R. v. Batth, 2022 BCPC 314

Citation: R. v. Batth 2022 BCPC 314 Date: 20221123 File No: 240461-2C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. RUPINDER SINGH BATTH CORRIGENDUM TO THE REASONS ON VOIR DIRE #4 OF THE HONOURABLE JUDGE JETTÉ Counsel for the Crown: C. Hough and A. Hathorn Counsel for the Defendant: J. Narwal and S. Gu Place of Hearing: Surrey , B.C. Date of Hearing: 7 November 2022 Date of Judgment: 23 November 2022

A Corrigendum was released by the Court on March 6, 2023. The corrections have been made to the text and the Corrigendum isappended to this document. Introduction [1] Rupinder Batth is charged with a series of offences contrary to Sections 126 and 127(

a) of the Immigration and RefugeeProtection Act (“IRPA”). The Crown alleges that these offences were committed between February of 2015 and July of 2017. Mr. Batthwas an immigration consultant; he owned and operated an immigration consultant business called Can-Asia Immigration Consultants(“Can-Asia”). The Crown alleges that Mr. Batth was paid by foreign nationals to obtain work permits and permanent resident status inCanada, and that he employed fraudulent means to do so. [2] This Voir Dire concerns the warrantless search and seizure of the cell phone of Mr.

Hossein Amirahmadi by Border ServicesOfficer (“BSO”) Hart at the Boundary Bay point of entry (Point Roberts) on the 6th of August 2016. Mr. Amirahmadi is not an accusedon this Information. In a previous ruling (Voir Dire No. 2) I found that Mr. Batth had standing to explore the circumstances surroundingthis search under sections 7, 8 and 11(

d) of the Canadian Charter of Rights and Freedoms (“the Charter”). [3]

Section 8 standing was limited to three WhatsApp messages authored by Mr. Batth, which were located on Mr. Amirahmadi’sphone (see R. v. Jones, 2017 SCC 60). Mr. Batth has no privacy interest in any other messaging or data on that phone; as Charter rightsare personal; it follows that remedies are not available to third parties whose personal rights have not been breached: R. v. Kang, 2020BCSC 1151; R. v. Edwards, (SCC), [1996] 1 S.C.R. 128; R. v. Ferguson, 2008 SCC 6; R. v. Russell, 2012 BCSC 652. [4] Standing under sections 7 and 11(

d) is premised on a nexus between the search of the phone and subsequent investigative steps,which targeted Mr. Batth and Can-Asia, and Mr. Batth’s assertion that BSO Hart’s conduct at the border on the 6th of August 2016 hashad a direct impact on Mr. Batth’s right to a fair trial process. [5] In Voir Dire No. 3, I heard evidence from BSO Hart regarding his dealings with Mr. Amirahmadi on the 6th of August 2016. Myruling on Voir Dire No. 3 is dated 7 November 2022. In that ruling I found that BSO Hart’s conduct resulted in breaches of Mr.Amirahmadi’s right to be secure from unreasonable search and seizure in s. 8 of the Charter, as well as sections 10(

a) and (b). [6] Relying on the fruits of the warrantless search of the phone and BSO Hart’s dealing with Mr. Amirahmadi at the border,Canadian Border Services Agency (“CBSA”) investigators applied for and obtained a warrant to conduct a more thorough search of thephone. The Crown agrees that, as a result of my ruling in Voir Dire No. 3, Mr. Batth’s three What’sApp messages should be excisedfrom the Information To Obtain (“ITO”) filed in support of that warrant application. Applying the test for reviewing judicialauthorizations in R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421, both parties agree that the evidence remaining in the ITOafter excision is sufficient to support the warrant application; in other words, despite that change, the warrant could have issued. [7] Mr. Batth asserts that there are factors present which entitle him to a broader excision remedy under the doctrines of abuse ofprocess and trial fairness which are captured within ss. 7, 11(

d) and 24(1) of the Charter. More specifically, he submits that I shouldexcise from the cell phone ITO all evidence obtained by BSO Hart during his interactions with Mr. Amirahmadi at the border. BothCrown and defence agree that without that evidence, the warrant to search Mr. Amirahmadi’s phone could not have issued. Mr. Batth’ssubmission is linked to a subsequent application for a warrant to search at the offices of Can-Asia; the ITO filed in support of thatapplication relied in part on evidence acquired during the warranted search of Mr. Amirahmadi’s phone. [8] Mr. Batth bears the onus of proving a on a balance of probabilities that his

section 7 and/or 11(

d) rights have been breached. Brief

Summary of the Circumstances [9] A complete review of the events of 6 August 2016 at the Boundary Bay point of entry is included my reasons following VoirDire No. 3. I will only hit upon a few of the essentials here. [10] Hossein Amirahmadi is an immigration consultant. On the evening of 6 August 2016, he accompanied a client to the BoundaryBay border crossing. The client was applying for a permit to work in Canada. That process required that the applicant walk into the US,then walk back into Canada to present her application. Mr.

Amirahmadi accompanied her into the US and back into Canada, where thetwo of them were sent to secondary inspection and BSO Hart. BSO Hart became concerned early on that there were aspects of theapplication that did not make sense, and that the applicant’s English language skills were poor, and did not match the English in herapplication. He became suspicious that Mr. Amirahmadi might be implicated in the preparation of a misleading application, and asked tosee his phone. Mr. Amirahmadi said it was in his car and that BSO Hart was free to look at it.

BSO Hart retrieved the phone from the cartogether with some cheques which he found suspicious, and returned to interview Mr. Amirahmadi. He asked for and was given thepassword to the phone, then took the phone into a back office to examine the contents for documents or other information which mightbe related to the work permit application. He found a WhatsApp message from someone named Ron about making PhD certificates. Iwas told that “Ron” is Mr. Batth, although this was not known to BSO Hart at the time. BSO Hart returned to confront Mr. Amirahmadi,this time in the company of his supervisor.

A further interrogation followed, then BSO Hart seized the phone and the cheques andconcluded his dealings with Mr. Amirahmadi and his client. [11] BSO Hart cited s. 139(1)(

b) of the IRPA as his authority for searching Mr. Amirahmadi’s phone. That provision providesauthority to search any person seeking to come into Canada as well as their luggage and personal effects if the border officer believes onreasonable grounds that the person has committed, or possessed documents that may be used in the commission of an offence referred toin three specified sections of the Act. [12] At the conclusion of Voir Dire No. 3, I found that Mr. Amirahmadi’s right to be secure from unreasonable search and seizure in s.

8 of the Charter was violated when: (1) without lawful authority, BSO Hart searched Mr. Amirahmadi’s motor vehicle and removed acell phone and several cheques; and (2) without reasonable grounds – the standard for conducting a search under s. 139(1)(

b) of theIRPA - BSO Hart searched the contents of the phone on two separate occasions. I also found that Mr. Amirahmadi was detained duringthe course of this investigation but was not advised of his rights under s. 10 of the Charter, resulting in breaches of ss. 10(

a) and (b). Issue One: Has Mr. Batth established a breach of his s. 7 rights under the doctrine of abuse of process? [13] In R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, the Supreme Court of Canada found that the common lawdoctrine of abuse of process was subsumed by the Charter, specifically the principles of fundamental justice enshrined in s. 7.

While theremedy was traditionally concerned with protecting society’s interest in a fair process, the Court also acknowledged the existence of aresidual category of abuse which applies even where a person’s right to a fair trial has not been impaired: …This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated inthe Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution isconducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions ofjustice and thus undermines the integrity of the judicial process.

O’Connor, supra, at para. 73. [14] In R. v.

Babos, 2014 SCC 16, Justice Moldaver described the two branches of the doctrine in this way: [34] …when the main category is invoked, the question is whether the accused's right to a fair trial has been prejudiced and whetherthat prejudice will be carried forward through the conduct of the trial; in other words, the concern is whether there is ongoing unfairnessto the accused. [35] By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive tosocietal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrityof the justice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution ofoffences. At times, state conduct will be so troublesome that having a trial — even a fair one — will leave the impression that the justicesystem condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In thesekinds of cases, the first stage of the test is met. [15] Whether grounded in the trial fairness or residual branches, there is a necessary causal element before the court may find that theabuse doctrine applies.

The abuse “must have caused actual prejudice of such magnitude that the public’s sense of decency and fairnessis affected”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at para.133; cited in R. v.

Regan, 2002 SCC 12). [16] The remedy for a breach of s. 7 rising from the doctrine of abuse of process is fashioned pursuant to the broad discretion set outin s. 24(1) of the Charter: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [17] The remedy sought in most abuse cases is a stay of proceedings; that remedy is only imposed “in the clearest of cases”, a highbar which is difficult to achieve.

But a stay of proceedings is not the only available remedy. In R. v. O’Connor, supra, at para. 69 thecourt observed that “less drastic remedies than a stay of proceedings are available under s. 24(1) where the “clearest of cases” thresholdis not met but where it is proved, on a balance of probabilities, that s. 7 has been violated.” It follows that a remedy short of a stay ofproceedings may be a better response to abusive conduct in some cases. [18] In this case, Mr. Batth seeks only the remedy of excision. [19] The question of remedy was addressed by Justice Moldaver in R. v.

Babos: [39] …the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may applydepending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity ofthe justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial.Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness.

Where theresidual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies mustbe directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is notto provide redress to an accused for a wrong that has been done to him or her in the past.

Instead, the focus is on whether an alternateremedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. [20] My analysis now turns to a consideration of the circumstances in this case. BSO Hart was conducting a work permit inquirywhich was not in any way connected to Mr. Batth. That inquiry resulted in a series of Charter breaches which engaged rights which werepersonal to Mr. Amirahmadi.

In my view, these breaches were caused by the conduct of a relatively junior and somewhat overzealousborder officer acting in circumstances which were specific to the individual who had presented himself at the border as the immigrationconsultant for the applicant. In other words, there was nothing systemic about what happened. BSO Hart had never heard of Mr. Batth orCan-Asia. This was not a stealth mission or ruse to obtain information about an ongoing investigation of Mr. Batth and/or Can-Asiaundertaken with wilful disregard of Mr. Amirahmadi’s Charter rights. The search of Mr.

Amirahmadi’s vehicle and phone were not theinevitable result of a Charter breaching CBSA policy, or even a misguided policy personal to BSO Hart. [21] I do not suggest for a moment that any one of these hypotheticals would necessarily amount to an abuse of process. And I acceptthe defence submission that the doctrine does not require as a necessary pre-condition a finding that the impugned state conduct wasintentional as opposed to careless or negligent: O’Connor, supra at para. 79.

But these are at least examples of what might fairly bedescribed as egregious or vexatious police conduct which, in some circumstances, might taint the fair trial rights of a third party or

impact the integrity of the justice system to such an extent that the abuse doctrine might be engaged. [22] It appears that BSO Hart never considered that his actions may have effectively detained Mr. Amirahmadi, giving rise to a dutyto provide a

section 10 Charter warning. BSO Hart did not fully direct his mind to the question of his authority to search the car,although one might infer that he believed Mr. Amirahmadi had consented to that search. He correctly identified s. 139(1)(

b) of the IRPAas authority for searching the phone. He unfortunately failed to appreciate that he lacked sufficient grounds for that search, an error injudgment which happens with some frequency when police and other state officials come into contact with suspects and exercise theirsearch powers. [23] In his submissions, counsel for Mr. Batth points to the search power in s. 139(1)(

b) of the IRPA and argues that BSO Hart failedto respect well established and unambiguous legal authority when he breached Mr. Amirahmadi’s s. 8 Charter rights. He submits that thesituation here is similar to police conducting strip searches pursuant to an RCMP policy which was inconsistent with well settledprinciples (see R. v. Hall, 2019 BCPC 349).

That of course is not what BSO Hart was doing here; he was not ignoring well settledprinciples of law pursuant to an institutional or personal policy, he applied the correct provision in the IRPA, but simply failed toappreciate that he lacked the grounds he needed to proceed in the way that he did, and further failed to understand that by his actions,Mr. Amirahmadi had been detained. [24] Mr.

Batth submits that in these circumstances I should find on a balance of probabilities either that: (1) his right to a fair trial hasbeen prejudiced in such a manner that this prejudice will be carried forward through the conduct of the trial; or (2), under the residualcategory, the state has engaged in conduct that is offensive to societal notions of fair play and decency, and proceeding with a trial in theface of that conduct would be harmful to the integrity of the justice system. [25] I do not accept that a routine encounter at the border where the border officer - in circumstances which were at that time entirelydisconnected from the investigation that later ensnared Mr.

Batth and his company - erred in the exercise of his judgment and therebybreached a third party’s Charter rights, engages either branch of the doctrine of abuse of process. Issue Two: Has Mr. Batth established a breach of his right to a fair trial process guaranteed in ss. 7 and 11(

d) of the Charter? [26] Mr. Batth submits in the alternative that I should exercise my discretion to exclude otherwise admissible evidence to ensure thathe has a fair trial. In these particular circumstances, he submits that I should apply this discretion to excise evidence from the ITO filed insupport of the application for a warrant to search Mr. Amirahmadi’s phone. [27] Mr. Batth relies on the Supreme Court of Canada’s decision in R. v. Harrer, (SCC), [1995] 3 S.C.R. 562. Therethe Court found that the concept of trial fairness, while rooted in common law, is now captured by sections and 7 and 11(

d) of theCharter. If admission of certain evidence would be in violation of the principles of fundamental justice - for example, if the admission ofthe evidence would result in an unfair trial - sections 7 and 11(

d) would be engaged. The Court found that trial fairness embraces notionsof fairness which are broader than the specific contest between the state and the accused, operates through flexible rules, and isconcerned with the manner in which evidence was obtained as well as the effect of admission of that evidence on the trial process. Thecourt held that trial fairness operates outside s. 24 of the Charter, and exclusion does not depend upon a Charter breach.

The doctrineprovides a separate discretion, now constitutionalized, to exclude evidence that would result in an unfair trial: Harrer, supra, at paras.13, 14, 16, 22-4. [28] It follows from what I have said about the doctrine of abuse of process that the trial fairness doctrine does not assist Mr. Battheither. For the same reasons expressed earlier with respect to abuse of process, I do not find that the manner in which evidence wasacquired by BSO Hart during his encounter with Mr. Amirahmadi at the border requires that it be excised from the ITO in order to avoidan unfair trial for Mr. Batth.

To put it the other way around, in the circumstances here I am not persuaded that Mr. Batth’s trial will beunfair if evidence employed during a subsequent CBSA investigation of Mr. Amirahmadi’s phone resulted in the issuance of a warrantfor that phone. The fact that evidence obtained during the search of that phone found its way into an application for a warrant to search atthe offices of Can-Asia does not make Mr. Batth’s trial unfair. [29] I should emphasize as well that there are no circumstances here which would cause me to be concerned that broader notions offairness are implicated. Mr.

Batth does not argue that there is anything unreliable or misleading about the evidence obtained by BSOHart which found its way into the ITO for the cell phone warrant. I have already noted that BSO Hart was not acting pursuant to a policy,personal or institutional, which knowingly violated well settled constitutional or legal norms. I can find nothing on the facts of this casewhich might implicate the fairness of the justice system more broadly speaking. Order [30] The application is dismissed. _____________________________ The Honourable Judge M.

Jetté Provincial Court of British Columbia CORRIGENDUM - Released March 6, 2023

In the Ruling on Voir Dire #4 dated November 23, 2022, the following changes have been made: [1] Para. 7, “Mr. Baath” should read: Mr. Batth [2] Para. 20, last sentence, “Mr. Ahmirahmadi’s” should read: Mr. Amirahmadi’s _____________________________ The Honourable Judge Jetté Provincial Court of British Columbia