IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Rupinder Batth is charged with a series of offences contrary to Sections 126 and 127(a) of the Immigration and Refugee Protection Act (“IRPA”). The Crown alleges that these offences were committed between February of 2015 and July of 2017. Mr. Batth was an immigration consultant; he owned and operated an immigration consultant business called Can-Asia Immigration Consultants (“Can-Asia”). The Crown alleges that Mr. Batth was paid by foreign nationals to obtain work permits and permanent resident status in Canada, and that he employed fraudulent means to do so.

[2]         These are my reasons following the second of a series of pre-trial applications. In this application, Mr. Batth sought standing under ss. 7, 8 and 11(d) of the Charter with respect to data located on a cell phone which belonged to a third party.

[3]         In August of 2016, an immigration consultant named Hossein Amirahmadi escorted a client to the Boundary Bay border crossing. The client was applying for a work permit. The CBSA border officer who received the application interviewed the applicant and spoke with Mr. Amirahmadi. During that process, the officer formed a belief that there was something amiss with the application and that Mr. Amirahmadi might be engaged in conduct contrary to the IRPA. He searched Mr. Amirahmadi’s car and recovered his cellular phone and some cheques; he subsequently searched the contents of the phone. After consulting a supervisor the phone was seized.

[4]         A warrant to search the contents of the phone was obtained; Crown counsel submits that messaging and other data on that phone provides evidence of a criminal connection between Mr. Amirahmadi, Mr. Batth, and Can-Asia. It was determined that Mr. Batth was a party to three of the WhatsApp chat messages which were located on that phone. Data from the Amirahmadi phone was incorporated into an Information to Obtain (“ITO”) filed in support of warrants to search at Mr. Batth’s home and at the office of Can-Asia.

[5]         I was told that this application was part of a litigation plan that included a challenge to the Can-Asia warrant, including an application to excise the Amirahmadi cell phone data from the Can-Asia ITO.

[6]         Mr. Batth was a party to three WhatsApp messages on Mr. Amirahmadi’s phone. Mr. Batth asserted s. 8 standing with respect to those messages; Crown disagreed, and submitted that there was no evidence that Mr. Batth had a reasonable expectation of privacy regarding the contents of those communications. Those messages also formed part of the ITO for Can-Asia. Both parties agreed that excising those messages from the ITO would not be enough, standing alone, to vitiate the Can-Asia warrant. On the other hand, the balance of the evidence remaining in the ITO after excising the entirety of the Amirahmadi cell phone data, would likely be insufficient to support the warrant.

[7]         In a brief note to counsel on 20 October 2022, I found that Mr. Batth had standing to challenge the search of the Amirahmadi phone under s. 8 of the Charter. I also granted s. 7 standing to pursue an argument that the conduct of the CBSA investigator at the border engaged the related doctrines of abuse of process and trial fairness. I neglected to mention at the time that the applicant would also have standing with respect to his s. 11(d) right to a fair trial; subsequent applications went forward as if both ss. 7 and 11(d) were in play and those issues were fully litigated.

[8]         When I ruled on the standing issue I advised counsel that my reasons would follow. I proceeded in this fashion in the interest of expediency, and because I was told that the answer to the question posed in this motion would bear upon further applications which were pending.

[9]         I have now heard and decided four additional applications since my order granting standing under ss. 7, 8 and 11(d). In Voir Dire No. 3 (7 November 2022) and Voir Dire No. 4 (23 November 2022) I made rulings with respect to issues which arose as a result of my decision on standing.

[10]      The subject matter of Voir Dire No. 3 was the encounter between the border officer and Mr. Amirahmadi at the Boundary Bay border crossing in August of 2016. The CBSA officer testified in chief and was cross-examined. At the conclusion of Voir Dire No. 3, I found that the officer lacked reasonable and probable grounds to search Mr. Amirahmadi’s phone, and that Mr. Amirahmadi’s s. 8, 10(a) and 10(b) rights had been violated.

[11]      Voir Dire No. 4 was a further development of the issues litigated in Voir Dire No. 3. Data from Mr. Amirahmadi’s phone was included in an ITO filed in support of an application to obtain a search warrant targeting Mr. Batth’s residence and place of business. Relying on the evidence tendered in Voir Dire No. 3, and my ruling at the conclusion of that application, Mr. Batth submitted that the conduct of the CBSA officer who dealt with Mr. Amirahmadi also breached his own section 7, 8 and 11(d) Charter rights, with the result that all data from that phone which found its way into the ITO must be excised.

[12]      At the conclusion of Voir Dire No. 4, I found that the three WhatsApp messages were obtained in breach of Mr. Batth’s s. 8 rights and that they must be excised from the ITO; as noted earlier, that change had no impact on the sufficiency of the grounds to obtain the warrant. I did not find that Mr. Batth’s rights were breached under ss. 7 and 11(d), and I dismissed his application to excise from the ITO the balance of the Amirahmadi cell phone data.

[13]      The applicant seeking a voir dire declaration and an evidentiary hearing does not bear a high onus; they must satisfy the court that there is some reason to believe, or a reasonable basis upon which, a remedy could be granted. In weighing that submission, the court must “take the case at its highest”, accept the inferences most favourable to the applicant, and take as true the facts advanced in support. The court must then assess those facts and determine whether they are legally capable of supporting the remedy sought:  R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (BCCA); R. v. Johnston, 2021 BCCA 34 at paras. 403-404.

[14]      The preliminary issue to be determined here was whether the applicant had standing under ss. 7, 8 and 11(d) of the Charter, and if so, whether the facts asserted were legally capable of supporting the remedy of excision.

[15]      I had little trouble finding that Mr. Batth had standing under s. 8 to pursue the remedy of excision. Mr. Batth asserted through counsel a subjective belief that the messages would remain private, and I found that expectation to be objectively reasonable in the circumstances. These were clearly private messages between Mr. Batth and Mr. Amirahmadi. While Mr. Batth – or anyone else for that matter – may understand that a text message once sent might be viewed by others, it is objectively reasonable to expect that the message will not be read by a peace officer in the absence of lawful authority to do so:  R. v. Marakah, 2017 SCC 59.

[16]      All substantive Charter rights are personal to the accused. Standing is granted only rarely where third party rights are engaged:  R. v. Kang, 2020 BCSC 1151 at para. 43; R. v. Edwards, 1996 CanLII 255 (SCC), [1996] 1 S.C.R. 128; R. v. Ferguson, 2008 SCC 6.

[17]      In this case, Mr. Batth asserted that s. 8 standing with respect to some of the messages on the phone expands the playing field, particularly where there is also evidence which suggests that the border officer has engaged in egregious conduct during his interactions with Mr. Amirahmadi. He pointed to evidence which was capable of establishing breaches of Mr. Amirahmadi’s s. 8 and 10 rights in circumstances where it might fairly be argued that the border officer had demonstrated little or no regard for Charter protected rights. He also submitted that it could be inferred from the presence of Mr. Batth’s messages on the phone that Mr. Amirahmadi was acting as an agent of the applicant in furtherance of the unlawful enterprise alleged by the Crown (see Marakah, supra, at para. 20). Counsel submitted that in these unique circumstances Mr. Batth should be allowed to develop evidence of additional breaches, personal to him, arising from the doctrines of abuse of process and trial fairness. In the event that the court were to find breaches of ss. 7 or 11(b) on either basis, counsel would seek the remedy of excision with respect to the Can-Asia ITO.

[18]      Counsel for Mr. Batth added something else; he submitted that the evidence developed at this application was also capable of exposing systemic failures with respect to CBSA practices at border crossings which became manifest during this officer’s encounter with Mr. Amirahmadi. He submitted that this evidence would help to establish additional breaches and provide support for the remedy of excision.

[19]      Mr. Batth submitted that this body evidence engages the residual category of the doctrine of abuse of process discussed in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411at para. 73:

[20]      Counsel for Mr. Batth also referred to a number of cases where some combination of the doctrine of abuse of process and the right to a fair trial were considered as applications to obtain standing to bring a Charter challenge:  R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562; R. v. Croft, 2013 ABQB 716 and R. v. Giles, 2014 BCSC 1536.

[21]      Crown counsel placed particular emphasis on the decisions of Justice Ker in Kang, supra, and Lattimer, 2020 BCSC 1958. Crown submits that Mr. Batth seeks an order which would violate the foundational rule that all Charter rights are personal; he points to language employed by Justice Ker in Kang and Lattimer; where she described the matters before her as applications for “herd immunity” which would end with a remedy akin to “excision for one is excision for all.”

[22]      In R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, the Court found that the concept of trial fairness, while rooted in common law, is now captured by sections 7 and 11(d) of the Charter. If admission of certain evidence would be in violation of the principles of fundamental justice - for example, if the admission of the evidence would result in an unfair trial - sections 7 and 11(d) would be engaged. The Court found that trial fairness embraces notions of fairness which are broader than the specific contest between the state and the accused, operates through flexible rules, and is concerned with the manner in which evidence was obtained as well as the effect of admission of that evidence on the trial process. The Court held that trial fairness operates outside s. 24 of the Charter, and exclusion does not depend upon a Charter breach. The doctrine provides a separate discretion, now constitutionalized, to exclude evidence that would result in an unfair trial:  Harrer, supra, at paras. 13, 14, 16, 22-4.

[23]      Croft, supra was a wiretap case. Counsel brought an application to excise from the affidavit filed in support of a Part VI order evidence that text messages - obtained from Telus and included in the wiretap affidavit - were obtained without prior judicial authorization. The facts here are unusual; the applicants were not asserting that anyone’s Charter rights were breached in the obtaining of this evidence. The case management judge granted standing under ss. 7, 11(d) and the common law doctrine of abuse of process:

[24]      In Giles, supra, Justice Ross referred to Croft as well as R. v. Castro, 2001 BCCA 507, and a decision from this court, R. v. Guilbride, 2002 BCPC 7. There were five accused in Giles facing allegations of conspiracy to traffic and import cocaine. Two of the accused were given standing to challenge the legality of an RCMP undercover operation in Panama; that operation proceeded on the basis of authorizations obtained from Panamanian officials. The applicants submitted that the RCMP lacked jurisdiction to undertake these actions in Panama, and the authorizations they obtained were induced by material misrepresentations made by the RCMP. Both of these accused were directly targeted in Panama and had standing for that reason. The other three accused were not targets of the undercover operation and had no connection to the events in Panama, but they applied for standing on the basis that information gathered in Panama was included in judicial authorizations in Canada which produced evidence the Crown intended to lead against them at trial.

[25]      Justice Ross observed that in Castro, supra, standing had been granted to an accused who was not the target of an illegal currency exchange operated by a team of undercover police officers. The Court found that there was a sufficient nexus where it was alleged that the entire operation was “tainted with illegality” and had produced evidence directly linked to the appellant’s prosecution. She cited with approval and reproduced in her reasons the passages from Croft, supra which I have included here. At paragraph 19, Justice Ross concluded that the situation she was dealing with was similar to what happened in Castro, and that “the evidence produced in the Panama operation can be directly linked to the applicants’ prosecution through the route of the informations to obtain producing judicial authorizations.”

[26]      In Kang, supra, the applicants’ argued that material excised from an affidavit filed in support of a Part VI order as a result of breaches of Charter rights of another accused must be excised as against all accused before the court. Justice Ker referred to this as a question of “excision for one” or “excision for all.” The court ruled that “excision for one”, i.e. the person whose Charter right was breached, was the correct approach on these facts.

[27]      In Lattimer (a matter which overlapped to some extent with the accused and issues litigate in Kang), the police obtained without warrant CCTV footage and fob records with respect to two different condo complexes. The CCTV footage captured images of Mr. Lattimer and a co-accused, as well as a third individual who was not before the court. Police used the CCTV footage of the two accused and the third person in subsequent informations to obtain search warrants. The court ruled that Mr. Lattimer and the two other subjects had a reasonable expectation of privacy with respect to the CCTV footage and fob records. Mr. Lattimer submitted further that his section 8 rights extended to include the CCTV and fob records which were specific to the third person, and he sought an order excising that individual’s images and associations from the ITO’s directed against Mr. Lattimer. Justice Ker dismissed the application. In doing so, she agreed with Crown counsel’s characterization of the application as an attempt to expand the notion of s. 8 rights to become group rights. Later in her reasons Justice Ker chose the phrase “group immunity” to describe the nature of the relief sought.

[28]      The facts here are distinguishable from the police operated money exchange “tainted with illegality” in Castro, supra, the allegations of RCMP misconduct in Panama which was the central feature of the decision in Giles, supra, and the messages obtained without warrant in Croft, supra. This case is also distinguishable in a different way; here Mr. Batth had s. 8 standing to challenge the search of Mr. Amirahmadi’s cell phone. The applicants in Castro, Giles, and Croft did not have standing to bring a Charter challenge at all without calling in aid ss. 7 or 11(d).

[29]      The applicants in Kang did not assert a Charter breach of their own. They merely argued that evidence excised form an affidavit for one must also be excised for all, a clear effort to ride the coat-tails of a Charter breach which had nothing to with them. While the applicant in Lattimer had s. 8 standing, he applied to expand the reach of his own s. 8 privacy rights to include the fruits of state action against someone else. That is not the application before me.

[30]      It is my view that s. 8 standing with respect to the three WhatsApp messages on Mr. Amirahmadi’s phone is the critical difference in this case, although that is not enough standing alone to provide standing under either or both of ss. 7 and 11(d).

[31]      The s. 8 and 10(b) issues personal to Mr. Amirahmadi were particularized by counsel in his submissions. They involved allegations of serious Charter breaching conduct by border officers during their dealings with Mr. Amirahmadi. In addition to the three WhatsApp messages which provided the underpinning for s. 8 standing, CBSA investigators obtained a great deal of additional data from the Amirahmadi phone which found its way into the ITOs filed in support of applications to search at Mr. Batth’s home and place of business. It was alleged that all of this was obtained as a result of Charter infringing misconduct by CBSA officials at the border. I find that this is a case where it could be inferred from the presence of Mr. Batth’s messages on the phone that Mr. Amirahmadi – who was also an immigration consultant - was acting as an agent of the applicant in furtherance of the unlawful enterprise alleged by the Crown. These circumstances bear some similarity to those before the court in Croft and Giles.

[32]      These factors taken together provided a sufficient nexus between the CBSA encounter with Mr. Amirahmadi and the investigation of Mr. Batth that followed. For these reasons I granted Mr. Batth standing under ss. 7 and 11(d), allowing him to further develop evidence that his personal rights under these headings were breached by operation of either or both of the doctrines of abuse of process and trial fairness.

[33]      I will add this final comment. Counsel submitted that some of the Charter breaching conduct could be linked to systemic failures inherent to CBSA border practices. These allegations were not particularized during the application for standing, and I have not taken them into account here.