Senator McCallum: Can a personal laptop be considered intellectual property, and not a good?

Some Hon. Senators: Hear, hear.

(On motion of Senator Duncan, debate adjourned.)

[English]

Hon. Peter Harder: I rise today in support Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

I do so, however, with reluctance given the substantial amendment regarding threshold of search made to the bill at committee stage and endorsed in this chamber at report stage.

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In my view, this amendment will create an unnecessary risk for the importation of obscene and dangerous material to our nation, the victimization and revictimization of children depicted in such material and an added burden on border security officials at protecting those children as well as Canadian society.

Moreover, I believe this amendment runs counter to the specific and clear intentions of a duly elected government. It is, in a sense, an overreach on our part.

As you are all aware, the bill before us creates a new and higher standard that must be met before border officials can lawfully examine personal digital devices, or PDDs, of travellers that may contain prohibited material. The need for a standard is required, given the decisions, as we’ve heard, from the Alberta and Ontario courts. The issue before us is what the proper balance should be and, in my view, who is most entitled to set it.

The case for the original unamended bill was ably made by its sponsor, Senator Boniface, in her second reading speech this past April, and further in her report stage speech last week. I agree with her that the original bill struck the right balance between safeguarding travellers’ privacy while providing border officers the needed enforcement capability to interdict prohibited goods that include child pornography and other obscene material.

Like Senator Boniface, I was also against the amendment made in committee, which raises the threshold from the original bill prescribing under what conditions a PDD can be examined. Simply put, the government believes that the new ceiling for examination which is being put forward in this amendment — which provides for a PDD examination on “reasonable grounds to suspect” rather than on a “reasonable general concern” — is too high. I share that fear.

In my view, the amendment will risk making it more difficult to interdict the importation of dangerous material, which includes child pornography, images of sexual abuse, hate literature or evidence of drug smuggling. If the government agreed with this amendment, it would have adopted it in the legislation in the first place.

A good part of the debate over this bill has centred around the need for striking a balance between the rights of privacy and the protection of Canadian society. That’s as it should be. I would add, however, that the issue of balance also needs to be considered in the context of harm done to victims. Their right to safety and not to be exploited by the recurrent circulation of harmful images ought to be part of this balance.

In her appearance before the committee, the general counsel for the Canadian Centre for Child Protection, Monique St. Germain, noted that between the years 2010 and 2020, Statistics Canada reported a 488% increase in the number of images and videos of child sexual exploitation. This is a number of deep concern. To quote Ms. St. Germain:

In the study of this bill so far, there is a lot of focus on the privacy interests of individual travellers. What has not yet been discussed is the safety, privacy and security interests of the children who are depicted in child sexual abuse material. We live in a world where this horrific material can be easily stored and hidden on a device you keep in your pocket and share to a worldwide audience via websites, encrypted apps and the dark web.

The children who are exploited in these images rely on us to protect them. When the material such as this is smuggled across the border, the children in the images have no power to stop it.

The surfeit of this type of material demands that border officials be given the maximum amount of flexibility that the law will allow. As an example, one of the individuals whose case has prompted the need for the creation of a threshold was found to have had a total of 4,411 pictures and 53 videos of child pornography on his devices. As it happens, his conviction and that of another man at the centre of this case was upheld, even though the Charter rights had been infringed.

Let me offer a couple of examples of how CBSA officers operate.

In one case conveyed to our office, a Canadian male citizen returned to Canada after a one-day trip to the Philippines, where he had been denied entry after having been placed on a sex offender registry due to a prior incident in the U.S. An examination ensued and an image of child pornography was found. The RCMP was called.

In another case, an individual arrived home from Thailand and was referred to a secondary officer due to his lengthy stay in a country known for sex tourism. The individual exhibited nervous behaviour that included stuttering, perspiration and swaying as his bag was searched. When he refused to answer questions about the contents of his digital devices, officers searched the PDDs and found images and videos depicting child pornography. Would these examinations still have been made under the amendment? If the answer is no, then it needs to be reconsidered.

It is instructive to know that, while CBSA may examine PDDs for a large variety of contraband ranging from an undervaluation of goods to messages on human trafficking, narcotics and money laundering, a full 40% of found contraband involves seizures of child pornography.

Somewhat overlooked in the debate we’ve had over this bill is its role in furthering the overall objectives of the CBSA. According to the mandate page of Public Safety Canada, one of the chief roles of the CBSA is — among others — to stop people and goods at the border that pose a potential threat to Canada. I fear that adopting a higher threshold will make it more difficult to achieve this mandate which, after all, is what this bill was intended to accomplish.

Indeed, as the CBSA is forced to use the higher threshold in Alberta and Ontario while it awaits the new law, enforcement has been affected. Both Minister Mendicino and departmental public servants testified to this at committee. It is early days, but according to CBSA vice-president Scott Millar, examinations in those two provinces have dropped approximately 60%. One could conclude from these numbers that, had the higher threshold been in place before the court cases were decided, at least some of the individuals who were previously caught would have passed through customs unexamined with their contraband intact.

The passage of the summer will give us a better understanding of whether these lower numbers reflect a pattern and whether a reduction in examination equals a corresponding reduction in the interdiction of contraband.

I would like to turn briefly now to privacy issues raised by some of our colleagues, who have argued for the amendment by saying the original bill will not pass constitutional muster, dooming it to a constitutional challenge in very short order that could take years to adjudicate. With due respect, my learned colleagues, an opinion even from our august body isn’t necessarily indicative of how the Supreme Court of Canada would rule, and we shouldn’t assume we know what the courts will say. I’m not comfortable when we put our views against the opinions of government, which relies on its own battery of constitutional expertise. I’m not a constitutional expert, so it seems wiser to me to let the courts decide while the legislators defer to the very clear intent of the government.

We may disagree with the balance that the government has struck and prefer to use a threshold that errs more on the side of privacy, but the government has overtly rejected that option by adopting a threshold that is not as stringent as the one the Senate committee wants, albeit stronger than what was in place.

The Alberta court itself said there appeared to be room for this middle approach:

. . . 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.

Colleagues, this at the very least indicates that the courts will consider something less than “reasonable suspicion” when they themselves hear arguments in the future.

I might also want to add that other amendments put forward by Senators Dalphond and Wells on solicitor-client privilege and network connectivity, as well as the government’s regulatory proposal, will in and of themselves make decisions about border interventions more rigorous. Perhaps changes such as these are what the court had in mind when leaving open the possibility that something less than “reasonable suspicion” would be acceptable.

I would also note that the original bar in this bill is higher than the level which exists in many jurisdictions with similar legal systems to our own, including the United States, Australia and the United Kingdom. The fact that the bill will almost certainly be challenged should provide some succour to those who believe it goes too far in either direction.

Nonetheless, I acknowledge our role here is made somewhat more difficult by the fact that the bill started in the Senate rather than the other place. As a chamber of sober second thought, I would prefer that bills of this import come to us after colleagues in the other place have dealt with them and made their own changes if need be. This could have guided us.

Despite my concerns, I do believe this bill needs to pass, for no less a reason than we have two competing enforcement processes being administered in our country today. This creates an inequality in law that needs to be rectified as soon as possible.

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Furthermore, the issue is one of significant concern for our relationship with the United States. It has long been a goal of our nation to pursue policies that enhance and streamline cross-border traffic. The thickening of the Canada-U.S. border is an issue that should be top of mind for all legislators. That becomes more difficult if we are seen as unable to get our act together.

I would also add that our border security is challenged daily by new digital technologies that require significant dexterity on the part of the CBSA. This bill underscores the challenges we face. It may well be time for a new and wider policy discussion on an updated security plan. The tragedy of 9/11 was a long time ago, and we haven’t had a comprehensive discussion of these issues since then.

Allow me to conclude by saying that, despite the understandable concerns expressed for privacy and the threats posed by criminal activity, like the importation of child porn, I believe our border officials conduct themselves for the most part with restraint and will continue to effectively do their jobs while we await what will hopefully be a prompt and well-considered passage of this bill. Thank you.

Senator Gold: Yes, of course.

Hon. Mary Jane McCallum: Senator Gold, would you take a question?

Senator Gold: My hearing wasn’t so good. Of course.

Senator Simons: I wish I could say one last question, but I cannot make you that promise.

Hon. Salma Ataullahjan: Senator Gold, thank you for your thoughtful and insightful speech. I have a couple of questions.

Senator Gold, multiple reports, including one by the Canadian Human Rights Commission, have found that individuals who are racialized or Indigenous are at a much greater risk of being selected for so-called random screening and extra questioning. One study found that 79% of Muslims — or their friends and family — have experienced unfair treatment. We have heard many times our colleague Senator Jaffer being very vocal about how she is regularly pulled over for random screening.

Do you worry that border guards will misuse their authority to access our phones, which contain intimate details on every aspect of our lives? In fact, our phones have become an extension of our inner lives.

Senator Jaffer: Honourable senators, I rise today to speak to Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

First, I want to thank Senator Boniface for her work in sponsoring Bill S-7 and the critic for his work as well, and also Senator Dean for doing an excellent job in chairing the committee.

Honourable senators, up until recently, there was no threshold on how officers should carry out the test to search personal digital devices.

In 2020, the Court of Appeal of Alberta released the Canfield decision, which stated that the government needs to amend the Customs Act to include a test for the search of personal digital devices at the border.

Let me give you examples of what is currently enshrined in the Customs Act:

To search a person, border security officers apply the reasonable grounds to suspect test.

To search a good when there might be a mistake in the good’s classification, value or quantity, border security officers apply the reasonable grounds to suspect test.

To search a good when there might be a mistake with respect to its origin, border security officers apply the reasonable grounds to suspect test.

To examine goods when an offence might be perpetrated, border security officers apply the reasonable grounds to suspect test.

To search a conveyance, whether a truck or train or other, when an offence might be perpetrated, border security officers apply the reasonable grounds to suspect test.

And to search mail, honourable senators, border security officers apply the reasonable grounds to suspect test.

Bill S-7 was written to incorporate the new threshold in the Customs Act. The Minister of Public Safety and two CBSA officials came to committee to present this new novel threshold, which requires a border security officer to have a “reasonable general concern.”

Senators, many times Senator Boehm asked the question how the American border security officers will be trained for pre‑clearance purposes. How will they learn this “reasonable general concern”? By this novel “reasonable general concern” standard, border security officers would use indicators that are identified in regulations to search travellers’ personal digital devices.

We were told the indicators ranged from a traveller acting nervous or agitated, avoiding eye contact, shifting back and forth, stuttering and sweating, to finding devices in a traveller’s luggage. Another indicator revolves around whether the country of origin of the traveller is a country where child pornography is an issue.

Yet not all indicators were shared with the committee. We were told that it wouldn’t be safe to share these indicators with a Senate committee. But, honourable senators, as a Muslim woman of colour, I am concerned with the way in which these indicators will be used. And I have an idea of what those other unrevealed indicators might look like.

Many CBSA officials, since I have asked this question, have spoken to me privately and told me that my concerns are very legitimate. The concerns that were not mentioned at committee are often the concerns that border security officers carry out.

Senator Boniface restated that the “reasonable general concern” test will put into law what border officers have already been doing. However, we have gathered in committee numerous testimonies that tell us that this threshold will not properly strike the balance between national security concerns and travellers’ privacy rights.

In fact, 11 of the very reputable witnesses supported the higher test. Ms. St. Germain from the Canadian Centre for Child Protection said that the “reasonable grounds to suspect” threshold is adequate. I’m going to repeat this, senators. Even she said that the “reasonable grounds to suspect” threshold is adequate for border examination of personal digital devices.

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She went on to say, and I quote:

. . . the reasonable suspicion standard is something that is known and understood in criminal law. We understand that it’s also been used in the border context.

Later, she said of the offenders crossing with child pornography on their personal digital devices that:

. . . “The reasonable suspicion standard is something that is known and understood in criminal law” will likely be able to catch many individuals who are potentially doing this.

Senators, last week in the chamber, Senator Dean and I had different interpretations of Ms. St. Germain’s responses in committee. After looking at her transcript, I admit that her responses were ambiguous. She didn’t seem to be overtly claiming that the “reasonable general concern” threshold was the one she was supporting, but she did say that the “reasonable grounds to suspect” was something that would work.

I accept that what she said was ambiguous. But except for her, the other 11 witnesses were very firm in what they said.

As I said to Senator Gold earlier on, the steering committee always brings a balance of witnesses to bring both points of view. We have a very hard-working steering committee. If they had found anyone who was supporting the “reasonable general concern” test, they would have brought them to committee.

Honourable senators, one thing is certain, all 11 witnesses were adamant about supporting an amendment replacing the “reasonable general concern” test with the “reasonable grounds to suspect” test.

These witnesses have extensive experience on these issues and have done extensive research. As such, though the government wanted to enshrine into law the novel “reasonable general concern” test, witnesses prefer the “reasonable grounds to suspect” test, except for the Minister of Public Safety and his Canada Border Services Agency officials.

The “reasonable general concern” threshold is entirely novel in Canadian national law, and we cannot find anything in foreign national law that uses that test either.

Ms. Lex Gill, a research fellow from the Munk School of Global Affairs explained the “reasonable general concern” test, and I quote:

. . . not only does this kind of broad-based standard open the door to group-based discrimination and the use of group-based characteristics as a pretext to stop, question someone and search their devices, but these are also powers that are very difficult to review after the fact. . . .

Michael Nesbitt, Associate Professor at the Faculty of Law of the University of Calgary, said:

. . . Better to set a clear standard now. That clear standard could certainly be, and in my mind should probably be, “reasonable grounds to suspect.” It is a flexible standard and it allows for much nuance, including a different sort of nuance at the border. As Supreme Court said recently in Stairs, it requires but “a constellation of objectively discernible facts assessed against the totality of the circumstances.”

[Translation]

Regan Morris, senior legal counsel at the Office of the Privacy Commissioner of Canada, stated the following:

I understand that the intention is to have a lower standard than reasonable grounds to suspect. We don’t think it will strike the right balance between privacy and other government interests.

[English]

Mr. Regan Morris later added:

We would highlight, again, the Supreme Court’s decision in R. v. Stairs, which was issued a few weeks ago, highlighting the flexible nature of the standard. It is a standard that is based on the totality of the circumstances and is meant to be flexible. It’s meant to be a lower standard than reasonable grounds to believe. It’s fact-based, flexible and grounded in common sense.

Mr. David Fraser, former Chair of National Privacy and Access Law Section of the Canadian Bar Association explained:

. . . reasonable general concern is not a standard for any sort of search in Canadian law. Your guess is as good as mine, but it seems pretty close to whether the officer’s spidey sense is tingling.

Pantea Jafari from the Canadian Muslim Lawyers Association said:

. . . The [reasonable general concern] standard is not only legally unfounded, but also unreasonably broad and low, as testified to in more detail by other witnesses, including today’s. The overly broad nature of the proposed standard will invite arbitrary application. It will undoubtedly result in unjustified searches of a wide swath of people and will disproportionately be felt by minority and equity-seeking communities.

Tim McSorley from the International Civil Liberties Monitoring Group said that the “reasonable grounds to suspect” test:

. . . is a known standard. It is a clear standard. It is a standard that is already applied to mail, which, as we pointed out, should more than clearly be viewed as a parallel to the digital devices that people are bringing across the border.

In response to Canfield leaving the door open, Mr. McSorley explained:

. . . the courts did leave it open to the possibility of a lower threshold. However . . . that does not mean a lower threshold is appropriate. The courts were not deciding on that.

Meghan McDermott from the British Columbia Civil Liberties Association explained:

. . . that we don’t support the novel general reasonable concern threshold that’s being proposed in Bill S-7. We join the other witness here today, as well as many others, including Canada’s Privacy Commissioner, in recommending that the law reflect the higher and familiar threshold of reasonable grounds to suspect.

Ms. Brenda McPhail from the Canadian Civil Liberties Association also had the same opinion.

Honourable senators, upon hearing the testimony of witnesses, your committee determined that implementing the “reasonable grounds to suspect” threshold for search of personal digital devices is coherent with the Customs Act and strikes the right balance between border security and privacy rights.

As Senator Simons explained in her second reading speech, the decisions of R. v. Plant, R. v. Cole and R. v. Fearon, among others, remind us that the closer information touches an individual’s biographical core of information, the more protections section 8 of the Charter will require from the government.

In the same vein, the Supreme Court wrote in R v. Morelli that it is difficult to imagine a search more invasive of one’s privacy than searching a personal computer.

Honourable senators, I hope you will agree with me that personal devices need just as big a protection as a piece of mail does, and “reasonable grounds to suspect” is the proper test.

Honourable senators, I am very proud to be a member of the National Defence Committee that amended this test because I truly believe they heard from the different witnesses and had the courage to make the amendment.

Just today, the Executive Director of the Canadian Race Relations Foundation told us in the Human Rights Committee that he always got pulled out at the borders whenever he arrived in Canada, and was just petrified of what would happen to him because he’s a Muslim man until he got a NEXUS card.

Senators, the Senate’s job is to protect minorities. If we don’t look after the rights of minorities, who will? Thank you very much.

Some Hon. Senators: Hear, hear.

Hon. Brent Cotter: Senator Gold, would you take a question from me?

Senator Ataullahjan: Senator Gold, I like that racism is illegal, but we have to admit it exists. I speak for a community that is regularly stopped for random searches. It’s almost become a joking matter to say, “Okay, I was pulled over. This is what they wanted to know.” My question is how and does the government have a plan to prevent Bill S-7 from being used explicitly to violate the privacy of groups that are already discriminated against by border guards?

An Hon. Senator: No.

The Hon. the Speaker: Is leave granted?

Senator Ringuette: Could I have 10 seconds?

The Hon. the Speaker: I’m sorry, Senator Ringuette. Leave is not granted.

An Hon. Senator: Bravo!

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate), pursuant to notice of June 16, 2022, moved:

That, notwithstanding any provision of the Rules, previous order or usual practice, the sitting of Wednesday, June 22, 2022, continue beyond 4 p.m., and the Senate adjourn at the earlier of the end of Government Business or midnight, unless earlier adjourned by motion.

Some Hon. Senators: Agreed.