An Ontario court has chided Canada’s border agency over its “serious, long-standing and systemic” practice of abusing its search powers under customs law and acting as an agent of the police for criminal investigation purposes.

In dismissing the evidence seized for a child pornography case against Gurbir Singh, the Ontario Court of Justice ruled that the Charter rights of the Indian international student were violated by a border security officer at the Prescott port of entry who searched his cellphone primarily for the “purpose of looking for evidence of a Criminal Code offence.”

While the law allows border officials to conduct searches without a warrant, Justice Elaine Deluzio said their power is restricted to customs and immigration enforcement only.

“It is important and necessary that border security officers have broad search powers. Their job is to secure our borders and keep our citizens and our country safe. People who seek entry into Canada must answer questions truthfully and they must provide information and evidence,” Deluzio wrote in a 13-page decision released last week.

“Officer (Johnny) Bueckert acted outside of the limits of his search powers as a border security officer and his search of Mr. Singh’s phone, without a warrant, was unlawful.”

Although there is a strong societal interest in the prosecution of child pornography cases and the exclusion of the evidence would likely end the Crown’s case against Singh, Deluzio concluded, “It is my view that admission of the evidence, including the first image found by Officer Bueckert, would bring the administration of justice into disrepute.”

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Toronto criminal lawyer Craig Penney, who represents Singh, said the court ruling shines the judicial spotlight on the scope of Canada Border Services Agency officers’ powers under the Customs Act.

“We have limited rights when entering Canada. We are obligated to truthfully answer questions. Border officers have broad powers to search our computers and mobile devices. We are both naked and exposed,” Penney said Tuesday. “This ruling admonishes border authorities to stay within the limits of their authority. For defence counsel, it’s important not to accept at face value assertions by CBSA officers that it’s all Customs Act powers when, in fact, it’s a Criminal Code police investigation.

“For CBSA, there’s no putting the toothpaste back in the tube,” Penney added. “The evidence in this case revealed what was really happening behind the scenes, and the understanding that has emerged over the years between the CBSA and the Ontario Provincial Police. The CBSA cannot continue using their search powers to solely investigate criminal matters without putting in jeopardy their ability to prosecute.”

According to the court, Singh, 22, a full-time student at Algonquin College, was referred for a “secondary inspection” at Prescott land border, east of Kingston, upon his return from the U.S. on Jan. 23, 2018.

He told Bueckert he was looking to change his student visa to a work visa as he just finished school at the beginning of the year. During the interview, he also told the officer he had been working 40 hours a week at a gas station while enrolled in school — twice the 20-hour legal limit.

At one point, said the court, Bueckert decided to “escalate” his examination by demanding Singh’s cellphone and was provided with the password. Singh was arrested after a video was found in his phone depicting a naked female engaging in sexual intercourse with a prepubescent boy.

Bueckert testified that at that point he was no longer looking for employment documents relating to Singh’s immigration status, but the search was “strictly” focused on searching for further evidence of child pornography.

“The evidence establishes that the Charter infringing state conduct in this case is serious, long-standing and systemic. Border officers are instructed to continue searching cellphones and other electronic devices after they find child pornography, until they find at least three images,” said Justice Deluzio.

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“The system that has been in place at the Prescott port of entry involves border officers essentially acting as agents of the police, conducting searches of cellphones and other devices for the sole purpose of gathering evidence to support Criminal Code charges and Criminal Code prosecutions.”

Singh is scheduled to appear before the court Wednesday, when the charge of child pornography possession is expected to be dismissed, said Penney.

“Mr. Singh has been under significant stress since his arrest 17 months ago,” Penney said, adding, he is “happy to be moving forward without the stigma and significant consequences that flow from a child-pornography conviction.”

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