Child porn case: Crown seeks to extend suspension of Customs Act provision's invalidity declaration

In an Alberta Court of Appeal case dealing with the importation of child pornography, Crown counsel has applied for an order granting a six-month extension of the suspension of the declaration of invalidity of s. 99(1)(a) of the Customs Act.

Sheldon Wells Canfield and Daniel Emerson Townsend, were charged with possession and importation of child pornography. The evidence against them included photographs and videos retrieved from their personal electronic devices pursuant to border searches conducted by the Canadian Border Services Agency at the Edmonton International Airport. Their electronic devices were searched pursuant to s. 99(1)(a) of the Customs Act, which permits the routine examination of any goods.

Aside from finding Canfield and Townsend guilty of the charges, the Alberta Court of Queen’s Bench held that their rights under ss. 7, 10(a) and 10(b) of the Charter were not breached. And if they were, the impugned evidence would still be admissible pursuant to s. 24(2) of the Charter. The court also found that s. 99(1)(a) of the Customs Act did not violate s. 8 of the Charter and consequently, dismissed the application to have the provision declared unconstitutional. Both accused appealed.

In its decision, the Court of Appeal held that Canfield and Townsend’s Charter rights were infringed. But it upheld their convictions and dismissed their requests for new trials. It also agreed with the trial judge’s finding that the evidence from the searches of their electronic devices should not be excluded. The Court also declared s. 99(1)(a) unconstitutional to the extent that the provision imposes no limits on the searches of such devices at the border. Accordingly, it suspended the declaration of invalidity of s. 99(1)(a) for one year to provide the Parliament the opportunity to amend the legislation.

As the suspension of the declaration of invalidity of s. 99(1)(a) expires on October 29, the Crown filed an application with the Court of Appeal, seeking a six-month extension of the suspension. The Crown counsel, Shelley Tkatch, submitted a written memorandum to substantiate the Crown’s arguments.

In the memorandum, Tkatch referred to the case of Procureure générale du Canada v. Descheneaux, 2017 QCCA 1238, in which the Quebec Court of Appeal indicated a list of factors to consider in determining whether courts should extend a suspension or not. The factors set out in Descheneaux were the following:

• Change of circumstances;
• Continuing circumstances from initial order of suspension;
• Likelihood of remedial legislation;
• Public confidence in the administration of justice.

Tkatch claimed that a change of circumstances warrants the granting of the extension. Citing the case of Carter v. Canada (Attorney General), 2016 SCC 4, she stated that the Supreme Court of Canada has ruled that an interruption to the legislative work caused by an election call constitutes a change of circumstance. While the government had been working towards introducing a bill in response to Canfield during the 2021 fall legislative session, she noted, the federal election made it unlikely for the goverment to introduce a bill before the expiration of the suspension on October 29.

Tkatch cited another change of circumstances that would justify the granting of the extension − the COVID-19 pandemic. To demonstrate how COVID has interrupted legislative works, she attached the affidavit of Scott Millar, the vice president of the Strategic Policy Branch of the Canada Border Services Agency. In his affidavit, Millar explained that while efforts to respond to Canfield were continuous since October 2020, the pandemic has caused significant and unanticipated delays in the normal policy development process.

As to the existence of the circumstances which led to the initial suspension, Tkatch stated that the same border enforcement concerns and the mitigating policies that were in evidence before the court in Canfield continue to exist.

According to Tkatch, there existed a likelihood that a remedial legislation would be adopted. She mentioned that the government has formally approved a policy response to Canfield that includes a proposed legislative component. Absent the election call, the government would have continued working toward introducing a bill in the 2021 fall legislative session, she added.

Tkatch contended that public confidence in the administration of justice would be adversely affected should the extension be rejected, “In light of the need to continue border enforcement activities to prevent confusing or uncertain border enforcements laws in Alberta in relation to the rest of Canada, and in consideration of the mitigating provisions put in place, the public confidence in the administration of justice will be maintained if the suspension is granted as requested,” she stressed.

Tkatch informed Canadian Lawyer that the decision on the application was scheduled to be released Friday, Oct. 22.

*2021/10/25

On October, 22, The Alberta Court of Appeal granted the application, thereby extending the suspension of the declaration of invalidity for six months. "Consideration of the relevant factors militates favour of granting the application," the court ruled.

As to the first factor, the court agreed with the Crown that the election call and the diversion of resources to the pandemic constituted changes in circumstances. As to the second and fourth factors, the court considered the Crown's argument that dismissing the application would creat an inconsistency in the search powers between CBSA officers in Alberta and the rest of Canada and could result in potential and deliberate "port shopping" by those importing illicit and prohibited digital materials.

Regarding the third factor, the court explained that the government's formal approval of a policy response to Canfield, including a proposed legislative component, strongly suggested that remedial legislation would be adopted in due course following the start of the new Parliament.