The Hon. the Speaker pro tempore: It was moved by the Honourable Senator Seidman, seconded by the Honourable Senator Wells:

That the motion in amendment be not now adopted, but that it be amended by:

1. adding, after point (b) in the amendment, a new point (c) as follows:

“(c)a letter from Dr. Theresa Tam, Chief Public Health Officer of Canada, outlining how the Senate sitting in person only would contravene guidelines issued by her office”; and

2.changing the designation of points (c) and (d) in the amendment to points (d) and (e).

On debate.

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.

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.

Hon. Gwen Boniface: Honourable senators, 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 a device at the time of border crossing. Of equal importance, however, is that the officer’s concerns must be reasonable, insofar as they can be objectively identified and meaningfully reviewed, akin to what CBSA is already doing.

This, combined with new legally binding controls to be included in regulations, would guide the conduct of the examination. These controls are intended to create the appropriate limits on the examination and would include specific note-taking requirements and restrictions around accessing documents stored only on the device itself, and not on “the cloud.” Again, that is something the CBSA is already doing internally.

Colleagues, in a world of ubiquitous smartphones and constantly evolving hand-held technology, this legislative change is necessary to maintain the integrity of our border and keep Canadians safe, while demonstrating the ongoing commitment to respecting traveller privacy. While, yes, this is a novel approach, it is one that has been carefully developed, having regard to the uniqueness of both personal digital devices and the border regulatory context.

As with many legislative amendments, it is likely that there will be other challenges in charting this new ground. That said, the approach laid out for this bill responds to the legal concerns the court identified in Canfield, and now the Ontario cases, and preserves operational integrity for the CBSA, which should be vitally important to all Canadians.

The changes in this bill will ensure that the CBSA continues to fulfill its mandate to protect and secure Canada’s borders, while at the same time respecting the privacy rights of travellers. It will also align the examination authorities of CBSA officers and U.S. pre-clearance officers, both of which are subject to the Canadian Charter of Rights and Freedoms. In my view, it is a necessary and measured balance between privacy and security.

Practically speaking, what do you think these amendments mean for the average traveller? Frankly, colleagues, I don’t think we will notice much of a difference in processing when we return to Canada from our voyages. As mentioned, much of what is being legislated in Bill S-7 is already being done. This bill isn’t creating substantial new authorities for CBSA officers. It is, in fact, limiting those authorities found to be unconstitutional, authorities which the CBSA itself has already limited in its internal policies and operations for inbound travellers. But don’t misconstrue this bill as being any less important because of this.

Senators, the suspension of constitutional invalidity was originally for one year only, which put us to last October. The government applied for, and received, a six-month extension on that suspension. The extension is now set to expire today as the court refused a further extension. Beginning tomorrow, we will have two regimes in this country. Alberta and Ontario will be required to use subsection 99(1)(e) of the Customs Act, which obligates border officers to suspect on reasonable grounds that a contravention has occurred to examine personal digital devices, while everywhere else in the country can continue to use subsection 99(1)(a) as they have since the Simmons ruling. The higher bar of reasonable grounds to suspect is detrimental to the mandate of our border officers and detrimental to the public safety of our nation. Suspicion on reasonable grounds is harder to determine than using a multiplicity of indicators pointing to a contravention, which border officers currently use.

It is imperative that we take this incongruity seriously in the meantime. I implore you, colleagues, not as the sponsor of this bill, but someone who was involved in law enforcement for a long time, to prioritize Bill S-7 for our consideration. We can’t let this incongruity stand for a day longer than necessary for two reasons. First, training modules can’t occur for CBSA officers until the finalized version, and the finalized wording, of the bill passes through Parliament. Second, and most importantly, each day that passes from here on out can be used by those actors seeking to import obscene materials, such as child pornography, into Canada. Starting tomorrow, it will be much easier to do so through Alberta and Ontario. Because of this, let’s be prudent, let’s be efficient, but let’s also be critical because this bill is seeking to implement a new evidentiary threshold for our ports of entry.

And let us ensure that we consider this bill, keeping in mind what is good for our borders and what is good for our communities.

Thank you. Meegwetch.

Hon. Bev Busson: Thank you, Senator Boniface. I understand the reasoning for the threshold that Bill S-7 seeks to create, but I am worried that implementing this new threshold will have a negative operational impact on the important work that our border officers and the United States pre-clearance officers do on a regular basis to protect our borders and, by association, all Canadians. As you mentioned in your speech, the border is unique, with its own privacy implications and thresholds that are generally lower than in most other places. But it worries me that this bill will create difficulties for border officers to search questionable personal digital devices, thus making it harder to find obscene materials and child pornography and, at the same time, easier for this unspeakable material to enter Canada. Can you assure me that the creation of this threshold will not negatively impact the operations and efficiency of our border officers?

Senator Boniface: Thank you very much, Senator Wells, for your question, which very much aligns with Senator Omidvar’s question. I want to be clear that the “reasonable general concern” is legislated but not as high as “reasonable grounds.” To be clear, that is the difference. In fact, prior to Canfield, there was no threshold requirement; it was part of a routine search. I want to make sure that is clear.

You raise the same question that Senator Omidvar spoke to on the indicators. As I said, this is the work that CBSA officers do every day. They may ask you a question, not knowing you are Senator Wells, such as, “What do you have with you? What’s on your phone?” for instance. You may indicate, “nothing.” Then they will question further to see if they can get some indicators. They look for issues like avoidance in answering the questions. They look for people who are nervous.

It is important to remember that they work in this environment every day, so they take into consideration whether you have an explanation for the way you are acting or the way that you appear. They are professional in what they do. They are trained to look for this type of thing. The fact that they have to make notes around the personal devices is an important step in terms of any challenges they may have but also to ensure that, as they do this over time — which isn’t that often, as you can tell from the statistics — they will become very good at it. It is important to remember that this is what they do every day; it is not unique to this.

Senator Boniface: Thank you, Senator Busson, for the question. Let me also say that, as someone who shared a career with you, these concerns were mine as well when I first looked at the bill.

What know as a result of the Canfield decision in Alberta that the court has left the CBSA with the options of creating something less than the threshold that they are living with now, which is actually a higher threshold in Alberta and Ontario, which I spoke about.

For CBSA, I think it is an obligation on which they have little choice, and I think they have shown to be particularly adept at shifting and moving into what will be this legislative model. They’ve also started to think particularly about how they will do their training. I think all of that convinces me, and I’m certainly convinced from our discussions with them — I hope the committee feels the same way — that they are prepared for the shift and that it will be very much a reflection of the policy that they’ve been working under since 2019.

Senator Boniface: Thank you for the question. From the briefings I’ve had with CBSA, they are working on the regulations already. They are very aware that the regulations and the legislation will best serve the officers and the community as they move forward in having them as closely aligned as possible. That was a question raised during the briefing by one of our colleagues, and he was reassured that is, in fact, their goal. As you know, and as you said, regulations tend to drag. I think they are very cognizant of that. I will reiterate that back to Canada Border Services Agency. I expect our colleagues on the committee to which this is referred will be looking for that level of reassurance as well.

Senator Wells: You mentioned that this is the regular policy of CBSA border officials, turning this into legislation. Ignorance of the law is no excuse, of course. I was stopped at the border a number of years ago. They asked for my phone and I gave them my phone. They asked for my password and I gave my password. I don’t know CBSA policy. Ignorance of policy is kind of an excuse and I think it would be challengeable.

Because the proposed law says they have to shut down network connectivity before they do a search, do you think it would be reasonable in the legislation for them to advise that the traveller has the right to shut down connectivity? Under policy, they have no obligation to tell the passenger anything.

Do you think it is reasonable under the legislation that they would have the obligation to do that — something like the Miranda law, where someone is given certain rights if they are under suspicion?

Hon. Paula Simons: Thank you, Senator Boniface, for taking my question. I have a concern on a civil liberties perspective of the creation of a novel test of “reasonable general concern” because there is no precedent for this in Canadian law. There is no definition of what this means in Canadian law. Under the Customs Act, in order to look at old-fashioned paper mail, an officer must suspect on reasonable grounds. In the Immigration and Refugee Protection Act, an enhanced search only comes if the officer believes on reasonable grounds, and the court in the Canfield case suggested a test of reasonable suspicion.

I am perplexed as to why the government felt it necessary to create a completely new standard of reasonable general concern which has no precedent in Canadian law; as I understand it, there is no precedent anywhere in the Commonwealth. I’m worried that might open the door for searches that are more aggressive than they were under the regime of regulations that border agents were using beforehand.