COURT FILE NO.: CR-21-867-00 DATE: 2022 08 02
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
DAVID SCOTT
Counsel: Maria Stevens, for the Provincial Crown Naomi Lutes, for the Applicant David Scott
HEARD: June 20-21, 2022
REASONS ON CHARTER APPLICATION
D.E. HARRIS J.
[1] Mr. Scott is charged with possession and importation of child pornography. This is the second instalment in Mr. Scott’s case. In the first, he together with Jeremy Pike was successful in arguing that Section 99(1)(a) of the Customs Act as applied to the search of digital devices is a violation of Section 8 of the Charter and consequently of no force or effect to this extent: R. v. Pike and Scott, 2022 ONSC 2297. The Applicant Scott now applies under Section 24(2) of the Charter to exclude the child pornography evidence found on his digital devices. He argues a Section 10(a) and (b) breach of the Charter to augment the Section 8 breach.
THE EVIDENCE
[2] The evidence with respect to the search and seizure of Mr. Scott was reviewed briefly in the constitutional ruling: Pike and Scott, at paras. 11-13. The circumstances were elaborated upon in this application. Only BSO Sodhi was called as a witness. He was the officer who searched the Applicant in the secondary area. The preliminary hearing evidence of all three officers involved in this case filled out the record.
[3] The Applicant was “roved”. The purpose of roving is to identify possible non-compliance with the Customs Act, particularly pertaining to contraband. Roving occurs in baggage carousel areas and other public areas. BSOs Sodhi and Shortt approached Mr. Scott at the baggage claim area on June 27, 2020. He stood out because he was travelling alone and had flown in from Houston. BSO Sodhi testified that Houston is a hub for Caribbean and South American flights. These countries are high risk for narcotics, child pornography, sex tourism and national security issues.
[4] At about 3:26 p.m., BSO Sodhi engaged the Applicant in conversation. The Applicant said he was a retired accountant. He had been in Belize for six months and had a home there. BSO Sodhi noticed that Mr. Scott’s passport showed that he was a frequent traveler with significant travel to Belize and also stamps from Mexico and the Dominican Republic. The information on the customs computer showed that he had travelled 19 times in seven years. Mr. Scott was travelling alone; BSO Sodhi testified that a person travelling alone is higher risk for contraband than a person travelling with their family. It was also noteworthy that Mr. Scott was travelling during the pandemic. Not a lot of people, especially of Mr. Scott’s age--about 70—were travelling at that stage of the pandemic.
[5] These were the main “indicators” (i.e. grounds) which led Sodhi to direct Mr. Scott to secondary at about 3:28 p.m. The luggage search in secondary was completed at 3:47 p.m.
[6] Multiple hard drives and digital devices were found. There were three phones, two tablet devices and 8 hard drives. In BSO Sodhi’s experience, carrying so many devices was highly unusual. He intended to search them all. When BSO Sodhi inquired what was on the devices, Mr. Scott said that it was movies. BSO Sodhi testified he was skeptical that there were only movies on the drives. For the first time, BSO Sodhi had a suspicion with respect to child pornography specifically. Before this, the inspection was for contraband of any kind whether it be narcotics or something else.
[7] Adding to this, Mr. Scott asked BSO Sodhi during the search of the luggage if he could repack the hard drives. This was a further indicator in BSO Sodhi’s mind. BSO Sodhi advised that he would be searching all the devices. At 3:48 p.m., BSO Sodhi asked for passwords for the devices and Mr. Scott gave him a password, saying that it was the same for all devices. As it was, only some of the devices were password protected. At this time, the Applicant became fidgety and began pacing.
[8] BSO Sodhi said he typically starts searching a digital device by looking at the photo gallery and then also examines the downloads, documents, and desktop files. BSO Shortt volunteered to assist in the search, as did BSO Corbeil. BSO Corbeil testified that on cell phones he typically looks in emails, photos, Facebook, WhatsApp, Outlook messenger, and pdf files. Sometimes those photos are only available for a limited time, but in these cases, he would ask the sender to re-send or unlock it, and sometimes “get lucky” and find pornography.
[9] In the ready room where the search of the devices took place, BSO Sodhi first searched the cell phones. He then began to search a Windows 8 surface tablet which was password protected. He made a note of the folder which he eventually opened, which was named “emmaskigold” but failed to note the location of that folder, the specific file name, or the file type. It was unclear whether it was a folder or a sub-folder. Within this folder were files with explicit sexual names which included the pre-teen ages of some individuals. The files contained text stories involving explicit sexual activity with children.
[10] BSO Sodhi now suspected that the Applicant was importing child pornography although there was some uncertainty in his mind because he was not sure that stories could constitute child pornography. Nonetheless, he returned to where the Applicant was in secondary and detained him at 4:43 p.m. on suspicion of smuggling child pornography into Canada. The Applicant was read his rights to counsel and cautioned. The Applicant said he understood and elected not to call duty counsel.
[11] After the formal detention, BSO Sodhi resumed his search with the other officers in the ready room. Soon after, BSO Shortt notified Sodhi that he had discovered child pornography images on the same tablet device. BSO Sodhi saw them and described them as involving pre-pubescent children involved in sexual acts. The Applicant was arrested at about 5:02 p.m. for smuggling child pornography into Canada, handcuffed and again given his right to counsel and cautioned. This time, after being given the secondary caution by BSO Shortt, the Applicant said he wanted to call duty counsel. Eventually Peel police arrived and took custody of the Applicant. BSO Sodhi provided a summary of what had occurred and showed the police what the officers had discovered.
THE SECTION 8 BREACH
[12] Section 99(1)(a) of the Customs Act was held in Pike and Scott to infringe Section 8 of the Charter in relation to digital devices and to be of no force or effect. It follows that the use of this provision by the Canadian Border Security Agency (CBSA) to search Mr. Scott’s digital devices was unlawful and unreasonable under Section 8 of the Charter.
THE SECTION 10 BREACH
[13] Was the Applicant under “detention” within Section 10 of the Charter any time before the child pornography was found? If he was, the officers breached his Section 10(a) and (b) rights by not informing him that he was detained, the reasons for his detention, and by failing to give him his rights to counsel.
[14] At the border, “detention” within Section 10 of the Charter bears little resemblance to detention in ordinary circumstances. All travellers are detained at the border in the literal sense of being unable to leave of their own free will. But detention at the border requires much more than restriction of physical movement.
[15] There are three circumstances which can lead to Section 10 detention at the border: 1. The intrusiveness of the questioning or the actual search may lead to a detention. Once the customs inquiry goes beyond routine, it may extend deep enough into personal privacy as to constitute a detention within Section 10 of the Charter; 2. A detention can be triggered by a customs official posing a question the answer of which may have significant legal consequences. While such a question could also be analyzed under the intrusiveness test, it is preferable to keep this analysis distinct; and 3. A border officer because of his or her suspicions, may decide to go beyond routine questioning and commence a more intrusive inquiry. Even though outwardly the questioning may be routine, the intention on the part of law enforcement if it rises to “particularized suspicion” can amount to a detention: see R. v. Jones (2006), 2006 28086 (ON CA), 211 C.C.C. (3d) 4, 81 O.R. (3d) 481 (Ont.C.A.) at paras. 41-42; R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70, at paras. 20-25.
[16] In the end, these three circumstances must be woven together and viewed cumulatively to determine whether there has been a Section 10 Charter detention. I will start here with the examination of BSO Sodhi’s level of suspicion when questioning and searching the Applicant.
THE LEVEL OF SUSPICION SUPPORTING THE SEARCH
[17] Did law enforcement possess “particularized suspicion” of the Applicant, thereby detaining him within the specialized context of travellers at the Canadian border? Dehghani v. Canada (Minister of Employment & Immigration) 1993 128 (SCC), [1993] 1 S.C.R. 1053, 20 C.R. (4th) 34, 1993 at paras. 36-43; R. v. Jacoy, 1988 13 (SCC), [1988] 2 S.C.R. 548, 45 C.C.C. (3d) 46 at para. 17; Jonesat paras. 41-42; Ceballo, at para. 26. That is the test generally used in the jurisprudence.
[18] A dichotomy has developed between “routine” searches and searches supported by “particularized suspicion”. I held in Pike that the particularized suspicion threshold had been met and that Mr. Pike was detained and should have been given his right to counsel: R. v. Pike, 2022 ONSC 2298 at paras. 15-21. This result rested on the combination of a password request and the strong belief of the Border Services Officer, likely to the reasonable grounds level, that Pike was in possession of child pornography.
[19] This case is different. At the time of the password request, BSO Sodhi had only these “indicators” or grounds with respect to Mr. Scott:
i) He was travelling from a country known for drugs or sex tourism,
ii) He was a single male traveller,
iii) He was a frequent traveller with 19 passages over several years,
iv) Mr. Scott asked to repack the digital devices in the bag which created another indicator,
v) There was some pacing back and forth and some nervousness during the search of the suitcase.
[20] It is somewhat ironic that on the particularized suspicion issue, the usual positions of counsel arguing a Charter infringement are reversed. Crown counsel generally argues in search and seizure cases that there were sufficient grounds to warrant the actions of law enforcement. But Ms. Stevens argued here that the grounds were meagre. Defence counsel usually argues that grounds for a search are woefully insufficient. Ms. Lutes argued here that the grounds were more than ample.
[21] The reason behind this reversal of position is that the stronger the grounds, the greater the likelihood that an individual is detained under the Charter. In my opinion, despite Ms. Lutes’ best efforts, BSO Sodhi’s grounds as listed above, even incorporating the officer’s special expertise and experience in border matters, were utterly generic. While the grounds might point a border officer to further investigation, they clearly did not approach a high threshold of suspicion. Grounds of this very general nature could apply to a very board subset of travellers. Searching based upon them was routine.
[22] The one additional factor which may arguably change that conclusion is the numerous digital devices which were found. There were 13 in all, consisting of cell phones, tablets and hard drives. BSO Sodhi testified that in his experience, this number of devices was very unusual. BSO Sodhi testified that his heart started to race when he saw all these devices. In his mind, the number of devices led to him to focus on child pornography as opposed to drug trafficking or some other contraband.
[23] This was the only circumstance which was at all compelling. The Applicant said that the hard drives contained movies but BSO Sodhi disbelieved him. The movies explanation was, nonetheless, a reasonable possibility which diminished to a slight degree the grounds for suspicion.
[24] The case law overwhelming demonstrates that the border context is crucial in analyzing the detention issue. In Ceballo, Justice Paciocco wrote at para. 21,
The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters, 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA), at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters, at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones, at paras. 20-21, 37; R. v. Sahota, 2009 44280 (Ont. S.C.), at para. 6. (Emphasis added)
[25] In my view, keeping the context firmly in mind and appreciating the high threshold for particularized suspicion suggested in the examples from the pertinent cases, it cannot be said that BSO Sodhi possessed particularized suspicion. If ion scans and x-rays are routine inspections, the grounds possessed by BSO Sodhi were routine as well.
[26] In his evidence, BSO Sodhi consistently denied that he had particularized suspicion. BSO Sodhi used his own peculiar nomenclature to describe the distinction between generalized suspicion and particularized suspicion. As he put it, he had “a suspicion but did not suspect.” This redundant language did not have the clarity a lawyer would use but BSO Sodhi is not a lawyer. As his evidence continued, his meaning became unmistakable. His suspicion was not the highly focussed suspicion that targets a person for deeper investigation.
[27] It is not easy to differentiate particularized suspicion from reasonable suspicion. Reasonable suspicion is a threshold frequently used to control when the government can initiate a search. There is both a subjective and objective component: R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283 at paras. 67-68; R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 at paras. 21, 25, 75-76; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 at paras. 30-32 and R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 at paras. 71-73.
[28] Reasonable suspicion is a relatively low standard for intrusion into personal privacy. It is based on reasonable possibilities not reasonable probabilities: McKenzie at para. 72.
[29] Justice Doherty first brought the phrase “particularized suspicion” into our law in defining “articulable cause” in his reasons in the stop case of R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 501. The phrase appeared in a quote he relied upon from United States v. Cortez, 449 U.S. 411 (U.S. Ariz. 1981) to enunciate the legal requirement for an investigative detention. Many cases followed suit and adopted the phrase including R. v. Clayton 2007 SCC 32, [2007] 2 S.C.R. 725 at para. 82 per Binnie J. concurring and R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 49.
[30] In Jones decided in 2006, Justice Doherty used “particularized suspicion” in relation to search and self-incrimination issues at the border, saying,
…the extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see R. v. Jacoy (1988), 1988 13 (SCC), 45 C.C.C. (3d) 46 (S.C.C.). (Emphasis added)
[31] Justice Paciocco in Ceballo and judges in other border search cases post-Jones used the phrase as well. Whatever its precise content, “particularized suspicion” is functionally distinguished from more generalized suspicion. It marks the line beyond which a suspect is detained and owed his or her rights to counsel and accompanying self-incrimination rights under the Charter.
[32] Particularized suspicion is a unique standard. First, unlike reasonable suspicion or reasonable grounds, it does not contain an objective component. It is purely subjective. It lacks the objective component found in the reasonable suspicion and reasonable grounds thresholds. This objective component ensures that law enforcement is not free to search or arrest without limit. Judicial oversight serves the purpose of regulating state action: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at paras. 14-17.
[33] The purpose of the particularized suspicion threshold is quite different. It marks the line at which government intrusion into individual rights at the border becomes sufficiently focused and targeted as to require individuals to receive Charter protections in the form of being informed why they are being detained and the right to counsel.
[34] Second, compared to other legal thresholds, particularized suspicion is somewhat nebulous. A clue to the meaning of the phrase stems from the use of the word “particularized”. It suggests a suspicion which is specific and detailed. It is a suspicion that has graduated beyond the general to a pointed and narrowly focussed suspicion. Case law is especially important in this area as it is experience and pragmaticism which are crucial in defining this legal standard.
[35] The case law has not attempted to compare reasonable suspicion to particularized suspicion, likely because of their divergent purposes. Reasonable suspicion has been fully explored in the case law, the Supreme Court having discussed it in depth at least four times in the last 15 years, most recently several months ago in Stairs. Particularized suspicion has never been exhaustively considered or defined by the appellate courts. The critical interpretative factor is supplied by the border context and the vital importance of Canadian sovereignty, a bedrock principle going back to R. v. Simmons, (1988), 1988 12 (SCC), 45 C.C.C. (3d) 296 (S.C.C.), at p. 312 and R. v. Monney, (1999), 1999 678 (SCC), 133 C.C.C. (3d) 129 (S.C.C.) at p. 149. It was voiced most recently by Justice Paciocco in the quote above from Ceballo.
[36] This discussion of particularized suspicion and reasonable suspicion is important because of a line of questioning pursued by Ms. Lutes. Ms. Lutes questioned BSO Sodhi about what he would do in Mr. Scott’s case under the current CBSA policy. This new policy was implemented in the wake of the Pike decision which, following Canfield, held that searches of digital devices under Section 99(1)(a) of the Customs Act were unconstitutional.
[37] BSO Sodhi’s evidence was not precise about the specifics of the new policy because he himself has not yet had to implement it. However, BSO Sodhi explained that while before there was previously no threshold for a search of digital devices under Section 99(1)(a) of the Customs Act, the policy directive now requires a threshold be met. It was not entirely clear what that threshold is although it was clearly not the high level of reasonable grounds. It is likely “reasonable suspicion” the standard used in Bill S-7, now at third reading, the legislation intended to fill the lacuna in the Customs Act for searching digital devices originally identified in Canfield:
(https://www.parl.ca/DocumentViewer/en/44-1/bill/S-7/third-reading).
[38] In addition, the present policy requires a superintendent to approve the search of the digital device. And lastly, the search can only occur once the suspect is detained. That is, before such a search, providing the right to counsel and the reasons for the detention is necessary.
[39] BSO Sodhi, when asked by Ms. Lutes, testified that under this new policy, he believed he possessed the grounds necessary to search the Applicant. Ms. Lutes argued that this answer suggested that BSO Sodhi did indeed have particularized suspicion.
[40] This was a persuasive argument but I do not agree. First, the two standards, reasonable suspicion and particularized suspicion, are apples and oranges. They serve different purposes and have different content. That BSO Sodhi may have had reasonable suspicion does not mean that he had particularized suspicion. Second, BSO Sodhi answered without hesitation that under the new standard, he possessed the necessary grounds to search. I am skeptical of this evidence.
[41] On the whole, BSO Sodhi was a credible and reliable witness. However, on this point, it was my impression that he gave a quick, not fully considered answer to justify at an institutional level the search he performed. It was a clear contradiction with his previous evidence that he had only a low level of suspicion. The grounds that he did rely on for the search, in my view, were weak. For these reasons, I put only limited weight in BSO Sodhi’s answer that he had sufficient grounds to search under the new standard.
[42] It may be, because of the intimate privacy concerns inherent in digital devices, an in-depth search of such devices based on reasonable suspicion as contemplated by Bill S-7 ought to be accompanied in every case by the provision to the suspect of his or her Section 10 Charter rights. In my view such a conclusion would be better premised on the intrusiveness test than on particularized suspicion. But that issue need not be definitively decided here because of my conclusion below with respect to the legal significance of the asking the Applicant for and his providing the password.
[43] In the minds of the BSOs in this case, the grounds for search suggested that this was a routine, not a targeted search compelled by particularized suspicion. In my view, on this basis, the Applicant was not detained when the search of his digital devices was commenced.
THE INTRUSIVENESS OF THE SEARCH AND THE LEGAL CONSEQUENCES OF THE PASSWORD REQUEST
[44] BSO Sodhi requested the passwords for the Applicant’s devices at approximately 3:49 p.m. The Applicant was not told that he did not have to give over his password nor was he told that he could not be arrested if he did not. BSO Sodhi had formulated the intention to search all the digital devices as of this point in time. In the event, only some of the devices were password protected. The device on which child pornography was first discovered, a Microsoft Surface tablet, was password protected. The potential child pornography files found were text files with written file names. BSO Sodhi read part of a text file. The discovery was at approximately 4:43 p.m. It was at this point that BSO Sodhi detained the Applicant and gave him his right to counsel and the cautions.
[45] There was no need in Pike to analyze the password issue separately from the poignancy of the grounds to suspect Pike. The latter were very strong and were sufficient in themselves to lead to detention. The two taken together made Pike a relatively easy case. Whether the giving over a password would have led to a finding of detention in itself did not have to be considered.
[46] In R. v. Canfield, 2020 ABCA 383, 395 C.C.C. (3d) 483 (Alta. C.A.) defendant’s leave to appeal refused leave refused, 2021 18037 (S.C.C.) the Alberta Court of Appeal held that the line separating routine searches was crossed in the case of co-Appellant Townsend with the request for and the supply of his devices’ passwords: paras. 134-135. I agree with this conclusion. I would reiterate that the intrusiveness of an extensive search of digital devices, even without the surrendering of a password, may well be sufficient to trigger a Section 10 detention.
CONCLUSION ON THE SECTION 10 DETENTION ISSUE
[47] The evidence with respect to the level of suspicion, the intention of BSO Sodhi and the request and providing of the password must be examined together to arrive at a conclusion whether there was a Section 10 customs detention. In my view, there was a detention based on the conclusion in Canfield with reference to the password issue.
[48] As said in Canfield, giving over the password, which the Applicant had no practical choice but to do, had significant legal consequences (see Pike, para. 20; Grant, para. 30). Also see R v. Gilmore, 2016 ONSC 7602 at paras. 55-56. He ought to have been given his right to counsel before being asked to do so.
[49] Providing the password cannot be equated with providing a key to a suitcase, a routine request at the border. Privacy in a suitcase is fundamentally different than privacy in a digital device. The Supreme Court cases of R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.) at paras. 2, 105-106; R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657 (S.C.C.) at paras. 40-43 and R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621 (S.C.C.) at para. 51 eloquently describe the unprecedented cynosure of personal privacy in a digital device. This was the essence of the Canfield and Pike decisions holding Section 99(1)(a) of the Customs Act to be of no force or effect.
[50] While BSO Sodhi did not have a strong particularized suspicion, he did from the outset intend to search all the devices. A search of a digital device, especially one as wide and free ranging as performed by all three BSOs, is a profound intrusion into personal privacy. The request and provision of the password in order to unlock a digital device is a step with pivotal legal consequence.
[51] The search in its purpose and effect intruded into the heart of the Applicant’s right to privacy. I am of the view that the Applicant was detained under the Charter at the time he provided the password. There was a breach of the Section 10 right to be informed of the offence for which he was detained and to be provided the right to counsel.
SHOULD THE EVIDENCE BE EXCLUDED UNDER SECTION 24(2) OF THE CHARTER?
[52] There were breaches of Section 8 and Section 10 of the Charter. It must be determined under the Grant three-step inquiry and ultimate balancing whether the evidence found on the various digital devices ought to be excluded.
THE SERIOUSNESS OF THE VIOLATIONS
SECTION 8
[53] As held in Canfield (paras. 160-167) and in Pike (para. 31), the Section 8 violation arising from the use of the search power in Section 99(1)(a) of the Customs Act was committed in good faith. The officers could not have known that this provision would later be declared unconstitutional by the courts. Their reliance on it was justifiable.
[54] This case, also similar to Pike, features the aggravating feature of a lack of notetaking to track the travels of the BSOs through the Applicant’s devices. Furthermore, judging from their evidence, this appeared to be a very wide ranging search through the Applicant’s digital devices. The lack of notes, contrary to CBSA policy, makes it difficult to tell with any degree of certainty where they went and what they saw. This deficiency weighs against the government: see Pike, paras. 32-35
THE RIGHT TO BE INFORMED OF THE REASON FOR DETENTION AND THE RIGHT TO COUNSEL
[55] The right to be informed of the reason for detention and the right to counsel should have been given at the time the password was requested and provided. Unlike Pike, however, this breach grows out of the same lack of law enforcement understanding as the Section 8 breach. Situated in full perspective, both the Section 8 breach and the Section 10 breach are a consequence of the highly protected privacy right inherent in a digital device. The officers could not have anticipated this legal position. To them, it was no different than searching a suitcase, a routine step in a customs inspection. Not giving the Section 10(a) and (b) rights was a Charter breach but one committed in good faith.
[56] The situation in Pike was markedly different. The officer had overwhelming grounds to suspect Pike, very likely rising to reasonable grounds. There was indisputable evidence that Pike had been teaching and been in close contact with children but he initially lied and said he had not. This went to the heart of the law enforcement suspicions with regard to the offence they were obviously investigating, child pornography. Pike had a very serious past record for making child pornography. On top of this, there were a good many other factors, including an overabundance of digital devices.
[57] The Border Services Officer in Pike adamantly denied that he had any grounds whatsoever to suspect Pike. This was patently untrue and only augmented the lack of good faith: see paras. 36-46.
[58] That is not this case. In contrast, this circumstance best resembles Canfield. The Court held there,
165 … although the BSO should have informed Mr. Canfield of his right to retain and instruct counsel before he finished searching his cell phone, the BSO was operating under a good faith understanding of the powers afforded under the Customs Act. Additionally, given the absence of bad faith or capricious behavior related to failure to provide access to a lawyer or compel answers to the questions being asked, the seriousness of the Charter-infringing state conduct is on the low end of the spectrum.
[59] I agree with this conclusion. The seriousness of the violation inquiry with reference to both the Section 8 and 10 infringements, propelled by the finding of good faith, leans moderately towards admission of the evidence.
THE IMPACT OF THE VIOLATIONS
[60] The Section 8 violation was serious but was not nearly of the duration of the violation in Pike. Here the contraband was uncovered on the first device after the cell phones were searched; in Pike it was only after having gone through all the devices that contraband was finally found on the last device.
[61] The impact of the Section 10 violation is similar to that in Pike. If the Applicant had been given the right to counsel when the password request was made, the Applicant may have contacted counsel and acted on the advice that he was not required to provide the password, despite being asked by law enforcement for it: Pike, paras. 47-50. The breach had substantial impact on the Applicant.
[62] This inquiry inclines towards exclusion of the evidence.
ADJUDICIATION ON THE MERITS
[63] This factor always inclines toward inclusion of the evidence, at least to some degree. The seriousness of the offence can be allowed only limited weight because it tends to cut both ways: Grant, para. 84. However, from its production to its viewing, child pornography is soul-destroying and evil: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at paras. 82-94. That adds somewhat to this factor’s tendency towards admission.
CONCLUSION
[64] In the recent case of R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147 (S.C.C.) at para. 98, Justice Jamal wrote with respect to final balancing:
,,, balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).
[65] Balancing is not simply a matter of tallying the three Grant inquiries with the majority of up votes dictating the result. Careful weighing of the three inquires and the values underlying them is necessary. In this instance, the key determinant is the good faith of the officers investigating the Applicant. There was no systemic institutional failing in this case. The long term reputation of the administration of justice is not implicated in a major way. While the negative impact upon the Applicant was significant, in my view the minimal seriousness of the violations and the strong interest in adjudicating the case on the merits must, taken together, prevail. I would rule the evidence admissible.
[66] The Charter application is dismissed.
D.E. HARRIS J.
Released: August 2, 2022