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Brandon judge asked to overturn child porn conviction

A Brandon judge has been asked to overturn a conviction for possession of child porn based on the argument that border guards didn’t have the authority to search the cellphone the material was found on.

Defence lawyer Dan Manning argued there are limits to the searches that can be done by border officers, and those limits apply to cellphones.

"People might say: ‘Can’t border security agents search anything?’" Manning said. "The answer is, no they can’t."

Brandon Tyler Vaillancourt, at the time a member of the Canadian military, was convicted of possession of child porn on Nov. 21, 2016. He received a 90-day intermittent jail sentence.

Vaillancourt was found with more than 100 distinct child porn images on his cellphone and computer.

The images were discovered when Vaillancourt, then a soldier based at CFB Shilo, returned to Canada from a trip the U.S. on May 2, 2014, and a border officer inspected his phone and found one of the images.

Further examination detected more images believed to be child porn, Vaillancourt was arrested, and RCMP were called in to investigate. A computer with the other images on it was then seized from his home.

Vaillancourt hasn’t yet served any of his sentence as he was granted bail while pending appeal.

The Crown stayed a charge of importing child pornography.

Vaillancourt’s conviction on the possession charge came after a voir dire in Brandon provincial court in which Judge Donovan Dvorak ruled that the images found on the phone should be admitted at trial.

At that time, Manning argued that border officers didn’t have grounds to search the phone under the Customs Act.

However, Dvorak ruled that the search was valid because the phone met the definition of a "good" under Section 99 of the act and therefore could be searched.

During an appeal heard in Brandon Court of Queen’s Bench this week, Manning argued the child porn evidence should have been excluded as his client’s right to protection from unreasonable search and seizure under the Charter of Rights and Freedoms was violated and the conviction should be quashed.

Manning argued that Judge Dvorak had erred by ruling that the cellphone met a definition of a "good" under the customs legislation.

The appeal was argued before Justice John Menzies.

To make his argument, Manning pointed to a prior court ruling on a section of the Customs Act regarding the warrantless search of people at the border.

That case ruled an initial search of baggage and questioning by border guards is acceptable because people expect that at the border.

If they have a concern about the possibility of an item being searched, they can leave the item at home or take other steps.

If officers have reasonable grounds, they can search the person crossing the border, and such searches can be done in private if there’s a need to remove clothing.

Such screening doesn’t violate the protections from unreasonable search and seizure under the charter, the court ruled.

But, Manning argued, people don’t have that same expectation of a search when it comes to their devices at the border.

"I would submit that most people don’t expect their cellphone to be searched," Manning said.

He said travellers may find themselves unexpectedly questioned about embarrassing, but legal, contents in their phone.

A cellphone search is inherently more intrusive, he argued, and people don’t have the option of selecting certain contents to leave behind.

"It’s not reasonable to expect people to leave their cellphones at home when they travel abroad," Manning said.

But the main thrust of Manning’s argument is that Judge Dvorak erred by ruling that a cellphone was a "good" that could be searched under Section 99 of the Customs Act.

That section of the act allows border officers to examine goods, or open containers to examine goods. They can examine every good that comes into the country, without reasonable suspicion or probable grounds of a crime.

Section 99 defines a "good" as conveyances and documents in any form. Manning noted that prior court decisions have ruled that computers, and by extension smartphones, are goods because they contain documents in any form (digital ones).

But Manning argued that officers have to enter a cellphone first to reach the "document," and searching a cellphone can’t realistically be compared to searching receptacle such as a briefcase.

Searching a cellphone is more intrusive and the information it contains touches on the owner’s "biographical core."

In Vaillancourt’s case, Menzies noted, the officer didn’t display much restraint in the search of the phone: "Once he got into the phone, he got into everything."

Manning pointed to the Supreme Court decision, R. v. Vu, established that, under the charter, police needed a separate warrant to examine the contents of computers and a cellphone found during the search of a house.

The decision recognized citizens’ concern about computers and their ability to collect a wide variety of information that can be personal.

Under Manning’s argument, border guards could search to find the phone, but they would need more authorization based on reasonable grounds — such as a warrant — to examine the phone’s contents.

Brandon Crown attorney Deidre Badcock and federal Crown attorney Janna Hyman argued the conviction should stand.

Badcock said the context of the search is key. Searches under the Customs Act are not similar to other searches performed under other legislation.

She argued that, under Section 99 of the Customs Act, a cellphone is a "good," and Dvorak had correctly ruled it as such.

Manning’s arguments around Section 98, regarding expectations of a search and privacy, don’t apply here as the section in question is Section 99, Badcock said.

She disagreed with Manning’s argument which seemed to suggest the law is obsolete and the court should take a different approach until lawmakers can rewrite it.

There’s no distinction in the Customs Act regarding what and who can be searched, she said.

"It’s because, at the border, Canada is entitled to protect its sovereign nation," Badcock said. "They’re entitled to see what is coming in, and to stop, potentially, what is coming in."

Another wrinkle in the case is the fact that Menzies believes that Dvorak strayed into constitutional law in his voir dire decision. Hyman argues that if that’s the case, the Crown wasn’t given proper notice to make proper argument.

Dvorak applied the 2014 Supreme Court decision R. vs Fearon, which allowed for warrantless searches of cellphones by police upon arrest.

Dvorak used the tests from that court decision, and found that border officers met the conditions.

Neither Crown nor defence want Menzies to consider this constitutional element, but Menzies indicated he may consider whether it forms a defence for Vaillancourt.

The Crown argues that R vs. Fearon applies to searches upon arrest and not to border searches. Section 99 of the Customs Act was sufficient to give authority for the cellphone search, the Crown attorneys argue.

Menzies has the option of excluding the evidence and effectively quashing the conviction, as defence requests. Or, he can allow the conviction to stand, as the Crown argues.

In either of those cases, the Crown and defence have the option to refer the decision to the Manitoba Court of Appeal.

Menzies can also send the case to retrial.

» ihitchen@brandonsun.com

Republished from the Brandon Sun print edition May 13, 2017

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A Brandon judge has been asked to overturn a conviction for possession of child porn based on the argument that border guards didn’t have the authority to search the cellphone the material was found on.

Defence lawyer Dan Manning argued there are limits to the searches that can be done by border officers, and those limits apply to cellphones.

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A Brandon judge has been asked to overturn a conviction for possession of child porn based on the argument that border guards didn’t have the authority to search the cellphone the material was found on.

Defence lawyer Dan Manning argued there are limits to the searches that can be done by border officers, and those limits apply to cellphones.

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