Senator Gold: Thank you, senator, for your question. Of course, the government and I share the concern, as we all should, that the application of any legal standard could encourage a bias or racial profiling.

I do believe that the general concern speaks more to the fact that with digital devices, unlike other kinds of measures — and I addressed this in my speech — the officer may have no specific contravention in mind and no knowledge of what he or she may find because they are simply in the moment, although there would have been objective indicators to signal that something may be being hidden.

We had testimony before the committee as to what some of these indicators might be. I believe that it is still very much focused on the individual before the officer who has, in some way or other, in the answering of the normal questions one is asked, given some indication that there is something amiss and, therefore, is then required to go to a second stage of questioning, at which point the officer may very well have reached the conclusion that the threshold has been met.

Senator Gold: Thank you for the question. The issues of racial profiling and bias figured in the committee’s deliberations, and properly so. It would be wrong and foolish if we did not acknowledge that this happens.

Having said that, we’re not talking about random searches of digital devices. In Bill S-7, there need to be objective criteria before the legal threshold, whether it’s a threshold of reasonable grounds to suspect or reasonable concern. Both do not simply allow border officials to act randomly. We can disagree. Obviously, the committee was of the view that the somewhat higher standard was more appropriate. I respect that decision, but it still remains the case that even with a general concern standard, it is not simply at the whim of a border officer — while acknowledging that conscious and perhaps unconscious racial profiling and bias occurs, as I said before. We would be foolish to deny that. There is some reassurance in the statistics that even with no legal threshold whatsoever, digital device examinations are incredibly infrequent. I cited the examples of 0.01% are searched. For example, not only are they infrequent but they uncover contraventions at a much higher rate than other types of examinations.

Let me give you an example. In 2021, 27% of digital device searches — again, representing a small number of incidents — resulted in the discovery of a contravention. That’s 27% of the time there was a contravention as opposed to 4% for other searches at the border. That indicates that border officials are doing a reasonably good job using the objective criteria and indicators to zero in on situations where it is truly appropriate to search a digital device.

Again, let me quote from testimony of the Canada Border Services Agency official Scott Millar at the committee:

. . . not only is racism illegal and against our values, but it’s also operationally — if I may be frank — stupid. It does not help us get the kinds of results and rates that we’re talking about here. . . .

I hope that answers your question.

Senator Gold: Again, in my response I acknowledged the reality of this, senator. The government is not burying its head in the sand. I know that concerns were expressed at the committee about the extent, or the lack of extent, of training in these matters for officials. I am also aware that the Canada Border Services Agency provided the committee some follow-up information with more detail about the nature of its training, which included two hours on diversity and race relations and an hour specifically on preventing unconscious bias, which we know is a problem. We are conscious that it is a problem. One and a half hours were spent on processing Indigenous travellers and two hours on Gender-based Analysis Plus. And more training is coming.

The fact remains, honourable senators, that the bill is addressing the criterion, the legal threshold and related issues around searching of digital devices. It is not an open invitation for random searches at a whim. That would be so whether it is “reasonable grounds to suspect,” “reasonable concern” or any other legal standard. The possibility that unconscious or conscious bias will creep into that decision making is a real one, which we need to address in all respects. Strictly speaking, it is an important but separate issue from the legal threshold before which a search of a digital device can be undertaken by an officer.