Hon. Claude Carignan: Minister, the decision is dated April 14. The deadline for appealing is May 16. It is now May 11. Having worked in private practice, I know that it takes time to prepare an appeal. I have a hard time believing that, today, you don’t know whether you’re going to appeal. I believe that you are holding something back.

I will help you and persuade you not to appeal. The judge states the following on page 41 of the ruling:

In circumstances where members of one of the two constitutionally recognized linguistic communities are unable to interact directly, in their language, with the head of state — how can that be considered equality of both linguistic communities?

Do you agree with this statement? If you do, the case should not be appealed.

As I clearly stated, I don’t know what decision the Minister of Justice will make on this matter. I can’t give you any information in reply to this specific question.

I can tell you that the Minister of Justice is reviewing the matter. I will be happy to inform you once the decision is made. The Department of Justice will certainly take the time to study the decision and determine the next steps.

We remain committed to protecting and promoting the French language across the country and advancing linguistic duality. As Minister of Official Languages, that is truly my priority.

Concerning the bills on the Lieutenant-Governor and the Governor General that are before the Senate, we are watching their progress in the Senate to see exactly what the outcome will be.

Hon. Mobina S. B. Jaffer: Thank you for being here, minister.

I’m from British Columbia and I dream of having everyone in B.C. speak French. As you know, my fellow British Columbians don’t have the opportunity to learn it.

What, in particular, has the department done to promote the French language and francophone culture in Canada outside Quebec? Your mandate letter states the following:

 . . . support the maintenance and vitality of official language minority communities by helping to build, renovate and develop educational and community spaces serving them.

Minister, what, specifically, have you done to fulfill this commitment?

What’s your plan, minister?

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Hon. Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency: Thank you very much for that important question. We certainly have a lot of work to do to address the demographic weight issue. We recognize that French is in decline in Canada and in Quebec. If we look at some statistics, in 1971, the francophone population outside Quebec was 6.6%. Projections indicate that it will be 3% by 2036. That is a 3.6% loss of francophones outside Quebec, which is huge.

That is why we drafted this bill with Minister Fraser. We want to go further than Bill C-32. We want to make sure we have an ambitious immigration strategy with targets and indicators. If we want to adjust this country’s demographic weight, we need targets and we have to do the work to meet them. We want to establish this policy for francophones outside Quebec, but we also have to make sure we can offer French integration services to immigrants to Quebec.

Once again, I’m very happy I had the opportunity to work with Minister Fraser to make sure that Bill C-13 includes an ambitious immigration policy complete with targets and indicators. This is a step in the right direction towards correcting that loss of demographic weight in this country.

[English]

Senator Dawson: Thank you, minister.

[English]

Hon. Michael L. MacDonald: Minister, Nova Scotia has 10 senatorial positions. There’s a long-standing convention going back to 1907 that one of these seats is always set aside for a representative of Nova Scotia’s Acadian community. However, there has not been an Acadian senator from Nova Scotia in this place since the retirement of our esteemed colleague Gerald Comeau in 2013, although your government has had multiple opportunities to correct this situation.

There are two vacancies presently in Nova Scotia. Minister, do you think the Prime Minister should address this omission? Will you advocate for such an appointment?

On the Order:

Resuming debate on the motion of the Honourable Senator Boniface, seconded by the Honourable Senator Gold, P.C., for the second reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

(Pursuant to the order adopted by the Senate on December 7, 2021, to receive a Minister of the Crown, the Honourable Ginette Petitpas Taylor, P.C., M.P., Minister of Official Languages and Minister responsible for the Atlantic Canada Opportunities Agency, appeared before honourable senators during Question Period.)

Hon. Judith G. Seidman: Minister, welcome to the Senate. In Bill C-13, your government is giving up on the long-held principle of symmetry. That is the principle that the two languages, English and French, have equal status and rights in law in the federal jurisdiction. It is important for Canadians to understand that fact, and the reasons why, especially the impact on the English-speaking community of Quebec, who are completely abandoned. Why?

Hon. Pierre J. Dalphond: Honourable senators, as we prepare to conclude debate on the principle of Bill S-7, allow me to offer a few comments that may be useful during the committee’s study.

First, I would like to thank Senator Boniface for her April 28 speech, in which she did a very good job explaining the origins of the bill and its substance. In essence, the government is proposing that personal digital devices, such as smartphones, tablets and computers, be subject to a search or examination only if the customs officer has a reasonable general concern that an offence has been committed under the acts that the officer is responsible for enforcing.

As the senator said, this bill is the government’s proposed response to a Court of Appeal of Alberta ruling on October 29, 2020. In Canfield, the court found that the application of paragraph 99(1)(a) of the Customs Act to the inspection of these devices was a violation of section 8 of the Charter of Rights and Freedoms, which guarantees all Canadian citizens a sphere of autonomy and privacy. The ruling also gave Parliament 12 months to amend the legislation. That deadline was extended to April 28, 2022, and no further.

In a ruling issued in the Pike case on April 14, after this bill was introduced, the Ontario Superior Court came to the same conclusion as the Alberta Court of Appeal. The judge also refused to grant the government a further one-year extension, choosing to uphold the deadline set by the Alberta Court of Appeal. As a result of these two rulings, as of April 29, 2022, customs officers in both Alberta and Ontario may search one of the above-mentioned digital devices only if they have a reasonable suspicion that an offence has been committed under a law that they are responsible for enforcing.

[English]

It means that currently, at the busiest airport in Canada, Toronto Pearson International Airport, customs officers can only ask for access to the content of a digital device if they entertain a reasonable suspicion that it contains a document that cannot be legally imported to Canada. This is, of course, also true at all international airports in Alberta and Ontario and at all border customs stations located in these two provinces. In other words, since April 29 a large proportion of travellers entering Canada can only be subject to a search of their personal devices if the customs officer entertains a reasonable suspicion that the traveller is trying to import illegal material — a threshold that has been described, and rightly so, by Senator Boniface as being higher than the one proposed in the bill.

During committee study of this bill, this important new fact should be studied in order to measure the difficulties, if any, met in the operations of customs officials in Alberta and Ontario compared to the rest of the country. The rest of the country can still operate under the existing regime where customs officers apply section 99(1)(a) of the Customs Act to search personal devices, being restricted only by internal guidelines issued by the Canada Border Services Agency. These guidelines have been found by both the Court of Appeal of Alberta and the Superior Court of Justice in Ontario to be insufficient to meet legal requirements because they are not legally binding.

Incidentally, this is the same test that customs officers have always applied to the inspection of material in the mail without complaining about their inability to ensure that illegal products such as child pornography are not imported to Canada through the mail service. This is certainly another feature of the current system that could be studied in committee.

As observed by the Court of Appeal of Alberta, the content of a personal device is incredibly larger in terms of personal information than what you could find in a letter, even a long one.

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Hon. Tony Loffreda: Thank you, minister, for being with us this afternoon. I would like to speak about the issue of minority language rights in Canada.

[English]

My question is on protecting the rights of English-speaking minorities in Quebec and French-speaking minorities across Canada. Although the question has been asked, I noticed that the minister wanted to elaborate further on how you plan to protect minority rights in Quebec. I welcome additional comments on this important issue.

Senator Simons: I had a question because you, of course, bring to the chamber your experience as a judge. If you were on the Court of Appeal and a case came to you that had this threshold test of reasonable general concern, what is the process for a court to look at such a novel test that has no precedent in Canadian law? How do you adjudicate it?

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Salma Ataullahjan: Minister, two weeks ago, the Commissioner of the Environment and Sustainable Development released a report which criticized your department in spending funds that are intended to help communities in Nova Scotia and New Brunswick to transition away from coal. This audit found that the Atlantic Canada Opportunities Agency funded many projects that “. . . lacked a connection to the coal transition.”

Minister, your department still has over $30 million from the Canada Coal Transition Initiative–Infrastructure Fund to spend between now and March of 2025. What are you doing to ensure that those taxpayer dollars are better targeted to specifically help coal workers and their communities in those two provinces?

Senator Dalphond: With pleasure.

Hon. Pierre J. Dalphond: Honourable senators, as said by Senators Boniface, Simons and Wells, the constitutional question that Bill S-7 attempts to answer is the balancing of two competing values.

On one hand, it is widely acknowledged that officers at the border, in dealing with travellers coming into Canada, are entitled to ask questions, to inspect goods, including personal belongings, and to detain and search persons in order to ensure compliance with the Customs Act and related laws, all in order to protect our country. In fact, officers at the border are often entitled to act in ways that would not be acceptable for police officers dealing with citizens within the country.

On the other hand, there is the ever-increasing recognition by the courts of the informational privacy inherent in a personal digital device. The Supreme Court has stated that cellphones, like computers, implicate important privacy interests that are different in both nature and extent from the search of other places. The high courts added that it is unrealistic to equate a cellphone or a computer with a brief case, even if they all store material.

As stated in the recent Ontario Superior Court judgment, the core biographical information to be gleaned from a personal digital device can be used to construct an extraordinary, intricately detailed profile of the owner of the device. Judge Harris wrote:

A personal digital device mirrors who we are. It is the manifestation of both our external and internal life.

The intrusion of the state into informational privacy through investigation of digital media has the potential to extend well beyond anything George Orwell could possibly have imagined.

Within Canada, to perform a legal search, police officers have to meet one of two thresholds depending on the context: reasonable grounds to believe that a crime has been committed or is in progress, or a reasonable suspicion that such is the case. Both thresholds are reviewable by courts pursuant to an objective analysis, and not according to the subjective state of the mind of the police officer. Case law has established that the highest threshold is reasonable grounds to believe. I am not suggesting that it shall apply to customs operations, except maybe for an intrusive body search.

As for reasonable suspicion, it is defined by the Supreme Court as meaning the following:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

The fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify a search, the suspicion must be supported by the factual elements, which can be adduced in evidence and permit an independent judicial assessment.

As said by the Supreme Court in 1996, in the context of section 99(1)(f) of the Customs Act, a hunch based on intuition gained by experience cannot suffice as reasonable suspicion.

Before the courts of Alberta and Ontario, representatives of the border agency have testified that to apply the lowest threshold, reasonable suspicion, would seriously impede their operations, and I suspect this is the reason why the bill proposes a new threshold called “reasonable general concern,” intended to be defined by courts as being lower than reasonable suspicion.

In the Ontario judgment, the judge seems to be unconvinced by the border agency’s resistance to a threshold. He wrote:

In my view, skepticism is the appropriate reaction to an assertion by law enforcement that a search threshold will stymie investigations. Naturally, law enforcement officials would prefer not to have legislative obstacles regulating their ability to search. They would be more effective and productive without them. But there would be a cost to individual rights and to liberty.

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Colleagues, I believe we need a threshold. However, if Parliament decides to enact the proposed new threshold, we have to realize that it is an unknown concept to the law, and that the court will have to flesh out its contents considering the content of the binding regulations — which we don’t know yet, but have been promised after the bill is adopted.

On the whole, in order to meet the constitutional requirements under section 8 of the Charter, nobody can predict the end result of this process, but it is fair to say it’s going to take years, including judgments from Courts of Appeal and the Supreme Court of Canada. In the meantime, there will likely be criminal charges arising from the search of digital devices dropped or dismissed.

Of course, the use, instead, of the reasonable suspicion test will not bring such uncertainty. This is another area that should be studied by the committee, including the pros and the cons of having new tests in connection with documents found on digital devices rather than applying an existing test — reasonable suspicion — which is used for documents in the mail.

The studying committee should look at the existence — or not — of equivalent thresholds in other democratic societies. In the U.S., the use of an applicable threshold is a complete mess, controversial and subject to conflicting case law.

Moreover, considering this bill is a response to the Court’s decisions concluding in the unconstitutionality of the current regime if applied to a device, the committee shall hear evidence from legal experts about the ability of the proposed threshold to survive legal challenges that are promised to come.

Finally, this bill proposes that the new concept be applicable to the U.S. pre-clearance areas located in eight Canadian airports. However, in the United States, this concept does not exist. Moreover, as I said, the issue of access to personal devices is currently quite controversial and unsettled in the U.S. This means that if you go to the U.S. by car instead of flying from an airport, where there is a U.S. pre-clearance, you will most likely be subject to a different threshold. However, I am content to see that the Canadian Charter of Rights and Freedoms will be fully applicable across Canada, including in U.S. pre-clearance areas.

[Translation]

In conclusion, like Senators Simons and Wells, I believe that this bill raises some fundamental issues of constitutional law that will need to be thoroughly studied in committee.

I also believe that it would be preferable to have a committee study it soon, in order to put to an end, in the months to come, to the two different regimes that currently exist in Canada for the inspection and seizure of documents found on digital devices, that is, the regime that applies in Ontario and Alberta and the one that applies in the rest of Canada.

Thank you very much. Meegwetch.

[English]

Some Hon. Senators: Agreed.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Welcome, minister.

Can you share with us the government’s timeline for developing the action plan on official languages and the regulations for implementing the ambitious and long-awaited bill you introduced in the House of Commons?

An Hon. Senator: On division.

(Motion agreed to and bill read second time, on division.)

The Hon. the Speaker pro tempore: Honourable senators, the time for Question Period has expired. I’m sure that all senators will join me in thanking Minister Petitpas Taylor for being with us today and in inviting her to return.

Hon. Peter Harder rose pursuant to notice of Senator Gagné on April 26, 2022:

That she will call the attention of the Senate to the budget entitled Budget 2022: A Plan to Grow Our Economy and Make Life More Affordable, tabled in the House of Commons on April 7, 2022, by the Minister of Finance, the Honourable Chrystia Freeland, P.C., M.P., and in the Senate on April 26, 2022.

He said: Honourable senators, before I begin my remarks on the Senate inquiry into the federal budget, I want to start by underlining what the inquiry is and what it isn’t. It is not a vote on whether or not to approve the budget unveiled by the Minister of Finance, nor is it an effort to amend the budget or to move a motion to condemn or improve it. Senator Gold, I want to assure you that my views on the budget bill and the Senate’s approach to the budget bill have not changed. However, this is an opportunity for the Senate to engage on what it does best — discuss, evaluate and offer alternatives to make the outcomes better for Canadians. It is in this spirit in which I make my remarks.

It was heartening last month to see the words productivity, innovation and fiscal anchor dot the pages of the Minister of Finance’s 2022 budget. It was also encouraging to see the minister frame the budget using the following words, and I quote:

. . . now is the time for us to focus—with smart investments and a clarity of purpose—on growing our economy and on making life more affordable for Canadians. . . .

— and —

— . . . to tackle the Achilles heel of the Canadian economy: productivity and innovation.

These are important goals, made more so by the increased anxieties Canadians are feeling at a time when we expected a reprieve from the apprehension triggered by the COVID pandemic. The war in Ukraine has exacerbated our worries over inflation, interest rates and personal economic security. This budget is even more consequential than we would have imagined a few short months ago.

I commend the government for what appears, at the outset, to be an evolving policy direction in favour of growth. It is just as important, however, to evaluate whether the specific measures announced in the budget are adequate for achieving this policy intent.

In this, I believe, the budget has some ways to go. Given what I believe is an overemphasis on distributive programs and an underemphasis on improving our collective prosperity, the budget lays out, in the minister’s words, three pillars designed to grow the economy and make life more affordable. The first focuses on investments in Canadians themselves through support for housing, skills development, immigration and child care; the second supports a transition to a greener economy through spending on carbon capture, incentives on electric vehicle purchases and investment in mining of critical minerals; and the third focuses on economic growth, underpinned by a new innovation and investment agency and a growth fund. Each of these pillars are crucial components in growing the economy.

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Welcoming more immigrants and focusing on training can help fill the needed employment gaps while mining minerals that are essential to developing a greener economy with reliable supply chains can put Canada on a leadership track.

As an aside, these two pillars are also important parts of an economic report put together last fall by the Senate Prosperity Action Group, of which I am a member. I’ll speak more about that later.

The third pillar, economic productivity, is one that I believe requires clearer and stronger focus. Indeed, the minister herself said in her speech that Canada’s underperformance in this area constitutes an insidious problem. I agree completely, which is why I think we must be more creative, more focused and more ambitious.

Take, for example, the two lynchpin initiatives designed to tackle the issue: a new $15 billion growth fund and the creation of a new innovation and investment agency, which will provide advice. It seems to me both these instruments already exist in various forms. How, for example, will they be different from the Canada Infrastructure Bank; the Venture Capital Catalyst Initiative; the National Research Council of Canada Industrial Research Assistance Program, or NRC IRAP; or a myriad of other initiatives already in existence? Public investments like those contemplated in the growth fund won’t really lead to improved productivity if we don’t better incentivize innovation.

Parenthetically, the growth fund is actually not even new money, given that it will be sourced from the existing fiscal framework. In fact, the $6 billion for growth will come from a reprofiling of the infrastructure spending, presumably from the aforementioned Canada Infrastructure Bank, which I dare say was slow in getting started.

I would prefer to have seen the budget apply a greater emphasis on the innovation side of the equation. The notion that our country’s ability to innovate is constrained only by our inability to commercialize those areas is erroneous. Canada’s capacity to do industrial research is inadequate, and we spend too much time on incremental innovation and not enough pursuing groundbreaking radical inventions. As Robert Asselin of the Business Council of Canada wrote in a recent article in the Financial Post, where would the health of Canada’s and the world’s citizenry be today without the breakthrough development of mRNA vaccines? How would we reach our climate goals without revolutionary initiatives in carbon emissions reduction? Our performance record on innovation and the digital economy has so far been mixed at best.

According to The Global Competitiveness Report 2019, published by the World Economic Forum, we are ranked sixteenth internationally in innovation capacity, eighteenth in patent applications and twenty-third in R&D expenditures. Similarly, OECD and World Economic Forum data rank us nineteenth in university-industry collaboration. With respect to growth overall, the average annual Canadian GDP rate dropped by half since the beginning of this century when compared to the years between 1960 and 2000.

As mentioned in the Senate Prosperity Action Group’s report last fall, we have much to overcome, including the fact that we lag behind other nations in commercializing innovations. We have failed to develop an adequate pool of talent in the STEM sector, we are slow to adopt new technology and we lack availability of high-speed internet in remote areas.

Solutions are too numerous to itemize in a short speech, but we could start by spending more on research and development on high-risk and mission-driven research. The United States’ DARPA comes to mind. We could make other strategic investments in supporting entrepreneurship and in the scaling up of Canadian-based companies. We must also look at co-investing with venture capital and commercialization opportunities such as biotech. Regulatory burdens should be reduced.

Before turning to some other potential remedies, I would be remiss if I failed to comment on the fiscal anchors upon which this budget rests. As the minister mentioned, dealing with the deficit incurred during the pandemic is imperative. The anchor put forward in the budget is to simply ensure that the country’s debt-to-GDP ratio continues to decline. The view of the Prosperity Action Group is that we should go further if we wish to maintain our nation’s fiscal advantage as a G7 country with the lowest debt-to-GDP ratio pre-pandemic. Rather than the anchor proposed in the budget, the government should limit debt servicing costs to no more than 10% of the government revenues and cap federal program expenditures as a percentage of GDP. Doing so would form the basis of a fiscal management plan that allows the country to continue to make appropriate investments on high-priority economic and social programs while reducing expenditures on those that have been shown not to work.

As it stands, the budget calls for new net spending of $56 billion offset by a projected $26 billion in savings that stem from a growth-enhancing tax of $6 billion on banks and insurers, another $10 billion from tax enforcement as well as other savings from government efficiencies. This is not a huge fiscal impact, but it still calls for increased spending in areas like dental care, defence commitments, subsidies for electric vehicles, housing, reconciliation and others.

Moreover, I’m concerned that the assumptions for the fiscal framework are based on overly optimistic economic assumptions given the uncertainties facing Canada and the world at large. The projection for inflation, for example, is 3.7%, which is at the more modest — and dare I say hopeful — end of the spectrum. While these projections are plausible, slight deviations can throw the plan out of whack completely.

In the few minutes I have left, I would like to turn to a final suggestion for promoting growth, which is the need for renewed fiscal cooperative federalism. Aside from some of the prescriptions in the budget and others that I outlined earlier, I believe the government could have taken lessons from the way in which all orders of government cooperated in tackling the pandemic. The successful federal-provincial-territorial approach in dealing with the coronavirus ought to be a model for forging a new path for sustainable, inclusive shared prosperity in Canada — a grand bargain to be forged between government, business, Indigenous peoples, racialized communities, Canadian labour unions, hard-to-reach citizens and all other members of civil society.

To that end, the Prosperity Action Group recommended last fall that a new body, which we labelled the prosperity council, be established to spark energy and foster dialogue in pursuing solutions to our economic challenges. It’s way past time, of course, that we dealt with interprovincial trade barriers, variable apprenticeship criteria and barriers to labour movement, not to mention how we deal with other interjurisdictional challenges like the carbon tax, creation of new daycare programs and the like. A body such as the one we propose would also keep our governments accountable by reporting on how we are competing on key performance indicators that measure economic progress. How does Canada fare vis-à-vis other nations when it comes to the ease of doing business, public spending on training or global talent attraction? These are measurables that exist and may be included in a government plan as recommended by the Prosperity Action Group.

In my view, there aren’t enough of them in the budget tabled last month, and a new prosperity council would lay out these targets in much finer detail for all to see.

Such a renewal might also go some way towards ameliorating the federal-provincial-territorial differences that often emerge when Ottawa develops shared programs that far too often result in decreasing the share of federal contributions to those very programs.

While I am not inherently opposed to new programs for dental care, Pharmacare, long-term care or housing, I am concerned these programs adequately recognize provincial jurisdiction in design and sustainability. To be sure, we need to perfect our social union, but frankly, we also need to enhance and focus on our economic union — hence the need for a grand bargain. Aside from whether a national prosperity council like we are suggesting is the perfect model to follow, it is imperative that some kind of wide and ongoing national conversations on the economy take place. Premiers and the Prime Minister have met, by my count, some 39 times since the onset of COVID. Surely we can organize four or five first ministers meetings on the economy.

Let me conclude by saying that we are in an age during which polarization and identity politics sow increased mistrust among Canadians for their institutions. For our governments to achieve anything approaching consensus on where our economy should go, we need dialogue and to walk in each other’s shoes. So while I do think that the budget may not have completely lived up to the rhetoric, developing a plan for prosperity for Canada is a project that goes well beyond an annual economic plan. I urge the government to reach out to all Canadians to build trust and a culture of innovation that will make us resilient in the face of economic challenges to come and become a global leader again.