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.

(2210)

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.

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?