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 Pate: Thank you, Senator Simons, for sparking another question from me. In discussions with the government, it was clear that the primary focus for this legislation was to address mandatory minimum penalties, which was in the 2015 election platform, as you know, as well as in the Calls for Justice of the National Inquiry into Missing and Murdered Indigenous Women and Girls and the Calls to Action of the Truth and Reconciliation Commission. It has been clearly laid out that this is only a step forward, even though there is a patchwork of mandatory minimum penalties; and, unlike the medical assistance in dying, where our most recent debates were sparked by 1 lower court decision, we have more than 43 court decisions, and counting, that have struck down mandatory minimum penalties.

Would it be too far for me to go to say that it has been brought to my attention that this is likely the only opportunity and there are many people, both within the government and outside, who want to see us push on this piece of legislation to actually help it achieve the aim that the government has ascribed to it?

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?

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.

Senator Omidvar: Senator Gold, in other words, until that bill is called into life, for Canadians who feel they have been unfairly targeted, their only recourse is to make a complaint to the CBSA, which will be handled internally by the CBSA. Is that correct?

Hon. David M. Wells: Honourable senators, I rise today to speak on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

I want to begin by thanking Senator Gold for his speech, Senator Boniface as the sponsor and, of course, the members of the Standing Senate Committee on National Security and Defence for its work during the study of this bill. Finally, I want to thank Senator Smith for kindly giving me his seat on the committee for the duration of the study of this bill.

When I first addressed this bill at second reading last month, I noted my surprise that this bill had arrived so late for our consideration. The bill is important in that it will govern how personal digital devices are examined at our borders.

As we all know, many personal digital devices can carry the life history of any traveller, so the legal framework surrounding these examinations is very important. Canadians’ digital devices contain a multitude of personal information including, but not limited to, health records, financial documents, confidential correspondence, family photos, calendars and detailed schedules, shopping lists, the individual’s geolocation record and much more.

The legal framework must be carefully defined as it impacts the privacy rights of every Canadian, rights guaranteed under the Charter of Rights and Freedoms.

Digital devices contain more information about a person than we have ever seen in human history and, consequently, it is worthy of a higher constitutional protection. Therefore, colleagues, we need to be sure that the legal framework governing the examination of personal digital devices is also sufficiently robust to protect our borders and to stop criminal activity such as the importation of child pornography.

Getting this balance right was incorporated in the guidance that the Alberta Court of Appeal provided when it rendered its decision in R. v Canfield. In that decision, the court stated:

We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process. It will be up to Parliament, should it choose to do so, to devise a new approach that imposes reasonable limits on the ability to conduct such searches at the border.

As the court confirmed, this balance is at the crux of this matter.

What concerns me is that even though the court ruled on this issue in October 2020, the government has, in the interim, completely failed to create a policy environment where the best solution could be discussed and adopted.

The government put forth the bill that we have before us just a few short weeks ago. Prior to that time, there was no active engagement by government officials with any outside parties. There was no indication of what they were contemplating. Instead, we had a bill dropped on the Senate with a demand that it be passed as quickly as possible. And you’ll recall, colleagues, that it was introduced in the Senate on the day the extension expired.

The fact is the Alberta Court of Appeal rendered its decision striking down provisions in subsection 99(1)(a) of the Customs Act in October of 2020. It provided the government with 18 months to revise the law — 12 months initially, followed by a 6‑month extension, as I noted.

This was the period in which the government should have actively engaged with Parliament; with outside legal experts; with civil liberties groups; with those concerned about the inflow of child pornography; with the border officers’ union; with police groups — and, colleagues, with citizens, the very same citizens whose rights and freedoms may now be violated.

Legal witnesses at committee from civil liberties groups, the Canadian Bar Association and from the Office of the Privacy Commissioner confirmed that they were never consulted as to their views about how the balance between protection and privacy at our border should be established. These organizations clearly have views. Some very learned legal minds have thought about it, considered it and discussed these issues for a considerable period of time.

However, colleagues, the government simply never consulted with them. What the government did was take the 18 months they were given and engage in an internal process, the principal result of which was to simply try to codify the current policies and practices of CBSA into law, and we know from our deliberations that the CBSA doesn’t even follow its existing policy.

While we have no explanation from the government about why it took them 18 months to get this bill before us, we are now confronted with significant implications arising from this delay. For instance, we clearly have a gap in the application of the law in the provinces of Alberta and Ontario. In those jurisdictions, the provisions of paragraph 99(1)(a) are no longer in effect, and the remedy the government seeks will, in all likelihood, drag on for years, as we were told in witness testimony. In those provinces, by the minister’s own admission, examinations by border officers of personal digital devices are down 60%.

That may be a matter of significant concern. It may well be that a loophole for criminal activity has been created. It may be that criminal organizations and individual criminals are taking advantage of this gap in the law, or it may be that what the minister is suggesting is actually overstated. We know that the vast majority of illegal digital material comes in via the World Wide Web, the cloud or inaccessible attachments on remote email servers.

Do fewer examinations necessarily equate to an opportunity for criminals? We have little clarity on this point, partly because the government has provided us with no details and no in-depth evidence or analysis.

Nonetheless colleagues, despite four committee meetings on this bill, I still cannot be fully certain about the varied potential implications.

This is all the more troubling because the government is seeking to introduce a new and unproven legal concept through Bill S-7 — one that is very likely to be challenged and will result in long delays before any bill to cover it becomes law that holds.

As I noted in proposing Bill S-7, the government has essentially taken the existing CBSA policies and practices for examining personal digital devices and has simply attempted to codify those practices into law. However, in doing so, it proposed to introduce the new legal concept of “reasonable general concern.” We have been provided with vague information about how that new legal threshold of “reasonable general concern” would actively function and about how it would be triggered. We have been told, for instance, that it could be triggered by several indicators, and we have been told that it could be triggered by one specific indicator in certain circumstances. We were told it could even be triggered simply based upon the country of original departure.

Those several indicators, or one specific indicator, or no legitimate indicator at all, might easily be different for different CBSA officers, no matter how well they may be trained.

Those several indicators, or one specific indicator, might be different again for U.S. pre-clearance officers. U.S. pre-clearance officers are trained in a different organizational culture. Their last posting may have been on the Mexico-U.S. border. It is understandable that they may see the concept of “reasonable general concern” very differently from their Canadian counterparts.

When the minister appeared before our committee, he told us that were a higher threshold, such as the well-known and court-tested “reasonable grounds to suspect,” imposed at the border, it would “. . . compromise border integrity. . . .” He said there was no question that this was the case, yet he gave no evidence to support this assertion.

As Michael Nesbitt of the Faculty of Law at the University of Calgary put it in committee:

. . . border officers will rightly almost always be generally concerned, with good reason, that something, somehow, is being illegally brought into the country. But the court in Canfield was clear that there must be some standard, which they called a threshold requirement. . . .

Colleagues, “reasonable general concern” is no threshold.

Other witnesses who appeared before our committee, including those from the Office of the Privacy Commissioner, noted that the privacy rights impacted by the examination of a personal digital device should attract a much higher level of protection than simply an ill-defined “reasonable general concern.”

Benjamin Goold, Professor at the University of British Columbia, explained that requiring “reasonable grounds to suspect” as opposed to “reasonable general concern” before a search is undertaken strikes an appropriate balance between the competing interests identified in the report and subsequently by the courts in Canfield and Townsend.

The concept of “reasonable grounds for concern” is untested in our courts as a legal threshold, and introducing this concept would, without a doubt, introduce prolonged legal uncertainty at the border. This was echoed by a number of our expert witnesses, including various civil liberties associations and the Canadian Bar Association.

Brenda McPhail, Director, Privacy, Technology and Surveillance Program of the Canadian Civil Liberties Association, was very clear in noting that her association would strongly support any legal challenge to this proposed provision in the bill.

Similarly, David Fraser, Member, National Privacy and Access Law Section of the Canadian Bar Association, told our committee that the introduction of “reasonable general concern” would increase legal uncertainty. He noted that within five years, Parliament would inevitably revisit this matter given the likelihood of a successful legal challenge.

While the mere fact that legal challenges are possible does not mean the government cannot propose a particular measure for enactment into law, if it chooses to do so it must then provide clear explanations and supporting information about why it chooses to do that. There is little evidence that the government has taken any of these issues seriously. In testimony, the CBSA became a star witness against themselves. Bill S-7 is their policy document, which they don’t even follow fully, that they’d like turned into law. Colleagues, it took the government 18 months to develop that strategy.

Witness after witness told us they were not consulted on either the bill or on the legal concepts contained within it. David Fraser of the Canadian Bar Association confirmed that nobody from within government approached them, despite the considerable legal work they have done on this very issue. Mr. Fraser fully acknowledged that perhaps a new legal concept below the threshold of “reasonable grounds to suspect” might be justified in the border context. He stated that the courts might very well be open to new concepts. However, those concepts then require a better explanation as well as a fulsome discussion. None of that happened.

For the most part, we heard that the concept of “reasonable general concern” would not stand up to a Charter challenge. Benjamin Goold stated about the current standard:

I think if it ends up in the Supreme Court, based on everything we’ve seen around the jurisprudence on section 7, it would fail, because I don’t think it’s sufficiently onerous in terms of protecting the rights of individuals.

The concept of “reasonable general concern,” without that broader discussion and explanation, has completely undermined the government’s efforts. This approach left the Senate committee with no choice but to try to improve the bill based on witness testimony. That is why the Standing Senate Committee on National Security and Defence chose to accept Senator Jaffer’s amendment to substitute the phrase “reasonable general concern” for “reasonable grounds to suspect” when it comes to the examination of personal digital devices.

As numerous senators pointed out in their comments at committee, not a single independent expert witness came before the committee to express support for the government’s proposal to institute a standard of “reasonable general concern” for the examination of personal digital devices.

Our colleague Senator Dalphond provided very eloquent support for Senator Jaffer’s amendment and was, in fact, ready to move the same amendment had Senator Jaffer not moved hers. Senator Dalphond noted that the standard of “reasonable grounds to suspect” was a very well understood legal concept and was one that is necessary to protect the scope of privacy rights that are impacted as a result of the examination of personal digital devices.

Our colleague Senator Dalphond also put forth another important amendment that underlines a critical question with regard to solicitor-client relationships that should extend to other professional relationships. The question of protected professional communications is legitimate and should be dealt with by a stronger mechanism than the internal policy that CBSA currently has and was written into the original bill — or, more correctly, not addressed in the original bill at all, indicating no restriction whatsoever.

This amendment correctly highlighted the significance of ensuring CBSA officers clearly know how they must conduct searches at the border when the protection of privileged information, which could be in the context of solicitor-client privilege or any professional privacy for any professionals, comes into play.

The concerns of senators related to the protection of privacy rights is also why the National Security and Defence Committee looked favourably upon my amendment that requires CBSA officers examining personal digital devices to ensure that such devices are only examined in non-connectivity mode if referred for secondary screening.

Senators, the amendment I proposed at committee sought to further protect Canadians by ensuring that the CBSA officer, or pre-clearance officer, prior to examining a personal digital device, informs a traveller subject to such an examination that the traveller has the right to ensure that the device in question is examined only in non-connectivity mode.

Colleagues, you will remember from my speech at second reading that this happened to me, and I was given no such advice, and my bank records were comfortably searched by the CBSA officer.

This amendment is to protect Canadians by ensuring they are informed of that right. The amendment does not change the CBSA current policy or their ability to search a device.

Therefore, my amendment makes disabling a stated precondition to any search. Colleagues, the necessity of Canadians to know their rights is embodied in my amendment.

I believe that the bill we now have before us — as amended — is at least better structured to provide the appropriate balance required by our legal system. That said, I do remain concerned that gaps in our border security will still exist.

Other important factors that were brought to light at committee were the concerns over racial profiling. As Lex Gill, Research Fellow, Citizen Lab at the Munk School of Global Affairs, said in committee:

My colleagues’ concerns about racial and religious profiling also bear repeating. The border is a high-stress, low-information, low-visibility environment. It is a perfect storm for the combination of implicit bias and abuse of discretion that gives rise to discriminatory effects. . . . People crossing the border have the right to not suffer invasive and unconstitutional treatment in the first place.

Colleagues, Bill S-7 is potentially generating a situation whereby indicators that fall short of reasonable suspicion will be used to essentially intrude on an individual’s Charter rights. That is akin to racial profiling.

I am in agreement with our colleague Senator Yussuff, who said in committee that the low threshold means that any factors such as skin colour, name, the fact that they are nervous or sweaty can be considered, and that this will undoubtedly lead to abuses.

The fact is that in a situation where there are highly discretionary and loosely defined powers combined with the existence of implicit racial and unconscious biases, abuse and discriminatory effects are sure to occur.

Ms. Gill continued this thread by saying:

The border is a context where the situation is often rapidly evolving, where people are acting with low information in a high-stress context. That’s exactly the kind of scenario that brings out those kinds of implicit assumptions, stereotypes and prejudices that people may not even know they have.

Colleagues, we have learned, and the courts have told us, that entrenching operational matters into CBSA policy is simply not good enough and does not have the force of law. I believe that we should not address these operational considerations in the regulations, as there are concrete reasons as to why this should not be the path we take.

Essentially, colleagues, the prudent and correct way to proceed would be to have the framework set out in law, debated and democratically approved. To do otherwise would be leaving every Canadian’s constitutional right to privacy to a discretionary approach that we find in the regulatory-making system.

Worth noting is that the government included in this bill a section that lowers fines associated with interfering with a border officer. There is no explanation for this provision, which seems to run completely at cross-purposes with the government’s supposed objective of ensuring that border officers are able to carry out their mandates effectively.

The government clearly did not make any effort to construct a holistic approach on this issue. I think it is vital that the government at least try to do that now as this bill makes its way through to the other place.

We require a legal regime at the border that empowers border officers to tackle a very specific problem without infringing unnecessarily on the broader privacy rights of citizens. It is up to us as legislators to closely monitor whether the government actually does the work that they have been asked by the court to do.

Colleagues, as we heard many times, especially at committee, all levels of courts have been unambiguous that when it comes to searches of digital devices, it can be a significant intrusion of privacy. It does not make any sense to create a low standard — or, as I have stated, no standard — at the border, which will undoubtedly lead to Charter challenges.

How can the government justify a more invasive search on a lower standard?

Senators on the National Security and Defence Committee asked the right questions. Witnesses told us through their testimony that critical flaws reside in this bill if passed in its original version.

I hope and trust that all senators in this chamber will sustain the work undertaken by the members of the committee and those who have spoken in this chamber and convey a strong message to the government that it must do better. This bill, as amended at committee, is a strong step in that direction. Thank you.

Hon. Pierrette Ringuette: Honourable senators, I rise today to speak on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, regarding the examination of personal digital devices at the border.

Let me say from the start that I agree with the original version of Bill S-7, not the amended one that we have before us. We may agree to disagree, but I need to put forth my perspective and, later in my comments, my personal experience.

[Translation]

I am not a lawyer, but I am a good student of the school of common sense, as they say where I come from.

[English]

And that must prevail in everything. This bill is necessary in response to a court decision. In R. v. Canfield and R. v. Townsend, the Court of Appeal of Alberta ruled that currently the lack of legislation/threshold allowing the examination of personal digital devices, such as when searching one’s suitcase by the CBSA, is unconstitutional under the Charter of Rights and Freedoms.

This is because paragraph 99(1)(a) of the Customs Act imposed no limits on searching these devices. The courts did not set out a threshold for searching digital devices, but instead recognized that a lower threshold is more reasonable than what is currently in the law for goods in these circumstances, and they left it to the government to create the threshold.

Contrary to certain statements in this chamber last week, the courts did not prescribe that Parliament enact the same consistent provisions as in 99(1)(a) of the Customs Act, i.e. for goods and mail, et cetera.

I repeat that the court specified that a lower threshold would be reasonable and should be put in place by Parliament. The courts even specified that digital devices were not considered goods” as per the Customs Act. In essence, the argument that was put forth in the Senate last week contradicted the decision of the courts.

As a side note, I would also like to argue that, to some degree, there is inconsistency in our own deliberations. We agreed, not so long ago, to random, roadside alcohol testing without any threshold to protect our citizens.

In amending the original Bill S-7 from “reasonable general concern” to the threshold of “reasonable grounds to suspect,” we are not in fact meeting the intent of the court decision. We are bringing a higher threshold — in fact, a threshold that is required for a strip search. The search of your digital device is certainly not akin to a strip search.

I will also note that the threshold of “reasonable grounds to suspect” is the high threshold needed to grant a warrant to search a residence, sometimes requiring our police forces to put in weeks of data- and fact-gathering.

So with “reasonable grounds to suspect” in the amended bill, we can expect our borders to be either at a standstill — long and very long lineups — or an open border by identified criminals. To me, both options are unacceptable.

I will also stress that the courts did not identify racial profiling in the matter of searching digital devices, probably because no evidence was put forth in those two court challenges. Furthermore, the current amended Bill S-7 does absolutely nothing to address the issue of potential racism. Racism is best dealt with by education, wherever it is. And the amendment of the threshold does not address the issue of racism in this particular organization. Honestly, they are two different issues.

I will agree that it is not pleasant to be asked questions and to be referred to secondary screening. However, when one wants to leave or enter a country, whether it is yours or a foreign one, you do so voluntarily and have to respect the mandate of border officers enforcing the law of the land. Securing our borders is an important and necessary part of keeping our country and Canadians safe. The need for border security to be able to assess and, at times, inspect personal digital devices at the border is a key part of that.

I agree that there is also a need for balance between security and privacy rights. However, the security of Canadians would trump my privacy any day.

It should be noted that these searches are extremely limited, even with the lack of limitations previously set out in paragraph 99(1)(a) of the Customs Act.

According to CBSA data, from November 20, 2017, until December 31, 2021, almost four years, 0.013% of all travellers processed at the border had their devices examined. We’re making such a big fuss over 0.013%. And 37.3% resulted in the detection of a contravention, including money laundering, child pornography and undeclared goods. That’s 253,509,912 travellers, 33,373 examinations of digital devices and 12,457 contraventions detected.

The framework originally set out in this bill was reasonable, given the limited access and time agents have with travellers. There is a well-established lower expectation of privacy at the borders, whether it is ours or any other.

The novel threshold of “reasonable general concern” does not mean carte blanche to search everyone’s phones. It is limited to the specific context of border security and cannot be used outside that context. There needs to be grounds for the search and for those grounds being subject to review. Agents need to identify specific, individualized reasons with regard to the person and the device.

There are three aspects to this novel threshold: reasonable, general and concern. “Reasonable” I think we can all agree with. The indicators need to be factual and objective. This is a well‑established term in law. “General” is the main point of contention, but the courts themselves have acknowledged that a lower threshold is needed. There is not the same ability to generate specific suspicions as there is in other circumstances. “General” is a reasonable response to that fact. “Concern,” as above, is an acknowledgement of the fact that the threshold of suspicion is too high a bar for the circumstances, as it is the bar for a strip search or house search warrants.

Higher thresholds used in other circumstances would not work in this context. The agents have a very limited amount of time to interact with individuals. They are required to make quick decisions, ones that greatly affect our national security. They need tools designed for their demanding job, and the novel threshold of reasonable general concern does that. It did that. It was changed.

Overall, onerous requirements would weaken our borders and prevent our agents from doing their jobs. We were told in this chamber that border officers need to do a better job of controlling our borders. Is this amended Bill S-7 giving them better tools to do their job? I personally do not think so. CBSA agents are trained to observe and identify factors that lead to a reasonable general concern. These policies already exist internally in CBSA and would have been legislated into law by the original bill. There is also a requirement that CBSA agents take extensive notes that can be reviewed later. There was a lot of debate on this at committee, and I am personally surprised that the committee was not open to a new concept.

Before the court decision, searches were limited, as noted in the statistics from CBSA. That was with a lack of legislated threshold. This new threshold would have put existing practices into law. We are not talking about lowering a standard here; we are talking about placing practice into law.

Also, in terms of reviewing the actions of CBSA agents, the government has recently introduced legislation, Bill C-20, to create a new public complaints and review commission, replacing the Civilian Review and Complaints Commission for the RCMP, and grant it new powers to handle CBSA complaints. The bill proposes $112 million over five years and more than $19 million a year ongoing. In addition, the agencies covered by the new commission will be required to respond to interim reports within six months.

Honourable senators, I am at the point in my comments where I will reveal to you that as a student, I worked in 1982 and 1983 as a border officer. Yes, 40 years ago, when there were no digital devices. People had physical wallets, handbags and briefcases with them and on them. At secondary inspection, we would ask them to empty their wallets, handbags and briefcases. You would be amazed, truly amazed, at the real infraction events I could tell from these three containers — wallets, handbags and briefcases.

However, today, 40 years later, most of us carry digital devices.

Colleagues, may I have five more minutes?

Senator Ringuette: Thank you. However, today, most of us carry digital devices that we, and only we, choose to gather the content of our wallets, our handbags and our briefcases. It is one’s choice. You choose this device. You choose what you put on this device knowing that these devices are subject to hacking, among other things.

The only difference today is that all that information is contained in one device. I repeat, what you put on that device is your choice. But, honourable senators, a purchase receipt on your electronic device is no different than a paper receipt you carried in 1982 in your wallet. It is then and now the same information, different container. You have to realize that.

Now let me, without naming anyone, give you two different scenarios at a small border crossing in northern New Brunswick and the State of Maine. You can judge for yourself.

The first scenario: A senior gentleman arrives at that border in a big black truck, wearing military garb, shows his U.S. passport and says he is a former U.S. general — he says that to the officer. The officer asks, “Where are you from and where are you going to in Canada?” The answer is, “I’m from New York and I’m going to Montreal.” To which the officer asks, “Are you visiting family or friends in this area?” “No,” he replies. So, instantly — it’s a fraction of a second that you have to react — in the officer’s head is the question: Why would he travel all of those additional miles to go to Montreal via Maine and New Brunswick? To secondary inspection he goes and is found to have hidden in his truck a load of illegal guns that he was smuggling for the Montreal gangs.

Second scenario: A Canadian priest from northern New Brunswick arrives at that same border, re-entering Canada from a convention in the States. He had a briefcase on the passenger seat and nothing to declare, with an air of “How dare you ask me this question twice?” He was sent for secondary screening, where they found a briefcase of child porn. He was prosecuted, found guilty and jailed.

Honourable senators, in these two scenarios, being sent for secondary screening was based on a “reasonable general concern” on behalf of the officer, and I highlight that these two persons emphasized their position of authority. The law has to be applied equally to everyone, even if we carry a green passport.

In conclusion, honourable senators, I believe that this amended version of Bill S-7 will be a detriment to our border security, that it will impair border agents from doing their jobs effectively and that it will allow for more contraventions of our customs law.