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CONSTITUTIONAL ISSUES - Remedies for denial of rights - Exclusion of evidence

Thursday, August 01, 2019 @ 6:18 AM  

Lexis Advance® Quicklaw®
Application by the accused, charged with possession of child pornography, to exclude evidence of child pornography found on his cell phone. The accused was detained at a border crossing for a secondary inspection to determine his admissibility back to Canada. The accused, an Indian citizen with a student permit, wished to obtain a work permit. He admitted he had been working full time in contravention of the terms of his student visa. The border officer demanded the accused’s cell phone and began searching it for information to confirm or refute the accused’s information about his student status and employment. Within minutes, the officer found a child pornography video. The accused was arrested under the Customs Act and given his s. 10(b) rights. The officer continued his search of the accused’s phone and found more images and videos containing child pornography before he contacted the police. He was following protocol that instructed border officers to search electronic devices after they found child pornography until they found at least three images.

HELD: Application allowed. The border officer’s initial search of the phone, seeking documents for admissibility and Customs Act reasons, was lawful. The officer’s continued search of the cell phone, post-arrest, was not lawful. The evidence did not support a finding that the officer’s ongoing search of the phone was for the dual purpose of both a Customs Act and a Criminal Code investigation. It was clear the purpose of the officer’s search was to collect enough evidence to attract the attention of the police and support a Criminal Code prosecution. The Charter infringing state conduct was serious, long-standing and systemic. Admission of the evidence would bring the administration of justice into disrepute.

R. v. Singh, [2019] O.J. No. 3207, Ontario Court of Justice, E.I. Deluzio J., June 18, 2019. Digest No. TLD-July292019010