the administration of preclearance laws, which do not include the criminal law.

[32] If the committal judge's analysis had ended there, I might have concluded that effect should be given to this ground of appeal. However, the committal judge went on in his reasons to make findings as to the preclearance officer's actual purpose when he examined the appellant's iPhone. He concluded that the officer was not pursuing a criminal law purpose and that he was in fact continuing his preclearance functions.

[33] In my view, the evidence reasonably and logically supported the committal judge's conclusion that the officer was continuing his preclearance functions when he examined the appellant's iPhone.

[34] As the committal judge explained, the parties were content to argue the application on the basis of the documents placed before him without the need for viva voce evidence: at para. 72. The documents included the ROC, the two ITOs and the appellant's affidavit.

[35] First, the committal judge noted that the affiant of the October 2015 ITO stated that the preclearance officer refused the appellant's entry to the United States subsequent to his examination of the iPhone: para. 70. Second, he relied on the October 2014 ITO to conclude that the officer was still completing his preclearance responsibilities when he examined the iPhone. He explained that the affiant reviewed the officer's notes and, based on the notes, the officer formed the belief that the appellant was engaged in fraud when he examined the phone's text messages. The officer then stopped searching the device and called the police. He also refrained from examining the appellant's other electronic devices. Third, the committal judge rejected the appellant's evidence, in his affidavit, that the officer told him that the credit card was fraudulent and that he would be calling the police prior to examining the phone. He reasoned that it was far more logical that the officer first thought he had reasonable grounds to believe the appellant was engaged in criminal activity when he discovered the text messages on the phone: at para. 71. In other words, reasonable grounds developed during, but not before, the search. This was consistent with the fact that the officer stopped searching the phone after examining the messages, his decision to refrain from examining any of the appellant's other devices, and his call to the police at that time.

[36] In light of this evidentiary record – upon which the parties were content to argue the application – it was open to the committal judge to conclude that the officer was still completing his preclearance functions when he examined the phone.

[37] I would therefore not give effect to the first ground of appeal.

(3) Was the Preclearance Officer Entitled to Examine the iPhone After the Appellant Was Detained?

[38] The appellant's second argument is that, once the officer had determined that he had made a false and deceptive statement contrary to s. 33 of the Preclearance Act, he was detained. At that point, the preclearance officer was required to turn him over to the Canadian authorities, was no longer authorized to continue his preclearance activities, and accordingly had no authority to continue to search his iPhone.

[39] The issue of detention was considered by the committal judge at paras. 86 to 91 of his reasons in determining whether the appellant was arbitrarily detained under s. 9 of the Charter. The committal judge referred to the appellant's affidavit where he swore that, when he was asked for the password to his phone, he asked the officer if he could return his belongings and leave the airport and was told that was not possible. This evidence, which was not contradicted, and was not rejected by the committal judge, was also mentioned at para. 30.

[40] The committal judge rejected the argument that the appellant's detention was unlawful. He referred to s. 24(1) of the Preclearance Act, authorizing the detention of a traveller if the officer reasonably believes the traveller has contravened s. 33 or committed an offence under an Act of Parliament. He concluded that, before searching the phone, the preclearance officer "unquestionably had reasonable grounds to believe that [the appellant] had contravened s. 33, and on the evidence could not have thought otherwise": at para. 89. While there was no evidence that the officer turned his mind to the issue before searching the phone, "[w]hether or not the officer had reasonable grounds to believe that [the appellant] had committed a criminal offence, he had the authority to detain [the appellant] in relation to a contravention of s. 33": at para. 90.

[41] The fact that the officer had reasonable grounds to detain the appellant on the basis of his false statement is not determinative of whether he was detained when the iPhone was examined. Section 24(1) of the Preclearance Act is permissive: a preclearance officer may detain any traveller if the officer believes on reasonable grounds that the traveller has contravened s. 33 or an Act of Parliament.

[42] On a different record it might have been open for the committal judge to have concluded that, while the preclearance officer had the authority to detain the appellant before searching the phone, he was not in fact detained. On the record in this case however, the appellant had to have been detained at the point when, having been asked for the password to his cell phone, he sought to take his belongings and to leave the airport. This is the only possible conclusion on the evidence: see Grant, at paras. 30-31. The appellant's uncontroverted evidence, which was not rejected by the committal judge, was that he was told his iPhone would be seized and that he could not leave the preclearance area when he asked to do so.

[43] The respondent's counsel did not take the position in the appeal that the appellant was not detained when his iPhone was searched. Rather, he argued that, notwithstanding the appellant's detention, the officer's powers of investigation for the purpose of his preclearance activities continued.

[44] I disagree.

[45] Once the appellant was detained, s. 24(2) of the Preclearance Act applied. To examine the cell phone at that point would contravene the obligation to turn over the appellant to the custody of Canadian officials "as soon as possible", an obligation that, while not arising simply on having reasonable grounds, clearly arises on detention.

[46] While there is no provision in the Preclearance Act expressly precluding an officer from continuing to administer preclearance laws once a traveller is detained, there is no reason for the officer to continue to inquire into the traveller's admissibility to the United States – the traveller must be turned over to Canadian authorities, making admissibility, in effect, moot. Practically speaking, the officer's preclearance responsibilities ended at that point. There was no reasonable prospect of the appellant's admission to the United States if he was being detained in Canada for violation of s. 33.

[47] The respondent asserted that, even if the appellant was detained, and would not have been admitted on that occasion to the United States, the preclearance officer was authorized to continue his preclearance inquiries of the appellant, including the examination of his cell phone, because the officer could decide not just whether to refuse him admission on this one occasion, but whether he would be inadmissible to the United States for some longer period. There was no basis in the evidence for this assertion – and no evidence of the U.S. preclearance law that might support such an argument. In the absence of such evidence, it would be improper to speculate that U.S. preclearance laws may support continued inquiries of a traveller who has been detained and must be turned over to Canadian officials as soon as possible.

[48] In the end, the preclearance officer's powers are limited to those set out in the Preclearance Act. There is nothing in the evidence before this court to suggest that once a traveller has been detained, there is any authority to continue preclearance activities. Rather, at that point, the obligation is to hand over the traveller to the Canadian authorities. Any subsequent search of the traveller's cell phone is therefore unlawful.

[49] I would therefore give effect to the appellant's second ground of appeal.

(4) What is the Effect of a Finding of a Charter Breach?

[50] The next step in the analysis is to determine whether the impugned paragraphs in the ROC should be excluded from evidence in the committal proceedings, on the basis that they refer to evidence obtained in violation of the Charter.

[51] The committal judge determined the s. 24(2) issue, assuming there had been a Charter breach with the failure to file a report to a justice contrary to s. 489.1(1)(b) of the Criminal Code. He did not, however, conduct such an analysis with respect to the breach that I have found on appeal.

[52] Although this court has the authority to perform the s. 24(2) analysis itself, it is inappropriate to do so where, as here, the record is insufficient: R. v. Bruyere, 2012 ONCA 329, 291 O.A.C. 1481, at paras. 16-18. Not only does the record before this court not include the October 2015 ITO, but the parties made no submissions in this court on whether the Charter breach resulting from the iPhone search requires the exclusion of the impugned paragraphs, and if so whether committal is justified.

[53] Accordingly, I would remit the s. 24(2) issue to the committal judge for determination.

F. CONCLUSION AND DISPOSITION

[54] For these reasons, I would allow the appeal and find that the search of the appellant's iPhone by the preclearance officer while he was detained was in breach of his rights under s. 8 of the Charter. I would order that the committal judge hold another extradition hearing based on the complete record that was before him, and any other materials he may see fit to admit, for the determination of: (1) whether the evidence obtained in violation of the Charter must be excluded from the ROC under s. 24(2); and (2) if the evidence is excluded, whether the respondent has met the test under s. 29(1)(a) of the Extradition Act, S.C. 1999, c. 18, for committal of the appellant for extradition.

Released: November 28, 2019

"K. van Rensburg J.A."

"I agree. K. Feldman J.A."

"I agree. Grant Huscroft J.A."

Footnotes

[1] The appellant's first name is spelled both as "Akohomen" and "Akhomen" in the record.

[2] The committal judge rejected the argument of the appellant's co-accused, Ikechukwu Derek Amadi, that he should not take into consideration the descriptions of the preclearance officer's interactions with the appellant in the ITOs because they were based on hearsay. He noted that all parties appeared content to argue the application on the basis of the documents that were replete with hearsay, and reliance on the entirety of the content of the ITOs was acquiesced to by all parties. The committal judge noted that, if he had concluded that the Crown could not rely on the hearsay, he would have granted the Crown's request for permission to re-open her case to call the preclearance officer as a witness at a later date: at paras. 72-76.

[3] The Preclearance Act that was in force at the time has since been replaced by the Preclearance Act, 2016, S.C. 2017, c. 27, which received Royal Assent in December 2017 and came into force in August 2019.