Accused charged with child pornography offences. Search at the Canadian border by members of the Canadian Border Services Agency (CBSA). O’Connor application seeking disclosure of “records pertaining to indicators used by CBSA to identify breaches of the Customs Act at border crossings.” Issue regarding a claimed investigative privilege.

Held: Application dismissed.

A well founded claim of privilege bars disclosure of material sought, unless the accused can establish on a balance of probabilities that his/her innocence is at stake: McNeil [2009] 1 SCR 66. Test not met. “In my view, production of these records would undermine the ability of CBSA to enforce the prohibition of bringing child pornography into Canada … the Accused have received substantial Stinchcombe disclosure, including full disclosure of records relating to the interaction of the Accused with CBSA.”

K. Teskey, D. Bullerwell –

Defence Counsel