Hon. Gwen Boniface: Thank you very much. I raised in my speech similar considerations that needed to be had around the threshold, but I do want to make sure that the Court of Appeal’s paragraph 75 was clear. I want to ask if you would agree that this is in fact what paragraph 75 of the Canfield ruling said that in their view:

 . . . the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act. . . .

and that:

Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. . . .

Is it not clear to you in Canfield that they were giving the range for Parliament to make a decision around that? Am I correct?

Senator Boniface: Thank you for the question, Senator Simons. How Canfield was interpreted — and I hope I spoke clearly on it — was that the court recognized there would be something between what would be the routine check and the reasonable grounds. I will send you the paragraph number to be clear.

Senator Boniface: Thank you very much, Senator Wells, for your question, which very much aligns with Senator Omidvar’s question. I want to be clear that the “reasonable general concern” is legislated but not as high as “reasonable grounds.” To be clear, that is the difference. In fact, prior to Canfield, there was no threshold requirement; it was part of a routine search. I want to make sure that is clear.

You raise the same question that Senator Omidvar spoke to on the indicators. As I said, this is the work that CBSA officers do every day. They may ask you a question, not knowing you are Senator Wells, such as, “What do you have with you? What’s on your phone?” for instance. You may indicate, “nothing.” Then they will question further to see if they can get some indicators. They look for issues like avoidance in answering the questions. They look for people who are nervous.

It is important to remember that they work in this environment every day, so they take into consideration whether you have an explanation for the way you are acting or the way that you appear. They are professional in what they do. They are trained to look for this type of thing. The fact that they have to make notes around the personal devices is an important step in terms of any challenges they may have but also to ensure that, as they do this over time — which isn’t that often, as you can tell from the statistics — they will become very good at it. It is important to remember that this is what they do every day; it is not unique to this.