https://www.thestar.com/news/canada...outside-search-powers-in-child-porn-case.html
says CSBA can only search for border and customs evidence.
says CSBA can only search for border and customs evidence.
Judge tosses border cell phone search - major precident set?
- Thread starter nottyboi
- Start date
I can't read it. What was the gist of the article? I have friends that have been clearing their phones and lap tops. I have not but I have been considering it. It seems like an awful lot of work for an activity that is legal. I only hire escorts for their company.
An Ontario court has chided Canada’s border agency over its “serious, long-standing and systemic” practice of abusing its search powers under customs law and acting as an agent of the police for criminal investigation purposes.
In dismissing the evidence seized for a child pornography case against Gurbir Singh, the Ontario Court of Justice ruled that the Charter rights of the Indian international student were violated by a border security officer at the Prescott port of entry who searched his cellphone primarily for the “purpose of looking for evidence of a Criminal Code offence.”
While the law allows border officials to conduct searches without a warrant, Justice Elaine Deluzio said their power is restricted to customs and immigration enforcement only.
“It is important and necessary that border security officers have broad search powers. Their job is to secure our borders and keep our citizens and our country safe. People who seek entry into Canada must answer questions truthfully and they must provide information and evidence,” Deluzio wrote in a 13-page decision released last week.
“Officer (Johnny) Bueckert acted outside of the limits of his search powers as a border security officer and his search of Mr. Singh’s phone, without a warrant, was unlawful.”
Although there is a strong societal interest in the prosecution of child pornography cases and the exclusion of the evidence would likely end the Crown’s case against Singh, Deluzio concluded, “It is my view that admission of the evidence, including the first image found by Officer Bueckert, would bring the administration of justice into disrepute.”
Read more:
Five Toronto-area residents charged in child porn investigation
Editorial | Customs officers should get a warrant to search your phone
Leave the phone at home: Privacy commissioner and advocates warn Canadians to keep data secure when crossing the border
Toronto criminal lawyer Craig Penney, who represents Singh, said the court ruling shines the judicial spotlight on the scope of Canada Border Services Agency officers’ powers under the Customs Act.
“We have limited rights when entering Canada. We are obligated to truthfully answer questions. Border officers have broad powers to search our computers and mobile devices. We are both naked and exposed,” Penney said Tuesday. “This ruling admonishes border authorities to stay within the limits of their authority. For defence counsel, it’s important not to accept at face value assertions by CBSA officers that it’s all Customs Act powers when, in fact, it’s a Criminal Code police investigation.
“For CBSA, there’s no putting the toothpaste back in the tube,” Penney added. “The evidence in this case revealed what was really happening behind the scenes, and the understanding that has emerged over the years between the CBSA and the Ontario Provincial Police. The CBSA cannot continue using their search powers to solely investigate criminal matters without putting in jeopardy their ability to prosecute.”
According to the court, Singh, 22, a full-time student at Algonquin College, was referred for a “secondary inspection” at Prescott land border, east of Kingston, upon his return from the U.S. on Jan. 23, 2018.
He told Bueckert he was looking to change his student visa to a work visa as he just finished school at the beginning of the year. During the interview, he also told the officer he had been working 40 hours a week at a gas station while enrolled in school — twice the 20-hour legal limit.
At one point, said the court, Bueckert decided to “escalate” his examination by demanding Singh’s cellphone and was provided with the password. Singh was arrested after a video was found in his phone depicting a naked female engaging in sexual intercourse with a prepubescent boy.
Bueckert testified that at that point he was no longer looking for employment documents relating to Singh’s immigration status, but the search was “strictly” focused on searching for further evidence of child pornography.
“The evidence establishes that the Charter infringing state conduct in this case is serious, long-standing and systemic. Border officers are instructed to continue searching cellphones and other electronic devices after they find child pornography, until they find at least three images,” said Justice Deluzio.
“The system that has been in place at the Prescott port of entry involves border officers essentially acting as agents of the police, conducting searches of cellphones and other devices for the sole purpose of gathering evidence to support Criminal Code charges and Criminal Code prosecutions.”
Singh is scheduled to appear before the court Wednesday, when the charge of child pornography possession is expected to be dismissed, said Penney.
“Mr. Singh has been under significant stress since his arrest 17 months ago,” Penney said, adding, he is “happy to be moving forward without the stigma and significant consequences that flow from a child-pornography conviction.”
In dismissing the evidence seized for a child pornography case against Gurbir Singh, the Ontario Court of Justice ruled that the Charter rights of the Indian international student were violated by a border security officer at the Prescott port of entry who searched his cellphone primarily for the “purpose of looking for evidence of a Criminal Code offence.”
While the law allows border officials to conduct searches without a warrant, Justice Elaine Deluzio said their power is restricted to customs and immigration enforcement only.
“It is important and necessary that border security officers have broad search powers. Their job is to secure our borders and keep our citizens and our country safe. People who seek entry into Canada must answer questions truthfully and they must provide information and evidence,” Deluzio wrote in a 13-page decision released last week.
“Officer (Johnny) Bueckert acted outside of the limits of his search powers as a border security officer and his search of Mr. Singh’s phone, without a warrant, was unlawful.”
Although there is a strong societal interest in the prosecution of child pornography cases and the exclusion of the evidence would likely end the Crown’s case against Singh, Deluzio concluded, “It is my view that admission of the evidence, including the first image found by Officer Bueckert, would bring the administration of justice into disrepute.”
Read more:
Five Toronto-area residents charged in child porn investigation
Editorial | Customs officers should get a warrant to search your phone
Leave the phone at home: Privacy commissioner and advocates warn Canadians to keep data secure when crossing the border
Toronto criminal lawyer Craig Penney, who represents Singh, said the court ruling shines the judicial spotlight on the scope of Canada Border Services Agency officers’ powers under the Customs Act.
“We have limited rights when entering Canada. We are obligated to truthfully answer questions. Border officers have broad powers to search our computers and mobile devices. We are both naked and exposed,” Penney said Tuesday. “This ruling admonishes border authorities to stay within the limits of their authority. For defence counsel, it’s important not to accept at face value assertions by CBSA officers that it’s all Customs Act powers when, in fact, it’s a Criminal Code police investigation.
“For CBSA, there’s no putting the toothpaste back in the tube,” Penney added. “The evidence in this case revealed what was really happening behind the scenes, and the understanding that has emerged over the years between the CBSA and the Ontario Provincial Police. The CBSA cannot continue using their search powers to solely investigate criminal matters without putting in jeopardy their ability to prosecute.”
According to the court, Singh, 22, a full-time student at Algonquin College, was referred for a “secondary inspection” at Prescott land border, east of Kingston, upon his return from the U.S. on Jan. 23, 2018.
He told Bueckert he was looking to change his student visa to a work visa as he just finished school at the beginning of the year. During the interview, he also told the officer he had been working 40 hours a week at a gas station while enrolled in school — twice the 20-hour legal limit.
At one point, said the court, Bueckert decided to “escalate” his examination by demanding Singh’s cellphone and was provided with the password. Singh was arrested after a video was found in his phone depicting a naked female engaging in sexual intercourse with a prepubescent boy.
Bueckert testified that at that point he was no longer looking for employment documents relating to Singh’s immigration status, but the search was “strictly” focused on searching for further evidence of child pornography.
“The evidence establishes that the Charter infringing state conduct in this case is serious, long-standing and systemic. Border officers are instructed to continue searching cellphones and other electronic devices after they find child pornography, until they find at least three images,” said Justice Deluzio.
“The system that has been in place at the Prescott port of entry involves border officers essentially acting as agents of the police, conducting searches of cellphones and other devices for the sole purpose of gathering evidence to support Criminal Code charges and Criminal Code prosecutions.”
Singh is scheduled to appear before the court Wednesday, when the charge of child pornography possession is expected to be dismissed, said Penney.
“Mr. Singh has been under significant stress since his arrest 17 months ago,” Penney said, adding, he is “happy to be moving forward without the stigma and significant consequences that flow from a child-pornography conviction.”
Good for people with privacy concerns, but not so much for the customs folks who are tasked with finding and stopping imports of illegal stuff like child-porn. Or terrorist bomb blueprints. If the officer had asked he guy to put his suitcase on the bench and open it, then found stacks of magazines I think he'd have been on well-established ground, and I doubt an eventual prosecution for possession would have folded.
This was a decision by one lower court judge, not a carefully considered finding of high court justices. I'd bet there will be an appeal.
This was a decision by one lower court judge, not a carefully considered finding of high court justices. I'd bet there will be an appeal.
Really is there anyone who can argue for the rights of a pedophile?
If you have nothing to hide you should not worry about a search like this, dude had videos on his cell and probably more in his home
Plus he had issues with his border crossing anyways (claimed student but not in school, was working full time)
If you have nothing to hide you should not worry about a search like this, dude had videos on his cell and probably more in his home
Plus he had issues with his border crossing anyways (claimed student but not in school, was working full time)
Until convicted of some crime, or at least arrested and charged, this person has every right you or I have. That's what our laws and Charter say.
Seeing as you posted on Canada Day I hope you and all Canadians would argue for those rights.
Glad there are still people who think like you oldjones. I don't think the general public understands the importance of defending our rights. Especially our right to privacy (Sections 7 and 8 of the Charter) in this increasingly invasive era.
I can't stand it when someone says this:
I'm not denying that this guy deserved to get caught. He did. But I am vehemently against any unwarranted search.
The reasons are numerous. You could have items in your position that, while not illegal, are highly embarrassing. Or they could be confidential in nature. Also, such a search could be highly disruptive or even damage your property. Border officials may also deny you entry if they even suspect you have committed a criminal offense, even if there's no hard evidence to support that suspicion.
I'm also highly surprised that anyone on this forum would be okay with this. If US border officials suspect you are visiting escorts, you can be banned indefinitely from entering their country. Without even being convicted of an offense!
The difficulty with your argument is that the judge did declare the search unwarranted, so the guy you say deserved to get caught walked free. In spite of the evidence.
As for the suspicion part, that's how border agents work. Thyey've seen you for all of the three seconds it took you to approach their station. All they know is what they see on a 'puter screen and what's gtoing on with the person in front of them. If they're ever going to stop anyone in their effort to keep the True North strong and free they must go on suspicion.
And for all that I too get riled when people toss off our rights with offhand cliche's like TeeJay's, the only smart way to cross any border is with nothing to hide.
The Charter of Rights and Freedoms is the supreme law of the land. Period.
It provides people with their primary rights of privacy against unreasonable intrusion from the state.
However, when you cross the border into Canada, that right is somewhat suspended for the purposes of enforcing various Customs, Immigration, agriculture and national security matters.
So a search of your person, baggage and even your cellphone and computer seems to be an exemption for the purposes of investigating and enforcing those Customs and Border security purposes.
In this case, the Customs Officer searched the persons phone for the stated purpose of searching for Criminal Code violations. His search was outside his search authority for purposes of Customs/Border security.
If he found evidence of Criminal Code violations he does not have the authority to lay Criminal charges. He hands off the evidence to the Police. The Police then ostensibly conduct their own investigation and lay the Criminal charge which may also or solely be based on the evidence the Customs Officer discovered.
So, the Customs Officer is acting as an Agent of the Police.
And as such, any search for evidence of Criminal Code violations must be in accordance with the Section 8 provisions of the Charter.
That search required a Search Warrant.
The Canada Customs written policy on these searches clearly states that Customs Officers are not to pursue the search further immediately upon coming across such evidence in the course of their Customs related search. They are instructed to refer the matter to police at that point at which the police can obtain a Search Warrant.
It provides people with their primary rights of privacy against unreasonable intrusion from the state.
However, when you cross the border into Canada, that right is somewhat suspended for the purposes of enforcing various Customs, Immigration, agriculture and national security matters.
So a search of your person, baggage and even your cellphone and computer seems to be an exemption for the purposes of investigating and enforcing those Customs and Border security purposes.
In this case, the Customs Officer searched the persons phone for the stated purpose of searching for Criminal Code violations. His search was outside his search authority for purposes of Customs/Border security.
If he found evidence of Criminal Code violations he does not have the authority to lay Criminal charges. He hands off the evidence to the Police. The Police then ostensibly conduct their own investigation and lay the Criminal charge which may also or solely be based on the evidence the Customs Officer discovered.
So, the Customs Officer is acting as an Agent of the Police.
And as such, any search for evidence of Criminal Code violations must be in accordance with the Section 8 provisions of the Charter.
That search required a Search Warrant.
The Canada Customs written policy on these searches clearly states that Customs Officers are not to pursue the search further immediately upon coming across such evidence in the course of their Customs related search. They are instructed to refer the matter to police at that point at which the police can obtain a Search Warrant.
I legitimately think far too many "rights" are being abused
I would gladly vote to limit some of them as it would make the world a better place
But they HAD a legitmate right to search as I posted above
The ISSUE that CBSA was looking into was a non citizen possibly working illegally (he was)
The PROBLEM is that during a legitimate search they overstepped their bounds and instead found evidence of a worse crime (possession of child porn)
Either way we both know the cops are going to watch him now and first chance they get a legit warrant
But the fact they found this evidence should be admissible imo regardless of the fact the CBSA overstepped their limits (and as you mentioned above re US border, they frequently do overstep limits as they really have no oversight)
But as my phone does not contain child porn or hobby info I could care less if someone looks at it
This phone search case is analogous to the classic traffic-stop car search that turns up drugs or guns, but gets thrown out at trial. Law enforcement properly engaged in their lawful duties — legitimately checking the cell-phone to verify the owner's statement — may stumble across incriminating material unrelated to their proper enquiry — noticing the rolling papers and the smell of weed when the driver rolls down the window.
What they can legally and properly do next is a delicate dance between the citizen's rights and the officers' responsibilities. Some further investigations are ok, some are improper. It's hardly surprising courts sometimes say they got it wrong and toss out the case. We seldom hear about the many cases when they don't. We need both courts and cops, each doing what they do, to keep us ordinary citizens reasonably untroubled.
"Reasonable" doesn't stretch to leaving your handgun on car seat, a roach burning in the ashtray, or your kiddy-porn on the phone with the record of employment a border agent might want to look at.
I'd rather a guilty person walk free than have our rights thrown in the trash bin and set on fire. Governments will only gain more power over the population as tech improves, as too will their ability to manipulate us into giving away our rights in the interest of "security". There's a reason we have the presumption of innocence in court, and it certainly isn't to protect the bad guys.
I disagree with nothing you have said; indeed I've said the same, before and expect to again. I share your preference, but I'm trying to point out that, as a society we don't want mere customs guys puzzling over tough philosophical balances between privacy and the public good. We want them to stop the bomb-plotters and the pornmongers and the pimps with their trafficked sex-slaves. Here, right here. Right now.
Because we're sitting in the sun, idling without AC, three cars back in the line.
The place to sort out the fine details of what's warranted or unwarranted is in the Courts, that's their job. The customs agent's job is different, and he did his.
Sometimes the ump calls the pitch a strike, sometimes it gets the batter a walk.
