Senator Simons: I think that’s a reasonable interpretation, but what they say is that it could be reasonable suspicion or maybe something else, but they explicitly say reasonable suspicion would be an appropriate thing to consider.

My concern is that in creating a novel test of reasonable, general concern, I’m not saying the government didn’t have the right to do that. I’m saying that it’s the wrong choice.

Senator Simons: I somewhat regret that my understanding is that the bill is going to National Security and Defence and not to Legal and Constitutional Affairs. I wish it were possible for both committees to study this, because I think the Standing Senate Committee on Legal and Constitutional Affairs, with its unique expertise in that area, should also apply its critical lens to this bill.

(On motion of Senator Housakos, debate adjourned.)

[Translation]

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

I was thinking just the other day about all the personal information I carry on my phone and laptop these days, thinking how much more of my life is on my devices than was there before the pandemic began. For the last two years, Canadians have been working from home, shopping from home, dining from home and entertaining themselves at home. Our phones, laptops, tablets and even our Apple Watches, know more about us than ever before — what we watch, what we eat, what we read, what we buy, where we’ve been, who our friends are and whom we date.

Our devices hold our most intimate and embarrassing secrets — more than our teenage diaries ever did. And, more than ever, they hold the confidential work we do, no matter where we work or who our clients or patients or colleagues or constituents might be. It is against that backdrop that we debate Bill S-7 today.

A history lesson: In November of 2020, in a decision known as R. v. Canfield, the Alberta Court of Appeal found that section 99(1)(a) of the Customs Act offended against section 8 of the Charter of Rights and Freedoms because it did not impose any limits on when and how searches of personal electronic devices, including smartphones, tablets and laptops, could be conducted at the border.

Honourable Madam Justice Frederica Schutz, Madam Justice Jo’Anne Strekaf and Madam Justice Ritu Khullar held unanimously that the act violated the protection to be free of unreasonable search and seizure because it allowed for what the court called “suspicion-less and unlimited searches” of private information. That violation, held the court, could not be saved by section 1 of the Charter because it allowed unfettered and unrestricted access to people’s most personal and intimate information.

Canada’s courts have long recognized the inherent privacy of what they have termed, somewhat poetically, our “biographical core of personal information.”

In its 1993 R. v. Plant decision, the Supreme Court put it this way:

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.

Almost two decades later, in the 2012 case R. v. Cole, the Supreme Court was even more explicit:

The closer the subject matter of the alleged search lies to the biographical core of personal information, the more this factor will favour a reasonable expectation of privacy. Put another way, the more personal and confidential the information, the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest.

Today, when we carry so much more of ourselves and our lives on our phones, our tablets and our laptops, a search of those devices, said the court in Canfield, strikes right to the heart of our biographical core.

To quote the Canfield judgment:

. . . while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement.

The greater the intrusion, said the Alberta Court of Appeal, “the greater must be the justification and the greater the degree of constitutional protection.”

The court did not specify what it thought a proper constitutional threshold would be. But it suggested it might be something akin to “reasonable suspicion,” as opposed to the more stringent standard of “reasonable and probable grounds.”

So now we have before us Bill S-7, a somewhat belated, already outdated effort by the government to amend the Customs Act to meet the constitutional requirement set out by the court two and a half years ago.

With this legislation, the government has created a wholly novel test for a search of an international traveller’s cell phone or computer, a threshold without precedent in Canadian law.

Bill S-7 would allow Canada Border Services Agency officers and U.S. Customs and Border Protection officers doing pre-clearance of travellers leaving Canada for the United States to examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device if and when the officers feel a “reasonable general concern” that something on that device might contravene the Customs Act.

What does a “reasonable general concern” mean, legally speaking? I wish I could tell you but I can’t since there is no Canadian jurisprudence related to this newborn phrase.

A reasonable concern, one might intuit, is a lower standard than a reasonable suspicion because a concern, in common parlance, is less grave and less specific than a suspicion. And maybe, just maybe, a test of “reasonable concern” might pass constitutional muster. But throw in the word “general” and you water things down even more. I mean, what in blue blazes is a “general concern?” It sounds even more vague and more subjective than a good old-fashioned hunch or an inkling. It is a fuzzy, ill-defined threshold, one that opens the doors to all kinds of possible misapplication or abuse.

Is there any traveller alive who might not inspire “general concern” on the part of a border officer on a bad day?

Now, imagine someone who is Black or Muslim or Chinese or Indigenous. Or someone who is queer. Or someone who wears unconventional clothes. Or someone on the autism spectrum. How might such a general concern be provoked in an officer who is acting on such a loose and intuitive test?

What’s particularly perplexing is that there was no need for the government to concoct such an untested legal standard. The obvious legal threshold to conduct a search already exists right in the text of the Customs Act. Section 98 of the act, for example, provides that an officer can search any person “if the officer suspects on reasonable grounds that the person has secreted on or about his person” any prohibited, controlled or regulated goods.

The act provides that any imported or exported mail may be opened and examined if the officer suspects on reasonable grounds that it contains any prohibited or regulated goods. The act further authorizes goods to be examined and any package or container opened where the officer suspects on reasonable grounds that the Customs Act has been or might be contravened.

All throughout the Customs Act, in fact, the standard test is suspicion “on reasonable grounds;” it is the well-established legal threshold. Why on earth should it be easier for border agents to search the contents of our personal electronic devices than it is for them to search our mail or our coat pockets or our car trunks or our suitcases? Yet that is precisely what Bill S-7 allows.

We all understand that we have fewer privacy rights when we cross a border than when we cross a city street. Entering or exiting a country is a privilege. We routinely subject ourselves to searches of our luggage and our persons that would not be legal in ordinary daily life when we ask to cross a border. But a border is still not a Charter-free zone.

Bill S-7 would allow border officers, acting only on a “reasonable general concern” to scroll through our texts and photos, our love notes, our bank statements, our SkipTheDishes orders, our Amazon purchases, our dating history and our private health and fitness data.

Now, you could certainly argue that the original text of section 99 of the Customs Act, at least as it has been previously interpreted, already gave them that right, but, up until now at least, the Canada Border Services Agency, or CBSA, had its own internal rules which were supposed to preclude such fishing expeditions. According to the CBSA handbook, searches were only supposed to be conducted if there were “. . . a multiplicity of indicators that evidence of contraventions may be found on the digital device or media.”

The court in Canfield explicitly said that was not good enough. And yet the language of Bill S-7 — let me stress this — actually lowers the bar for a search. Far from enhancing our privacy rights, as the court explicitly directed, S-7 may, in fact, diminish them, granting border officers more latitude — not less — to pry into our personal devices. Either way, it’s a fair bet that this novel legal threshold is going to create confusion, not clarity, for many border officers. And it will undoubtedly become the subject of aggressive litigation almost as soon as it’s applied.

This is not what the Court of Appeal in Canfield required when it struck down the law, and it certainly doesn’t align with previous recommendations of Canada’s Privacy Commissioner.

Our border rules were originally created to allow customs agents to look for “stuff:” illicit goods, things like smuggled drugs or smuggled cigarettes and smuggled exotic animals. They were designed to ensure we weren’t sneaking back from vacation with shoes or dresses or artworks on which we hadn’t paid duty. But when we treat the private secrets carried on our digital devices as though they were goods, we weaponize the Customs Act in fresh and unintended ways.

I know it is politically risky to criticize Bill S-7 because it has been framed for us as a way to fight child pornography. In this fraught time, no one wants to be smeared as a defender of child porn or pedophilia. I certainly don’t. But most child porn is not imported into this country physically, carried on individual personal computers. It’s bought and sold and shared online.

Creating a lower novel threshold for searching our personal computers won’t do much to stop the scourge of child sex abuse, but it will put the privacy rights of thousands of Canadian travellers in real jeopardy.

Perhaps you think that S-7 won’t matter to you because you obviously don’t carry child porn on your phone or laptop. But this bill isn’t just about child pornography. Prohibited items under the Customs Act include hate propaganda, obscene material, treasonous or seditious material and even something as benign as reprints of Canadian copyrighted works.

That leaves me with what you might call a reasonable general concern that some travellers could be targeted for phone and computer searches based on their political views, or rather, based on what a border officer’s general concern about their political views might be.

Your phone and laptop can also be searched if a generally concerned officer is looking for receipts or banking information stored on your devices that might show you bought a few more things abroad than you’ve actually declared.

And, perhaps most worryingly, as Senator Boniface explained in her introduction of the bill last week, if officers discover what may be evidence of a criminal offence — an offence that has nothing to do with the Customs Act — that evidence may be provided to local police, who may then conduct their own criminal investigation and consider possible criminal charges.

Colleagues, we have a chance to do what the court in Canfield asked us to do: to find a balance, to come up with a proper threshold test for invasive searches of our digital devices — a test that recognizes the need to protect our borders and our national security, while at the same time safeguarding our privacy rights.

Reasonable general concern is not the appropriate threshold, not in 2022, not when our phones allow us to hold our lives in our hands. We owe it to Canadians to do better, not to rush through this constitutional debate just because the government missed a court-imposed deadline to write this legislation. Let’s apply some sober first thought to a bill that badly needs it.

Thank you. Hiy hiy.