Hon. Mobina S. B. Jaffer: Will the honourable senator take a question?

Senator Dean: Yes.

Hon. Renée Dupuis: Senator Dean, thank you for the report you presented as the committee’s chair.

I want to be sure I understand the amendment passed in committee. The Alberta Court of Appeal decision stated that there is a test that needs to be met, but not necessarily the one that is currently in the act; it could be a slightly less stringent test for the Canada Border Services Agency, rather than the one currently set out in the act.

My understanding is that the amendment that was passed by the committee is to decide on the test, to expand the application of the current standard — which the agency is very familiar with and used to implementing — and, therefore, to expand the issue of searches of devices to cell phones and tablets. Is that correct?

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Senator Dean: Thank you for the question, Senator Dupuis. Yes, indeed, that is precisely the approach that committee members took — moving to what is a pre-existing standard for other purposes under the Customs Act and Preclearance Act, 2016, which is “reasonable grounds to suspect.” That is, as I understand it, the next higher level of threshold that would be available beyond this new concept of “reasonable general concern.” You are correct in your reading of it.

Hon. Tony Dean moved the adoption of the report.

He said: Honourable senators, on June 13, 2022, the Standing Senate Committee on National Security and Defence completed its study of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

As part of this study, the committee heard from the Minister of Public Safety, the Office of the Privacy Commissioner of Canada, government officials, academic experts and representatives from legal and civil society organizations.

The committee adopted Bill S-7 with three broad areas of amendment, which included the following: first, the legal threshold for searching personal digital devices at the border; second, the network connectivity of those devices; and third, regulations relating to solicitor-client privilege. I will cover each of these briefly.

First on the legal standard, Bill S-7 would have introduced a new legal threshold for the examination of personal digital devices by Canada Border Services Agency, or the CBSA, customs officers and U.S. pre-clearance officers — that standard being “a reasonable general concern.”

As context for the changes proposed in the bill, in 2020 the Court of Appeal in Alberta ruled section 99(1)(a) of the Customs Act unconstitutional as it pertains to examinations of personal digital devices. CBSA customs officers currently use a multiplicity of indicators to guide searches of digital devices in line with their internal policies. The court determined that legislation must be amended to include a threshold and further stated that it is Parliament’s role to establish a threshold for the examination of personal digital devices by these officers.

In appearing before the committee, the minister asserted that the threshold proposed by the Government of Canada in Bill S-7 is required to give CBSA officers the authority they need to intercept illegal contraband on personal digital devices.

Furthermore, government officials explained that Bill S-7 would introduce the first legal threshold for U.S. pre-clearance officers to conduct a search of a personal digital device.

However, several witnesses expressed concerns about the bill’s proposed threshold. In their view, its implementation could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

The committee amended Bill S-7 to replace the new threshold of “reasonable general concern” with the higher threshold of “reasonable grounds to suspect,” which is a legal standard that already exists in the Customs Act and the Preclearance Act, 2016.

The committee agreed, on division, that this higher legal standard might alleviate some of the concerns that I have just listed. The Customs Act and the Preclearance Act, 2016 currently state that a CBSA or U.S. officer must have reasonable grounds to suspect that a traveller could be breaking the law before conducting other searches such as, in the case of the Customs Act, opening mail that a traveller is carrying, or, in the case of the Preclearance Act, 2016, conducting a strip search.

The committee’s amendments to Bill S-7 would ensure that examination of personal digital devices at the border would be subject to a threshold that is already known to CBSA and U.S. officers.

Regarding network connectivity, government officials emphasized that the Customs Act gives CBSA officers the right to examine documents that are stored on a personal digital device but not documents that are stored on a cloud-based server, for example. Bill S-7 would maintain this role for CBSA customs officers and would formally introduce this role for U.S. pre‑clearance officers. However, to enhance clarity, the committee amended Bill S-7 to state explicitly that these CBSA or U.S. officers would be required to disable network connectivity on personal digital devices that they are examining.

Finally, several of the committee’s witnesses raised concerns about solicitor-client privilege, suggesting that Bill S-7’s proposed legal threshold for the examination of personal digital devices — that being a “reasonable general concern” — could result in CBSA officers and U.S. pre-clearance officers having unauthorized access to documents protected by solicitor-client privilege. To address those concerns, the committee amended the bill so that both the Customs Act and the Preclearance Act, 2016, would allow the Governor-in-Council to make regulations respecting measures to be taken by such officers if a document on a personal digital device is subject to solicitor-client privilege or other related protections.

In conclusion, colleagues, throughout the study of Bill S-7, the committee was tasked with finding an appropriate balance between giving CBSA customs officers and U.S. pre-clearance officers the tools they need to, on one hand, ensure public safety and border integrity while, on the other hand, protecting the privacy rights of individuals.

On behalf of the committee, I present Bill S-7, as amended, for your consideration. Thank you.

Hon. David M. Wells: Honourable senators, I would like to thank Senator Dean for his deft stickhandling at our committee meetings. There were a lot of witnesses, opinions and debate, and he did a great job. I also want to thank Senator Boniface, the sponsor of the bill, for her contribution as sponsor, for laying out the government’s position on this bill. As the critic of the bill, I have my role to play as well.

During the committee meeting, as you heard, we had eight amendments presented, all of which passed. Many issues were raised, but there were three key issues. One on connectivity, which was my amendment, and actually there were three amendments that passed at committee. Senator Dean and others mentioned “reasonable grounds to suspect,” which was Senator Jaffer’s amendment. I note that Senator Dalphond also had a similar amendment, which passed quite easily, that also had elements of racial profiling and selecting people perhaps because of the country from which they came and other issues around that, which we will certainly hear in the third-reading speeches. The last amendment topic related to solicitor-client privilege, which was presented by Senator Dalphond. In some cases there were two amendments because some related to the Customs Act and others to the Preclearance Act, 2016.

I also note that there were other important issues that did not find their way into an amendment, and which may find their way into regulations. Senator Yussuff spoke of issues raised by the Office of the Privacy Commissioner for the committee’s consideration. He had four key points: record keeping by CBSA officers; searching only what is on the device, which relates to my amendment on connectivity; rules for password collection; and mechanisms for complaint redress. Right now, colleagues, there is no mechanism for complaint redress. It is essentially howling at the moon for an organization that is now seeking carte blanche for searching our personal digital devices.

There were also questions asked, which I think are as important as the key parts of the bill, as to why the fines for interfering with a CBSA officer were significantly reduced. I’m unaware of how significantly reducing these fines serves as a greater deterrence.

I’ll talk briefly about the categories of amendments that were brought up. One was to inform the passenger and make it known to them that their device can be searched while not in connectivity mode. Of course, in my second-reading speech I went through this. I was not advised this was policy and not advised that it could be put into non-connectivity mode. Consequently, because I was not advised of that, I didn’t know my rights to that, and the CBSA officer comfortably searched my bank records, my Visa statements and asked questions about that. While that may be policy, I think it’s important we recognize that their policy is not followed. Again, I mentioned in my second‑reading speech — or perhaps it was a question to Senator Boniface in her speech — that on the TV show that features the CBSA, “Border Security,” they regularly search passengers’ personal digital devices and they thumb through and speak to the camera about what they find on it.

Senator Dalphond’s amendment on solicitor-client privilege is really important. We are all familiar with what items we may have on our personal digital devices — health records, personal correspondence with spouses and partners, photos of our family or whatever personal photos we might have — and the question that we might want to consider at third reading is whether this should also extend to doctor-patient confidentiality, which obviously is as important as solicitor-client confidentiality or commercially confidential information or anything else that might have a high degree of confidentiality that might be of no interest to CBSA in their search for contraband documents.

The committee passed an amendment that was spoken about, proposed by Senator Jaffer and equal to Senator Dalphond’s amendment that he was ready with, which would change the proposal from “reasonable general concern” to “grounds to suspect.” The reasonable general concern, honourable senators, is essentially not just a low bar, but no bar at all if the CBSA officer has to give no reason for their concern. Of course, all CBSA officers should have a reasonable general concern about everyone coming across the border. However, there has to be a limit at the point where they seek the most in-depth, private documents, messages and photos of Canadians travelling across the border.

Senator Dalphond noted as we were talking about this — as did all our legal scholars, including Senator Jaffer — that this “reasonable grounds to suspect” is a well-understood legal concept, tried and tested by the courts. It is well defined and goes some way to reducing the racial profiling that we know happens at the border — something that was discussed at length at the committee.

Finally, colleagues, I want to also mention the witnesses who did attend the meeting. Senator Dean mentioned a few of them, but I have the full list here. I think it is important for colleagues to know that these are the people who think about this every day: the International Civil Liberties Monitoring Group, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the Canadian Bar Association and the Munk School of Global Affairs & Public Policy at the University of Toronto. An associate professor of the Faculty of Law at the University of Calgary also gave excellent testimony. Of course, the Canada Border Services Agency, or CBSA, was there as the promoter of the bill, as was the Department of Justice.

Honourable senators, it’s important to remember that just Tuesday we had Mr. Dufresne with us, who is the Privacy Commissioner nominee and who answered my questions on reasonable general concern. We all heard those answers in the Committee of the Whole.

Of all the independent expert witnesses — again, Senator Dean highlighted one that I thought didn’t have an opinion on it. In her response, I thought she said, “I had not really considered this.” But out of all of the other independent expert witnesses, none thought reasonable general concern was a good idea or would pass the judicial “smell test.”

Honourable senators, it’s important to know that if the bar is so low that it won’t pass the judicial smell test, it will go back to the courts again to be decided. A couple of our witnesses suggested this could take up to five or ten years. We know how long a lot of these things take in the courts.

These amendments, colleagues, are all put in place to protect Canadians’ fundamental rights as dictated by our Charter of Rights and Freedoms. While we know it’s important that there are protections at the border from bringing in illegal goods and documents, we have to decide what trumps our Charter rights and freedoms.

Honourable senators, I look forward to third reading, which will happen early next week, and further discussions on this bill. Thank you very much.

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