Hon. Jane Cordy: Honourable senators, I have a question. Senator Gold, would you also not agree that all leaders met on Monday, Tuesday and Wednesday of this week to develop the motion that you presented yesterday? All leaders took part in the development of the motion that you presented yesterday. Three of the four leaders, yourself excluded, supported this motion that was brought forward by you to the house yesterday. And all leaders, as I said earlier, participated in the drafting of the motion that was tabled by you on behalf of all of us.

Senator Cordy: Also, when I was looking at the original motion and the second motion, I got the feeling of a make-work project. It is a rainy day and you are trying to find something for your kids to do, so you tell them to check the internet and get all this information. Would you not agree that all of this information requested is readily available on the internet?

Senator Gold, I also know that we’ve been talking mainly about numbers in Ontario and Quebec because we’re located in Ottawa, but I happened to look for the numbers for the week of April 11 to April 18 in my province of Nova Scotia, because we have to keep in mind that we are travelling. I’m not travelling from Ontario or Quebec. I’m travelling from Nova Scotia. Last week in Nova Scotia, there were 7,508 new cases. That’s an average of 1,073 new cases a day, 84 hospital admissions, 64 people in the hospital and 13 deaths in the small province of Nova Scotia last week. Would you not agree that we have to be aware of not just Ontario and Quebec, but we also have to be aware of situations in the rest of the country?

Senator Gold: I certainly do agree. Thank you.

Senator Plett: I think if we listen to Hansard tomorrow, you will find that you clearly used the word “consensus” when you said you had consensus at the leadership table.

Hon. Leo Housakos: Honourable senators, I rise to speak overwhelmingly in favour of Senator Plett’s amendment.

Honourable colleagues, when the going gets tough, the tough have to get going. In times when our nation is facing an existential crisis such as this, its institutions have to be ready to weather the storm. All of our institutions have to be ready to rise to the occasion, and there is no institution more important in a time of crisis than Parliament, the House, the Senate, our courts, our laws and our governments. They have to show up and provide leadership in these difficult times.

I’ve said this time and time again with regret: I believe that Canadians feel that these institutions — which have been put in place to ensure that democracy functions and that we rise to the challenges we face — have let Canadians down. We’ve seen this in the ever-growing frustration both with the government and with these institutions. We’ve seen it in the protests in the streets across the country and with Canadians who are frustrated because they feel it is tougher than ever before to get by and to put food on the table for their children. It is tougher than ever before to dream of a better future than their parents had.

We are all responsible, given the privileges we have in these institutions, to provide leadership during this time. Leadership is not provided when we have measures that are designed to protect us better than a truck driver, or someone working in a pharmacy or grocery store, or a factory worker.

I mentioned a month ago that I was in Montreal visiting a place called Jack Victor. It’s a great business in the downtown core of Montreal, with 800 employees. Those 800 employees are at work every morning and they put in their 40 hours per week. They are in close proximity, just like the vast majority of workers in this country.

My wife has been getting up every morning for two years to go to the Jewish General Hospital to provide services for the many Canadians who need care with the unfortunate virus of COVID. Yet in this institution — I’ve said it before and I will say it again — our productivity during this time of the most existential crisis facing our country has gone down. Our committees meet only half as often as they did in the past. The output for this government in terms of legislation — forget about COVID — over the last seven years is pitiful. In the last seven years, this chamber has produced the least amount of government legislation in the 153-year history of the Senate. Go and do the research in the library; you will be surprised. However, we did pump out hundreds of billions of dollars in shorter sitting times than ever before in the history of this country.

I’ve said it before and I’ll repeat, colleagues: Each and every one of us, when we make investments to renovate our house or buy a car or a pair of shoes, we sometimes reflect on that harder than on the tens of billions of dollars we’ve churned out of this place in COVID spending — with the government threatening us, saying that we have to stand up for Canadians. Number one, we haven’t been consistent as institutions, and that’s why Canadians are so frustrated. Number two, much of what we’ve done over the past two years is on the verge of leading to historic inflation, which will lead to a historic economic crisis — which, again, this institution will, in part, have to account for.

The government leader rose today and said, “Trust me; this motion is a short-term measure, and it’s not something the government wants to do in perpetuity.” It sounds like the same thing we heard a month ago, when we had the same debate. He says, “We are only going to extend it for a month.” Let me tell you, colleagues, as Senator Plett so appropriately pointed out in his speech, right across this country, health care professionals — the scientists who have been giving advice to the provinces and are the leaders when it comes to providing public health care advice — have been lifting mandates. Every single province, one after another, has been lifting passport mandates and masking mandates. They’re allowing Canadians to congregate. You are absolutely right, senator, Jurassic Park is back and functional, with thousands of people. This afternoon my son is watching a Blue Jays game with thousands of people at the Rogers Centre in Toronto. Canadians are walking into arenas across this country — 20,000 per night — to watch NHL hockey and junior hockey. Our workers are back at work. Our hospitality industry is back at work. Thousands of Canadians are back meeting socially, celebrating Easter, Ramadan and all the other celebrations — yet the Senate of Canada is going to stay pat. We will continue mandates. We will continue to work virtually. As I said, the real problem is not that I don’t like working virtually — I like being in the comforts of my house as much as anyone else — but at the end of the day, our output is just not there, colleagues.

Our committees, the most important work that this institution has done, are just not pumping out the work that we are being paid to do. It has been two years right now that we are sort of ragging the puck on this. I think we should be leading the way because our politicians in this country have been telling Canadians to vaccinate. The quicker we vaccinate, the quicker we will get back to normal. Well, colleagues, we are 83% or 84% double vaccinated in this country. I know people who are quadruple vaccinated. Some Canadians have their fourth dose already. If governments have been telling Canadians to double vaccinate and we will get back to normal, yet we are quadruple and triple vaccinated, then the leadership of this country are saying, “You, the taxpayers, will get back to normal, but not us. We will stay here and continue to work in our reduced capacity.” That doesn’t make sense. As parliamentarians, I think we need to align ourselves with what is going on across the country — not only lead but at least align ourselves with what Canadians are facing on a day-to-day basis.

We have rapid tests. We are all mature, intelligent people. Those of us who are vulnerable should take those extra steps. That’s what is going on right now in society as we learn to live with COVID. I don’t see why, when people who are adapting themselves with those realities, 95 or so senators here in Ottawa can’t do the same. I think if we expect it of Canadians, we should be doing the same thing. There are plenty of rapid tests available. Those of us who are coming to Ottawa are functioning — and more of us have been doing so over the last few months, thank God — and taking the steps to be respectful when we meet, but we need to get back to work. The country, more than ever, needs us to get back to work.

Another part of the debate here that concerns me — and I’ve heard it from Senator Plett in his speech today, but I heard it from a bunch of colleagues over the last few days — is that the Internal Economy Committee did not have deliberations on this issue; it was not discussed at Internal Economy. At the end of the day, it is my understanding — and I’ve been in this place now for a considerable amount of time — that senators run the Senate. If important decisions of this nature — that is, of us working hybrid, or virtually, or whatever the case may be — are not being taken in an open and transparent fashion at the Internal Economy Committee and transcended down to the various caucuses and groups for discussion, there’s a problem. I chaired the Internal Economy Committee for a number of years. The current Speaker chaired it for a number of years. There is a longstanding understanding in this chamber that the Internal Economy Committee is a body of consensus, that the operating body of this chamber works in consultation with the leadership and with its various groups and it takes decisions on a consensus basis. Not only have we gotten away from that principle, which is disturbing, but somewhere along the line the leader of my caucus and myself are unable to understand the driving force behind this decision.

We talk about science. Forget about science. From an administrative point of view, I want to know who took the decision. Was it the government leader in a vacuum? Was it the chair of the Internal Economy Committee in a vacuum? Did they discuss it in a back corridor or in some corner? Senator Gold is looking at me with confusion. I don’t know the answer. Clearly, if we didn’t have an open and transparent discussion at the Internal Economy Committee about this particular motion, where was the discussion had? You can participate in the debate, government leader and shed some light on it, but it’s an important issue. We’ve seen time and time again an erosion in these parliamentary institutions and an erosion when it comes to us holding the government to account. I understand. It is not something executive branches of government like.

We all know that when leaders sit in the opposition benches in the House of Commons, they have all kinds of time for democracy and the use of Parliament and all parliamentary institutions. However, the moment they become prime minister, they think they have a mandate from the people and they shouldn’t be accountable to anyone. I don’t believe that. Forgive me, but I believe we have an important role here. The number one role we have is not only to scrutinize government legislation but also to hold the government to account and to ask tough questions when it comes to mandates, vaccines, COVID relief and aid spending. It is not just a rubber stamp.

I appreciate that the government wants to have a virtual and hybrid Parliament in perpetuity. They can get away with it certainly in the House of Commons because there is a minority government, but nonetheless there is a coalition government right now between the NDP and the Liberals, and they have a pretty good free rein. I like to believe that most members here are genuinely independent and they do believe it is important to hold the government to account, particularly during these moments of existential crisis. It is not just the role of a small group of opposition senators. It is incumbent on all of us because we do have independence in this chamber by virtue of our tenure and the fact that we are not accountable to any prime minister, including the prime minister who appointed the vast majority of you. The truth is, the moment you are summoned to this institution, you are accountable to one person, and that is the Canadian people. I take that oath seriously and I know that majority of you do as well.

When we look at the body of evidence and what is going on across the country right now, mandates are being dropped; Canadians are going back to work. We have the challenge of needing to get the productivity of the nation back to where it was. It is the biggest challenge that faces our economy and our people, including the productivity of this institution.

It is morally important, more than ever before, for us to do our work in a diligent, tangible and safe fashion, respectful of each other and respectful of the challenges that we have. But colleagues, it is crystal clear that we are going into another phase of this pandemic. We have to be ready for it. We have to deal with it. We have to lead the way. But first, we have to catch up and align ourselves with provincial governments, with health care advice and with the rest of the country.

For the reasons that I wanted to outline — I didn’t plan on entering the debate, but I think these are some important points that I wanted to share with everyone — I will be supporting Senator Plett’s amendment. I think it is only logical. I don’t think it is far-fetched. What Senator Plett is really asking for is a week and a half to do the diligent work that it seems to me has not been done by our administrative body in this institution, the Internal Economy Committee, in order to find out if this extreme measure, namely, to go to the end of the month of June, is really necessary. At the end of the day, I don’t see the necessity. Someone is going to have to make a compelling case of why we need to continue to do this. It is not enough to say the House of Commons has done it because, as I said in my argument, the fact that, for political expediency, the House has decided to not be serious about their work, doesn’t necessarily mean that we have any obligation to follow.

I think the amendment from Senator Plett is very reasonable, namely, to do the due diligence that hasn’t been done and, as of May 9, to be able to take a firm decision about us continuing with this hybrid virtual system or deciding to put an end to it with all the facts before us. Thank you, colleagues.

Senator Gold: Yes, thank you for reminding me of that. We had consensus at the leadership table on the text of the motion, and that is what I was referring to. I went on to say, in response to a more recent question, that I didn’t expect that the motion would necessarily be positively embraced by the opposition. You made your opposition to hybrid very clear. I nonetheless believe that the appropriate thing to do for the Senate and for Canadians is to allow us to vote on the amendment that I proposed and to do so in the context of a hybrid sitting when all senators could participate.

Hon. Judith G. Seidman: Honourable senators, I rise today to speak to Senator Plett’s amendment on the motion concerning hybrid sittings in the Senate.

I support this amendment because I value evidence-based decision making. We all may have our own viewpoints and preferences about hybrid sittings or in-person sittings, but it is science that should guide our decisions.

This is what Senator Plett’s amendment is asking for — the data which will provide information to draw the necessary guidelines. Only armed with this data can we be more certain that we are making the wisest decisions.

As an epidemiologist, I take seriously the research — ever-evolving — that informs public health around COVID-19 health protocols and precautions. These are essential tools, always based on science, that provide the input to our decision making, yet are often updated. And these protocols are meant to protect Canadians from the pandemic’s worst outcomes: severe illness and death.

Often, we hear criticism of COVID guidelines because they have changed over time. However, that is the essence of science. In the case of COVID-19, more than two years ago, we started with a novel coronavirus, essentially an unknown quantity.

We have experience with pandemics that could have better informed our decision making. In 2010, the Standing Senate Committee on Social Affairs, Science and Technology conducted a comprehensive review of Canada’s response to the 2009 H1N1 influenza pandemic. As a member of that committee, I had the opportunity to participate in this study.

The final report, Canada’s Response to the 2009 H1N1 Influenza Pandemic, published in December 2010, provided 17 key recommendations to strengthen Canada’s future pandemic preparedness plan. Although the H1N1 pandemic did not have the same global impact as the COVID-19 pandemic, the lessons learned are invaluable.

I would like to reiterate that it is true that scientific research on any given issue evolves over time with an ever-growing body of evidence. It is also true that there are studies that contradict each other. There are always studies that are outliers. But public health cannot afford to wait for science to evolve when delivering effective approaches to detect and manage a pandemic. They have to operationalize in an ongoing way, using the ever-growing cumulative body of evidence that provides the best information we have at the time.

This does not mean that tomorrow or next week will be the same because public health must be nimble enough to continuously update their advice.

During this pandemic, we have seen public health transform their advice repeatedly. At the outset, we were advised that masks were not necessary. However, after more evidence accumulated, we were told that they provided an important layer of protection. We have even received updated information on the types of masks we should use, depending on the circumstance.

Two years ago, we were told to disinfect surfaces because the virus could live on some surfaces for long periods of time. To protect themselves, individuals would even disinfect their groceries. As evidence built, it became clear that we should worry about aerosol transmission as opposed to fomite transmission.

This is an example of how public health works. You must make decisions based on the best available evidence at the time. It is a constant process of evidence-building and probabilities. Frankly, it is rare that we have certainty, yet we have to accept this and make important decisions.

Even now, after more than two years of this novel coronavirus circulating globally, we know that we are still accumulating more uncertainties about COVID-19 — effectiveness of vaccine boosters, length of immunity periods and the infectiousness and deadliness of Omicron and all its variants. What we do see now, though, in cumulative data is that the Omicron variant has less serious health consequences, fewer hospitalizations, fewer cases in intensive care and fewer deaths. We will continue to see updated public health advice as a result.

You may also be hearing now that the case incidence rates in regions across Canada for this sixth wave are flattening. Some say that as much as 30% of the Ontario population, for example, have had Omicron. But we know that these are all estimates because testing has not been consistent. In fact, most of us are using rapid tests now, which are not reported to public health at all.

So the pandemic of today is not the pandemic of last year. Public health officers across the country in every province and territory have been modifying their best advice in accord with changing research and data. But colleagues, there isn’t yet sufficient evidence to support with overwhelming certainty that we are at the end of the pandemic, so we continue to base our decisions on the accumulation of data.

Colleagues, given these crossroads, I do believe there is something that we should add to this amendment. Thus, I would like to propose a subamendment.

As we are all aware, Canada has a Chief Public Health Officer, Dr. Theresa Tam. As the Chief Public Health Officer, she is the federal government’s lead public health professional and has helped to guide us through this pandemic. Dr. Tam’s role is to provide advice to the Minister of Health and the president of the Public Health Agency of Canada on health issues. She also works with other governments, jurisdictions, agencies, organizations and countries on health matters and provides an annual report to the minister on the state of public health in Canada.

Her office and responsibilities require her to be well informed on the latest health data and to provide advice on how this should be translated and operationalized in a practical manner to navigate the waters of this pandemic.

In my view, her advice to us would be invaluable.

My subamendment simply asks that as part of our data collection to inform our current decision making, we invite Dr. Tam to provide us any advice she may have on the risks and timing of the Senate’s return to in-person sittings exclusively. This amendment simply ensures that before making our decision about hybrid sittings, we access the advice of the highest public health official in the country.

Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I rise to add my voice to the debate on Senator Seidman’s subamendment and to make some more general comments on the direction of the debate so far.

First of all, I want to thank Senator Plett for his speech, delivered with passion and conviction as we would have expected and for his suggestion for moving forward, and also Senator Seidman for your suggestion to provide another level or layer of that.

All that said, as the Government Representative, I am going to be speaking against this subamendment.

Colleagues, I want to remind us that the process that led us to this place today — or yesterday when I tabled the motion that has now been amended and subamended — was a product of serious discussion preceded by consultations and was informed by both an understanding and a reference to public health input and information, some of which, to some degree, is publicly available. Senator Seidman quite properly pointed out that science is not an exact science, if I can use it in those terms. Witness, for example, the estimations we have to make based upon waste water because we no longer have the capacity to test.

It’s important that we understand what we do know and the limits of what we know. What was informed by the decision to propose the extension of hybrid to June 30 was to be cautious and careful out of consideration for the health and safety of senators, their families and staff. That remains — although we may disagree as to the level of risk. I think we all share that concern, as we should as responsible citizens and parliamentarians.

All groups consulted, negotiated and worked in good faith to reach a text to which I spoke today and which was moved today. I won’t repeat my speech, you can be assured. The text represented an attempt to balance the needs for increased Senate time, committee time and to maintain hybrid for the remaining weeks until June 30. It is a position that was supported and is supported by three of the four groups beyond the Government Representative Office.

I’m not being ideological about this. I’m trying to be practical and I’m trying to be respectful — and have been, as I will always try to be — of the Senate and its authority ultimately to decide how it wants to organize. But I really do think it makes sense at this juncture to consider the importance of not disenfranchising senators. That’s why I still believe that the motion that is put before you, which will take us until the end of June, is the best way to go.

Let us be clear, this is not government policy. The decision to introduce hybrid and to extend hybrid was a decision of the Senate. Indeed, our hybrid model was developed here in the Senate and by the Senate. The health and safety information upon which I relied to come to the conclusion was not provided by the PMO, it was provided by the Senate and the Senate Executive Committee.

If the Senate wants to return to in-person sittings, that’s for the Senate to decide. We’re not going to stand in the way of that. This is not our agenda item. This is what we collectively have decided up to now and I’m encouraging us to continue to do so until we rise at the end of June.

I’m going to vote against this amendment. We’ve spent a lot of time on this. I don’t mean today, but a lot of time. It’s time that we focus on what our job is whether in hybrid or not, whether in committee or in the chamber. We have work to do on legislation and on public policy issues, and I really think the time has come to do so.

Respectfully, to those who propose it, I’m going to be voting against this amendment, and I encourage others to do so as well.

Hon. Leo Housakos: Will Senator Gold take a question?

Senator Gold: No. What I said was that the decision to promote the idea of extending hybrid was made based upon health information that was provided to us by the Senate, not the PMO. Second, that it was a decision that was supported by the leadership of three out of the four groups, and indeed all four groups worked on the motion that was before you.

So what I’m saying to you is that this is clearly a government motion because I undertook, as I did in the past, to make sure that when there is a consensus in the Senate — as I thought there was when I tabled this motion yesterday — that I would facilitate its timely and effective debate and passage as only a government motion could do.

If our rules were different, I quite suspect that the motion might have come forward from some other hands. But if it was a reasonable motion, as I believe the motion is that I put before you, I would support it.

I hope that answers your question.

Hon. Denise Batters: Senator Gold, earlier today in your speech about hybrid sittings you were saying you really didn’t want a permanent hybrid sitting situation, yet I think you let the veil slip a little bit near the end of that speech when you said that you were talking about extending to at least the end of June. What is the real answer of when you want to actually extend hybrid sittings until because you definitely said at least until the end of June.

Senator Gold: Yes, thank you for pointing that out. It struck me as I was reading it that that was not entirely what I intended.

There is no hidden agenda here. I made it clear — and I’m going to make it clear in response to your question — that the only thing that we are concerned about and should be concerned about is whether or not hybrid should be extended to June 30. It is not the position of the Government Representative Office nor is it the position of this government that this is a smokescreen for anything else.

The focus should be on whether or not, between now and when we expect to rise for the summer break, we can function in a safe and appropriate environment. That’s the position of the government and that’s my position. Thank you for the opportunity to clarify that.

Senator Gold: Thank you for your question. Again, let me be clear: I was responding in the context of allegations or insinuations that somehow there was some sort of secret plan here — as Senator Housakos surmised or wondered out loud what meetings might have taken place. The answer is no.

The information on which I based my conclusion that it was appropriate to extend it — and presumably the information upon which the other senators and leaders who supported the prolongation to June — is a combination of things. It’s information from the Senate about the cases in the precinct. It’s evidence that is publicly available in terms of the situation not only in Ottawa or in Ontario, but in other provinces. It is information with regard to what we don’t know, as I said earlier in response to Senator Seidman, that we have to guess how bad the situation actually is based upon extrapolations from waste water data because we’re not testing.

It is the information that was available upon which to make a proper decision.

Hon. Raymonde Saint-Germain: Senator Gold, would you agree with me that confusion has been brought to this debate with regard to the fact that Internal Economy has no say in the way the chamber will function, and that the chamber’s function is within the chamber’s purview?

Second, your main motion is clearly stating that the extension of hybrid sittings will go by the end of June — that is June 30, not “at least” June 30 — and also that there is a redundancy in Senator Seidman’s subamendment with regard to the fact that, on Senator Plett’s amendment, all opinions and guidelines from public health officials from the federal government would include, first and foremost, the advice of Dr. Theresa Tam?

Senator Plett: Let me ask you this question: Is there anything — and I’m not going to talk about our personal conversations — that I said, at any point, where I said I will support this motion? Did I do anything — and if I did, I would like to know what it is. I was clear from the beginning, Senator Gold, that I do not support this.

The fact is that I tried to be congenial, tried to be a team player and worked on the text, realizing that we do not have a majority in this chamber anymore. I understand that. I understand that, probably, when these things come to a vote, I may not be on the winning end of these votes. As I said to you, hope springs eternal. But the bottom line is that I understood we probably will lose the vote. Then I collaborate with you and say, if I’m going to lose the vote, let’s at least have part of the text of the motion — you keep saying the text of the motion, and that’s unfair. Part of the text of the motion, I was very much a part of. As a matter of fact, I would suggest that the majority of those were suggestions I made. I’m happy about that. I am happy that, should we lose the vote on this motion, at least that will be in there, because that will at least allow committees to do a better job than they have been doing until now. Not as good as they should, but a better job than they have been doing until now.

Would you not agree, Senator Gold, that is in fact what I said to you from the get-go, and that it is unfair for you to paint in this chamber as though, when three out of four leaders say, “We agree with you,” that that should be the vote, we should not debate it in this chamber and we should not vote against it? Because that’s what you seem to be implying.

Senator Gold: Thank you, senator, but that’s not what I was implying. On the contrary, I was simply reporting that what I brought forward was the fruit of discussions among all the groups. I will also respect the confidentiality of our conversations, but I don’t believe that I suggested in this chamber that I assumed you would support this. If Hansard reveals otherwise, let me apologize in advance, but I don’t believe I said that.

I simply believe, as I’ve said — now I am repeating myself rather unnecessarily — we need appropriate debate. We are in the middle of the debate — and I welcome the debate — and that we should be able to reach a vote, such that this gets resolved and we can focus on the work for which we were summoned.

Senator Housakos: Honourable senators, again, I’m a little bit perturbed by the debate amongst the leadership here in this chamber, on this floor. You were very quick, Senator Gold, to agree with my friend Senator Saint-Germain about how the chamber here has authority over the Internal Economy Committee and all committees. Of course, senators pick and choose whenever the chamber has the authority to drive and guide committees.

As I said earlier in my speech, the Committee of Internal Economy is the administrative body of this chamber. I still, government leader, find it disturbing that on such an important issue that falls within their purview, they did not deal with it transparently, actively and openly, before it came up the pike here to this chamber. Ultimately, this chamber is the final authority.

The question to you, government leader, is: Why did you rush to put this motion to the Senate floor without it being appropriately debated and reviewed by the Committee of Internal Economy? Will you also agree that before the government takes any measure to reduce the capacity of this chamber to operate at 100%, its maximum capability, that you would consult the Committee of Internal Economy, the members of the Committee of Internal Economy and everyone else involved, before you move a government motion like this?

Hon. Gwen Boniface moved second reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

She said: Honourable senators, I rise today to begin second reading 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.

The mandate of the Canada Border Services Agency, or CBSA, is first and foremost to protect national security and public safety at Canada’s borders while facilitating the legitimate flow of persons and goods. This mandate is carried out in accordance with CBSA program legislation.

Personal digital device examinations are conducted sparingly and selectively. However, these examinations have a high success — or resultant rate — of uncovering regulatory contraventions.

In 2021, the CBSA processed just under 19 million travellers and conducted approximately 1,800 personal digital device examinations. This represented an examination rate of less than 0.01% or around 1 in every 10,000 travellers.

However, over 27% of the approximately 1,800 examinations of personal digital devices uncovered a regulatory contravention. This ranged from the discovery of prohibited goods posing a threat to public safety, including child pornography and other obscenities, to evidence of undervalued and undeclared goods.

This statistic is significant and demonstrates the means of identifying indicators delivering a very good outcome.

Regarding child pornography in particular, personal digital devices are now the primary method of importation of this prohibited material. As we all know, senators, child pornography is not just about pictures, it is about victims — child victims.

In 2019, the WeProtect Global Alliance reported 18.4 million referrals of child sexual abuse material were made to the National Center for Missing and Exploited Children.

Europol reported that over 46 million unique images or videos related to child sexual abuse existed in its repository.

The screening and examination of people and goods at the border, including the examination of personal digital devices, are fundamental to maintaining border integrity and protecting the health, safety and security of everyone in Canada.

CBSA officers, whose day-to-day activities will be impacted by the proposed amendments in Bill S-7, are authorized to examine all goods crossing Canada’s border, to execute the agency’s mandate and to ensure harmful goods are intercepted before they can enter our communities. The CBSA derives these authorities from the Customs Act and also screens for compliance with other statutes, such as the Immigration and Refugee Protection Act, the Special Import Measures Act and numerous others defined as “program legislation” under the CBSA Act.

This mandate includes assessing value for goods; collecting any duty and taxes owed; and intercepting any prohibited, controlled or regulated goods. Courts have long upheld these authorities — the rights of a sovereign state to control what enters its borders and the lower expectation of privacy at the border.

However, CBSA’s long-established authorities to examine imported goods have come under greater scrutiny in recent years. This scrutiny is directed at personal digital devices, such as smartphones, laptops and the like, given the exceptional capacity for storage they now have and the degree of personal information they now contain, compared to what would have been purses and baggage.

So, senators, how does this relate to Bill S-7?

In October 2020, the Court of Appeal of Alberta ruled in the cases of R. v. Canfield and R. v. Townsend that the examination of the content of personal digital devices by CBSA officers under paragraph 99(1)(a) of the Customs Act was unconstitutional under the Canadian Charter of Rights and Freedoms, as no limits were imposed on these examinations. In both those cases, it involved the importation of child pornography on digital devices.

The prevailing authority on border searches dates back to the 1988 Supreme Court case R. v. Simmons, but it is an important backdrop to understand where CBSA finds itself today. At the time, the court in Simmons recognized that the degree of personal privacy reasonably expected by individuals at the border is lower than in other situations. Three types of border searches were identified with an increasing expectation of privacy.

The first was routine questioning, something that every traveller goes through at a point of entry, which can be accompanied by a search of baggage and/or a frisk of outer clothing. I’m sure most of us have been through this routine process. The second was a strip or skin search, which is conducted in a private room. The third is a body-cavity search, usually looking for drugs, obviously the most intrusive, with the utmost expectation of privacy. Of course, with each added layer of search, the justification must be greater to ensure its constitutionality.

As indicated in Simmons, the first search, that of routine questioning with a potential baggage search or frisk, is the least intrusive type of search and does not raise constitutionality flags under section 8 of the Charter. As a reminder, section 8 reads, “Everyone has the right to be secure against unreasonable search or seizure.”

That is because of the lower degree of personal privacy at the border, as per paragraph 49 of Simmons, which reads as follows:

. . . the degree of personal privacy reasonably expected at customs is lower than in most other situations. People do not expect to be able to cross international borders free from scrutiny. It is commonly accepted that sovereign states have the right to control both who and what enters their boundaries. For the general welfare of the nation the state is expected to perform this role. Without the ability to establish that all persons who seek to cross its borders and their goods are legally entitled to enter the country, the state would be precluded from performing this crucially important function. Consequently, travellers seeking to cross national boundaries fully expect to be subject to a screening process. . . .

As the court notes, searches at the border are unique by having to find the balance between privacy rights and public safety, which emphasizes public safety over privacy, especially at the first level of searches defined in Simmons.

So now that we know that, based on the prevailing jurisprudence of Simmons, there are three levels of searches in a border context, and that the first level of searches does not engage Charter rights under section 8, then why do we have this bill before us?

Senators, the issue is with the term “goods” found in paragraph 99(1)(a) of the Customs Act. This subsection reads:

Senators will notice that this paragraph authorizes border officers to examine any goods but omits any kind of legal threshold to be able to do so. By comparison, paragraph (b) of the same subsection requires “reasonable grounds” to open a piece of mail.

The definition of “goods” can be found in subsection 2(1) of the Customs Act and “includes conveyances, animals and any document in any form.” In the border context, “goods” has been interpreted to include electronic documents that can be found on a personal device, such as a laptop, cellphone or tablet. You can see the Saskatchewan Court of Appeal case of R. v. Bialski and the Ontario Superior Court of Justice case of R. v. Moroz for those interpretations.

This information leads to our constitutional quandary. The Customs Act’s definition of “goods” and its application to subsection 99(1)(a) allow a border officer to search personal digital devices with no legal threshold to do so and with no constitutional remedy, as the first category of searches described in Simmons, of which this category applies to “goods,” do not engage section 8 of the Charter.

But more than this, technological advancements have changed drastically since the Simmons ruling in 1988. Digital devices have the ability to hold an exorbitant number of documents in electronic form — something that could not have been taken into consideration in the year of the Supreme Court ruling in Simmons. Back in 1988, the types of documents that could be searched were physical and in the person’s possession at the time of the border encounter, such as a briefcase, a purse or another form of baggage. It makes sense that these types of documents were able to be checked without breaching section 8 of the Charter through what would be deemed a normal search.

But, senators, as we all know, times have changed.

Nowadays, and especially in the new millennium, electronic devices are the norm. Most people in Canada have a digital device, and most people travel with a digital device. Those tools now hold an abundance of information, including some very personal information. You are able to create photo albums and music playlists or unlock your front door from thousands of kilometres away with the simple touch of a button. You can bank remotely and pay for your groceries without ever using a physical debit or credit card. These devices have all our likes and dislikes, our connections and our calendars. They hold the keys to our most personal and private information, and the law currently allows for customs officers to search it without a threshold and without Charter protection.

As you all know, honourable senators, the doctrine of legal precedent is fundamental to our legal system. The Supreme Court of Canada is the final arbiter of intervention, so when they make a ruling, as they did in Simmons, that ruling stands. But that doesn’t mean that Supreme Court rulings cannot be revisited. As was stated in the 2015 Carter v. Canada (Attorney General) case, “. . . stare decisis is not a straitjacket that condemns the law to stasis.”

Trial courts can reconsider higher court rulings, including the Supreme Court, in a couple of circumstances: The first is if a new legal issue is raised, and second — important to the situation here — is when there is a change in circumstances or evidence that fundamentally shifts the parameters of the debate.

Senators, the advancement of technology between Simmons in 1988 and Canfield last year are substantial. The Court of Appeal of Alberta recognized that the change in advancements “fundamentally shifts the parameters of the debate,” which allows for the revisitation of the Supreme Court ruling in Simmons.

It is for these reasons that the Court of Appeal of Alberta found subsection 99(1)(a) to be unconstitutional, despite the 1988 precedent-setting case.

The court declined to declare an acceptable specific threshold in order to examine personal digital devices. It instead acknowledged that something lower than reasonable grounds to suspect may be more appropriate for the border context.

In paragraph 75 of the Canfield decision, the court states:

Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases.

The court continues in paragraph 112:

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.

The Court of Appeal of Alberta ruled that a declaration of constitutional invalidity of one year was appropriate for the government to craft a solution to this unconstitutional provision. The Government of Canada did apply for an appeal with the Supreme Court of Canada following this Alberta ruling, but it was subsequently dismissed.

As outlined in paragraph 112 of the ruling, the government did so choose to devise a new or novel approach to strike a balance between privacy and personal digital devices and border security.

The Government of Canada is proposing a bill to strengthen the current legislation governing the examination of personal digital devices by both CBSA officers and the United States Customs and Border Protection officers who conduct pre‑clearance here in Canada. This bill will create standards that must be met before a traveller’s device can be examined. It proposes legislative changes that include these three measures: first, establishing a new threshold for the initiation of a personal digital device examination that requires reasonable general concern, and I will expand on that shortly; second, creating an authority to examine documents on personal digital devices in the Customs Act and the Preclearance Act, which is required to differentiate these devices from other goods, including commercially imported or exported digital devices; and, finally, requiring specific-purpose limitations that formally restrict examinations of personal digital devices to regulatory border-related examinations.

The key component of the bill is the new examination authority under section 99.1 of the Customs Act. This section details the requirement of a reasonable general concern before a designated border officer may examine documents on a traveller’s personal digital device to determine if the device contains contraband or evidence of a contravention of border laws regarding the importation of goods. Certain border officers, or a class of border officers, would be designated by the president of the CBSA under subsection 99.01(2) of Bill S-7 to conduct such examinations.

Similarly, the Preclearance Act currently authorizes U.S. pre‑clearance officers to conduct no threshold examinations of goods bound for the United States. Pre-clearance refers to the arrangement between two countries allowing customs and immigration officials from the country of designation to be located within the country of origin to determine admissibility of travellers or goods to the designated country. We all know the U.S. has been conducting pre-clearance at Canadian borders since 1952 under various arrangements, and this program is currently in place at Canada’s eight largest airports.

The Agreement on Land, Rail, Marine, and Air Transport Preclearance Between the Government of Canada and the Government of the United States of America is the current treaty for pre-clearance with the United States. The Preclearance Act implements the provisions negotiated in the agreement into Canadian law.

For the purposes of the Preclearance Act, “goods” include currency and monetary instruments, animals, plants and their products, conveyances, and any document in any form. At the direction of a pre-clearance officer, travellers must present, open or unpack any goods in their possession.

Furthermore, all powers exercised by U.S. pre-clearance officers must be in accordance with Canadian law, including the Canadian Charter of Rights and Freedoms.

Given that the existing pre-clearance examination authorities are similar to those contained in the Customs Act as it currently reads, the proposed amendments to the Preclearance Act would continue to align pre-clearance examination authorities with those that apply to our CBSA officers. Namely, they would also require a reasonable general concern to examine personal digital devices during pre-clearance. Amendments to the Preclearance Act would ensure that U.S. pre-clearance officers working in Canada are bound by the same standards that apply to CBSA officers and honour our Charter.

Other pre-clearance changes would include a new authority for the Governor-in-Council to create regulations guiding the conduct of personal digital device examinations and a new authority for the Minister of Public Safety to issue directions.

Generally speaking, the changes will establish procedures that U.S. pre-clearance officers must follow when examining and searching documents on a traveller’s personal digital device, and requirements for detaining and transferring the device as applicable.

The proposed bill will provide a renewed legal foundation under which both CBSA and U.S. pre-clearance officers can lawfully conduct these examinations. This will preserve the ability of CBSA and pre-clearance officers to effectively identify contraventions of the program legislation and to intercept contraband while offering privacy protections to travellers in accordance with Canadian law.

To clarify, examinations of personal digital devices under these authorities must be conducted for regulatory purposes consistent with routine border processing. The purpose of such examinations is to ensure compliance with various regulatory rules that govern the import and export of goods under border legislation.

As is the case with physical goods, in rare circumstances where the officers conducting regulatory examinations discover what may be evidence of a criminal offence, that evidence may be provided to local law enforcement authorities who may then conduct their own criminal investigation and consider possible criminal charges.

With respect to the proposed changes to the legislative examination authority, while an established higher threshold, such as reasonable grounds to suspect, was considered, this threshold is used in limited contexts in border processing and was deemed to be inappropriate for these types of examinations.

Further, the new reasonable general concern threshold ensures that officers need not identify a specific suspected contravention prior to beginning an examination. In the border context, there may be a difficulty identifying specific contraventions given CBSA officers have short interactions with travellers and limited access to information.

Border officers gather additional information through their interactions with travellers, including baggage examinations and routine questionings. Through these interactions, officers may develop concerns resulting from the presence of indicators potentially signalling non-compliance with border legislation. Indicators of non-compliance may be behavioural in nature but do not point to a specific identifiable regulatory contravention.

These types of indicators are well recognized by officers who are trained in identifying them. The higher threshold of reasonable grounds to suspect was concluded to be too onerous for personal devices, and the difficulty of meeting the reasonable grounds to suspect threshold for cases involving personal digital devices could lead to an overall weakened border control and a likely decrease in the interception of prohibited materials, such as child pornography.

After careful consideration, as well as consultation with key stakeholders, a new threshold was developed that actively responds to the court’s ruling of unconstitutionality while balancing traveller privacy and operational enforcement priorities.

As I’ve mentioned, the threshold of “reasonable grounds to suspect” is currently required under the Customs Act in order to initiate non-routine searches such as the personal search I referred to, either skin or strip search. As this is a more invasive exam, and beyond what is considered routine exams, it would require the higher “reasonable grounds to suspect” threshold, and it would have to be satisfied.

This new threshold of reasonable general concern requires that concerns be individualized to the traveller’s personal digital device at the time of border crossing; however, it does not require a specified suspected contravention to be identified.

The threshold has been tailored to respond to the unique border context where courts have long upheld that travellers have reduced expectation of privacy. It is meant to require a lower degree of concern as compared to the reasonable grounds to suspect. At the same time, the reasonable general concern threshold requires indicators to be objective and factually grounded. This will ensure that CBSA officers’ conduct is subject to meaningful review.

This is a novel approach only in that this new legislation threshold does not currently exist in Canadian statute. For the first time, and after careful deliberation and analysis, a new threshold for personal digital device has been constructed to respond specifically to the unique border context. It is a unique threshold for personal digital device examinations only. It requires that the officer have reasonable and objective concerns related to a specific location — the border — and a specific person — the traveller. To emphasize, currently the Customs Act has no threshold for personal digital device searches, but Bill S-7 seeks to implement one.

Honourable senators, it being said that there is no legislated threshold on personal digital device searches does not mean that our border officers have been operating in an unconstitutional way. The CBSA is very aware of privacy rights and the effects that searches may have on those rights. The CBSA has used their own internal policies to guide searches of devices for quite some time as they relate to goods as defined in the Customs Act.

Bill S-7 is seeking to legislate those internal operational practices and policies that the CBSA has already been using but under a new section specifically tailored to documents on personal digital devices. This new section does not detract from the powers of the CBSA to search personal digital devices under their own internal policies. It simply legislates what they have already been doing.

For instance, the most up-to-date version of the policy from 2019 indicates that:

An examination of a traveller’s digital device should occur only if there is a multiplicity of indicators suggesting evidence of a contravention of CBSA program legislation may be found on the device.

An “indicator,” for the purpose of CBSA policy, is:

. . . a single piece of information, trend, abnormality, or inconsistency that when added to other information or data raises a concern to an officer about the threat presented by a traveller or shipment. It is possible that over the course of an interaction with a traveller, a single, substantial, and articulable indicator observed by a CBSA officer may be sufficient to justify the examination of a traveller’s digital device.

It is these indicators that would give a border officer a reasonable general concern that there has been a regulatory contravention. Again, these indicators are general in nature and don’t have to point to a specific contravention, but clearly the CBSA has been operating in a fashion that is being considered legislatively. They already conduct their searches with the same alacrity as was found in Bill S-7.

The CBSA policy also clarifies when a personal digital device can be searched. It emphasizes that the examination of the device should not be construed as a matter of course, that CBSA officers can’t examine digital devices with the sole or primary purpose of looking for evidence of a criminal offence and that examinations of a personal digital device must be performed with a clear link to administering and enforcing the CBSA program legislation.

To ensure that the actions taken by border officers in generating a multiplicity of indicators warranting a search of the device, comprehensive note-taking requirements are mandated, even if the search does not have a result. These note-taking requirements are necessary to assist border officers in being able to articulate the steps of a digital device examination for the purpose of their legislation, to serve as evidence should legal proceedings arise, to hold the officers and the CBSA at large to account should allegations of misconduct arise through complaints and, finally, to serve as a record of the use of statutory authorities to officers.

As for the types of information that should be tracked in the note-taking process, examples include but are not limited to indicators observed by the border officer, the rationale for the personal digital device examination, the type and description of the device, the steps taken to disable network connectivity, the date and time as it appears on the device, the local date and time, duration of the examination, areas and items examined on the device, the rationale for examining each type of data — for example, photos or documents — the traveller’s demeanour and relevant communications with the traveller with respect to the device and its contents, who was involved in the examination and how the examination was performed.

Now, a question came up with respect to passwords. As for device passwords, there’s a two-step process if evidence or prohibited content is found. The first step is to write the numeric or alphanumeric password on a piece of paper. Biometrics-enabled passes, such as fingerprint or face scans, should be avoided, as any device with biometrics-enabled pass normally also has a numeric or alphanumeric password. If the examination is non-resultant, the piece of paper is handed back to the traveller seeking entry into Canada and isn’t officially recorded in the note taking. If evidence or prohibited content is found, this password would then be officially recorded as part of the note taking for further steps.

As was mentioned, personal digital devices can only be searched with the network connectivity turned off, limiting the search to what can be found on the device only and not what would be in the cloud. Border officers are not allowed to access any data that is stored remotely.

Honourable senators, this is how the Canadian Border Services Agency operates now through internal mechanisms. The examinations are limited to content of concern related to the program legislation and only to areas of the device and data directly related to indicators or concerns identified by the border officer during the interaction with the traveller.

The reasons for an examination have to be clearly articulated, and diligent note taking is a must. There is also a reporting requirement to CBSA headquarters for all examinations of personal digital devices which tracks the number of examinations, their dates and at which port of entry they occurred.

Creating a new threshold for personal digital device examinations in Bill S-7 won’t alter the border security landscape too much for those officers who are at the border. They are currently operating with restrictions in place without any legislative necessity to do so.

The CBSA has already taken upon itself to put into place proper safeguards to balance the protection of privacy of those entering Canada with the protection and security of Canada, and the court in R. v. Canfield has acknowledged their efforts. I am confident that their transition to this legislated regime could be seamless.

Though the court’s ruling was only applicable to CBSA officers in the province of Alberta, these legislative amendments will mean that all CBSA officers and U.S. pre-clearance officers operating in Canada must meet the reasonable general concern threshold in order to initiate an exam of personal digital devices.

Bill S-7 is even more timely, considering that the Ontario Superior Court of Justice also ruled that subsection 99(1)(a) was unconstitutional in a duo of cases, R. v. Pike and R. v. Scott, just last week. These cases are similar to Canfield in that they involve the importation of child pornography.

The Ontario court decided that its ruling would be coextensive with Canfield, meaning that its suspension of constitutional invalidity would expire on the same day as Alberta’s.

This reasonable general concern examination authority includes specific purpose limitations, ensuring that the examination must be regulatory in nature and will be limited to what is stored on the device at the time of the border crossing.

The Hon. the Speaker pro tempore: Honourable senators, it is now six o’clock. Pursuant to rule 3-3(1) and the orders adopted on November 25, 2021, and March 31, 2022, I am obliged to leave the chair until seven o’clock unless there is leave that the sitting continue. If you wish the sitting to be suspended, say, “suspend.”

I hear, “suspend.” We resume at seven.

(The sitting of the Senate was suspended.)

(The sitting of the Senate was resumed.)

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.