



COURT OF APPEAL FOR ONTARIO

CITATION: United States v. Ighedoise, 2019 ONCA 937

DATE: 20191128

DOCKET: C65195

Feldman, van Rensburg and Huscroft JJ.A.

BETWEEN

The Attorney General of Canada
on behalf of the United States of America

Respondent

and

Akohomen Ighedoise AKA Kabila, Kay Hester

Appellant

Akohomen Ighedoise, acting in person

Amy Ohler, appearing as duty counsel

Roy Lee, for the respondent

Heard: June 4, 2019

On appeal from the committal
    order of Justice Michael R. Dambrot of the Superior Court of Justice, dated February
    16, 2018, with reasons reported at 2018 ONSC 727, 367 C.C.C. (3d) 98.

van Rensburg J.A.
:

A.

OVERVIEW

[1]

This appeal concerns alleged errors in the
    committal judges disposition of an application under the
Canadian Charter
    of Rights and Freedoms
seeking to exclude two paragraphs from the Record
    of the Case (ROC), relied on in support of the extradition of the appellant,
    Akohomen Ighedoise,
[1]
to the United States. The paragraphs summarize information obtained
    from searches of certain electronic devices of the appellant and his co-accused.
    These searches were authorized by warrants obtained in reliance on information
    from an iPhone that was examined and later seized from the appellant in the
    course of his preclearance for travel to the United States
.

[2]

It was conceded that, if the
Charter
application were unsuccessful, there would be sufficient evidence to order the
    appellant to be committed for extradition. The committal judge dismissed the
    application and the committal order was accordingly made.

[3]

For the reasons that follow, I conclude that the
    examination of the appellants iPhone by the U.S. Customs preclearance officer
    violated s. 8 of the
Charter
. I would allow the appeal and set aside
    the committal order. I would order that the committal judge hold another extradition
    hearing to determine: (1) whether the evidence obtained in violation of the
Charter
must be excluded from the ROC under s. 24(2); and (2) if the evidence is
    excluded, whether there is sufficient evidence to order the appellants
    committal.

B.

facts

[4]

On August 21, 2014, the appellant, a Canadian
    citizen, was scheduled to board a flight from Toronto to Atlanta, Georgia. He
    presented himself to U.S. Customs and Border Protection officials in the
    preclearance area at Pearson Airport. He was directed to secondary inspection,
    where he was questioned and his baggage and belongings were searched. During
    the search, a U.S. Customs preclearance officer located two cell phone SIM
    cards attached to contracts in names other than the appellants, as well as a
    credit card in a different name. The appellant provided explanations that, in
    response to further questioning by the officer, he admitted were false. The
    officer then examined the appellants iPhone and found what he believed was
    evidence of fraudulent activity. He contacted the Peel Regional Police, who
    arrested the appellant and charged him with offences under the
Criminal

Code
, R.S.C. 1985, c. C-46.

[5]

In the course of their investigation of the
    appellant and his co‑accused on these and other charges, the Canadian
    authorities obtained warrants authorizing their searches of the devices that
    were seized on the appellants arrest and devices seized subsequently from the appellants
    and the co-accuseds residences. The warrants were based in part on two
    informations to obtain (ITOs) sworn in October 2014 and October 2015. The
    October 2014 ITO included the preclearance officers statements and notes about
    his interactions with the appellant in the preclearance area and the
    information he had seen on the appellants iPhone. The October 2015 ITO stated
    that the appellant was refused entry to the United States subsequent to the
    examination of the iPhone and explained what became of the appellants devices
    seized upon his arrest.

[6]

The United States sought the appellants extradition
    to face fraud charges in that country. The U.S. authorities relied on the ROC,
    which contained the two impugned paragraphs summarizing what was found in the
    forensic analysis of the electronic devices of the appellant and his
    co-accused.

[7]

The evidence on the
Charter
application
    consisted of an application record filed by the appellant (and his co-accused,
    who is not involved in this appeal) and the ROC. The application record
    contained the two ITOs and an affidavit sworn by the appellant. There was no
    cross-examination on the affidavit nor was any oral evidence called at the
    hearing. As noted by the committal judge, the parties were content to proceed
    with the
Charter
application based on this evidence.
[2]



C.

The
charter
application before the committal judge

[8]

Before the committal judge the appellant
    asserted that: (1) his rights under s. 8 of the
Charter
were violated
    by the preclearance officers warrantless search of his iPhone; (2) he had been
    arbitrarily detained contrary to s. 9 of the
Charter
; (3) his rights
    under s. 8 were violated when no report to a justice was filed following the
    seizure of his iPhone by a Peel Regional Police officer; and (4) under s. 24(2)
    of the
Charter
, the two impugned paragraphs in the ROC should be
    excluded from the evidence.

[9]

On the first s. 8 argument, the committal judge
    concluded that the preclearance officer was authorized to conduct, without
    warrant, the limited search of the appellants iPhone that revealed the
    information leading to the two impugned paragraphs. He determined that the
    preclearance officer was continuing to assess the appellants admissibility to
    the United States when he searched the iPhone, and that he was not examining
    the iPhone for a criminal law investigation purpose. The committal judge reasoned
    that the officer was entitled to consider the appellants criminality in
    determining his admissibility to the United States, and that the officers belief
    that the appellant had lied to him about the reason for his travel to the
    United States and for the false names on the SIM cards led him to inspect the
    iPhone for confirmation of his concerns. The committal judge concluded at para.
    50 of his reasons that, [w]hatever [the preclearance officers] precise reason
    for inspecting the iPhone may have been, it was entirely permissible for him to
    do so in order to assist him in determining whether, under United States
    immigration law, [the appellant] should be permitted to enter the United
    States. Indeed, the committal judge noted that, once the officer determined
    that the iPhone contained evidence of criminality, he discontinued his
    examination of it, refused the appellant admission, and contacted the Peel
    Regional Police.

[10]

In dismissing the first s. 8 argument, the
    committal judge rejected the submission that a preclearance officer who
    believes on reasonable grounds that the traveller has contravened s. 33 of the
Preclearance

Act
, S.C. 1999, c. 20
[3]
(providing a false or deceptive statement), or committed a criminal offence,
    must at that point hold off from conducting any further search and deliver
    the traveller and any detained goods into the custody of the Canadian police. In
    the committal judges view, the development of reasonable grounds does not
    bring to an end the officers powers in relation to determining the travellers
    admissibility to the United States. Rather, as in this case, the committal
    judge accepted that the preclearance officer completed his preclearance
    functions only after he examined the appellants iPhone, and then denied him
    entry into the United States.

[11]

On the s. 9 issue, the committal judge concluded
    that the officer had reasonable grounds to detain the appellant for breach of
    s. 33 of the
Preclearance

Act
. Given that the officer knew
    that the appellant had both SIM cards and a credit card in his possession in
    the name of other persons, and was aware of a constellation of other
    incriminating facts, the officer unquestionably had reasonable grounds to
    believe that [the appellant] had contravened s. 33, and on the evidence could
    not have thought otherwise: para. 89.

[12]

On the third issue, the committal judge was not
    convinced, on a balance of probabilities, that there had been a contravention
    of s. 489.1(1)(b) of the
Criminal

Code
when the authorities
    failed to file a report with a justice following the seizure of the appellants
    iPhone at Pearson Airport. However, he concluded that if he was wrong, and if
    this was a
Charter
breach, the violation was a small one.

[13]

Finally, on the fourth issue, the committal
    judge conducted a s. 24(2) analysis only with respect to the failure to report,
    not the iPhone search. After balancing the
Grant
factors (
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353), and assuming there was a breach,
    he concluded that the evidence in question should not be excluded.

D.

issues

[14]

The appellant, with the assistance of duty
    counsel, makes two arguments on appeal.

[15]

First, the appellant says that the committal
    judge erred by inferring that the preclearance officer was still deciding
    whether to grant him entry into the United States when he searched his phone.
    The appellant contends that the officers search was motivated by a criminal
    law purpose, not the determination of whether to grant him entry, and therefore
    violated s. 8 of the
Charter
. According to the appellant, the
    committal judge engaged in impermissible speculation about the officers
    motivations in the absence of evidentiary support.

[16]

Second, the appellant argues that the search of
    his iPhone contravened s. 8 of the
Charter
because, once he was
    detained for having committed an offence under s. 33 of the
Preclearance
    Act
, the preclearance officer was obliged to turn him over immediately to Canadian
    officials and had no authority to continue the search of his belongings.

E.

analysis

(1)

The Statutory Framework

[17]

The point of departure is the provisions of the
Preclearance

Act
.

[18]

The
Preclearance

Act
specifically provides that its purpose is to permit the administration of
    preclearance laws in Canada, subject to Canadian constitutional safeguards, in
    order to facilitate the movement of travellers and goods between Canada and the
    United States, based on the principle of reciprocity: s. 4. Preclearance laws
    may be administered in Canada in a preclearance area with respect to travellers
    who seek admission to, and with respect to goods to be imported into, the
    United States, subject to the
Charter
, the
Canadian Bill of Rights
,
    S.C. 1960, c. 44, and the
Canadian Human Rights Act
, R.S.C. 1985, c.
    H-6: s. 6(1).

[19]

Preclearance laws are defined as the law of
    the United States with respect to customs, immigration, public health, food
    inspection and plant and animal health that is applicable to the admission of
    travellers or the importation of goods to the United States, including [the
    laws listed in a schedule to the Act]. Preclearance officer is defined as
    a person authorized by the United States to perform preclearance duties in
    Canada for the purposes of customs, immigration, public health, food inspection
    and plant and animal health: s. 2.

[20]

The powers of preclearance officers with respect
    to the inspection of goods and travellers are set out in the
Preclearance

Act
.

[21]

Section 24(1) authorizes a preclearance officer
    to detain a traveller in certain circumstances:

A preclearance officer may detain any
traveller if the
    officer believes on reasonable grounds that the traveller has contravened
    section 33 [false or deceptive statements] or has committed an offence under an
    Act of Parliament that is punishable by indictment or on summary conviction
.
    [Emphasis added.]

[22]

Section 24(2) requires the delivery of a
    detained traveller to a peace officer as soon as possible:

The preclearance officer must deliver any traveller detained
    under subsection (1) as soon as possible into the custody of a peace officer
    within the meaning of paragraph (c) of the definition
peace officer
in section 2 of the
Criminal

Code
.

[23]

Section 25(1) provides for the examination of
    goods submitted for preclearance:

A preclearance officer may examine any goods that are submitted
    for preclearance and may open or cause to be opened any package or container
    and take samples of the goods in reasonable amounts.

[24]

Section 26(1) provides for the detention of
    goods by a preclearance officer:

A preclearance officer

(a) may detain any goods that are
    submitted for preclearance, until the officer is satisfied that the goods have
    been dealt with in accordance with this Act, the regulations and preclearance
    laws; or

(b) may detain anything designated by
    regulations under paragraph 38(1)(d) [where the possession, import, export or
    handling of which is prohibited, controlled or regulated], and must without
    delay transfer that thing to a Canadian officer.

[25]

Section 26(2)
requires
the detention of
    goods where the officer believes on reasonable grounds their possession,
    import, export or handling is a Canadian criminal offence, or will afford
    evidence of an offence, and requires the transfer of anything so detained to a
    Canadian officer who is authorized to receive it:

A preclearance officer must detain anything the possession,
    import, export or handling of which the officer believes on reasonable grounds
    to be an offence under Canadian law punishable by indictment or on summary conviction
    and anything that the officer believes on reasonable grounds will afford
    evidence of that offence, and must without delay transfer anything so detained
    to a Canadian officer who is authorized to receive it.

[26]

Section 27
authorizes
the preclearance
    officer to seize goods in certain circumstances:

(1) A preclearance officer may seize any goods referred to in
    paragraph 26(1)(a) that the officer believes on reasonable grounds relate to a
    false or deceptive statement made in contravention of section 33.

(2) A preclearance officer may, if the officer believes on
    reasonable grounds that there has been a contravention of section 33, seize any
    goods that the officer believes on reasonable grounds will afford evidence of
    the contravention.

[27]

Section 33(1) makes it an offence for a person
    to make false or deceptive statements to a preclearance officer:

Every person who makes an oral or written statement to a
    preclearance officer with respect to the preclearance of the person or any
    goods for entry into the United States that the person knows to be false or
    deceptive or to contain information that the person knows is false or deceptive
    is guilty of an offence punishable on summary conviction and liable to a
    maximum fine of $5,000
.

[28]

As the committal judge observed, the source of
    the powers of preclearance officers is in the
Preclearance

Act
,
    and while U.S. officials are permitted to administer preclearance laws in
    Canada, this permission does not extend to the administration of criminal law.

(2)

Did the Committal Judge Err in Concluding that the Preclearance Officer
    Was Continuing His Preclearance Activities When He Searched the iPhone?

[29]

The appellant's first argument on appeal is that
    the committal judges conclusion that the preclearance officer was continuing
    his preclearance activities when he searched the iPhone was unreasonable, not
    supported by the evidence, and speculative. The appellant argues that there was
    no evidence as to why the officer searched the phone and that, given that the
    officer already knew that the appellant had lied about his reason for
    travelling to the United States and about the false names on the SIM cards, his
    search was motivated by a criminal law purpose.

[30]

I agree that the officer would have had no
    authority to search the phone for a criminal law purpose. The authority of a
    preclearance officer is limited to the administration of preclearance laws,
    and, as the committal judge noted at para. 7 of his reasons, does not extend to
    the administration of criminal law.

[31]

The committal judge, at paras. 52-66 of his
    reasons, initially assumed the accuracy of the appellants evidence that the
    officer told him that he would be calling the police when he discovered the
    credit card, and before he examined the cell phone. Relying on cases such as
R.
    v. Nolet,
2010 SCC 24, [2010] 1 S.C.R. 851, and
R. v. Annett
(1984),
    17 C.C.C. (3d) 332 (Ont. C.A.), leave to appeal refused, [1985] S.C.C.A. No.
    222, the committal judge concluded that the officer could have had both a
    regulatory purpose and a criminal law purpose when he examined the cell phone,
    and that whether the officer suspected or believed that the appellant had
    committed a crime would not bring to an end his statutory authority. In my view,
    however, the
Nolet
and
Annett
cases, which are authority that
    a concurrent interest in potential criminal activity does not convert a legal
    search for a regulatory purpose into an unlawful search, are not applicable to
    the present context, given that the preclearance officers authority is limited
    to the administration of preclearance laws, which do not include the criminal
    law.

[32]

If the committal judges analysis had ended there,
    I might have concluded that effect should be given to this ground of appeal.
    However, the committal judge went on in his reasons to make findings as to the
    preclearance officers actual purpose when he examined the appellants iPhone.
    He concluded that the officer was not pursuing a criminal law purpose and that
    he was in fact continuing his preclearance functions.

[33]

In my view, the evidence reasonably and
    logically supported the committal judge's conclusion that the officer was
    continuing his preclearance functions when he examined the appellants iPhone.

[34]

As the committal judge explained, the parties
    were content to argue the application on the basis of the documents placed
    before him without the need for
viva voce
evidence: at para. 72. The
    documents included the ROC, the two ITOs and the appellants affidavit.

[35]

First, the committal judge noted that the
    affiant of the October 2015 ITO stated that the preclearance officer refused
    the appellants entry to the United States
subsequent
to his
    examination of the iPhone: para. 70. Second, he relied on the October 2014 ITO
    to conclude that the officer was still completing his preclearance
    responsibilities when he examined the iPhone. He explained that the affiant
    reviewed the officers notes and, based on the notes, the officer formed the
    belief that the appellant was engaged in fraud when he examined the phones
    text messages. The officer then stopped searching the device and called the
    police. He also refrained from examining the appellants other electronic
    devices. Third, the committal judge rejected the appellants evidence, in his
    affidavit, that the officer told him that the credit card was fraudulent and
    that he would be calling the police prior to examining the phone. He reasoned
    that it was far more logical that the officer first thought he had reasonable grounds
    to believe the appellant was engaged in criminal activity when he discovered
    the text messages on the phone: at para. 71. In other words, reasonable grounds
    developed during, but not before, the search. This was consistent with the fact
    that the officer stopped searching the phone after examining the messages, his
    decision to refrain from examining any of the appellants other devices, and
    his call to the police at that time.

[36]

In light of this evidentiary record  upon which
    the parties were content to argue the application  it was open to the
    committal judge to conclude that the officer was still completing his
    preclearance functions when he examined the phone.

[37]

I would therefore not give effect to the first
    ground of appeal.

(3)

Was the Preclearance Officer Entitled to Examine the iPhone After the
    Appellant Was Detained?

[38]

The appellants second argument is that, once
    the officer had determined that he had made a false and deceptive statement
    contrary to s. 33 of the
Preclearance

Act
, he was detained.
    At that point, the preclearance officer was required to turn him over to the
    Canadian authorities, was no longer authorized to continue his preclearance
    activities, and accordingly had no authority to continue to search his iPhone.

[39]

The issue of detention was considered by the
    committal judge at paras. 86 to 91 of his reasons in determining whether the
    appellant was arbitrarily detained under s. 9 of the
Charter
. The
    committal judge referred to the appellants affidavit where he swore that, when
    he was asked for the password to his phone, he asked the officer if he could
    return his belongings and leave the airport and was told that was not possible.
    This evidence, which was not contradicted, and was not rejected by the
    committal judge, was also mentioned at para. 30.

[40]

The committal judge rejected the argument that the
    appellants detention was unlawful. He referred to s. 24(1) of the
Preclearance

Act
, authorizing the detention of a traveller if the officer
    reasonably believes the traveller has contravened s. 33 or committed an offence
    under an Act of Parliament. He concluded that, before searching the phone, the
    preclearance officer unquestionably had reasonable grounds to believe that [the
    appellant] had contravened s. 33, and on the evidence could not have thought
    otherwise: at para. 89. While there was no evidence that the officer
    turned his mind to the issue before searching the phone, [w]hether or not the
    officer had reasonable grounds to believe that [the appellant] had committed a
    criminal offence, he had the authority to detain [the appellant] in relation to
    a contravention of s. 33: at para. 90.

[41]

The fact that the officer had reasonable grounds
    to detain the appellant on the basis of his false statement is not
    determinative of whether he was detained when the iPhone was examined. Section
    24(1) of the
Preclearance

Act
is permissive: a preclearance
    officer may detain any traveller if the officer believes on reasonable grounds
    that the traveller has contravened s. 33 or an Act of Parliament.

[42]

On a different record it might have been open
    for the committal judge to have concluded that, while the preclearance officer
    had the authority to detain the appellant before searching the phone, he was
    not in fact detained. On the record in this case however, the appellant had to
    have been detained at the point when, having been asked for the password to his
    cell phone, he sought to take his belongings and to leave the airport. This is
    the only possible conclusion on the evidence: see
Grant
, at paras.
    30-31. The appellants uncontroverted evidence, which was not rejected by the
    committal judge, was that he was told his iPhone would be seized and that he
    could not leave the preclearance area when he asked to do so.

[43]

The respondents counsel did not take the
    position in the appeal that the appellant was not detained when his iPhone was
    searched. Rather, he argued that, notwithstanding the appellants detention,
    the officers powers of investigation for the purpose of his preclearance
    activities continued.

[44]

I disagree.

[45]

Once the appellant was detained, s. 24(2) of the
Preclearance

Act
applied. To examine the cell phone at that
    point would contravene the obligation to turn over the appellant to the custody
    of Canadian officials as soon as possible, an obligation that, while not
    arising simply on having reasonable grounds, clearly arises on detention.

[46]

While there is no provision in the
Preclearance

Act
expressly precluding an officer from continuing to administer
    preclearance laws once a traveller is detained, there is no reason for the
    officer to continue to inquire into the travellers admissibility to the United
    States  the traveller must be turned over to Canadian authorities, making admissibility,
    in effect, moot. Practically speaking, the officers preclearance
    responsibilities ended at that point. There was no reasonable prospect of the
    appellants admission to the United States if he was being detained in Canada
    for violation of s. 33.

[47]

The respondent asserted that, even if the
    appellant was detained, and would not have been admitted on that occasion to
    the United States, the preclearance officer was authorized to continue his
    preclearance inquiries of the appellant, including the examination of his cell
    phone, because the officer could decide not just whether to refuse him
    admission on this one occasion, but whether he would be inadmissible to the United
    States for some longer period. There was no basis in the evidence for this
    assertion  and no evidence of the U.S. preclearance law that might support
    such an argument. In the absence of such evidence, it would be improper to
    speculate that U.S. preclearance laws may support continued inquiries of a
    traveller who has been detained and must be turned over to Canadian officials
    as soon as possible.

[48]

In the end, the preclearance officers powers
    are limited to those set out in the
Preclearance

Act
. There
    is nothing in the evidence before this court to suggest that once a traveller
    has been detained, there is any authority to continue preclearance activities.
    Rather, at that point, the obligation is to hand over the traveller to the
    Canadian authorities. Any subsequent search of the travellers cell phone is therefore
    unlawful.

[49]

I would therefore give effect to the appellants
    second ground of appeal.

(4)

What is the Effect of a Finding of a
Charter
Breach?

[50]

The next step in the analysis is to determine
    whether the impugned paragraphs in the ROC should be excluded from evidence in
    the committal proceedings, on the basis that they refer to evidence obtained in
    violation of the
Charter
.

[51]

The committal judge determined the s. 24(2)
    issue, assuming there had been a
Charter
breach with the failure to
    file a report to a justice contrary to s. 489.1(1)(b) of the
Criminal

Code
.
    He did not, however, conduct such an analysis with respect to the breach that I
    have found on appeal.

[52]

Although this court has the authority to perform
    the s. 24(2) analysis itself, it is inappropriate to do so where, as here, the
    record is insufficient:
R. v. Bruyere
, 2012 ONCA 329, 291 O.A.C. 1481,
    at paras. 16-18. Not only does the record before this court not include the October
    2015 ITO, but the parties made no submissions in this court on whether the
Charter

breach resulting from the iPhone search requires the exclusion of the
    impugned paragraphs, and if so whether committal is justified.

[53]

Accordingly, I would remit the s. 24(2) issue to
    the committal judge for determination.

F.

conclusion and disposition

[54]

For these reasons, I would allow the appeal and
    find that the search of the appellants iPhone by the preclearance officer
    while he was detained was in breach of his rights under s. 8 of the
Charter
.
    I would order that the committal judge hold another extradition hearing based
    on the complete record that was before him, and any other materials he may see
    fit to admit, for the determination of: (1) whether the evidence obtained in
    violation of the
Charter
must be excluded from the ROC under s. 24(2);
    and (2) if the evidence is excluded, whether the respondent has met the test under
    s. 29(1)(a) of the
Extradition

Act
, S.C. 1999, c. 18, for
    committal of the appellant for extradition.

Released: KF NOV 28 2019

K. van Rensburg J.A.

I agree. K. Feldman
    J.A.

I agree. Grant
    Huscroft J.A.





[1]
The appellants first name is spelled both as Akohomen and Akhomen in the
    record.



[2]
The committal judge rejected the argument of the appellants co-accused, Ikechukwu
    Derek Amadi, that he should not take into consideration the descriptions of the
    preclearance officers interactions with the appellant in the ITOs because they
    were based on hearsay. He noted that all parties appeared content to argue the
    application on the basis of the documents that were replete with hearsay, and
    reliance on the entirety of the content of the ITOs was acquiesced to by all
    parties. The committal judge noted that, if he had concluded that the Crown
    could not rely on the hearsay, he would have granted the Crowns request for
    permission to re-open her case to call the preclearance officer as a witness at
    a later date: at paras. 72-76.



[3]

The
Preclearance
    Act
that was in
force
at the time has since been replaced by the
Preclearance

Act, 2016
, S.C. 2017, c. 27, which received Royal Assent in
    December 2017 and came into force in August 2019.


