His Majesty the King - v. -, 2023 SKPC 11

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 11 Date: February 16, 2023 Information: 24375611 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Reechmond Santos Benedicto Appearing: Zoey Kim-Zeggelaar For the Provincial Crown Brian Smith For the Intervener, the Public Prosecution Services of Canada Linh Pham For the Accused DECISION ON THE CHARTER APPLICATION M. BEATON , J OVERVIEW [ 1 ] This judgment deals with the authority of the Canada Border Services Agency (CBSA) to search cell phones at border crossings.

The primary issues are the legality of the search of Mr. Benedicto’s cell phone and whether he was detained pursuant to s. 10 of the Canadian Charter of Rights and Freedoms [ Charter ] when he was questioned by CBSA border security officials (BSOs). [ 2 ] Mr. Benedicto is charged that on or about June 26, 2017, at North Portal, Saskatchewan he possessed child pornography,

contrary to s. 163.1(4) of the Criminal Code. The evidence against him includes images and videos that were retrieved from his cellphone which was inspected by the BSOs at the North Portal point of entry into Saskatchewan from the United States. His cell phone wasinspected pursuant to s. 99(1)(

a) of the Customs Act, RSC 1985, c 1 (2nd Supp) [Customs Act]. [3] Mr. Benedicto admits he possessed child pornography. However, he argues that s. 99(1)(

a) of the Customs Act which allowsfor the unlimited search of personal electronic devices at the border without any threshold requirement of grounds or suspicion isunconstitutional and is not saved by s. 1 of the Charter. He also argues that the BSOs had no grounds to search his phone since theyknew he had not entered the United States and had not acquired goods. Therefore, the search of his cell phone by a BSO was contrary tos. 8 of the Charter. He also claims breaches of his rights under ss. 7, 10(a), and 10(

b) because he was detained by BSOs without beingadvised of the reasons for his detention or of the right to consult with counsel, and that he was obligated to incriminate himself. As aresult of these breaches, he argues that the incriminating evidence should be excluded pursuant to s. 24(2) of the Charter. In his noticeMr.

Benedicto also sought a ruling that s. 101 of the Customs Act is unconstitutional to the extent that it permits the seizure of personalelectronic devices at the border; however, in oral submissions he did not support that claim and I consider it abandoned. [4] The Supreme Court of Canada has established in R v Simmons, (SCC), [1988] 2 SCR 495 [Simmons] and R vMonney, (SCC), [1999] 1 SCR 652 [Monney] that constitutional requirements are different at the border in terms ofboth the right to be free from unreasonable search and seizure and the meaning of detention.

In particular, reasonable privacyexpectations at an international border differ from reasonable expectations of privacy elsewhere. Against that lower expectation ofprivacy lies the competing privacy interest people have in their personal electronic devices. Since Simmons was decided, the nature ofpersonal electronic devices has changed leaving the Supreme Court of Canada to examine individuals’ privacy interests in their personalelectronic devices in the cases of R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 [Fearon] R v Vu, 2013 SCC 60, [2013] 3 SCR 657 [Vu]and R v Morelli, 2010 SCC 8, [2010] 1 SCR 253 [Morelli].

In particular, the Court in Fearon noted that searches of cell phones by policeofficers upon arrest could lead to a serious invasion of privacy. [5] In balancing the lower expectation of privacy at an international border crossing with individuals’ privacy interests in thecontent of their cell phones, the Alberta Court of Appeal in R v Canfield, 2020 ABCA 383, 395 CCC (3d) 483 [Canfield]; leave refused, (SCC) [1] has found that notwithstanding Simmons, s. 99(1)(

a) of the Customs Act should be struck down as it appliesto personal electronic devices. Mr. Benedicto asks me to apply the reasoning in Canfield, determine that the law is unconstitutional, anddecline to apply it to the case at bar: R v Lloyd, 2016 SCC 13, [2016] 1 SCR 130. [6] The Public Prosecution Services of Canada (PPSC) as intervenor argues that Canfield was wrongly decided and that it is notbinding on Saskatchewan courts. The Crown states that I am bound by Simmons and therefore I must find that s. 99(1)(

a) of the CustomsAct is constitutional and apply it in this case. The Provincial Crown argues that Mr. Benedicto was never detained when he wasquestioned by BSOs. FACTUAL FINDINGS [7] The evidence presented in this blended voir dire/trial included an Agreed Statement of Facts as between the accused and theProvincial Crown, and the testimony of five Canada Border Services Agency officials. Mr. Benedicto did not testify. The briefs of lawwhich were filed by Mr. Benedicto, the Provincial Crown and the PPSC contained facts that were not accepted by all parties and weretherefore disputed.

I therefore make the following factual findings based on the evidence presented. [8] Prior to the offence date, Mr. Benedicto was living in Saskatchewan and was not a Canadian citizen. On June 26, 2017, Mr.Benedicto attended the U.S. Border Security Office which denied him entry to the United States. He then sought re-entry into Canadathrough a CBSA border crossing. He was referred to border security officers to confirm his permanent residency which was necessaryfor re-entry into Canada. The officers knew that Mr. Benedicto had been denied entry into the United States.

The officers reviewed hisdocumentation and checked him on a number of databases, which is standard procedure for everyone who is not a Canadian citizen andis wanting to enter Canada. A database check showed that Mr. Benedicto had previously been charged but acquitted of possessing childpornography. As a result, the immigration exam was halted, and he was referred to secondary inspection and taken aside where bordersecurity officers advised him that his goods including his cell phone had to be searched for illegal or inadmissible material.

He was askedto empty his pockets and provide any electronic devices in his possession. Mr. Benedicto was asked for the passcode for this cell phone.Despite numerous attempts, Mr. Benedicto was unable or unwilling to enter the correct passcode. Mr. Benedicto and the BSOs discussedhow he could obtain his passcode and he was eventually cleared to enter Canada on the requirement that he come back the next day tomake further attempts to unlock the phone.

Even the next day, he could not remember his passcode. [9] The evidence established that it is common for individuals who do not yet have Canadian citizenship to enter the UnitedStates at the border, be denied due to their immigration status, and then meet with Canadian BSOs to confirm their immigration status atthe Canadian border. This process is seen as more efficient than waiting for inland immigration officials to process documentation and is

called “flagpoling”. BSO Primeau believed that this was the reason Mr. Benedicto entered the United States and then came back to Canada. [ 10 ] Since Mr. Benedicto did not provide a passcode to his cell phone, officials seized the phone pursuant to s. 101 of the Customs Act and Mr. Benedicto was allowed to enter Canada after he was found to be admissible. His contact with officials at the secondary inspection lasted approximately two hours as he attempted to “remember” his password and he was not free to leave until the secondary inspection had been completed.

He was never advised of his right to consult with counsel or informed of his right to remain silent. [ 11 ] The BSOs were wanting to examine the cell phone pursuant to s. 99(1) (

a) of the Customs Act to determine whether there was illegal or inadmissible material pursuant to that Act . The only indicator or reason for the inspection was the database check which showed that Mr. Benedicto had been previously charged and acquitted of possessing child pornography. No BSO told Mr. Benedicto what they were looking for on his phone. [ 12 ] I am satisfied that the BSOs believed that they had authority under the Customs Act to search Mr. Benedicto’s phone without the need to advise him of his rights pursuant to s. 10 of the Charter . I also find that the dealings with Mr.

Benedicto were not contrary to the CBSA policies. [ 13 ] The cell phone was forwarded to the Canada Border Services Forensic Laboratory to be unlocked so that the inspection could be completed. At the time that it was forwarded, the current software and hardware were unable to open the phone so it was kept until such time as the required technology was available. [ 14 ] The Forensic Laboratory was able to eventually open the phone in November 2019, more than two years after it was seized, at which time the phone was returned to the North Portal border point for the inspection to be completed.

BSO Daly inspected the cell phone. He was aware of the reason the phone had been seized and was specifically looking for child pornography. He searched the phone methodically, first looking for pictures and videos by opening the apps with the largest storage capacity of the apps. The sixth largest capacity app contained three images of child pornography. As a result, the Saskatchewan Internet Exploitation Unit was notified and that unit obtained a search warrant for a search of Mr. Benedicto’s phone.

A more thorough search of the phone pursuant to the warrant disclosed 1641 images and 17 videos of child pornography. [ 15 ] No one disputes that Mr. Benedicto had an expectation of privacy in his cell phone. CBSA OPERATIONS AT THE BORDER [ 16 ] Mr.

Lance Markell provided viva voce and affidavit evidence detailing CBSA operations and procedures at the border in part to provide a context to this constitutional analysis. [ 17 ] The CBSA has a legislated mandate to provide integrated border services that support national security and public safety priorities, and facilitate the free flow of persons and goods which meet all requirements under the program legislation: see s. 5(1) of the Canada Border Services Agency Act , SC 2005, c 38 , s 5(1). [ 18 ] The CBSA provides services at approximately 1200 checkpoints across Canada and abroad.

From April 1, 2019, through March 31, 2020, the CBSA processed over 94.6 million individual travellers who arrived in Canada by one of four modes of travel: air, highway, marine or rail.

During that period, the CBSA made 29,486 drug seizures, 1690 currency seizures (valued at $27.7 million), 486 firearm seizures, 13,296 prohibited weapon seizures, 1,283 tobacco seizures, 131 cases involving seizures of child pornography and 1,067 seizures of prohibited goods. [ 19 ] The CBSA derives its primary authorities in relation to goods at the border from the Customs Act but also screens for compliance with a number of other statutes. The objectives of the Customs Act are to regulate, oversee and control cross-border movement of people and goods.

The attainment of these objectives depends on the effectiveness of the voluntary or self-reporting system provided in the Customs Act . Therefore,

section 7.1 of the Customs Act requires that any information provided to a CBSA officer in the administration of a number of Acts must be true, accurate and complete. As well,

section 13 of the Customs Act requires that individuals importing goods must answer questions with respect to the goods and present those goods for inspection.

[ 20 ] The CBSA uses pre-border programs to identify people and goods coming to Canada that may pose a threat to its security and safety. For example, the CBSA’s Intelligence Program collects information about people and goods coming into or leaving Canada. Some of this information comes from domestic law enforcement agencies. CBSA receives alerts and lookouts on people who may pose a threat. [ 21 ] People who arrive at a port of entry to Canada are first subject to primary processing at a primary inspection line.

They will be questioned to determine their immigration status, the quantity and nature of any goods they are importing, and their duty-free allowance and personal exemption entitlements. Referrals may be made to routine secondary inspections for mandatory reasons, on a random basis, or as a selective referral. A mandatory referral is a decision that an officer makes for further documentation or examination by the CBSA or on behalf of other government agencies. Mandatory referrals can also be based on a specific lookout, an alert, or a computer generated “hit”.

A selective referral will be used when an officer has indicators to identify high-risk individuals and goods. As well, if processing at the primary inspection line will take longer or require more space, the individual will be referred to a secondary examination. [ 22 ] The initial focus of the CBSA is always on the examination of goods for the purposes of ensuring their compliance and admissibility prior to their potential release for use in Canada.

With limited exceptions as provided in s. 163.5 of the Customs Act , the CBSA does not have the jurisdiction to investigate offences under criminal statutes such as the Criminal Code and the Controlled Drug and Substances Act , SC 1996, c 19 . However, under the Customs Act goods such as child pornography, hate propaganda, obscene material and many other goods cannot be brought into Canada.

Non-compliance arising from the attempted importation of such goods may lead to both civil and criminal enforcement measures. [ 23 ] Information that is collected by the CBSA may only be disclosed in accordance with s. 107 of the Customs Act . Section 107(2) precludes any CBSA official from knowingly giving access to, providing or using customs information unless authorized under this section. [ 24 ] Travellers have been found to keep personal and sensitive information in purses, suitcases, motor vehicles, and motor homes in which they may be living.

Commercial truckers will often use electronic devices which contain commercial and personal information. BSOs are trained to be sensitive to the personal nature of goods like journals, diaries, photographs, medical or financial records that they may view. [ 25 ] There has also been a shift in how documents and reading material are transported as more travellers are carrying these items in electronic form. This includes, for example, travel history, itineraries, and receipts for goods.

Also, harmful goods such as child pornography, hate and terrorist propaganda, and obscenity are increasingly found on and imported via electronic devices. [ 26 ] The CBSA has developed policies and procedures which are found in the CBSA Enforcement Manual and the People Processing Manual. According to policy, officers are to progressively intensify the level of examination when indicators are present that provide the officer with a basis for concern that goods are or contain contraband or undeclared or falsely reported goods.

Officers need to be able to articulate the rationale or reasons for border processing decision-making. Both the Customs Act and the CBSA policies state that examining officers must always act for limited and legitimate border-related purposes and officers can only gather information relevant to border purposes. [ 27 ] The CBSA also has policies relating to searching of personal electronic devices. Officers are told not to examine electronic devices as a matter of course.

They should only search where there are indicators suggesting that evidence of a contravention may be found on the device; or, if concerns exist regarding a foreign national’s or permanent resident’s admissibility, identity or other specific articulable non-compliance under the Immigration and Refugee Protection Act , SC 2001, c 27 [ Immigration and Refugee Protection Act ].

An indicator is a “single piece of information, trend, abnormality, or inconsistency that when added to other information or data raises a concern to an officer about the threat presented by a traveller or shipment.” According to policy, a singular, substantial and articulable indicator observed by a BSO may be sufficient to justify the examination of a digital device. [ 28 ] According to policy, BSOs are not to examine digital devices with the sole or primary purpose of looking for evidence of a criminal offence under any Act of Parliament.

Prior to examining a digital device, BSOs are to disable wireless or other network connectivity to prevent accessing remote data. BSOs are also required to keep notes that articulate the types of data examined and the reason for searching that data.

[ 29 ] The policies were intended to ensure that BSOs are making decisions to conduct such examinations in a controlled, lawful and reasonable manner and are respectful of personal privacy. BSOs who examine digital goods are expected to adhere to these policies so as to safeguard against examinations conducted in an unreasonable or unconstitutional manner. [ 30 ] Mr. Markell opined that being able to examine electronic devices remained essential for the CBSA to ensure compliance and enforce contraventions of the program legislation and it is vital to border security and safety. WERE THE ACCUSED’S RIGHTS UNDER S. 8 OF THE CHARTER BREACHED? [ 31 ]

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. A claimant must establish a reasonable expectation of privacy in the subject matter of the search. That expectation of privacy, which must be subjectively held and objectively reasonable, must be assessed based on the totality of the circumstances : R v Marakah , 2017 SCC 59 , [2017] 2 SCR 608. [ 32 ] The following sections of the Customs Act are relevant to this analysis. Section 99(1) (

a) of the Customs Act reads:

(1) 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 imported good and take samples of imported goods in reasonable amounts. [ 33 ] The definition of “goods” is found in s. 2 of the Customs Act : Goods, for greater certainty, includes conveyances, animals and document in any form. [ 34 ] Section 12(3.1) of the Customs Act defines when goods are imported as follows: 12.

(1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. …

(3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. [ 35 ]

Section 101 of the Customs Act allows for the detention of goods as follows: Goods that have been imported or are about to be exported may be detained by an officer until he is satisfied that the goods have been dealt with in accordance with this Act, and any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, and any regulations made thereunder. [ 36 ] It is agreed that personal electronic devices are goods within the definition of the Customs Act . I find the fact the BSO’s knew Mr. Benedicto had been denied entry into the United States to be irrelevant.

Section 12(3.1) of the Customs Act confirms that the return of goods to Canada after they are taken out of Canada is an importation of those goods. This Act , in general, allows for the inspection of goods coming back into Canada.

[37] It is also agreed that s. 99(1)(

a) of the Customs Act does not set a threshold unlike other search provisions in this Act whichestablish the thresholds of “reasonable suspicion” or “reasonable grounds”. [38] In 1988, the Supreme Court of Canada dealt with the constitutionality of searches conducted at border crossings in theSimmons decision.

In Simmons the accused was strip searched pursuant to ss. 143 and 144 or the Customs Act (since replaced with s. 98of the Act) which stated that an individual could only be strip searched if a customs officer had formed reasonable grounds for supposingthat an individual had contraband secreted about his or her body. In its analysis, the Court acknowledged that the criteria to whichreasonable searches must conform as articulated in Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 were not met by ss.143 and 144 of the Customs Act.

However, the Court held that the Hunter criteria did not apply to customs searches. [39] The Court in Simmons found that there were three distinct types of border searches. First was the routine questioning whichevery traveller underwent at a port of entry, sometimes accompanied by a search of baggage and perhaps a pat or frisk of outer clothing.There was no stigma attached to being checked in that manner and no constitutional issues were raised.

The second type of border searchwas the strip or skin search conducted in a private room, after a secondary examination and with the permission of a customs officer inauthority. The third and most highly intrusive type of search was the body cavity search: Simmons at para 27.

The Supreme Court laterconfirmed in R v Monney at paras 42-43 that given the context of border crossings, assessing the constitutionality of a search conductedat a border required a different analysis under s. 8 of the Charter. [40] Each of these three types of searches would raise different constitutional issues because the more intrusive the search, thegreater the degree of constitutional protection: Simmons at para 28. The Court found that in the context of the first type of border searchsuch individuals were not detained in a constitutional sense, nor would there be a breach of s. 8 Charter rights.

The Court, finding thatthere was a lower expectation of privacy at any border crossing, stated: [49] … the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect tobe able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both whoand what enters their boundaries. For the general welfare of the nation, the state is expected to perform this role.

Without the ability toestablish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would beprecluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect tobe subject to a screening process. R v CANFIELD [41] The Alberta Court of Appeal in Canfield recently decided that Simmons should be reconsidered in relation to searches ofpersonal electronic devices.

The Court found that personal computer and cell phone searches were not addressed in the Simmons decisionbecause, in 1988, people were not crossing borders with personal electronic devices that contained massive amounts of highly personalinformation. This is why the categories of searches listed in Simmons did not address informational privacy.

The Court also found thatbased on the Supreme Court of Canada’s post-Simmons decisions in Morelli, Vu and Fearon an individual’s reasonable expectation ofprivacy in a personal electronic device in a domestic context had increased as many of these devices now contained personal informationthat would reveal intimate details of a person, such information often described as being a “biographical core” of personal information.Searches of personal electronic devices could therefore not fall within the category of routine searches set out in Simmons. [42] Finding that Simmons should be revisited, the Alberta Court of Appeal found that s. 99(1)(

a) of the Customs Act wasunconstitutional. [43] The Court acknowledged that the high expectation of privacy that individuals have in their personal electronic devices mustbe balanced with the low expectation of privacy that individuals have when crossing international borders: Canfield, para 67. However,individuals do have some objectively reasonable expectation of privacy at the border especially regarding body searches.

The Courtfound that while the search of a computer or cell phone is not akin to the seizure of bodily sample or a strip search, it may still result in asignificant intrusion on personal privacy: Canfield, para 75. The Court held that the contents of electronic devices should be treateddifferently from other goods at the border given the significant personal information that could be stored on these devices. [44] The Court held, therefore, that to be reasonable, a search of a computer or cell phone at an international border crossing musthave a threshold requirement.: Canfield, para 75.

The Court noted that while many other provisions of the Customs Act containedthresholds for a search, s. 99(1)(

a) did not. For example, s. 99(1)(

b) of the Customs Act provides that an officer may “examine any mailthat has been imported and …open or cause to be opened any such mail that the officer suspects on reasonable grounds contains anygoods” that are prohibited, controlled or regulated. Reasonable grounds to suspect are also required prior to the carrying out of a strip

search under s. 98 of the Customs Act. Given the significant privacy interests in the contents of personal electronic devices and the lackof threshold for search in s. 99(1)(

a) of the Act, that

section was found to be contrary to s. 8 of the Charter. However, the Courtrecognized that not all searches of cell phones at the border would constitute an unreasonable search under s. 8 and that some informationcommonly stored on cell phones must be made available to BSOs as part of the routine screening: Canfield para 79. [45] The Court then examined the issue of whether the authorization of searches of personal electronic devices under s. 99(1)(a)was a reasonable limit under s. 1 of the Charter.

Section 1 “guarantees the rights and freedoms set out in it subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. In determining whether searchesof personal electronic devices pursuant to s. 99(1)(

a) were saved by s. 1 of the Charter, the Court determined that such searches were notreasonable and justified in a free and democratic society as per the test established in R v Oakes, (SCC), [1986] 1 SCR103. Although the objective of s. 99(1)(

a) did qualify as a pressing and substantial objective and the

section was rationally connected tothe objective of border security, the

section did not impair the s. 8 right as little as reasonably possible in furthering the legislativeobjective. In particular, the Court reiterated that many other sections of the Customs Act required a prescribed threshold to be met beforegoods entering Canada could be searched. The Court in Canfield stated: [99] The rationale for the distinction between the unrestricted search of goods permitted under paragraph 99(1)(a), and the thresholdrequirement for "suspicion on reasonable grounds" for the search of goods under paragraphs 99(1)(b), (c.1), (d), (d.1), (

e) and (

f) is notapparent.

As was noted in the discussion of the constitutionality of s 99(1)(a), the privacy interest in the contents of laptop computers orcell phones greatly exceeds that in a single piece of mail, yet mail can only be searched where an officer suspects on reasonable groundsthat the Customs Act has been violated. [100] As well, s 139(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 provides that persons seeking to enter Canada,their luggage, personal effects and the means of transportation that conveyed them to Canada may be searched if the officer believes onreasonable grounds that the person has not revealed their identity, has hidden on or about their person documents that are relevant totheir admissibility, or has committed or possesses documents that may be used in the commission of people smuggling, humantrafficking, or document fraud (emphasis added).

The CBSA's 2015 Operational Bulletin: Examination of Electronic Devices and Mediaat the Port of Entry - Interim Guidelines describe this provision as allowing "for the search of electronic devices and media at the ports ofentry where there are reasonable grounds" to believe that the criteria in the statute have been met, provided that the purpose of the searchmust be confined to identifying the person, finding documents relevant to admissibility or that may be used in the specified offences, orfinding evidence of the specified offences. [101] It is difficult to reconcile the requirement for "reasonable grounds" to search the computer or cell phone of an individual who isseeking to enter Canada pursuant to the Immigration and Refugee Protection Act with the lack of any requirement, not even at a lowerthreshold such as "reasonable suspicion", to search the computer or cell phone of an individual entering Canada (who, like the appellants,may be a Canadian citizen) pursuant to the Customs Act. [102] Having regard to the other provisions of the Customs Act and the Immigration and Refugee Protection Act, which impose somelimits on the searches of goods, and the policies adopted by CBSA with respect to searches of personal electronic devices, we find thatthe unrestricted ability to search such devices pursuant to s 99(1)(

a) does not satisfy the minimal impairment aspect of the proportionalityinquiry. [46] In balancing the salutary and deleterious effects of the impugned law, the Court held that national security interests of Canadain policing its border and enforcing its laws at the border were important objectives. However, these objectives could be met even ifadditional legislative safeguards were put in place to protect individuals from unnecessarily intrusive searches of personal electronicdevices.

The policies that CBSA had in place did safeguard individuals’ rights to some degree but these policies did not meet the s. 1requirement of being “prescribed by law”. [47] The Canfield decision has been followed in Ontario in the decision of R v Pike, 2022 ONSC 2297, 413 CCC (3d) 529 [Pike]although Pike is currently under appeal to the Ontario Court of Appeal and has not yet been argued. POSITION OF PUBLIC PROSECUTION SERVICES OF CANADA [48] The PPSC urges this Court to find that Canfield is wrongly decided and apply Simmons because I am bound to followSupreme Court authority.

It argues that the Alberta Court of Appeal failed to consider the context of border crossings in that BSOs mustconduct inspections to ensure compliance with regulatory legislation and that they do not conduct criminal investigations. The purposeof border inspections is to prevent prohibited goods, which includes child pornography that is most often stored on personal electronicdevices, from coming into Canada whether or not a person has knowledge of possession. Seizure of goods is predominantly a civilenforcement.

In addition, because all goods cannot be checked thoroughly, the system relies on voluntary compliance and the ability of

BSOs to make random inspections without individualized suspicion. [ 49 ] The PPSC submits that informational privacy is non-existent at the international border. Although the Supreme Court has, in other cases, noted significant privacy interests in cell phones in the domestic context, these privacy interests do not and cannot apply at the border.

Travellers must expect that a border inspection may impinge on their “biographical core of personal information” if there is a valid customs purpose for the inspection. [ 50 ] As well, there is no evidence that social values relating to border security has changed or that there is less concern about border security than there was when Simmons was decided. [ 51 ] Further, it argues that cell phone searches are not equivalent to searches that affect bodily integrity like strip and bodily cavity searches.

Therefore, the aspects of Simmons which held that Charter rights do apply to body and strip searches but not routine inspections do not have to be revisited. Given the context of border crossings, the pressing need to protect society outweighs individual privacy in a personal electronic device. [ 52 ] The PPSC also argues that the Court in Canfield erred in its finding that s. 99(1) (

a) of the Customs Act was unconstitutional because the

section provided no threshold limits on the examination of any imported goods beyond that the inspection be conducted for a valid customs purpose. It argues that the requirement of a valid customs purpose is in fact a limit on the search and that other provisions in the Customs Act also impose limits. For example, s. 163.5(4) prohibits the use of search powers solely for the purpose of looking for evidence of a criminal offence.

Section 107 imposes significant penalties on BSOs if private information is shared improperly. [ 53 ] As well, even in the domestic criminal law enforcement context, the Supreme Court of Canada in Fearon has determined that the scope of the authority to conduct a warrantless cell phone search will be governed by its purpose and this imposes a meaningful limit under the s. 8 Charter analysis. [ 54 ] The PPSC also states that Canfield ’s analysis of the minimal impairment criteria used to determine whether the impugned provision is saved under s. 1 of the Charter was incorrect.

This part of the inquiry requires the government to show that the measure at issue impairs the right as little as reasonably possible in furthering the legislative objective. The PPSC argues that any additional limits imposed on the routine examination of electronic devices would negatively affect the ability of BSOs to perform their border inspections duties and significantly compromise the government’s ability to control its border.

In other words, there are no reasonable alternatives for achieving the government’s rational objective in a real and substantial manner. [ 55 ] The PPSC points out that the Canfield approach noted at paragraph 79 would lead to absurd results. This paragraph reads: [79] … Although an unlimited and suspicion-less search of the contents of a personal electronic device would breach the Charter , we recognize that some of the information commonly stored on cell phones and other devices must be made available to border agents as part of the routine screening of passengers.

For example, and without setting out an exhaustive list, we note that receipts and other information relating to the value of imported goods, as well as travel related documents, are an essential part of routine screening. The review of such items on a personal electronic device during a routine screening would not constitute an unreasonable search under s. 8. [ 56 ] The Court appears to be saying that BSOs could conduct a routine search for travel related documents and information relating to the value of imported goods, but not for evidence of prohibited goods like child pornography.

Travel related documents could be found in a number of places on a cell phone. The PPSC asks how would that be hived off from other information located on the phone? The PPSC argues that imposing a threshold for inspecting some content and not “routine” documents would be unworkable. As well, imposing a threshold would allow paper goods to be subject to routine inspections, but that the same content on a cell phone would be beyond the reach of the law. This further demonstrates that there is no reasonable legislative alternative that would ensure that rights are impaired no more than is reasonably necessary.

ANALYSIS [ 57 ] Clearly I am bound by Supreme Court authority. The issue, however, is whether Simmons controls my analysis in these

circumstances. In reviewing Simmons I note that informational privacy in personal electronic devices was never considered, which is not surprising given that Simmons dealt with a body search for drugs. As well, in 1988, personal electronic devices were not common and I agree with Harris J. in the Pike decision, which followed Canfield, that the Supreme Court of Canada could not have foreseen the advancements in technology which currently exist. Therefore, what is the ratio decidendi of Simmons?

Harris J stated as follows in Pike : [33] When we ask how Simmons matches up with the decision to be made here — what is its ratio decidendi ? — a comparison reveals fundamental differences. The three levels of privacy catalogued in Simmons at p. 516 (para. 30 ) do not touch on informational privacy. Furthermore, the provision at issue in Simmons had a threshold of reasonable suspicion. In contrast, the provision at issue here, s. 99(1) (

a) of the Customs Act , has none. The importance of the reasonable suspicion threshold to the decision in Simmons was crucial. Its importance is evident in several key passages in the reasons of Chief Justice Dickson upholding the provisions of the Customs Act from constitutional attack (see paras. 53-54). [ 58 ] I agree with this reasoning and that Simmons is not the final answer in defence of Mr. Benedicto’s application. [ 59 ] The PPSC is correct in stating security concerns at international borders have not decreased since Simmons .

Yet, the manner of using personal electronic devices has changed significantly such that one can reasonably expect every personal cellphone to contain sensitive, personal information. The Supreme Court of Canada’s decision in Fearon regarding one’s reasonable expectation of privacy in cell phones confirms this.

In that decision, the Court examined whether a search incident to arrest included the right to search a cell phone by stating: [51] It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other "places": R. v. Vu , 2013 SCC 60 , [2013] 3 S.C.R. 657, at paras. 38 and 40-45 . It is unrealistic to equate a cell phone with a briefcase or document found in someone's possession at the time of arrest.

As outlined in Vu , computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user's interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense "at" the location of the search: paras. 41-44. [ 60 ] Even though Fearon found that a cell phone search was completely different from the seizure of a bodily sample or a strip search, the search of a cell phone had the potential to be a much more significant invasion of privacy than the typical search incident to arrest.

Therefore, the general common law framework for searches incident to arrest required modification as it related to cell phone searches: Fearon , para 58 . [ 61 ] In an effort to balance law enforcement objectives with an individual’s privacy interests, Fearon modified the common law power to search cell phones incidental to arrest by establishing requirements that would make such searches constitutionally compliant. However, the Court left open the possibilities that there may be other ways to make such searches Charter compliant.

The Court in Fearon stated: [84] In setting out these requirements for the common law police power, I do not suggest that these measures represent the only way to make searches of cell phones incident to arrest constitutionally compliant. This may be an area, as the Court concluded was the case in Golden , in which legislation may well be desirable.

The law enforcement and privacy concerns may be balanced in many ways and my reasons are not intended to restrict the acceptable options. [ 62 ] Although Fearon dealt with cell phone searches in a domestic context, I agree with the Courts in Canfield and Pike that the constitutionality of the power to search cell phones at the border must be examined post Fearon . [ 63 ] I agree with the Court in Canfield that informational privacy does exist at the border. This is why s. 99(1) (

b) of the Customs Act sets a threshold of reasonable grounds for the inspection of mail. I also agree that a search of a cell phone may be a significant intrusion on personal privacy. Therefore, even in a border context, legislation allowing for a search of a cell phone must have a threshold requirement and cannot be limitless. [ 64 ] The PPSC submits that the Customs Act contains limits on the power to search personal electronic devices.

These statutory limits include the requirement that searches of electronic devices be conducted in accordance with the purpose of the Customs Act , that search powers not be used solely for the purpose of looking for evidence of a criminal offence, and that significant penalties are imposed on BSOs if private information is shared improperly. A similar argument was made in Canfield , albeit under the s. 1 Charter analysis dealing with minimal impairment test, and was rejected.

[ 65 ] I disagree with the position taken by the PPSC that Fearon determined that the scope of the authority to conduct a warrantless cell phone search incidental to arrest could be governed by its purpose and that this imposed a meaningful limit under the s. 8 analysis. The Court did state that the search had to be based on a valid law enforcement purpose, but it imposed further restrictions. For example, the purpose of the search for discovery of evidence was limited to situations in which the investigation would be significantly hampered absent the ability to promptly search the cell phone incident to arrest.

As well, police were required to take detailed notes of what they had examined on the device and how it was searched. These judge-made rules ensured that the search would meet constitutional standards. [ 66 ] The PPSC argues that any thresholds to search and limits on the searches would hamper the CBSA’s ability to fulfill its mandate. This was also its position in Canfield . [ 67 ] I note the CBSA has implemented policies to regulate cell phone searches. These policies impose limits on searches and there is no evidence that they have hindered the CBSA’s ability to fulfill its mandate at the border.

Therefore, the PPSC’s argument that limits would adversely affect national security, public safety and the flow of goods and people across the border fails. [ 68 ] The Court in Canfield held that s. 99(1) (

a) imposed no legislative limits on searches of goods at the border. It did not accept the Crown argument that a limit existed because searches of electronic devices had to be conducted in accordance with the purpose of the Customs Act . I agree. If the necessity that searches be conducted in accordance with the purpose of the Act was a sufficient limit, why would the other subsections of s. 99 contain thresholds? Why would the CBSA develop policies which contain thresholds or limits so as to ensure that examinations are conducted in a constitutional manner?

I find that given that the policies are not legislation, they are not limits authorized by law. As well, I cannot accept that the Customs Act contains limitations on s. 99(1) (

a) searches that would make them constitutional. [ 69 ] Canfield found that although an unlimited suspicionless search of the contents of a personal electronic device would breach the Charter , the search or review of certain items like travel-related documents on a personal electronic device during routine screening would not constitute an unreasonable search under s. 8. The difficulties in searching cell phones for only certain content may pose some difficulties, but I turn again to the policies adopted by the CBSA which impose limits on the search of content.

These limits, if contained in legislation, could ensure that searches of cell phones were conducted in a systematic way that was constitutional. [ 70 ] In

summary, I find the reasoning in the Canfield decision to be persuasive, and I adopt the reasoning to this case. I therefore find that s. 99(1) (

a) of the Customs Act is unconstitutional as it relates to personal electronic devices in that it is contrary to s. 8 of the Charter and is not saved by s. 1 . I will not apply it to this case. The search of Mr. Benedicto’s cell phone was therefore unreasonable in that it was not authorized by a valid law and breached his rights under s. 8 of the Charter . WERE THE ACCUSED’S RIGHTS UNDER S. 10 OF THE CHARTER BREACHED? [ 71 ]

Section 10 of the Charter provides that everyone has the right on arrest or detention “to be informed promptly of the reasons therefore” (10(a)) and “to retain and instruct counsel without delay and to be informed of that right” (10(b)). These rights apply when an individual is detained or arrested and the burden is on the applicant to establish arrest or detention. [ 72 ] Mr. Benedicto argues that the Supreme Court of Canada’s definition of detention as articulated in R v Grant , 2009 SCC 32 , [2009] 2 SCR 353 [ Grant ] should apply in this case.

As stated in Grant , an individual who is confronted with state authority usually has the right to walk away. When this choice is removed through physical or psychological compulsion, the individual is detained within the meaning of s. 10. Based on this definition, Mr. Benedicto states that all travellers entering into Canada are detained as they pass through customs screening. [ 73 ] In the alternative, he argues that if travellers are not detained during routine screening, they are detained when they are identified for focused suspicion of a criminal offence and BSOs decide to search their electronic devices.

When questioning proceeds from routine to a more intrusive form of inquiry, initiated on the basis of a sufficiently strong particularized suspicion and with significant legal consequences, the person becomes detained and s. 10 applies. [ 74 ] Mr. Benedicto states that he was detained when the BSOs asked for his passcode to search his phone. The Provincial Crown, on the other hand, argues that Mr. Benedicto was never detained and therefore s. 10 did not apply. In particular, it states that his

interaction with BSOs was routine and he was not the subject of some sufficiently strong particularized suspicion. He was neverquestioned about the contents of the cell phone, and after his cell phone was seized pursuant to s. 101 of the Customs Act, he entered intoCanada. [75] In Simmons, at paras 27 and 36, the Court stated that routine questioning of travellers, the search of their luggage and perhapsa pat down search of a traveller, did not constitute a detention for the purposes of s. 10 of the Charter and therefore did not engage s.10(

b) Charter rights. In Simmons and R v Jacoy, (SCC), [1988] 2 SCR 548 [Jacoy], (released concurrently), the Courtdecided a traveller was detained when customs inspectors assumed control over his movement by a demand that had significant legalconsequences. In these cases the traveller had been forced to submit to a strip search. Detention was found to have occurred once adecision had been made to potentially or actually strip search a traveller. [76] In addition, Simmons and Jacoy held that a person attempting to enter Canada may become detained when the questioning andsearches become less routine and more intrusive. At this point, an individual’s s. 10(

b) rights are engaged: R v Sinclair, 2016 ONSC 877at para 43, affirmed 2017 ONCA 287. [77] This was reaffirmed in Dehghani v Canada (Minister of Employment and Immigration), (SCC), [1993] 1SCR 1053 [Dehghani] regarding the questioning of travellers. At para 41 the Court stated: [41] The questioning of the appellant was clearly distinguishable from an intrusive strip search.

As Dickson C.J.C. stated at p. 517[S.C.R.] in Simmons, supra, the degree of constitutional protection will be a function of the degree of intrusiveness of the search at issue.While the present case does not concern a search, but rather questioning, an analogy can be drawn.

The questioning of the appellant wasroutine in nature, and concerned solely with his reasons for wishing to enter Canada, and the basis upon which he wanted to do so. [78] The Ontario Court of Appeal in R v Jones (2006), (ON CA), 81 OR (3d) 481 [Jones] in applying Simmonsconfirmed that since Canada needs to effect control over its borders, no one entering Canada can reasonably expect to be left alone byborder officials.

Routine inspection is not stigmatizing, and principles of fundamental justice permit greater interference with personalautonomy and privacy than would ordinarily be acceptable: Jones at paras 30-35. Accordingly, any restraint by a customs inspection towhich a traveller may be subject does not necessarily constitute detention: R v Kwok (1986), (ON CA), 31 CCC (3d)196 (Ont CA). Even restraint in secondary screening may not be enough to trigger a detention: Dehghani. [79] Doherty J.A. in the Jones decision stated that BSOs could focus their routine questions and searches on persons who hadattracted suspicion.

However, while relying on Jacoy, he confirmed that if the BSO had “decided, because of some sufficiently strongparticularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well bethat the individual is detained when subject to that routine questioning”: Jones, at para 42.

More recently, the Ontario Court of Appealconfirmed that questioning at the border that amounted to a coercive or adversarial interrogation or exerted unfair pressure would alsoamount to detention: R v Ceballo, 2021 ONCA 791 at para 22, 408 CCC (3d) 70. [80] A number of cases have found that the trigger for detention is not the formulation of the subjective intention of the borderofficer to engage in an intrusive investigation, but rather the trigger is the steps taken by the officer that make the individual aware thatthe officer is no longer conducting a routine investigation: Ceballo, para 29. [81] Paciocco J. in Ceballo noted that the line between routine investigation and detention is not always clear.

Routineinvestigation can be fairly robust as the use of x-rays and ion scans are routine forms of inspection: R v Peters, 2018 ONCA 493 at paras3 and 11 [Peters]. Questions relating to marital or employment status, income, or the purpose of the trip are routine: Jones at para 20-21. [82] In the case of Ceballo, the Court upheld the trial judge’s determination that Ms. Ceballo had not been detained. Ms. Ceballoentered Canada from St. Maarten through the Toronto Airport. CBSA flagged her arrival as a target for contraband based on her criminalhistory and her travel details.

Upon arrival, she was referred to secondary inspection and questioned about her travel itinerary and an ionswab of her purse came back positive for cocaine. She was questioned about drug use and possession of drugs. She denied using orpossessing drugs. However, when she was specifically asked if she had drugs strapped to her body, she admitted that she had. She hadnot been told that she would be strip searched. The trial judge found that Ms. Ceballo was not detained and that her questioning wasroutine.

The Court of Appeal found no error in the trial judge’s analysis and held that targeting a traveller for investigation for a specifickind of offence did not necessarily amount to a particularized suspicion: Ceballo, para 37. The appellate Court also found that there wasan important difference between having general suspicion that a person seeking entry could be engaged in criminality and having thesufficiently strong particularized suspicion that could open the door to a finding of detention: Ceballo, para 38.

[ 83 ] The following cases further illustrate how the line between routine questioning and inspection, and detention is not always clear: 1. Questioning a traveller about contents 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 had strong particularized suspicion that the traveller was in possession of child pornography: R v Pike, 2022 ONSC 2298 . That strong particularized suspicion was 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 the 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 cell phone, 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 visa 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 other 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 Sekhon , 2009 BCCA 187 , 67 CR (6 th ) 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 ]. 8. A traveller was detained when, after a positive ion and dog sniff test indicated narcotics on the traveller, the BSO asked her if she had any drugs in her possession: R v Pereira , 2022 ONSC 2281 . Was Mr.

Benedicto detained? [ 84 ] Although the Courts have established tests to determine detention, these tests can be difficult to apply and may lead to somewhat inconsistent results as noted above. [ 85 ] In particular, it is not clear whether the request for or the provision of a passcode alone, without a strong particularized suspicion, constitutes detention. The Alberta Court of Appeal in Canfield found that Mr. Townsend was detained when a password was requested, while in Al Askari , the Court found otherwise.

The main factual difference between these two appellate decisions was that the BSOs had no indictors pointing to Mr. Al Askari possessing child pornography, while the BSOs in the case of Canfield had indicators that Mr. Townsend may possess child pornography. Based on these decisions, it appears that the presence of indicators, which would justify further questioning and inspection, could support a finding of detention that requires the application of s. 10 of the Charter . [ 86 ] In the case of Mr. Benedicto, the BSOs knew that he had been charged and acquitted of possessing child pornography.

This was the reason the officials wanted to inspect his phone. I find that the BSOs had, at most, a general suspicion but not a strong particularized suspicion that he possessed a prohibited good, being child pornography. Also, I do not find that he was subject to coercive or adversarial interrogation or unfair pressure. Based on these factors I find that the request for his passcode was routine. [ 87 ] Another indicia of detention is whether the inspection has “significant legal consequences” to the traveller.

The case law is unclear as to whether “significant legal consequences” is referring to the outcome of the search or the nature of the privacy interests which are impacted by the search. Even routine inspections that result in the finding of criminality will have significant legal consequences for the traveller. If “significant legal consequences” relates to the privacy interests at stake, the Courts have noted that

travellers have a greater privacy interest in their bodies than in their cell phones: Canfield para 75. [88] I do not have to determine the meaning of “significant legal consequences” in this case since although the BSOs asked for Mr.Benedicto’s passcode, it was never provided. He was never questioned about the contents of his cell phone. His phone was seized unders. 101 of the Customs Act since he could not provide the passcode. His criminal jeopardy and the invasion of his privacy rights arosefrom the search of his phone years after Mr. Benedicto had left the border crossing. I cannot find that Mr.

Benedicto was detained at theborder crossing when he was questioned by the BSOs and asked for his passcode. I therefore find that his s. 10 rights were not breached. WERE THE ACCUSED’S RIGHTS PURSUANT TO S. 7 OF THE CHARTER BREACHED? [89]

Section 7 of the Charter provides that everyone has “the right to life, liberty and security of the person and the right not to bedeprived thereof except in accordance with the principles of fundamental justice.” The principle against self-incrimination is a principleof fundamental justice under s. 7 of the Charter. [90] Mr. Benedicto alleges breaches of his rights under s. 7 of the Charter by virtue of the fact that he was compelled to provideinformation to officers at the border when the inspection exceeded the limits of a routine border inspection. The Crown responds thatMr.

Benedicto’s questioning was routine in nature and therefore the principle against self-incrimination does not apply. As well, itargues that apart from the seizure of the cell phone, Mr. Benedicto did not incriminate himself. [91] As previously stated, whether state action at the border will be found to interfere with individual constitutional rights dependsprimarily on the intrusiveness of that state action: Jones para 32. The finding that those who are subject to routine questioning andsearches suffer no stigma is relevant to the self-incrimination analysis: Jones para 33, Simmons.

In particular, routine questioning andsearches cannot be characterized as coercive or adversarial. Therefore, statutorily compelled statements made during routine questioningor searches does not demand the exclusion of such statements in subsequent proceedings: Jones para 33. As well, absent detention, thereis no constitutional right to remain silent at the border: Jones, para 36, citing R v Hebert, (SCC), [1990] 2 SCR 151. [92] No statements of Mr. Benedicto were tendered against him in these proceedings. He did not provide his passcode, nor was heever detained.

I therefore do not find that his rights pursuant to s. 7 of the Charter were breached. SECTION 24(2) ANALYSIS: SHOULD THE EVIDENCE BE EXCLUDED? [93] Given that I have found the officers breached Mr.

Benedicto’s Charter rights pursuant to ss. 8 of the Charter by searching hiscell phone, I am required to conduct an analysis as set out in R v Grant, 2009 SCC 32 to determine if the evidence of child pornographyshould be admitted or excluded pursuant to s. 24(2) of the Charter. [94] In this analysis, I must make an assessment under three lines of inquiry and then conduct a final balancing to determinewhether, having regard to all of the circumstances, the admission of the evidence would bring the administration of justice intodisrepute.

The question to be answered is whether a reasonable person, informed of all relevant circumstances and the values underlyingthe Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. The accusedbears the onus of establishing this test. The purpose of excluding evidence is not to punish the police or to compensate the accused. Aswell, s. 24(2) does not create an automatic exclusionary rule when evidence is obtained as a result of a breach.

The First line of inquiry: The Seriousness of the Charter-infringing State Conduct [95] At this stage, the Court must look at the nature of the police conduct that infringed the Charter and situate it on a scale ofculpability: R v Paterson, 2017 SCC 15 at para 43, 347 CCC (3d) 280 [Paterson]. The more severe or deliberate the infringing conduct,the more the courts need to disassociate themselves from it by excluding the evidence linked to the conduct so as not to undermine publicconfidence in the administration of justice: Grant at para 72.

Wilful or reckless disregard for Charter rights will be a more seriousviolation and will have a negative effect on the public confidence in the rule of law: Grant at para 74. The concern of this inquiry is notto punish the police but to preserve the public’s confidence in the rule of law.

[ 96 ] If there was good faith on the part of the police officers or if the breach was merely technical in nature or resulted from an understandable mistake, the Court will not have to be as concerned with disassociation: R v Harrison , 2009 SCC 34 at para 22 , 245 CCC (3d) 86 [ Harrison ]. As held in R v Buhay , 2003 SCC 30 at para 59 , [2003] 1 SCR 631, and Paterson , at para 44 , a "good faith" error on the part of the police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards.

In other words, the reputation of the administration of justice requires that courts should dissociate themselves from evidence obtained because of police negligence in meeting Charter standards: R v Le , 2019 SCC 34 at para 143 , 375 CCC (3d) 431 [ Le ]. While ignorance of the law is not good faith, good faith may sometimes be found when police make a reasonable, non-negligent error in applying an established but indeterminate legal standard: Grant at para 133 .

If police are acting in good faith, pursuant to what they thought were legitimate policies, the state conduct will be less serious: Grant , para 75 . [ 97 ] I find that the BSOs believed that they had lawful authority to search Mr. Benedicto’s phone. This belief was not unreasonable since the search was conducted before Canfield was decided and was supported by the legislation and the jurisprudence at the time. The phone was not going to be searched arbitrarily since there were some indicators to support the search. [ 98 ] Mr.

Benedicto argues that it was unreasonable that the phone be held in excess of two years before the technology allowed it to be searched. In other words, the search was not conducted reasonably and increases the seriousness of the s. 8 breach. I do not agree. CBSA officials believed that they had the right to seize the phone and hold it until they could determine if it contained prohibited goods. During this time, the phone was not searched. Once it was searched, there is no evidence that the search was conducted unreasonably.

The search was conducted methodically with the applications with the largest storage capacity being searched first. The BSO who conducted the search could articulate which applications he searched and why he did so. The search was conducted in a reasonable manner. [ 99 ] I conclude that these factors favour admission. The Second line of inquiry: The Impact of the Breach on the Charter -protected Interests of the Accused [ 100 ] This line of inquiry involves examining the interests engaged by the Charter rights and the extent to which the breach affects those interests.

It focuses on the degree of seriousness of the breach. Some breaches may be transient or trivial in their impact: Harrison at para 28 . The more serious the infringement of an accused’s rights, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute: Grant at para 76 . [ 101 ]

Section 8 of the Charter protects privacy of the individual except to the extent permitted by law. Breaches of s. 8 in circumstances where an individual has a high expectation of privacy tend to favour exclusion of evidence, while breaches where an individual has a lower expectation will tend away from exclusion: Grant at para 78 . [ 102 ] There is no evidence that the BSO searched Mr. Benedicto’s personal emails or other messaging applications.

After he found two images of child pornography, he quit searching but then notified the appropriate policy agency who then conducted a thorough search pursuant to judicial authorization. As the police search was based on a border search done in contravention of s. 8 of the Charter , all searches must be subject to a s. 24(2) analysis. The impact of the original search on Mr. Benedicto was not minimal as this led to the subsequent police search of his phone. I find that Mr.

Benedicto had a high expectation of privacy in the cell phone and in particular in all of the lawful information and data on his phone that was withheld from him for more than two years. I find that the searches constituted a significant breach of Mr. Benedicto’s privacy interests. [ 103 ] These factors weigh against admission. The Third line of inquiry: Society’s Interest in the Adjudication of the Case on its Merits [ 104 ] This stage deals with the criminal trial process and asks whether its truth-seeking function is better served by the admission or exclusion of the evidence in question.

It is in the interest of society to ensure that individuals who are accused of violating the law are brought to trial and are dealt with according to the law: Grant at para 79 . This line of inquiry pulls towards admission of reliable evidence as exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective: Grant at paras 81 and 83 .

[105] In particular, the question that has to be asked is “whether the vindication of the specific Charter violation through theexclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial”: R v Kitaitchik (2002), (ON CA), 166 CCC (3d) 14 at para 47 (Ont CA), cited in Grant at para 82. [106] The seriousness of the offence should not be the primary concern under the third inquiry and should not “overwhelm the s.24(2) analysis”: Harrison at para 40.

While disrepute may result from the exclusion of relevant and reliable evidence (Grant at para 81),so too might it result from admitting evidence that deprives the accused of a fair hearing or that amounts to "judicial condonation ofunacceptable conduct by the investigatory and prosecutorial agencies”. “An "adjudication on the merits", in a rule of law state,presupposes an adjudication grounded in legality and respect for longstanding constitutional norms”: Le at para 158. [107] The third line of inquiry becomes important where one, but not both, of the first two inquiries pull towards the exclusion of theevidence.

Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom, if ever, tipthe balance in favour of admissibility: Paterson, at para. 56. However, if the first two inquiries reveal weaker support for exclusion ofthe evidence, the third inquiry will most often weigh in favour of admissibility: Le at para 142. [108] Digital files containing child pornography are highly reliable real evidence and the offence of child pornography is extremelyserious. The Crown would not be able to prove its case without the evidence which is sought to be excluded.

I believe that society has astrong interest in the adjudication of this case on its merits. This weighs heavily in favour of admitting the evidence obtained in thesearch of Mr. Benedicto’s cell phone. Balancing the Grant factors [109] Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the Court must thendetermine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice intodisrepute: Grant at para 85.

The balancing has a qualitative nature and there is no overarching rule as to how the balance is to be struck:Harrison at para 36. Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and publicconfidence in, the administration of justice: Grant at para 68. [110] Taking into account and balancing all three of the Grant consideration, I have concluded that the evidence should not beexcluded as to do otherwise would adversely affect the repute of the administration of justice. The search was carried out in good faithbased on a reasonable

interpretation of the law at that time. The search uncovered evidence of a serious offence and society would wantan adjudication of this case on its merits. The evidence of child pornography found on Mr. Benedicto’s phone is admitted. CONCLUSION [111] I find that s. 99(1)(

a) of the Customs Act as it applies to searches of personal digital devices is unconstitutional and cannot beapplied in this case. Therefore, Mr. Benedicto’s s. 8 Charter rights were breached when his cell phone was searched. Since I am notsatisfied that he was detained, I find that neither his s. 10 nor his s. 7 rights were breached. Notwithstanding the s. 8 breach, afterconducting a Grant analysis, the evidence of pornography is admitted. _________________________M. Beaton, J