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.

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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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