Hon. David M. Wells: Honourable senators, I rise today to speak on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

I want to begin by thanking Senator Gold for his speech, Senator Boniface as the sponsor and, of course, the members of the Standing Senate Committee on National Security and Defence for its work during the study of this bill. Finally, I want to thank Senator Smith for kindly giving me his seat on the committee for the duration of the study of this bill.

When I first addressed this bill at second reading last month, I noted my surprise that this bill had arrived so late for our consideration. The bill is important in that it will govern how personal digital devices are examined at our borders.

As we all know, many personal digital devices can carry the life history of any traveller, so the legal framework surrounding these examinations is very important. Canadians’ digital devices contain a multitude of personal information including, but not limited to, health records, financial documents, confidential correspondence, family photos, calendars and detailed schedules, shopping lists, the individual’s geolocation record and much more.

The legal framework must be carefully defined as it impacts the privacy rights of every Canadian, rights guaranteed under the Charter of Rights and Freedoms.

Digital devices contain more information about a person than we have ever seen in human history and, consequently, it is worthy of a higher constitutional protection. Therefore, colleagues, we need to be sure that the legal framework governing the examination of personal digital devices is also sufficiently robust to protect our borders and to stop criminal activity such as the importation of child pornography.

Getting this balance right was incorporated in the guidance that the Alberta Court of Appeal provided when it rendered its decision in R. v Canfield. In that decision, the court stated:

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.

As the court confirmed, this balance is at the crux of this matter.

What concerns me is that even though the court ruled on this issue in October 2020, the government has, in the interim, completely failed to create a policy environment where the best solution could be discussed and adopted.

The government put forth the bill that we have before us just a few short weeks ago. Prior to that time, there was no active engagement by government officials with any outside parties. There was no indication of what they were contemplating. Instead, we had a bill dropped on the Senate with a demand that it be passed as quickly as possible. And you’ll recall, colleagues, that it was introduced in the Senate on the day the extension expired.

The fact is the Alberta Court of Appeal rendered its decision striking down provisions in subsection 99(1)(a) of the Customs Act in October of 2020. It provided the government with 18 months to revise the law — 12 months initially, followed by a 6‑month extension, as I noted.

This was the period in which the government should have actively engaged with Parliament; with outside legal experts; with civil liberties groups; with those concerned about the inflow of child pornography; with the border officers’ union; with police groups — and, colleagues, with citizens, the very same citizens whose rights and freedoms may now be violated.

Legal witnesses at committee from civil liberties groups, the Canadian Bar Association and from the Office of the Privacy Commissioner confirmed that they were never consulted as to their views about how the balance between protection and privacy at our border should be established. These organizations clearly have views. Some very learned legal minds have thought about it, considered it and discussed these issues for a considerable period of time.

However, colleagues, the government simply never consulted with them. What the government did was take the 18 months they were given and engage in an internal process, the principal result of which was to simply try to codify the current policies and practices of CBSA into law, and we know from our deliberations that the CBSA doesn’t even follow its existing policy.

While we have no explanation from the government about why it took them 18 months to get this bill before us, we are now confronted with significant implications arising from this delay. For instance, we clearly have a gap in the application of the law in the provinces of Alberta and Ontario. In those jurisdictions, the provisions of paragraph 99(1)(a) are no longer in effect, and the remedy the government seeks will, in all likelihood, drag on for years, as we were told in witness testimony. In those provinces, by the minister’s own admission, examinations by border officers of personal digital devices are down 60%.

That may be a matter of significant concern. It may well be that a loophole for criminal activity has been created. It may be that criminal organizations and individual criminals are taking advantage of this gap in the law, or it may be that what the minister is suggesting is actually overstated. We know that the vast majority of illegal digital material comes in via the World Wide Web, the cloud or inaccessible attachments on remote email servers.

Do fewer examinations necessarily equate to an opportunity for criminals? We have little clarity on this point, partly because the government has provided us with no details and no in-depth evidence or analysis.

Nonetheless colleagues, despite four committee meetings on this bill, I still cannot be fully certain about the varied potential implications.

This is all the more troubling because the government is seeking to introduce a new and unproven legal concept through Bill S-7 — one that is very likely to be challenged and will result in long delays before any bill to cover it becomes law that holds.

As I noted in proposing Bill S-7, the government has essentially taken the existing CBSA policies and practices for examining personal digital devices and has simply attempted to codify those practices into law. However, in doing so, it proposed to introduce the new legal concept of “reasonable general concern.” We have been provided with vague information about how that new legal threshold of “reasonable general concern” would actively function and about how it would be triggered. We have been told, for instance, that it could be triggered by several indicators, and we have been told that it could be triggered by one specific indicator in certain circumstances. We were told it could even be triggered simply based upon the country of original departure.

Those several indicators, or one specific indicator, or no legitimate indicator at all, might easily be different for different CBSA officers, no matter how well they may be trained.

Those several indicators, or one specific indicator, might be different again for U.S. pre-clearance officers. U.S. pre-clearance officers are trained in a different organizational culture. Their last posting may have been on the Mexico-U.S. border. It is understandable that they may see the concept of “reasonable general concern” very differently from their Canadian counterparts.

When the minister appeared before our committee, he told us that were a higher threshold, such as the well-known and court-tested “reasonable grounds to suspect,” imposed at the border, it would “. . . compromise border integrity. . . .” He said there was no question that this was the case, yet he gave no evidence to support this assertion.

As Michael Nesbitt of the Faculty of Law at the University of Calgary put it in committee:

. . . border officers will rightly almost always be generally concerned, with good reason, that something, somehow, is being illegally brought into the country. But the court in Canfield was clear that there must be some standard, which they called a threshold requirement. . . .

Colleagues, “reasonable general concern” is no threshold.

Other witnesses who appeared before our committee, including those from the Office of the Privacy Commissioner, noted that the privacy rights impacted by the examination of a personal digital device should attract a much higher level of protection than simply an ill-defined “reasonable general concern.”

Benjamin Goold, Professor at the University of British Columbia, explained that requiring “reasonable grounds to suspect” as opposed to “reasonable general concern” before a search is undertaken strikes an appropriate balance between the competing interests identified in the report and subsequently by the courts in Canfield and Townsend.

The concept of “reasonable grounds for concern” is untested in our courts as a legal threshold, and introducing this concept would, without a doubt, introduce prolonged legal uncertainty at the border. This was echoed by a number of our expert witnesses, including various civil liberties associations and the Canadian Bar Association.

Brenda McPhail, Director, Privacy, Technology and Surveillance Program of the Canadian Civil Liberties Association, was very clear in noting that her association would strongly support any legal challenge to this proposed provision in the bill.

Similarly, David Fraser, Member, National Privacy and Access Law Section of the Canadian Bar Association, told our committee that the introduction of “reasonable general concern” would increase legal uncertainty. He noted that within five years, Parliament would inevitably revisit this matter given the likelihood of a successful legal challenge.

While the mere fact that legal challenges are possible does not mean the government cannot propose a particular measure for enactment into law, if it chooses to do so it must then provide clear explanations and supporting information about why it chooses to do that. There is little evidence that the government has taken any of these issues seriously. In testimony, the CBSA became a star witness against themselves. Bill S-7 is their policy document, which they don’t even follow fully, that they’d like turned into law. Colleagues, it took the government 18 months to develop that strategy.

Witness after witness told us they were not consulted on either the bill or on the legal concepts contained within it. David Fraser of the Canadian Bar Association confirmed that nobody from within government approached them, despite the considerable legal work they have done on this very issue. Mr. Fraser fully acknowledged that perhaps a new legal concept below the threshold of “reasonable grounds to suspect” might be justified in the border context. He stated that the courts might very well be open to new concepts. However, those concepts then require a better explanation as well as a fulsome discussion. None of that happened.

For the most part, we heard that the concept of “reasonable general concern” would not stand up to a Charter challenge. Benjamin Goold stated about the current standard:

I think if it ends up in the Supreme Court, based on everything we’ve seen around the jurisprudence on section 7, it would fail, because I don’t think it’s sufficiently onerous in terms of protecting the rights of individuals.

The concept of “reasonable general concern,” without that broader discussion and explanation, has completely undermined the government’s efforts. This approach left the Senate committee with no choice but to try to improve the bill based on witness testimony. That is why the Standing Senate Committee on National Security and Defence chose to accept Senator Jaffer’s amendment to substitute the phrase “reasonable general concern” for “reasonable grounds to suspect” when it comes to the examination of personal digital devices.

As numerous senators pointed out in their comments at committee, not a single independent expert witness came before the committee to express support for the government’s proposal to institute a standard of “reasonable general concern” for the examination of personal digital devices.

Our colleague Senator Dalphond provided very eloquent support for Senator Jaffer’s amendment and was, in fact, ready to move the same amendment had Senator Jaffer not moved hers. Senator Dalphond noted that the standard of “reasonable grounds to suspect” was a very well understood legal concept and was one that is necessary to protect the scope of privacy rights that are impacted as a result of the examination of personal digital devices.

Our colleague Senator Dalphond also put forth another important amendment that underlines a critical question with regard to solicitor-client relationships that should extend to other professional relationships. The question of protected professional communications is legitimate and should be dealt with by a stronger mechanism than the internal policy that CBSA currently has and was written into the original bill — or, more correctly, not addressed in the original bill at all, indicating no restriction whatsoever.

This amendment correctly highlighted the significance of ensuring CBSA officers clearly know how they must conduct searches at the border when the protection of privileged information, which could be in the context of solicitor-client privilege or any professional privacy for any professionals, comes into play.

The concerns of senators related to the protection of privacy rights is also why the National Security and Defence Committee looked favourably upon my amendment that requires CBSA officers examining personal digital devices to ensure that such devices are only examined in non-connectivity mode if referred for secondary screening.

Senators, the amendment I proposed at committee sought to further protect Canadians by ensuring that the CBSA officer, or pre-clearance officer, prior to examining a personal digital device, informs a traveller subject to such an examination that the traveller has the right to ensure that the device in question is examined only in non-connectivity mode.

Colleagues, you will remember from my speech at second reading that this happened to me, and I was given no such advice, and my bank records were comfortably searched by the CBSA officer.

This amendment is to protect Canadians by ensuring they are informed of that right. The amendment does not change the CBSA current policy or their ability to search a device.

Therefore, my amendment makes disabling a stated precondition to any search. Colleagues, the necessity of Canadians to know their rights is embodied in my amendment.

I believe that the bill we now have before us — as amended — is at least better structured to provide the appropriate balance required by our legal system. That said, I do remain concerned that gaps in our border security will still exist.

Other important factors that were brought to light at committee were the concerns over racial profiling. As Lex Gill, Research Fellow, Citizen Lab at the Munk School of Global Affairs, said in committee:

My colleagues’ concerns about racial and religious profiling also bear repeating. The border is a high-stress, low-information, low-visibility environment. It is a perfect storm for the combination of implicit bias and abuse of discretion that gives rise to discriminatory effects. . . . People crossing the border have the right to not suffer invasive and unconstitutional treatment in the first place.

Colleagues, Bill S-7 is potentially generating a situation whereby indicators that fall short of reasonable suspicion will be used to essentially intrude on an individual’s Charter rights. That is akin to racial profiling.

I am in agreement with our colleague Senator Yussuff, who said in committee that the low threshold means that any factors such as skin colour, name, the fact that they are nervous or sweaty can be considered, and that this will undoubtedly lead to abuses.

The fact is that in a situation where there are highly discretionary and loosely defined powers combined with the existence of implicit racial and unconscious biases, abuse and discriminatory effects are sure to occur.

Ms. Gill continued this thread by saying:

The border is a context where the situation is often rapidly evolving, where people are acting with low information in a high-stress context. That’s exactly the kind of scenario that brings out those kinds of implicit assumptions, stereotypes and prejudices that people may not even know they have.

Colleagues, we have learned, and the courts have told us, that entrenching operational matters into CBSA policy is simply not good enough and does not have the force of law. I believe that we should not address these operational considerations in the regulations, as there are concrete reasons as to why this should not be the path we take.

Essentially, colleagues, the prudent and correct way to proceed would be to have the framework set out in law, debated and democratically approved. To do otherwise would be leaving every Canadian’s constitutional right to privacy to a discretionary approach that we find in the regulatory-making system.

Worth noting is that the government included in this bill a section that lowers fines associated with interfering with a border officer. There is no explanation for this provision, which seems to run completely at cross-purposes with the government’s supposed objective of ensuring that border officers are able to carry out their mandates effectively.

The government clearly did not make any effort to construct a holistic approach on this issue. I think it is vital that the government at least try to do that now as this bill makes its way through to the other place.

We require a legal regime at the border that empowers border officers to tackle a very specific problem without infringing unnecessarily on the broader privacy rights of citizens. It is up to us as legislators to closely monitor whether the government actually does the work that they have been asked by the court to do.

Colleagues, as we heard many times, especially at committee, all levels of courts have been unambiguous that when it comes to searches of digital devices, it can be a significant intrusion of privacy. It does not make any sense to create a low standard — or, as I have stated, no standard — at the border, which will undoubtedly lead to Charter challenges.

How can the government justify a more invasive search on a lower standard?

Senators on the National Security and Defence Committee asked the right questions. Witnesses told us through their testimony that critical flaws reside in this bill if passed in its original version.

I hope and trust that all senators in this chamber will sustain the work undertaken by the members of the committee and those who have spoken in this chamber and convey a strong message to the government that it must do better. This bill, as amended at committee, is a strong step in that direction. Thank you.