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| John L. Hill |
Cybercrimes include all crimes in which a computer or the Internet has been instrumental in crimes involving fraud, extortion and sexual exploitation. Statistics Canada reports that the increase in child pornography in 2023 was partially the result of more cases being forwarded to local police services because of increased public awareness. One of the most pernicious cybercrimes is child pornography.
Section 163.1 of the Criminal Code defines child pornography to include “a visual representation, whether or not it was made by electronic or mechanical means” that “shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in
ehrlif: ISTOCKPHOTO.COM
Most people recognize that child pornography is a scourge on society and has the potential for long-term social and psychological harm to those depicted. How can the law be upheld when the offensive material is secreted on personal equipment, requiring a search warrant? One way to watch out for the importation of child pornography is to have Canadian border agents search the laptops and electronic devices of persons entering the country. But is this practice legal? Is it not a violation of an individual’s right to privacy and unreasonable search and seizure if an arrest is made of those entering the country with the offensive material electronically hidden from view?
The Ontario Court of Appeal addressed these questions in R. v. Pike, 2024 ONCA 608. The court in Pike dealt with two appeals, one by Jeremy Pike and the other by David Scott, whose devices were searched under this law at the border as they returned to Canada. They were charged with possessing and importing child pornography. (Trial decisions: R. v. Pike, 2022 ONSC 2297; R. v. Scott, 2022 ONSC 5823). Both men challenged the constitutionality of the law. The principal issue in these appeals is whether s. 99(1)(a) of the Customs Act is constitutional.
Chief Justice Michael Tulloch, writing for a unanimous three-judge panel, started his 196-page judgment by declaring the border search unconstitutional. The judgment went further than a previous Alberta decision of unconstitutionality (R. v. Canfield, 2020 ABCA 383). He then completed a rigorous analysis that even though the search involved a Charter violation, the evidence found should be admitted at trial. However, the law’s unconstitutionality did not entitle Pike and Scott to acquittals on the serious crimes against children with which they were charged.
At trial, the judge was found to have correctly determined that a border officer breached Pike’s right to be secure from unreasonable searches and right to counsel when he detained him, asked him to provide the passwords to his digital devices and searched those devices without advising him of his right to counsel.
However, the trial judge incorrectly excluded the evidence found on the devices because he failed to properly consider the border officer’s good faith reliance on the existing law when conducting the searches Pike’s reduced expectation of privacy in his devices at the border and the moderate length of the delay in providing the right to counsel. He also failed to consider the interests of society in trying these serious charges on their merits. Thus, Pike’s acquittal was set aside, and a new trial on the child pornography charges.
Scott’s conviction was upheld because border officers reasonably relied on the validity of the law. A Crown application to increase the 23-month sentence of house arrest imposed at trial was dismissed as being largely already served.
The appeal court judgment makes what seems to be a U-turn. It starts with a critical examination of the law that allows the Canadian Border Service Agency to conduct illegal searches relying on little more than an officer’s suspicion to conduct an intrusive inspection. The judgment then does an about-face, allowing the evidence so found to be admitted. How can these positions be reconciled? Perhaps the answer lies in the Chief Justice’s comment about child pornography: “A child-centred approach to sentencing requires judges to consider child victims and the wrongs and harms that people who possess child pornography inflict on them, to reject myths that minimize the perpetrator’s responsibility and, finally, to apply a denunciatory sentencing range that reflects the abhorrent and harmful nature of these offences and their long-term negative impacts on children.”
Most people would agree with that approach. Allowing persons found to be importing such material to go free would cause a public outcry and bring the administration of justice into disrepute.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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