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In the Supreme Court of Canada (On Appeal from the Court of Appeal of Alberta)

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In the Supreme Court of Canada (On Appeal from the Court of Appeal of Alberta) File No. 38376 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) BETWEEN: SHELDON WELLS CANFIELD APPLICANT (Appellant) - and - HER MAJESTY THE QUEEN RESPONDENT (Respondent) - and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA RESPONDENT (Respondent) AND BETWEEN: DANIEL EMERSON TOWNSEND APPLICANT (Appellant) - and – HER MAJESTY THE QUEEN RESPONDENT (Respondent) - and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA RESPONDENT (Respondent) JOINT APPLICATION FOR LEAVE TO APPEAL (SHELDON WELLS CANFIELD & DANIEL EMERSON TOWNSEND, APPLICANTS) (Pursuant to Section 691(1)(b) of the Criminal Code of Canada) Kent Teskey, Q.C. Moira Dillon Pringle Chivers Sparks Teskey Supreme Law Group Barristers 900 – 275 Slater Street #300, 10150 100 Street Ottawa ON K1P 5H9 Edmonton, AB T5J 0P6 Tel: (613) 691-1224 Tel: (780) 424-8866 Fax: (613) 691-1338 Fax: (780) 666-7398 Email: [email protected] Email: [email protected] Counsel for the Applicant, Ottawa Agent for the Applicant, Sheldon Wells Canfield Sheldon Wells Canfield Evan V. McIntyre Moira Dillon Pringle Chivers Sparks Teskey Supreme Law Group Barristers 900 – 275 Slater Street #300, 10150 100 Street Ottawa ON K1P 5H9 Edmonton, AB T5J 0P6 Tel: (613) 691-1224 Tel: (780) 424-8866 Fax: (613) 691-1338 Fax: (780) 666-7398 Email: [email protected] Email: [email protected] Counsel for Counsel for the Applicant, Ottawa Agent for Counsel for the Daniel Emerson Townsend Applicant, Daniel Emerson Townsend Jim Robb, Q.C. Alberta Department of Justice Appeals Division, Criminal Justice Branch 3rd Floor, 9833 109 Street NW Edmonton, AB T5K 2E8 Tel: (780) 422-5402 Fax: (780) 422-1106 Email: [email protected] Counsel for the Respondent, Her Majesty the Queen Shelley L. Tkatch François Lacasse Public Prosecution Service of Canada – Public Prosecution Service of Canada Alberta Division 160 Elgin Street, 12th Floor #900, 700 – 6th Ave. SW Ottawa, ON K1A 0H8 Calgary, AB T2P 0T8 Tel: (613) 957-4770 Tel: (403) 299-3978 Fax: (613) 941-7865 Fax: (403) 299-3966 Email: [email protected] Email: [email protected] Agent for the Respondent, Her Majesty Counsel for the Respondent, the Queen in Right of Canada Her Majesty the Queen in Right of Canada i TABLE OF CONTENTS Tab: Document: Page: 1 Joint Notice of Application for Leave to Appeal 1 2 Reasons and Formal Judgments 5 A Reasons for Judgment of the Court of Queen’s Bench of Alberta, 5 dated May 22, 2018. (No Formal Judgment Issued) B Reasons for Judgment of the Alberta Court of Appeal, dated October 21 29, 2020. C Formal Judgment of the Court of Appeal of Alberta dated November 71 13, 2020 (Sheldon Wells Canfield). D Formal Judgment of the Court of Appeal of Alberta dated November 73 13, 2020 (Daniel Emerson Townsend). 3 Memorandum of Argument 75 I Overview and Statement of Facts 75 II Questions in Issue 80 III Argument 81 IV Costs 94 V Order Requested 94 VI Table of Authorities 95 4 Documents Relied Upon 98 A Agreed Statement of Facts dated December 7th, 2017. 98 B Trial Transcript: Table of Contents, pp. 1, 6, 11, 14, 52, 53, 56-59, 72, 105 78, 79, 87, 89, 90, 100, 110, 114, 122-124, 178, 231. C Affidavit of Denis Vinette Cover Page, Exhibit E, Exhibit F. 132 1 File No. ________________ IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) BETWEEN: SHELDON WELLS CANFIELD APPLICANT (Appellant) - and - HER MAJESTY THE QUEEN RESPONDENT (Respondent) - and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA RESPONDENT (Respondent) AND BETWEEN: DANIEL EMERSON TOWNSEND APPLICANT (Appellant) - and – HER MAJESTY THE QUEEN RESPONDENT (Respondent) - and – HER MAJESTY THE QUEEN IN RIGHT OF CANADA RESPONDENT (Respondent) AMENDED JOINT NOTICE OF APPLICATION FOR LEAVE TO APPEAL (SHELDON WELLS CANFIELD & DANIEL EMERSON TOWNSEND, APPLICANTS) (Pursuant to Rule 25 of the Rules of the Supreme Court of Canada) 2 3 Evan V. McIntyre Moira S. Dillon PRINGLE CHIVERS SPARKS TESKEY Supreme Law Group Barristers 900 – 275 Slater Street #300, 10150 100 Street Ottawa ON K1P 5H9 Edmonton, AB T5J 0P6 Tel: (780)-424-8866 Tel: (613)-691-1224 Fax: (780)-666-7398 Fax: (613)-691-1338 Email: [email protected] Email: [email protected] Counsel for the Applicant, Ottawa Agent for Counsel for the Daniel Emerson Townsend Applicant, Daniel Emerson Townsend ORIGINAL TO: THE REGISTRAR COPY TO: Jim Robb, Q.C. ALBERTA DEPARTMENT OF JUSTICE Appeals Division, Criminal Justice Branch 3rd Floor, 9833 109 Street NW Edmonton, AB T5K 2E8 Tel: (780) 422-5402 Fax: (780) 422-1106 Email: [email protected] Counsel for the Respondent, Her Majesty the Queen Shelley L. Tkatch PUBLIC PROSECUTION SERVICE OF CANADA; ALBERTA REGION #900, 700 – 6th Ave. SW Calgary, AB T2P 0T8 Tel: (403) 299-3978 Fax: (403) 299-3966 Email: [email protected] Counsel for the Respondent, Her Majesty the Queen in Right of Canada 4 NOTICE TO THE RESPONDENT OR INTERVENER: A respondent or intervener may serve and file a memorandum in response to this application for leave to appeal within 30 days after the day on which a file is opened by the Court following the filing of this application for leave to appeal or, if a file has already been opened, within 30 days after the service of this application for leave to appeal. If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration pursuant to section 43 of the Supreme Court Act. 5 g^\lED^ Court of Queen's Bench of Alberta 18(mAY2 2 2018)P Citation: R v Canfleld, 2018 ABQB 408 Date: Docket: 150291227Q1, 150156834Q1 Registry: Edmonton Between: 150291227Q1 Her Majesty the Queen Respondent - and - Sheldon Wells Canfield Applicant/Accused And Between: 150156834Q1 Her Majesty the Queen Respondent - and - Daniel Emerson Townsend Applicant/Accused And Between: Sheldon Wells Canfield; Daniel Emerson Townsend Applicants/Accused - and - Her Majesty the Queen Respondent - and Public Prosecution Service of Canada Intervenor 6 Page: 2 Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil The Application [1 ] The Applicants, Sheldon Canfield and Daniel Townsend, have each been charged with one count of Possession of Child Pornography contrary to s 163.1(4) of the Criminal Code and one count of Importing Child Pornography contrary to s 163.1(3) of the Criminal Code, as a result of searches conducted on their electronic devices at the Edmonton International Airport, following their arrivals on intemational flights. [2] The Applicants have admitted all of the elements of the offences with which they have been charged, subject to their challenge of the constitutionality of s 99(1)(a) of the Customs Act, RSC 1985, c 1 (2nd Supp)(Act). [3] Their joint Constitutional challenge seeks the following: 1. A determination that the rights of each Applicant, as guaranteed by sections 7, 8, 10(a) and 10(b) of the Charter ofRights and Freedoms, were violated; 2. A declaration made pursuant to section 52(1) of the Constitution Act, 1982, that section 99(1)(a) ofthe Customs Act, RSC 1985, c 1 (2nd Supp), violates section 8 of the Canadian Charter ofRights and Freedoms and cannot be saved by section 1 of the Canadian Charter ofRights and Freedoms, and is therefore inconsistent with the Constitution of Canada and of no force or effect; and 3. An order, made pursuant to sections 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms, excluding certain evidence (as particularized below)from the trials of these matters, on the grounds that evidence was obtained in a manner that violated the Applicants' Charter rights. [4] By agreement, the accused were tried before me concurrently. Factual Background [5] During the trial, I heard extensive evidence about general Customs procedures at border entries into Canada, in peirticular, airports. [6] All passengers arriving at an airport from outside Canada, are directed to a Customs controlled area. Each passenger is requested to complete an E311 Declaration Card, which provides information about the passenger and any goods being brought into Canada. [7] At the primary inspection line (PIL), each passenger is questioned by a Border Services Officer(BSC) for approximately one to two minutes. [8] During the discussion in the PIL, the BSC will determine if there are any "indicators", sufficient to refer the passenger for secondary screening. 7 Page: 3 [9] "Indicators" is not a defined term but may include the person's demeanour, travel itinerary and anything disclosed in the E311 Declaration Card. [10] Some references for secondary screening are computer generated and some may be entirely random. [11] At secondary screening, the BSO may search electronic devices. [12] At the Edmonton Intemational Airport, secondary screening is conducted in an open area immediately adjacent to the initial Customs screening area. [13] On March 22, 2014, the Applicant, Townsend, arrived on a flight from Seattle. [14] He was referred for secondary screening by a BSO based on the following indicators: 1. He presented himself at Customs declaring three bags and stated that he had been travelling in the US for five months. The BSO felt that this was an unusual travel pattem for a trip of that length; and 2. During initial questioning his demeanour changed and he stopped making eye contact. [15] Townsend was found to be in possession of 12 electronic devices, including a laptop computer. A BSO inspected the laptop and found images of child pomography. Townsend was then arrested. [16] On December 12, 2014, the Applicant, Canfield, arrived on a flight from Cuba. He was referred for secondary screening by a BSO based on the following indicators: 1.
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