Coutts border. (Canada Border Services Agency)

By David Opinko

Appeal heard in child porn case for refugee applicant at Coutts border

Dec 8, 2020 | 12:23 PM

CALGARY, AB – A man who was convicted of importing child pornography into Canada has launched his appeal.

Hani Al Askari was apprehended at the Coutts border in April 2015 while trying to apply for refugee status.

Canada Border Service Agency (CBSA) officers found more than 400 videos and 100 photos of child pornography on his personal cell phone and a work phone.

Askari claimed that he had done some investigative work for police in Abu Dhabi trying to catch child predators and was sent the materials as part of those investigations.

He was convicted in April 2019 and sentenced to 18 months. While the sentence was shorter than what the crown had asked for, it also meant Askari’s refugee application was rejected.

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In Appeals Court Tuesday, Peter Sankoff argued that the way the CBSA officers conducted the search was unconstitutional.

When Askari arrived at the border, Sankoff said the officers repeatedly demanded he hand over his phone to be searched despite not having a search warrant nor reasonable grounds for suspicion.

The lawyer claimed this violated his client’s right to reasonable expectations of privacy under the Immigration and Refugee Protection Act (IRPA), which was not made clear to Askari by the CBSA.

In law, Sankoff adds that refugees and citizens are both entitled to a reasonable expectation of privacy that should not be surrendered the moment a person arrives at an international border.

According to the defense, it might not be clear to someone arriving in a different country what their rights to privacy are in that jurisdiction. Askari might have felt that he had no option but to surrender his phones to be searched.

Representing the crown, Julie Morgan made the case that rights to privacy are a little bit different in these circumstances.

For Askari, she argues that he chose willingly to go to the Canada-U.S. border for the purpose of seeking a refugee application.

He came prepared with numerous documents, and Morgan believes that Askari should have been aware that having his phones searched would have at least been a possibility. In this instance, Askari would have been given two options – surrender your phone or turn around.

The crown adds, when a person applies for refugee status, they are essentially considered inadmissible to enter the country until it can be proven that they are admissible.

The panel of three judges heard the arguments made by both sides and have reserved their decision.

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