ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1570/11
DATE: 20121005

BETWEEN:

HER MAJESTY THE QUEEN – and – TIMOTHY MOROZ Respondent

Michael Robb, for the Crown

Adam Bernstein, for the Respondent

HEARD: September 21, 2012

DESOTTI, J.

A. Application

[ 1 ] This is an application brought by the applicant, Timothy Moroz for an order declaring that the applicant’s rights to be secure against an unreasonable search and seizure have been violated and an order excluding evidence obtained as a result of those violations, pursuant to section 8 and 24 (2) of the Canadian Charter of Rights and Freedoms .

[ 2 ] The accused, Timothy Moroz was charged, as a result of an investigation conducted at the Sarnia border on November 26 th , 2009, with the following offences under both the Customs Act and the Criminal Code of Canada :

a. Sexual assault;

b. Sexual Interference;

c. Invitation to Sexual Touching;

d. Production of Child Pornography x 2;

e. Possession and Importation of Child Pornography;

f. Failing to Comply with Recognizance.

B. The Facts

[ 3 ] As a result of an investigation conducted by Detective Constable Rahb, the accused was believed to be in possession of child pornography. Unfortunately, because of some delay in the temporal connection with certain information, there was a concern that there was an insufficiency of grounds to obtain a search warrant.

[ 4 ] Although the investigation was not closed and the officer believed that the accused did have in his possession child pornography, he was stymied in his efforts. Nevertheless, he did convey this information to an Intelligent Officer with the Canada Border Services and indicated that the accused should have either his computer or other electronic device examined upon entry into Canada.

[ 5 ] A ’Lookout’ was created in the Agency’s Integrated Customs Enforcement System by Intelligence Officer Connie Reid. On November 26 th , 2009, at the Blue Water Bridge in the Village of Point Edward as a result of this ‘Lookout’, the primary officer made the automatic determination that a further examination of the defendant should take place at the secondary examination area.

[ 6 ] The position of the Crown was that once this ‘Lookout’ was created, standard protocol mandated this further examination of the accused. Furthermore, the Crown’s position was that the creation of this ‘Lookout’ created a reasonable suspicion in the minds of the Border Officer.

[ 7 ] The secondary officer then proceeded to examine all the goods in possession of the accused in order to verify the declaration. Officer Jenniskens indicated at the preliminary hearing that a cursory purview of the accused’s cell-phone (the I-Phone) located an image that she believed to be child pornography. She then showed the image to a fellow officer for confirmation and an arrest was then effected.

C. Analysis

[ 8 ] As I indicated at the commencement of this application, there is a significant distinction between warrantless searches of a cell-phone or laptop computer at an individual’s residence versus a search of the same individual or his/her possessions at a border crossing.

[ 9 ] Regina v. Simmons made it clear that routine searches by custom officials at the border or routine searches of luggage conducted on a random basis do not constitute a detention. The more intrusive the search, such as a strip search, would be mandated under the Customs Act only where custom officers had formed reasonable grounds for supposing that a person had contraband secreted about his/her body.

[ 10 ] In R v. Jones , the Ontario Court of Appeal at paragraph 30 in answer to whether there had been a s. 7 violation of the Charter when the accused answered questions by border officials, stated the following:

No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada....Travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Put simply, the premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border....The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and cooperate with that state intrusion in exchange for entry into Canada.

[ 11 ] Further on at paragraph 32, this same Appellate Court reaffirmed the Supreme Court of Canada’s decision in R. Simmons and R. v. Monney and the reality that neither s.10 (b) nor s. 8 of the Charter of Rights and Freedoms are engaged where at the border individuals are routinely questioned, their luggage is randomly searched, or perhaps a custom officer conducts a pat-down search of their person.

[ 12 ] In a further reference to the Supreme Court of Canada’s decision in Simmons , the Ontario Court of Appeal highlighted the following passage at p.312 of that judgment:

No stigma is attached to being one of the thousands of travellers who are daily routinely checked in that manner upon entry to Canada and no constitutional issues are raised .

[ 13 ] If that passage is not thoroughly conclusive of the matter before me, then at paragraph 33 the court concluded:

Where state action does not become more intrusive than routine questioning and searches, the relationship between the state and the individual cannot be characterized as either coercive or adversarial.

[ 14 ] In addition, on this very narrow issue Justice Iacobucci in Dehghani v. Canada (Minister of Employment and Immigration) stated, with respect to the role of immigration officers to ask questions and the existence of criminal penalties where there has been a failure to answer questions or the making of false statements, at paragraph 1074 as follows:

These provisions are both logically and rationally connected to the role of the immigration officials in examining those persons seeking to enter the country.

[ 15 ] Moreover, the Court of Appeal in Jones stated at paragraph 36:

The questioning of the appellant and the search of his luggage also did not trespass on any reasonable expectation of privacy the appellant had at the border.

[ 16 ] Finally, the Court of Appeal made no distinction between those individuals who are the target of a criminal investigation at the border and those who are not targets of such investigations. They concluded at paragraph 40:

In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation. Questions are asked and routine searches conducted to find individuals who are in breach of border-related laws. It only makes good sense that those responsible for enforcing border regulations will focus their routine questions and searches on persons who have for some reason attracted their interest. In my view, the mere fact that a person has attracted the suspicion of a Customs official, thereby causing that official to ask routine questions and conduct a routine search, should not give that individual any enhanced constitutional protection against self-incrimination.

[ 17 ] In R. v. Sahota , the court concluded that pursuant to s. 99 (1) (a) of the Customs Act, the existence of a tip or suspicion on the part of the secondary officer did not take the inspection out of the scope of paragraph 99 (1) (a) of the Customs Act. Whether or not the officer had reasonable grounds is accordingly irrelevant to the legality of the search of Mr. Sahota’s luggage.

[ 18 ] In turning now to the actions of the Custom officers on the matter before me, there is an assertion by counsel for the accused, that since the information that Detective Constable Rahb provided Officer Reid was dated that therefore any suspicion raised by the ‘Lookout’ is somehow tainted. The argument advanced is that the search of the cell phone (I-Phone) was based on dated information that triggered the secondary search.

[ 19 ] I think in fairness to the officer’s testimony at the preliminary hearing, he believed that the accused was in possession of child pornography but was attempting to find a means to complete his investigation. Regardless, the ‘Lookout’ did not nor does not prevent the Customs officers from completing their inspection of “goods” brought in by the accused to Canada.

[ 20 ] Furthermore, I conclude that the use of the expression “goods” found in s. 99 of the Customs Act reflect the type of information found in electronic devices such as a cell-phone or an I-Phone. Justice Donohue, in a decision of R. v. Christopher Mattew Burnett , found as a fact that s. 99 of the Customs Act speaks of “goods” and that the definition of “goods” found in the Customs Act include any document in any form . He went on to state at p.17:

The picture and the text messages which he viewed were documents in electronic form .

[ 21 ] I totally agree with this conclusion and further conclude that the cursory view of the individual’s cell-phone or I-Phone was merely to review and peruse electronic information that may assist custom officials in their determination whether any illegal materials or “goods” are concealed by the individual as a means of transporting same into Canada.

[ 22 ] Even if I am wrong in this view, I would have concluded that no Grant or Harrison analysis would exclude any information obtained by this cursory purview of the cell-phone by the Customs officer upon the completion of a 24 (2) analysis.

[ 23 ] In the result, the accused’s application to exclude the evidence obtained at the Sarnia Customs Border Office that is both the video clips and the subsequent search of the accused’s cellphone and camcorder, is dismissed.

The Honourable Mr. Justice J.A. Desotti

Released: October 5, 2012

CASES CONSIDERED

R. v. Manley 2011 ONCA 128 , [2011] O.J. 642 (Ont. C.A.) ; R. v. Polius [2009] O.J. 3074 (Ont. Sup. Ct.) ; Hunter v. Southam , [1984] SCJ 36 ; R. v. Simmons , [1988] SCJ 86 ; R. v. Monney , [1999] SCJ 18 ; R. v. Grant , [2009] SCJ 32 ; R. v. Hull [2011] OJ 2392 (Ont.Sup.Ct.) ; R. v. Rafferty 2012 ONSC 703 , [2012] O.J. 2132 (Ont. Sup. Ct.) ; R. v. Mann , [2004] S.C.J. 49 ; R. v. Calderon , [2004] O.J. 3474 (Ont. C.A.) ; R. v. Morelli [2010] S.C.J.; R. v. Burchell [2011] O.J. 4723 (Ont. Sup. Ct.) ; R. v. Grant , [1993] S.C.J. 98 ; R. v. Jones , [2006] O.J. No 3315 ; R. v. Sahota [2009] O.J. No. 3519 ; R. v. Leask [2008] O.J. No. 329 ; R. v. Burnett (unreported); R. v. Blake 2010 ONCA 1 , [2010] O.J. No. 48 ; R. v. L.B. 2007 ONCA 596 , [2007] O.J. No. 3290 ; R. v. Yousofi [2011] O.J. No. 1862 ; R. v. Harrison , [2009] 2 S.C.R. 494

COURT FILE NO.: 1570/11

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – TIMOTHY MOROZ r u l i n g DESOTTI, J.

Released: OCTOBER 5, 2012