TRAC Analysis March 9 - Homework for Factum PDF

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Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia STATUTORY CONSTRUCTION Theme: CONSTRUCTION OF S 99(1)(a) - look at how alberta aligns w s 99 Rule - Statutory interpretation requires “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the purpose of the Act, and the intention of Parliament.” Analysis - Purpose of Section 8 o R. v. Golden o Charter purpose: to protect the individual’s rights against the State o R. v. Hunter: section 8 only protects an individual’s reasonable expectation of privacy - Purpose of Section 99 o CONFLICTING AUTHORITIES Theme: ABCA correctly determined there was a s. 8 violation but evidence should not be admitted. - Bialski Rule: Electronic devices require a reasonable suspicion to conduct a search Analysis - State v individual interests o R v Morelli, 2010 SCC 8 AND Fearon AND Grant o R. v. Simmons + R. v. Moroz, 2012 ONSC 5642 + R v Gibson, [2017] BCJ No 1659, 2017 BCPC 237 o Appellate's argument - Was there a reasonable expectation of privacy at the border o R. v. Reeves, [2018] 3 S.C.R. 531 - R. v. Bialski: The high expectation of privacy associated with cellphones and computers is in conflict with the "low expectation of privacy" that individuals generally have when crossing international borders. - AND WHY Conclusion POLICY Theme - Personal rights are more important than State interests - The Court should revisit Simmons and accept a more modern approach to the concept of reasonable expectation of privacy. Rule - “it is difficult to imagine a more intrusive invasion of privacy than the search of one's home and personal computer.” Analysis - State v individual interests o Legal & societal norms - Previous case law has determined Simmons to be the binding authority on the reasonable expectation of privacy at the border. - Border searches of PEDS have a lower expectation of privacy as those “seeking to enter a country have a lower expectation of privacy” than in other situations and the state interest in “preventing entry of undesirable persons and goods [. . .] justifies more intrusive procedures”. o

Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia -

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(POLICY) When Simmons was decided, the nature of a personal electronic was different from today. o Major technological advances made PEDs commonplace, would be disadvantageous and. Above all else, Simmons is outdated. At this time in Canadian society, electronic devices were immobile; they needed to be connected to a power source and had limited programs. They were not being transported between countries. Electronic devices as they exist today were not around in the 1980s. Overruled by R. v. Monney State v individual interests o R v Morelli, 2010 SCC 8 AND Fearon AND Grant o R. v. Simmons + R. v. Moroz, 2012 ONSC 5642 + R v Gibson, [2017] BCJ No 1659, 2017 BCPC 237 o Appellate's argument unsupported stereotype of an ill-defined "type of offender" and imputed that stereotype to the appellant. In addition, it presented a distorted portrait of the appellant and of his surroundings and conduct in his own home at the relevant time.(Morelli)

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Operational Bulletin Growth of the technology Counter analysis that it would impede on SBCA policy

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- should evidence be admitted (s. 24)

Conclusion ¢ Statutory Construction ¢ Ask these questions to identify appellate arguments/evaluate for error ¢ Is the intent clear? Or are there various conclusions about intent? ¢ How should a Court treat a statutory provision when Parliament did not envision the circumstances presented by this case? ¢ Conflicting Authorities ¢ When two jurisdictions take different approaches, how do you urge the SCC to adopt one over the other as the binding rule moving forward? ¢ Ask these questions to identify appellate arguments/evaluate for error: ¢ What values or policies are at stake in each opinion? ¢ Why should be adopted accepted over the other? ¢ How should the Court balance these principles or the competing interests? ¢ Policy ¢ Ask these questions to identify appellate arguments/evaluate for error ¢ Is the factual prediction upon which the consequential analysis is based accurate? ¢ Is the policy consistent with the purpose of the law? ¢ Is the policy sufficiently strong to justify the result? ¢ How likely will the development serve the policy? ¢ What other competing policies/values are at stake? Should another one trump? CONFLICTING AUTHORITIES

Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia Theme: Rule: Electronic devices have evolved as a good enough to warrant reasonable suspicion to conduct a search Analysis - Cellphone is a good - Was there a reasonable expectation of privacy at the border - Several courts in Canada have held searches of PEDs o CASES THAT SAY YES  R v Gibson, [2017] BCJ No 1659, 2017 BCPC 237  R. v. Moroz, 2012 ONSC 5642  R. v. Bialski: The high expectation of privacy associated with cellphones and computers is in conflict with the "low expectation of privacy" that individuals generally have when crossing international borders.  Talk about last bc it helps us as well  R. v. Reeves, [2018] 3 S.C.R. 531  R. v. Jordan (1984), 11 C.C.C. (3d) 565 - Many courts in Canada o CASES THAT SAY NO  R v Morelli, 2010 SCC 8  R v Fearon, 2014 SCC 77  R. v. Vu, [2013] S.C.J. No. 60  Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120  Not v helpful but dissent  R. v. Golden, [2001] S.C.J. No. 81 - Even where “technological reality” deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny (Marakah at paragraph 41; Jones at paragraph 45; Cole at paragraph 54). For example, the fact that text messaging inherently involves the creation of a permanent record that the recipient could disclose to police does not negate a sender’s reasonable expectation that the state will not intrude upon the electronic conversation absent such disclosure (Marakah at paragraph 40). - It has been said that where there is a division of opinion between trial Judges of the same Court, the practice is to follow the more recent decision or decisions, provided that they have considered the conflicting decisions: Woolfrey v. Piche, [1958] O.W.N. 253; Re Goyan; Port Arthur & Fort William, [1953] O.W.N. 297 at 299.

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Counter analysis: why does the othe approach suck – they are saying there is no privacy rights and the border – can have a balance btwn security and privacy - Why is the THEME: Third, to resolve conflicting authorities, the modern view that there is a reasonable expectation of privacy for PEDs should be adopted to accommodate individual rights over government interests. - Why does Alberta strike the best balance - or most alignde w previously issued decisions - How does the law operate

Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia RULE: Generally, where there are conflicting authorities between Canadian courts on a specific issue, “the practice is to follow the more recent decision or decisions provided that they have considered the conflict decisions” (Jamt v Schuurman, [1985] BCJ No 2878, 62 BCLR 208, 14 CCLI 73). After this evaluation is complete, the most persuasive argument should be followed (R. v. Webber, [2004] O.J. No. 4998). - Consistency, coherency, rules of common law court Specifically, when evaluating conflicting authorities for a Charter challenge, a purposive and contextual analysis must occur. A purposive analysis requires the Charter right should be given a generous interpretation and understood “in the light of the interests it was meant to protect” (Big M para 116; Hunter v Southham). A purposive analysis requires that the authority chosen should be the one which best achieves the purpose of the Charter provision (R. v. Big M). A contextual analysis should be used in conjunction with the purposive approach to situate the issue within relevant social, political, and legal contexts. (Edmonton Journal v. A.G. Alberta et al., [1989] 2 S.C.R. 1326; Thomson Newspapers Ltd. v. Canada, [1990] 1 S.C.R. 425; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; May v. Ferndale Institution, [2005] 3 S.C.R. 809). Often, a contextual analysis requires examining policy issues relevant to the question and area of law at issue. Therefore, a contextual analysis instructs that it is essential that the authority chosen is one which best considers and accommodates the modern context of the Charter right and underlying policy arguments. (MacKay v. Manitoba, [1989] 2 S.C.R. 357, at p 361). ANALYSIS: In Canada, there are multiple conflicting authorities regarding reasonable expectations of technological privacy at the border. However, courts should adopt the approach outlined in ABCA because Several courts have held that searches of PEDs are justified as privacy concerns are outweighed by the need to control the movement of goods and people into/out of Canada. The Ontario Superior Court decided s 8 Charter rights are not triggered at the border where "individuals are routinely questioned, luggage is randomly searched, or perhaps a custom officer conducts a pat-down search of their person" (Moroz para 11). The Ontario Court of Appeal has also stated that anyone who is questioned at the border and attracts suspicion of a Customs official should be given "Enhanced constitutional protection against selfincrimination" (Jones para 40). However, this conflicts with several Supreme Court of Canada (SCC) cases. The SCC has recently, yet consistently, held “everyone in Canada is constitutionally entitled to expect privacy in personal information” stored on PEDs “used for personal purposes” in any context (Cole; para 2). Cole importantly states that although some circumstances may diminish a reasonable expectation of privacy, it does not absolve it (para 2). It has also held law enforcement officers must resist imputing stereotypes onto the accused, and instead search “only where [there are] reasonable and probable grounds” (Morelli, para 9). Though the Alberta Court of Appeal (ABCA) decision, that s 99(1)(a) of the Customs Act infringes s 8 of the Charter, may conflict with other appellate courts, it is consistent with general principles promoted by the SCC. The ABCA stated electronic devices hold a reasonable expectation of privacy, even at the border (Canfield). It is a natural extension of Cole, allowing for privacy concerns to be accommodated in other contexts, including border crossings. It also

Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia reaffirmed the importance of the sensitive material on a PED through Morelli, thus upholding a requirement of reasonable grounds to search a phone or computer (Canfield). Furthermore, the expectation of privacy at the border has evolved overtime considering the nature of the good in question. Section 8 follows the person, and not the location *** - Make this stronger - Add more cases - Consistency RECENT Taking the two conflicting views into consideration, it is important to look at both arguments as a whole; both in the contents of the decision, as well as the context of when it was decided. The decision of the Alberta Court of Appeal is the most recent case, and therefore aligns more closely with current societal values and norms. Cases consistent with this decision have increased in recent years. PURPOSE Further, the ABCA decision, as well as the other cases with similar conclusions, are more compatible with s 8’s purpose of protecting people from “unjustified intrusions on their privacy interests” while promoting “dignity, integrity, and autonomy” (Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. 211 at paragraphs 17, 75; R. v. Plant, [1993] 3 S.C.R. 281 at page 292). Cases which have held that s 8 is not applicable to PED border searches are clearly inconsistent with the purpose of s 8. In allowing Border Security Officers to have a “lower standard of justification” for the reasonableness requirement of the search amounts to an unwarranted and significant intrusion of privacy. (Jordan; Reeves). In contrast, by holding s 99(1)(a) of the Customs Act is incompatible with s 8 of the Charter preserves and promotes privacy interests. In requiring a higher threshold of reason for conducting searches, there is less opportunity for searches or seizures to encroach on values, including respect, self-determination, “privacy, dignity, and integrity”, that s 8 attempts to preserve for all (R. v. Golden SCJ, para 106). As stated in Morelli, “the administration of justice will be significantly undermined if criminal trials are permitted to proceed on” evidence unjustifiably obtained from the most intimate “‘places’” based on unreasonable conclusions.

CONTEXT - talk about the context at the border The ABCA was correct in revisiting Simmons and considering the evolution of a PED’s today compared to the time of the older decision. Even in the fourteen years between the decision in Jones and the current decision in Canfield, technology has advanced so much that cellphones and other PEDs are able to hold what is essentially the identity of the person (Bialski). To treat a PED as otherwise would be contrary to the context of Canadian society, which is not in line with the purpose of s. 8 of the Charter. Which is most recent of conflicting authorities Which is more persuasive (can be used with which aligns with the purpose of section 8 better)

And which is more compatible w the context of Canadian society

Conclusion The ABCA was correct to consider the growth in the value and use of PEDs when determining a reasonable expectation of privacy at the border. Their decision is the most recent and aligns most closely with the context of Canada’s current society and therefore

Section 8 Violation TRAC Georgi Gardner and Ashley Villagracia aligns with the purpose of s.8 of the Charter. Thus, this is the view that most persuasive out of the conflicting authorities and should be...