Senator Jaffer: Senator Gold, congratulations on an extremely well-thought-out and very difficult speech. Also, congratulations to the minister. As you said in your speech, it is not an easy thing to change politically and in all other ways. I compliment you and the minister. The minister has been very courageous in doing this.

But, senator, you know where I’m coming from and, of course, I support what you said, every single word you said. But to everything you say — that one size does not fit all, that we have to introduce discretion into the justice system, and, as you say, that this is difficult — yes, it’s difficult. I am saying to you not to shoot for the moon. I am saying to you that there are some cases to consider. In my calculation — and we will sort this out in committee — you said 20; I would have said 22, but that doesn’t matter.

The government is making mandatory minimum changes on 20. From what I’ve counted, there are around 73 mandatory minimums, and the judges have held at around 37. My figures may be wrong. I’m not sure — 37 mandatory minimums seem to be unconstitutional.

I say to you that there is now a mishmash out there, 20 and 37, and then there is 73. Would the government look at, in unusual and cruel circumstances, allowing the judge, on mandatory minimums, to have the discretion to not impose mandatory minimums?

Thank you, Senator Gold, once again for an excellent presentation.

Hon. Mobina S. B. Jaffer: Senator Gold, thank you very much for your presentation.

The National Security and Defence Committee has a very competent steering committee, and they chose 12 witnesses. You are saying that we didn’t have children appear before our committee. These witnesses are well-known people who, I’m sure, have studied this material. I think it’s a little unfair to say that they couldn’t speak for the children. I can’t repeat the words you said because I don’t have them in front of me, but I think it’s a bit unfair.

The steering committee had an opportunity to call those witnesses. They could have called children if they had deemed it necessary. As chair, I have done that a number of times. The fact that they called 12 credible people to the committee, do you not think they were able to balance the number of witnesses? Don’t you think you were unfair in the way you addressed those witnesses who appeared before us and provided good testimony?

Senator Jaffer: May I ask you another question?

Hon. Mobina S. B. Jaffer: Senator Gold, will you answer a question?

Senator Jaffer: Honourable senators, I rise today to speak to Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

First, I want to thank Senator Boniface for her work in sponsoring Bill S-7 and the critic for his work as well, and also Senator Dean for doing an excellent job in chairing the committee.

Honourable senators, up until recently, there was no threshold on how officers should carry out the test to search personal digital devices.

In 2020, the Court of Appeal of Alberta released the Canfield decision, which stated that the government needs to amend the Customs Act to include a test for the search of personal digital devices at the border.

Let me give you examples of what is currently enshrined in the Customs Act:

To search a person, border security officers apply the reasonable grounds to suspect test.

To search a good when there might be a mistake in the good’s classification, value or quantity, border security officers apply the reasonable grounds to suspect test.

To search a good when there might be a mistake with respect to its origin, border security officers apply the reasonable grounds to suspect test.

To examine goods when an offence might be perpetrated, border security officers apply the reasonable grounds to suspect test.

To search a conveyance, whether a truck or train or other, when an offence might be perpetrated, border security officers apply the reasonable grounds to suspect test.

And to search mail, honourable senators, border security officers apply the reasonable grounds to suspect test.

Bill S-7 was written to incorporate the new threshold in the Customs Act. The Minister of Public Safety and two CBSA officials came to committee to present this new novel threshold, which requires a border security officer to have a “reasonable general concern.”

Senators, many times Senator Boehm asked the question how the American border security officers will be trained for pre‑clearance purposes. How will they learn this “reasonable general concern”? By this novel “reasonable general concern” standard, border security officers would use indicators that are identified in regulations to search travellers’ personal digital devices.

We were told the indicators ranged from a traveller acting nervous or agitated, avoiding eye contact, shifting back and forth, stuttering and sweating, to finding devices in a traveller’s luggage. Another indicator revolves around whether the country of origin of the traveller is a country where child pornography is an issue.

Yet not all indicators were shared with the committee. We were told that it wouldn’t be safe to share these indicators with a Senate committee. But, honourable senators, as a Muslim woman of colour, I am concerned with the way in which these indicators will be used. And I have an idea of what those other unrevealed indicators might look like.

Many CBSA officials, since I have asked this question, have spoken to me privately and told me that my concerns are very legitimate. The concerns that were not mentioned at committee are often the concerns that border security officers carry out.

Senator Boniface restated that the “reasonable general concern” test will put into law what border officers have already been doing. However, we have gathered in committee numerous testimonies that tell us that this threshold will not properly strike the balance between national security concerns and travellers’ privacy rights.

In fact, 11 of the very reputable witnesses supported the higher test. Ms. St. Germain from the Canadian Centre for Child Protection said that the “reasonable grounds to suspect” threshold is adequate. I’m going to repeat this, senators. Even she said that the “reasonable grounds to suspect” threshold is adequate for border examination of personal digital devices.

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She went on to say, and I quote:

. . . the reasonable suspicion standard is something that is known and understood in criminal law. We understand that it’s also been used in the border context.

Later, she said of the offenders crossing with child pornography on their personal digital devices that:

. . . “The reasonable suspicion standard is something that is known and understood in criminal law” will likely be able to catch many individuals who are potentially doing this.

Senators, last week in the chamber, Senator Dean and I had different interpretations of Ms. St. Germain’s responses in committee. After looking at her transcript, I admit that her responses were ambiguous. She didn’t seem to be overtly claiming that the “reasonable general concern” threshold was the one she was supporting, but she did say that the “reasonable grounds to suspect” was something that would work.

I accept that what she said was ambiguous. But except for her, the other 11 witnesses were very firm in what they said.

As I said to Senator Gold earlier on, the steering committee always brings a balance of witnesses to bring both points of view. We have a very hard-working steering committee. If they had found anyone who was supporting the “reasonable general concern” test, they would have brought them to committee.

Honourable senators, one thing is certain, all 11 witnesses were adamant about supporting an amendment replacing the “reasonable general concern” test with the “reasonable grounds to suspect” test.

These witnesses have extensive experience on these issues and have done extensive research. As such, though the government wanted to enshrine into law the novel “reasonable general concern” test, witnesses prefer the “reasonable grounds to suspect” test, except for the Minister of Public Safety and his Canada Border Services Agency officials.

The “reasonable general concern” threshold is entirely novel in Canadian national law, and we cannot find anything in foreign national law that uses that test either.

Ms. Lex Gill, a research fellow from the Munk School of Global Affairs explained the “reasonable general concern” test, and I quote:

. . . not only does this kind of broad-based standard open the door to group-based discrimination and the use of group-based characteristics as a pretext to stop, question someone and search their devices, but these are also powers that are very difficult to review after the fact. . . .

Michael Nesbitt, Associate Professor at the Faculty of Law of the University of Calgary, said:

. . . Better to set a clear standard now. That clear standard could certainly be, and in my mind should probably be, “reasonable grounds to suspect.” It is a flexible standard and it allows for much nuance, including a different sort of nuance at the border. As Supreme Court said recently in Stairs, it requires but “a constellation of objectively discernible facts assessed against the totality of the circumstances.”

[Translation]

Regan Morris, senior legal counsel at the Office of the Privacy Commissioner of Canada, stated the following:

I understand that the intention is to have a lower standard than reasonable grounds to suspect. We don’t think it will strike the right balance between privacy and other government interests.

[English]

Mr. Regan Morris later added:

We would highlight, again, the Supreme Court’s decision in R. v. Stairs, which was issued a few weeks ago, highlighting the flexible nature of the standard. It is a standard that is based on the totality of the circumstances and is meant to be flexible. It’s meant to be a lower standard than reasonable grounds to believe. It’s fact-based, flexible and grounded in common sense.

Mr. David Fraser, former Chair of National Privacy and Access Law Section of the Canadian Bar Association explained:

. . . reasonable general concern is not a standard for any sort of search in Canadian law. Your guess is as good as mine, but it seems pretty close to whether the officer’s spidey sense is tingling.

Pantea Jafari from the Canadian Muslim Lawyers Association said:

. . . The [reasonable general concern] standard is not only legally unfounded, but also unreasonably broad and low, as testified to in more detail by other witnesses, including today’s. The overly broad nature of the proposed standard will invite arbitrary application. It will undoubtedly result in unjustified searches of a wide swath of people and will disproportionately be felt by minority and equity-seeking communities.

Tim McSorley from the International Civil Liberties Monitoring Group said that the “reasonable grounds to suspect” test:

. . . is a known standard. It is a clear standard. It is a standard that is already applied to mail, which, as we pointed out, should more than clearly be viewed as a parallel to the digital devices that people are bringing across the border.

In response to Canfield leaving the door open, Mr. McSorley explained:

. . . the courts did leave it open to the possibility of a lower threshold. However . . . that does not mean a lower threshold is appropriate. The courts were not deciding on that.

Meghan McDermott from the British Columbia Civil Liberties Association explained:

. . . that we don’t support the novel general reasonable concern threshold that’s being proposed in Bill S-7. We join the other witness here today, as well as many others, including Canada’s Privacy Commissioner, in recommending that the law reflect the higher and familiar threshold of reasonable grounds to suspect.

Ms. Brenda McPhail from the Canadian Civil Liberties Association also had the same opinion.

Honourable senators, upon hearing the testimony of witnesses, your committee determined that implementing the “reasonable grounds to suspect” threshold for search of personal digital devices is coherent with the Customs Act and strikes the right balance between border security and privacy rights.

As Senator Simons explained in her second reading speech, the decisions of R. v. Plant, R. v. Cole and R. v. Fearon, among others, remind us that the closer information touches an individual’s biographical core of information, the more protections section 8 of the Charter will require from the government.

In the same vein, the Supreme Court wrote in R v. Morelli that it is difficult to imagine a search more invasive of one’s privacy than searching a personal computer.

Honourable senators, I hope you will agree with me that personal devices need just as big a protection as a piece of mail does, and “reasonable grounds to suspect” is the proper test.

Honourable senators, I am very proud to be a member of the National Defence Committee that amended this test because I truly believe they heard from the different witnesses and had the courage to make the amendment.

Just today, the Executive Director of the Canadian Race Relations Foundation told us in the Human Rights Committee that he always got pulled out at the borders whenever he arrived in Canada, and was just petrified of what would happen to him because he’s a Muslim man until he got a NEXUS card.

Senators, the Senate’s job is to protect minorities. If we don’t look after the rights of minorities, who will? Thank you very much.

Senator Jaffer: Senator Gold, I didn’t for a minute say that you had not done a good job. You have. You expressed your position. I only took issue with how you addressed the very good witnesses that appeared before the committee. I didn’t want to raise this in my speech, because then you wouldn’t have had an opportunity to speak on this.

I have another question for you. To my question about note taking, the minister said that whether or not the person has committed a contravention, notes will be taken about that person. The minister was very specific about this.

Then the Privacy Commissioner appeared before us and said there have been six complaints about the poor standard of note taking by officials, and that he’s been very unhappy with the standard of note taking. Then the officials said that no more funds would be spent to bring in this new threshold.

Where is the protection? They indicated that they will take notes if they stop somebody, even if the contravention doesn’t happen, but the Privacy Commissioner says he’s not happy with the note taking.