The court held border officers illegally searched two travellers in possession of child pornography
A law that allows Canadian border officers to search travellers’ electronic devices without any reasonable basis is unconstitutional, but an Ontario trial court erred when it relied on this rationale to omit child pornography as evidence in a traveller’s criminal case, the Ontario Court of Appeal ruled Friday.
The Court of Appeal said the trial court also made a mistake when it sentenced a second traveller possessing child pornography to 23 months of house arrest instead of three years in prison. But because this traveller has already served more than half of his house-arrest sentence, the appeals court dismissed the Crown’s sentence appeal.
The first traveller, Jeremy Pike, will face a new trial on child pornography charges. The trial court had acquitted Pike, finding the child pornography files border officers found on his devices were inadmissible as evidence.
“The trial judge incorrectly excluded the evidence found on [Pike’s] devices because he failed to properly consider the border officer’s good faith reliance on the existing law when conducting the searches, Mr. Pike’s reduced expectation of privacy in his devices at the border, the moderate length of the delay in providing the right to counsel, and the interests of society in trying these serious charges on their merits,” wrote Chief Justice of Ontario Michael Tulloch in the court’s reasons.
“The trial judge’s decision to exclude the child pornography found on Mr. Pike’s devices, and acquit him, cannot stand.”
The two cases began in 2020, when Pike and the second traveller, David Scott, separately returned to Canada after travel.
According to the Court of Appeal’s decision, Pike, a former teacher, was a registered sex offender who had previously been sentenced to 14 years in prison for sexual abuse, as well as producing and possessing pornography depicting that abuse. He left Canada for several months after his release, visiting several countries that were known to be destinations for travellers looking to sexually abuse children.
When he returned to Canada in February 2020, he had with him 14 digital devices and children’s items and admitted to border officers he had been teaching boys in Indonesia. Border officers searched Pike’s devices, found child pornography, and arrested him.
Scott returned to Canada in June 2020 from his vacation home from Belize and was subjected to a secondary examination by border officers because he had arrived via Houston. Canada Border Services Agency had flagged Houston as a hub for flights that pose a high risk for illegal drugs, national security, and child pornography. Border officers found child pornography on Scott’s devices.
Pike and Scott responded to their arrests by challenging the constitutionality of subsection 99(1)(a) of the Customs Act, which gives border officers broad discretion to search digital devices even if they have no reasonable suspicion that a border law has been breached. The trial court agreed the subsection was unconstitutional, and additionally ruled Canada Border Services Agency violated both defendants’ right under the Charter to be free from unreasonable searches and seizures.
While Pike was acquitted by the trial court, the child pornography Scott possessed was admitted as evidence in his case, resulting in Scott’s conviction for importing child pornography. The Crown appealed Pike’s acquittal and sought leave to appeal Scott’s 23-month sentence. Mr. Scott appealed his conviction.
In Friday’s decision, Tulloch wrote it was “clear” subsection 99(1)(a) of the Customs Act is unconstitutional.
“Section 8 of our Charter of Rights and Freedoms guarantees everyone the right to be secure against unreasonable searches,” Tulloch wrote. “I agree with the trial judge that s. 99(1)(a) of the Customs Act offends this basic guarantee because it authorizes border officers to search some of the most private information imaginable on the lowest possible standard to justify a search, namely that in the border officers’ own minds, they were sincerely trying to find evidence of border law violations.”
“While sincerity is a good start, it is just not enough,” the justice added.
But Tulloch said the unconstitutionality of subsection 99(1)(a) “does not entitle Mr. Pike and Mr. Scott to acquittals on the serious crimes against children with which they were charged.”
The trial court erred when it only imposed a 23-month sentence on Scott, effectively overlooking “the significant number of children” he victimized, Tulloch said.
But because Scott has already served more than half of his 23-month sentence, and likely would have received parole by this point if he had been serving a three-year prison sentence instead, Tulloch said he would decline to impose a prison sentence on Scott now.
“Ordinarily, this court would allow the Crown’s appeal and impose the appropriate sentence to clarify what sentence the trial judge should have imposed, and then stay its execution,” Tulloch wrote. Doing so, however, would effectively shorten Scott’s sentence by releasing him from house arrest, the justice said, adding, he would “accordingly grant the Crown leave to appeal the sentence but dismiss the sentence appeal to prevent that unfair result.”
Justices Jonathan C. George and Patrick J. Monahan concurred.
Counsel for the parties did not respond to requests for comment.
