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 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.

Senator Boniface: Thank you for the question, Senator Woo. The discussions with the U.S. government have already taken place. They already understand. Of course, because they operate in our state, in Canada, they already have to conform to the Charter of Rights and Freedoms. Consequently, they are well versed on this already and are prepared to move forward.

Hon. Ratna Omidvar: Thank you, Senator Boniface, for your deep deconstruction of this bill. I appreciate that.

I may not have heard you correctly, but when you spoke of the new thresholds that this bill is bringing into play, I think I heard you say, “behaviour.” This is where I want to ask you a question, because assessment of behaviour is hugely subjective. How can we contract CBSA officers to appropriately judge behaviour and whether or not that is an expression of real concern or an expression of some mental health condition or other physical condition? I need clarity there.

Senator Boniface: They have such a unique role and they have such a short interaction. In fact, this is what they do every day. This is how they are trained. With every person they meet, they are making an assessment of what that interaction means and what the indicators are.

As they move on issues regarding personal devices, they would be sent to secondary for that examination to take place. You would have the interaction of more than one person as well. But this is what customs officers do every day. They make those assessments based on the questions they ask and based on the types of behavioural things that they observe. Like the rest of people in those fields, they are tested on their accuracy. I just want to draw to your attention, again on the personal devices — what we would call the hit rate — the fact that 27% of them are actually finding contraband on those, which tells me that they are actually doing quite well when you compare it to any other area of work like that. They are very focused and looking for the right stuff.

Senator Boniface: I am happy to continue answering questions if the chamber is agreed.

Hon. Colin Deacon: Thank you, Senator Boniface, for your leadership on this. Finding the balance on this is something where your judgment and experience are really important. Regarding the challenge of getting it right, what came to mind was Bishop Lahey. He had negotiated a settlement for the sexual abuse victims in the diocese of Antigonish but then was caught at the Ottawa airport shortly thereafter with a computer filled with child pornography that he was importing into the country. He was subsequently charged and convicted, but it had a devastating effect on both the Catholic community in Nova Scotia and the broader community. There was a loss of trust. You are working on something that is very important.

I want to understand. The officers only have the opportunity to view the data on the phone — not on the cloud but on the phone. At that point, they can make a judgment. Is the next judgment that they make about retaining the device, or do they somehow capture information from the device? If they do capture it, what is done in terms of how that’s held or subsequently destroyed because of findings? Can you help me a bit in that regard?

Hon. Hassan Yussuff: Thank you, Senator Boniface, for the important work you are doing. Let me also, indirectly, extend thanks to CBSA officers for the tremendous work they do to guard our borders in this country at the different points, which is not an easy challenge given the multitudes of people who come across.

One of the things that has been noted in the debriefing is that the Privacy Commissioner has not yet commented on the bill. I presume that will happen soon. Should comments come in that alter some aspect of the legislation from that perspective, is this something the government is prepared to consider — recognizing, obviously, that privacy rights in this country are very different from those in the United States?

Hon. David M. Wells (Acting Deputy Leader of the Opposition): I have a couple of questions, Senator Boniface, if you will indulge me.

You talked about the multiplicity of indicators. How do you define “reasonable general concern” or, in fact, “lower than reasonable general concern”? What sort of indicators or behaviours would a CBSA officer look for? I am mostly concerned about this lower bar. If I come off an eight-hour flight, I’m at the airport, and if I don’t get sleep, I’m irritated, maybe dishevelled, not my normal absolutely pleasant self, how would a CBSA officer know that’s not my general nature?

Senator Boniface: I am at the mercy of the chamber. I would be happy to take Senator Wells’s and Senator McCallum’s questions, and perhaps we can agree to call it there.

Hon. Larry W. Smith: Honourable senators, I rise in my capacity as critic to speak to Bill S-6, An Act respecting regulatory modernization.

This bill’s stated objective is to amend or repeal provisions in various acts which have “become barriers to innovation and economic growth” and to add provisions to acts that encourage economic growth and innovation. More preciously, this bill proposes to modify 29 acts, with over 40 amendments, including amending the Bankruptcy and Insolvency Act, the Electricity and Gas Inspection Act and the Fisheries Act, to name a few.

The proposed changes, seemingly minor and technical on the surface, would remove, as Senator Woo appropriately put, “legislative irritants” that increase the administrative burden not only for the government but for the private sector as well.

For example, Bill S-6 amends the Canada Lands Surveyors Act in order to streamline how the public registers complaints, as well as harmonizing the French and English versions of the act to ensure consistency of language.

Like Senator Woo, I will not have the time to captivate the chamber by addressing every single amendment, as time would not permit it. This is why I believe further and more detailed study of this bill at the various committees is warranted.

Colleagues, regulations play a critical part in protecting Canadians and the environment, acting as guidelines for businesses and consumers to ensure compliance with laws and remedying instances of non-compliance.

It may come as a surprise to many just how regulated our lives are, from the homes we live in, to the cars we drive, to the products we use, to the services we demand, to the food we consume, to the content we watch. Regulations play an important role in protecting our safety and that of our surroundings.

A quick glance at the Canada Consumer Product Safety Act, which is designed to protect the public by addressing or preventing threats associated with consumer products, will reveal nearly 40 different regulations listed. These regulations include children’s jewellery, cribs, window coverings, glass doors, kettles, mattresses, hockey helmets and even glazed ceramics and glassware. In many of these cases, regulations are crucial; without them, we are risking the health and safety of Canadians.

Nevertheless, there are bad and obsolete regulations, and they come at a cost to productivity, competitiveness and efficiency. Burdening businesses and consumers with outdated, ineffective and costly regulations creates unnecessary administrative expenses.

For example, businesses needing to comply with the Canadian Food Inspection Agency Act must, according to the act, provide communications with the agency using paper-based transactions. That is right. In 2022, the Canadian Food Inspection Agency is administering and enforcing the act using paper. Luckily, Bill S-6 amends the Canadian Food Inspection Agency Act, eliminating the need for paper-based transactions and allowing the agency to administer and enforce the act electronically.

It is precisely these types of outdated and, frankly, slow regulatory processes that decrease the competitiveness of Canadian businesses but also make it harder for foreign companies to invest here.

Making regulation a competitive advantage, a 2019 Deloitte report on the state of regulations, underscored Canada’s regulatory environment as a core weakness. This sentiment was shared by the World Bank as it ranked Canada twenty-third on its ease of doing business index in 2019, having fallen 18 spots since 2006. Additionally, the World Economic Forum ranked Canada fifty-third out of 140 countries concerning the burden of government regulation.

Finally, according to the Organisation for Economic Co‑operation and Development’s product market regulation database, in 2019 Canada demonstrated a worse performance than its OECD and non-OECD peers respecting business operations regulations.

Canada was also reported to have been half as competitive as the OECD average with respect to the administrative burdens on start-up companies. Examples of this include the length of time as well as the costs associated with licences and permit application approvals.

Colleagues, given our regulatory track record, it is not hard to imagine that Canada is not the most attractive country for foreign investment.

The Foreign Direct Investment Regulatory Restrictiveness Index is an OECD database that measures the restrictiveness of government regulations relating to foreign investment across various sectors. According to this index, Canada measured more restrictive overall to foreign investment than all OECD countries except Mexico, Iceland and New Zealand in 2020.

Subsequent data from the World Bank suggests Canada’s net inflows of foreign direct investment as a per cent of GDP remained at 1.6% in 2020 — below countries like Sweden, Germany and Spain, which rank as less restrictive to foreign investment.

However, in my conversations with officials from the Treasury Board of Canada Secretariat, and in listening to Senator Woo, I am encouraged to learn that there are supplementary regulatory revision exercises running in parallel to the legislative review in Bill S-6.

In addition to committing to tabling yearly legislative reviews like Bill S-6, there are regulatory reviews under way internally within the federal public service. According to the Treasury Board of Canada Secretariat, departments and agencies have been mandated to develop road maps for reviewing, updating and cleaning up regulations that fall within their purview.

Additionally, the government made note of collaborations with provinces and territories under the Regulatory Reconciliation and Cooperation Table to harmonize regulations between the federal government and the provinces and territories.

Finally, there are several bilateral and multilateral forums on regulatory cooperation that the government is engaged in, committing to work on the very issues which obstruct investment.

Collectively, all of these initiatives set ambitious targets for the federal government. It is our job to ensure that the government is executing on these targets. We must, as a chamber of sober second thought, continually review and hold the government to account in this regard.

Bill S-6 is a small but positive step in the right direction, which is why I believe sending it to committee for further analysis will generate positive discussions and provide senators the opportunities to collaborate in addressing some of the regulatory processes which are holding back productivity, efficiency and economic growth.

Thank you, all.

Hon. Colin Deacon: Honourable senators, I rise to speak in support of Bill S-6, An Act respecting regulatory modernization.

Bill S-6 is part of a regulatory modernization initiative to address issues raised by businesses and Canadians about overly complicated, inconsistent or outdated requirements that have become barriers to innovation and economic growth. You won’t be surprised to learn that I think this is a pretty good thing.

I want to begin by thanking Senator Woo for his exceptional job of capturing the importance of the 47 amendments to 29 pieces of legislation that are included in this bill. That is not something that I could have accomplished, I can assure you. But I especially like the fact that he suggested that this was an important start. You’ll see that I very much agree with that point in my comments.

I also like the fact that Senator Smith did a great job of reminding us of the importance of smart regulation and the burden it places on start-ups in particular. Senator Smith, thank you for that.

These individual amendments have important economic and social themes to improve the ease of doing business, increase regulatory flexibility and agility and improve the integrity of the regulatory system. These are incredibly important goals. I would, however, humbly offer that a fourth is needed: to ensure that our legislation and regulations are not anti-competitive. But more on this later.

Bill S-6 is the second iteration of a planned annual tidy-up led by Treasury Board. It is the first annual regulatory modernization bill to originate in the Senate. I think that has some real importance to it on that point.

These 47 legislative amendments clear up some non-controversial legislative irritants, as Senator Woo said, that are limiting the ability of the resulting regulations to adjust to changing science, technology and business models, among other factors. They are considered so widely accepted that I am not going to focus on them in my second-reading speech.

Instead, I am going to focus on the single point that I believe is the most pressing, most crucial and most in need of robust attention and debate. My focus is on the fact that these 47 legislative amendments do not even scratch the surface of the changes needed to begin to modernize Canada’s regulatory burden, which will improve our competitiveness, as Senator Smith said, our productivity growth and our grandchildren’s prosperity.

I am going to propose in future that this particular bill should be renamed the “Regulatory Irritation Elimination Act” because what it is doing is a very good thing — a very good thing indeed. But it doesn’t come close to getting at the size and scale of the regulatory modernization challenge in Canada.

This is because Canada’s potential growth rate — the rate of growth that can occur without triggering inflation — has been declining. I believe that is because the innovations that could make our economy more productive are too often not incorporated into how we do business in Canada — how we do business in the private sector, in the government sector, in the academic sector and beyond.

Without urgent changes in how we legislate, regulate and procure, Canadian innovations will continue to get applied elsewhere, often resulting in the company migrating to another jurisdiction, along with the high-paying jobs those innovations create.

According to the 2018 OECD data, Canada leads the OECD in “command and control” regulations. This is not a good thing. Command and control-style regulations are those that define the process that must be followed to achieve a given regulatory outcome. Simply, by design, this type of legislation and resulting regulations eliminates the opportunity to innovate.

A very real example is when we define the use of a specific technology in the legislation of regulations, like the use of fax machines, which remains the case today in many jurisdictions. That approach makes Canadian fax machine salesmen really happy but it limits our productivity growth and, as a consequence, our competitiveness and prosperity.

Even more concerning, the OECD recently predicted that Canada will be the worst-performing advanced economy through 2030, and in the three decades that follow. I know a great many of us have been long concerned about this issue, including those of us who participated in Senator Harder’s Prosperity Action Group last year.

It’s worrisome but I find it deeply, deeply frustrating. That is because Canada is home to North America’s second-largest and fastest-growing innovation cluster, the Toronto-Waterloo Corridor. We are world-leading innovators and inventors, but our governments of all stripes at all levels have been unable to do the hard work of incorporating those innovations into how we legislate, regulate and procure.

So that’s where I hope we will place some attention as seven of our committees examine Bill S-6. Let’s focus on the process behind the government’s annual regulatory modernization and find ways to significantly expand and increasingly resource this process into the future, ensuring that it has the capacity, through this and other related processes, to support the urgent need for regulatory modernization at scale in Canada.

Now, when I say “adequately resourced,” am I suggesting even more government spending? No, I’m not. Billions of dollars of intended investments in innovation were announced in the last budget. It’s my profound belief that a tiny fraction of that amount can be redirected to increasingly fuel mandatory regulatory reform and enable greater regulatory agility in Canada. A very small redirection of these resources will reliably deliver increased innovation and business growth.

Simply, when you have an economy where existing legislation and regulations force the continued use of fax machines or limit the innovative use of drones or other technologies, you are choosing to have an economy that will be in perpetual decline as we progress through the digital era. Canadians will become the disrupted when we could be the disrupters.

I believe that this challenge provides the Senate with an important opportunity to play a meaningful role in driving this process into government. I say this because the level of political will in the other place has not translated into meaningful success.

If it had, we wouldn’t need Bill S-6. To prove my point, let me read to you some past quotes from the government side of the other place.

Here’s the first quote:

The key to prosperity is to increase our productivity . . . .

We must adapt to the new world reality or fall behind in the effort to preserve and enhance our future prosperity.

But there are growing concerns from Canadians about our ability to compete. . . .

Governments have a responsibility to create an environment favourable to the growth of competitive enterprise.

Here’s another:

One of the barriers to growth — job growth in particular — for small and medium-sized business is the burden of regulatory compliance and reporting. The volume of paperwork required for compliance represents a drain on entrepreneurial energy. . . .

Reduction of the regulatory burden will require close consultation with other levels of government in order to reduce, streamline, and eliminate overlap in regulations.

And here is one final quote:

In order to promote job creation and improve the conditions for business investment, the Government has taken a range of actions to . . . improve the regulatory environment, promote business competitiveness . . . .

That document also proposed “Modernizing regulation and legislation to better protect investors and taxpayers . . .”

I bet you are seeing a bit of a repetitive nature in these comments. Interestingly, the first was from the Mulroney government’s 1991 budget. The second was taken from the Liberal platform in the 1993 election, drafted by Paul Martin and to some degree implemented by the Chrétien government. The third was from the Harper government’s 2014 budget.

Every federal government over almost 40 years has been trying to improve productivity growth. All the while, Canada’s regulatory burden continues to grow and productivity continues to decline.

But I want to stop here and be very clear. I am not talking about deregulation. I am talking about making sure that our regulations do not hamper our ability to innovate and improve, to be increasingly globally competitive and to increase the prosperity of future generations.

The fact is, either a business disrupts or is disrupted. It happens much, much faster today than a decade ago. Our regulators have an essential responsibility to embrace innovation and help to ensure that our economy ends up on the right side of the disrupter/disrupted divide. We have to get serious about regulatory modernization, now.

So I ask the seven committees studying portions of Bill S-6 to please consider Bill S-6 as an important first step, but we need so much more. Please choose a few witnesses and save a few questions for the purpose of exploring how a much larger, more robust, transparent regulatory modernization process might be established by this government.

I believe that in the Senate we may be far better positioned to examine the veracity of the process that resulted in the 47 amendments included in Bill S-6 than attempt to determine the appropriateness of each one of these highly technical legislative amendments. The better the process, the more confidence we can have in the resulting amendments.

As a result, colleagues, I would ask that you consider examining the following:

First, the selection process. Currently, amendments are proposed by departments through a call letter from the Treasury Board Secretariat. Canadians and businesses can share suggestions, but it is likely that this process could be more robust and more consultative. The risk is that lobbyists, who invariably represent more established incumbents, may saturate the process, overpowering and diminishing the less powerful voices of innovative new entrants.

Second, look at the review process itself. Here I ask you to consider three points:

One is whether the approach used is based in principle and clearly defines the risks that need to be managed rather than defining one particular way to solve the problem. We have to give Canadian businesses the flexibility to innovate.

Second, I ask you to consider where a transparent regulatory modernization process might build on publicly controlled and auditable technical standards, ultimately limiting and de-risking the process for regulators and potentially making the process more agile in future.

Third, consider the opportunity to incorporate a useful tool developed by the Competition Bureau in 2019. Their five-step checklist includes an assessment to ensure that a regulation is not anti-competitive. A similar approach could be applied in this review.

Lastly, I ask you to examine possible capacity limitations. Consider the real or possible barriers and limitations, for example, a limited number of legislative drafters, that may have appeared in the Bill S-6 process or that might create a bottleneck at the end of what we hope will become a much larger and increasingly inclusive and effective public process.

Colleagues, if we want to get serious about prioritizing enduring change on this issue, we need to integrate an inclusive, systematic principles-based approach to regulatory reform that prioritizes outcome-oriented versus process-controlling regulations.

This will require us to ensure that the processes for eliminating regulatory irritants and modernizing our regulations are not anti-competitive, meaning that it does not favour incumbents over new entrants and that it’s technology agnostic, meaning that we do not define the use of a given technology. You may find other risk factors to manage, and I hope you do.

I want to wrap up with a recent salient story. As some of you may know, SpaceX’s Starlink network has been providing satellite broadband service to Ukraine since Russia’s horrific invasion. Russia attempted to foil Starlink’s service through an aggressive electromagnetic warfare attack. As the attack unfolded, Starlink’s engineers rewrote code on the fly, which immediately stymied the jamming attack. The incredible speed of Starlink’s response amazed Dave Tremper, the Director of Electronic Warfare at the Pentagon. He explained that the Pentagon could never respond as quickly because they have to issue a contract out to fix a problem rather than being able to address it instantly in-house.

How the Pentagon regulates procurement puts them at risk of being disrupted and creates a security vulnerability. How the Pentagon regulates procurement creates risk, it doesn’t eliminate it.

That’s the opposite of its intention, I have no doubt.

Government needs to harness the private sector’s ability to innovate and act swiftly. We all need to become more nimble. That’s because the world is moving increasingly rapidly. We need to change those rules that are within our control if we are to keep up, if we are to compete and if we are to prosper.

Let’s prioritize the themes of the Annual Regulatory Modernization initiative that led to the creation of Bill S-6 so we increase the ease of doing business, improve the regulatory flexibility and agility and improve our regulatory system, and also ensure that our regulations are not anti-competitive. Competition drives innovation, productivity growth and prosperity.

This government needs to keep advancing the items I have outlined today if Canada is to achieve these important goals and protect and enhance the prosperity of our grandkids.

I support Bill S-6 and I especially support increased efforts to eliminate regulatory irritations and modernize our regulations.

Thank you, colleagues.