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.

Senator McCallum: Honourable senators, I rise today to speak at third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, so as to register the serious misgivings that I have about this bill.

I would first applaud the Standing Senate Committee on National Security and Defence for their work on this legislation. Specifically, I would like to acknowledge their amendment to remove the arbitrary and vague threshold of “reasonable general concern” to the current iteration “reasonable grounds to suspect.” This prudent amendment was made in light of the overwhelming witness testimony cautioning against the carte blanche that would result from the original terminology. As our colleague Senator Dean said last week in reporting back from the committee on Bill S-7, the implementation of that initial and unclear threshold:

. . . could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

Despite this amendment, colleagues, I still have grave concern about this legislation. I would like to go on record as saying that I attempted, with the assistance of the Government Liaison in the Senate’s office, to establish a meeting with CBSA officials so that I could raise my concerns and inquiries directly with those who would action this legislation. I was quickly informed that the CBSA had denied my request, as they have apparently made it a practice not to meet one-on-one with parliamentarians. I had then countered with the suggestion of setting up a meeting with a small collective of senators who had similar issues on Bill S-7 in the hopes that CBSA officials could alleviate some of our concerns in an efficient but effective manner. That offer, too, was rebuffed by CBSA. I am disappointed that I was met with an unwillingness to have meaningful dialogue with the individuals who would be tasked with carrying out the weighty duties that would be established with the passage of this legislation.

Honourable senators, having said that, I would like to speak to the major concern that I still have with Bill S-7. Specifically, I am concerned about the insidious practice of racial profiling when it comes to the determination of secondary examinations. This is an issue that is familiar in theory to all in this chamber, but the fear and anxiety of actually being subjected to this kind of malice and targeted behaviour is only known to a much smaller collective.

As a First Nations woman, I can tell you that racial profiling is real and that I am still a victim of it to this day. I am sure this same truth is reflected by other senators in this chamber who are also part of racialized minority groups, whether they be Indigenous, Black, Asian and so on.

This issue is deep-rooted and ingrained in many different areas that make up the fabric of our society. I fear that the wording and content of this legislation remains dangerously close to enabling this kind of attitude for people in a position of authority, which already highlights the power imbalance that exists wherein racialized travellers are subordinate and submissive to border officials — individuals who may carry with them unfounded biases or prejudices.

Honourable senators, this issue was first raised at the May 30 meeting of the Standing Senate Committee on National Security and Defence by our colleague Senator Jaffer. I would like to extend my thanks to Senator Jaffer for her unwavering resolve in ensuring that this matter, which is critical for so many people across this country, was not easily dismissed. In response to this line of questioning, Minister Mendicino acknowledged the validity of the concern. In his words, Minister Mendicino stated:

First and foremost, I want to assure you that we take systemic racism and racial profiling extremely seriously, not only at the CBSA but right across every branch of law enforcement. Indeed, officials in every branch of law enforcement, to their credit, acknowledge that it exists and that we must root it out. This is a challenge around which we must all be united.

The Minister went on to state:

I also want to assure you as well . . . the mandate that was given to me by the Prime Minister [does] require, in very express language, that all agencies continue to do the important work of rooting out systemic racism in all of its forms. What does that mean? It means better training, being culturally sensitive and being aware of the biases that have infiltrated the way the work has been done.

I appreciate the fact that the minister and his officials spoke about the rigorous training that would be required of CBSA officials prior to taking on the job. However, I admit I was shocked when Mr. Scott Millar, Vice President, Strategic Policy, Canada Border Services Agency was asked specifically about the nature of the diversity training these officers would undergo. In his words, Mr. Millar responded:

There are multiple courses that are mandatory training for CBSA, and there are some courses around unconscious bias as it relates more specifically to this type of authority. Our diversity and race relations course is, I believe, an hour in duration.

Colleagues, this bears repeating. As part of the CBSA training in relation to Bill S-7, the course on diversity and race relations is one hour in duration. To me, this length of time is merely a pretense: negligible in terms of actually combatting the deep-rooted and systemic issues that underpin racial profiling.

Despite the minister’s nice words on the commitment of this government to root out systemic racism with better training, the action behind those words is underwhelming and insufficient. As such, we must not be blind to the fact that this level of training — if we can justify calling it that — will not translate into a better understanding of race relations. It will certainly not accomplish the lofty goal of eradicating over 150 years of racist and prejudiced thoughts-turned-actions that have constantly marred our authorities’ relations with First Nations people in Canada.

When asked about the sufficiency of one hour’s worth of training on this matter at the June 6 meeting of the National Security and Defence Committee, Ms. Pantea Jafari, member, founder and lead counsel of Jafari Law and a board member of the Canadian Muslim Lawyers Association, said the following:

I do not think that an hour of sensitivity training for officers is sufficient by any standards. The stereotypic beliefs that permeate border officials and the national security context are deeply ingrained. . . . They are systemically entrenched. . . . which is why racial profiling and the stereotypic assumptions they are based upon are so predominant in the national security context and so significantly felt by racialized and minority individuals.

Later that meeting, Ms. Jafari continued:

. . . the issue is so significantly felt by racialized individuals, but there doesn’t seem to be a genuine interest in correcting the problem. When you see that the minister is proposing a one-hour diversity training to rectify this overwhelming and extremely well-documented issue of significant racial profiling at the border, that speaks to how seriously they take this issue, which is really not at all.

As you can see, colleagues, even legal experts are lodging serious concern about the impact that racial profiling will continue to have on this process. This is due, in part, to the lacking diligence that the government and their authorities are delegating to address an issue that is centuries-old in this country.

Honourable senators, I would now like to acknowledge the fact that the minister highlighted a new agency that is being established to monitor the CBSA and the RCMP in regard to their behaviours, as well as to collect data therein. However, I note this agency is only now in the process of being established by Bill C-20, which is currently before the House, having only received first reading at this point. In other words, it is in its infancy with uncertainty surrounding what this agency would accomplish in real-world terms — if and when it receives Royal Assent at some undetermined time in the future. What we can be certain of, colleagues, is that this proposed agency would essentially operate in hindsight. While it would theoretically serve as a post-mortem to determine issues and shortcomings in the conduct and level of service of the CBSA and RCMP, it would offer no practical, real-world protections or aids to travellers at the border. This is especially true of racialized travellers, who most need an elevated level of consideration and protection.

Honourable senators, while I recognize these aforementioned steps as important and necessary, I harbour profound concern that they are insufficient and will have no tangible impact on alleviating racial profiling and thereby diminishing the dread — because, make no mistake, that is what is felt — that First Nations and other travellers of colour feel when they reach the authorities at the border.

Colleagues, a final concern I would like to raise is surrounding data. As it has been an ongoing struggle to obtain gender-based analyses that may or may not be done by the government, I have since requested these analyses from the Library of Parliament for all government legislation. The gender-based analysis done on Bill S-7 was emphatic on the issue of data, stating:

In the absence of hard data, it is not possible to measure the extent of discrimination or racism at the border and determine whether or not Bill S-7 will exacerbate these problems.

This is a large concern and is one, I feel, that merits serious attention, as it will be difficult to verify whether Bill S-7 is actually helping or hindering a critical issue for many in Canada.

Honourable senators, the reality of the issue of racial profiling is best summed up in a response given by Ms. Pantea Jafari during the June 6 meeting of the National Security and Defence Committee. Following her testimony, our colleague Senator Yussuff asked if she felt this legislation would result in an increase in racial profiling at the border. Ms. Jafari responded:

In my personal opinion, I would say absolutely, because these ingrained and entrenched biases and stereotypical assumptions being exercised at the border will only become more entrenched with increased power to exercise them in that way. Without the proper safeguards, I would highly venture that things will get disproportionately and significantly worse for racialized individuals at the border.

It is for this reason, colleagues, and the fact that I do not believe Bill S-7 presents the proper safeguards as alluded to by Ms. Jafari that I will not be voting in support of this legislation.

Thank you.

The Hon. the Speaker: Honourable senators, when shall this report be taken into consideration?

(On motion of Senator Massicotte, report placed on the Orders of the Day for consideration at the next sitting of the Senate.)

[English]

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?