Court File and Parties

Court File No.: CR-23-27 Date: 2024 01 12 Superior Court of Justice – Ontario

Between: His Majesty The King And: M.C., Defendant

Before: André J.

Counsel: M. Thomaidis, for the Crown A Boni, J. Kushnir, for the Defendant

Heard: September 18, 19, 21 and October 14, 2020.

Decision on Application Under Section 8 of the Charter of Rights and Freedoms

[1] Mr. M.C. seeks an order that Canada Border Services Officer (BSO) Shortt violated his s.8 and s.10 Charter Rights and that all evidence that flowed from the breaches must be excluded under s. 24 (2) of the Charter. The Crown submits that no such violations occurred and that the application should be dismissed. The Crown also brings an application for an order that Mr. M.C.’s video-taped statement to the police was voluntary and did not violate Mr. M.C.’s s.10 Charter Rights as his counsel submits.

Background Facts

[2] Mr. M.C. arrived at the Pearson International Airport (“Pearson”) on July 19, 2018. He was the subject of a lookout which required a Border Services Officer (“BSO”) to “thoroughly search” all electronic devices in Mr. M.C.’s possessions and to contact a Toronto Police Officer if the search revealed the presence of child pornography. BSO Shortt testified that his search of Mr. M.C.’s hand luggage was routine. He made it clear that the “lookout” required him to examine Mr. M.C.’s I-Phone and laptop. When asked by the court whether he felt compelled to search these items, the officer replied, “It’s my job”. [3] In the secondary inspection area of the airport, BSO Shortt asked Mr. M.C. for the password to his phone. Mr. M.C. provided the information. The officer searched the cellphone but found no offensive material. He also searched Mr. C’s laptop and found a number of files with child pornography. He then arrested Mr. M.C. for violating s.99 of The Customs Act. [4] Following the arrest, the officer read Mr. M.C. his Charter Rights and then proceeded to call duty counsel. He testified that he always did so. [5] Mr. M.C. testified that he repeatedly told BSO Shortt that his uncle was a criminal lawyer and he wished to speak to him. Officer Shortt testified that he made no note of Mr. M.C. wanting to do that. He testified that his policy was to call duty counsel right away. BSO Adebayo also testified that “we don’t offer any other legal services other than duty counsel”. Mr. M.C. testified that he told both officers his uncles name and city where he practised and that he asked BSO Shortt to allow him to access his cellphone to obtain his uncle’s number but that he denied his request.

Position of the Applicant

[6] Mr. Boni submits the following: A. Despite his evidence to the contrary, BSO Shortt formed a particularized suspicion that Mr. M.C. had child pornography on his electronic device or devices on account of the lookout. As a result, he should have cautioned Mr. M.C. before he searched his cellphone and MacBook precisely because he had detained Mr. M.C.. The officer’s failure to do so violated Mr. M.C.’s section 8 Charter Rights. B. I am bound by the Supreme Court of Canada decision in R v. Sullivan, 2022 SCC 19 at para. 45 and R v. Canfield, 2020 ABCA 383, 395 (ccc) (3d) 483 leave refused, and by R v. Pike, 2022 ONSC 2298 at paras 19-20, that s. 99(1) of the Customs Act is unconstitutional. C. The scope and manner of the search of Mr. M.C.’s electronic devices contravened CBSA policy and constituted a standalone breach of sec. 8.

Position of the Crown

[7] The Crown submits that:

1. A. Mr. M.C. was administratively rather than constitutionally detained in that: i. BSO Shortt was doing a common routine search because of the lookout, ii. The officer regularly conducted such searches and, he simply acted on the de minimise information of the lookout and; iii. He had no reason to suspect Mr. M.C. of any wrongdoing at the time of the search. B. The simple receipt of a lookout does not create a constitutional detention. Such a proposition has no basis in law; C. The fact that Mr. M.C. is loquacious, rambling and appeared nervous while being administratively detained did not form the basis for BSO Shortt to “impart to Mr. M.C.” any additional constitutional obligations. D. Mr. M.C. testified that he told BSO Shortt that “I gave you my code because I have nothing to hide”. To that extent, he did not provide the passcode out of a subjective sense of compulsion by the state. E. Numerous courts have held that requests for passwords do not violate section 7 of the Charter, in the context of routine border searches.
2. If there was a constitutional detention of Mr. M.C., the case of Pike and Scott applies.

Analysis

[8] The border search of Mr. M.C. on July 19, 2018 raises the following issues: a) Did BSO Shortt violate Mr. M.C.’s s.8 Charter Rights? b) Did the BSO officers violate Mr. M.C.’s s.10 Charter Rights?

The Law

[9] Section 99 (1)(a) of the Customs Act provide that: An officer may, a. At any time up to the time of release examine any goods that have been imported and open or cause to be opened any package or container or containers of imported goods and take samples of imported goods in reasonable amounts. [10] In R v. Canfield, the Alberta Court of Appeal held that s.99(1)(a) of the Customs Act was unconstitutional as it applies to personal electronic devices given a person’s privacy interests in the content of their cellphones. The court held that despite the low expectation of privacy when crossing international borders, the significant personal information on electronic devices dictate that the search of these devices should not be treated differently from search and seizure of a bodily sample or a strip search (at para.75). [11] A similar decision was reached by Harris J. in R v. Pike, 2022 ONSC 2298 which is currently under appeal at the Court of Appeal. [12] In R v. Benedicto, 2023 SKPC 11, Beaton J. followed the Canfield and Pike decisions on the ground that the Supreme Court of Canada’s decision in R v. Simmons, [1988] 2 S.C.R 495 which concluded that travellers have a low expectation of privacy when crossing an international border, did not consider the heightened privacy interests associated with electronic devices. At para. 70, the court adopted the reasoning in Canfield and found s.99(1)(a) to be unconstitutional as it relates to personal electronic devices in that it was contrary to s.8 of the Charter and was not saved by s.1 of the Charter. [13] In R v. Jones (2006), 2006 ONCA 678, 81 OR (3d) 481, the Ontario Court of Appeal confirmed that the routine questioning or search of a traveller does not give rise to a constitutional detention of the traveller. However, Doherty J. noted at para. 42 that if the BSO “decides, because of some significantly strong particularized suspicion, to go beyond routine questions of a person and engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning”. [14] In R v. Ceballo, 2021 ONCA 870, the Ontario Court of Appeal notes at para.21-22; [15] In Benedicto, Beaton J. at para.83, gave examples to illustrate how the line between routine questions and detentions, “is not always clear”. [16] By contrast, searches conducted pursuant to s.98 of the Customs Act, including strip searches, body cavity searches, and “bedpan vigils”, are intrusive and will trigger a finding or detention: R v. Simmons, [1988] 2 S.C.R 495, at p.521; R v. Monney, [1999] 1 S.C.R 652. Of more immediate relevance to the instant case, questions cross the line become intrusive when they amount to a coercive or adversarial interrogation, contain improper inducement, or exert unfair pressure: Jones, at paras. 41-32; R v. Darlington, 2011 ONSC 2776, at paras.75,79.

1. Questioning a traveller about content of luggage, searching luggage by hand and X-ray, and cutting a bag located in the luggage to find cocaine did not constitute detention: Peters.
2. A traveller became detained upon being asked for a password for a computer when the BSO has strong particularized suspicion that the traveller was in possession of child pornography: R v. Pike, 2022 ONSC 2298. That strong particularized suspicion based on the facts that Mr. Pike had previously been sentenced to 15 years in jail for making child pornography, his teaching licence had been revoked in Canada, he was returning from countries notorious for sexual tourism, he had lied by saying he had been teaching adults rather than children, he was a single male travelling alone, and he had 14 personal electronic devices with him.
3. A traveller became detained when, after a search of his luggage disclosed sex aids and he was asked whether he possessed child pornography, he answered in the affirmative. The Court held that the screening had moved beyond routine, not when the question was asked, but after Mr. Canfield answered the question in the affirmative and showed BSO an image of child pornography. At that point Mr. Canfield became the subject of a particularized suspicion and subjected to a more intrusive search: Canfield.
4. After a search of luggage disclosed 12 electronic devices including a laptop computer, his mannerisms changed during questioning, and legal pornographic images were found on his cellphone, the traveller became detained when he was asked to provide his password for the computer since he was now subject of “particularized suspicion”: Canfield (re: co-appellant Townsend).
5. An individual seeking admission as a refugee without a vias was not detained when he was asked for his passcodes for electronic devices to search for evidence of inadmissibility, including on criminality, identity and security grounds. The BSO had no indicators of the refugee’s inadmissibility of than his country of origin: R v. Al Askari, 2021 ABCA 204, 406 CCC(3d) 503 [Al Askari]
6. A thorough search of a traveller’s vehicle was routine screening, and the traveller was not detained until cocaine was found in a hidden compartment: R v. Sehkon, 2009 BCCA 187, 67 CR (6th) 257
7. A traveller was detained when he was asked for his password for five electronic devices and eight hard drives even though the BSO did not have a strong particularized suspicion. The Court, relying on Canfield, found detention because the request and provision of the password had significant legal consequences for the traveller: R v. Scott, 2022 ONSC 4496 [Scott].

Application of the Law to the Facts

[17] Critical to a determination of whether BSO Shortt breached Mr. M.C.’s s. 8 Charter Rights is a finding that, based on Ceballo, he had a particularized suspicion that Mr. M.C. was in possession of child pornography when he searched his devices. Officer Shortt went to great lengths in his testimony in chief to show that even after seeing the computer generated card (PIK) which showed that Mr. M.C. was a lookout for child pornography, he conducted a routine inspection of Mr. M.C. and had no suspicion that Mr. M.C. was in possession of child pornography. [18] He testified that he was doing a common, routine search of Mr. M.C.’s travelling bags because of the lookout. He regularly conducted searches after receiving a lookout and that the vast majority of such lookouts led to nothing. He had no reason to suspect Mr. M.C. of any contravention of the Customs Act when he inspected Mr. M.C.’s hand luggage and electronic devices. He testified that for him, a lookout is no different than any other examination. He reiterated that he had no suspicions when he searched Mr. M.C.’s possessions on July 19, 2018. Finally, he testified that the lookout was not the only “indicator” which prompted him to search Mr. M.C.’s luggage and electronic devices. He relied on others such as seeing Mr. M.C. pacing backwards and forwards and being talkative during the investigation. [19] Despite his testimony, I seriously doubt the veracity of BSO Shortt’s version of events. First, he agreed that the lookout notice he saw indicated that Mr. M.C. was a lookout for prohibited pornography involving children. It stated, “If encountered please conduct thorough examination of any digital storage devices”. The Crown rightly notes that the receipt of a “PIK” by a customs officer does not, in and of itself, create a constitutional detention. What could result in a detention are the actions of a BSO officer after he or she becomes aware of the existence of a lookout notice. [20] With respect to this issue, BSO Shortt testified in cross-examination that “I felt I was directed to search any electronic devices” in Mr. M.C.’s possession. He was focused on searching for child pornography. This is borne out of the fact that he found a significant amount of undeclared cash in Mr. M.C.’s luggage, yet BSO Shortt simply placed it on the counter and showed no interest in it, until after he located child pornography in Mr. M.C.’s MacBook. He asked Mr. M.C. “what’s on your laptop that you don’t want me to see”, yet denied that he posed the question because of a particularized suspicion he had. At the very minimum, the officer should have cautioned Mr. M.C. and read him his s.1 Charter Rights either before asking the question or before Mr. M.C. replied “porn”. [21] BSO Shortt also conceded that during the Discovery hearing in this matter on April 5, 2022, he testified that his examination of the electronic devices was not part of the everyday examination, but because the lookout “specifically requested that I do that, that is why I did it on the back of the PIK card”. [22] The customs officer also testified at the Discovery hearing that his intent was to search Mr. M.C.’s cellphone and laptop “as directed”. Additionally, BSO Shortt testified at the hearing that because this was a lookout, he was searching at a “high level”. He also testified during the hearing that “it was not a general examination”. [23] When confronted with his testimony during the Discovery hearing, BSO Shortt stated, “that was the truth”. Finally, the officer testified under cross-examination in this proceeding that the lookout was for “a highly specialized search”. [24] Additionally, BSO Shortt’s testimony, is in many respects, at odds with video evidence. He said that one of the indicators he observed was Mr. M.C. pacing backwards and forwards. The video does not confirm this. He also testified that Mr. M.C. was agitated and responded with hostility. He made no notation of that in his notes. In my view, the officer’s reference to “indicators” other than the lookout amounts to nothing more than an ex-post facto attempt to prove that he conducted a routine inspection of Mr. M.C.. [25] Based on the above, I do not believe, contrary to BSO Shortt’s testimony, that this was a routine investigation of a traveller and that BSO Shortt did not have a particularized suspicion that Mr. M.C. had child pornography in his possession. I find as fact that he did. He conducted a focused search of Mr. M.C.’s electronic devices for child pornography. He did so based on a particularized suspicion he had formed. [26] As a result, he was obligated to advise Mr. M.C. that he was detained and to caution him. His failure to do so constituted a breach of Mr. M.C.’s s.8 Charter Rights.

A. Did BSO Shortt and BSO Adebayo and Constable Imber violate Mr. M.C.’s s.10 Charter Rights?

[27] Mr. M.C.’s counsel submits the following: a) The customs officers violated Mr. M.C.’s s.10(b) rights by failing to contact Mr. M.C.’s counsel or allowing him to access his uncle’s number on his cellphone. b) Cst. Shortt failed in his duty to hold off questioning of Mr. M.C. until after his consultations with counsel. c) Detective Constable Imber did not read Mr. M.C. his rights to counsel because he did not have a copy in his notebook.

B. Did BSO Shortt violate Mr. M.C. s.10 Charter Rights?

[28] In my opinion he did. The officer had a particularized suspicion, before arresting Mr. M.C., that Mr. M.C. had child pornography in his possession. He pressed on with his search of Mr. M.C.’s possessions without cautioning him or advising him of his rights to speak to counsel. He only read Mr. M.C. his rights to counsel after he had located child pornography on Mr. M.C.’s MacBook. [29] Furthermore, I find that officers Shortt and Adebayo violated Mr. M.C.’s s.10 Charter Rights after they arrested him. BSO Shortt testified that following the arrest he asked Mr. M.C. if he wanted to speak to counsel. Mr. M.C. answered “yes”. The officer could not recall if there was a discussion about calling a particular lawyer. The officer made no notes of any such discussion; indeed, he made no notes of the extensive verbal interaction he had with Mr. M.C. which was captured by video surveillance of the secondary area where Mr. M.C. was inspected. [30] Mr. M.C. spoke to duty counsel for ten minutes. BSO Shortt testified that he then asked Mr. M.C. if he was satisfied with the advice from duty counsel. Mr. M.C. replied “yes”. [31] Mr. M.C. testified that he repeatedly asked BSO Shortt to speak to his uncle who is a criminal lawyer, but the customs officer denied his request. He also testified that he did not know that the person he spoke to was a lawyer. [32] I disbelieve Mr. M.C.’s testimony that he did not know that duty counsel was a lawyer for the following reason. When asked by Constable Imber if he had a chance to speak to a lawyer, he replied: “Well, I just called the one yesterday from the one they called me, but my uncle’s a criminal lawyer, I think but I don’t wanna call my family”. [33] That said, I find, on a balance of probabilities, that Mr. M.C. did ask to speak to his uncle, a criminal lawyer. Based on the video surveillance evidence, there was a somewhat prolonged and agitated conversation between BSO Shortt and Mr. M.C. at the secondary area after his arrest. The officer made no notes of what was said at the time. This failure, in my view, weighs against his credibility on this issue. [34] I am also concerned about the officer’s testimony regarding a detainee’s right to consult with counsel of their choice. BSO Shortt testified in examination in chief that he called duty counsel and that their policy was to call duty counsel “right away”. He testified that he presumed that “speed” of access was more important than counsel of choice. He testified that he conducted no search for the name of Mitchell Rosenblatt, the name of counsel given by Mr. M.C.. Neither did he call or tried to call Mr. Rosenblatt while waiting for duty counsel to call back. Confronted with the suggestion that he denied Mr. M.C. access to his cellphone to call his uncle, he replied, “I don’t believe that happened”. [35] Furthermore, BSO Adebayo testified, regarding the call to duty counsel, that “that’s the norm. That’s the system we have in place”. The officer noted that Mr. M.C. stated that his uncle was a lawyer. He testified under cross examination that Mr. M.C. requested to speak to “counsel”. He conceded that he testified at the April 6, 2022 Discovery hearing that “he requested to speak to a lawyer”. [36] In my respectful view, this policy to restrict a detainee’s right to consult with counsel of his choice amounts to a violation of Mr. M.C.’s s.10(b) right to retain and instruct counsel without delay and to be informed of that right. A policy that restricts a person arrested at an international border to only speak to duty counsel constitutes a violation of s.10(b) of the Charter. To that extent, all utterances attributed to Mr. M.C. by both customs officers are inadmissible.

C. Did Constable Imber violate Mr. M.C.’s s.10 Charter Rights?

[37] Mr. M.C.’s counsel submits that he did. He submits that, a) Constable Imber failed to adequately caution Mr. M.C. on the accessing investigation which contributed to Mr. M.C. providing incriminating evidence to the officer. b) Mr. M.C. testified that he did not know that the evidence he was giving Officer Imber had anything to do with a historical investigation into online access of child pornography. Mr. M.C.’s unchallenged testimony was that he understood accessing to mean accessing the files he was told were found on his computer. [38] I disagree that the police officer violated Mr. C’s s.10 Charter Rights for the following reasons: [39] First, Constable Amyn Lakha, who received custody of Mr. M.C. for BSO Shortt, testified that he arrested Mr. M.C. for possession of child pornography and then read his rights to counsel and caution. Mr. M.C. indicated that he understood. He was also read a secondary caution which he stated that he understood. Constable Lakha asked Mr. M.C. if he wished to call a lawyer now. Mr. M.C. declined to do so. Constable Lakha testified that Mr. M.C. was compliant and responsive. [40] Constable Brad Imber testified that he interviewed Mr. M.C. on July 19, 2018 at the airport. A video of the interview was played during this hearing. The officer read Mr. M.C. his rights to counsel and told him of the charges of possession of and importation of child pornography. [41] The officer also told Mr. M.C. that he was going to be cautioned for a third offence, accessing child pornography, but that he would not be charged for that. At one point in the interview the officer told Mr. M.C. that he needed to make sure that he had a chance to speak to counsel. Mr. M.C. agreed that he had spoken to counsel already. He then advised that maybe he should call his uncle, but he did not know if he should do so “because I don’t wanna call my family, because I don’t want them to know I’m here”. When offered a chance to speak to a lawyer for a second time, Mr. M.C. asked if he could make that decision later. Constable Imber then advised him that, if he changed his mind anytime, “we can work with that, right?”. The officer late cautioned Mr. M.C. that whatever he said could be used against him at a trial. Mr. M.C. replied that he understood. The officer also told Mr. M.C. that “if you have spoken to another officer, whatever that conversation was, I don’t want to influence you in talking to me”. On at least two occasions during the interview Mr. M.C. told Constable Imber that he did not want to speak to a lawyer again; “I just want to speak to you guys”, he stated. [42] In my view, Constable Imber adequately cautioned Mr. M.C. about the implications of speaking to the police. Mr. M.C. did not wish to call his uncle because he did not want his family to know about his situation. While Constable Imber did not explain to Mr. M.C. what accessing pornography meant, there was no indication that Mr. M.C. did not know it meant. On the contrary, his utterances to the officer reveal that he clearly knew what the phrase meant. I therefore, find that Constable Imber did not violate Mr. M.C.’s s.10 Charter Rights.

D. Was Mr. M.C.’s statement to Constable Imber Voluntary?

[43] Mr. Boni submits, for the following reasons, that it was not: A) Mr. M.C. testified that Constable Gale, Constable Lakha’s partner, advised him to be cooperative, not to be a “pain in the ass” in the sense of speaking to counsel and providing confidential information as an informant. This inducement, Mr. Boni contends, was in Mr. M.C.’s mind throughout the interview. B) The statement was involuntary because of the oppressive conditions Mr. M.C. experienced prior to the interview. These include: i. His agitation during his interaction with BSO Shortt, ii. His lack of knowledge that duty counsel was a lawyer, iii. At the Peel Regional Police station, Mr. M.C. was placed in a cell filled with bugs and had to be extricated from the call as a result. iv. Mr. M.C. did not receive food until after 9:00am many hours after landing in Canada. v. Mr. M.C. complained about water leaking from his toilet in the bullpen cell. He was sleep deprived because of the dripping noise, bright lights and cold concrete bench while he turned to sleep. [44] Mr. M.C.’s frame of mind was gravely impacted by the entirety of his ordeal.

Analysis

[45] In my view, the Crown has met its burden of proving beyond a reasonable doubt that Mr. M.C.’s statement was voluntary. I say so for the following reasons: [46] There is no evidence that any border service officer or officers threatened, coerced or offered any inducements or made any promises to Mr. M.C. Constable Imber told him that irrespective of anything he might say, he would still be held for a bail hearing. When the officer asked Mr. M.C. whether he needed anything, Mr. M.C. asked for a cigarette rather than something to eat, “that’s all I want”, he added. [47] Mr. M.C. was given a cigarette and bathroom break during the interview. He never complained of fatigue or discomfort. The officer cautioned him that the interview would not make things better for him. At one point during the interview, Constable Imber told Mr. M.C., “I will do everything I can”, after Mr. M.C. said that he did not wish to be “that criminal guy”. Given that Constable Imber said to Mr. M.C. earlier in the interview, I accept his testimony that this was not an inducement to help Mr. M.C. with the charges he faced. [48] Defence counsel submits that Mr. M.C.’s statement was elicited in an oppressive atmosphere which vitiated the voluntariness of his statement. [49] In R v. Oickle, [2000] 2 SCR 3, 2000 SCC 38, The Supreme Court of Canada noted at para. 60 that: “Without trying to radicate all the factors that can create an atmosphere of oppression, such factors depriving the suspect of food, clothing, water, sleep, or medical attention; denying access to counsel, and excessively aggressive, intimidating questioning for a prolonged period of time”. [50] Mr. M.C. was not denied food, clothing, medical attention or access to counsel. His counsels submitted that he was subjected to sleep deprivation but other than experiencing discomfort in the bullpen there is no evidence that he was intentionally deprived of any sleep. The interview was anything but aggressive. There is simply no evidence that the factors referred to in Oickle created an atmosphere of oppression. [51] Mr. M.C. testified that Constable Gale offered him an inducement if he agreed to be a confidential informant. Constable Lakha, who was in the cruiser when this conversation is alleged to have taken place, had no recollection of Constable Gale telling Mr. M.C. that he should cooperate with the interviewing offer. Mr. M.C. also declined an opportunity offered by Constable Imber to agree to the police using his identity to go online on the zoom website to identify persons involved in child pornography. [52] For the above reasons, I find that Mr. M.C.’s statement to Constable Imber was voluntary.

E. Was the search warrant which authorized the search of Mr. M.C.’s devices by the Peel Regional Police unlawful?

[53] Given my finding that the search of the laptop was unlawful, and that utterances attributed to Mr. M.C., particularly by BSO Adebayo were inadmissible because of a breach of Mr. M.C.’s s.10 Charter Rights, this information should be excused from the information to obtain, prepared by the affiant, to seek a warrant to search the cellphone. To that extent, the search of Mr. M.C.’s electronic devices by the Peel Regional Police Services is invalid.

F. Should the evidence recovered from Mr. M.C.’s MacBook be excluded from the trial?

[54] In R v. Grant, [2009] 2 SCR 353, 2009 SCC 32, the Supreme Court of Canada set out the following Tripartite test for the exclusion of evidence under s.24(2): a) The seriousness of the Charter infringing conduct, b) The impact of the breach or breaches on the Charter protected rights of Mr. M.C., and c) Society’s interests in the adjudication of the charges on the merits.

Seriousness of the Charter Infringing Conduct

[55] The Crown submits that the impugned conduct of the state agent customs officer is not serious given that they acted in accordance with the existing law and subsequently sought judicial authorizations to search Mr. M.C.’s electronic devices. [56] However, BSO Shortt’s actions constituted a serious violation of his cellphone and laptop computer. The officer’s actions reflected an unwavering intention to search these devices for child pornography. He paid scant attention to the large sums of undeclared money in Mr. M.C.’s possession and his two Rolex watches and exclusively his intention on searching the cellphone and laptop. He sought to achieve this goal without any thought to reading Mr. M.C. a caution on his rights to counsel as he was required to do after forming a particularized suspicion that Mr. M.C. had child pornography on his cellphone or laptop. Furthermore, the officer cynically testified that his inspections of Mr. M.C.’s property was a routine inspection despite the fact that he had stated otherwise in a previous proceeding. [57] Second, the two customs officers violated Mr. M.C.’s s. 10 Charter Rights by their rigid adherence to a policy which they testified, required them to only contact duty counsel even if a detainee expressed an interest to speaking to a private lawyer. [58] Both customs officers intimated that the policy was to call duty counsel right away, BSO Adebayo testified that Mr. M.C. requested to speak to “counsel” which he continued to be duty counsel. When confronted with his testimony at a Discovery hearing on April 6, 2022, that Mr. M.C. requested to speak to a “lawyer”, he testified that he used “duty counsel” and the word “lawyer” interchangeably. Not surprisingly, neither customs officer made any effort to inquire whether Mr. M.C. wished to speak to a private lawyer. [59] In my view, this policy cannot take precedence over a traveller’s rights to speak to counsel of his or her choice. The Canadian International border is not a Charter free zone. The rights of persons must be respected. Mr. M.C.’s Charter Rights were not, in this case. [60] In my view, this factor favours exclusion of the evidence.

Impact of the State Infringing Conduct

[61] In my view, the impact of the officer’s conduct was serious. This conduct led to the search by BSO Shortt of Mr. M.C.’s electronic devices and the location of the offensive material on his laptop. Adequately, the impact of the officer’s breach of Mr. M.C.’s s.8 and s.10 Charter Rights were attenuated by the fact that Mr. M.C. was allowed to speak to duty counsel after his arrest. However, he did so after being unconditionally detained. Whether Mr. M.C. provided his passcode to his laptop voluntarily or otherwise, his constitutional right against incrimination was violated. The fact that Constable Imber repeatedly offered to Mr. M.C. to allow him to speak to counsel a second time does not “cure” this violation. [62] For the above reasons, this factor favours exclusion.

Society's Interests in the Adjudication of the Charges on Their Merits

[63] Arguably, this factor favours inclusion of the evidence given society’s interest in ensuring that serious charges such as importing child pornography as adjudicated on their merits. Additionally, the evidence was discovered following a judicially authorized search warrant, which, however, was constitutionally invalid. To that extent, the search warrant is the fruit of a poisoned tree; the end product of an investigation which contained multiple violations of Mr. M.C.’s constitutional rights. Canadians place a great premium on the rule of law and, frown upon discovery and evidence by constitutionally tainted means. An ordinary person, reasonably apprised of the rights enshrined in our Charter of Rights and Freedoms will not countenance a clear violation of a person’s rights to obtain evidence against him or her. To that extent, this factor also favours exclusion.

Conclusion

[64] The evidence recovered from Mr. M.C.’s electronic devices are excluded from his trial.

André J.

Released: January 12, 2024