R v Bialski, 2018 SKCA 71

Court of Appeal for Saskatchewan Docket: CACR2912 Citation: R v Bialski , 2018 SKCA 71 Date: 2018-08-31 Between: Alexandre Bialski and Christine Szefer Appellants And Her Majesty the Queen Respondent Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Whitmore On Appeal From: 2017 SKQB 17 , Estevan Appeal Heard: November 10, 2017 Counsel: Pawel J. Milczarek for the Appellants Douglas G.

Curliss, Q.C., and Stacey Cameron for the Respondent Ryan-Froslie J.A. I. Introduction [ 1 ] The appellants, Alexandre Bialski and Christine Szefer, were convicted in Provincial Court of making false or deceptive statements to a Canada Border Services officer (customs officer) contrary to s. 153(

a) of the Customs Act , RSC 1985, c 1 (2d Supp) [ Act ]. In addition, Mr. Bialski was convicted of attempting to evade payment of duties contrary to s. 153(c). [ 2 ] Mr. Bialski and Ms. Szefer appealed their convictions to the Court of Queen’s Bench acting as a

summary conviction appeal court. The

summary conviction appeal court judge (appeal judge) dismissed their appeal holding, among other things, that the appellants could not raise for the first time on appeal violations of s. 8 of the Charter – the right to be free from unreasonable search and seizure, or s. 11(

b) of the Charter – the right to be tried within a reasonable time: R v Bialski , 2017 SKQB 17 . [ 3 ] The appellants now seek leave to appeal and appeal that decision to this Court. Of importance is the fact the appellants were self-represented, both at trial and in the Court of Queen’s Bench. The appellants assert the appeal judge erred by failing to consider alleged breaches of their ss. 8 and 11(

b) Charter rights, as those breaches were raised in the course of the trial. Alternatively, they submit the trial judge should have, on his own motion, raised the possible infringement of those rights. They ask this Court to find their Charter rights were breached and enter an acquittal or, alternatively, order a new trial. [ 4 ] I would grant leave only with respect to the question of whether the trial judge breached his duty to provide adequate assistance to the self-represented appellants with respect to their ss. 8 and 11(

b) Charter rights. However, for the reasons set out herein, I would dismiss the appeal. II. Background [ 5 ] On April 18, 2014, the appellants were travelling from the United States to Canada in a 2014 Solera motorhome. The motorhome had been purchased nine days earlier in Ohio. Among its contents were two folding bikes that had also been purchased in the United States. [ 6 ] At the border, Mr. Bialski told Officer Quewezance, the first customs officer he encountered, that he and Ms. Szefer had not purchased anything and that the motorhome and all its contents belonged to Mr.

Bialski’s son, who resides in the United States. Mr. Bialski also told Officer Quewezance that they were on their way to Alaska. On the verbal declaration form (Form E67), Officer Quewezance designated the appellants for a secondary examination. He did so because it is common for Americans travelling to Alaska to bring firearms across the border; he wanted to verify the motorhome was owned by Mr. Bialski’s son and it surprised him that the appellants had been in the United States for ten days and had not purchased anything. [ 7 ] Officer Insell was the next customs officer the appellants encountered.

Officer Insell was troubled because the motorhome was registered in the United States. He advised the appellants they, as Canadian residents, were not allowed to drive a U.S. registered vehicle into Canada unless duty and taxes were paid. In discussing their intentions, Officer Insell was told by Mr. Bialski that they were taking the motorhome to Calgary where it would be kept until Mr. Bialski’s son picked it up and took it to Alaska. This statement was inconsistent with what Officer Quewezance had noted on Form E67. [ 8 ] Officer Insell advised Mr. Bialski and Ms.

Szefer he intended to examine their goods, including a folder Mr. Bialski had in his possession. The fact Mr. Bialski was reluctant to hand over the folder made Officer Insell suspicious.

[ 9 ] In the folder, Officer Insell found a bank draft from A. Bialski to RV Wholesalers. It suggested Mr. Bialski had purchased the motorhome and might be the de facto owner. Officer Insell and a colleague then searched the motorhome. [ 10 ] The officers located two folding bikes in the back of the motorhome. They also found a laptop computer and two cellphones. Officer Insell examined the computer and the cellphones. Mr. Bialski’s cellphone contained a text message advising the recipient that Mr. Bialski was trying to sell his “favorite” truck because he had recently purchased a motorhome. On Ms.

Szefer’s cellphone, there was a text indicating “they” had recently purchased a new motorhome and were on a road trip. On Mr. Bialski’s computer, an email to a bike shop was discovered that indicated Mr. Bialski wanted to purchase a folding bike for his wife. Officer Insell telephoned Mr. Bialski’s son but was unable to clarify the situation. [ 11 ] Officer Insell then confronted Mr. Bialski and Ms. Szefer with the bank draft. Mr. Bialski told Officer Insell he owed his son a large sum of money and had purchased the motorhome to repay that debt. Ms.

Szefer told Officer Insell the motorhome was a “family vehicle”, not specifically her or Mr. Bialski’s vehicle. [ 12 ] Officer Insell then resumed his search of the computer and cellphones. On Mr. Bialski’s computer, he found an email to Mr. Bialski’s son stating: Also, just in case some Canadian bored border guard will question why we are travelling with a vehicle with temporary licence, the story is that it is your vehicle generously provided also for family use and you plan to follow it to Calgary. I am just helping you to avoid travelling to and from across the continent.

You are planning to visit the Rockies and travel in May and this summer to Canada, visit your father and travel in the Rockies, perhaps to Alaska and yes eventually travel back to Massachusetts. (RV will be certainly back in the US this summer.) Please get the plates as soon as you get the title, in mail I am told, and send the plates to me to Calgary address. (Exhibit P7) [ 13 ] After viewing that email, Officer Insell determined a contravention of the Act was likely taking place, namely, that Mr. Bialski and Ms.

Szefer had inaccurately declared the ownership of the motorhome in an attempt to evade duties and taxes. [ 14 ] Officer Insell and another officer – Officer Tisdale – searched the motorhome for a second time. Immediately upon entering the motorhome, near the passenger door, Officer Tisdale discovered a “journal” that appeared to belong to Ms. Szefer. The first passage in the journal talked about the writer and Alex (Mr. Bialski) leaving Calgary for the United States to pick up their new motorhome.

The first page described the motorhome’s maiden voyage. [ 15 ] Following the search, Officer Insell resumed his examination of the computer. He found several emails pertaining to the motorhome and the folding bikes (Exhibit P7): (

a) an email from Mr. Bialski to the bike shop advising of his height and inseam for the purpose of adjusting one of the bikes; (

b) an email from Mr. Bialski to the bike shop advising he would be picking up a vehicle in Ohio and needed “a foldable bike for [his] wife”; (

c) an email from Mr. Bialski’s son inquiring whether his father would be paying for the RV in cash. Mr. Bialski responded indicating he was “paying cash in full”; and (

d) an email from the bike shop to Mr. Bialski advising that the bike and two cases had been shipped and attaching an invoice. [ 16 ] Officer Insell then asked Mr. Bialski about the bikes. Mr. Bialski told him he owned a bike shop and did not need any bikes – they were gifts for his son. Officer Insell inquired why Mr. Bialski had sent his exact measurements to the bike shop if the bikes were for someone else. Mr. Bialski responded that he and his son were the same size. [ 17 ] Following that conversation, Officer Insell returned for a fourth time to examine the computer.

By that point, Officer Tisdale had found emails on the computer, including one from Mr. Bialski to his son stating his son could use the motorhome “whenever you wish”. The email went on to state that if his son was questioned by border officers, he “might want to omit” that the RV would potentially be stored in Canada as “Americans sometimes react to Canada as if this is the country on the other [ sic ] planet”. The second email was an invoice for two folding bikes directed to Norsemen Ski Shop, Mr. Bialski’s store in Calgary. [ 18 ] At that point, the officers concluded their examination of the computer.

Pictures had been taken of all the texts and emails. Mr. Bialski and Ms. Szefer were eventually allowed to take the motorhome and bikes into Canada after paying the applicable duties and taxes. [ 19 ] Officer Insell retained the computer and sent it, together with the documentation he had collected from his investigation, to Officer Ermel, a criminal investigator for Canada Border Services. Officer Ermel, in turn, sent the computer to Winnipeg for forensic examination.

There is no indication whether a warrant was obtained for the forensic examination, which resulted in the computer’s hard drive being removed and the data thereon copied. [ 20 ] On July 8, 2014, the appellants were charged with making false or deceptive statements to a customs officer, failing to provide accurate information regarding goods being brought into Canada and attempting to evade the payment of duties. The matter proceeded to trial on April 26, 2016. [ 21 ] Mr. Bialski and Ms. Szefer were represented by two different lawyers up to the setting of the trial date.

Neither the appellants nor their legal counsel raised any alleged Charter breaches prior to trial nor was any notice of an alleged Charter breach served on the

Crown. III. The Trial Judge’s Decision [22] In reaching his decision, the trial judge relied on the evidence of the customs officers and investigators, the bank draft foundin Mr. Bialski’s possession, texts from the appellants’ cellphones, emails from the computer, journal entries and the testimony of bothMr. Bialski and Ms. Szefer. [23] The trial judge did not believe Mr. Bialski. He found Mr. Bialski wanted to purchase a motorhome but felt the cost of buyingone in Canada was too high. Accordingly, Mr. Bialski decided to purchase one in the United States and have his son register it there.

Thetrial judge determined that “[i]n all but title, the motorhome belonged to Mr. Bialski” (T673, line 38). The trial judge concludedMr. Bialski had control of the motorhome and, while he was willing to share it with his son, it would be at Mr. Bialski’s discretion. Thetrial judge also found Mr. Bialski had ordered the folding bikes for his and Ms. Szefer’s personal use. Based on his findings, the trialjudge convicted Mr. Bialski of all charges against him. [24] Relying on text messages from Ms.

Szefer’s cellphone as well as entries in her journal, which contained several references to“our new RV”, “our motorhome” and “our bikes”, the trial judge found Ms. Szefer knew the motorhome and bikes belonged to her andMr. Bialski and that her statements to the customs officers were thus deceptive. Accordingly, he convicted Ms. Szefer of making false ordeceptive statements to a customs officer contrary to s. 153(

a) and of failing to provide accurate information regarding imported goodscontrary to s. 7.1 of the Act. The trial judge, however, had a reasonable doubt whether Ms. Szefer had attempted to evade the payment ofduties and, accordingly, acquitted her of that charge. [25] Based on the principles set out in R v Kienapple, (SCC), [1975] 1 SCR 729, the convictions pursuant to s. 7.1of the Act were stayed. [26] In arriving at his decision, the trial judge did not refer to any Charter issues or breaches, but he did make reference to thesearch powers granted by s. 99 of the Act.

He found that: “[t]hough the issue was not argued at trial … discovery of the bank draft gaveOfficer Insell a reasonable suspicion that the Customs Act had or might be violated, and this triggered the broad search powers that areinherent in

Section 99 of the Act” (T660, lines 24–27). [27] The appellants appealed their convictions to the Court of Queen’s Bench. IV. The Appeal Judge’s Decision [28] The appellants were self-represented before the

summary conviction appeal court. They filed written submissions but did notpresent oral argument. The appellants did not suggest the trial judge had failed to provide them with adequate assistance with respect totheir ss. 8 and 11(

b) Charter rights. [29] The appeal judge identified four issues to be determined by him, namely: 1. whether the trial judge had erred in his treatment of the appellants’ attempts to lead evidence of a Ministerial decision madepursuant to s. 131 of the Act; 2. whether the Crown had failed to make full disclosure; 3. whether there was a violation of the appellants’ rights to trial within a reasonable time, as guaranteed by s. 11(

b) of the Charter;and 4. whether there was a violation of the appellants’ rights to be free from unreasonable search and seizure, as guaranteed by s. 8 ofthe Charter. [30] The first issue related to the trial judge’s refusal to admit evidence of a Ministerial decision made pursuant to s. 131 of the Actto the effect that the motorhome should not have been allowed into Canada. The trial judge had concluded that decision was not relevantto the question of whether the appellants were guilty of the charges before him. The appeal judge upheld that conclusion.

He also foundthe ground of appeal pertaining to Crown disclosure was without merit. While the appellants’ notice of appeal to this Court raised boththose issues, the appellants did not pursue them in this Court. [31] The appeal judge concluded the alleged breaches of the appellants’ ss. 8 and 11(

b) Charter rights had not been raised beforethe trial judge and, as such, there was no proper evidentiary record for him to review.

In the circumstances, the appeal judge determinedit was not appropriate for the appellants to raise the alleged Charter breaches for the first time on appeal. [32] In the alternative, with respect to the alleged s. 8 violation, the appeal judge found the trial judge had correctly determinedthat s. 99 of the Act gave the customs officers’ authority to search the appellants’ computer and cellphones. [33] With respect to the alleged infringement of s. 11(b), the appeal judge considered the effect of R v Jordan, 2016 SCC 27,[2016] 1 SCR 631 [Jordan], which was rendered after the trial but before the

summary conviction appeal was heard. The appeal judgedetermined that while Jordan had set a time limit of 18 months beyond which trial delay was presumptively unreasonable, the SupremeCourt of Canada had not done away with the requirement of a proper evidentiary basis for establishing a violation of s. 11(b). The appealjudge concluded that “even though the process outlined in Jordan begins with a straightforward mathematical calculation, evidence isrequired to put meat on the bones, and permit the court to conduct a proper analysis” (judgment at para 46).

Such evidence wouldaddress what, if any, portions of the delay were waived or caused by the defence, whether there were exceptional circumstances or

whether the defence made a sustained effort to expedite proceedings in cases where the presumptive ceiling was not exceeded. [34] Finally, as this case was in the system prior to Jordan being released, the appeal judge found any s. 11(

b) analysis would needto address “whether the evidence established ‘transitional exceptional circumstances’ based on the parties’ reliance on pre-existings. 11(

b) jurisprudence” (judgment at para 46). [35] The appellants now seek leave to appeal and appeal the portion of the decision relating to their Charter rights. V. Issues [36] While somewhat different from the grounds set out in their notice of appeal, the appellants in this Court contend: (

a) that the trial judge erred by failing to assist the self-represented appellants “adjudicate” their ss. 8 and 11(

b) Charter rights; (

b) that the appeal judge erred by failing to determine whether the self-represented appellants’ ss. 8 and 11(

b) Charter rightswere violated; and (

c) that the appeal judge erred by failing to find a s. 8 Charter violation on the record before him. VI. Preliminary Matter: The Granting of Leave [37] Appeals against judgments rendered by

summary conviction appeal judges are limited to questions of law and will only beheard if leave is granted by this Court (s. 839 of the Criminal Code). [38] In R v Bray, 2017 SKCA 17, Caldwell J.A. described when leave should be granted in these terms: [2] The right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisable onlywith leave of this Court or a judge of this Court (Criminal Code, s. 839). Leave to appeal is granted sparingly. In broad terms, anapplicant must establish the proposed appeal raises a question of law that is either: (

a) significant to the administration of justicegenerally—i.e., beyond the four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question. In itsdeliberations, the Court will consider whether the offence is serious, whether the applicant is facing a significant deprivation of libertyand whether denial of leave would result in an injustice going unaddressed.

See: R v Yates, 2014 SKCA 52, 309 CCC (2d) 170, referringto R v R.R., 2008 ONCA 497, 234 CCC (3d) 463; R v Clark, 2014 SKCA 42, 438 Sask R 23; R v Vandal, 2009 SKCA 79, 331 Sask R171; R v Joehnck, 2006 SKCA 68; R v Mellquist (No. 2) (1988), (SK CA), 68 Sask R 200 (CA); R v Edmonton, 2013ABCA 318, [2014] 2 WWR 548; R v McCorriston (G.J.), 2010 MBCA 3, 251 CCC (3d) 102; and R v Toor, 2001 ABCA 88, 155 CCC(3d) 345; among others. (Emphasis added) [39] The Crown contends leave should not be granted in this case because the offences involved are less serious, the penaltiesimposed were fines and did not involve incarceration, the issues raised on appeal were not raised in the court below and those issues areneither “compellingly meritorious” nor significant to the administration of justice generally. [40] At trial, Mr.

Bialski and Ms. Szefer did not give any notice to the Crown of their intent to make a Charter argument, eventhough they were represented by legal counsel up until the trial date was set. Moreover, a thorough review of the trial transcript supportsthe appeal judge’s conclusion that the appellants did not directly raise breaches of their ss. 8 and 11(

b) Charter rights and as such theevidentiary record with respect to the alleged Charter breaches is deficient. Mr. Bialski and Ms. Szefer did not provide any evidence withrespect to the reasons for the delay in setting their matter for trial, which is key to a determination of whether their right to be tried withina reasonable time as guaranteed by s. 11(

b) of the Charter was breached. Similarly, they did not provide evidence as to the circumstancessurrounding the search and seizure of the journal, the computer or their cellphones nor did they cross-examine Crown witnesses on howthe searches of their electronic devices were conducted. Such evidence was necessary to determine whether their right to be secure fromunreasonable search and seizure pursuant to s. 8 of the Charter had been breached. [41] In short, issues (

b) and (

c) of the appellants’ appeal – that the appeal judge erred by failing to adjudicate whether their ss. 8and 11(

b) Charter rights were violated and by failing to find a s. 8 Charter violation on the record before him – are not, as the Crowncontends, “compellingly meritorious” nor are they significant generally to the administration of justice. Accordingly, I would not grantleave to appeal on those grounds. [42] In my view, however, leave to appeal should be granted with respect to issue (a): That the trial judge erred in failing to assist the self-represented appellants “adjudicate” their s. 8 and s. 11(

b) Charter rights. [43] The Crown contends Mr. Bialski and Ms. Szefer did not raise this issue before the

summary conviction appeal court and thusthis Court should not hear it. [44] The Crown correctly states the general rule but there are exceptions to that rule, including where issues of trial fairness andmiscarriage of justice are raised (R v Belyk, 2014 SKCA 24 at para 16, 433 Sask R 195). [45] I am reinforced in this view by the comments of McLachlin C.J. in R v W.(E.M.), 2011 SCC 31, [2011] 2 SCR 542: [4] The first question is whether the majority of the Court of Appeal erred in allowing the appeal, given that the issues of

miscarriage of justice and admissibility of the evidence were not raised in the Notice of Appeal. We agree with the respondent that thefailure to expressly raise miscarriage of justice as a distinct ground of appeal does not deprive a court of appeal of jurisdiction toconsider that issue. A potential miscarriage of justice is always something a court must be able to consider. However, the factremains that the rules require that the grounds that the appellant relies on be set out. This ensures that the opposite party has notice ofwhat will be raised.

More broadly, it ensures that the court receives full submissions on all the issues that will be raised. Whereadditional grounds come to light after filing, good practice requires that the grounds be amended. If the court wishes to explore an issuethat has not been raised, it may be necessary to grant an adjournment to ensure a full and fair hearing. [5] The respondent argues that despite the economy of the Notice of Appeal, the appeal hearing was full and fair. We need not lingerover this question.

Suffice to say that the Court of Appeal had jurisdiction to hear submissions on whether there had been a miscarriageof justice, and the issues were fully canvassed before this Court, whatever may have been the case below. (Emphasis added) [46] In this case, Mr. Bialski and Ms. Szefer were self-represented both at trial and before the

summary conviction appeal court.They did not appear on the hearing of their

summary conviction appeal, preferring instead to rely on their written submissions. Theyhave now retained counsel to represent them on this appeal. Their factum addresses the issue of a trial judge’s obligation to assist a self-represented accused in advancing his or her Charter rights. While this was not argued before the appeal judge, given the contents of theappellants’ factum, the Crown has not been taken by surprise. [47] The Crown also contends that whether a trial judge has failed in his or her duty to assist a self-represented accused is aquestion of fact, not of law.

While that is true, such breaches are not stand-alone grounds of appeal. Case authority dealing with suchmatters has determined that the overarching question is one of trial fairness or miscarriage of justice as contemplated by s. 686(1)(a)(iii)of the Criminal Code. [48] In R v Olenick, 2010 MBCA 107, 262 Man R (2d) 15 [Olenick], Steel J.A., writing for the Manitoba Court of Appeal,commented: [7] The failure of a trial judge to appropriately assist a self-represented accused is not a free-standing ground of appeal.

The questionis whether the failure to assist renders the trial of the accused unfair pursuant to s. 686(1)(a)(iii) of the Criminal Code. See R. v. West,2010 NSCA 16, 252 C.C.C. (3d) 23. [49] In R v Wolkins, 2005 NSCA 2, 192 CCC (3d) 378, the Nova Scotia Court of Appeal dealt with a lobster fisherman who hadbeen convicted in Provincial Court of fishing outside his licenced area. His appeal to the

summary conviction appeal court wasdismissed. He then appealed to the Nova Scotia Court of Appeal on the ground, amongst others, that the trial judge had failed toadequately assist him by not questioning the competency of the agent he had chosen to represent him at trial. Cromwell J.A. (as he thenwas) framed the issue as one pertaining to miscarriage of justice. He stated: [88] But what is a miscarriage of justice? [89] The clearest example is the conviction of an innocent person. There can be no greater miscarriage of justice.

Beyond that, it ismuch easier to give examples than a definition; there can be no “strict formula .. to determine whether a miscarriage of justice hasoccurred”: R. v. Khan, 2001 SCC 86 , [2001] 3 S.C.R. 823 (S.C.C.) per LeBel, J. at para. 74. However, the courts havegenerally grouped miscarriages of justice under two headings. The first is concerned with whether the trial was fair in fact. Aconviction entered after an unfair trial is in general a miscarriage of justice: Fanjoy supra; R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at 220 - 221.

The second is concerned with the integrity of the administration ofjustice. A miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness,which is so serious that it shakes public confidence in the administration of justice: R. v. Cameron (1991), (ON CA),64 C.C.C. (3d) 96 (Ont.

C.A.), at 102; leave to appeal ref’d [1991] 3 S.C.R. x. (Emphasis added) [50] In R v West, 2010 NSCA 16, 252 CCC (3d) 23, the Nova Scotia Court of Appeal per curiam indicated: [53] As noted in Wolkins, (¶ 61, above ¶ 28), in an appellate challenge to trial fairness, as opposed to an attack on the correctness ofthe verdict or of a trial judge’s finding, the appellant seeks an original remedy in the appeal court.

The ground of appeal is miscarriage ofjustice. … See also R v Phillips, 2003 ABCA 4 at para 25, [2003] 5 WWR 623, affirmed 2003 SCC 57, [2003] 2 SCR 623 [Phillips]; R v Schiel,2012 BCCA 440 at para 55; and R v Assoun, 2006 NSCA 47 at para 264, 207 CCC (3d) 372, leave to appeal to SCC refused [2006] 2SCR v. [51] As exemplified by the British Columbia Court of Appeal’s decision in R v Martin, 2010 BCCA 526, 266 CCC (3d) 510[Martin], not every breach of a trial judge’s obligation to a self-represented accused will render a trial unfair or result in a miscarriage ofjustice.

In Martin, the British Columbia Court of Appeal found that while the trial judge should have instructed the self-representedaccused on the issue of whether the wiretap evidence sought to be admitted should be edited, that failure did not result in an unfair trialas the judge herself had adequately edited the transcripts to remove irrelevant and prejudicial information. [52] Further, in Phillips, Fruman J.A. stated: [48] In

summary, Phillips’ decision not to cross-examine witnesses, not to adduce evidence on specific intent and not to argue aspecific intent defence before the jury were deliberate strategic choices, not the result of any lack of guidance from the trial judge. Whileit might have been desirable for the trial judge to advise Phillips of the specific intent requirement at the commencement of thetrial, his failure to do so did not compromise Phillips’ ability to properly bring out his defence, and his trial was not unfair.

(Emphasis added) See also Olenick at para 11. [53] In my view, the appellants’ first ground of appeal, namely, that the trial judge erred in failing to assist the self-representedappellants “adjudicate” their ss. 8 and 11(

b) Charter rights, raises issues of trial fairness and miscarriage of justice. Whether a trial isunfair or there has been a miscarriage of justice are questions of law: R v Biniaris, 2000 SCC 15 at para 19, [2000] 1 SCR 381; R vBawkovy, 2009 ABCA 213 at para 12, 457 AR 64. [54] Leave should be granted as the issue raised engages a trial judge’s duty to a self-represented accused when Charter issues areat play. That issue has significance beyond the immediate parties. I would, however, recast the issue as follows: (

a) Did the trial judge breach his duty to provide adequate assistance to the self-represented appellants with respect to their s. 8Charter rights? (

b) Did the trial judge breach his duty to provide adequate assistance to the self-represented appellants with respect to theirs. 11(

b) Charter rights? (

c) Did a breach of the trial judge’s obligation result in an unfair trial or a miscarriage of justice? VII. Positions of the Parties A. The Appellants’ Position [55] The appellants submit that during the proceedings it was obvious their ss. 8 and 11(

b) Charter rights may have been breachedand that the trial judge failed in his duty to them either because he did not assist them to bring forward those breaches or because heshould have, on his own motion, raised the possibility of such breaches and required both the Crown and the appellants to address them. [56] With respect to the s. 8 Charter right to be free from unreasonable search and seizure, the appellants submit they had a highexpectation of privacy with respect to their computer and cellphones given the extensive personal and private data that can be accessedthrough such devices: R v Morelli, 2010 SCC 8 at para 105, [2010] 1 SCR 253 [Morelli], and R v Fearon, 2014 SCC 77, [2014] 3 SCR621 [Fearon].

They argue the customs officers’ warrantless searches of those devices were unreasonable and were not authorized by s. 99of the Act. The appellants submit that despite obvious breaches of their s. 8 Charter rights, the trial judge did not advise them of thoserights, that they could challenge the search of their computer and cellphones, or that they could apply to exclude the evidence obtainedfrom such searches, which was key to their convictions. [57] With respect to the s. 11(

b) Charter right to be tried within a reasonable time, the appellants contend the fact it took 23months from the laying of the charges to trial was presumptively unreasonable: R v Morin, (SCC), [1992] 1 SCR 771,and Jordan. [58] Finally, the appellants argue that any deficiencies in the evidence with respect to the alleged Charter breaches occurredbecause of the trial judge’s failure to adequately assist them in advancing arguments pertaining to the infringement of those rights. B.

The Crown’s Position [59] The Crown contends the evidence presented at trial did not give rise to any Charter issues. [60] The Crown submits a trial judge is not required to advise a self-represented accused whether or not to make a Charterapplication. It posits that an accused person is entitled to represent him or herself.

If that choice is made, the accused cannot thencomplain that the representation was not as effective as a lawyer’s might have been: R v Knapp, 2016 SKQB 107 at paras 52–53[Knapp]; R v Harris, 2009 SKCA 96 at paras 26–27, 331 Sask R 283. [61] Further, it is the Crown’s position that in the absence of an application a trial judge is only required to address a Charterbreach when there is evidence of a “flagrant violation based on uncontradicted evidence of a sufficient clarity to warrant intervention”: Rv Li, 2015 ONSC 7017 at para 46 [Li]. [62] The Crown also contends that when read in context, the cross-examinations referred to in the appellants’ factum, which theysay raised their s. 8 Charter rights, were either aimed at establishing the appellants had not made false statements to the customs officersor related to the customs officers’ exercise of discretion when deciding whether to lay criminal charges as opposed to simply relying oncivil enforcement.

The Crown argues the appellants never took the position that the customs officers did not have authority to conduct asecondary examination or to search their electronic devices. Rather, the appellants argued the customs officers should have exercisedtheir discretion not to search “because of the appellants’ age and social status”. [63] The Crown submits the reference to the length of time it took for the charges to proceed to trial was raised in the context of anadjournment request, not with respect to unreasonable delay.

The Crown took the position at trial that any unreasonable delay wasattributable to the appellants (at T153, lines 25–35) and that this was obvious from the endorsements on the file. In the Crown’s view,Jordan would not apply to the appellants’ case as Jordan was decided after the trial judge had rendered his decision.

Even if Jordan didapply, the appellants’ case was no longer “in the system” and, as such, the “transitional exception” set out in Jordan would govern. [64] Finally, relying on Knapp, the Crown argues that even if the trial judge breached his duty to the appellants, that breach did notresult in a miscarriage of justice because (

i) the appellants were not wrongfully convicted, (ii) s. 99 of the Act authorized the searches of

the journal, cellphones and computer, (iii) absent a notice of constitutional question pursuant to The Constitutional Questions Act, 2012,SS 2012, c C-29.01, the appellants could not challenge the validity of s. 99 of the Act: R v Nome, 2010 SKCA 147 at paras 30–50, 265CCC (3d) 145; Saskatchewan Government Insurance v Gorguis, 2013 SKCA 32 at paras 22–38, 360 DLR (4th) 607, and (iv) even ifthere was a Charter breach, the evidence acquired from the search would not be excluded pursuant to s. 24(2) of the Charter as thecustoms officers reasonably believed s. 99 authorized the searches and the case law supported that position: R v Gibson, 2017 BCPC 237[Gibson]; R v Whittaker, 2010 NBPC 32 at para 8, 367 NBR (2d) 334 [Whittaker]; R v Mozo (2010), 316 Nfld & PEIR 304 at para 34[Mozo]; R v Moroz, 2012 ONSC 5642 at para 20 [Moroz]; R v Buss, 2014 BCPC 16 at para 25, 301 CRR (2d) 309 [Buss]; and R v Leask,2008 ONCJ 25, 167 CRR (2d) 267 [Leask].

VIII.

Analysis [65] In Canada, courts of all levels have recognized that in order to promote justice and ensure fairness of the adjudication process,trial judges will be required to render some assistance to those who are self-represented so that the defences available to such individualsare presented with “full force and effect”: R v McGibbon (1988), (ON CA), 45 CCC (3d) 334 (Ont CA) at 347; R vCandido, 2015 SKCA 104 at para 13, 467 Sask R 128; R v Richards, 2017 ONCA 424 at paras 110–112, 349 CCC (3d) 284 [Richards];Olenick at para 6; R v Tran (2001), (ON CA), 156 CCC (3d) 1 (Ont CA) at paras 22–23 [Tran]; Phillips at para 25. [66] While the Crown contends trial judges have no obligation to raise Charter issues, the jurisprudence does not support thatcontention. [67] In R v Arbour (1990), 4 CRR (2d) 369 (WL) (Ont CA) [Arbour], the accused argued, among other things, that his Charterright to counsel had been violated.

According to the uncontradicted trial evidence, the police had refused to let the accused call a lawyerbefore questioning him and obtaining a statement.

Even though the accused was represented at trial by counsel, who at the outset of theproceedings (before any testimony had been heard) had agreed to the admission of the statement, the Ontario Court of Appeal per curiamheld that once admissible uncontradicted evidence of the circumstances surrounding the giving of the statement had been received, thetrial judge should have raised the statement’s admissibility based on a possible infringement of the accused’s right to counsel.

The Courtstated: [9] We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had beenan infringement of the appellant’s rights under s. 10(

b) of the Charter it was incumbent on the trial judge to enter upon an inquiry toascertain whether such an infringement had occurred. … (Emphasis added) [68] In R v Travers, 2001 NSCA 71, 154 CCC (3d) 426 [Travers], the accused had been self-represented at trial. In that case, theadmissible uncontradicted evidence was that the police, as a result of a noise complaint, had attended the accused’s residence. When theaccused refused to answer the door, the police forced their way into his home and conducted a warrantless search – seizing a clock radio.At trial, the accused did not raise a breach of his s. 8 Charter right and the

summary conviction appeal judge found no error. [69] The Nova Scotia Court of Appeal allowed the appeal and ordered a new trial, holding the trial judge should have, on his ownmotion, raised the Charter issue. After adopting the approach taken in Arbour, Oland J.A., writing for the Court, stated: [38] The approach taken in Arbour is not confined to Ontario. In the case under appeal in R. v. Fraillon (1991), (QC CA), 62 C.C.C. (3d) 474 (Que.

C.A.), the trial judge on his own motion had entered a stay of fraud proceedings on the basis that theaccused was not able to make full answer and defence due to delay in laying charges. At p. 476, the Quebec Court of Appeal stated: Generally, it is open to the judge to point out to the parties that, in his mission to do justice, he is troubled by a point in the facts or in thelaw which neither one raised. This is especially the case where it is a right recognized by the Charter.

But again, he must point it out tothe parties and give them all the time necessary to completely argue the question before he rules on it. Here the parties to their greatastonishment learned during the rendering of judgment that it was based, and based solely, on a question that the judge had only raisedand resolved proprio motu. (Emphasis added) [39] In R. v.

Boire et. al. (1991), (QC CA), 66 C.C.C. (3d) 216, one of the issues considered by the Quebec Courtof Appeal was whether, in the absence of a formal application, a court of appeal is entitled to itself raise the violation of a Charter right.At p. 223, Brossard, J.A. commented that, considering that the Charter constitutes the most fundamental law in respect of human rightsand in particular of accused in penal matters, he found it difficult to see how it could be argued that a court would not be entitled, incertain circumstances and subject to certain conditions, to itself consider its provisions when confronted with a flagrant violation of theCharter. … [40] I do not suggest that the merest intimation of a possible Charter infringement will found a duty upon a trial judge to enterimmediately upon an inquiry where none of the parties before him has raised this argument.

However, and without attempting to fullydelineate the point at which the duty arises, where there is strong evidence of a prima facie case of breach of a Charter rightrelevant to the proceeding, a judge has a responsibility to raise the issue, invite submissions and, if appropriate, to conduct anexclusionary hearing in order to protect the integrity of the judicial process. (Bold emphasis added) [70] While it might appear from paragraph 40 of Travers that Oland J.A. was proposing a slightly different test than that set out inArbour, namely, “strong evidence of a prima facie case of breach of a Charter right” as opposed to “admissible uncontradicted evidenceof a breach”, I am of the view that was not the Court’s intention.

Justice Oland quoted the test set out in Arbour and accepted Arbour assetting out the correct approach. Moreover, subsequent cases have viewed Travers as adopting Arbour.

[ 71 ] In Tran , the Ontario Court of Appeal considered a situation where an accused charged with impaired driving had been injured in a motor vehicle accident. After being transported by ambulance to hospital, the accused consented to providing blood samples for medical purposes but no demand to provide a blood sample pursuant to s. 254(3) of the Criminal Code had been made nor was a warrant obtained for a blood sample. At trial, the Crown sought to prove the offence of impaired driving by relying on the blood sample taken for medical purposes.

In allowing the appeal, Borins J.A. referred to Travers as follows: [26] Applying R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont. C.A.) , Oland J.A. was of the opinion that, even when the defendant is represented by counsel, there are circumstances in which it is appropriate for a trial judge to raise Charter issues. These circumstances include when the evidence indicates a possible infringement of a defendant’s Charter rights.

In Arbour , where the defendant had counsel, this court stated at p. 372 C.R.R.: We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant’s rights under s. 10(

b) of the Charter , it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred. This was not done. Accordingly, the statement should not have been admitted in evidence or, having been admitted, should not have been considered as evidence in the circumstances. [ 72 ] In Richards , the Ontario Court of Appeal again had an opportunity to address the issue. The accused, who was self- represented at trial, was convicted of possession of marijuana for the purpose of trafficking and possession of cannabis resin.

The evidence established that the police had conducted surveillance of the accused’s home after an informant had indicated drugs were being sold from that home. The police obtained a telewarrant for the search. They then arrested the accused at a convenience store, cautioned him and gave him his right to counsel. The accused asked to speak to a lawyer and the officer told him he could do so at the police station. At the station, police held off allowing the accused to call counsel until the search warrant was executed. Drugs and drug paraphernalia were seized from the home.

The trial judge did not advise the accused of the police’s obligation to facilitate immediate contact with legal counsel or that the accused had a right to challenge the admissibility of evidence obtained incidental to an infringement of s. 10(

b) of the Charter . The Ontario Court of Appeal allowed the appeal. Justice Watt, writing for a unanimous court, indicated a trial judge’s obligations to a self-represented accused can extend to raising Charter issues on his or her own motion where there is “admissible uncontradicted evidence of a relevant Charter breach”. He cited both Arbour and Travers with respect to that test: [113] The onus extends, at least can extend, to an obligation on the trial judge to raise Charter issues on the judge’s own motion where the accused is self-represented: R. v. Travers , 2001 NSCA 71 , 154 C.C.C. (3d) 426, at para. 36 .

This is not to say, however, that this specific obligation becomes engaged on the mere scent or intimation of a possible Charter infringement: Travers , at para. 40 . But where there is admissible uncontradicted evidence of a relevant Charter breach, the trial judge has an obligation to raise the issue, invite submissions and enter upon an inquiry into the infringement and its consequences: Travers , at paras. 36, 40 ; R. v. Arbour (1990), 4 C.R.R. (2d) 369 (Ont.

C.A.) , at p. 372 . (Emphasis added) [ 73 ] Li , which the Crown relies on to support the proposition that the test for intervening is evidence of a “flagrant violation based on uncontradicted evidence of a sufficient clarity to warrant intervention”, was decided before the Ontario Court of Appeal rendered its decision in Richards . I agree with the law as stated by Watt J.A. in Richards . The test for whether a trial judge should intervene and on his or her own motion raise a Charter issue is whether there is admissible uncontradicted evidence of a Charter breach.

If Travers is viewed as setting out a different test, namely, where there is “a strong prima facie case of a Charter breach”, then in my view the test enunciated by the Ontario Court of Appeal in Arbour , Tran and Richards is the correct test. [ 74 ] In my view, a judge who raises Charter issues on his or her own motion should do so when it first becomes clear the evidence of a breach will be uncontradicted.

The trial judge should then, as stated by Oland J.A. in Travers , “invite submissions and, if appropriate … conduct an exclusionary hearing in order to protect the integrity of the judicial process” (at para 40). [ 75 ] With the principles as enunciated herein in mind, I turn to consider whether the trial judge in this case failed to adequately assist the appellants in raising breaches of their ss. 8 and 11(

b) Charter rights, or failed by not raising potential breaches on his own motion. [ 76 ] I begin by noting it is uncontroverted that the appellants did not provide notice of any Charter issues, either prior to trial or during the trial itself. This was so even though the appellants were represented by legal counsel until the trial date was set. The Crown suggests the appellants’ failure to provide a notice of constitutional question at trial, before the

summary conviction appeal court or in this Court is determinative of their appeal. In my view, however, a notice of constitutional question was not required as the appellants are not taking the position that the Act or any provision thereof is invalid. Rather, they contend the searches in issue were not authorized by the Act . While notice of a Charter issue is generally required, failure to provide such notice is not fatal to an appeal. [ 77 ] Applying the law outlined in paragraph 73 of these reasons, the issue is whether the record disclosed admissible uncontradicted evidence of a Charter breach. A.

Did the trial judge breach his duty to provide adequate assistance to the self-represented appellants with respect to their s. 8 Charter rights? [ 78 ] The appellants’ position with respect to their s. 8 Charter rights is encapsulated in paragraph 27 of their factum: In respect of s. 8 Charter rights, the situation was even more visibly before the Court. At numerous points in the Appellant’s cross- examination of witnesses, it was obvious that they were examining the basis of the search that followed the development of suspicion by CBSA Officer Insell.

In fact, the Trial Judge overtly stated that he was aware of this and asked the Appellants to stop examining on the issue of their discretion on a number of occasions. During closing submissions, the Appellant Bialski specifically mention the Charter and the invasion of privacy by the conduct of the CBSA Officers. Clearly, a potential s. 8 Charter defence was raised by the Appellants.

At this point, the Trial Judge was still not functus and could have advised the Appellant about the proper procedure for bringing forwardhis concerns about the right to privacy in the context of the Charter. [79] In order to properly assess whether the trial judge failed in his obligation to the appellants, it is necessary to set out the lawwith respect to search and seizure as it existed at the time of trial. Also of importance to the analysis are ss. 98 and 99 of the Act, therelevant portions of which read as follows: 98

(1) An officer may search (

a) any person who has arrived in Canada, within a reasonable time after his arrival in Canada, … if the officer suspects on reasonable grounds that the person has secreted on or about his person anything in respect of which this Act hasbeen or might be contravened, anything that would afford evidence with respect to a contravention of this Act or any goods theimportation or exportation of which is prohibited, controlled or regulated under this or any other Act of Parliament.

(2) An officer who is about to search a person under this

section shall, on the request of that person, forthwith take him before the seniorofficer at the place where the search is to take place.

(3) A senior officer before whom a person is taken pursuant to subsection (2) shall, if he sees no reasonable grounds for the search,discharge the person or, if he believes otherwise, direct that the person be searched. … 99

(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 orcontainer of imported goods and take samples of imported goods in reasonable amounts; … (

e) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered orenforced by him or any regulations thereunder have been or might be contravened in respect of any goods, examine the goods and openor cause to be opened any package or container thereof; or (

f) where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered orenforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon,stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof anddirect that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening. … 1. Law of Search and Seizure [80]

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search and seizure. [81] A warrantless search is presumptively unreasonable and the party seeking to justify it bears the onus of rebutting thatpresumption: Hunter v Southam Inc., (SCC), [1984] 2 SCR 145 at 161 and 169 [Hunter].

To do so, that party mustestablish the search was authorized by law and carried out in a reasonable manner: R v Collins, (SCC), [1987] 1 SCR265 at 278; R v Buhay, 2003 SCC 30 at para 32, [2003] 1 SCR 631 [Buhay]. [82] In Hunter, Dickson J. (as he then was), writing for the Court at page 159, indicated the guarantee of security fromunreasonable search and seizure contained in s. 8 of the Charter only protects an individual’s “reasonable expectation of privacy”.

Thus,to establish an infringement of s. 8, the person raising the claim must first establish a reasonable expectation of privacy in the thingssearched or seized: Buhay at para 18, and R v Edwards, (SCC), [1996] 1 SCR 128 at para 30. [83] In Buhay, the Supreme Court of Canada considered what is meant by a reasonable expectation of privacy and providedguidance with respect to when such an expectation exists: [18] … Reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances (see, for example,Edwards, at para. 31, and R. v. Wong, (SCC), [1990] 3 S.C.R. 36, at p. 62).

The factors to be considered in assessing thetotality of the circumstances include, but are not restricted to, the accused’s presence at the time of the search, possession or control ofthe property or place searched, ownership of the property or place, historical use of the property or item, ability to regulate access,existence of a subjective expectation of privacy, and the objective reasonableness of the expectation (Edwards, at para. 45). (Emphasis added) [84] Generally speaking, individuals have a high expectation of privacy with respect to their computers and cellphones: R v Vu,2013 SCC 60, [2013] 3 SCR 657 [Vu], and Fearon. [85] Cromwell J., writing for a majority of the Court in both Vu and Fearon, underscored the distinct privacy interests engaged bycellphones and computers.

He said this in Fearon: [51] It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which aredifferent 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 inVu, 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 thinksthat 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. [86] In Vu, the Supreme Court of Canada considered the application of s. 8 to the search of two computers and a cellphone that hadbeen seized from a residence searched pursuant to a warrant. The computers and cellphone were subsequently searched by police withoutfurther warrant. The searches yielded evidence that Mr.

Vu was the occupant of the residence. The trial judge found the warrant tosearch the residence did not authorize the search of the computers and cellphone and excluded most of the evidence found as a result ofthose searches. Mr. Vu was acquitted. The British Columbia Court of Appeal set aside that acquittal holding the warrant had authorizedthe computer and cellphone searches and, accordingly, there was no breach of Mr. Vu’s s. 8 rights. Mr. Vu appealed that decision to theSupreme Court of Canada.

While the Supreme Court of Canada found the search of the computers and cellphone unlawful, it held theevidence should not have been excluded under s. 24(2) of the Charter because the state of the law was uncertain when the searches wereconducted, the search was reasonably executed and the violation of Mr. Vu’s Charter rights was not serious. The Court found that thetraditional view – that if the search of a place is justified, so is the search of receptacles found within that place – did not apply to thesearch of cellphones or computers.

It held those devices should be treated, to a certain extent, as separate places and that a warrant tosearch was required. Justice Cromwell, writing for the Court, stated: [48] Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place theywant to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers theydiscover will contain the things they are looking for.

They need not, however, establish that they have reasonable grounds to believe thatcomputers will be found in the place, although they clearly should disclose this if it is the case. I would add here that once a warrant tosearch computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce, andprint data that they find. [87] Fearon involved the search of a cellphone incident to arrest. The cellphone was found during a pat-down search.

The policeexamined the cellphone and found a draft text message, which opened with the words “[w]e did it” and contained a reference tojewellery. Photographs of a handgun and some male persons were also discovered. The trial judge found the search of the cellphone wasproperly conducted incident to arrest and had not breached Mr. Fearon’s s. 8 Charter right. The evidence found on the cellphone wasadmitted and Mr. Fearon was convicted of armed robbery and other related offences. Mr. Fearon appealed his conviction. The OntarioCourt of Appeal dismissed his appeal, upholding the trial judge’s findings.

A majority of the Supreme Court of Canada (McLachlin C.J.,Cromwell, Moldaver and Wagner JJ.) held the common law power to search incident to a lawful arrest permits the search of cellphonesand similar devices. They concluded, however, that some modification of the existing common law framework was necessary to addressthe significant invasion of privacy that may result from the search of such devices. They indicated that the search of a cellphone orsimilar device incident to arrest would not infringe s. 8 of the Charter if four conditions were met: (

i) the arrest was lawful, (ii) thesearch was truly incidental to the arrest, (iii) the nature and extent of the search was tailored to its purpose (i.e., only recently sent ordrafted emails, texts, photos and the call log would be available to search), and (iv) detailed notes must be taken as to what was examinedand how it was examined (Fearon at para 83). The Court made it clear that meeting these conditions is not the only way to ensurecompliance with s. 8.

The minority (LeBel, Abella and Karakatsanis JJ.) were of the view that searches of personal digital devices –including personal computers – constituted a serious encroachment on privacy and therefore were not authorized under the common lawpower to search incident to arrest. In their view, only judicial preauthorization would provide the necessary balancing of the state’s lawenforcement objectives with an individual’s privacy rights. [88] Fearon was decided after the search of Mr. Bialski’s and Ms. Szefer’s computer and cellphones had been conducted butbefore the matter proceeded to trial.

Thus, the customs officers would not have had the benefit of that decision. [89] It is important to note that Vu and Fearon do not purport to have universal application. In Vu, Cromwell J., commenting onthe scope of his reasons, stated “It is not my intention to create a regime that applies to all computers or cellular telephones that policecome across in their investigations, regardless of context. …” (at para 63). Later in Fearon, Cromwell J., writing for the majority,indicated a “cell phone search engages very significant informational privacy interests” but “it is not as invasive as a strip search”.

Hewent on in Fearon to make it clear that nothing in his reasons “changes the existing law in relation to warrantless searches in exigentcircumstances” (at para 63). [90] The high expectation of privacy associated with cellphones and computers is in conflict with the “low expectation of privacy”that individuals generally have when crossing international borders. [91] In R v Simmons, (SCC), [1988] 2 SCR 495 [Simmons], the Supreme Court of Canada dealt with howsearches conducted at Canada’s border meld with an individual’s s. 8 Charter right to be free from unreasonable search and seizure. [92] In Simmons, the accused arrived at the Toronto International Airport from Jamaica.

She proceeded to customs where acustoms officer asked her a series of standard questions. The officer noticed that Ms. Simmons was nervous and referred her for asecondary inspection where her luggage was searched. The officer doing the secondary inspection observed that although Ms. Simmonswas very slender, she was slightly heavy and bulging in the area of her upper abdomen. The officer requested permission from thecustoms superintendent to search Ms. Simmons’ person. Ms. Simmons was shown to a search room and the officer brought to herattention a sign on the wall that set out ss. 143 and 144 of the Act.

The officer advised Ms. Simmons that those sections providedauthorization for conducting personal searches. Ms. Simmons was told to undress. Six plastic bags of hashish oil were found wrapped inbandages around her body. Ms. Simmons was arrested and charged with importing a narcotic and possession for the purposes oftrafficking. [93] At trial, Ms. Simmons was acquitted on the basis the evidence was obtained in violation of her Charter rights. The trial judgehad concluded Ms. Simmons was detained when taken to be searched and had not been advised of her right to counsel pursuant to s.10(

b) of the Charter. [94] On appeal, the Ontario Court of Appeal set aside the acquittal and ordered a new trial on the basis Ms. Simmons had not been

detained. Ms. Simmons appealed that decision to the Supreme Court of Canada. Chief Justice Dickson, writing for himself, Beetz, Lamerand La Forest JJ., concluded Ms. Simmons had been detained within the meaning of s. 10(

b) of the Charter and thus should have beenadvised of her right to counsel. [95] In Simmons, it was also argued that ss. 143 and 144 of the Act were invalid as not conforming with the Charter.[1] ChiefJustice Dickson, writing for the majority, found that the powers of search contained in ss. 143 and 144 do not infringe an individual’sright to be secure against unreasonable search and seizure pursuant to s. 8 of the Charter. He concluded that no warrant is required withrespect to searches conducted pursuant to those sections.

In rendering his decision, Dickson C.J. identified three distinct types of bordersearches: [27] It is, I think, of importance that the cases and the literature seem to recognize three distinct types of border search. First is theroutine of questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhapsa pat or frisk of outer clothing. No stigma is attached to being one of the thousands of travellers who are daily routinely checked in thatmanner upon entry to Canada and no constitutional issues are raised.

It would be absurd to suggest that a person in such circumstances isdetained in a constitutional sense and therefore entitled to be advised of his or her right to counsel. The second type of border search isthe strip or skin search of the nature of that to which the present appellant was subjected, conducted in a private room, after a secondaryexamination and with the permission of a customs officer in authority.

The third and most highly intrusive type of search is thatsometimes referred to as the body cavity search, in which customs officers have recourse to medical doctors, to X-rays, to emetics, and toother highly invasive means. [96] Chief Justice Dickson went on to indicate that the degree of personal privacy reasonably expected at customs is lower than inmost other situations: [52] In light of the existing problems in controlling illicit narcotics trafficking and the important government interest in enforcing ourcustoms laws, and in light of the lower expectation of privacy one has at any border crossing, I am of the opinion that ss. 143 and 144 ofthe Customs Act are not inconsistent with s. 8 of the Charter. [97] The Supreme Court of Canada again considered the impact of s. 8 Charter rights on border searches in R v Monney, (SCC), [1999] 1 SCR 652 [Monney].

Mr. Monney, prior to his arrival at the Toronto Pearson International Airport fromGhana via Switzerland, had ingested 84 pellets each containing approximately five grams of heroin. When initially questioned atcustoms, Mr. Monney denied having travelled to Ghana but later admitted he had done so to visit his mother. The customs officer knewGhana was a “source” country for narcotics and that Switzerland was a “transit routing” country. The officer decided he had sufficientgrounds to detain Mr. Monney as a suspected drug courier. He informed Mr. Monney of his right to counsel and Mr.

Monney was thentaken to a “drug loo facility” to await excretion. At the facility, Mr. Monney agreed to provide a urine sample, which tested positive forheroin. Mr. Monney was arrested and confessed to ingesting pellets. Shortly after a second call to his lawyer, Mr. Monney began toexcrete the pellets. At trial, Mr. Monney was convicted of importing narcotics. The Ontario Court of Appeal, in a majority decision, heldMr. Monney’s rights under s. 8 of the Charter had been infringed and that the evidence concerning the narcotics should be excludedpursuant to s. 24(2) of the Charter.

An acquittal was entered. [98] On appeal to the Supreme Court of Canada, Mr. Monney’s conviction was restored. The Supreme Court of Canadadetermined the search conducted by the customs officer was constitutionally permissible pursuant to s. 98 of the Act as the customsofficer had “reasonable grounds to suspect” that Mr. Monney had ingested narcotics.

Justice Iacobucci, writing for the Court, repeated atparagraph 34 what had been said in Simmons: “that, although the constitutional safeguards articulated by the Hunter standard should notbe rejected lightly, the framework established in Hunter for analysing the reasonableness of a search for the purposes of s. 8 wasinapplicable to border searches …”. Justice Iacobucci concluded that determining whether a search is reasonable requires a contextualanalysis. Searches directed at ensuring “the security of Canada’s interior” are distinguishable from those that occur in a wholly domesticsetting.

At paragraph 36 of his judgment, Iacobucci J. quoted Dickson C.J.’s comments at page 528 of Simmons with respect to balancingCanada’s interest in preventing the flow of contraband across its borders and an individual’s privacy interests as protected by s. 8 of theCharter: I accept the proposition advanced by the Crown that the degree of personal privacy reasonably expected at customs is lower thanin most other situations. People do not expect to be able to cross international borders free from scrutiny.

It is commonly acceptedthat sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state isexpected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legallyentitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellersseeking to cross national boundaries fully expect to be subject to a screening process.

This process will typically require theproduction of proper identification and travel documentation and involve a search process beginning with completion of adeclaration of all goods being brought into the country.

Physical searches of luggage and of the person are accepted aspects of thesearch process where there are grounds for suspecting that a person has made a false declaration and is transporting prohibitedgoods. (Emphasis added) [99] Justice Iacobucci went on to conclude at paragraph 43 of Monney that in general the Supreme Court of Canada’s decisionsrelating to the reasonableness of a search for the purposes of s. 8 are not “necessarily relevant in assessing the constitutionality of asearch conducted by customs officers at Canada’s border”. [100] The Ontario Court of Appeal considered the impact of s. 8 on border searches in R v Jones (2006), (ONCA), 211 CCC (3d) 4 (Ont CA) [Jones].

Justice Doherty, writing for the Court, stated: [30] Like the trial judge, I think the fact that the impugned statements were made at the border in the course of routine questioning byCustoms authorities is central to the analysis of the appellant’s self-incrimination claim. No one entering Canada reasonably expectsto 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 beexpected to answer those questions truthfully. Travellers also reasonably expect that Customs authorities will routinely andrandomly search their luggage. Put simply, the premise underlying the principle against self-incrimination, that is, thatindividuals are entitled to be left alone by the state absent cause being shown by the state, does not operate at the border. Theopposite is true.

The state is expected and required to interfere with the personal autonomy and privacy of persons seeking entryto Canada. Persons seeking entry are expected to submit to and cooperate with that state intrusion in exchange for entry intoCanada. [31] I also have no hesitation in describing Canada’s effective control over its borders as a societal interest of sufficient importance tobe characterized as a principle of fundamental justice. Nothing is more fundamental to nationhood and national sovereignty than theability to control national borders.

Effective border control serves a myriad of crucial social interests ranging from national self-defence to public health, to the enforcement of Canada’s fiscal policies and its penal statutes. The appellant’s self-incriminationclaim must be balanced against the equally fundamental societal claim to the preservation of the integrity of Canada’s borders throughthe effective 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.

Those laws, of course, include the prohibition against the importation of narcotics. [32] The significance of the border crossing context to the delineation of individual Charter rights is evident from the cases that haveconsidered the operation of s. 10(b) (the right to counsel) and s. 8 (the protection against unreasonable search and seizure) at the border.Persons seeking entry into Canada are subject to state action that can range from routine questioning to highly intrusivesearches.

The extent to which state action at the border will be said to interfere with individual constitutional rights dependsprimarily on the intrusiveness of that state action. In cases such as R. v. Simmons, (SCC), [1988] 2 S.C.R. 495,[1988] S.C.J. No. 86, 67 O.R. (2d) 63, 45 C.C.C. (3d) 296, at p. 516 S.C.R., p. 312 C.C.C. and R. v. Monney, (SCC),[1999] 1 S.C.R. 652, [1999] S.C.J. No. 18, 133 C.C.C. (3d) 129, at p. 661 S.C.R., p. 149 C.C.C., the Supreme Court has recognizedthree levels of state action at the border.

The first, or least intrusive level of that action, involves routine questioning of travellers,the search of their luggage, and perhaps a pat-down search of the person. If state action involves only this level of intrusion, therights protected by s. 10(

b) and s. 8 of the Charter are not engaged. … (Emphasis added) [101] There have been a number of cases that have dealt with the search of computers or cellphones at the border pursuant to s. 99 ofthe Act. Many of these cases arise with respect to the possession and importation of child pornography. [102] In R v Bares, (Ont Sup Ct), Mr. Bares had arrived in Canada with computer discs containing childpornography. The discs were found by customs officers in Mr. Bares’ luggage.

Justice Wein stated: [10] With respect to the viewing of the disc by the Customs officers itself, I agree with the Crown that in the circumstances of aborder search, and given the authority under ss. 98 and 99 of the Customs Act, there is a significantly reduced expectation of privacy inthe content of a computer disc.

Even though the intervention of a mechanical device, a computer, is required to ascertain the nature of thematerial, this is qualitatively no different than the examination of other types of contraband, such as drugs or explosives, which mayrequire further investigation before the nature of the material can be verified. See: Regina v. Leask, [2008] O.J. No. 329 (O.C.J.). [103] In Moroz, the police had informed Canada Border Services that they believed Mr. Moroz had child pornography on hiscomputer. When Mr. Moroz arrived at the border, he was sent for a secondary examination.

The customs officer who performed thatexamination testified he did a “cursory view” of Mr. Moroz’s cellphone, which revealed what the officer believed to be childpornography. At trial, Mr. Moroz applied to exclude the evidence obtained from the cellphone on the basis of a breach of his s. 8 Charterright. Justice Desotti found there was a significant distinction between warrantless searches at the border and those conducted at apersonal residence. He found s. 99 of the Act permitted customs officers to conduct a “cursory view” of Mr.

Moroz’s cellphone todetermine whether he was transporting illegal goods into Canada. Justice Desotti found the definition of “goods” in the Act, which “forgreater certainty, includes conveyances, animals and any document in any form” incorporates the type of information found onelectronic devices such as cellphones: [20] Furthermore, I conclude that the use of the expression “goods” found in s. 99 of the Customs Act reflect the type of informationfound in electronic devices such as a cell-phone or an I-Phone. Justice Donohue, in a decision of R. v.

Christopher Mattew Burnett, foundas a fact that s. 99 of the Customs Act speaks of “goods” and that the definition of “goods” found in the Customs Act include anydocument in any form. He went on to state at p.17: The picture and the text messages which he viewed were documents in electronic form. (Emphasis in original) [104] In Buss, a judge of the British Columbia Provincial Court considered, in the context of a voir dire, whether one image of childpornography found during a search of Mr. Buss’s personal computer and cellphone at the border should be excluded based on a breach ofhis Charter rights. Mr.

Buss relied on the Supreme Court of Canada’s decisions in Morelli and Vu, arguing there is a high expectation ofprivacy with respect to cellphones and computers. The Crown, on the other hand, argued the fact the search occurred at the border wascrucial in assessing what constitutional rights arose and when. It contended the examination of Mr. Buss’s cellphone and computer wasroutine. The customs officer used the search function of the computer to look for a commonly-used photo format and found a photoentitled “Sweet 12 yo Pussy”. Upon seeing that photograph, the customs officer stopped his search and charged Mr.

Buss withpossession of child pornography. It was the Crown’s position the search was the first type of search described by Dickson C.J. inSimmons and was thus authorized by s. 99(1)(

a) of the Act. [105] The trial judge concluded the search was authorized by the Act. He stated: [19] Courts in Canada have long recognized that the border is a specific and particular context when it comes to analyzing Charterrights of those who choose to seek entry to Canada. There is a reduced expectation of privacy at the border. Canadian Border Service

officers have a duty to enforce the laws of Canada at the border. To assist them in this task, they have enforcement powers under severalfederal statutes including the Customs Act, the Criminal Code of Canada and the Immigration and Refugee Protection Act. [20] In conducting their primary inspection, they have discretion as to who to refer to secondary inspection.

This referral may berandom or it may be based on what the officers in this case referred to as indicators such as appearing nervous, being hesitant or beingflagged on a database. … [25] Canadian Border Service officers have powers to “examine goods” under s. 99 of the Customs Act or to “search people”under s. 98 of the Customs Act. They may conduct warrantless searches under s. 99(1)(

a) of the Customs Act. While I am told thatno court in B.C. has specifically considered whether a computer or a cell phone is a “good” under the Customs Act, I find thatboth are.

In doing so, I consider both the broad definition of “good” found in s. 2 of the Customs Act, which includes “any document inany form,” and the cases decided in other provinces that have considered this issue. (Emphasis added) [106] The cases considered by the trial judge in Buss included Moroz, R v Saikaley, 2012 ONSC 6794, Leask, Mozo and Whittaker. [107] The appellants cite R v Ahmad, (Ont Sup Ct) [Ahmad], as “suggesting” s. 99 does not permit warrantlesssearches of computers and cellphones at the border. [108] In Ahmad, the Court was dealing with an individual accused of terrorism.

The RCMP had obtained a general warrantauthorizing a surreptitious search of Mr. Ahmad’s cellphone at the airport upon his re-entry to Canada after a trip to Pakistan. Thewarrant was upheld. The Crown had asserted that s. 99 of the Act would also have authorized the search. Justice Dawson had concernsabout the application of that

section as the search was not instigated for customs purposes but rather was the result of an RCMPinvestigation into alleged terrorism. Because the warrant was upheld, Dawson J. did not need to decide that issue. In obiter, he stated: [20] Before moving on to consider the second search warrant I want to comment on the Crown’s primary response to this application,which was centered on the submission that no warrant was required in the circumstances.

The Crown submitted that the applicant had noreasonable expectation of privacy in the contents of his luggage because he was entering Canada from abroad at the time of the search:R. v. Simmons, (SCC), [1988] 2 S.C.R. 495; R. v. Monney, (SCC), [1999] 1 S.C.R. 652; R. v. Jordan,(1984), (BC CA), 11 C.C.C. (3d) 565 (B.C.C.A.); R. v. Smith, (ON SC), [2004] O.J. No. 4979(S.C.); R. v. Corbyn, [2005] O.J. No. 5578 (S.C.); R. v. Sahota, [2009] O.J. No. 3519 (S.C.). [21] There is no doubt that the cases cited support the general proposition that a person entering Canada has a reduced expectation ofprivacy.

However, as the applicant points out, the cases do not say that there is no expectation of privacy when crossing the border. Theapplicant also submits that the cases the Crown relies upon have no application because the applicant was the target of a pre-existingpolice investigation and the search he was subjected to was not part of a routine customs inspection. He submits that the predominantpurpose in the circumstances was the pursuit of penal liability and that full Charter protection should therefore apply: R. v.

Jarvis, 2002SCC 73 , [2002] 3 S.C.R. 757. … [23] It is established law that there is virtually no reasonable expectation of privacy in luggage that is subject to inspection forlegitimate customs purposes. I agree those purposes are broad. I am less confident that the same reasoning applies in the presentcircumstances, although it might. Here the police were surreptitiously looking for information. What they copied represented the privatethoughts of an individual reduced to writing that happen to have value as circumstantial evidence in this case.

That is not somethingwhich is readily envisaged as coming within the scope or purpose of a typical customs search. On the other hand, the police were alsolooking for explosives and weapons which do fall within such purposes. All members of the RCMP fall within the definition of “officer”in s. 2(1) of the Customs Act. The search took place in a designated customs area. However, no weapons or explosives were found. [109] In Ahmad, Dawson J. confirmed what other cases have said, namely, that a person entering Canada has a reduced expectation ofprivacy at the border.

That is not to say there is no expectation of privacy. Justice Dawson’s obiter comments with respect to s. 99questioned whether that

section should apply where the search was unrelated to customs purposes. This obiter comment has no bearingon the appeal before this Court as it is clear the search of the appellants’ computer and cellphones was associated with a valid customspurpose, namely, the entry of goods into Canada. The appellants have not provided any jurisprudence with respect to border searches thatreached a conclusion contrary to that set out in the cases cited herein. I raise this not because I am of the view that the

interpretationgiven to s. 99 with respect to computer and cellphone searches is necessarily correct (that is an issue for another day), but rather tounderscore what the state of the law was when the appellants’ cellphones and computer were searched and when the charges proceededto trial in 2016. 2. Application of the Law a.

Computer and Cellphones [110] This then brings me to a consideration of whether the trial judge in this case breached his obligation to the self-representedappellants by failing to assist them to bring forward their s. 8 Charter rights or by failing to raise potential breaches of those rights on hisown motion. In my view, he did not. [111] It should be noted at the outset that the jurisprudence supports a lower expectation of privacy at the border: Simmons, Monneyand Jones. It also supports the view that cellphones and computers are goods within the meaning of the Act: Buss and the cases citedtherein.

Various courts have consistently held

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