Hon. David M. Wells: Honourable senators, I would like to begin by thanking Senator Klyne for his introduction of our honoured guests. Colleagues, historically, parliamentary committee memberships were exclusive to parliamentarians. It has been like that since 1867. As you have heard, on June 8, 2021, just over a year ago, our Standing Senate Committee on Audit and Oversight appointed our two external members, Mr. Plamondon and Madam Fortin, who are obviously here with us today.

Today, I rise to pay tribute and welcome our new committee colleagues and colleagues of all senators, and I thank them for their excellent work and contributions to the Audit and Oversight Committee over the past year. I recall when we were looking at all the résumés and applications that came in. Senator Dupuis, Senator Downe and I went through many of them. We were looking for people of the highest standard, and I know we succeeded in that endeavour.

It is an honour to work alongside these talented individuals in the service of the Senate and in the service of Canadians by increasing accountability and transparency here in the Senate. Honourable senators, please join me, again, in thanking Mr. Plamondon and Madam Fortin for their valuable contributions to our chamber.

Hon. David M. Wells: Honourable senators, I would like to thank Senator Dean for his deft stickhandling at our committee meetings. There were a lot of witnesses, opinions and debate, and he did a great job. I also want to thank Senator Boniface, the sponsor of the bill, for her contribution as sponsor, for laying out the government’s position on this bill. As the critic of the bill, I have my role to play as well.

During the committee meeting, as you heard, we had eight amendments presented, all of which passed. Many issues were raised, but there were three key issues. One on connectivity, which was my amendment, and actually there were three amendments that passed at committee. Senator Dean and others mentioned “reasonable grounds to suspect,” which was Senator Jaffer’s amendment. I note that Senator Dalphond also had a similar amendment, which passed quite easily, that also had elements of racial profiling and selecting people perhaps because of the country from which they came and other issues around that, which we will certainly hear in the third-reading speeches. The last amendment topic related to solicitor-client privilege, which was presented by Senator Dalphond. In some cases there were two amendments because some related to the Customs Act and others to the Preclearance Act, 2016.

I also note that there were other important issues that did not find their way into an amendment, and which may find their way into regulations. Senator Yussuff spoke of issues raised by the Office of the Privacy Commissioner for the committee’s consideration. He had four key points: record keeping by CBSA officers; searching only what is on the device, which relates to my amendment on connectivity; rules for password collection; and mechanisms for complaint redress. Right now, colleagues, there is no mechanism for complaint redress. It is essentially howling at the moon for an organization that is now seeking carte blanche for searching our personal digital devices.

There were also questions asked, which I think are as important as the key parts of the bill, as to why the fines for interfering with a CBSA officer were significantly reduced. I’m unaware of how significantly reducing these fines serves as a greater deterrence.

I’ll talk briefly about the categories of amendments that were brought up. One was to inform the passenger and make it known to them that their device can be searched while not in connectivity mode. Of course, in my second-reading speech I went through this. I was not advised this was policy and not advised that it could be put into non-connectivity mode. Consequently, because I was not advised of that, I didn’t know my rights to that, and the CBSA officer comfortably searched my bank records, my Visa statements and asked questions about that. While that may be policy, I think it’s important we recognize that their policy is not followed. Again, I mentioned in my second‑reading speech — or perhaps it was a question to Senator Boniface in her speech — that on the TV show that features the CBSA, “Border Security,” they regularly search passengers’ personal digital devices and they thumb through and speak to the camera about what they find on it.

Senator Dalphond’s amendment on solicitor-client privilege is really important. We are all familiar with what items we may have on our personal digital devices — health records, personal correspondence with spouses and partners, photos of our family or whatever personal photos we might have — and the question that we might want to consider at third reading is whether this should also extend to doctor-patient confidentiality, which obviously is as important as solicitor-client confidentiality or commercially confidential information or anything else that might have a high degree of confidentiality that might be of no interest to CBSA in their search for contraband documents.

The committee passed an amendment that was spoken about, proposed by Senator Jaffer and equal to Senator Dalphond’s amendment that he was ready with, which would change the proposal from “reasonable general concern” to “grounds to suspect.” The reasonable general concern, honourable senators, is essentially not just a low bar, but no bar at all if the CBSA officer has to give no reason for their concern. Of course, all CBSA officers should have a reasonable general concern about everyone coming across the border. However, there has to be a limit at the point where they seek the most in-depth, private documents, messages and photos of Canadians travelling across the border.

Senator Dalphond noted as we were talking about this — as did all our legal scholars, including Senator Jaffer — that this “reasonable grounds to suspect” is a well-understood legal concept, tried and tested by the courts. It is well defined and goes some way to reducing the racial profiling that we know happens at the border — something that was discussed at length at the committee.

Finally, colleagues, I want to also mention the witnesses who did attend the meeting. Senator Dean mentioned a few of them, but I have the full list here. I think it is important for colleagues to know that these are the people who think about this every day: the International Civil Liberties Monitoring Group, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the Canadian Bar Association and the Munk School of Global Affairs & Public Policy at the University of Toronto. An associate professor of the Faculty of Law at the University of Calgary also gave excellent testimony. Of course, the Canada Border Services Agency, or CBSA, was there as the promoter of the bill, as was the Department of Justice.

Honourable senators, it’s important to remember that just Tuesday we had Mr. Dufresne with us, who is the Privacy Commissioner nominee and who answered my questions on reasonable general concern. We all heard those answers in the Committee of the Whole.

Of all the independent expert witnesses — again, Senator Dean highlighted one that I thought didn’t have an opinion on it. In her response, I thought she said, “I had not really considered this.” But out of all of the other independent expert witnesses, none thought reasonable general concern was a good idea or would pass the judicial “smell test.”

Honourable senators, it’s important to know that if the bar is so low that it won’t pass the judicial smell test, it will go back to the courts again to be decided. A couple of our witnesses suggested this could take up to five or ten years. We know how long a lot of these things take in the courts.

These amendments, colleagues, are all put in place to protect Canadians’ fundamental rights as dictated by our Charter of Rights and Freedoms. While we know it’s important that there are protections at the border from bringing in illegal goods and documents, we have to decide what trumps our Charter rights and freedoms.

Honourable senators, I look forward to third reading, which will happen early next week, and further discussions on this bill. Thank you very much.

[Translation]