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THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE

EVIDENCE

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OTTAWA, Monday, June 6, 2022

The Standing Senate Committee on National Security and Defence met with videoconference this day at 2:02 p.m. [ET] to study Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

Senator Tony Dean (Chair) in the chair.

[English]

The Chair: Good afternoon, honourable senators, and welcome to this meeting of the Standing Senate Committee on National Security and Defence.

I’m Tony Dean, a senator representing Ontario and the chair of the committee. I’m joined today by my fellow committee members: Senator Jean-Guy Dagenais representing Quebec, deputy chair; Senator Dawn Anderson representing the Northwest Territories; Senator Peter Boehm representing Ontario; Senator Pierre Boisvenu representing Quebec; Senator Pierre Dalphond representing Quebec; Senator Donna Dasko representing Ontario; Senator Marty Deacon representing Ontario; Senator Mobina Jaffer representing British Columbia; Senator Richards representing New Brunswick; Senator David Wells representing Newfoundland and Labrador; and Senator Hassan Yussuff representing Ontario.

Today we continue our examination of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, and we will hear from two panels of witnesses.

In the first panel, we welcome, from the Office of the Privacy Commissioner of Canada, Brent Homan, Deputy Commissioner, Compliance Sector; and Regan Morris, Senior Legal Counsel. Thank you both for joining us today by video conference. We will now begin by inviting you to provide your opening remarks, to be followed by questions from our members. Mr. Morris, I believe you’re going to lead us off today. Welcome, and please commence when you’re ready.

Regan Morris, Senior Legal Counsel, Office of the Privacy Commissioner of Canada: Thank you, chair and members of the committee, for the invitation to speak to the important bill before you.

As was mentioned, I’m senior counsel with the Office of the Privacy Commissioner of Canada. I’m here delivering remarks on behalf of Brent Homan, Deputy Commissioner of Compliance with our office, who unfortunately has technical difficulties with his microphone today.

[Translation]

The legislation before you deals with a complex balancing of individual rights and security objectives.

These complexities are amplified by the unique context of the border, where there is greater latitude extended under the law for border inspection and immigration control, and a corresponding reduced expectation of privacy for travellers.

Despite this greater latitude, it does not mean people lose all rights to privacy at the border. The law needs to be updated in order to recognize the realities of modern technologies and their capacity to reveal a tremendous amount of personal information.

[English]

The Supreme Court of Canada has found that the search of a digital device can constitute a real significant intrusion of privacy. As noted in R. v. Fearon, digital devices have immense storage capacity and the ability to generate detailed information about users’ interests, habits and identity without their knowledge or intent and may provide access to information extending beyond the location of the search.

Both the Alberta Court of Appeal in R. v. Canfield and the Ontario Superior Court of Justice in R. v. Pike have now called on Parliament to implement a legal threshold for the examination of digital devices at the border that accords with the Charter. The courts left for Parliament to decide the essential question of what threshold is appropriate to achieve this balance.

I would like to put forward certain considerations in favour of a threshold for reasonable grounds to suspect, which, in our view, would be more appropriate to achieve the balance sought by the courts in Alberta and Ontario than what we currently find in Bill S-7.

First, to our knowledge, no other statute uses the formulation reasonable general concern as opposed to the more common reasonable grounds to believe or reasonable grounds to suspect already found in the Customs Act. It’s not clear what the evidentiary basis is for this novel threshold, and its novelty creates a high potential for ambiguity in its interpretation and implementation. There is also a risk that a reasonable general concern could be interpreted as not requiring concern specific to an individual but rather permit examinations based on general concerns, such as what country an individual is arriving from.

Second, it is unclear why a device search should be subject to a lower threshold than for an officer to open and search mail at a border crossing, which requires reasonable ground to suspect under the Customs Act. Inspecting a physical piece of mail is generally less extensive and less intrusive than examining a digital device that can contain or provide access to texts, photos, personal documents and electronic messages potentially spanning years.

Third, reasonable grounds to suspect is a flexible standard that would not unduly constrain border officials.

In the Supreme Court of Canada’s recent decision in R. v. Stairs, the court stated:

. . . to establish reasonable suspicion, the police require a constellation of objectively discernible facts assessed against the totality of the circumstances . . .

The court then elaborated that the standard required a possibility, not a probability, and that the assessment was “fact-based, flexible, and grounded in common sense and practical, everyday experience.”

As well, in R. v. Pike, the Ontario Superior Court of Justice rejected the Crown’s submission that having a reasonable grounds to suspect standard would be too burdensome. The court noted at paragraph 77:

Reasonable suspicion has been held to meet constitutional requirements in other contexts and would impose a standard protective of the public interest at the border.

With these cases in mind, coupled with the heightened sensitivity and intrusiveness associated with the search of digital devices having been recognized by the courts, we are not convinced of the need for a lower threshold of reasonable suspicion, which is successfully applied in other regulatory contexts, including the Customs Act.

Before I conclude, I would like to briefly mention a few important procedural and accountability requirements that should also be included within the legal framework in support of a defined threshold, which were key concerns raised in our investigation of the CBSA with respect to the examination of digital devices. These include specific record-keeping requirements, including obligations to document indicators justifying the digital device search; ensuring that certain technical procedures and requirements are in place to disable network connectivity, thus limiting the scope of the search to only that which is stored on the phone; rules for password collection and retention limits; and mechanisms for complaint, redress and independent oversight.

A search of a personal digital device is inherently intrusive, and I believe important questions remain as to whether the novel threshold proposed in this bill achieves the correct balance. While my remarks today have focused on the threshold on the Customs Act, we would also point out that the same threshold met examinations under the Preclearance Act for a much broader scope of reasons. I would suggest that this aspect of the bill is worthy of distinct consideration, and the broader grounds in the Preclearance Act is a further reason for having a reasonable to suspect standard.

Thank you, and we would be happy to take your questions.

The Chair: Thank you, Mr. Morris.

Before we proceed, I just want to note that we have also been joined today by Senator Gwen Boniface, who is the sponsor of the bill.

I see that Mr. Homan is online with us now. Mr. Homan, would you like to add anything before we go to questions? We should at least test your audio, so if you do have anything to add, please proceed.

Brent Homan, Deputy Commissioner, Compliance Sector, Office of the Privacy Commissioner of Canada: I don’t have anything [Technical difficulties] that my colleague shared, and hopefully the mic is working right now. Let me know if not.

The Chair: Still having some trouble with it, I’m afraid.

Mr. Homan: Okay. Thank you.

The Chair: We’ll now proceed to questions. Please note that we have to finish at 3 p.m., so please be succinct. We’ll have five minutes for each question and answer. The first question goes, as usual, to our deputy chair, Senator Dagenais.

[Translation]

Senator Dagenais: My first question is for Mr. Homan.

Mr. Homan, my question is related to the court ruling that led to the introduction of this bill.

Was the Office of the Privacy Commissioner of Canada consulted before the groundwork was laid for this bill?

Mr. Morris: I’ll answer for Mr. Homan since he’s having technical difficulties.

First of all, after our investigation, we made our recommendations to the Canada Border Services Agency in 2019, and we made recommendations in terms of reforming the act.

CBSA said that these recommendations would be studied in detail. Following the Canfield decision of the Alberta Court of Appeal, we contacted the Department of Public Safety Canada and offered our consultation services on the amendments, but we were not consulted. We were made aware of the bill when it was tabled in Parliament.

Senator Dagenais: There are civil liberties groups that have appeared before us that are opposed to certain phrases, such as “reasonable grounds to suspect” or “reasonable general concerns,” that are used in this bill. Is there a more appropriate term that would allow border services officers to justify a search of digital devices without it being abusive?

Mr. Morris: We think the appropriate standards are those found in other aspects of the Customs Act, in other words, there must be reasonable grounds to suspect.

Senator Dagenais: When we heard from the official from the Canada Border Services Agency last week, he said that the introduction of the new standards wouldn’t result in any additional burden on officers, noting that they had already been doing this kind of search since 2017. Have you had any reports of abuse in relation to this practice? Could there be abuse? What we understand is that border services officers were already carrying out these practices before the bill.

Mr. Morris: In the investigation we released in October 2019, we found that there had been failings in the implementation of the policy. We looked at six complaints where CBSA examined handheld devices, and in all of those complaints there was at least one failing, whether it was that the officers did not take notes or that they exceeded their authority to examine the devices. So it’s possible that there will be failings, since we saw them during our investigation.

Senator Dagenais: I have the impression that we’re in the process of passing a bill that will regularize what is already being done and that violates the constitutional rights of citizens. I find that worrisome. In other words, we’re being asked to regularize a bill, but there are already practices under way. What is your opinion on that?

Mr. Morris: I think we agree that, first, there is a unique context at the borders. The government has an important interest in controlling what happens at the border. However, portable devices can contain a large amount of sensitive information. So it’s important to find a balance. For us, this balance is found in the reasonable grounds standards.

Senator Dagenais: If the bill wasn’t passed, could the integrity of Canada’s border be compromised? If so, how might it be compromised? The bill hasn’t yet been passed.

[English]

The Chair: We are running out of time, so can you be brief with your answer?

[Translation]

Mr. Morris: Something must be done to respond to the Alberta and Ontario court rulings; we can’t afford to have differences between the provinces, as is currently the case.

Senator Dagenais: Thank you very much.

[English]

The Chair: Before we go to Senator Boisvenu, I wanted to recognize Senator Paula Simons from Alberta, who also joins the committee today. Welcome, Senator Simons.

[Translation]

Senator Boisvenu: Welcome to our witness.

When Mr. Mendicino appeared before the committee last week, he insisted that training was going to solve the privacy issue. Do you agree?

Mr. Morris: Clearly, training is important. It’s something we recommended in our 2019 investigation, that CBSA should increase the level of training.

However, we think it’s not enough if the legal standard for examining portable devices is too low. So it’s important, but it’s not enough.

Senator Boisvenu: Police and peace officers are all familiar with the concept of “reasonable grounds,” whether it’s a search or an investigation. We’re talking here about reasonable circumstances. Do you think using the term “circumstances” instead of “grounds” lowers the standard of privacy?

Mr. Morris: As I understand it, the proposed standard is “a reasonable general concern.” I understand that the intention is to have a lower standard than reasonable grounds to suspect. We don’t think it will strike the right balance between privacy and other government interests.

Senator Boisvenu: When people file complaints with the federal government, the bureaucratic process is often very cumbersome. If this new concept of “a reasonable general concern” is adopted, won’t it penalize citizens in terms of their privacy?

Mr. Morris: It will create uncertainty. It’s a new standard that hasn’t been tested in the courts. Moreover, we think it’s vague. What is a general concern? In that sense, it is likely to lead to more disputes and debate between citizens and border services, which will take time to resolve. I don’t think the uncertainty is a good thing.

In comparison, the “reasonable grounds to suspect” standard is well known and doesn’t result in the same uncertainty.

[English]

Senator Dalphond: In answer to a question from Senator Dagenais, you said that you were not consulted in the drafting of Bill S-7, especially in connection with privacy issues, despite the fact that you had issued two reports about that — one about complaints and a further report a year later?

Mr. Morris: That is correct.

Senator Dalphond: I understand from what you’re saying today that, based on what you discovered through your inquiry, relying on policies is unsafe because, in practice, border officers do not comply with these policies, especially in terms of taking notes. Of course, notes are critical in any judicial review of the process.

Mr. Morris: That was one of the findings we had and one of the reasons we recommended legislative reform.

Senator Dalphond: Was it many of the officers who were not taking notes, or was it the odd case?

Mr. Morris: That is a good question. I believe it was most of them. This is a widespread issue. I can get you the exact number, but it was a large number of the complaints that did not have appropriate notes.

In all six cases we examined, border services officers failed to record the indicators that led to the progressive search of the complainants’ digital devices, which areas of the devices or media were accessed during the search or the reasons why those areas were searched. This made it difficult for our office to assess whether the CBSA had demonstrated that it met the threshold required by the policy for the examination of six complainants’ devices for the six complaints we looked at.

Senator Dalphond: Thank you.

Senator Wells: Thank you, Mr. Morris and Mr. Homan, for appearing today.

We are told that, flowing from this legislation, there is going to be an obligation that personal digital devices be examined in non-connectivity mode. We also know that it flows from their policy that they examine personal digital devices in non-connectivity mode. We also know that is regularly violated. I have seen this directly. Those who have seen the show “Border Security: Canada’s Front Line” see border security officers regularly thumbing through bank records and things like that to find out if people have sufficient funds to enter Canada. Mr. Morris, do you believe that there is a benefit in enshrining in the legislation the obligation of CBSA officers to inform travellers of their rights in respect to non-connectivity searches?

Mr. Morris: We would support transparency to individual travellers around their rights with regard to searches of personal digital devices, given the important interests at stake.

Senator Wells: Would you also say this would assist in protecting personal privacy vis-à-vis the things you look at on a daily basis in your positions?

Mr. Morris: Certainly, transparency is an important part of privacy rights. Informing individuals of what their rights are, as well as the circumstances in which their devices can be examined, is important.

Senator Wells: Thank you.

Senator Jaffer: Thank you to Mr. Homan and Mr. Morris for being here today.

Mr. Morris, I have a number of questions for you, one of which is really bothering me.

I don’t read Canfield this way, and maybe I’m wrong, but I got the impression from the minister and others that the judge allowed for a lower bar than would be reasonable grounds to suspect, and that’s why the minister has brought in lower grounds. What is your interpretation of Canfield?

Mr. Morris: Certainly, there is language that the court in Canfield left open in terms of the issue of what the appropriate threshold should be. I would note that at paragraph 75 of the decision — which I think is the paragraph that the CBSA quoted — the court said that:

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

It didn’t say “would”; it said “may be” and left open the issue for Parliament to consider.

It is also important to look at the decision in R v. Pike, which considered the same issue and also found the statute to be unconstitutional. The court had a number of things to say about the reasonable grounds to suspect standard that I think are relevant.

Starting at paragraph 77, the court said that reasonable suspicion has been held to meet constitutional requirements in other contexts. The court did not agree with the Crown in that reasonable suspicion is a rigorous standard or that it was an overly onerous threshold, and it pointed out that the reasonable suspicion threshold has been commonly used in other Custom Act search provisions, including to open mail, as we noted in our opening remarks. It said based on the evidence that was presented by the Crown in that case, there was a real concern that the CBSA was overstating the hindrance to a search posed by a legal threshold, and that’s in the context of arguments against a “reasonable grounds to suspect” threshold.

So the issue is left open. It’s for Parliament to decide what is the most appropriate threshold, in our view.

Senator Jaffer: I’m a little reluctant to ask you this because you, of all people, would not want to speculate what the judge was thinking, but the judge did leave it to Parliament to decide what the right test was. It wasn’t up to the judge, and that’s why he left the door open. Would you not agree that it should be parliamentarians who have a better pulse of what their citizens require and what is less ambiguous, so he left it to the parliamentarians to decide?

Mr. Morris: That’s right. In both cases, Canfield and Pike, the court said that the delicate balancing is better left for Parliament to take into account the privacy interests and the interests of the state in protecting the border.

Senator Jaffer: My big concern is what you said about ambiguity, the reasonable general concern. There is no precedent. I have looked, and I haven’t found any around the world in common law jurisdictions. The ambiguity would even be for the CBSA officers who are usually expected to do a reasonable grounds to suspect test.

What concerns me is that, for a letter, you have to have reasonable grounds to suspect, but for digital devices, which for me is sort of another letter, it’s not the same test. I have real concerns that it’s a double standard, just even, say, for a letter. Would you agree with me that it is a double standard?

Mr. Morris: Yes. As we said in our opening remarks, we do not see why you would have reasonable grounds to suspect to open mail, which by definition will be more limited in what it can contain than a digital device, which can contain a whole host of varied information in large quantities, a detailed portrait of an individual and their life, their banking information and their health information. We are not just talking about phones in this legislation. We are also talking about someone’s personal laptop computer, which can contain vast quantities and quite sensitive information. We would agree that it would be incongruous to have a higher threshold for opening mail than to examine a personal electronic digital device, which can contain such intimate information.

Senator Jaffer: Thank you, Mr. Morris.

Senator M. Deacon: Thank you for being here.

I’m going to shift to a question around the complaints mechanism. One aspect, in listening last week and continuing to pursue this legislation that I’m trying to understand, is what recourse an individual has if they think they were unfairly targeted by a border services officer. About a week ago, the officials mentioned a mosaic or a variety of ways to file complaints. One was this new civilian oversight body, one was directly with CBSA, and the other one was with your office. To me, it sounded a bit like a menu or up to, perhaps, the one who wants to grieve to figure out where to go. I’m wondering if we have a more centralized or aligned way to easily access the system to lodge complaints. I’m wondering what your opinion is on this, if there needs to be a more centralized system of filing a complaint or if this buffet of options is okay.

Mr. Morris: We are still studying Bill C-20, which will create a new independent oversight body, so I don’t want to comment too much on that. I think we would be happy to comment on it later if called upon.

Our office is and will remain an option for individuals to file complaints regarding government institutions and their handling of personal information, and that would include CBSA. So by definition, there’s going to be some overlap. I don’t think having multiple mechanisms is necessarily problematic, as long as it’s clear to individuals their right of recourse and that they do have the ability to seek independent recourse and remedies that are appropriate for the nature of the complaint.

Senator M. Deacon: Thank you.

Maybe just to follow up on another piece that we talked about last week and continues today, we talk about this threshold. We know that, in 2017, the language was reasonable grounds to suspect. Last week, Minister Mendocino gave us examples of behaviour that would justify a search under the proposed threshold of reasonable general concern. He talked about shifting weight back and forth, studying, sweating, perhaps some language. For comparison’s sake or from your point of view, what kind of basis needs to be established to conduct a search based on the higher threshold of reasonable grounds to suspect? Can they go off behaviour alone, or does some kind of prior evidence, history or a tip need to come first? I am wondering what your thoughts are on that today.

Mr. Morris: That’s a difficult question. It will, obviously, depend on the circumstances of the case. There are probably any number of things that could lead to reasonable grounds to suspect.

I think a good example, a practical one, is the R. v. Pike case, where the court found that, based on the evidence, there were reasonable grounds to suspect based on the answers that the accused in that case had given to the Border Services officer about the nature of his trip and why he was there. There were inconsistencies in what he said, based on the questioning. I’m just trying to see if there were other factors. It was the nature of the answers to his questions, a previous conviction and the place that he was coming from. In that circumstance, the court said that, in the totality of the circumstances, that led to a reasonable suspicion.

We would highlight, again, the Supreme Court’s decision in R. v. Stairs, which was issued a few weeks ago, highlighting the flexible nature of the standard. It is a standard that is based on the totality of the circumstances and is meant to be flexible. It’s meant to be a lower standard than reasonable grounds to believe. It’s fact-based, flexible and grounded in common sense.

Senator Yussuff: Thank you, witnesses, for being here.

Let me deal with the element that is missing from Bill S-7. You have listed four of them. The one that’s not included is the client-solicitor privilege. I notice that’s not mentioned. It was raised with us by a previous witness. If these four additional points were to be covered in the regulation, would that give some certainty to some of the points that have been raised here, as long as we know the regulation will apply on a consistent basis to travellers crossing the border?

Mr. Morris: Yes. If they are included in the regulations, then they are part of the legal framework. We don’t have the text of the regulations to scrutinize right now, so there’s a bit of uncertainty about what those requirements actually look like. If the committee is concerned about certainty and making sure that certain fundamental requirements, like note taking, are included in the legal framework, then they should be included in the bill itself. However, in theory, regulations can also supplement the requirements of the legislation.

Senator Yussuff: In regard to the legislation itself, we have a concern in regard to this new standard because it hasn’t been tested yet in the courts. What is the worst that could happen if the legislation is passed with the standard remaining as is?

Mr. Morris: I would say that it’s not just that the standard is untested, but it also seems too permissive for the privacy interests at stake.

Some of the consequences could be more searches of electronic devices in circumstances that invade the privacy of Canadians more than is warranted. There could also be additional litigation and further uncertainty around what, exactly, is a reasonable general concern, which could lead to overly intrusive searches, potentially, until it’s more settled.

Senator Dasko: Thank you to the witnesses.

I have a question about reasonable general concerns. It is known, and you have shown and others have noted, that this standard has not been used in Canadian jurisdiction or elsewhere. What is your understanding of where it actually came from? Where did the concept or the phrase come from?

Also, have you considered alternatives to this phrase outside of those that already exist and have been used in other pieces of legislation? For example, there is reasonable concerns, taking out the word “general.” Have you considered any alternatives to this phrase that don’t exist already?

Those are my two questions. Thank you.

Mr. Morris: In terms of the first question of where it came from, my understanding is that there was a desire to seek a lower standard in light of the court leaving it open. That is where the thought was given to what could be a lower standard that is more permissive than reasonable grounds to suspect or reasonable grounds to believe. The use of the word “reasonable” is obviously typical vocabulary in a search standard. It implies an objective threshold that is desirable, in our view. It’s the general concern threshold that is new. My understanding is that it was devised to represent a lower threshold.

In terms of your second question, we have not thought about alternatives. In our view, the most logical and commonsense alternative is to go with reasonable grounds to suspect, which is already meant to be a lower threshold that has been devised by the Supreme Court of Canada to address situations where there is a lower expectation of privacy. Given that it’s already in place in the Customs Act and is used in similar contexts, we don’t see the need, or are not convinced by what we have seen for the need, to have a new language and a new threshold that attempts to be higher than mere suspicion but lower than reasonable grounds to suspect.

Senator Dasko: Thank you.

Senator Richards: Thank you to the witnesses.

I think we’re all asking similar questions today, so I will be brief and will ask two quick questions. Because of the words used here and that they are so open-ended — words like “ambiguous,” “flexible” and “general concern” — I have a fear that this becomes as much a matter of personal opinion or random prejudice by certain border guards and that it can’t really be monitored. If that’s the case, how great might the chasm be between theory and practice in this bill? Mr. Morris, please answer that just quickly. Thank you.

Mr. Morris: It goes back to the importance of note-taking, which was an issue we identified in our investigation. There needs to be a clear requirement for officers to document why they are doing the search and how they perform the search. That’s going to increase accountability and hopefully address instances where the threshold has not been met. The threshold does have to be objective, even under the proposal in Bill S-7. It’s a reasonable general concern, so it has to be not just the officer’s subjective views but objectively reasonable based on the circumstances. Our concern is that the phrase general concern is too permissive and would allow for searches in a broad range of circumstances. However, I think that note taking is also a fundamental requirement that will hopefully be addressed in this bill.

Senator Richards: But there could be a rather wide chasm between the theory of this bill and the practice by certain border guards.

Mr. Morris: There’s always the potential that the authorities, policies and rules are not followed. That’s when you want to have important accountability mechanisms in place. In our investigation, we recommended enhanced accountability, oversight and enhanced training for border officers. Those measures were introduced into the revised version of the CBSA’s policy, and that’s a good thing, but going forward, those accountability mechanisms need to continue to exist to ensure the authorities are used appropriately.

Senator Richards: Thank you.

Senator Boniface: Mr. Morris and Mr. Homan, thank you for being here.

Mr. Morris, section 98 of the Customs Act deals with the issue of strip searches. If I’m correct in the way I read it, they require a reasonable grounds to suspect threshold. In Canfield, I would say they left the door open for a lesser threshold. I’m wondering if you can just comment on the search of a personal digital device and its intrusion on privacy and how that compares to the strip search. I know what’s obvious, but I’m asking in terms of the use of that reasonable grounds threshold, which you indicated was your preference.

Mr. Morris: As I mentioned, the court in Canfield did leave open the appropriate threshold, and it’s true that the Customs Act does have a reasonable grounds to suspect threshold for searches of the person, which I take it includes strip searches. Those are more privacy-invasive searches. Our point is that personal electronic devices are also highly privacy-invasive. The Supreme Court has recognized that in numerous decisions over the last few years, including in R. v. Pike and R. v. Fearon, where the court said that because of that enhanced nature, you need to have enhanced protections for searches of those devices. In that case, it was searches incident to arrest. So you have a choice. Maybe they are not exactly equivalent to a strip search, but they are still highly invasive.

If you look at other parts of the Customs Act where the examinations and searches are permitted, including opening mail in section 99(1)(b), it is on reasonable grounds to suspect. In our view, that’s an appropriate comparator to make. As mentioned, in many cases, examining a personal digital device is going to be more invasive than opening mail.

Senator Boniface: Certainly not more invasive than the body search. Would you agree with me on that?

Mr. Morris: They engage different privacy interests. A body search is a search, obviously, of bodily integrity. The Supreme Court has recognized that there are other types of privacy interests that are protected. One of them is informational privacy. I worry a bit that, in that sort of comparison, you lose sight of the importance of informational privacy to individuals when you think about all of the information that’s stored on digital devices about a person.

Again, I urge the committee to read carefully the court’s decision in R. v. Pike which noted the same thing but went on to speak to the important privacy interests protected or engaged by a search of a digital device. It’s important to qualify appropriately the privacy interest at stake.

Senator Boniface: I appreciate that. If I remember correctly, though, the Fearon case said that strip searches were more intrusive. That was the conclusion of that court. I wanted to give balance to the continuing reference to mail, because I think we have to look at the range. I thank you for your comments.

Senator Simons: Thank you so much, Mr. Morris.

Mr. Morris, in your opening statement you referenced concerns about the retention of records. In your questions with Senator Dagenais, you also talked about concerns that the Privacy Commissioner had raised in your own study. Could you speak to us about what you think of the fact that this change would allow the CBSA to keep on file, for two years at minimum, people’s records that they might have been carrying on their documentation, as well as the notes of the search? Do you have any concerns about that length of retention and the fact that those documents could be turned over to other police forces for investigations that have nothing to do with border issues?

Mr. Morris: Well, it’s a balance between retaining information so that individuals can access it and have recourse. Under the Privacy Act, if personal information has been used for an administrative purpose, it’s required to be kept for a minimum of two years so that individuals can exercise those rights of recourse.

On the other hand, you do not want organizations to be retaining information for longer than they need. That’s what we found in our investigation regarding the retention of passwords by CBSA officers. We found that they were retaining passwords even where they had no need for them. The CBSA has since changed their practice in that regard.

However, there is an important accountability interest for the individual to be able to access their information when it’s been used to make a decision about them, which requires it to be retained for a certain amount of time.

Senator Simons: Are you concerned at all about what could happen to that information afterwards?

Mr. Morris: When information is stored, there’s always an increased risk — that is, risks of unauthorized access or risks of disclosure to other entities. If there is a disclosure to another entity, it would obviously have to comply with the rules in the Privacy Act regarding disclosures. That framework would protect information. There would obviously be a need for strong safeguards for the CBSA to maintain that information and protect it pursuant to the Privacy Act.

Senator Boehm: Mr. Morris, thank you for being here.

Would you agree that a reasonable general concern, or the concept of it, could vary in the mind of a CBSA officer and in the mind of a U.S. pre-clearance officer, regardless of the training that the American officer may have received from CBSA? Are there intrinsic mores or a culturalization that could come into play, recognizing that all officers, whether they are Canadian or American, rotate between their positions and different border points? Is this a concern of yours?

Mr. Morris: It is in the sense that we are concerned about the vagueness of the standard. Whenever you have a standard that is vague, it can be interpreted in different fashions by different officers. That is why we’re suggesting a standard that is more well known, that has been interpreted by the courts and that has lots of language around what it means and what threshold is needed to meet it. I think that’s all I have to say.

Senator Boehm: Okay. Thank you very much.

The Chair: This brings us to the end of this panel. I want to thank Mr. Morris and Mr. Homan for your assistance in helping us as we study this legislation. You’ve been very helpful today, and it’s greatly appreciated. Thank you.

We’ll now move to our second panel. I’d like to welcome, from the Canadian Bar Association, David Fraser, Member, National Privacy and Access Law Section; and, from the Canadian Muslim Lawyers Association, Ms. Pantea Jafari, Member, Founder and Lead Council, Jafari Law. Thank you for joining us today. We now invite you to provide your opening remarks, to be followed by questions from our members. Mr. Fraser, you may begin when you’re ready.

David T. S. Fraser, Member, National Privacy and Access Law Section, Canadian Bar Association: Thank you very much, and good afternoon, honourable senators. I’m a member of the Canadian Bar Association’s National Privacy and Access Law Section, and I’m here on behalf of a number of sections of the CBA. We appreciate the opportunity to appear before this committee in its study of Bill S-7.

I personally had the privilege of speaking on behalf of the Canadian Bar Association to the House of Commons Standing Committee on Access to Information, Privacy and Ethics in 2017 for their important and related study protecting Canadians’ privacy at the border.

We’ve delivered a written submission, which I commend for your review as you undertake this important study.

Information collection at the border is necessary to ensure the security of Canadians. However, collecting too much information or unreliable information can also lead to harmful consequences for Canadians. An appropriate balance must be achieved to protect our safety and preserve our individual privacy rights and freedoms.

The CBA sections comment on collection of information at the border on entry and exit and specifically on solicitor-client privilege at the border. Most travellers now carry mobile electronic devices, like smartphones, with sensitive personal data on them. This has become essentially mandatory with the adoption of the ArriveCAN app. The powers of customs agents to inspect the contents of these devices should be re-examined. Information stored on electronic devices is not a good, and any interpretation of the Customs Act that would authorize a suspicionless search of data stored on a device would likely be found to be unconstitutional.

The CBA sections have significant concerns about the new lower threshold of reasonable general concern for border searches of a traveller’s personal electronic devices and the new authority to examine them created under Bill S-7.

The first question, of course, is what does this mean? This is not a legal standard or threshold adopted in any country that I’m aware of, and it is certainly unknown to Canadian law. In law, we’re used to language like reasonable grounds to believe a crime has been committed, or even reasonable grounds to suspect, but reasonable general concern is not a standard for any sort of search in Canadian law. Your guess is as good as mine, but it seems pretty close to whether the officer’s spidey sense is tingling.

In our written submissions, we highlight relevant case law on the constitutionality of device searches at the border as authorized by the Customs Act. In our view, the effect of Bill S-7 is not consistent with the existing case law regarding searches of electronic devices, given the very high privacy interests in their contents.

The low threshold set out in Bill S-7 does not offer any meaningful protection to the acute privacy interests of travellers. Rather than settling issues as they stand after appeal courts have declared the CBSA approach to be unconstitutional, Bill S-7 actually opens the door to further expensive and protracted litigation.

In order to pass constitutional muster, two legal facts have to be balanced. The first is, of course, the reduced expectation of privacy at the border. It is reduced, but it is absolutely not eliminated. The second is the fact that the courts have essentially said that the contents of your computer or your smartphone raise essentially the same privacy issues as a search of your house. It may be higher. If the police have a warrant to search your house, they can’t search a computer or smartphone they find in your house. They have to go back to the judge to get special permission to search the computer or smartphone. If they arrest you, they can search you and your belongings but can only look into any phone found without a warrant under very narrow, prescribed circumstances. Reasonable general concern, in our view, does not come close to addressing this.

Bill S-7 will create competing and inconsistent thresholds applicable to screening ports of entry into Canada. By importing a reasonable general concern standard into the Customs Act, border officers will be caught between the threshold needed to examine electronic devices for contraventions of parliamentary acts and the threshold, for example, for breaches of the Immigration and Refugee Protection Act, or IRPA. This can lead to inconsistent application by officers at ports of entry as violations of the Customs Act and IRPA are often interconnected. The CBA sections recommend that the standards be consistent and that the IRPA section 139(1) standard of requiring reasonable grounds, which has existed for over 30 years, be maintained and adopted as the standard.

The CBA sections also highlight a significant omission with respect to CBSA device searches at the border. The CBSA does not have any policies that comport with legal requirements related to searches that may relate to records and information that are subject to solicitor-client privilege. Solicitor-client privilege is fundamental to the proper functioning of the Canadian legal system. It must be respected at the Canadian border, at Canadian airports and when Canadian lawyers and their clients travel to the U.S. The CBA sections recommend the creation of a working group to collaborate on the development of a comprehensive binding policy on solicitor-client privilege that is publicly available on the CBSA website. More detailed guidance should be available to CBSA officers and the public, including lawyers, to ensure safeguards are in place to avoid unauthorized access to documents protected by solicitor-client privilege.

I look forward to your questions.

The Chair: Thank you very much, Mr. Fraser. Next, from the Canadian Muslim Lawyers Association, Ms. Jafari.

Pantea Jafari, Member, Founder and Lead Counsel, Jafari Law, Canadian Muslim Lawyers Association: Thank you, senators, for inviting us to speak today.

The work of the CMLA is driven by several core values, including the promotion of human rights and dignity and the analysis of government conduct and proposed legislation through the lens of rights and values enshrined in the Charter. We not only speak when Canadian Muslims and Muslims in Canada are adversely affected by proposed legislation, but we also recognize that the post-9/11 era of national security means that a wide range of racialized and vulnerable populations are caught by the vast net cast in the efforts to spot and deter terrorism.

The bill’s proposed amendments provide border officers with further unchecked and likely unconstitutional powers, exacerbating similar problems that many groups identified in the review of the most recent amendments to the Preclearance Act made in 2017.

While the CMLA takes issue with a number of the concerning features of the current bill, our brief focuses on the proposed standard of reasonable general concern, as this is the most alarming of the proposed changes. The standard is not only legally unfounded, but also unreasonably broad and low, as testified to in more detail by other witnesses, including today’s. The overly broad nature of the proposed standard will invite arbitrary application. It will undoubtedly result in unjustified searches of a wide swath of people and will disproportionately be felt by minority and equity-seeking communities.

Instead, the CMLA proposes that the committee consider the higher standard of reasonable grounds to believe as a more appropriate standard to adopt in the context, for a variety of reasons. The standard to be used is of critical importance from an equity and anti-racism perspective because racialized individuals disproportionately find themselves subject to the immense power of border officers to single them out for heightened scrutiny. This has been demonstrated as a proven fact time and time again.

The data held by a traveller in a digital device is significantly different than other searches of goods because it contains information not only about the traveller but also about all of their contacts, both private and professional. As well, it often contains data that the traveller is unaware of holding on their device. The digital devices have immense storage capacity, containing this information for long periods of time. Again, the traveller is often unaware of retaining it on their phone.

There has been no connection made by the government between dropping the threshold for search of digital devices and an increase in border or national security. No justification for the significantly and unprecedentedly low standard has been demonstrated, nor the need for the requested change.

Digital devices significantly differed from the concept of goods in the minds of legislators at the time of enacting the Customs Act, which is why we are before you today. The CMLA submits that what is required in the circumstances is a reasoned approach to the standard to be set as one that is contemplated in Canadian jurisprudence presently so that officers and the public alike can have some anticipation of what to expect by this new standard. Even mail requires a reasonable grounds to suspect, and that is arguably and demonstrably less intrusive than digital devices.

I won’t canvass the case law regarding the courts’ dictate about the increased need for protection of searches of digital devices, as my colleague and also the Privacy Commissioner have done an excellent job of both of those. We only reiterate that the courts have confirmed that a search without suspicion of any kind is unwarranted. The proposed standard, in fact, provides a limitless discretion to search akin to a warrantless search without suspicion. The CMLA believes that there has been no meaningful attempt to set limits on the proposed search powers such that it is unlikely to survive a constitutional challenge as being a reasonable limit on one’s privacy rights.

As the Privacy Commissioner has testified, even the present set standards aren’t being followed by many officers. The Privacy Commissioner testified that the reported problems are a widespread issue and that even simple, present requirements such as note-taking requirements aren’t being met. The CMLA is greatly concerned about an increased relaxing of the standards when it has already been demonstrated that officers are practising that relaxed standard without necessarily significant recourse by travellers.

It’s important to note that despite the noted mechanisms for complaint, the previous round of amendments to the Preclearance Act confirmed that there is, in fact, no mechanism of holding U.S. border officials accountable for their practices at the border, given the immunities built into the Preclearance Act itself. That too was confirmed by the Privacy Commissioner in the last round of review of the Preclearance Act in 2017.

I welcome questions on CMLA’s other concerns with the proposed amendments and will rest my submissions there at the present time.

The Chair: Thank you, Ms. Jafari.

We will move to questions now. Senators, I remind you to keep your questions short and, in this case, identify which witness your question is directed to.

[Translation]

Senator Dagenais: My question is for Mr. Fraser.

We know that the United States doesn’t play by the same rules as we do, and Minister Mendicino has said that he doesn’t foresee any problems with the fact that they will respect our judicial system during pre-screening operations. Do you share his opinion or do you think that, in certain circumstances with national security implications, the Americans might be tempted to do more than is permitted?

[English]

Mr. Fraser: Thank you very much for the question.

That’s not a particular topic we specifically address in our brief, so I may be going beyond the parameters of what the CBA sections have spoken to. I think your question speaks to the significant importance of guardrails that set the parameters under which any state actor is able to exercise their authority, including an actor of another state who is a guest in Canada and is performing a function that is the subject of our Canadian legislation and the parameters under which that is set.

I do have concerns that if there are different standards that are adopted across the board, whether they are by Canadian customs officials or U.S. Homeland Security officials, the difference in standards and different circumstances gives rise to the possibility of a greater likelihood that those standards will be mistaken or conflated and the wrong standard will be applied in the wrong circumstance. This highlights the importance of having a knowable standard, a workable standard, and one that has significant guardrails imposed upon it.

[Translation]

Senator Dagenais: Could you explain why the legislator is using expressions like “reasonable general concern” instead of referring to the well-known expression “reasonable doubt?” What does it gain by presenting a different notion for this type of intervention by border services officers?

For example, I worked in policing for 40 years. I often went to court, and I always heard the expression “reasonable doubt.” I must admit that I didn’t often hear the expression “reasonable general concern.” Why was this wording added to the bill?

[English]

Mr. Fraser: Within the working group that we struck within the CBA sections — and it’s a group of very capable lawyers with a long track record and history — nobody was able to come up with an example of where reasonable general concern had been a standard either articulated in law or actually applied on the ground in any circumstance. Why this has ended up in this particular bill, Bill S-7, we can only speculate. It was up to the drafters and, I assume, the government department that put that in there. Clearly, it is intended to be a lower standard than has been articulated in reasonable grounds to believe and reasonable ground to suspect, so they are looking for something else, but I don’t know what that is. The members of the working group could not necessarily articulate what that was. I’m concerned that it will be completely new to customs officials and it will be completely new to the courts, and it will be fodder for more litigation to try to figure out what that is.

[Translation]

Senator Dagenais: Between you and me, if the bill is passed, it will be challenged in court, and it will delay the implementation of better border surveillance. Do you think this bill will be challenged in court?

[English]

Mr. Fraser: I do believe it will complicate things, absolutely, because it’s an unknown standard. It is something that there will have to be training on. There will have to be policies developed, and then those are going to end up in litigation. The consensus of our working group is that it would likely be found to be unconstitutional because it’s too low a standard, however it’s going to be adopted. It will just complicate things, slow things down and introduce uncertainty. We know what the other standards mean. Law enforcement knows what those standards mean. The courts know what those standards mean. Those can be applied in a reasonable way.

[Translation]

Senator Boisvenu: My question is also for Mr. Fraser.

When the minister appeared before the committee, he said that if we adopt the concept of “reasonable grounds to suspect” in this bill, as has always been the case historically, it might compromise the integrity of the border. Do you share that view?

[English]

Mr. Fraser: We do not. From the working group’s work, it is a standard that is known and it’s a standard that needs to be adopted with respect to the immense privacy interests that are at stake in personal electronic devices as they are now.

I think one thing that can or should be said is that privacy is multidimensional, and a search of a device can be multidimensional as well. We saw in the Fearon case, where the Supreme Court of Canada permitted certain kinds of device searches in connection with searches incident to arrest, where they had to be tailored to the exact circumstances. One of the concerns I have with Bill S-7 is that it talks about device searches generally and very broadly. It doesn’t talk about a narrow search that would be necessary for particular sorts of things. Just to say that the reasonable general concern opens the door to device searches is not a reasonable step to take. If you look at what could be done in particular circumstances — so a brief search of a device, or of a particular part of a device, in order to look for a very specific thing and allow that to take place, but no further. This is a bit of a blunt instrument.

[Translation]

Senator Boisvenu: In order to conduct a search of a private residence, a court order or a third-party decision is required to authorize a police officer, for example, to enter my home to conduct a search. A cellphone is still a very important extension of privacy. By lowering this threshold, which would allow border officers to interfere in what I would call the extension of my privacy, is there not a risk that this threshold will eventually be lowered to other aspects of privacy and that citizens will feel less and less protected?

[English]

Mr. Fraser: Absolutely. Privacy is absolutely at stake. We have a situation here where we’re trying to find an appropriate balance. If we can’t do this, then the courts are going to find it for us.

You have a reduced expectation of privacy at the border; you have a very high expectation of privacy in your house, there is no doubt. The courts have said the expectation of privacy you have in a device is very different than the expectation you would have for what is in your wallet, for example, crossing the border. We have to find the right balance that deals with the absolute fact that these days your smartphone contains some of the most personal information related to your life that is probably absolutely irrelevant for a customs agent to see in connection with a legitimate questioning, even at secondary screening.

If we start opening the door and suggesting that an incredibly low threshold is required to search an electronic device, first of all, I don’t think the courts will permit that, consistent with our existing jurisprudence, but we are actually undermining, in the big picture, the privacy interests that all Canadians hold in these devices they carry with them all the time, everywhere.

Senator Dalphond: I have three questions for you, Mr. Fraser. First, I would like to thank you very much for this brief.

My first question is about how many committees and how many lawyers were involved. How many meetings were at stake here? You have filed a very comprehensive and substantive brief. Please be brief, because I have a longer question to follow.

Mr. Fraser: Thank you very much. You are very kind. We did provide a written brief that does list all the different sections that were involved. In fact, we did have a head start because we had previously participated in the FE study in 2017, I think it was, where we already canvassed in a big picture sense many of these questions. I’ll pass your compliments off to the working group.

Senator Dalphond: I will assume that there were 20, 30, 40 lawyers involved in that?

Mr. Fraser: Overall, I would say that is probably right. The working group itself was probably around a dozen in terms of those who held the pen and contributed to the draft.

Senator Dalphond: Thank you.

My second question is for clarification and to make sure everybody understands the legal concepts. Are reasonable grounds to suspect and reasonable suspicion the same thing?

Mr. Fraser: Largely, although the words that appear after that are important. In terms of reasonable grounds to suspect, we sometimes say reasonable grounds to suspect that an offence has taken place and that the search will afford evidence of it, or reasonable grounds to suspect that the search will produce evidence. It’s always part of a sentence, but it’s the threshold for the rest of the sentence that usually permits law enforcement to do particular things or seek a particular item, like a production order or a search warrant.

Senator Dalphond: Would the same be true of reasonable suspicion? Would they be synonyms?

Mr. Fraser: That’s right. That is often in contrast to reasonable grounds to believe, which would be higher; you suspect something or you believe something.

Senator Dalphond: The real question is about the protection of solicitor-client privilege. Your recommendation is to have a working group to try to define a policy on searches and a way to protect solicitor-client privilege. You’re not suggesting any amendments to the bill to protect solicitor-client privilege? For example, should we have something within the power of the Governor-in-Council that would stipulate that they must address the issue of how to protect solicitor-client privilege? I suppose that would also be true for journalists’ sources or other types of professionals who have the phone numbers and details about their clients, such as psychologists or priests or whoever.

Mr. Fraser: Certainly, at this stage, we think it’s a sufficiently important matter that it should be part of a discussion, which is why we advocate for a working group.

There is also a distinction in terms of information. For example, my work laptop contains nothing but information related to my clients. As a lawyer, I cannot waive the privilege of any of my clients without their permission.

Similar interests are carried by my client when they cross the border and have information that is subject to privilege because I provided them with advice. They can waive that privilege, but they should never be required to. It’s a relatively nuanced discussion.

You raised the important question of other kinds of privileges. Solicitor-client privilege is almost the gold standard as set by the courts. It’s a quasi-constitutional right and is integral to our justice system, but other elements of confidentiality absolutely should be taken into account.

We think that a collaborative discussion that includes stakeholders would likely produce the best results, which may be an amendment to the Customs Act or to another piece of legislation that is overarching. That conversation should take place, and stakeholders should be part of that conversation.

Senator Dalphond: Thank you.

Senator Jaffer: Thank you, Mr. Fraser and Ms. Jafari, for your presentations. I found them very interesting and I will certainly be thinking about them.

My question is to Ms. Jafari. As-Salaam-Alaikum and congratulations for founding the Muslim Lawyers Association. Ms. Jafari, it’s not a secret within the Muslim community that the CBSA is not very kind to us when we come to the border. As someone who founded the Muslim Lawyers Association — and I think it was after 9/11 — obviously, you don’t want to give examples of specific people, but generally, what do you hear from the Muslim community about what happens to them at the border?

Ms. Jafari: Thank you, Senator Jaffer, for your question. I’ll just correct that I’m not one of the founders of the CMLA. I founded Jafari Law.

In terms of the issues we are discussing today, many witnesses have advised that the standard of general concern is unlikely to survive a constitutional challenge. While we might theoretically think that is years of litigation, those years of litigation will come on the backs of the marginalized and racialized communities that are proven to be disproportionately and discriminatingly affected at the borders.

What we see and hear from our community members oftentimes is that they are repeatedly and almost always selected for “random” spot checks. They are questioned to a much higher degree than other travellers, oftentimes even in their own travel group. The concern about the limitless search and the lack of any protections and parameters on the data that is collected and retained is that the information will not only be used against the traveller but also the contacts of the traveller whose information is contained in their phone.

These days, our phones collect data about our contacts, both personal and professional, whether or not we’re aware of this, and our correspondence could potentially incriminate other people, which the government will rely on. There are no parameters for the collection or retention of that data. It could be used for any purpose and potentially disclosed to third parties for charges and investigations outside the context of the pre-clearance areas.

Senator Jaffer: Another question I have is about the note taking. We already heard from Mr. Morris, from the Office of the Privacy Commissioner, about the inadequacy of note taking, and you also mentioned it. If note taking is inadequate, you have to go through further legal or complaints processes. What has been your experience with the marginalized community, the people you work with? How have they been able to proceed? Are they able to lodge complaints? I’m not saying all Muslims are marginalized, but it’s a challenge. What is your experience?

Ms. Jafari: Thank you for that question, Senator Jaffer.

The issue is that even in the last round of amendments to the Preclearance Act, this was particularly and specifically our concern. I had the pleasure and honour of testifying before the House and Senate committees in terms of those amendments. One of the pivotal concerns was that there aren’t enough parameters or limits prescribed on the authorities given presently, and we are seeing an ever-increasing rush to expand those powers without the checks and balances that are required for a reasonable limit on one’s individual privacy rights.

Not only are there no parameters set, but we have already seen that the few parameters that are there aren’t being observed. We were concerned at the last round that note taking wasn’t going to be a sufficient check and balance on the expanded authorities given at that time, and that has proven to be the case. Note taking has become an afterthought for a lot of officers. They already have the legal authority to conduct themselves and question travellers on a myriad of things that might be unnecessary or unreasonable in the circumstances, and top of that, they don’t comply with the note-taking standard. Recourse to the actions of officers at the border becomes almost meaningless in a lot of ways — or not necessarily meaningless but so cumbersome and with such little effect and impact in the end that many don’t exercise even those few available mechanisms. Many people simply state, “I basically have no rights at the border.” The power imbalance is so great that they have to give in to whatever the demands of the officer are.

Senator Wells: Thank you to our witnesses for appearing.

This question is for Mr. Fraser. I’m going to ask you to speculate, based on your experience and the experience and discussions of the working group. If reasonable general concern is permitted to stand and is passed into law — and you noted in your brief, on page 7, that absent further qualification, as written, it is at serious risk of not surviving Charter scrutiny or challenge — will this end up back in Parliament to come up with a greater level of detail or scrutiny for that term?

Mr. Fraser: Thank you for the question.

Generally, I hesitate to speculate, but I’m relatively confident that this will end up in front of courts. Those courts will have to grapple with what is a reasonable general concern and whether that passes constitutional muster in light of the extremely high and acute privacy interests in the contents of mobile electronic devices. I think we’re probably going to see what happened in Canfield and Al Askari happen again, which is to strike down that particular portion. In Canfield, we saw that the court wasn’t ready to take out the pen and rewrite it. It was sent back to Parliament, quite rightly. If I were a betting person — and I’m not going to make a wager on behalf of the committee, but I’ll do it on my own behalf — I’d bet that we will be revisiting this issue in a parliamentary committee with an amendment to the Customs Act within 5 or 10 years.

Senator Wells: Thank you for that. My next question was how likely would it be successfully challenged, so good on you for jumping ahead and answering my next question.

Finally, Mr. Fraser, with the provision of note taking, which is not a new concept but a new provision for this bill, in your experience or in your discussions with your working group, would that be more for justifying actions or for noting observations? Who does that protect?

Mr. Fraser: Well, it should be for both. One thing that’s notable is that the Supreme Court of Canada in the Fearon decision, related to searches incident to arrest, put in place an obligation on police officers to take detailed notes about what it was they were searching and why they were searching it. Note taking has the benefit of clearly recording, contemporaneous with the search, what is your reasonable general concern. What are you concerned about? It allows its reasonableness to be checked after the fact.

It would also hopefully document the search. Was the search itself reasonable in the circumstances? Was it related to the general concern? It does both of those things in terms of making sure that there’s a record after the fact. Otherwise, when it does end up in front of a court, for example, you’re not left with only somebody’s ex post facto justification. You have something that’s contemporaneous.

I would also note that it creates a little bit of friction. It does have that beneficial effect as well if the officer thinks, “Is this really important to search? Is it worth my time to whip out my notepad and take these detailed notes?”

Senator M. Deacon: I’m thinking as I’m speaking because I don’t want to duplicate anything I’ve heard so far. I will ask one question, and then l would be happy to defer my time back to Senator Jaffer’s other question, if we can squeeze that in.

This might be even seen as playing a little bit of the devil’s advocate, but I am curious about this. We are talking continuously about this new language, the reasonable and general concern. I also wonder if new language is needed, given the rapid evolution of our devices and the capacity of what can be stored on them. While these devices contain personal information, their potential to contain gigabytes of illegal photos and videos and those kinds of things is also there. I think I heard it suggested that while reasonable general concern is considered by some to be too low a bar, perhaps traditional language, like reasonable grounds to suspect, is too high. Do we need new legal language to keep up-to-date with technology? I’ll direct this towards the Canadian Bar Association.

Mr. Fraser: Thank you very much for your question.

I’m not sure that our legal system is so stagnant that it cannot contemplate new language, new concepts and new thresholds. I think the concern specifically with reasonable general concern, as it’s dropped in Bill S-7, is that we just have those words and we don’t have a fleshing out of what the concept is or what the concept is intended to be. If there were more details and more parameters, more clear guardrails on what is in and what is out, what does this mean and what does this not mean, and reasonable general concern about what? General about the circumstance? General about the threat level for the border that day? General related to the visitor in front of you? General related to their luggage? General having a bad day? What exactly does that mean? If we had a better understanding of exactly what that means, we would certainly be in a more detailed position to say, yeah, this might work, or it might work in some circumstances and not in others.

I don’t think that we need to close the door to new concepts, but we need to understand what those concepts are, particularly when there are such distinct and acute privacy interests at stake, and also when you’re dealing with vulnerable people. Canadian citizens have the right to enter Canada, but anybody facing a customs officer in a uniform is going to feel somewhat intimidated. There are racialized and marginalized communities who are extra vulnerable in those sorts of circumstances. For them to be able to understand what the rules and the parameters are — and the clearer they are, the less likely that they can be abused or that the abuse of that authority can be recognized and checked.

That’s probably a long-winded way of answering your question, that as long as we understand what those parameters are, we would be in a position to adopt them or criticize them or say that they are fine.

Senator Yussuff: Thank you, witnesses, again, for your rich evidence to the committee.

Mr. Fraser, let me start with a question to you. In regard to the court rulings, the court certainly allowed for Parliament to come up with this new definition. Granted, there are some challenges as to what exactly does it mean in regard to its legal parameters, but there’s nothing that’s stopping Parliament from proceeding with the definition that the government has adopted that’s before us right now. Am I wrong to assume that?

Mr. Fraser: No. The Senate and the house can pass the legislation as written, and it will go out into the wild and it will be acted upon. It’s not a concern about the authority of Parliament to pass the legislation, by any means. It’s the concern that there will be confusion later. It will be litigated, and there’s a very high chance that it would be found to be unconstitutional and we would be back to the drawing board.

Senator Yussuff: Quickly, on my second question to you before I get to Ms. Jafari, on the issue of solicitor-client privilege, can the concern that you are raising be taken care by explicitly acknowledging that reality in the regulation?

Mr. Fraser: I imagine there’s probably a way to do it. This wasn’t the subject of our working group’s work, so I will speculate personally. One could say that this authority to search does not extend to any materials over which solicitor-client privilege is claimed, and to build in a process. For example, if a judge authorizes a search of a law firm, there are specific rules in place in that nothing gets reviewed in order to determine whether it’s privileged, except by a judge or a referee, who is a lawyer appointed by a judge. A similar mechanism could absolutely be put in the regulations.

Senator Yussuff: Thank you very kindly.

Ms. Jafari, you raised some very important points that are of concern from a personal perspective, but also for the general concerns, of course, for people of colour that travel across the border. There has been a lot of evidence previously to CBSA’s attitudes towards people of colour, and in many circumstances the agency has had to adapt and change accordingly. The minister did indicate to us when he came before the committee that he is establishing a new agency to monitor the CBSA and the RCMP in regard to their behaviour and to collect data. Would this be of any value in trying to discern the degree to which racial profiling is happening at the border, and also happening with other agencies that this new agency will be overlooking?

Ms. Jafari: Thank you for the question.

We will be monitoring the progress of that bill and seeking to make submissions as well. I would suggest that that body, once it comes forward, will still be a post facto review of what has gone wrong. It doesn’t provide upfront protection to travellers seeking to travel the border. In fact, these increased powers still continue to serve as increased deterrents for racialized and vulnerable minorities from travelling to the border because of the palpable knowledge of the power imbalance security officers wield over travellers when crossing the border.

What is even more concerning is that there are other problems with the proposed amendments, and one of them is the increase of consequences for the offence of hindering an officer. By switching that offence to a hybrid offence, there is an increased power of border officials, which is that they can render, with the sleight of a pen, temporary residents in Canada inadmissible on the grounds of criminality. On the immigration side, in the immigration context, they have deemed that any hybrid offence will be deemed to be an indictable offence, even if proceeded by way of summary conviction. That means that travellers have this even more significant consequence to fear each time they cross the border lest an officer think that travellers’ behaviour or conduct is somehow seeking to hinder those officers’ ability to conduct themselves.

Unparalleled and unrestrained increased powers granted to border officers are things that we have demonstrated and have known for many years to have come on the backs of experiences of marginalized individuals. To answer your question, yes, this new body will likely provide additional sets of data on when and how that’s occurring, but again, that’s after the fact and not a reasonable solution to the concerns being raised.

Senator Boehm: I’d like to thank both witnesses for being here.

My question is for Ms. Jafari, and I’m following up on earlier points made by my colleagues Senators Jaffer and Yussuff. At one of our previous meetings, government officials stated that there’s an hour of diversity training for CBSA officers. We weren’t given more of a context as to whether it is an hour in a two-week training program or if it’s less than that. Do you believe that is a sufficient amount of time to understand the complexities of racial profiling and diversity training?

I was struck by the comment you made that, in the community, there is generally a sense of quiet resignation that there is no real recourse once a decision is taken. Would you see this new standard as perhaps increasing that sense? It’s a very subjective question, I realize, but I would really like your perspective on both of those points.

Ms. Jafari: Thank you. Again, to some extent, I’ll be speaking in my personal capacity in terms of my interpretation of what would happen based on these amendments.

To answer your first question, I do not think that an hour of sensitivity training for officers is sufficient by any standards. The stereotypic beliefs that permeate border officials and the national security context are deeply ingrained. They are something that not only officers but a lot of sectors of society buy into. They are systemically entrenched. One hour of training cannot easily undo them, which is why racial profiling and the stereotypic assumptions they are based upon are so predominant in the national security context and so significantly felt by racialized and minority individuals.

In answer to your second question, I absolutely do think that the increased powers will increase the feeling of helplessness and lack of power at the border, again, especially given the proposed designation of the offence of hindering an officer as a hybrid offence and the significant immigration consequences that could befall travellers, visitors visiting their family members, foreign workers on a variety of work contracts, international students — people who have invested years and years into the hopes of a future in Canada. Every time they cross the border, they are now not only going to have the ordinary potential indignation of being singled out for specific questioning, but they would also have this looming significant immigration consequence in their concern that would further entrench their willingness to accept whatever treatment they receive by border officials, however unreasonable, due to a desire to circumvent the significant consequences that could come thereafter.

Senator Boehm: Thank you very much.

Senator Simons: My question is for both witnesses, but it arises from something Ms. Jafari mentioned in response to an earlier question.

We’re told that Bill S-7 is ostensibly to deal with border contraventions, whether that’s the importation of child pornography, the importation of hate literature or even something as simple as looking through your receipts to make sure you actually declared all the things you brought on your shopping trip across the border. I remain deeply concerned, though, that the bill also allows that if the CBSA officers are doing a regulatory examination and they discover what may be evidence of a criminal offence, that such evidence can be provided to local law enforcement authorities who can then conduct their own criminal investigation and consider criminal charges. As lawyers, how concerned are you that a bit of a fishing trip through somebody’s personal devices at the border could lead to criminal investigations and criminal convictions for offences that have nothing to do with the border crossing itself?

Mr. Fraser: That’s a good question, and it raises an important point. However, it’s not only restricted to the border circumstance. There are certainly other circumstances where regulatory audit or review will lead to information that could give reasonable grounds to suspect a crime has been committed, and it’s beneficial that it be moved over to someplace else.

What’s notable is that as soon as that threshold is crossed and it relates to an electronic device, that electronic device should be shut down, sealed, placed in an envelope and it can’t actually be looked at unless the law enforcement agency gets a warrant. On that side of the line, a warrant is required based on reasonable grounds to believe, but five minutes earlier, just reasonable general concern was what was necessary in order to go flipping through it.

There’s nothing in Bill S-7 that limits the scope of a search. You gave the example of receipts. If you have a reasonable general concern that I have misdeclared the price of these items, that can still lead to looking through my camera roll, going back a year and a half, which would be completely unrelated and is not a reasonable search exercise in a reasonable manner.

I expect my colleague has some things to say about that, as well.

Ms. Jafari: Yes, thank you.

Again, that is precisely the concern. Not only are there no parameters on the scope of the search, but there are also no parameters on the retention and use of that data. We know that the border officials use metadata, and store and collect as much metadata as possible to see where it could be useful for them down the road, and these expansive search powers of digital devices will allow them to aggregate and add to that pool of metadata. They can potentially retain information that they know is of no value or use to them in the border context but that they hope may somehow down the line connect to some other points of metadata and lead to some information that could be relied upon for the purposes of criminal or other investigations.

We are deeply concerned with the lack of parameters on the search powers, the increased authority to search and the lack of parameters on the retention and the destruction of the information gathered.

Senator Simons: I think you’re the first witness who’s talked about metadata, and I don’t think we’ve asked questions about that. That will be something we will want to consider. Thank you.

Ms. Jafari: Our pleasure.

Senator Jaffer: I want to go first to you, Mr. Fraser. I’ve known of you for a long time, and thank you for all you do for the CBA.

Ms. Jafari and I are both members of the CBA, as are other Muslims, I was wondering if, in your presentations in the future or even now, you consider the challenges faced by racialized communities. As a lawyer, you well know that it’s very rare that a racialized community member can go to court because of their particular circumstances, and I was wondering if you could comment on that. Thank you, Mr. Fraser.

Mr. Fraser: Thank you very much. Thank you for your kind words, and I’ll certainly take them back to the group.

I’m acutely aware, and it came up in the context of the discussions, and I will speak for myself. When talking about border searches and the powers of customs agents, the question came up, “How many times have you been sent over to secondary?” I’m a middle-aged white guy, a professional. I travel for business. I’m not on the sharp end of this, and I realize that. I travel internationally a fair amount. There are communities that are significantly and greatly affected in terms of the number of people, as a proportion, and the degree to that effect. My colleague spoke very acutely to the consequences of some of those contacts or the potential of those contacts. I am mindful of that, absolutely.

On the reference to diversity training, I can’t imagine a civil service job where diversity training and understanding are more important than somebody who is probably the first Canadian official that somebody will encounter on moving to a new home in Canada, other than the visa officer whom they likely encountered at a Canadian mission abroad. Absolutely, that is a key consideration. Not only is it in the background but it should be in the foreground. Thank you for bringing that up.

Senator Jaffer: Thank you for being so open-minded. I know of your reputation, so I know you will not just say those words; you will follow it. But I am an old Muslim senator of over 21 years. The number of secondary searches and random searches that I have had to go through is something that we can talk about privately. Having a green passport, I still have, almost every time I travel, a secondary search. You can imagine how passionate I feel about this issue.

Ms. Jafari, you mentioned random searches. I’m one person who gets a random search so often that my Senate colleagues sometimes follow me. At first they joked, “Oh, you must have bought a lot of jewellery. That’s why you got a secondary search.” But now they follow me because they want to see what this random search is. Nothing is found, happily, because if I have something, I’ll declare it. But the random search is something racialized people, and especially Muslim people, know very clearly. Can you expand on what you’ve said, Ms. Jafari? Maybe Mr. Fraser has something to say as well.

Ms. Jafari: Sure. Thank you so much for that question. If I may, I will briefly comment on your previous question as well, but I will address your random search issue first.

With all due respect, the term “random search,” for all intents and purposes, is for those using those powers. The people who are being subjected to the “random searches” know and feel first-hand that there’s nothing random about it. I can’t even count the number of media coverages of incidents of racial profiling at the border and the number of prominent, racialized individuals who are repeatedly subjected to these random searches. As your own experience attests to, there’s nothing random about the same person being taken to secondary questioning on almost every single visit to Canada. Statistically, that is not possible if it’s truly a random search. Clearly, there’s more to it.

To wed back to the previous question, the issue is so significantly felt by racialized individuals, but there doesn’t seem to be a genuine interest in correcting the problem. When you see that the minister is proposing a one-hour diversity training to rectify this overwhelming and extremely well-documented issue of significant racial profiling at the border, that speaks to how seriously they take this issue, which is really not at all. They know that these expanded powers will be wielded disproportionately against racialized individuals. They know that is a prominent practice of border officials, but their solution is to say, “Don’t worry about how much worse it could get. We’ll give our officers one-hour training, and that should be enough.” I think that speaks to how problematic the circumstances are.

Senator Jaffer: Thank you, Ms. Jafari. Mr. Fraser, did you want to add anything further?

Mr. Fraser: I would just reinforce that, certainly in my personal experience, and this wasn’t part of the committee’s study, having seen random searches in action, they are seldom random. If you give somebody power and you give somebody that much latitude in order to select their random population, it’s not going to be random. It’s going to reflect their personal biases and their personal approach to these sorts of things. The more information that we have on the application — well, take away the ability to do things randomly, but the more supervision we have of things like this, then we can understand them and then hopefully we can rectify them.

Ms. Jafari: I would add briefly that that is also why the lack of specific exemption around solicitor-client privilege is particularly concerning to the CMLA and other witnesses. When racialized individuals are known to be more targeted at the border — and we testified to this in the last round of amendments to the Preclearance Act as well — they are more likely to seek legal advice about their rights at the border. The advice that they receive is now presently not protected. As well, lawyers who will predominantly be known to have a clientele from marginalized communities may too have their digital devices targeted for general concern searches where the metadata is extracted. The lack of specific exemption around solicitor-client privilege is particularly concerning to racialized and minority groups.

Senator Yussuff: This question is to Ms. Jafari. Based on your reading of the bill and what you believe will be the outcome of this legislation, if we were to adopt the definition put forward by the minister and the government, you could basically say racial profiling will increase at the border versus decreasing at the border. Am I right to understand that in your testimony?

Ms. Jafari: In my personal opinion, I would say absolutely, because these ingrained and entrenched biases and stereotypical assumptions being exercised at the border will only become more entrenched with increased power to exercise them in that way. Without the proper safeguards, I would highly venture that things will get disproportionately and significantly worse for racialized individuals at the border.

Senator Yussuff: Thank you.

Senator Dasko: The exchange about randomness raises a question for me. Random processes are not haphazard. They are supposed to be systematic. Are you saying they are not systematic? But they should be systematic because randomness is not haphazard. You can actually use things like random number tables. You can say that you will examine every n-th person. That is a process that is random. You are saying they don’t use those processes? Can either of the witnesses clarify the nature of a random process?

Ms. Jafari: I can’t necessarily speak to that. I don’t know enough about police and border customs and recording to be able to advise on that.

I can speak to the fact, from personal experience and from that of many affected individuals, that, should a set criteria be used, like every third traveller, that does not pan out in reality. When you’re in line and there are 15 people ahead of you and the 2 people who are selected are racialized and marginalized, and they were, let’s say, 4 people or 10 people away from each other, that demonstrates that it wasn’t a one-in-every-four people, or whatnot, type of search.

The other problem is the indicia of what’s considered suspicious behaviour. The minister spoke of pivoting from one foot to another. That is also based on not necessarily stereotypic assumptions but certainly not with the sensitivity of the cultural context and the context of the reality of experiences by racialized individuals. There are a myriad of reasons why a racialized individual might be more nervous at the border, likely because they have been investigated and questioned thousands of times, likely because they have grown a little bit uncomfortable, frustrated and upset by those interactions, and likely because they are afraid of what else might become the consequence of these searches.

There are a lot of things that factor into a person’s lived experience with an official that has power and authority over them. A lot of it could be based on the circumstances in their home country. Many of these people have experienced significant trauma at the hands of officials in their own country, which is why they are seeking refuge in Canada. There are many factors to their behavioural indicia that might be deemed suspicious and that are actually not at all suspicious.

The Chair: Thank you, Ms. Jafari.

We are over time, so I’m bringing the meeting to a close, I’m afraid, but I want to extend a thank you to the two witnesses, as well as our admiration for the information that you’ve brought to us today. It’s been very helpful. We appreciate your time with us.

Our next meeting will take place on Wednesday, June 8, at 12 p.m., where we will continue our study on Bill S-7. With that, the meeting is adjourned. Thank you, everyone.

(The committee adjourned.)