Hon. Gwen Boniface: Honourable senators, I rise today to speak at report stage of Bill S-7.

Let me begin by thanking the committee for their collegial nature; Senator Dean for an organized clause-by-clause consideration, his first as chair; and Senator Wells as critic of the bill.

As indicated in the report, Bill S-7 was amended at committee in a number of areas to put into the legislation network disconnection before a personal digital device, or a PDD, search could occur. This was originally intended to be in regulation.

Other amendments concerned the protection of information, like solicitor-client privilege, through order-in-council-making authority. There was a proposed amendment to the bill to ensure that note taking would be found in the regulations, but the draft regulations provided to the committee proved those requirements were captured, which satisfied the committee, and the amendment was subsequently withdrawn.

As you would expect, the amendment I would like to address for the remainder of my time concerns the threshold of “reasonable grounds to suspect.”

Let me quote the mandate of the CBSA:

The agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under the program legislation.

National security and public safety are at the heart of their mandate. In discussions with many of you, we talked about the balance of individual privacy rights on one hand and the protection of collective security rights on the other in the context of who and what crosses our borders.

Border officers are in an operationally unique position. They rely on an extremely brief interaction in order to make a determination of whether there has been a potential violation of any program legislation. Border security is a complex business. The CBSA enforces more than 90 acts, regulations and international agreements as part of the program legislation.

It is in this context that I remind you of Senator Dupuis’ pertinent question at second reading, and one that she followed up on earlier. Speaking of “reasonable general concern,” she said:

The problem is not that this is a new concept, because it was the Court of Appeal itself that introduced it. When the Court of Appeal states that the existing concept may be too strict for the situation we want to address, the legislator could favour a less-strict concept that creates fewer obligations for customs officers.

The fact that it is a new concept is therefore to be expected, but shouldn’t we focus instead on whether the concept chosen by the government in its bill is legally appropriate for the situation we want to address?

That is an important question. My views, as you know, were evident in my second reading speech.

The intention of the government, which we heard at committee, was to create a threshold that is reasonable; that requires objective and verifiable factual indications; that is general, and does not point to a specific contravention of the over 90 pieces of CBSA-enforced program legislation; and that includes a concern, which must be individualized and attributable to the specific person or their device.

The CBSA processed almost 19 million travellers in 2021 and conducted approximately 1,800 personal digital device examinations. In 2021, the CBSA was operating under internal policies determining when a device search could occur; Bill S-7’s intent was to take those internal policies and put them into law.

As stated at committee by Scott Millar, Vice President of Strategic Policy for the CBSA, “policy that exists now will be enshrined in legislation.” It was creating a legal threshold out of their policies. The lack of a threshold in law was ultimately why 99(1)(a) was found to be unconstitutional in R v. Canfield.

Canfield, at paragraph 109, states that:

The policies put in place by the CBSA go some way to recognizing the need for such safeguards, however policies are not “prescribed by law” as required by s. 1. . . .

There, the Canfield decision is referencing section 1 of the Charter of Rights and Freedoms.

Essentially, in order for something to be Charter compliant, it must be prescribed in law. Internal CBSA policies are not prescribed by law because, at the time, they were not found in law. The court did not reject internal CBSA policy as not meeting an adequate threshold; those internal policies were not even applicable in 2014 when the searches in Canfield took place because they were non-existent until 2015.

In drafting Bill S-7, the government believed that Canfield opened the door to a lesser threshold for personal digital device searches, and only for such searches.

At paragraph 75, 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. . . .

This became the crux of the committee’s deliberations. This will be the first time that a law specifically in relation to personal digital devices will be in place at our borders. The uniqueness of the border for the purposes of section 8 privacy considerations has been settled in law for some time. The Supreme Court ruled on this in R. v. Simmons, and reaffirmed it in R. v. Jacques and R. v. Monney. On the topic of privacy rights at the border, paragraph 48 of Simmons says, “National self-protection becomes a compelling component in the calculus.”

Then, paragraph 49 states:

I accept the proposition advanced by the Crown that 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. . . .

Monney builds on this statement, and says in paragraph 43 that:

. . . decisions of this Court —

— the Supreme Court of Canada —

— relating to the reasonableness of a search for the purposes of s. 8 in general are not necessarily relevant in assessing the constitutionality of a search conducted by customs officers at Canada’s border.

It is critical to find the appropriate balance and threshold for personal digital device examinations at our borders. The court in Canfield did what I believe was a masterful job in coming to their conclusion that a lesser threshold than reasonable suspicion may be necessary for device searches. The court balances the informational privacy concerns with the border context in paragraph 66:

The key question is to what extent an expectation of privacy is reasonable in the context of an international border crossing. In the domestic context it is well-recognized that individuals have a reasonable expectation of privacy in the contents of their personal electronic devices: see Morelli, Vu, Fearon. However, reasonable privacy expectations at an international border differ from reasonable expectations of privacy elsewhere. . . .

They continue in paragraph 67:

The high expectation of privacy that individuals have in their personal electronic devices generally must be balanced with the low expectation of privacy that individuals have when crossing international borders. Since border crossings represent unique factual circumstances for the reasonableness of a s 8 search and seizure . . . the reasonable expectations of privacy international travellers hold in their electronic devices must be considered anew and in context.

It was recognized by the court at paragraph 34 that we can’t sweep all personal digital device searches into one broad category for privacy considerations since different considerations are at play based on the information available to the border officer. The constitutional merit will eventually be determined by individual cases. But just because something is novel in law, as it was in the original draft, does not mean it’s unconstitutional. Each case has a different level of evidence determining whether a threshold is met. These are different depending on the goods being searched.

For example, the threshold issue of mail was often used as a comparator in committee, as it was in the chamber — and rightly so. The Customs Act provides that mail can be examined without any threshold; “reasonable grounds to suspect” is triggered when that mail is opened. Much information can be gleaned from an unopened piece of mail. It can be picked up and felt; perhaps it has an address, or a return address, and both can be searched; the envelope can be tested for drugs or organic matter; and, more importantly, it can be X-ray scanned to see if anything is inside.

All of this is possible without a threshold. This evidence is what develops the reasonable suspicion needed to open the mail. This allows a border officer to more readily point to a specific contravention necessary to meet a threshold of reasonable suspicion.

Senators, even bad things come in small, inconspicuous packages. In a piece published in the Calgary Herald, Benjamin Perrin, former lead criminal justice advisor to Prime Minister Harper, interviewed CBSA officials and was told that 1.9 million pieces of mail enter Canada from China monthly, and fentanyl has been found in packages as small as greeting cards.

For mail, there are many methods: It is more difficult for personal digital devices, hence the reliance on more generalized factors needed to search a device — that is, factors that don’t point to a particular contravention. This contributed to operational effectiveness.

At the same time, it was rightly argued that the amount of data on the device is so significant and so personal that the justification should be higher. But just because fentanyl is physical, does that somehow mean it’s also more harmful than what can be found on an electronic device? That’s the crux.

The minster told our committee that it’s not only child pornography that can be found on personal digital devices at our border entries, but also things like hate propaganda or evidence of drug importation, all of which are extremely harmful as well.

“Reasonable grounds to suspect” isn’t used only in the Customs Act for goods where evidentiary tools avail border officers to reach that legal bar. It is also the threshold for body searches, including strip searches. The court in Canfield states in paragraph 75 in relation to the Supreme Court ruling of Fearon:

We agree with the conclusion in Fearon at paras 54 and 55 that, while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search, it may nevertheless be a significant intrusion on personal privacy. To be reasonable, such a search must have a threshold requirement. As was noted in Simmons at para 28, “the greater the intrusion, the greater must be the justification and the greater the degree of constitutional protection”. Given that, in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

The Supreme Court in Fearon and the Alberta Court of Appeal in Canfield agreed that searches of personal digital devices are “not akin to . . . a strip search,” yet this is where we find ourselves today.

Senators, there are different levels of searches available as we cross the border, depending on what the border officer is looking for. Luggage, purses, coats and briefcases don’t require a threshold. Strip searches are at the level of reasonable suspicion. This amendment equates a search of a person with that of a personal digital device. Border officers will have to suspect a specific contravention in more than 90 acts, regulations and international agreements to search a personal digital device if this bill as amended passes.

Alberta and Ontario have been operating using the higher threshold of reasonable suspicion at their points of entry since the beginning of May, after the expiration of the constitutional invalidity. Statistics on the effects of this change are preliminary and high-level, but they offer us a glimpse of what may come for border security and their operations. In a document tabled with the committee, it showed that May 2021 saw a traveller volume of 606,000 for Alberta and Ontario; May 2022 saw 2,595,000. This is a fourfold increase from the same time last year. Sixty‑three personal digital devices were examined in May 2021 in Alberta and Ontario; May 2022 saw only 18.

Senators, this is an examination rate of 1 in 10,000 last May, and 1 in 144,000 this May. This is a substantial change in searches, no matter how you cut it. Yes, we can look at the impact of COVID, travel patterns and staffing levels at our ports of entry, and I would hope that any incoming disaggregated data allows us to better understand the true impacts of this change in device searches. But the higher threshold for border operations is obviously going to have an operational impact.

A final note is that this bill also amends the Preclearance Act, 2016. This act is based on the agreement between Canada and the U.S. and will therefore require U.S. pre-clearance officers to be trained on the new threshold as well. It is important to note that border officers in the United Kingdom, Australia and the U.S. when they are on their own soil have no-threshold searches for personal digital devices.

I want to express my sincere thanks to all senators who put lots of thought and interest into this bill, including, of course, all those on the committee. Senators, the Canfield decision left it to Parliament to decide where the threshold for the search of personal digital devices should be. The committee has completed its work, and I look forward to third-reading speeches and the important continuing debate in the House of Commons. Thank you, meegwetch.