Senator Gold: Thank you, Senator Jaffer. Look, the government looked carefully at that issue and many others and came to the conclusion that it would address those offences which represent a significant majority — I think I mentioned 75% — of cases where people are actually incarcerated. And not only simply that but the types of offences — drug offences, notably, but also offences committed with long guns — that have a serious disproportionate impact on Indigenous individuals and racialized Canadians. It is clearly a major step that the government is taking to address a significant chunk of the problem.

These questions we will study, and I look forward to the study in committee. The government and the officials will have a chance to hear your questions and respond to them, but I think the short answer is that this is a major step and an overdue step in the right direction, a promise that was made during the campaign, as you know. The committee will do its job, as we always do, to make sure that the law is properly understood, and all questions are answered. The government is satisfied that the step that it’s taking now is a major step forward. It doesn’t preclude further steps in the future, but this is an important bill that deserves to be studied seriously, as we will, with your support, at second reading.

Hon. Denise Batters: Senator Gold, in your speech you referenced a one-year mandatory minimum sentence for a prohibited weapon, which, you said, includes pepper spray. Senator Gold, come on. We both know that before that charge even gets to court, police and Crown prosecutors would lay criminal charges appropriately. Such a criminal charge would not probably even be laid if it were not appropriate. But since you used that example, how many criminal convictions have there been in the last five years in Canada for pepper spray where the accused has received a one-year mandatory minimum sentence? I would guess that number might hover somewhere around zero.

Hon. Kim Pate: Thank you, Senator Gold. I share Senator Jaffer’s perspective. Thank you for a very well-crafted speech.

I’d like to ask you this, though. When I’ve met with members from the Department of Justice, the assertion that this will result in a significant decrease in the number of people in prison has not been borne out by the Department of Justice’s own research. In fact, they indicate that maybe, as you’ve indicated — and most of the examples you used were of provincial and territorial incarceration — there may be some decrease for Black and some Indigenous folks, but there won’t be a huge decrease at all, in fact, no significant decrease in the numbers of Indigenous and Black prisoners serving two years or more.

In addition, most of the changes that are talked about in the drug laws have already been achieved through health policy and negotiations between provinces and municipalities.

Finally, I’d like to ask you this. You mentioned the testimony of the Canadian Bar Association, the South Asian Bar Association, the African Nova Scotian Justice Institute, PhD candidate Elspeth Kaiser-Derrick, all of whom went on to recommend that the bill go much further. Wouldn’t you agree that, in fact, in most cases, the evidence, including from Aboriginal Legal Services, from the Canadian Association of Chiefs of Police and many other witnesses at the Justice and Human Rights Committee in the House of Commons, recommended not that we shoot for the stars but, in the interim, until other mandatory minimum penalties are repealed, that judges be permitted the structured discretion to not impose mandatory minimum penalties in exceptional circumstances?

Senator Gold: Thank you for your question. The government’s position is that the research and the testimony do, in fact, support the proposition that if and when Bill C-5 is passed in this form, it will have a real impact on the overrepresentation of racialized Canadians and Indigenous Canadians who are subject to it.

It’s true that where circumstances are such that a serious prison term — that is to say, two years or more — is thought appropriate by a judge, it’s the federal system that receives the inmates. But it’s equally true, as I said in my speech, that it’s important to do things to break that all too familiar pattern of beginning in the provincial system and then, regrettably, escalating to the federal system.

We’ll study this in committee. I hope we will send it to committee for proper study, and all of these questions will, of course, be addressed. I have every confidence in the committee to address them as diligently as we do all of our work. Thank you for your question.

Hon. Renée Dupuis: Senator Gold, as the sponsor of the bill and the Government Representative in the Senate, could you provide information about the gender-based analysis plus that was done when the bill was drafted? The government requires such an analysis, and we know that a confidential document was submitted in the memorandum to cabinet. However, that is not what I am talking about; I am talking about the content of the analysis. I think that would help the committee do its work in reviewing this bill.

Senator Gold: Thank you for your question. I will find out what is out there and what can be tabled. I encourage honourable senators to pursue this line of questioning before the committee. That said, I will still look into it.

Senator Gold: Thank you for the question. I don’t know, and certainly on behalf of the government I cannot make that commitment, but I will point to a few things. First of all, an amendment introduced in the other place that is now part of Bill C-5 does require a parliamentary review. That will be one way in which we in the Senate, because we play a role in this, can monitor the impact of the bill to determine what improvements might be made or an expansion, if that’s the direction that the evidence leads us to.

The other point is a more political one, and I made it in my remarks, which is that not unlike medical assistance in dying, not unlike the legalization of cannabis, in a democratic society, a government can and does lead. Sometimes courts lead, to be sure, but sometimes governments lead, as we did in the legalization of cannabis. I think the point was made by our colleague in another context that when the issue of legalizing cannabis was first introduced, I’m not sure this chamber was altogether on board. However, with time, study, discussion, sober and reasoned non-ideological — in the worst sense of ideology — discussion we brought ourselves to a point where we could and did take a major step, and Canadians are and have followed us.

Similarly, I think the government is of the view that it is doing the right thing now in terms of what Canada is ready for, and I believe that this government will always be open to continuing to try to improve the system. However, at this juncture, it’s the government’s view that this is an important and major contribution towards equity and fairness in our system. I don’t want us to get ahead of ourselves. I want to pass this and get it to committee. I want it to get out of committee and have third reading debate. And if it does pass third reading, which I hope it will, then there will be opportunities through the parliamentary review process and the political process to see what more can be done, if that is warranted.

Senator Gold: Senator Pate, I’m not sure I actually agree with, if I understood correctly, your question. There are clearly people who want this bill to go further. There are those who deplore that it is taking any steps whatsoever, and we will hear that debate both in committee and beyond.

There have been many challenges to many mandatory minimums, and the courts have upheld some and struck down others. Many are currently before the courts as well.

With respect, I don’t think that calling this a patchwork approach does justice to the thought that went into it. It focused on those 20 offences that represent the great majority — that’s the government’s understanding — of the impact of mandatory minimums on the lives of those who were subject to the criminal justice system and those I mentioned, notably drug and long gun offences, where the impact is disproportionately felt by members of the Indigenous and racialized communities.

Finally, I don’t think that we know that this is the last chance or the only chance. The legislative process is an iterative one in a democracy. This government has presented this major step forward. It is too much for some and too little for others. That doesn’t make it right just because it’s sort of like the story of Goldilocks and the Three Bears, but the government is of the view that it is a responsible and appropriate response to a real social problem and, if passed, will make a real difference.

Senator Gold: Senator Pate, I don’t think that in my speech and my defence of the principles of this bill did I rely upon the views of Canadians or public opinion. I’m talking about the number of offences for which the majority of persons are sentenced and committed by virtue of mandatory minimums. That was the data that I was referring to.

The government, like all democratic governments and certainly our democratically elected government, must and should be responsive to public opinion, but it also has a responsibility to do what it believes is the right thing in the circumstances. We do not pass laws by referendum but through the processes in which we are engaged now. Again, it’s the position of the government that the scope of this bill is supported by the evidence. It’s supported by the facts on the ground and, if passed, it will make a difference on the ground.

Senator Pate: I apologize. I obviously didn’t articulate that very well, Senator Gold. What I was saying is that if that evidence existed to show that these mandatory minimum penalties would significantly impact the incarceration rates, that data would have been produced and would have been part of your speech. I don’t envy your position of having to defend that, but it would have been. There have been numerous questions and certainly there is an abundance of evidence that the data has not been produced. You have not been able to provide the actual numbers. Have I missed something?

Senator Gold: I understand your question. I have presented to the best of my ability the reasons for which the government believes that this is an appropriate bill to be debated and, of course, passed. The government is relying upon the evidence of the kinds of offences for which mandatory minimum penalties are required under the current law, the consequences to Canadians who are subject to these mandatory minimums and the overrepresentation of those Canadians, whether Indigenous or other racialized communities, as a result. These questions and the questions about whether forecasts have been done as to what the possible impact will be, all that, as I said, I have answered. I don’t know whether forecasts were done in that regard, and that’s why I undertook and encouraged it to be a subject of study in committee.

It remains legitimate for a government to legislate based upon the state of knowledge and information that it has, what we call legislative facts. In that regard, the government has a set of legislative facts upon which it has relied, and Bill C-5 is a product of that. That’s why it has been supported in principle by organizations that represent those who are the most intimately affected by the mandatory minimum penalty provisions in the Criminal Code.

[Translation]

Hon. Marc Gold (Government Representative in the Senate) moved third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, as amended.

He said: I rise to begin debate at third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016. This is legislation intended to update the way personal digital devices are dealt with at the border, following court decisions on this point, first, in Alberta and, more recently, in Ontario.

[Translation]

To begin, I want to thank Senator Boniface for her work as the sponsor of this bill, Senator Wells for his contribution as the critic, and all senators, especially those who sit on the Standing Senate Committee on National Security and Defence, for their efforts and their commitment. In this bill, as is often the case in democratic countries, we are dealing with issues that seem divergent, such as fundamental rights, including the right to privacy and the protection of our security. In this case, it is about protecting the safety and privacy of children who are victims of sexual predators, as well as the ability of border officers to detect and stop people who are trying to bring child pornography into Canada on computers and cell phones.

[English]

I’m sure we all appreciate the challenge this presents to us as legislators. Certainly, people of goodwill and good faith can disagree about how best to strike this balance. Indeed, there has been a disagreement about what the legal threshold should be to allow border officers to examine a digital device. As originally drafted by the government, the bill proposed a threshold of “reasonable general concern.” Last week, we adopted on division a report from the National Security Committee that changed it to “reasonable grounds to suspect.” Colleagues, let me take a moment to remind honourable senators of a bit of background and the government’s rationale for the “reasonable general concern” threshold.

[Translation]

First, it should be noted that we currently do not have a legal threshold for examining personal digital devices at the border. Bill S-7 would never have given new powers to the border officers. Both the initial version and the current amended version would restrict the power to examine digital devices. The debate was never on the scope of that restriction.

[English]

By restricting this authority at all, Canada would be joining New Zealand as two of the only countries in the world whose laws don’t give border officers carte blanche to search personal digital devices. Laws in the U.S., the U.K. and Australia all allow no-threshold searches, as does Canadian law, at least for the time being.

Our Customs Act was drafted well before cellphones and laptops existed, so it naturally makes no mention of them. It says simply that any goods being brought into Canada can be examined by border officers, in keeping with the long-standing principle that the expectation of privacy is lower at the border than in most other contexts. For many years, Canada Border Services Agency, or CBSA, treated digital devices as goods like any other, and there were court rulings that endorsed that approach.

In 2012, however, acknowledging the changing nature of phones and computers in the 21st century, CBSA instituted its first internal policy about the examination of personal digital devices. This policy carved out digital devices as a special category of goods, even though the law didn’t require it. The policy was then strengthened in 2015.

Under the 2015 policy, border officers can only examine a personal digital device if there is “. . . a multiplicity of indicators that evidence of contraventions may be found. . . .” The policy also directs officers to “. . . disable wireless and Internet connectivity . . .” before conducting an examination and to “. . . only examine what is stored within the device.” In addition, officers are instructed to take notes of the indicators that led to the search, as well as the areas of the device that are accessed during the search and why. This policy was slightly amended in 2019, but its essence remains in place to this day.

In other words, CBSA already has considerable guardrails around the examination of digital devices, and, colleagues, these examinations are rare. In 2021, for example, less than 0.01% of travellers had their devices searched. Nonetheless, the Alberta Court of Appeal ruled in a case called Canfield in 2020 that merely having an internal policy was insufficient and that personal digital devices must be treated differently in law.

There are a few points worth highlighting about that decision. First, this was not a case of officer misconduct. Child pornography was indeed found during the examination, and the court agreed that the officer’s decision to conduct the search was reasonable and supported by objective facts that could be articulated. Second, the events took place in 2014, before CBSA strengthened its policy regarding digital devices in 2015. Third, the court was silent about the merits of CBSA’s policy, saying only that there needed to be some threshold in law. Finally, the court was explicit that a threshold lower than “reasonable grounds to suspect” might be appropriate. The court noted that “reasonable grounds to suspect” is the threshold used in the Customs Act for strip searches and that the search of a digital device is comparatively less intrusive.

According to the court:

. . . in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

[Translation]

The government agrees, so it developed a new threshold consistent with the court’s reasoning. The “reasonable general concern” threshold is lower than “reasonable grounds to suspect” but higher than the current absence of any threshold whatsoever in the Customs Act. Contrary to assertions that “reasonable general concern” is vague and meaningless, the Minister of Public Safety and CBSA representatives clearly explained to the committee why this expression was chosen and how it is meant to be applied.

[English]

As the minister said, “. . . the term “reasonable” means that the noted factual indications of non-compliance need to be objective and verifiable.” This is, indeed, the way reasonableness is understood in law. In various contexts at the border and elsewhere, when courts consider concepts like “reasonable grounds to suspect” and “reasonable grounds to believe,” they’re not merely looking for any grounds for suspicion or belief that an officer may dream up. They’re looking for reasonable grounds, something that can be articulated and something that can be verified that would lead to belief, suspicion or concern, as the case may be, on the part of a reasonable person.

The minister went to on to explain that:

. . . the term “general” intends to distinguish it from higher thresholds that may require officers to identify specific contraventions before beginning the exam.

In other words, a police officer conducting a search as part of a criminal investigation has more time and capacity to collect information in advance, and we can, therefore, demand that the officer be relatively precise about what offence they suspect and what evidence they expect to find. By contrast, officers at the border have very little information about a traveller and little time or capacity to collect any, so we can’t expect them to be quite as specific. In the government’s view, it should be enough that there are objective indicators that the traveller is hiding something, even if the officer cannot pinpoint exactly what.

Finally, as the minister told the committee, the reason for using “concern” rather than “suspicion” was to establish the proposed standard as distinct, because the context is distinct. If there is a spectrum of certainty with belief, with “reasonable grounds to believe” at the high end and “suspicion” somewhere below that, “concern” would fall somewhere below suspicion. In the government’s view, this would be appropriate given the lower expectation of privacy at the border and given the recognition by the Alberta Court of Appeal that it may be appropriate to have a lower standard to search someone’s phone than to make them take off their clothes and examine their body.

[Translation]

At report stage, Senator Dalphond emphasized that the Customs Act uses the expression “reasonable grounds to suspect” in contexts other than strip searches. This is a valid argument that deserves a thoughtful response. In the government’s opinion, there are certain essential differences between the examination of personal digital devices at a point of entry and other uses of the “reasonable grounds to suspect” threshold set out in the Customs Act.

[English]

For example, subsections 99(1)(b) and (c.1) say officers need reasonable grounds to suspect to open mail, but officers can do a whole lot of examining of an envelope or a package without meeting that standard. They can examine the outside of it to see where it’s from and where it’s going. They can weigh it. They can scan the exterior for traces of organic matter like drugs, and they can even X-ray it to get a better sense of what’s inside. All of this can be done while meeting no threshold whatsoever, and these procedures help officers glean information to potentially develop reasonable grounds to suspect.

By contrast, you can’t X-ray a cellphone to better understand its contents or look at its exterior to see who has been sending messages to whom. In practice, “reasonable grounds to suspect” is a higher bar to clear for digital devices than for mail.

Subsections 99(1)(d) and (d.1) require reasonable grounds to suspect to re-examine goods to verify potential errors in the determination of tariffs or place of origin, but these are re‑examinations. The initial examination is done with a no-threshold authority. It’s only if an officer wants to go back and double-check that they need to meet the higher standard.

Subsections 99(1)(e) and (f) impose a standard of reasonable grounds to suspect on examination of goods and conveyances, but, crucially, these subsections apply beyond the immediate context of a border crossing. For instance, if a person has gone through customs, and then an officer sees them down the hall unwrapping a package from under their shirt, the officer would need reasonable grounds to suspect to conduct an examination. Or if an officer sees a suspicious truck emerging from the woods near a border crossing, they would need reasonable grounds to suspect to search it.

At a port of entry, though, where it is well understood and accepted that there is a lower expectation of privacy, goods — as defined in section 2 of the act to include conveyances — can be examined with no threshold, pursuant to subsection 99(1)(a).

Colleagues, all of this is to say that there are important differences between the examination of personal digital devices at a port of entry and in other contexts in which reasonable grounds to suspect is used in the Customs Act. Ultimately, the government proposed the standard of “reasonable general concern” in order to require a level of certainty lower than suspicion but still based on objective indicators that can be articulated and verified.

Plus, if and when section 7 is enacted, it will be accompanied by regulations establishing the details of how digital device examinations are to be conducted. The draft regulations were shared with the National Security Committee and include elements of the existing policy, such as the requirements to disable connectivity and take notes. Nevertheless, the National Security Committee studied the matter, heard testimony and chose to replace “reasonable general concern” with “reasonable grounds to suspect.” I totally understand the appeal of using a standard that already exists and, therefore, has a body of jurisprudence to back it up.

At the same time, colleagues, the government does worry that the “reasonable grounds to suspect” threshold may unduly limit the ability of border officers to interdict illegal activity and detect contraband, including material depicting the exploitation of children. This concern was voiced at committee by Monique St. Germain of the Canadian Centre for Child Protection, who said:

I’m just not sure whether the rising of reasonable grounds of suspicion in this context is going to enable border control officers to do what they need to do to protect children at the border.

We can get a bit of an early sense of the possible implications of this standard by looking at CBSA’s data from last month. The court rulings in Alberta and Ontario took effect at the end of April, and that has had the practical impact of applying the reasonable grounds to suspect threshold by default in those jurisdictions.

As Senator Boniface noted last week, in May 2021, between both provinces, CBSA processed some 600,000 travellers, examined 63 devices and found 17 contraventions. This past May, the volume of travellers quadrupled due to relaxed COVID restrictions, but the number of device examinations dropped to 18 and only 4 contraventions were found.

We can’t know how many contraventions went undetected. It’s a small sample size so far, and it’s possible May 2022 was a light month. These numbers should give us pause. Some of the contraventions CBSA finds relate to immigration violations or undeclared goods, but many relate, as I said, to the sexual exploitation of children. There are, unfortunately, Canadians who travel abroad, abuse vulnerable children and return with macabre souvenirs in the form of photos and videos. I’m sure we all want our border officers to have the legal tools to detect and deter that kind of activity.

Now, assuming that we adopt Bill S-7 at third reading, it will be up to our colleagues in the other place to conduct further study. I expect they’ll examine many of the issues that have come up during our analysis of this legislation, and they may have the benefit of a larger sample size of CBSA data to better understand how the “reasonable grounds to suspect” threshold in Alberta and Ontario impacts operations. I’m sure they will also analyze the other amendments made by the Senate. One of these incorporates the requirement to disable network connectivity in law rather than — or perhaps in addition to — in regulation.

Now, as a practical matter, this is certainly an objective the government shares, although there was a discussion at committee about the particulars of the wording and whether, given the speed of technological change, leaving this in regulation may be a nimbler approach.

The other amendment is a regulation-making authority related to the protection of solicitor-client privilege. Again, the government shares the objective, and I look forward to the committee in the other place hearing from some of the same witnesses our committee heard from, including, for instance, the Canadian Bar Association, about this amendment.

Finally, colleagues, a word on the matter of witnesses. It has been mentioned correctly that with the notable exception of the Canadian Centre for Child Protection, most testimony at committee supported the “reasonable grounds to suspect” standard. The witnesses were certainly very eminent individuals, like representatives of the Office of the Privacy Commissioner and the Canadian Civil Liberties Association, who need to be heard on legislation such as this.

At the same time, I would note that it’s much easier to hear testimony in Senate committees from Canadian law professors than from young children or other individuals whose names we don’t know and whose voices we will never likely hear.

I don’t for a moment, colleagues, minimize the important input of witnesses from law faculties and civil society — far from it. It is worth keeping in mind that when the bulk of testimony is of a single opinion, that may sometimes be because people with different views or interests face obstacles that prevent them from sharing their thoughts with us.

[Translation]

I hope that, in our analysis of this bill, we have done our best to put ourselves in the shoes of others, such as people of colour, Muslims and members of Indigenous peoples who are concerned about prejudice and unjust treatment at the border. Senator Jaffer and Senator Yussuff expressed those concerns eloquently in committee, just as Senator Ataullahjan, Senator McCallum and Senator Omidvar did here in this chamber.

I hope we have also tried to put ourselves in the shoes of the vulnerable children in brothels, alleys and hotel rooms halfway around the world who have never heard of Bill S-7 and do not know what the CBSA is but will be affected by our choices.

[English]

As I said at the outset, this legislation calls upon us to engage in a difficult balancing of interests and considerations with serious real-world consequences and valid competing concerns.

Colleagues, you have my thanks for the conscientious and careful study that the committee undertook on this important bill. Thank you for your kind attention.

Senator Gold: Thank you for the question and for the opportunity to clarify my intention and clear up what may be my infelicitous language.

I will repeat that I was at pains to respect the work of the committee and the input of the witnesses who were called. What I was trying to say in the passage to which you referred, and I was talking about the exploitation of children, was that the victims who were exploited, whether in countries far away, don’t have the opportunity to speak.

Senator Jaffer and colleagues, I chose my words carefully. I’ve laid out the government’s reason for why it chose the standard that it did and I’ve made the case as best as I could — as Senator Boniface did, even more eloquently than I — so that the record reflects the government’s rationale for doing this.

I respect the work of the committee and I will respect the decision of the Senate when we get to third reading. You will note that I said nothing about — my words speak for themselves. I wanted to put on the record the government’s position. The government continues to believe that a lower standard is justifiable and constitutional, but it also respects contrary opinions — whether of witnesses and certainly of the committee. When we proceed to third-reading vote later this week, as I understand we will, I will be satisfied, as the Government Representative, that the Senate has done its job. Whatever the results of that third-reading vote, I expect that our work will be taken seriously in the other place, as it should be.

Senator Gold: Thank you for your question. I believe a personal laptop would be considered a good under the definition in the act. Intellectual property typically deals with something that is less tangible, so I’m not sure that it would fall within that definition.

Senator Gold: Thank you for the question. The issues of racial profiling and bias figured in the committee’s deliberations, and properly so. It would be wrong and foolish if we did not acknowledge that this happens.

Having said that, we’re not talking about random searches of digital devices. In Bill S-7, there need to be objective criteria before the legal threshold, whether it’s a threshold of reasonable grounds to suspect or reasonable concern. Both do not simply allow border officials to act randomly. We can disagree. Obviously, the committee was of the view that the somewhat higher standard was more appropriate. I respect that decision, but it still remains the case that even with a general concern standard, it is not simply at the whim of a border officer — while acknowledging that conscious and perhaps unconscious racial profiling and bias occurs, as I said before. We would be foolish to deny that. There is some reassurance in the statistics that even with no legal threshold whatsoever, digital device examinations are incredibly infrequent. I cited the examples of 0.01% are searched. For example, not only are they infrequent but they uncover contraventions at a much higher rate than other types of examinations.

Let me give you an example. In 2021, 27% of digital device searches — again, representing a small number of incidents — resulted in the discovery of a contravention. That’s 27% of the time there was a contravention as opposed to 4% for other searches at the border. That indicates that border officials are doing a reasonably good job using the objective criteria and indicators to zero in on situations where it is truly appropriate to search a digital device.

Again, let me quote from testimony of the Canada Border Services Agency official Scott Millar at the committee:

. . . not only is racism illegal and against our values, but it’s also operationally — if I may be frank — stupid. It does not help us get the kinds of results and rates that we’re talking about here. . . .

I hope that answers your question.

Senator Gold: Again, in my response I acknowledged the reality of this, senator. The government is not burying its head in the sand. I know that concerns were expressed at the committee about the extent, or the lack of extent, of training in these matters for officials. I am also aware that the Canada Border Services Agency provided the committee some follow-up information with more detail about the nature of its training, which included two hours on diversity and race relations and an hour specifically on preventing unconscious bias, which we know is a problem. We are conscious that it is a problem. One and a half hours were spent on processing Indigenous travellers and two hours on Gender-based Analysis Plus. And more training is coming.

The fact remains, honourable senators, that the bill is addressing the criterion, the legal threshold and related issues around searching of digital devices. It is not an open invitation for random searches at a whim. That would be so whether it is “reasonable grounds to suspect,” “reasonable concern” or any other legal standard. The possibility that unconscious or conscious bias will creep into that decision making is a real one, which we need to address in all respects. Strictly speaking, it is an important but separate issue from the legal threshold before which a search of a digital device can be undertaken by an officer.

Senator Ataullahjan: I do. Senator Gold, biases exist. I think back to the day when my mother-in-law, who happened to be one of the first female doctors of the Indian subcontinent, came to visit and, because she was in traditional clothes, one of the guards said, “Oh, dear. I wonder if she can speak English,” to which she retorted, “And how!”

An American Civil Liberties Union report showed that 96% of individuals apprehended by American border guards were identified as being of a racialized background. Three customs and border protection officials filed a lawsuit against the agency alleging they were required to profile racialized persons. As The Washington Post stated, “Driving while Brown or Black is a key reason for being stopped by the Border Patrol. . . .”

Why is our government extending greater search authorities to an organization already known to indiscriminately target racialized persons? That is my last question to you, Senator Gold.

Senator Gold: Let me try to address your questions. You are raising an important issue. Please understand that nothing that I’m going to say in my answer is meant to diminish the importance of the issue that you raise.

The issue before us in Bill S-7 is simply this. Until Bill S-7 is passed, there is no restriction whatsoever on a border officer’s authority or ability to search a digital device. Again, I repeat, these represent a tiny fraction of the searches of persons who cross borders. Right now, there is no limit in law. There have been limits in policy, as we know. The court said we’re not saying that your policy is wrong, but it’s not prescribed by law. We have a guarantee of a reasonable expectation of privacy protected by our Charter. You can only limit that reasonable expectation of privacy or, indeed, any right if it is a reasonable limit prescribed by law.

The government introduced the bill to put in place, for the first time, a legal threshold with which officers must comply — and make Canada only one of two countries with such a threshold. Is it the right threshold? The government thought it was; the committee thought otherwise. I have no reason to assume that the chamber as a whole will not agree with the committee. The work of the committee, which was diligent, is to be respected. I’m putting on the record the government’s contrary position, which we did at committee. That’s my responsibility to do and I do it proudly.

Any legal standard — it could be “reasonable grounds to know” — can be misused by someone, either consciously or unconsciously, seeking to target a racialized group or member of a religious minority. There are many things we can do through training, education and holding those individuals to account to try to address this issue, which is a real one.

Bill S-7 is introducing a legal threshold where none existed before. The issue is really to find the right threshold to impose to protect our privacy.

All the other issues that you raised are really fundamental and important. They speak to the justice of how we implement our laws in this society, not simply digital devices, but driving and in every aspect, whether it’s going shopping and being trailed in stores. We’ve heard stories of our colleagues who have been subject to that. Nothing that I am saying is minimizing that at all.

Strictly speaking, whether the threshold is here or there is a separate question from whether or not it will be applied in a fair, reasonable and non-discriminatory manner, as it should be, and as we hope it will be.

Senator Gold: Thank you for the question. I think the institution of proper oversight on CBSA is long overdue. It’s part of the mandate letter of the minister. It is something that the government has hoped to pursue.

In a minority Parliament, which has been characterized, most charitably, as a lot of horse trading and, perhaps more accurately and less charitably, a fair degree of obstruction, it has not been possible for every bill — important though they are — to make its way fast enough through the legislative process, including the government’s own priority setting, to be frank.

I think and I hope — and I know it’s the government’s hope — that a bill establishing proper oversight of CBSA will be introduced and debated and ultimately become law, because it is a missing piece that is critically important to more fully make CBSA properly accountable. Alas, we’re not there yet. I do hope that it’s coming.