2018 QCCQ 7262, 2018 QCCQ 7262

R. c. Patel 2018 QCCQ 7262 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL "Criminal and Penal Division" N o : 500-73-004408-163 500-73-004442-162 DATE: August 24, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE ROBERT MARCHI, J.C.Q. ______________________________________________________________________ THE QUEEN RESPONDENT (Prosecutor) v.

Pintu Gandabhai PATEL APPLICANT (Accused) ______________________________________________________________________ DECISION PERTAINING TO MOTIONS TO EXCLUDE EVIDENCE PURSUANT TO SECTIONS 7, 8, 24(1) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS [1] _____________________________________________________________________ [ 1 ] Pintu Gandabhai PATEL (hereinafter called Patel [2] or the Accused) is charged with having contravened Sections 117 and 122(1)

a) of the Immigration and Refugee Protection Act [3] (hereinafter called IRPA) at his arrival in Canada on October 25 th , 2015. [ 2 ] His trial is due to proceed before a judge of the Court of Québec. [ 3 ] The Accused has filed 2 pre-trial motions to have pieces of evidence excluded pursuant to Sections 7 , 8 , 24(1) and 24(2) of the Charter . [ 4 ] One of the motions (hereinafter referred to as Motion #1) is a motion to exclude statements made by the Accused to Canada Border Service Agency (CBSA) Officer Kari Warren (Warren) at his arrival in Canada.

It is based on Sections 7 and 24(1) of the Charter . [ 5 ] The other motion (hereinafter referred to as Motion #2) seeks to have excluded from the evidence results of various searches and seizures performed by immigration officers, more specifically phones and sim cards. Motion #2 is based on Sections 8 and 24(2) of the Charter . [ 6 ] The undersigned has been appointed as Case Management Judge pursuant to

Section 551.1 of the Criminal Code (hereinafter the Code ). THE CONTEXT [ 7 ] In his motions, the Accused exposes the facts which gave rise to the accusations. The Court will reproduce parts the “Factual Background” presented by the Accused in his motions [4] : The Factual Background 1. Pintu Patel arrived at Pierre Elliot Trudeau International Airport in Montréal on the 25 th of October 2015 and he was accompanied by Dipika Patel, her common-law partner, and the small child of Ms. Patel, Mahi; 2. Upon arrival, Mr.

Patel made a claim to obtain refugee protection to Officer Saraï Cherilus of the Canada Border Service Agency (CBSA); 3. Ms. Patel and her daughter also made a claim to obtain refugee protection to a CBSA officer;

4. […]; 5. On the 26 th of October, CBSA officer Nicolas Satgé processed the refugee claim of Mr. Patel and found it to be eligible after interviewing the claimant for four hours with the assistance of an interpreter, the control ended and the case was deferred to the Immigration and Refugee Board of Canada; 6. But, because Mr. Patel had no valid passport when he entered Canada and because he hadn’t been able to prove his identity to CBSA satisfaction, Officer Satgé arrested the claimant under section 55

(2) b) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (hereinafter IRPA); 7. […] 8. The claims of Ms. Patel and the child have also found to be eligible but they have also been arrested for identity purposes; 9. Mr. and Ms. Patel stated, in a document named

Schedule 12 Additional Information—Refugee Claimants Inside Canada , that they paid $10,000 to Ashlm for assistance “ provide passport ”; 10. On the 28 th of October, the 48 hours’ review was held and the detention of Mr. Pintu was maintained for seven days; 11. Mr. Patel file was then transferred to the CBSA Inland Enforcement and Removal

Section and the case was assigned to Officer Kari Warren on the 30 th of October; 12. Officer Warren belongs to the Identity

Section whose primary task is to investigate the identities of foreign nationals who are detained under section 55 (2) IRPA because CBSA is not satisfied of their identity; 13. On the 30 th of October 2015 [amended for November 2 nd , 2015] , Officer Warren obtained a statement from Mr. Patel: a. His original passport stayed at his home in India; b. His occupation in India was farming; c. He knows Ms. Patel for eight years; d. He is married to another woman in India but he stayed with his wife, named Twinkal, only two months; e. He is not the father of the child Mahi, Ms.

Patel is wedded to another man until 2010; f. They fled India two months ago; g. He has no Facebook account; 14. On the 2 nd of November, after a fingerprint check, Officer Warren learned that Mr. Patel applied fruitlessly twice for United States visas; 15. Also on November 2, with the assistance of an interpreter, Officer Warren questioned Dipika Patel about the origin of the colour copies of their identity documents and she stated that they come from Pintu Patel’s phone; 16.

On the same day, with the assistance of an interpreter, Officer Warren questioned Pintu Patel about the origin of the colour copies of their identity documents and he stated they were printed out at a cyber café from scan copies of his email account; 17. During the questioning, Mr. Patel also gave up the e-mail address ([...]@gmail.com) he uses since 3 or 4 years; 18. She also obtained a statement of Mr. Patel to the effect that he tried in vain to obtain visas for seven other countries; 19.

There is no occurrence in the evidence communicated by the Prosecution that Officer Warren, on the 30 th of October and on the 2 nd of November, gave Mr. Patel his rights under sections 10a) and 10b) of the Charter and his rights under

section 36 of the Vienna Convention ; 20. On the 3 rd of November, the seven days’ review was held and Mr. Patel detention was maintained for another seven days because there was a minor child detained in that case; 21. The same day, Officer Warren sent a request to the detention centre to have cellular phones of Mr. Patel brought to his office; 22. The 4 th of November, Officer Warren received cellular phones at her office of the following brands and models: a. Samsung GT-18262 smartphone with no SIM (Subscriber Identity Module) card; b. Apple iPhone 5, locked with a password, with no SIM card; c.

Samsung GT-E1252 mobile phone with a SIM card in it; 23. During a questioning session made on the same day, with the assistance of an interpreter, Officer Warren obtained the following statements from Mr. Patel:

a. The Samsung smartphone and iPhone belong to him; b. The Samsung mobile phone belongs to his wife (according to Officer Warren report of the 12 th of November 2015 and paragraph 25 of the Information to Obtain a Search Warrant file #500-26-092644-156) or to Dipika (according to paragraph 39 of the Information to Obtain a Search Warrant file #500-26-097003-168); c. He had his phones for approximately 2 years; d. It’s normal in India to have 2 phones because people like to use one SIM card; e.

Neither phone is in his name, the iPhone was given to him by Ronak Patel and the Samsung smartphone was given to him by Rohit Shah; f. The iPhone password is 7575; g. The SIM Cards are located in his luggage; h. He removed the SIM Cards so nobody can pinpoint his location; 24. Officer Warren then seized the phones and served a section 140 (1) IRPA Notice of Seizure to Mr. Patel; 25. She also sent a request to the detention centre asking that Mr. Patel’s luggage be searched for the SIM cards; 26. […]; 27.

On the same day, Officer Warren searched the phones under the authority of section 16 (3) of IRPA and she located the following items of interest: a. A Facebook profile; b. Three e-mail addresses: i. [...]@gmail.com ; ii. [...]@yahoo.ca; iii. [...]@gmail.com ; c. Dozens of photos of passports, Canadian Visas, identity documents, stamps, passport photos and U.S. visa interview information for dozens of subjects, including Twinkal Patel; d. Messages using Facebook and Whatsapp applications about, according to Officer Warren opinion, about identity documents, ages of individuals and prices; e.

Emails containing information for Canadian visas, copies of ID documents for certain individuals; f. Emails regarding Mr. Patel’s application for a Swiss visa; 28. During the search of the phones Officer Warren didn’t find any documents relevant to the identity of Mr. Patel; 29. Officer Warren sent an email to Officer Benoit Marchand of CBSA Intelligence requesting him to contact her because Pintu Patel became a subject of interest for documents smuggling; 30. On the 5th 6th of November, Officer Warren and her fellow CBSA officer Nadia Jarwa continued their searches in Mr.

Patel’s phones by crossing their findings with two databases, the Global Case Management System (GCMS) and the Integrated Customs Enforcement System (ICES); 31. Officer Warren did not take notes in her CBSA issued notebook but rather on legal format ruled sheets from a paper pad (communicated by prosecution on disclosure CD under filename “Notes manuscrites K. Warren"); 32. These notes are a list of names—associated with dates of birth, passport serial numbers, phone numbers, etc.—corresponding for some of them with Canadian visa numbers, refugee claim and immigration unique identification numbers; 33.

For some of the names of the list, they are also comments: a. “visa issued entered Canada”; b. “visa issued not travel yet”; c. “no cash”; d. “bank account”; e. “visa not issued yet”; f. “possible hit wanted”;

g. “ref claimant”; 34. On the 6th of November, Officer Warren left a message to CBSA Intelligence; 35. Upon returning from the weekend, on Monday the 9th of November, Officer Warren received Pintu Patel’s SIM cards, retrieved from his luggage, by the detention facility personnel; 36. That morning, Officer Warren spoke with Intelligence Officer Marchand who suggested contacting CBSA Criminal Investigation Division; 37. Officer Warren also discussed with Officer Jarwa who suggested contacting an interpreter to further investigate the messages on Mr.

Patel’s phone because they appeared partially written in English and in phonetic Hindi; 38. Interpreter R. Nami was reached and, after looking at the messages, he shared the opinion of the two officers confirming that they appeared related to the sale of documents; 39. At 1:20 pm, Officer Warren contacted officer Isabelle Trinque from the CBSA Criminal Investigation Division because she had experience prosecuting similar cases involving Indian nationals; 40. Officer Warren told to Investigator Trinque that Mr.

Patel had many emails with ID information, that he travelled a lot, had a lot of contacts in Canada and was involved in documents smuggling; 41. Approximately between 1:55 pm and 2:35 pm, Officer Trinque contacted the CBSA on duty investigator Marie-Josée Dionne; 42. Investigator Dionne and his partner John Gagnon met Officer Warren and interpreter Ejaz Rana; 43. Between the 4th and the 9th of November, Officer Warren took pictures of Mr.

Patel’s phones content with her personal mobile phone—imaging text from several chats, some ID documents, photography and visas—and she forwarded them from her personal email to his work email [...]@cbsa-asfc.gc.ca; 44. Officer Warren printed the pictures and after she deleted them from her personal mobile phone; 45. On the 9th of November, some of these pictures were sent by Officer Warren to Investigator Gagnon; 46. Around 3:30 pm, Investigators Dionne and Gagnon arrested Pintu Patel under

section 117 IRPA and gave him his rights with the assistance of interpreter Rana; 47. Mr. Patel spoke to a lawyer and made no statement; 48. The three phones and SIM cards were seized without a warrant from Officer Warren on the 9th of November at 4 pm and reported, on the 24th of November, to a justice of the peace according to

section 489.1 of the Criminal Code (file #500-21-087658-154); 49. On the morning of November 10th, at the detention centre, investigators Dionne and Gagnon questioned Mr. Patel with assistance from interpreter Rana; 50. Again, Pintu Patel remained silent and made no statement; THE EVIDENCE [ 8 ] As part of the evidence on the Motions, and apart from the facts described in the “Factual Background”, the Accused has admitted the following: • That on October 25 th , 2015, officer Charai Cherilus, of CBSA, informed the Accused of his rights under

Section 10b) of the Charter and

Section 36 of the Vienna Convention on Consular Relations [5] (hereinafter referred to as the Vienna Convention ). That Cherilus made no threats or promises to the Accused. That a Hindi interpreter was then “present” on the phone. That he signed Exhibit I- 1. • That on October 26 th , 2015, CBSA Officer Nicolas Satgé made a complete assessment of the refugee claim made by the Accused. That he arrested him under Section 55(2) of IRPA and informed him of his rights under Sections 11b) of the Charter and 36 of the Vienna Convention and that he made no threats or promises to the Accused.

That a Hindi interpreter was then “present” on the phone. [ 9 ] CBSA Officer Kari Warren (Warren) testified on the Motions. She explained that she is part of the “Identity Section” of the CBSA Inland Enforcement and Removal

Section and that the file of the Accused was assigned to her on October 30 th , 2015. [ 10 ] She explained that her role as part of the Identity

Section is (1) to inquire into the identity of persons detained by CBSA officers when the officers are not satisfied of the true identity of those persons and (2) to assist those persons in satisfying the members of the team of their true identity. She stressed the fact that identity is central to the whole refugee claim process. It is, as she stated, the “number one priority”.

It is in that context that she received the statements of the Accused that are the object of Motion #1. [ 11 ] She explained that as an officer of the Identity Section, she will usually meet with the refugee claimant, put questions as to his identity, obtain additional documents, have some of those documents analysed and make verifications with various liaison officers and consulates. [ 12 ] As a CBSA officer, she holds various powers under IRPA . In her testimony, she referred to the following:

DIVISION 2 – Examination Obligation — answer truthfully 16

(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. […] Evidence relating to identity 16

(3) An officer may require or obtain from a permanent resident or a foreign national who is arrested, detained, subject to an examination or subject to a removal order, any evidence — photographic, fingerprint or otherwise — that may be used to establish their identity or compliance with this Act. […] Officers Authorized to Enforce Act Search 139

(1) An officer may search any person seeking to come into Canada and may search their luggage and personal effects and the means of transportation that conveyed the person to Canada if the officer believes on reasonable grounds that the person (

a) has not revealed their identity or has hidden on or about their person documents that are relevant to their admissibility; or (

b) has committed, or possesses documents that may be used in the commission of, an offence referred to in

section 117 , 118 or 122 . [ 13 ] She explained that when she received the file of the Accused, he, a female and a child who were accompanying him, had already been arrested for identity purposes by Officer Satgé on the 26 th of October. They had been ordered detained for 48 hours and their detention had been maintained for 7 more days on October 28 th . [ 14 ] In her testimony, she explained why she was not satisfied with the identity of the three persons: there were limited documents pertaining to the identity of Patel and Ms. Patel and the identity of Mahi was undocumented.

She also questioned the relationship between Patel and Ms. Patel. [ 15 ] In her testimony, she essentially reiterated, sometimes with more details, what is included in the “factual background” contained in the Accused Motions and reproduced earlier in this judgement. There is therefore no need to repeat the content of her testimony. It will suffice to refer to those parts that are more relevant to the resolution of the Motions. [ 16 ] On November 2 nd 2015, she first met with the Accused and held her first interview.

She obtained a statement from the Accused in which he stated the following [6] : • His original passport stayed at his home in India; • His occupation in India was farming; • He knows Ms. Patel for eight years; • He is married to another woman in India but he stayed with his wife, named Twinkal, only two months; • He is not the father of the child Mahi, Ms.

Patel is wedded to another man until 2010; • They fled India two months ago; • He has no Facebook account. [ 17 ] Officer Warren also questioned Patel about the origin of the colour copies of their identity documents and he stated they were printed out at a cyber café from scan copies of his email account. During the questioning, Patel told Warren the e-mail address ([...]@gmail.com) he uses since 3 or 4 years.

Warren also obtained a statement of Patel to the effect that he tried in vain to obtain visas for seven other countries [7] . [ 18 ] On the same day, with the assistance of an interpreter, Officer Warren questioned Ms.

Patel about the origin of the colour copies of their identity documents and she stated that they come from Patel’s phone [8] . [ 19 ] Also on the 2 nd of November, after the interview and after a fingerprint check, Officer Warren learned that Patel had applied fruitlessly twice for United States visas. [ 20 ] After that first interview, Warren was still not satisfied with the identity of the 3 people. She felt that they needed to “establish their credibility” by relying on documentary evidence such as a visa or else to confirm their sayings.

She explained in her testimony that they had no valid passport, only photocopies. On that same day [on the 2 nd of November], she requested that Patel’s phones be sent to her at her office on St-Antoine street. [ 21 ] On the 4 th of November, she received three phones:

• Samsung GT-18262 smartphone with no SIM card; • Apple iPhone 5, locked with a password, with no SIM card; • Samsung GT-E1252 with a SIM card in it. [ 22 ] On the same day, with the assistance of an interpreter, Warren obtained the following statement from Patel [9] : • The Samsung smartphone and iPhone belong to him; He had his phones for approximately 2 years; It’s normal in India to have 2 phones because people like to use one SIM card; Neither phone is in his name, the iPhone was given to him by Ronak Patel and the Samsung smartphone was given to him by Rohit Shah; The iPhone password is 7575; The SIM Cards are located in his luggage; He removed the SIM Cards so nobody can pinpoint his location. [ 23 ] He also informed Warren that the copies of his “identity documents” came from the phones. [ 24 ] Officer Warren felt that Patel’s answers and explanations made no sense.

She seized the phones and served a section 140 (1) IRPA Notice of Seizure to Patel. She also sent a request to the detention centre asking that Patel’s luggage be searched for the SIM cards. [ 25 ] To use Officer Warren’s expression, she “looked” into the phones. In her testimony, she explained that her interest in searching the phones was (1) to find the origin of the copies of the “identity documents” that had been provided to her and (2) to examine the content of the phone, pictures and social medias for example, in order to help establish the identity of the Accused or bolster his credibility.

In her testimony, she stressed the fact that it was the only reason why she was interested in “looking” into the phones. [ 26 ] In the phones, she discovered various items, such as [10] : a. A Facebook profile; b. Three e-mail addresses: i. [...]@gmail.com ; ii. [...]@yahoo.ca; iii. [...]@gmail.com ; c. Dozens of photos of passports, Canadian Visas, identity documents, stamps, passport photos and U.S. visa interview information for dozens of subjects, including Twinkal Patel; d.

Messages using Facebook and Whatsapp applications about, according to Officer Warren opinion, about identity documents, ages of individuals and prices; e. Emails containing information for Canadian visas, copies of ID documents for certain individuals; f. Emails regarding Mr.

Patel’s application for a Swiss visa. [ 27 ] In the phones, Officer Warren didn’t find any documents relevant to the identity of Patel nor the origin of the “identity documents” provided earlier by the Accused. [ 28 ] Given the results of her search, Warren sent an email to Officer Benoit Marchand of CBSA Intelligence. [ 29 ] She also discussed the result of the search with fellow Officer Nadia Jarwa and they proceeded to further search the phones, took some notes and screenshots of the phones.

Officer Jarwa, who is also part of the Identity Section, found in the pictures the picture of one of her “clients”. [ 30 ] Again, Warren testified and stressed the fact that the sole purpose of continuing to search the phones was to establish Patel’s identity. [ 31 ] Under Officer Marchand’s suggestion, she called the Criminal Investigation

Section of CBSA. She spoke with various officers, including Officer Marie-Josée Dionne, who advised her not to touch the phone anymore and that they were coming to seize the phones. [ 32 ] On the 9 th of November, Investigators Dionne and John Gagnon arrested Patel under

section 117 IRPA and gave him his rights with the assistance of an interpreter [11] . [ 33 ] The three phones and SIM cards were seized without a warrant from Officer Warren on the 9 th of November at 4 pm and reported, on the 24 th of November, to a justice of the peace according to

section 489.1 of the Criminal Code (file #500-21-087658-154) [12] .

[ 34 ] In cross-examination, Warren reaffirmed that her duty was not only to inquire the real identity of Patel but also, to help him provide information confirming his identity. In fact, Patel’s identity was confirmed well after she contacted the Criminal Investigation Section. [ 35 ] Officer Jarwa also testified. She explained that she was not directly involved in Pinto’s file but that she was working on the same team as Officer Warren. She also explained that a large amount of people were coming from India, undocumented. [ 36 ] She essentially confirmed Officer Warren’s testimony.

ANALYSYS • Position of the Accused ON MOTION #1 [ 37 ] The Accused’s position in Motion #1 as to the statements he made to Officer Warren is as follows: • the statements he made to Officer Warren under the compulsion of

Section 16 IRPA , while detained under section 55

(2) b) IRPA, are inadmissible as evidence in a criminal trial because it would violate the principle against self-incrimination. • even though

Section 16 IRPA accords to

Section 7 of the Charter , the principle against self-incrimination as embodied in

Section 7 requires at least that he be protected against the subsequent use of such statements in criminal proceedings. • he is consequently entitled under

Section 7 to use immunity in relation to the compelled statements in subsequent criminal proceedings and accordingly, that this evidence must be excluded under Section 24 (1) of the Charter . • ANALYSIS ON MOTION #1 [ 38 ] It is not in dispute that the Accused was under the obligation to answer all questions put to him by Officer Warren and that the statements made to Officer Warren were made under compulsion.

Section 16(1) IRPA reads as follows: A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. [ 39 ] It is important to note that the Accused does not challenge the constitutional validity of Section 16(1) . He submits that he should be entitled under

Section 7 to “use immunity” and therefore be protected against the subsequent use of his statements in criminal proceedings. Accordingly, the statements he made to Officer Warren should be excluded under Section 24 (1) of the Charter . [ 40 ] It is firmly established that the principles of fundamental justice in

Section 7 include an overarching principle against self- incrimination that can extend beyond Sections 11c) and 13 of the Charter , “a residual [protection], designed to provide certain additional safeguards against self-incrimination beyond those accorded by ss. 11(

c) and 13 of the Charter [13] .” [ 41 ] It is equally established that the principle against self-incrimination does not foreclose use by the Prosecution in subsequent proceedings of all statutorily compelled statements. [ 42 ] In R. v. Fitzpatrick , the Supreme Court refused to endorse “a broad, abstract principle against self-incrimination as a principle of fundamental justice under s. 7, which would prevent the use of information in all contexts in which it is statutorily compelled” [14] .

On the contrary, the Court wrote that [15] : In determining the ambit of the principle against self-incrimination in this case, it is important to consider the context in which the appellant's claim arises. This Court has often stated that the context of a Charter claim is crucial in determining the extent of the right asserted; […]” [ 43 ] As well in R. v.

White , Iacobucci J. wrote the following [16] : That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually-sensitive.

This point was made in Jones , […] and in S. (R.J.), […] where it was explained that the parameters of the right to liberty can be affected by the context in which the right is asserted.

The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. […] [ 44 ] In this case, the Court believes that the fact that the statements were made to an immigration officer at a port of entry by a foreign national who wished to enter the country is central to the self-incrimination argument made by the Accused. As Doherty J. wrote in R. v.

Jones [17] : 30 […] No one entering Canada reasonably expects to be left alone by the state, or to have the right to choose whether to answer questions routinely asked of persons seeking entry to Canada. As the appellant himself testified, travellers reasonably expect that they will be questioned at the border and will be expected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely and randomly search their luggage.

Put simply, the premise underlying the principle against self-incrimination, that is, that individuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. The opposite is true. The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entry to Canada. Persons seeking entry are expected to submit to and co- operate with that state intrusion in exchange for entry into Canada.

[31] I also have no hesitation in describing Canada's effective control over its borders as a societal interest of sufficient importance to becharacterized as a principle of fundamental justice. Nothing is more fundamental to nationhood and national sovereignty than the abilityto control national borders. Effective border control serves a myriad of crucial social interests ranging from national self-defence topublic health, to the enforcement of Canada's fiscal policies and its penal statutes.

The appellant's [page491] self-incrimination claimmust be balanced against the equally fundamental societal claim to the preservation of the integrity of Canada's borders through theeffective enforcement of its laws at those borders. Effective enforcement extends to the successful prosecution of those who areapprehended violating Canada's laws at its borders. [...] [45] Even though those remarks were made in a customs context, they equally apply in the immigration context, especially in the caseof foreign national wishing to enter Canada. As Iacobucci J. wrote in Dehghani v.

Canada (Minister of Employment and Immigration) inan immigration context[18]: It is important to recall that there is no right for non-citizens to enter or remain in Canada. In Chiarelli v. Canada (Minister ofEmployment and Immigration), (SCC), [1992] 1 S.C.R. 711, at p. 733, Sopinka J. stated that "[t]he most fundamentalprinciple of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." […] [46] Furthermore, in Delghani, Iacobucci J. quoted from Simmons[19] and wrote: [p]eople do not expect to be able to cross international borders free from scrutiny.

It is commonly accepted that sovereign states have theright to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform thisrole. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter thecountry, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to crossnational boundaries fully expect to be subject to a screening process.

This process will typically require the production of properidentification and travel documentation. [47] More importantly, he referred to persons unable to produce the proper documentation indicating their right of entry: […] For those persons who cannot immediately produce documentation indicating their right of entry, the screening process will requiremore time, and a referral to a secondary examination is therefore required. There is, however, no change in the character of theexamination simply because it is necessary for reasons of time and space to continue it at a later time in a different

section of theprocessing area. […] [48] More recently, in R. c. Kang-Brown[20], Binnie J. recognized that “the state has a compelling interest in the preservation ofnational sovereignty and the protection of its borders, an interest which underlies both the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.),and the Immigration Act, R.S.C. 1985, c. I-2”. [49] Finally, in Fitzpatrick, in finding that the admission of the accused’s statements at his trial would not violate the principle againstself-incrimination, La Forest J. focussed upon four main factors which were later summarized as follows in R. v.

White[21]: […] (1) the lack of real coercion by the state in obtaining the statements; (2) the lack of an adversarial relationship between the accusedand the state at the time the statements were obtained; (3) the absence of an increased risk of unreliable confessions as a result of thestatutory compulsion; and (4) the absence of an increased risk of abuses of power by the state as a result of the statutory compulsion. [50] As in Fitzpatrick, there has been no real coercion upon the Accused in this case.

By regulating the entry of persons into Canada,it could not be said that the State was coercing the foreign national to incriminate himself. As in Fitzpatrick, where the fishermen had afree choice whether or not to participate in the commercial fishery, the Accused had the same free choice to seek entry into Canada. Hewas not coerced to do so. He did so freely and voluntarily. [51] Furthermore, in this case, the Accused and the State were not in an adversarial relationship when the statements were made.

Onthe contrary, the object of the relationship was solely to inquire into the Accused identity to enable him to enter the country and even,according to Officer Warren, to assist him in proving his identity. [52] The detention of the Accused was based on Section 55(2) IRPA because “an officer was not satisfied of [his] identity”. Hisdetention was not because the officer had reasonable grounds that he had committed an offence.

At the time of the statements made bythe Accused, Officer Warren was solely attempting to obtain the real identity of the Accused and had no grounds to believe that theAccused had committed an offence. [53] As to the factor relating to the absence of an increased risk of unreliable confessions as a result of the statutory compulsion, thesituation of the Accused is different from the situation of the accused in White, where Ms.

White was coerced and compelled to give astatement to a police officer in the context of a car accident in which an man was killed. [54] Finally, the Court is of the opinion that there is no reasonable prospect of an abuse of power by the State in a routine process likethe refugee claim process.

The arguments put forward by the Accused in his Motion are purely speculative and are not convincing.Moreover, the testimony of Officer Warren was clear as to her role: not only does she need to satisfy herself of the claimant’s identity,she is also there to assist the claimant in doing so. [55] For all those reasons, the Motion to exclude the statements made by the Accused to Officer Warren is dismissed. [56] The Court notes that in its response to the Motion, Respondent wrote that it is not seeking to put into evidence at trial what was obtained by Officer Warren after November 4th, 2015.

The Court might have come to a different decision regarding those statements. • ANALYSIS ON MOTION #2

• POSITION OF THE ACCUSED ON MOTION #2 [57] As to the searches of the phones made by Officer Warren, the Accused submits the following: • He has a normal expectation of privacy over the content of his phones even if he was searched by CBSA officers in relation to hisrefugee claim; • The searches of the phones were unreasonable because: • They were made beyond the statutory purposes of a

Section 16 IRPA examination; • The absence of a record detailing what was searched and how the searches were done make them unreasonable. [58] As to Officer Marie-Josée Dionne’s warrantless seizure of the phones and SIM cards, the Accused submits that the situation issimilar to the situation that prevailed in R. v.

Colarusso, (SCC), [1994] 1 S.C.R. 20, where police did a warrantlessseizure of bodily samples that were originally seized from the hospital by the coroner. [59] The Accused also submits that in the present case, as long as the evidence gathered under 16(3) IRPA is being used to serve theimmigration procedures, the seizure is reasonable and not caught by s. 8 (as long as it is not unreasonable for other reasons) but, whenthe evidence, or the information derived from the evidence, is appropriated by CBSA Criminal Investigation Division to be used againstMr.

Patel, the seizure becomes unreasonable. [60] As to the search warrants, the Accused submits that they do not comply with the requirements of

Section 8 of the Charter. Sincethe paragraphs referring to self-incriminating statements or to warrantless searches of the phones should be excised, there would be nosufficient evidence that could have permitted the judges to issue the authorizations. • ADDITIONNAL BACKGROUND [61] Additional background relevant to the searches and seizures has been included by the Accused in Motion #2: 51.

The 24th of November, Investigator Dionne obtained a search warrant from Justice of the Peace Dominique Benoit, file #500-26-092644-156, to search the content of the three phones and the six SIM cards, as it appears from a copy of that warrant, attached herewithas Exhibit R-2; 52. The searches were executed on the 27th of November by CBSA Officer Alexandre Lampron, a computer crime investigator; 53. On the 14th of March 2016, the case was transfered from Officer Dionne to CBSA Officer Jérémie Dion; 54.

As Investigator Dion analysed the data extracted by Officer Lampron, he realised that some of the content of the phones whereinaccessible, so he decided to obtain a second search warrant to use another technology of extraction for the Samsung smartphone andthe iPhone; 55. On the 7th of July, Investigator Dion obtained a search warrant from Justice of the Peace Julie Laliberté, file #500-26-097003-168, tosearch the content of the Samsung smartphone and the iPhone, as it appears from a copy of that warrant, attached herewith as Exhibit R-3.

Analysis • The searches of the phones made by Officer Warren [62] As the evidence showed, Officer Warren was acting under the authority of IRPA, to satisfy herself of the true identity of theAccused, in order for the Accused to enter the country and make his refugee claim.

As Officer Warren explained, identity is crucial tothe whole refugee claim scheme. [63] In order to permit Officer Warren to perform her duty, IRPA contains various provisions, which are not the object of aconstitutional challenge by the Accused. [64] Section 16(1) is to the effect that a person entering the country must answer truthfully all questions put to him for the purpose ofthe examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. [65] Section 16(3) enables that officer to require or obtain from […] a foreign national who is arrested, detained, subject to anexamination or subject to a removal order […] any evidence — photographic, fingerprint or otherwise — that may be used to establishtheir identity or compliance with IRPA. [66] Sections 139 and 140 enables an officer to search any person, like the Accused, seeking to come into Canada and may searchtheir luggage and personal effects […] if the officer believes on reasonable grounds that the person has not revealed their identity or hashidden on or about their person documents that are relevant to their admissibility and an officer may seize and hold any […] document orother thing if the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure isnecessary to prevent its fraudulent or improper use or to carry out the purposes of this Act. [67] The Court accepts the evidence of Officer Warren to the effect that all along her interaction with the Accused, she pursued onlyone goal, i.e. to satisfy herself of true identity of the Accused.

The Court also accepts the evidence of Officer Warren that she searchedthe phones because she was of the opinion that they contained information that could help discover to her satisfaction the true identity ofthe Accused and thereafter enable him to enter the country and pursue his refugee claim.

[ 68 ] In those circumstances, Officer Warren, as well as Officer Nadja, could validly obtain the password from the Accused [22] , search the phone as well as seize the phones and the SIM cards. [ 69 ] In these circumstances, the Court cannot accept the Accused argument to the effect that the search of the phones went beyond

Section 16 IRPA . [ 70 ] Nor can the Court accept the argument to the effect that the Accused had a “normal” expectation of privacy regarding the phones. The border and immigration context and the fact that the Accused was a seeking to enter the country diminished his expectation of privacy on the contents of the phone and SIM cards and in those circumstances, it cannot be equated with the “normal” expectation of privacy towards a phone. [ 71 ] This suffices to distinguish this case from the Supreme Court case of R. v. Fearon [23] .

Even though “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” and “it is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest” [24] , given the context in which the search was made, the Accused did not have the same degree of expectation of privacy as he would have had in “normal” circumstances and therefore Officer Warren could search the phone without a warrant. [ 72 ] The context also provides an answer to the argument of the Accused regarding the fact that Officer Warren did not take “detailed notes of what has been searched and why” [25] .

It would be unreasonable to equate the obligations of officers working in the customs and immigration context with those of peace officers involved in a criminal investigation. The balance between the demands of effective law enforcement and everyone’s right to be free of unreasonable searches and seizures cannot be the same as in “normal” circumstances. [ 73 ] In Dehghani , Justice Iacobucci made that distinction when he wrote [26] : […] at a border the state has an interest in controlling entry into the country.

Individuals expect to undergo questioning with respect to their entry into Canada whether that be in the immigration or customs context.

These interests and expectations dictate that examination of a person for purposes of entry must be analyzed differently from the questioning of a person within Canada. [ 74 ] In the opinion of the Court, given the context, it would be unreasonable to impose the same obligation upon an immigration officer like Officer Warren, who is involved in an administrative scheme, as those of police officers investigating a criminal offence. [ 75 ] For all those reasons, it is the opinion of the Court that the actions of Officer Warren did not cause the Accused any infringement of

Section 8 of the Charter . • Officer Marie-Josée Dionne’s warrantless seizure of the phones and SIM cards [ 76 ] In his Motion, the Accused argues that what happened between Officer Warren and the Criminal Investigation Division is similar to the situation in R. v. Colarusso [27] , where police performed a warrantless seizure of bodily samples that were originally seized from the hospital by the coroner. The Court does not agree. [ 77 ] In our case, the phone was “seized” from Officer Warren on November 9 th, 2015. It basically went from an immigration officer to another.

This other one, Dionne, made sure to obtain a warrant to search the content of the three phones and of the SIM cards. The search was then performed by a computer crime investigator. Those facts differ from those in Colarusso . [ 78 ] In Colarusso , the taking of the blood from the accused had been performed with his consent, which had been given solely for medical purposes.

The Accused argues that in the same fashion, the seizure of the phones by Warren was for the sole purpose of Section 16(3), i.e. discovering the true identity of the Accused and since the seizure of the phones by Dionne was not for that purpose, her search went beyond the scope of Section 16(3). Even if the Accused is right, the comparison ends there. [ 79 ] In Colarusso [28] , Laforest J. wrote the following, regarding

Section 8 of the Charter : Hunter v. Southam Inc ., […] teaches us that s. 8, like other Charter rights, must be broadly and liberally construed to effect its purpose. And that purpose, it identified, is to secure the citizen's right to a reasonable expectation of privacy against governmental encroachments. The need for privacy can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion.

That physical integrity, including bodily fluids, ranks high among the matters receiving constitutional protection, there is no doubt; […] [ 80 ] In Colarusso , the matter of the seizure was the taking of blood, a bodily fluid and the consent to the seizure by the accused was solely for medical reasons.

In those circumstances, the reasonable expectation of privacy against governmental encroachments is far more important than those of the Accused in this case. [ 81 ] Furthermore, the seizure was made in an hospital [29] : […] Moreover, hospitals have been identified as specific areas of concern in the protection of privacy, given the vulnerability of individuals seeking medical treatment. […] [ 82 ] Finally, the blood seized in the hospital went from the coroner, who was performing his separate investigation, to police officers, to be used in a criminal prosecution. [ 83 ] The circumstances, the object and the place where state intrusion occurs and the purposes of the intrusion are totally different between Colarusso and this case.

The expectation of privacy in both cases cannot not in any way be equated. [ 84 ] For all those reasons, it is the opinion of the Court that the actions of Officer Dionne did not cause the Accused any infringement of

Section 8 of the Charter .

[ 85 ] Should the Court be wrong on that conclusion, given the circumstances, it would not exclude the evidence. • The search warrants #500-26-092644-156 and #500-26-097003-168 do not comply with the requirements of

Section 8 of the Charter [ 86 ] The submissions of the Accused regarding the non-validity of the warrants are based on the premise that the Court has accepted to exclude his self-incriminating statements and the fruits of the searches and seizures of the phones and the SIM cards and that the Court has excised those elements from the information supporting the issuance of the warrants (ITO). [ 87 ] Given that none of those arguments has been accepted by the Court, the ITO remains intact.

The Accused does not argue that as such, the ITO is insufficient. [ 88 ] The submission of the Accused regarding the validity of the warrants is therefore dismissed and the warrants are declared valid. FOR ALL THESE REASONS, THE COURT : DISMISSES both Motions presented by the Accused. __________________________________ ROBERT MARCHI, J. C.Q.

M e Maxime Chevalier MGL Lawyers Attorney of the Accused M e Annabelle Racine M e Brooke St-Cyr Public Prosecution Service of Canada Attorneys of the Prosecution Dates of hearings: January 12 th , January 25 th , March 9 th (judgment on Motion by the Prosecution to have both Motions filed by the Accused summarily dismissed - Motion dismissed), March 22 nd , April 20 th and June 27 th 2018.