Senator Dalphond: I don’t want to steal Senator Boehm’s fire. He had very good questions at the committee about that. But our “reasonable suspicion” and “reasonable grounds to suspect” criteria are known in Canada as well as in the U.S. I suspect that if we have that criteria, the U.S. officers will know what they mean. For sure it’s a higher threshold than what they apply now because, in the U.S., there are no clear cases about that. There is confusion about the state of the law.

Obviously, there will be some training, but if you have training in connection with a concept which is foreign to their law, it will be more difficult than to train them to a concept which is known to their law.

Senator Dalphond: With pleasure.

Senator Dalphond: Thank you, Senator Ataullahjan, for this question.

I’m not the expert on the issue, but there is one in this chamber. It’s Senator Jaffer. She made an important declaration at the committee study when she referred to exactly that type of experience and why she is always singled out in the line for a “random” check and sent to the second line. When she shows her green passport, they apologize and say, “Oh, sorry. It’s a mistake. We should not have called you for a second inspection.”

No doubt the system is not perfect. The current system is, according to some witnesses and the personal experience of Senator Jaffer, certainly deficient, because it seems to target some people more than others, especially after 9/11. Regarding the threshold that is being proposed, the evidence shown before the committee has illustrated that it is designed to codify the current practices of the customs officers.

Senator Dagenais asked an important question. He asked how many more employees they will need to teach these new criteria, because it’s a new test. Therefore, it will have to be explained carefully since it’s not a test that has been applied so far. It’s not the reasonable test that has been understood and developed by the courts. It will take time to flesh out.

How many more officers will you need? How many more training sessions? How many hours will you give to the officers to understand that new concept? The response from the border agency representative was, “No problem. We already have the training in place. We don’t need more people. That’s already what we do.”

What they are saying is that what they intend to do is to have this new threshold be equivalent to the current practice. But the current practice is in the guidelines; it’s not in the law. They say now that it’s in the law, it’s valid. I fear that, in practice, what is going to happen at customs won’t change with this new test. The old practices will continue under a new hat.

It’s important to me that we better define and flesh out the concept of reasonable suspicion or reasonable grounds to suspect rather than have a new test. This is the concept that has been recognized elsewhere in the act, so let’s be consistent. Either they change the whole act, or they change it only for computers, which is very unconvincing to me.

Senator Dalphond: I was expecting to be brief, but I appreciate the questions. Regarding reasonable suspicion, the word “reasonable” has been defined by the courts as being objective. So it means the agent has enough indicia to reasonably suspect that something’s happening.

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And it’s interesting because when the customs agency representative spoke to it, he suggested an example. He referred to someone who is coming back from a country where it’s well known that sex with children can occur. The person has been away for a long period. The person is having difficulty answering the questions, seems to be nervous and is sweating. He decides to send him to the second line.

Many of us felt there were reasonable grounds to do it. If this is the type of person they would like to target, the “reasonable suspicion” test will be the test to apply. I’m not so sure that it’s going to become ineffective.

We have reference to Ontario and Alberta saying that the numbers have been going down since the judgment of the Court of Appeal of Alberta. It was not renewed and, therefore, since April, they have applied “reasonable suspicion” for all travellers coming to Ontario or to Alberta. They say the numbers went down drastically. Well, yes, numbers went down drastically, but who says why? Is that because they are more careful? Maybe it’s a good thing. Is it because they don’t want to enforce it just to come up with the numbers, so they can say, “You see where we are? It’s a different test, and we don’t do as many checks as we used to do.”

All of that needs more explanation. I think we were a bit shortchanged when we asked questions about the rate of success and about the more limited numbers of people who are checked. What kinds of materials are found? What is illegal? We were not provided much information about that. I’m not saying there won’t be any kind of operational impact on the way they do things. For sure, if we have “reasonable suspicion,” it will change things compared to what they do now, because they intend to continue to do what they do now.

Hon. Pierre J. Dalphond: I rise today in support of the adoption of the report. I just wanted to point out that section 99 of the Customs Act, which we are currently discussing, is entitled “Examination of goods.” It states, and I quote:

That means any act of Parliament administered or enforced by the officer.

To inspect a package, a bus, or to ensure that the right rate has been applied, the officer must have reasonable grounds to believe. I would be more convinced if the government changed these other sections of the legislation to say that, for all these other sections there has to be reasonable concern, but no. Regarding the computer, the thing most closely linked to your privacy, the one thing that contains all the data and can describe you more accurately than you can, we cannot decide that it warrants a lower threshold than all these elements that are necessary formalities to prevent a firearm from being imported to Canada.

We are told about pedophilia. It is important. It is serious, but we cannot allow computers to be searched under the guise of wanting to counter pedophilia by accepting a lower threshold than the threshold for allowing packages to be opened to verify whether there are firearms inside. The government is on the wrong track. If it wants to convince us that a lower threshold is possible — as suggested in Canfield by the Alberta Court of Appeal — then I invite the government to amend the other parts of the legislation to have the new proposed test apply everywhere. If there is no consistency in the legislation we cannot justify measures before a court. Thank you.

[English]

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]

Senator Dalphond: Yes, I will be careful not to try to give an answer to colleagues that are still doing the work.

The first and most critical element will be the content of the regulations to be adopted by the minister or the government because they will provide some indicators — like taking notes and having a record of what was done in what type of circumstances — because what the courts will not accept is a process which is not reviewable by the court.

The word “reasonable,” within the rest of the sentence, normally refers to something that is an objective criterion. The court, in order to find if this objective criterion has been met, will have to get a record that shows, for example, how it was applied, what the questions were, whether the device was disconnected from the cloud — because you are entitled to search only the device, not outside the device — and whether there are notes taken because the officer may not remember because perhaps he has done hundreds since then. All factors that are critical will be found, unfortunately, not in the law, but in the regulations because the concept is undefined in the law. As I said, it will have to be fleshed out by the courts, and the courts will be careful to balance all the interests at stake.

You may end up with criteria that are a bit lower than reasonable suspicion but maybe not far from it.

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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Senator Dalphond: With pleasure.