The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Boniface, bill referred to the Standing Senate Committee on National Security and Defence, on division.)

On Government Business, Reports of Committees, Other, Order No. 4:

Consideration of the third report of the Standing Senate Committee on National Finance, entitled Supplementary Estimates (C) for the fiscal year ending March 31, 2022, tabled in the Senate on March 30, 2022.

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?

(1450)

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.

(1430)

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.

(1540)

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.