The Hon. the Speaker: Honourable senators, Senator Ringuette’s time has expired. She is asking for five more minutes. If you are opposed to leave, please say “no.”

Senator Ringuette: Could I have 10 seconds?

The Hon. the Speaker: I’m sorry, Senator Ringuette. Leave is not granted.

Hon. Pierrette Ringuette: Honourable senators, I rise today to speak on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, regarding the examination of personal digital devices at the border.

Let me say from the start that I agree with the original version of Bill S-7, not the amended one that we have before us. We may agree to disagree, but I need to put forth my perspective and, later in my comments, my personal experience.

[Translation]

I am not a lawyer, but I am a good student of the school of common sense, as they say where I come from.

[English]

And that must prevail in everything. This bill is necessary in response to a court decision. In R. v. Canfield and R. v. Townsend, the Court of Appeal of Alberta ruled that currently the lack of legislation/threshold allowing the examination of personal digital devices, such as when searching one’s suitcase by the CBSA, is unconstitutional under the Charter of Rights and Freedoms.

This is because paragraph 99(1)(a) of the Customs Act imposed no limits on searching these devices. The courts did not set out a threshold for searching digital devices, but instead recognized that a lower threshold is more reasonable than what is currently in the law for goods in these circumstances, and they left it to the government to create the threshold.

Contrary to certain statements in this chamber last week, the courts did not prescribe that Parliament enact the same consistent provisions as in 99(1)(a) of the Customs Act, i.e. for goods and mail, et cetera.

I repeat that the court specified that a lower threshold would be reasonable and should be put in place by Parliament. The courts even specified that digital devices were not considered goods” as per the Customs Act. In essence, the argument that was put forth in the Senate last week contradicted the decision of the courts.

As a side note, I would also like to argue that, to some degree, there is inconsistency in our own deliberations. We agreed, not so long ago, to random, roadside alcohol testing without any threshold to protect our citizens.

In amending the original Bill S-7 from “reasonable general concern” to the threshold of “reasonable grounds to suspect,” we are not in fact meeting the intent of the court decision. We are bringing a higher threshold — in fact, a threshold that is required for a strip search. The search of your digital device is certainly not akin to a strip search.

I will also note that the threshold of “reasonable grounds to suspect” is the high threshold needed to grant a warrant to search a residence, sometimes requiring our police forces to put in weeks of data- and fact-gathering.

So with “reasonable grounds to suspect” in the amended bill, we can expect our borders to be either at a standstill — long and very long lineups — or an open border by identified criminals. To me, both options are unacceptable.

I will also stress that the courts did not identify racial profiling in the matter of searching digital devices, probably because no evidence was put forth in those two court challenges. Furthermore, the current amended Bill S-7 does absolutely nothing to address the issue of potential racism. Racism is best dealt with by education, wherever it is. And the amendment of the threshold does not address the issue of racism in this particular organization. Honestly, they are two different issues.

I will agree that it is not pleasant to be asked questions and to be referred to secondary screening. However, when one wants to leave or enter a country, whether it is yours or a foreign one, you do so voluntarily and have to respect the mandate of border officers enforcing the law of the land. Securing our borders is an important and necessary part of keeping our country and Canadians safe. The need for border security to be able to assess and, at times, inspect personal digital devices at the border is a key part of that.

I agree that there is also a need for balance between security and privacy rights. However, the security of Canadians would trump my privacy any day.

It should be noted that these searches are extremely limited, even with the lack of limitations previously set out in paragraph 99(1)(a) of the Customs Act.

According to CBSA data, from November 20, 2017, until December 31, 2021, almost four years, 0.013% of all travellers processed at the border had their devices examined. We’re making such a big fuss over 0.013%. And 37.3% resulted in the detection of a contravention, including money laundering, child pornography and undeclared goods. That’s 253,509,912 travellers, 33,373 examinations of digital devices and 12,457 contraventions detected.

The framework originally set out in this bill was reasonable, given the limited access and time agents have with travellers. There is a well-established lower expectation of privacy at the borders, whether it is ours or any other.

The novel threshold of “reasonable general concern” does not mean carte blanche to search everyone’s phones. It is limited to the specific context of border security and cannot be used outside that context. There needs to be grounds for the search and for those grounds being subject to review. Agents need to identify specific, individualized reasons with regard to the person and the device.

There are three aspects to this novel threshold: reasonable, general and concern. “Reasonable” I think we can all agree with. The indicators need to be factual and objective. This is a well‑established term in law. “General” is the main point of contention, but the courts themselves have acknowledged that a lower threshold is needed. There is not the same ability to generate specific suspicions as there is in other circumstances. “General” is a reasonable response to that fact. “Concern,” as above, is an acknowledgement of the fact that the threshold of suspicion is too high a bar for the circumstances, as it is the bar for a strip search or house search warrants.

Higher thresholds used in other circumstances would not work in this context. The agents have a very limited amount of time to interact with individuals. They are required to make quick decisions, ones that greatly affect our national security. They need tools designed for their demanding job, and the novel threshold of reasonable general concern does that. It did that. It was changed.

Overall, onerous requirements would weaken our borders and prevent our agents from doing their jobs. We were told in this chamber that border officers need to do a better job of controlling our borders. Is this amended Bill S-7 giving them better tools to do their job? I personally do not think so. CBSA agents are trained to observe and identify factors that lead to a reasonable general concern. These policies already exist internally in CBSA and would have been legislated into law by the original bill. There is also a requirement that CBSA agents take extensive notes that can be reviewed later. There was a lot of debate on this at committee, and I am personally surprised that the committee was not open to a new concept.

Before the court decision, searches were limited, as noted in the statistics from CBSA. That was with a lack of legislated threshold. This new threshold would have put existing practices into law. We are not talking about lowering a standard here; we are talking about placing practice into law.

Also, in terms of reviewing the actions of CBSA agents, the government has recently introduced legislation, Bill C-20, to create a new public complaints and review commission, replacing the Civilian Review and Complaints Commission for the RCMP, and grant it new powers to handle CBSA complaints. The bill proposes $112 million over five years and more than $19 million a year ongoing. In addition, the agencies covered by the new commission will be required to respond to interim reports within six months.

Honourable senators, I am at the point in my comments where I will reveal to you that as a student, I worked in 1982 and 1983 as a border officer. Yes, 40 years ago, when there were no digital devices. People had physical wallets, handbags and briefcases with them and on them. At secondary inspection, we would ask them to empty their wallets, handbags and briefcases. You would be amazed, truly amazed, at the real infraction events I could tell from these three containers — wallets, handbags and briefcases.

However, today, 40 years later, most of us carry digital devices.

Colleagues, may I have five more minutes?