Ontario Superior Court of Justice
Court File No.: CR-20-50000395
Date: January 21, 2025
Between:
His Majesty the King
and
Kerwin Sonny
Erin Pancer and Cindy Nadler, for the Crown
Alan Lobel, Neil Fitzmaurice and Hubert Gonzalez, for the Defendant
Heard: April 8-11, 29, June 14, July 3, October 10, November 1, 12, and December 13, 2024
P.T. Sugunasiri
Decision on Constitutional Challenge to s. 16(3) of IRPA and Remedies under s. 52 of the Constitution Act and s. 24 of the Charter
Overview
[1] On October 18, 2019, Talius James, an American citizen, attempted to cross into Canada at the Rainbow Bridge with three firearms and accompanying magazines. As a result of a Toronto Police smuggling investigation and a Canada Border Services firearms lookout, Mr. James was sent to secondary search. Border Services Officers asked Mr. James why he was coming to Canada. He stated it was to gamble. He did not know anyone other than some people at the gambling establishment. The Border Services Officers (“BSO”) conducted a preliminary search of the vehicle where they located two ringing cellphones. By this time Mr. James was in the waiting room of the secondary search building. The officers asked Mr. James for his cellphone passwords, which he ultimately gave. The search of WhatsApp messages on one phone revealed photographs and messages about the buying and selling of marijuana and firearms. K9 Officer Molnar, with his dog, Myrtle, also located firearms secreted in the vehicle and Mr. James was arrested.
[2] The Toronto Police Service (“TPS”) was granted a search warrant for Mr. James’ two phones. Through the phone downloads, officers learned that Mr. Sonny was to be the recipient of the firearms that Mr. James was bringing across the border. As a result, the TPS charged Mr. Sonny with conspiracy to smuggle firearms.
[3] The authority to search cellphones is found in s. 99(1)(a) of the Customs Act and s. 16(3) of the Immigration and Refugee Protection Act (“IRPA”). The provision engaged in this case is s. 16(3) of IRPA which deals with the admissibility of people into Canada. Mr. Sonny challenged the constitutionality of the section. The Federal Crown declined to defend its legislation and instead left it to the Provincial Crown to respond. In August of this year, Justice Tulloch upheld Justice Harris’s decision in R. v. Pike, 2022 ONSC 2297, who struck down s. 99(1)(a) of the Customs Act as far as it permits searches of digital devices at the border. [1]
[4] In light of Pike, the Provincial Crown conceded on behalf of the Federal Crown that s. 16(3) of IRPA is unconstitutional as far as it permits BSOs to search digital devices without any threshold.
[5] There are four remaining issues. I gave an oral ruling on November 1, 2024 indicating that Mr. Sonny had standing to challenge s. 16(3) of IRPA, declaring the provision null and void as against him as far as it permits searches of digital devices, but declining to exclude the evidence. These are my brief written reasons.
Issues
[6] First, even if the Crown concedes that s. 16(3) of IRPA is unconstitutional, does Mr. Sonny have standing to challenge it? Yes.
[7] Second, does Mr. Sonny have standing to claim remedies for alleged violations of Mr. James’ right to counsel under s. 10 of the Charter? No.
[8] Third, should the court exclude the text messages and photos discovered on Mr. James’ phone that found Mr. Sonny’s charges under s. 24(2) of the Charter? No.
[9] Fourth, what remedy should the court impose to address the unconstitutionality of s. 16(3)? This issue was adjourned to December 13, 2024 to allow the Federal Crown to make further submissions. As such, the declaration of unconstitutionality currently applies only to Mr. Sonny. The decision on general remedy will be released separately.
Analysis
Mr. Sonny has standing to challenge the constitutionality of s. 16(3) of IRPA
[10] The starting point of a standing analysis is the proposition that only rights holders can seek redress for rights violations. [2] The BSO stopped Mr. James at the border, not Mr. Sonny. They searched two phones, only one of which contained the subject message exchange with Mr. Sonny. Section 8 of the Charter states, “Everyone has the right to be secure against unreasonable search or seizure.” Mr. Sonny argues that his s. 8 Charter rights were engaged at that border stop because he had a reasonable expectation of privacy in the text exchange with Mr. James. As such, he has standing to argue that he was subject to unreasonable search and seizure because the law that allowed border officers to search Mr. James’ phone is unconstitutional. I agree.
[11] Mr. James’ phones were discovered when they started ringing during the initial stages of the officers’ searching his vehicle. BSO Leila asked him for his password. At first Mr. James gave a fake password, then he provided the real password. Once the officers were able to unlock the phones, they found photographs and messages that discussed buying and selling marijuana and firearms. Toronto Police obtained search warrants for the phones and determined that Mr. Sonny was to be the recipient of the firearms that Mr. James was found to be bringing across the border.
[12] Both R. v. Marakah, 2017 SCC 59 and the companion action R. v. Jones, 2017 SCC 60 support the conclusion that the sender of text messages can have a reasonable expectation of privacy over the contents of the messages stored on the phone of the recipient such that s. 8 of the Charter is engaged when those messages are searched by a state actor. [3]
[13] I accept Mr. Sonny’s position as set out in paragraphs 12-31 of his factum. I find that he had a reasonable expectation of privacy over his text exchange with Mr. James such that his s. 8 Charter rights were engaged when the border officers searched Mr. James’ phone and found a text exchange between them.
[14] The Crown argues that Mr. Sonny was not at the border, nor was it his vehicle that was searched. As such he has no standing to challenge s. 16(3) of IRPA. This is not the issue. The question is whether Mr. Sonny had a reasonable expectation of privacy over the thing that was searched such that his s. 8 rights were engaged. The thing searched is not limited to Mr. James’ phone. As found in Marakah, in the context of the search of text conversations, the search is not of the phone itself but of the electronic conversation between the sender and the recipient, which in this case were Mr. Sonny and Mr. James. [4]
[15] The Crown further argued that simply having a few text messages on Mr. James’ phone cannot give Mr. Sonny standing; otherwise, anyone in contact with Mr. James through his phone would have standing to challenge IRPA. This misconstrues the basis of Mr. Sonny’s standing. Mr. Sonny has standing to challenge s. 16(3) of IRPA because he is a s. 8 rights holder. Not all people who communicate with Mr. James are necessarily s. 8 rights holders. In Marakah, Chief Justice McLachlin stated that to claim s. 8 protection, claimants must establish that they had a direct interest in the subject matter of the search and had a subjective expectation of privacy that was objectively reasonable. Many conversations could be weeded out by this latter requirement – whether the person’s subjective expectation is objectively reasonable. This is determined by considering, amongst other things, whether the informational content of the electronic conversation reveals details of the claimant’s lifestyle or information of a biographical nature. [5] As in Marakah, Mr. Sonny’s exchange with Mr. James reveals details of Mr. Sonny’s lifestyle – namely that he was engaged in a criminal enterprise.
[16] Since Mr. Sonny’s s. 8 Charter rights were engaged when the BSOs searched Mr. James’ phone and the text messages between him and Mr. Sonny, he is a s. 8 right-holder who has standing to challenge the constitutionality of s. 16(3) of IRPA.
[17] The Crown has conceded that s. 16(3) is unconstitutional. Mr. Sonny can avail himself of two Charter remedies: one pursuant to s. 52(1) seeking a declaration of invalidity of the provision as against him and the second pursuant to s. 24(2) to exclude the message and photos. The Crown does not oppose the declaration of invalidity of s. 16(3) of IRPA as far as it permits the search of electronic devices, as against Mr. Sonny. It does oppose excluding the evidence.
Mr. Sonny cannot claim remedies for any violations of Mr. James’ s. 10(b) right to counsel
[18] Mr. Sonny argues that because prior to arriving at the Rainbow Bridge there was a lookout for Mr. James arising from a police investigation, Mr. James was detained when he arrived at the primary inspection booth. If he was not detained there, then he was detained upon arriving at secondary search and at the very latest when BSO Leila asked him for the passwords for his phones. Regardless of which point in time the officers detained Mr. James, Mr. Sonny argues that Mr. James was not given his right to counsel contrary to s. 10(b) of the Charter. He argues that this violation, along with the violation of his s. 8 right, forms the basis of excluding the evidence of the text messages and photos pursuant to s. 24(2) of the Charter.
[19] I am not persuaded that alleged violations of Mr. James’ right to counsel lead to a remedy for Mr. Sonny. Mr. Sonny argues that had Mr. James been afforded his right to counsel, he may not have given his password and messages implicating Mr. Sonny would not have been found.
[20] Mr. Sonny has not provided any argument nor first principles analysis that support why this alleged violation gives Mr. Sonny a Charter remedy. If the argument is that but for the violation, the police would not have found the messages, this is not necessarily true. If Mr. James had been afforded his right to counsel before being asked for his password, several results are possible. He might have been advised by counsel to give the passwords. He might have resisted giving the passwords causing the need for officers to seize the phones and seek judicial authorization to search them. The court may have granted that authorization and allowed the police to search the phone, leading to the same result.
[21] I do not consider any violations of Mr. James’ right to counsel in fashioning a Charter remedy for Mr. Sonny.
The text messages and photos should not be excluded
[22] Mr. Sonny seeks to exclude the text message and photos that led to his current charges pursuant to s. 24(2) of the Charter. I disagree. In my view, the Grant analysis favours inclusion.
[23] In R. v. Grant, 2009 SCC 32, the court considers three factors to determine if Charter-violating evidence should be excluded:
a. Seriousness of the Charter-infringing state conduct;
b. The impact of the Charter-infringing state conduct on Mr. Sonny’s Charter-protected interests; and
c. Society’s interest in an adjudication on the merits. [6]
The Charter-infringing state conduct was not serious
[24] When Mr. James arrived at the border, he was sent to secondary search due to a firearms lookout registered against his vehicle. At secondary, a BSO asked him some preliminary questions to determine his admissibility into Canada. Mr. Sonny argues that the questions were too quick and not genuinely aimed at determining admissibility. Rather, the officers knew that they were going to search him and his vehicle before Mr. James even arrived at secondary.
[25] I agree that because the firearms lookout directed a search for firearms that may be secreted in Mr. James’ vehicle, the BSOs were going to search his vehicle regardless of his answers to admissibility questions. That said, the issue is the search of Mr. James’ cellphones. That search was not pre-determined and was, according to the officers, triggered by his odd answers to questions as to why he was coming into Canada and the fact that both phones kept ringing. I accept Officer Fallis’ evidence that his impetus to search the phones was Mr. James’ answers to his questions. Mr. James stated that he was coming to Canada to go to the casino and knew people nearby but had no plans to meet anyone. Officer Fallis wondered why he was going to a casino in Niagara Falls when others were available on the U.S. side. The phones were ringing repeatedly, Mr. James seemed nervous and there was a firearms lookout on his vehicle.
[26] Mr. Sonny argues that the BSOs were not acting under IRPA at the time of the search but tailored their evidence to align with the Crown theory developed later. I accept Mr. Bubar’s evidence that border officers enforce 90 statutes in their duties. There are many statutes at play at the border and the authority an officer has can be pursuant to more than one statute.
[27] It is not for this court to be armchair border services officers and second guess whether they had sufficient indicators to progress their searches. Both IRPA and the Customs Act allow BSOs to determine the admissibility of goods or people into Canada. They have broad discretion under both statutes. While in policy documents border services officers have a list of “indicators” to consider when determining admissibility of a person and are required to conduct progressive searches, these are policies and not legislation.
[28] I accept that Officer Fallis acted in good faith using his knowledge and experience as a BSO to examine Mr. James’ admissibility. There is no set length of time for this examination. The fact that it only took a few minutes with no follow-up questions does not automatically mean that he was acting in bad faith. At the time of the search, there also were guidelines and protocols the officers were to follow in searching cellphones. The officers did not follow these guidelines. Again, these are policies and not legislation. There is nothing wrong, under the IRPA and Customs Act schemes in place at the time, with Officer Fallis considering that Mr. James was on a firearms lookout as one of the factors in deciding to examine his phones, or even giving primacy to that fact. There is nothing wrong with Officer Fallis using the broad search powers statutorily available to him to look more closely at a person who is the target of a firearms lookout.
[29] The officers acted in good faith at the time of the search pursuant to valid legislative authority. It is not conduct that this court must dissociate itself from. There is little danger that admitting the evidence would send the message that the justice system condones serious state misconduct. The state misconduct here was not serious. It is low on the “scale of culpability.” This factor favours inclusion of the evidence.
The impact of the breach on Mr. Sonny is substantial
[30] Second, the impact on Mr. Sonny’s right to privacy and to be free from unreasonable state search and seizure is substantial. Using the same analysis as Justice McLachlin in Marakah, Mr. Sonny had a considerable privacy interest in his and Mr. James’ electronic conversation, the contents of which the illegal search revealed. The conversation revealed information about Mr. Sonny’s criminal enterprise, something Justice McLachlin accepted goes to a person’s biographical core.
[31] The Crown argues that the impact on Mr. Sonny is mild because he was not at the border, he was not delayed, and it was not his phone that was searched. I disagree. Justice McLachlin noted in Marakah that it cannot be that the impact on an accused’s Charter-protected interests is less serious when the electronic conversation is accessed through someone else’s phone rather than that of the accused. [7] I use the same reasoning in this case to conclude that Mr. Sonny’s reasonable expectation of privacy was obliterated by the state’s illegal search. This factor favours exclusion of the evidence.
Society has an interest in the case being adjudicated on its merits
[32] Society has a significant interest in this case being adjudicated on its merits. The exclusion of the evidence would gut the Crown’s case. The text messages and photos offer reliable and probative evidence in the prosecution of a serious offence. Gun violence is of continuing concern in Ontario. Mr. Sonny is charged with a serious crime that if found guilty, garners a sentence between four and ten years of penitentiary time. Prosecuting individuals who may be making guns available to people interested in perpetuating gun violence is a matter of public importance. This factor favours admission.
On balance, the evidence should not be excluded
[33] The last step in the Grant analysis is to balance the factors in all the circumstances to determine if admitting the evidence would bring the administration of justice into disrepute. [8] In my view, it would not. The admission of the evidence would not, for example, send the message that individual rights at the border are unimportant. On the contrary, the court has sent the clear message to the government that s. 99(1) of the Customs Act and s. 16(3) of IRPA are not Charter compliant and must be remedied. Admitting the evidence would not derogate from the vital interest recognized at paragraph 84 of Grant of having a justice system that is above reproach, especially where Mr. Sonny’s penal stakes are high.
[34] I allow Mr. Sonny’s application challenging the constitutionality of s. 16(3) of IRPA but dismiss his application to exclude the messages and photos. I declare s. 16(3) of IRPA null and void as against Mr. Sonny as far as that provision permits the search of electronic devices.
P.T. Sugunasiri
Released: January 21, 2025
Cited Authorities
Legislation
- Customs Act, RSC 1985, c 1 (2nd Supp)
- Immigration and Refugee Protection Act, SC 2001, c 27
- Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982