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

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

[Translation]

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

[English]

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

[Translation]

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

[English]

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

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

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

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

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

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

According to the court:

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

[Translation]

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

[English]

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

The minister went to on to explain that:

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

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

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

[Translation]

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

[English]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Translation]

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

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

[English]

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

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

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

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

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

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