Hon. Salma Ataullahjan: Minister, two weeks ago, the Commissioner of the Environment and Sustainable Development released a report which criticized your department in spending funds that are intended to help communities in Nova Scotia and New Brunswick to transition away from coal. This audit found that the Atlantic Canada Opportunities Agency funded many projects that “. . . lacked a connection to the coal transition.”

Minister, your department still has over $30 million from the Canada Coal Transition Initiative–Infrastructure Fund to spend between now and March of 2025. What are you doing to ensure that those taxpayer dollars are better targeted to specifically help coal workers and their communities in those two provinces?

Senator Dalphond: With pleasure.

Hon. Pierre J. Dalphond: Honourable senators, as said by Senators Boniface, Simons and Wells, the constitutional question that Bill S-7 attempts to answer is the balancing of two competing values.

On one hand, it is widely acknowledged that officers at the border, in dealing with travellers coming into Canada, are entitled to ask questions, to inspect goods, including personal belongings, and to detain and search persons in order to ensure compliance with the Customs Act and related laws, all in order to protect our country. In fact, officers at the border are often entitled to act in ways that would not be acceptable for police officers dealing with citizens within the country.

On the other hand, there is the ever-increasing recognition by the courts of the informational privacy inherent in a personal digital device. The Supreme Court has stated that cellphones, like computers, implicate important privacy interests that are different in both nature and extent from the search of other places. The high courts added that it is unrealistic to equate a cellphone or a computer with a brief case, even if they all store material.

As stated in the recent Ontario Superior Court judgment, the core biographical information to be gleaned from a personal digital device can be used to construct an extraordinary, intricately detailed profile of the owner of the device. Judge Harris wrote:

A personal digital device mirrors who we are. It is the manifestation of both our external and internal life.

The intrusion of the state into informational privacy through investigation of digital media has the potential to extend well beyond anything George Orwell could possibly have imagined.

Within Canada, to perform a legal search, police officers have to meet one of two thresholds depending on the context: reasonable grounds to believe that a crime has been committed or is in progress, or a reasonable suspicion that such is the case. Both thresholds are reviewable by courts pursuant to an objective analysis, and not according to the subjective state of the mind of the police officer. Case law has established that the highest threshold is reasonable grounds to believe. I am not suggesting that it shall apply to customs operations, except maybe for an intrusive body search.

As for reasonable suspicion, it is defined by the Supreme Court as meaning the following:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

The fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify a search, the suspicion must be supported by the factual elements, which can be adduced in evidence and permit an independent judicial assessment.

As said by the Supreme Court in 1996, in the context of section 99(1)(f) of the Customs Act, a hunch based on intuition gained by experience cannot suffice as reasonable suspicion.

Before the courts of Alberta and Ontario, representatives of the border agency have testified that to apply the lowest threshold, reasonable suspicion, would seriously impede their operations, and I suspect this is the reason why the bill proposes a new threshold called “reasonable general concern,” intended to be defined by courts as being lower than reasonable suspicion.

In the Ontario judgment, the judge seems to be unconvinced by the border agency’s resistance to a threshold. He wrote:

In my view, skepticism is the appropriate reaction to an assertion by law enforcement that a search threshold will stymie investigations. Naturally, law enforcement officials would prefer not to have legislative obstacles regulating their ability to search. They would be more effective and productive without them. But there would be a cost to individual rights and to liberty.

(1540)

Colleagues, I believe we need a threshold. However, if Parliament decides to enact the proposed new threshold, we have to realize that it is an unknown concept to the law, and that the court will have to flesh out its contents considering the content of the binding regulations — which we don’t know yet, but have been promised after the bill is adopted.

On the whole, in order to meet the constitutional requirements under section 8 of the Charter, nobody can predict the end result of this process, but it is fair to say it’s going to take years, including judgments from Courts of Appeal and the Supreme Court of Canada. In the meantime, there will likely be criminal charges arising from the search of digital devices dropped or dismissed.

Of course, the use, instead, of the reasonable suspicion test will not bring such uncertainty. This is another area that should be studied by the committee, including the pros and the cons of having new tests in connection with documents found on digital devices rather than applying an existing test — reasonable suspicion — which is used for documents in the mail.

The studying committee should look at the existence — or not — of equivalent thresholds in other democratic societies. In the U.S., the use of an applicable threshold is a complete mess, controversial and subject to conflicting case law.

Moreover, considering this bill is a response to the Court’s decisions concluding in the unconstitutionality of the current regime if applied to a device, the committee shall hear evidence from legal experts about the ability of the proposed threshold to survive legal challenges that are promised to come.

Finally, this bill proposes that the new concept be applicable to the U.S. pre-clearance areas located in eight Canadian airports. However, in the United States, this concept does not exist. Moreover, as I said, the issue of access to personal devices is currently quite controversial and unsettled in the U.S. This means that if you go to the U.S. by car instead of flying from an airport, where there is a U.S. pre-clearance, you will most likely be subject to a different threshold. However, I am content to see that the Canadian Charter of Rights and Freedoms will be fully applicable across Canada, including in U.S. pre-clearance areas.

[Translation]

In conclusion, like Senators Simons and Wells, I believe that this bill raises some fundamental issues of constitutional law that will need to be thoroughly studied in committee.

I also believe that it would be preferable to have a committee study it soon, in order to put to an end, in the months to come, to the two different regimes that currently exist in Canada for the inspection and seizure of documents found on digital devices, that is, the regime that applies in Ontario and Alberta and the one that applies in the rest of Canada.

Thank you very much. Meegwetch.

[English]

Some Hon. Senators: Agreed.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Welcome, minister.

Can you share with us the government’s timeline for developing the action plan on official languages and the regulations for implementing the ambitious and long-awaited bill you introduced in the House of Commons?

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

The Hon. the Speaker pro tempore: Honourable senators, the time for Question Period has expired. I’m sure that all senators will join me in thanking Minister Petitpas Taylor for being with us today and in inviting her to return.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, pursuant to rule 5-7(k), I move that Order No. 4 under Reports of Committees other, which deals with the Supplementary Estimates (C) for the fiscal year ending March 31, 2022 be discharged from the Order Paper.

(Order withdrawn.)

On the Order:

Resuming debate on the motion of the Honourable Senator Boniface, seconded by the Honourable Senator Gold, P.C., for the second reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

Hon. Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you for the question.

There is no doubt that the issue of protecting and promoting French is a top priority for me as Minister of Official Languages and for the government. I think our work on Bill C-13 shows that we want to move forward with a bill that has teeth, a new version of the bill.

The Lieutenant-Governor of New Brunswick, Brenda Murphy, is a very dedicated woman who has served her community. She improved her French language skills by taking courses for several years.

Mary Simon is another woman who has made an effort. She wants to learn and be able to communicate with all Canadians.

Let us be clear: Many criteria are considered during these appointments to ensure that the best person is chosen to serve Canadians. As an Acadian and as Minister of Official Languages, I think it goes without saying that the ability to communicate in both official languages must always be at the top of the list of criteria to be considered, and it is important for our leaders to lead by example. That is why I am pleased that Ms. Murphy and Mr. Simon are taking French courses, since they know how important it is to represent all Canadians from coast to coast to coast.

The Hon. the Speaker pro tempore: We will suspend until the minister returns from the vote.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

[Translation]

Hon. Percy E. Downe: Minister, I have a follow-up question. In your first answer, you spoke about various agencies located in Atlantic Canada. However, the only national headquarters of any department is Veterans Affairs, and that’s located in Charlottetown.

I would suggest for your consideration that a first step for decentralization of federal government national departments would be to move the national headquarters of Fisheries and Oceans Canada, which is currently located on the fifteenth floor of a high-rise office tower on Kent Street in downtown Ottawa — where they cannot see a fisher or the impact of their policies as far as their eyes can see — to Sydney, Cape Breton, home of the Canadian Coast Guard College.

Will you request a study of this opportunity to provide secure, well-paying federal government jobs to all Atlantic provinces so they can enjoy the same benefit that Prince Edward Island currently enjoys with the national headquarters of Veterans Affairs Canada in Charlottetown? That is, over 1,200 permanent jobs are now located in P.E.I., and there are summer student jobs and contract employees who provide professional services to veterans and their families. The pandemic has shown that remote work can be done from anywhere. Why not move more of these national headquarters, jobs and payroll to Atlantic Canada?

Hon. Jean-Guy Dagenais: Minister, you told a House of Commons committee on March 22 that your official languages bill gives the commissioner additional tools to impose decisions not only on Air Canada, but on all airlines. The very next day, you qualified your statement by saying that the French requirement will be regional and covered by regulations, not by the law itself. I look forward to reading those regulations, but I have the impression that you are talking out of both sides of your mouth when it comes to respect for French in this country.

Here is what I want to know. Why is respect for francophones, one of the two founding peoples recognized by the Constitution, not equal throughout Canada?

Aside from Quebec, where in Canada will your government enforce the use of French in the air transportation sector?

Hon. Brian Francis: Welcome, minister. Prince Edward Island has one of the highest unemployment rates in the country. At the same time, a wide range of industries face ongoing labour shortages, especially in remote areas. What exactly is the Atlantic Canada Opportunities Agency, or ACOA, doing to address the mismatch between people without jobs and jobs without people on Prince Edward Island? Could you point to specific programs and initiatives?

Hon. Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you, senator. It is great to see you as well. Thank you for your great representation of Prince Edward Island.

ACOA is a fantastic department. I’ll say it again: The secret sauce is the boots on the ground in Atlantic Canada, because they know the pulse of what’s going on in the communities.

I absolutely agree with you, senator, that more jobs need to be diverted to local areas. When I was part of the Treasury Board a few years ago, every time we had Treasury Board submissions that would come forward for approvals, I would always ask where the jobs would be located. Do they always have to be in the big centres, or can they be in smaller areas as well? It’s important to me to ensure that not all jobs are in Ottawa or the big cities.

I use my being in the Moncton area as an example. In Shediac we have a pay centre with more than 500, if not 600, employees working there. The employees stay there for 20 to 30 years. They are good-paying jobs. They retire in our communities as well. We have a lot to learn from putting into place those types of centres in different parts of the country to provide economic opportunities, not just for the big centres but also for regional areas.

Thank you so much for your question. I will absolutely continue in that vein to make sure that jobs are dispersed across the country.

[Translation]

Hon. Senators: Hear, hear.

(On motion of Senator Gagné, debate adjourned.)

(At 4 p.m., pursuant to the order adopted by the Senate on May 5, 2022, the Senate adjourned until 2 p.m., tomorrow.)

Hon. Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you very much for your question, senator.

Obviously, I have spoken to many stakeholders and the commissioner himself in my six months as Minister of Official Languages and before I introduced Bill C-13. They all asked us to ensure that the Commissioner of Official Languages would have more tools to do his job. The government recognizes that the Commissioner of Official Languages has a very important role to play in protecting and promoting official languages in Canada.

Since Bill C-13 has not yet received Royal Assent, the only tool that the commissioner has at his disposal right now is the ability to conduct investigations and publish reports. This bill, which will have more teeth, will give him more tools to do his job. Now, the commissioner will be able to mediate between the parties and negotiate compliance agreements. He will also have the power to make orders and will be able to impose administrative monetary penalties on companies in the transportation sector that are already subject to the Official Languages Act.

The regulations cover companies like Air Canada, CN, VIA Rail Canada and the airport authorities. We have been very clear that these institutions will be identified in a regulatory framework, but so far, we have clearly stated that these four companies will be subject to administrative monetary penalties if they fail to comply with the Official Languages Act.

Hon. Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you, senator. It’s always nice to see you, and you are quite right. With 8 million francophones in Canada living amongst more than 360 million anglophones from coast to coast to coast in North America, protecting the French language warrants special and immediate attention. Protecting French and promoting French internationally are also top priorities for me. Minister Joly and I are promoting it because we want to make sure we’re doing our part to protect our French language. The digital world is indeed causing some real concerns, and we must work tirelessly to ensure that French is used equally on the international stage.

Senator Dalphond: Yes, I will be careful not to try to give an answer to colleagues that are still doing the work.

The first and most critical element will be the content of the regulations to be adopted by the minister or the government because they will provide some indicators — like taking notes and having a record of what was done in what type of circumstances — because what the courts will not accept is a process which is not reviewable by the court.

The word “reasonable,” within the rest of the sentence, normally refers to something that is an objective criterion. The court, in order to find if this objective criterion has been met, will have to get a record that shows, for example, how it was applied, what the questions were, whether the device was disconnected from the cloud — because you are entitled to search only the device, not outside the device — and whether there are notes taken because the officer may not remember because perhaps he has done hundreds since then. All factors that are critical will be found, unfortunately, not in the law, but in the regulations because the concept is undefined in the law. As I said, it will have to be fleshed out by the courts, and the courts will be careful to balance all the interests at stake.

You may end up with criteria that are a bit lower than reasonable suspicion but maybe not far from it.