Senator Plett: Of course, leader, there is no argument that this government is spending needless amounts — millions and millions of dollars — on what they are doing. That was not even mentioned in my question.

Let’s see if you can answer this question without the help of my friend Senator Lankin.

The Prime Minister likes to point to increasing jail time for illegal gun smugglers, from 10 years to 14 years through Bill C-5, as evidence that he is doing something on gun smuggling. A recent answer to a written question on the Order Paper states that for criminal cases between April 2019 and March 2020, where gun smuggling was the most serious offence:

Of the eight cases, two resulted in convictions and six resulted in stays of proceedings or charges being withdrawn. Of the two cases involving findings of guilt for an offence under section 103, one involved a period of imprisonment of greater than 24 months and one involved a period of probation between 2 and 3 years.

Leader, the Library of Parliament could not find a single instance in the past 20 years when even the current maximum of 10 years had ever been imposed by a court.

So, leader, how does raising the minimum to 14 years achieve anything? They are not even receiving the 10 that exists now. Where is the real action necessary to combat illegal gun smuggling across the border? When does it start, leader?

Senator Gold: That’s a good, serious question. I don’t want my previous answer to, in any way, detract from the seriousness of the question and the importance of this issue of providing proper shelter for those for whom it was announced.

I will have to look into the issue and I will report back but, again, it is likely the case that the decisions about the shelters and the nature of shelters would be done in collaboration with the communities within which they would be found. I expect that would be part of the answer I come back with.

Hon. Marc Gold (Government Representative in the Senate): Thank you for your question, Montrealer to Montrealer.

The government is committed to protecting and defending the rights of official language minority communities across the country, including English-speaking Quebecers. The Prime Minister has been very clear about his respect for the jurisdiction of provinces in these matters and, at the same time, his serious concerns about the way in which legislation is drafted and, indeed, protected against constitutional challenge. I have every confidence that the government will do the right thing.

I would like to highlight that, within federal jurisdiction, the reforms proposed in Bill C-13, which is in the other house, maintain the rights and protections afforded to Quebec’s English-speaking minority.

The government will continue to support the community and their organizations financially. The government will continue to protect the Court Challenges Program to help the community defend their rights in front of the courts, and will continue to help the community strengthen its institutions to maintain and preserve the vitality of our community.

Senator Loffreda: Thank you for your response.

The Prime Minister has said that he has concerns, but hasn’t spoken publicly against the bill or taken a position on the matter.

As a constitutional lawyer and expert, don’t you feel the “notwithstanding” clause should be the last word used and not the first? Isn’t this setting a dangerous precedent in Canada for minorities and their rights across Canada?

In Quebec, the business community has expressed concern. Just the other day, the technology companies sent a letter to the premier expressing concern over retaining and attracting top talent. Many have large import and export markets.

This is a serious concern for the business community, and it’s a serious concern for minority rights in Canada. I think the government should take a stronger position.

Senator Gold: Thank you. As Government Representative in the Senate, I’m pleased to answer this. We are all many things. I’m a constitutional lawyer and an English-speaking Quebecer, but I’m answering as the Government Representative.

With regard to the use of the “notwithstanding” clause, clearly the clause is legal. But its consequences, of course, are serious: It suspends the rights and freedoms guaranteed by both the Quebec Charter — in the case of a Bill 96 invocation — and, of course, the Canadian Charter of Rights and Freedoms.

The government is of the view that if a government chooses to use a remedy of this magnitude it must set out and defend the exceptional circumstances that justify the limitation or suspension, indeed, of these fundamental protections.

The government is particularly concerned when governments use the “notwithstanding” clause in a pre-emptive manner, which is the case with regard to Bill 96, before the debate has begun and before the courts have ruled on the scope of the restriction. The Government of Canada has been clear in that regard.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): I thank the honourable senator for his question.

Canada’s door is always open for people who identify as LGBTQ2+ and who are fleeing violence and persecution in their country.

I am told that the government is working closely with organizations such as Rainbow Refugee, the UN Refugee Agency and other organizations to help sponsor LGBTQ2+ refugees from abroad. The government supports at least 55 service providers to help these people feel at home in Canada.

As to your specific question, dear colleague, I will find out more about Afghan refugees and I hope to get back to you soon.

Senator Cormier: Government Representative in the Senate, thank you for that answer, although it fails to reflect the urgency of the current situation.

The same urgency also exists in Ukraine. LGBTQ2+ communities face a number of challenges, including the limited availability of prescription drugs for trans people, how hard it is for them to travel because their ID does not necessarily match their gender, the fact that neighbouring countries in which Ukrainians may find refuge often have discriminatory laws in terms of LGBTQ2+ rights, and the list goes on and on.

Senator Gold, how is the Canadian government helping these individuals in Ukraine?

Hon. Marc Gold (Government Representative in the Senate): Well, thank you for the question. The government does not share your view of the utility or efficacy of this app. It continues to be an essential and intuitive tool to protect Canadians as we open our borders and fire up our economy. Through the app, our government has streamlined the reopening process. I’m advised that travel is up 707% from peak pandemic as a result.

ArriveCAN only takes a few minutes for vaccinated travellers to complete. Over 99% of air and marine travellers, and 94% of land travellers, have been compliant and, therefore, have provided for increased efficiency.

Senator Housakos: Senator Gold, I know your government doesn’t share my views. That’s why we have huge backlogs at Immigration, Refugees and Citizenship Canada, enormous lineups at Canadian passport offices and, of course, the only thing your government has really unleashed is terrible inflation that we have not seen in 30 years.

Senator Gold, Canada’s largest airport, Toronto Pearson, remains paralyzed because of the doubled processing times caused by the mandatory use of ArriveCAN. At the same time, we have tourism industry representatives and mayors of Canada’s border towns calling for its discontinuation because of its negative impact on tourism across the border.

Your government claims it invoked the Emergencies Act over concerns for economic reputation. What about the damage to our economic reputation over the petulant insistence of your government to hold on to this ridiculous app? Is that of any concern to you and your government?

Senator Gold: The government, of course, is concerned that visitors to Canada have an experience that is a good one and enjoy all the wonderful delights that this country has to offer. As we have heard before in this chamber, tourism is up and travel is up. In that regard, the government is very pleased with the progress that we’re making in returning to pre-pandemic levels and hope that this increase in tourism, activity and travel benefits the travel and hospitality industries that paid a heavy price, as we all know, during the pandemic.

[Translation]

Hon. Marc Gold (Government Representative in the Senate): I am very aware of the frustration. This term is probably not strong enough to describe the situation faced by Canadians trying to renew their passport. It is a serious and enormous problem.

The government is stepping up by funding the hiring of hundreds of additional people who are working overtime and on weekends to try to resolve this problem, which will not be fixed in a few minutes. It will take time for measures to take effect. The government is concerned and is taking the situation very seriously.

Hon. Marilou McPhedran: Honourable senators, I wish to ask the Leader of the Government in the Senate a question about the Russian invasion of Ukraine.

What we know is we are seeing that innocent Ukrainian civilians need more support to face the brunt of a vicious world leader defying international law, and the unequal sympathy and treatment that Western countries, including Canada, have shown refugees from other conflict zones.

Minister Sean Fraser told us Canada is ready to welcome Ukrainians and that “there is no limit to the number of applications.” We are seeing this disparity between 43,000 Ukrainians and around 16,000 Afghans coming to our country. We have heard unpalatable discourse explaining that this has to do, essentially, with systemic racism.

Senator Gold, how does the government justify the vastly disparate treatment and outcomes in Ukrainian and Afghan resettlement efforts?

Hon. Marc Gold (Government Representative in the Senate): The government is not in the business of justifying the difference. The explanation would be multifold, including the different circumstances — horrible though they are in both cases, in Afghanistan and surrounding area and in Ukraine and surrounding countries — with regard to the ease or difficulty with which the processing of interested refugees could take place.

In that regard, the government continues to do its very best to welcome as many refugees as it can from Ukraine and continue to work to reach higher levels of immigration from Afghanistan.

(For text of Delayed Answers, see Appendix.)

Hon. Renée Dupuis: Senator Dalphond, did I understand you correctly when you said earlier that the committee is concerned about the fact that technology is not a quick fix for the future of the court process? The witnesses that we heard from said that technology could be useful in some cases, if some very specific criteria are met — for example, if the accused has a place where they can not only confer with counsel but also do so privately, which is not currently the case.

In fact, did we not hear other witnesses say that technology would not solve all the problems? In some regions of Canada, it is just as difficult to hold an in-person hearing as it is to hold a remote one. We are faced with a situation where it is difficult to travel to the courthouse and just as difficult to hold a remote hearing because the technology is not reliable enough.

Am I correct in saying that you raised this concern and that is why one of the committee’s observations involves a request for an impact study? The situation created by the COVID-19 pandemic forced courthouses and the entire judicial system to adapt. However, we need to look very closely and carefully at these impacts over the coming years.

Senator Dalphond: I thank Senator Dupuis for the question and for her very useful comments. I have nothing to add. I made reference to this in my own speech. Senator Dupuis, there’s no doubt that the committee’s observations on this are important. You made a very significant contribution. I commend Senator Cotter’s initiative in proposing that one or more independent committees review the implementation of these provisions after three years. I think we’re in a period of transition. As Senator Wetston said, the train has left the station and we can’t go back in time, but we can absolutely make adjustments and improvements along the way. That is why these studies are important. Over the next five years, we have a duty as parliamentarians to review this issue and make sure that it progresses in the right direction, without unintended consequences. You are absolutely right.

(On motion of Senator Martin, debate adjourned.)

[English]

Hon. Denise Batters: Senator Dalphond, thank you for that explanation.

In your speech, you referenced the testimony of Alain Bartleman from the Indigenous Bar Association, but you did not set out today how Mr. Bartleman had actually made an important proviso when he expressed support, in a general way, for this particular act potentially being quite helpful as an access to justice issue. I asked him about that when he testified in front of the Legal Committee. I’ll read this so it’s correct. I note that when I was asking him about this, particularly referencing northern Saskatchewan, where I said that many Indigenous people live, of course, and they have had, “. . . drastic problems with the technology.” I was wondering if he had any comment about that area. He said:

Yes, there are technological gaps — major ones — and the Indigenous Bar Association, on the one hand, signals and applauds this act for moving in favour of greater accessibility through video conferencing.

But then he said:

However, it also notes its concerns that if the promises found within this bill are not matched by concomitant investments into technology — and not simply internet connectivity technology . . . could take quite some time to catch up, but also training in how that technology is used and in developing a measure of comfort with that technology — this effort will be, for lack of a better term, stunted. It will not be as effective as it could be.

Senator Dalphond, as I said then, that’s a major qualification that he made on that particular issue, and certainly we have seen that. We saw some dire examples just even in our Senate Legal Committee with a witness from Nunavut legal aid who had a very good office and, you would think, good connectivity, and she had a terrible time.

We have, of course, seen the same problems many times with senators testifying from many different places in Canada, including some of the largest cities, not even necessarily rural or remote locations.

Getting back to what Mr. Bartleman said, would you acknowledge that he acknowledged that the Government of Canada absolutely needs to make major investments in technology, and we haven’t really seen those efforts come to fruition yet? I wonder if you have any insight into when the government will actually fulfill their promises on that.

Thank you.

Senator Dalphond: Thank you, Senator Batters, for this excellent question.

I have already acknowledged these challenges in my speech, and I said that it was a call to action for the federal government, the provinces and the territories. As we know, in our constitutional system the administration of justice is a matter which is under the jurisdiction of the provinces and the territories. Therefore, the federal government can assist and can even provide financing, but, at the end of the day, the operation of courthouses — except federal courthouses — will always remain under the jurisdiction and responsibility of the provinces.

Also, remember that the minister, when he appeared before the committee, mentioned that they committed — I forget how many — millions of dollars in the previous budget for improvements to access to justice, and that could be used for that purpose. I certainly agree with you and with the observations made by the committee that not only should we have access to what we call remote attendance for all those who would like to avail themselves of that option, but that option should be made available on an equal basis to all Canadians who would like to use it. Therefore, we must be sure that especially in the Northwest Territories, where the distances are so big, they also have access to quality internet and equipment in order to participate remotely. Otherwise they will have to travel again over long distances sometimes just to appear to plead guilty on a summary conviction charge, which doesn’t really make sense.

Thank you for your question and observations. I think the committee also picked it up.

Senator Batters: Senator Dalphond, with respect to the particular issue of broadband technology across Canada, this is a promise the federal government has made a number of different times over the last few years — to improve broadband technology across Canada. Obviously, we’re not necessarily just dealing with courthouse administration of justice here. We’re dealing with broadband technology so that many different people across Canada can properly access these tools. Mr. Bartleman pointed out the need for a drastic improvement in these major gaps that we see across Canada — not only in rural and remote areas, but certainly that is the most pronounced area.

Since you’re the sponsor of this particular federal government bill, and the government has made major promises — including in the last election campaign — about expanding broadband technology, what is the update as to when that is going to happen? How much money will be promised for that and when?

Senator Dalphond: I think maybe the question is beyond even the domain of the justice minister. I know that in the budget, a lot of money was committed to providing access to broadband to all Canadians everywhere, especially in remote areas.

I know that in Quebec, there was an agreement between the federal and provincial governments to extend quality internet access to remote areas all across the province. I hope that similar programs are moving forward. Certainly, I acknowledge — with you — that the Northwest Territories is still not a province but a kind of federal structure, so the federal government could certainly be more precise and send more money in particular to that area to assist in providing broadband.

Maybe that is a question more for the finance minister than for the justice minister. I have the honour to speak on the justice minister’s behalf only for this bill, and not the running of his department or the government.

[Translation]

Hon. Tony Dean moved the adoption of the report.

He said: Honourable senators, on June 13, 2022, the Standing Senate Committee on National Security and Defence completed its study of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

As part of this study, the committee heard from the Minister of Public Safety, the Office of the Privacy Commissioner of Canada, government officials, academic experts and representatives from legal and civil society organizations.

The committee adopted Bill S-7 with three broad areas of amendment, which included the following: first, the legal threshold for searching personal digital devices at the border; second, the network connectivity of those devices; and third, regulations relating to solicitor-client privilege. I will cover each of these briefly.

First on the legal standard, Bill S-7 would have introduced a new legal threshold for the examination of personal digital devices by Canada Border Services Agency, or the CBSA, customs officers and U.S. pre-clearance officers — that standard being “a reasonable general concern.”

As context for the changes proposed in the bill, in 2020 the Court of Appeal in Alberta ruled section 99(1)(a) of the Customs Act unconstitutional as it pertains to examinations of personal digital devices. CBSA customs officers currently use a multiplicity of indicators to guide searches of digital devices in line with their internal policies. The court determined that legislation must be amended to include a threshold and further stated that it is Parliament’s role to establish a threshold for the examination of personal digital devices by these officers.

In appearing before the committee, the minister asserted that the threshold proposed by the Government of Canada in Bill S-7 is required to give CBSA officers the authority they need to intercept illegal contraband on personal digital devices.

Furthermore, government officials explained that Bill S-7 would introduce the first legal threshold for U.S. pre-clearance officers to conduct a search of a personal digital device.

However, several witnesses expressed concerns about the bill’s proposed threshold. In their view, its implementation could have the following results: arbitrary treatment at the border; the violation of privacy rights of individuals; an increased risk of discrimination; a lack of clarity about the proposed standard’s meaning; and, indeed, a further challenge before the courts.

The committee amended Bill S-7 to replace the new threshold of “reasonable general concern” with the higher threshold of “reasonable grounds to suspect,” which is a legal standard that already exists in the Customs Act and the Preclearance Act, 2016.

The committee agreed, on division, that this higher legal standard might alleviate some of the concerns that I have just listed. The Customs Act and the Preclearance Act, 2016 currently state that a CBSA or U.S. officer must have reasonable grounds to suspect that a traveller could be breaking the law before conducting other searches such as, in the case of the Customs Act, opening mail that a traveller is carrying, or, in the case of the Preclearance Act, 2016, conducting a strip search.

The committee’s amendments to Bill S-7 would ensure that examination of personal digital devices at the border would be subject to a threshold that is already known to CBSA and U.S. officers.

Regarding network connectivity, government officials emphasized that the Customs Act gives CBSA officers the right to examine documents that are stored on a personal digital device but not documents that are stored on a cloud-based server, for example. Bill S-7 would maintain this role for CBSA customs officers and would formally introduce this role for U.S. pre‑clearance officers. However, to enhance clarity, the committee amended Bill S-7 to state explicitly that these CBSA or U.S. officers would be required to disable network connectivity on personal digital devices that they are examining.

Finally, several of the committee’s witnesses raised concerns about solicitor-client privilege, suggesting that Bill S-7’s proposed legal threshold for the examination of personal digital devices — that being a “reasonable general concern” — could result in CBSA officers and U.S. pre-clearance officers having unauthorized access to documents protected by solicitor-client privilege. To address those concerns, the committee amended the bill so that both the Customs Act and the Preclearance Act, 2016, would allow the Governor-in-Council to make regulations respecting measures to be taken by such officers if a document on a personal digital device is subject to solicitor-client privilege or other related protections.

In conclusion, colleagues, throughout the study of Bill S-7, the committee was tasked with finding an appropriate balance between giving CBSA customs officers and U.S. pre-clearance officers the tools they need to, on one hand, ensure public safety and border integrity while, on the other hand, protecting the privacy rights of individuals.

On behalf of the committee, I present Bill S-7, as amended, for your consideration. Thank you.

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.

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]

Hon. Salma Ataullahjan: Senator, would you take a question?