MANDEL: A win for kids — appeal court orders retrial on child porn charges despite Charter breach

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The registered child sex offender must have thought he won the Charter lottery when he was acquitted of new child pornography charges — despite 1,600 images allegedly found on his digital devices by Canada border agents.

After the trial judge found the section of the Customs Act that allows the Canada Border Services Agency to search your cellphones, computers and other devices without so much as a reasonable suspicion is unconstitutional, Jeremy Pike was allowed to walk.

But not so fast, says the Ontario Court of Appeal.

In a recent ruling, the province’s highest court agreed the section is “of no force or effect” because it violates the constitutional right to be secure against unreasonable searches and gave the federal government six months before the declaration of unconstitutionality comes into effect.

“Because the border is not a Charter-free zone, it is also not an almost-anything-goes zone for highly intrusive searches like digital device examinations,” wrote Chief Justice Michael Tulloch on behalf of the three-judge panel.

Tulloch, though, disagreed with the trial judge for excluding the evidence found on Pike’s devices due to Charter violations and ordered the case returned to court.

“He failed to properly consider the border officer’s good faith reliance on the existing law when conducting the searches, Mr. Pike’s reduced expectation of privacy in his devices at the border, the moderate length of the delay in providing the right to counsel, and the interests of society in trying these serious charges on their merits,” he wrote.

“The trial judge’s decision to exclude the child pornography found on Mr. Pike’s devices, and acquit him, cannot stand.”

Pike was a travelling billboard of suspicion.

Now 52, the former Oshawa teacher was first arrrested in 2005 in what Durham Police called the largest child porn case in the region’s history. He was eventually convicted of sexually interfering with seven young boys and making and possessing child porn depicting that abuse.

Stripped of his teaching licence and sentenced to 14 years, he was released after seven and a half years and left Canada to spend seven months “visiting several developing countries, some of which are known to be destinations for travellers intending to sexually exploit children,” the appeal court wrote.

According to the ruling, when Pike returned home to Pearson in 2020 from Indonesia, he had 14 digital devices and numerous children’s items in his luggage. He appeared nervous, first telling border agents that he’d been teaching adults but then admitting he’d been teaching seven-year-old boys.

Suspicious, the agent demanded Pike’s computer password and searched all 11 working devices — but didn’t inform of his right to a lawyer until almost 90 minutes into the search.  

“Nearly 50 minutes later, he found child pornography on one of the devices, arrested Mr. Pike for violating the Customs Act and contacted Peel Regional Police, who found over 1,600 images depicting the sexual abuse and exploitation of children on two of Mr. Pike’s devices.”

In 2022, Ontario Superior Court Justice David E. Harris found the Charter breaches were serious enough to bring the administration of justice into disrepute if the data found on his devices were admissible. Without it, Pike was a free man.

The Crown appealed his acquittal and Ontario’s highest court agreed the trial judge “overstated” the seriousness of CBSA’s conduct and underplayed child pornography as a serious societal concern that favoured admitting the images and going to trial.

“By teaching children abroad and returning with devices that contained numerous child sexual exploitation images, Mr. Pike engaged Canada’s strong interests in protecting children abroad who are abused by Canadians and preventing travellers from misusing the advantages of their Canadian nationality and residence to do so with impunity,” the chief justice concluded.

“The reasonable person concerned with the justice system and rule of law’s long-term integrity would be concerned about sending a message that alleged perpetrators can find safe haven in Canada and avoid answering the charges.”

And so in a victory for children, the disgraced travelling teacher will be heading back to trial after all.

mmandel@postmedia.com

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