Citizenship and Immigration
Immigration Practice
Judicial reviews related to warrantless seizure of Mohamed Abdi Siyaad’s cellphone by Canada Border Services Agency (CBSA)— Siyaad asserting in docket IMM-4747-18 that CBSA violating Immigration and Refugee Protection Act, S.C. 2001, c. 27, his constitutional rights — Minister of Public Safety and Emergency Preparedness in docket IMM-5184-18 seeking review of Immigration and Refugee Board’s Immigration Division’s (ID) decision granting Siyaad access to his cellphone— Siyaad entering Canada on fraudulent passport — CBSA alerted to fact that Siyaad subject of international investigation into human trafficking — Warrant executed; Siyaad arrested, detained, cellphone seized— Minister appealing RPD’s finding granting refugee claim— Siyaad applying to ID for return of cellphone or access to it — ID first denying access to cellphone — ID later reversing decision, granting application for access order to cellphone — Issue in IMM-4747-18 whether continued seizure of cellphone reasonable, lawful — Issues in IMM-5184-18 whether ID having jurisdiction to make access order, whether decision maker functus — Continued seizure of cellphone authorized by statute — Act, Immigration and Refugee Protection Regulations, SOR/2002-227 representing comprehensive code in dealing with seized items — Criminal Code, R.S.C., 1985, c. C-46 not taking precedent over federal statutes when those statutes providing for comprehensive seizure regime — Siyaad fundamentally erring by assuming that searches, seizures by CBSA officers same as those performed by police officers generally — Rules for CBSA officers on search, seizure not required to be precisely the same as those for peace officers — CBSA officers not required to conform to aspects of the Criminal Code that make little sense in context— CBSA lawfully authorized to seize, retain cellphone without having to follow Criminal Code sections when Act having its own code regarding seizure, retention of property — With respect to issues in IMM-5184-18, while ID had jurisdiction to make access order (authority within Act allowing ID to make needed orders, including orders regarding evidence), decision maker herein functus, could not reverse initial decision denying application for access order to cellphone — General rule held up by Supreme Court in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 clear that decision cannot be revisited because “the tribunal has changed its mind”, as was case herein— Problematic to allow ID such discretion to flip-flop on such interlocutory decisions — Improper to allow decision maker to revisit decision three months after making a first decision given that no request made to revisit decision — ID decision unreasonable — ID not addressing fact that Siyaad’s social media accounts can be accessed from any device — ID erring in its assessment of Immigration Division Rules, SOR/2002-229, r. 49 — Hardly necessary for Siyaad to access cellphone — ID’s decision extrapolating based on tenuous, unreasonable explanations — Application in IMM-4747-18 dismissed; application in IMM-5184-18 allowed.
Canada (Public Safety and Emergency Preparedness) v. Siyaad (IMM-5184-18, IMM-4747-18, 2019 FC 448, McVeigh J., reasons for judgment dated April 11 2019, 25 pp.)