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.

Senator Gold: Thank you for that. I’m aware of that testimony. What we do best in the Senate, as we often say — but it is true — is the rigour of our committee work.

The point we need to remember, however, is that the CBSA has been operating for some years now with a set of policies governing how these devices would be searched. The court found that it failed the constitutional test because these policies were not prescribed in law.

The government’s position is that by legislating the rules and procedures, some in law and some in regulations, they were satisfying the constitutional requirements as set out by the court.

If I may venture an explanation, I think that explains why Bill S-7 does not necessarily change on the ground the ways in which border officials will determine whether to conduct a search. That was my understanding of the response to the question about additional resources.

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.

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.

Hon. Donald Neil Plett (Leader of the Opposition): Leader, I think we should have more Monday sittings. I get a lot of questions.

My last question today, leader — even if we do have time; I should have prepared a fourth one — concerns an issue I have previously raised with you: the 35% tariff on Russian fertilizer imports being paid by Canadian farmers.

The difficult financial situation this tariff has put on Canadian farmers is completely of the Trudeau government’s own making, leader. I can think of no other country that is imposing a similar tariff on their farmers, likely because it’s a ridiculous thing to do at a time of food insecurity worldwide. The only solution the Trudeau government has brought forward isn’t a solution at all. It’s to expand the Advance Payments Program to let farmers take on further debt.

Leader, what is the average amount Canadian farmers have had to pay your government in fertilizer tariffs? Does your government track this information, or does it care?

Senator Gold: Thank you for the question. I don’t know whether projections of that kind have been done, Senator Christmas. I do know, though, as I tried to set out in my remarks, that when the mandatory minimum sentences were added to additional offences, the rates of incarceration for Indigenous Canadians and members of other communities increased.

It is reasonable to expect — given the statistics that I cited — that there will be a diminution. Whether or not there are actual projections, I just don’t know. I would encourage that to be explored in committee, where whatever information that is available can be explored.

Hon. Claude Carignan (Acting Deputy Leader of the Opposition): Honourable senators, I rise today in support of Bill C-14, An Act to amend the Constitution Act, 1867, in relation to electoral representation. My comments today will be brief, for I intend to go into greater detail at the third reading stage of Bill C-14. I hope my observations will answer Senator Julie Miville-Dechêne’s questions in particular.

Bill C-14 basically amends the grandfather clause in the electoral boundaries formula. Currently, this grandfather clause, referred to as the “1985 clause,” sets out that no province will have fewer electoral districts when the electoral map is redrawn than it had in 1985. The amendment in Bill C-14 updates that clause for the Forty-third Parliament. In other words, it states that no province will have fewer electoral districts when the electoral map is redrawn than it had in the Forty-third Parliament.

This provision is ultimately intended to ensure that Quebec does not lose a seat, as the Chief Electoral Officer of Canada’s new projection called for.

As you know, colleagues, section 51(1) of the Constitution Act, 1867, requires that the electoral map be readjusted every 10 years. The introduction to section 51(1) reads as follows:

The number of members of the House of Commons and the representation of the provinces therein shall, on the completion of each decennial census, be readjusted by such authority, in such manner, and from such time as the Parliament of Canada provides from time to time. . . .

Canada has been changing immensely since its creation in 1867, and successive governments take advantage of the decennial census to adjust the representation rules in order to adapt to the contemporary realities of our society, including on a demographic level.

For this reason, in 1986, Parliament passed Bill C-74, the Representation Act, 1985. The two objectives of this bill were to limit the growth of the number of elected members that the formula used back then would have caused, as a way to save money, but also to prevent Parliament from becoming too big, which would have limited the privileges of each member.

At the time, it was predicted that if nothing was done, the House of Commons would have 369 members after the 2001 census. Let’s not forget that we have 338 members today, after the last boundaries readjustment process, which was done after the passage of the Fair Representation Act in 2011. I will come back to that.

The second objective of Bill C-74, which was passed in 1986, was to introduce a grandfather clause providing that a province’s number of MPs could not decrease even if the provincial population decreased slightly. This is what is now known as the 1985 clause, and it is directly affected by Bill C-14.

Then, after the 2011 census, Prime Minister Harper’s Conservative government passed the Fair Representation Act, as I mentioned earlier. This bill was intended to correct a certain imbalance in the representation of the provinces in the House of Commons. Two of the “whereas” clauses in this bill read as follows:

Whereas the principle of proportionate representation of the provinces must balance the fair and equitable representation of faster-growing provinces and the effective representation of smaller and slower-growing provinces;

Whereas the populations of faster-growing provinces are currently under-represented in the House of Commons and members of the House of Commons for those provinces therefore represent, on average, significantly more populous electoral districts than members for other provinces;

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After this bill was passed, the number of seats in the House of Commons increased from 308 to 338. However, the 1985 grandfather clause was not amended by the Fair Representation Act that was assented to on December 16, 2011.

Following the last census of the population of Canada by Statistics Canada, which was tabled in the fall of 2021 and updated in February 2022, the Chief Electoral Officer of Canada has to readjust the electoral map to reflect the country’s changing demographic, as required by section 51 of the Constitution Act, 1867.

The most recent count would increase the number of MPs in three provinces, with Ontario getting one more MP, Alberta three more and British Columbia one more. However, given its slower population growth, Quebec would lose one seat, going from 78 MPs to 77. Parliamentarians in the House of Commons unanimously denounced this situation and proposed various solutions. The Bloc Québécois introduced a bill to ensure that Quebec never has less than 25% of the seats in the House of Commons. This bill is still being examined in the other place, but I wouldn’t bet on its chances of moving forward. Then, the government introduced Bill C-14, which we are beginning to examine today. It was passed in the other place on June 15, 2022.

When we debate this bill at third reading, I will talk about the formula for changing the electoral map, the concept of effective representation, the role of the Senate, and the importance of the new 2021 grandfather clause.

I therefore invite you to vote in favour of this bill at second reading.

Senator Jaffer: Senator Gold, I didn’t for a minute say that you had not done a good job. You have. You expressed your position. I only took issue with how you addressed the very good witnesses that appeared before the committee. I didn’t want to raise this in my speech, because then you wouldn’t have had an opportunity to speak on this.

I have another question for you. To my question about note taking, the minister said that whether or not the person has committed a contravention, notes will be taken about that person. The minister was very specific about this.

Then the Privacy Commissioner appeared before us and said there have been six complaints about the poor standard of note taking by officials, and that he’s been very unhappy with the standard of note taking. Then the officials said that no more funds would be spent to bring in this new threshold.

Where is the protection? They indicated that they will take notes if they stop somebody, even if the contravention doesn’t happen, but the Privacy Commissioner says he’s not happy with the note taking.