THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
EVIDENCE
OTTAWA, Wednesday, June 8, 2022
The Standing Senate Committee on National Security and Defence met with videoconference this day at 12 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 from Quebec, the deputy chair; Senator Dawn Anderson, representing Northwest Territories; Senator Peter Boehm representing Ontario; Senator Pierre-Hugues Boisvenu, representing Quebec; Senator Pierre Dalphond, representing Quebec; Senator Donna Dasko, representing Ontario; Senator Gwen Boniface, representing Ontario; Senator Mobina Jaffer, representing British Columbia; Senator David Richards, representing New Brunswick; Senator David Wells, representing Newfoundland and Labrador; and Senator Hassan Yussuff, representing Ontario.
Today, we are continuing our examination of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.
We’re going to hear from two panels of witnesses. In the first panel, we welcome Lex Gill, Research Fellow, Citizen Lab, Munk School of Global Affairs, University of Toronto; Michael Nesbitt, Associate Professor, Faculty of Law at the University of Calgary; and Bryan Short, Lead Campaigner, OpenMedia.
Thank you all for joining us today by videoconference. We are now going to begin by inviting you to provide your opening remarks, for which you will each be allotted five minutes. This will be followed by questions from senators. We begin today with Ms. Lex Gill. Please begin whenever you are ready. Welcome to our meeting.
Lex Gill, Research Fellow, Citizen Lab, Munk School of Global Affairs, University of Toronto, as an individual: Thank you, and good afternoon, honourable senators. I’m a lawyer and fellow at the Citizen Lab. It’s a pleasure to talk to you about Bill S-7 today.
In law schools, we talk to our students about dialogue theory, the idea that the courts and the legislature are in a constant and self-conscious conversation about the scope of government power and its limits in a free and democratic society. The idea is that sometimes the courts need to draw a constitutional line, and when they do, Parliament listens, adjusts and reworks the law to better tailor its objectives and better respect Charter-protected rights.
The government now finds itself faced with over a decade of Supreme Court jurisprudence, such as Morelli, Vu, Fearon and others, to the effect that our digital devices contain more information than could have ever been amassed about a person previously in human history. These devices know more about us than our lovers or our best friends. In Pike, Justice Harris wrote that
a search of the data in a personal digital device … digs deep into the heart of who we are.
It’s hard to imagine information more worthy of constitutional protection.
The government also now finds itself faced with multiple carefully reasoned court decisions, including the decisions in both Pike and Canfield, to the effect that those digital devices and the individuals who carry them deserve protection, privacy and constitutional respect, even at the border, and that the border cannot serve as a choke point for civil liberties on the basis of mere investigative expedience. I would invite this committee to take those decisions seriously, and in so doing and in that spirit of dialogue, I would suggest that it must consider significant amendments to this bill.
I know that my colleagues in civil society have already spoken at length about why the reasonable general concern standard is constitutionally insufficient, unknown to Canadian law and an invitation to another half decade or more of litigation. While the courts have chosen to defer to Parliament to determine an appropriate framework here, the entire corpus of decisions on this issue casts serious doubt on the view that anything less than a reasonable suspicion could be enough to justify even a cursory device search in 2022. The fact is that privacy and freedom require a certain degree of friction.
My colleagues’ concerns about racial and religious profiling also bear repeating. The border is a high-stress, low-information, low-visibility environment. It is a perfect storm for the combination of implicit bias and abuse of discretion that gives rise to discriminatory effects. These kinds of abuses are notoriously hard to challenge or review, but more important, there is no form of after-the-fact process that can fully remedy an inadequate law. People crossing the border have the right to not suffer invasive and unconstitutional treatment in the first place.
Finally, there’s an arbitrariness to all of this that feels impossible for me to ignore, which is that the parameters of this debate seem to still be happening under the fiction that data is a good that we import like any other. It is not. A reasonably capable computer user understands that they can back up the contents of a device to the internet, wipe the device, cross the border with a blank phone or laptop, and download everything on the other side. The person crosses the border, but their data never does, which means their data is never exposed to this kind of search in the first place. To state the obvious, that means that data is of a fundamentally different nature than other kinds of contraband like drugs or weapons.
There are a few conclusions we can draw from that. First, this kind of search is only going to capture the least sophisticated kind of actor, people who have taken no steps whatsoever to hide evidence of wrongdoing or a customs violation. Second, it’s going to be a massive nuisance to innocent travellers who feel obligated to take technical or legal precautions to limit unjustified government scrutiny into their private lives, their clients’ files, their journalistic sources or anything else. Third, it forces us to seriously examine the superstition that the border is a place where the public interest rationale for digital device searches is actually that strong or compelling. The fact is that there is no convincing evidence that there is more unlawful content locally stored on a phone that happens to be crossing the border than a phone anywhere else. The Supreme Court of Canada has been pretty clear that just about anywhere else, absent search incident to a lawful arrest, the state is not getting into your phone without a warrant.
But the standard is just one part of it. Ultimately, the government’s burden here is to adopt a scheme that is minimally impairing and truly proportionate in light of the rights at stake. I invite the committee’s questions on what that might look like in practice, in particular regarding how to create adequate safeguards for ensuring that searches are conducted in a reasonable manner and what to do about the constitutional right against self-incrimination as it relates to password disclosure.
Thank you.
The Chair: Thank you, Ms. Gill. You’ve gotten us off to a great start. Next will be Michael Nesbitt.
Michael Nesbitt, Associate Professor, Faculty of Law, University of Calgary, as an individual: It’s a pleasure to be here. I would like to begin by thanking the chair and members of the committee for inviting me to appear before you today. It is my sincere honour. Being from Alberta, I want to applaud your efforts to engage individuals from across our wonderful country, particularly in this case as the genesis for this bill really comes from the Alberta Court of Appeal, but, of course, border searches happen nationwide.
I am not here as any kind of advocate. I am merely a professor who spends probably an undue amount of time thinking about the balancing of security and fundamental rights, and how Canada’s laws and policies can best thread the needle to meet the pluralistic views and sometimes competing needs of Canadian law and society. In this, I have to add that I am extremely sympathetic to the difficult task before you and grateful for your undertaking it.
My focus is going to be on the reasonable general concern standard, something I know you’ve heard a lot about. What I want to do is put that in a practical legal context. I intend to outline what I see as the real-world costs associated with the course of action as proposed in the bill.
As I believe you know, the Supreme Court has clearly stated that searches of digital devices are amongst the most intrusive in terms of their effect on individual privacy. As Lex Gill just said, your digital devices are not mere suitcases; your photos, private communications, banking applications, geolocation history, work and personal emails, client emails if you’re a lawyer, perhaps medical information if you are a doctor, business records — all of that can be accessed through a phone, let alone a computer or tablet.
Thus, it isn’t surprising at all that the Alberta Court of Appeal, particularly in R. v. Canfield, made clear that while there is a diminished expectation of privacy at the border, and rightly so, there must nevertheless be search standards relating to electronic devices. That is the balancing you are asked to confront here.
Bluntly, many of us have been waiting for just this sort of decision in the absence of legislative reform. In other words, I can tell you that this is not a surprise; academics have been writing about it for nearly a decade. I will say that it’s quite clear that the courts both in Ontario and Alberta very much left the work to the legislature. They didn’t say what the search standards should be, only that some reasonable standard was needed.
Bearing this brief history in mind, I want to talk about the proposed reasonable general concern standard and the two problems or legal and policy concerns that arise from my perspective. First, all levels of courts in Canada have been clear that searches of digital devices are, or at least can be, significant intrusions of privacy. It thus seems inconsistent to create a novel standard for the search of electronic devices at the border that appears lower in the Customs Act than reasonable grounds to suspect, that being a well known and thoroughly litigated standard that applies to various less intrusive types of searches, including, again, in the Customs Act itself. Bill S-7, if passed, will surely be Charter challenged on this basis, as others have mentioned, and that is that you cannot create a lower standard for a search that is more invasive than you have for less invasive searches in the same piece of legislation.
As I see it, there are two possible outcomes to such a Charter challenge, which again is inevitable. Both start almost immediately with litigation leading to years of uncertainty and public expense, coupled with a complete lack of clarity for both travellers and border officials alike. At the end of this period, the courts will either strike down the legislation as being insufficiently protective of privacy rights and we will be back to square one, or the courts will remedy the definitional uncertainty by elevating the search standard to one that is close to, if not meets or exceeds, the reasonable suspicion standard. The first outcome would be an utter failure. The better outcome here, the second one, is still tantamount to deferring the real responsibility of standard setting back to the courts and in so doing creating years of litigation, cost and uncertainty.
The second problem I foresee is that a plain reading of reasonable general concern in the context of border searches sounds an awful lot like no standard for searches at the border at all. Bluntly speaking, border officers will rightly almost always be generally concerned, with good reason, that something, somehow, is being illegally brought into the country. But the court in Canfield was clear that there must be some standard, which they called a threshold requirement, for the search of a personal electronic device.
As a result, we’re once again likely to see Charter challenges based on the reasonable general concern standard for these reasons, in this case claiming that the standard is too vague or does not amount to much of a standard at all within the context of Customs Act border searches. Once again, we have a high likelihood of legal challenge followed by years of legal uncertainty and risk. Moreover, we once again have two possible outcomes. Either the legislated search standard will be overturned and we’ll be back to square one or, perhaps more likely, the courts will interpret reasonable general concern to be something different than what it says on its face, that is, something that requires a specific, objectively identifiable concern that justifies the search of the person implicated.
It is better to limit the uncertainty and legal risk now and not outsource the important details to the courts. Do not defer this back to the judiciary or set a standard for searches that amounts to such a deferral. This is your responsibility, and though a difficult and perhaps time-consuming one, it is imperative that the challenge of legislating is met by Parliament, not the courts. Better to set a clear standard now. That clear standard could certainly be, and in my mind should probably be, reasonable grounds to suspect. It is a flexible standard and allows for much nuance, including a different sort of nuance at the border. As Supreme Court said recently in Stairs, it requires but “ … a constellation of objectively discernible facts assessed against the totality of the circumstances …”.
Thank you so much for your time. I’m more than happy to take any questions that you might have. Obviously, I have other thoughts and smaller recommendations, but I wanted to focus on what I thought was the most important part of the bill before you.
The Chair: Thank you very much, Mr. Nesbitt. I have no doubt you’ll be receiving some questions.
Bryan Short, Lead Campaigner, OpenMedia: Hello. My name is Bryan Short, and I’m a digital rights campaigner at OpenMedia, a Canadian non-profit organization that works together with our community of hundreds of thousands from all across this country to keep the internet open, affordable and surveillance-free. My work at OpenMedia and my career has been centred around privacy in the digital realm. Based on these experiences, I’d like to share some concerns about how Bill S-7 threatens the privacy rights of people in Canada by failing to recognize the intimate details contained on our personal electronic devices.
OpenMedia is a non-partisan, civic engagement platform. I like to say that we give people opportunities to participate in democracy more frequently than every four years or whenever we’re able to vote. One of the ways we do this is by alerting our community to items moving through the parliamentary process and creating opportunities to get involved through things like petitions and letters to representatives.
In 2019, more than 18,000 members of the OpenMedia community signed a petition calling for a higher threshold to be established around the search of electronic devices at border crossings and a legal recognition that these electronic devices are not equivalent to other commercial goods.
Since Bill S-7 was introduced, many members of our community have reached out to us with intense concern about this bill and its failings. While Bill S-7 fulfills the latter part of our community’s ask, recognizing the unique nature of electronic devices, it also presents a big step backwards by failing to create a higher threshold for searches. In previous testimony, you’ve heard about the need for this higher threshold and the risk of allowing a novel standard to be created through the introduction of the phrase “reasonable general concern.” I fully support these comments and would like to expand upon the unique nature of digital devices and their vast privacy implication.
In OpenMedia’s view, the Canfield decision does a couple of important things. It directs the government to create a threshold for the searches of digital devices, and it recognizes that digital devices are not the same as other goods. A lot of the discussion so far has focused on the former, and rightly so, but more attention needs to be placed on the unique nature of digital devices.
Digital devices are not the same as other items in the possession of travellers. They’re in some respects similar to mail, which is protected from searches at border crossings by the higher legal threshold of reasonable grounds to suspect, because they often contain our mail, but digital devices are so much more than that. Our digital devices contain family photo albums, health records, financial documents, complete records of everyone we know, calendars with detailed schedules, religious affiliations, sexual orientations, a precise record of GPS or other location coordinates, biological and genealogical data, phone records, messaging histories, education, data search histories, social media profiles, our information and entertainment habits including books, movies and music, access to work files, our journals, diaries, shopping lists, art and more. As time goes on, our digital devices are coming to possess more and more of this sensitive information, not less.
We’re not just carrying our own sensitive information. Many of our devices contain this information about individuals beyond the person who possesses the electronic device, including our families and social and professional networks surrounding us. In that respect, the privacy violation that occurs during an unwarranted search isn’t localized at the individual level.
We’ve also heard that devices won’t be connected to the internet while being searched. I’d like to point out this is of limited importance. Even forgetting for the moment the ease with which devices can be connected and disconnected from Wi-Fi and cellular networks, our electronic devices are capable of locally storing vast amounts of information, often without our knowledge. Modern phones contain dozens or hundreds of apps, making app-specific decisions about what data to store where and changing significantly between app versions. Very few travellers have the time, energy or technical literacy to decipher this activity and determine what files are stored locally and which are remotely stored through services like cloud storage. Undoubtedly, this will lead to circumstances in which travellers provide access to files they didn’t intend.
You might ask in light of these concerns why would anyone bring the enormous volume of sensitive information contained in our digital devices along with them to a place like a border crossing where they’re risking a considerable invasion to their privacy and the privacy of those around them? The tragically ironic answer is that we don’t have a choice. Right now, due to COVID-related health measures, we’re entirely dependent on these devices to negotiate the complex relationship we have with our government and institutions, including keeping completed forms on our digital devices in order to enter and exit this country. Even if and when these requirements are removed, it is unrealistic to ask travellers to abandon their digital devices for a basic right to privacy. They’re an essential tool to help us navigate our journey, containing information related to flights, work documents, mandatory platforms and other travel arrangements. The truth is, we can’t afford to leave our digital devices at home when we travel, and the unfortunate truth about this version of Bill S-7 is that it will make so that we won’t be able to afford to bring them with us either.
Thank you. I look forward to your questions.
The Chair: Thank you very much.
We are now going to proceed to questions. We have to finish by 1 p.m., and in order to allow as many questions and answers as possible, we’re allocating four minutes for each question and answer. I remind my fellow committee members to be succinct and, where possible, identify the witness your question is directed to.
[Translation]
Senator Dagenais: My first question is for Mr. Nesbitt. It’s already been asked to other witnesses, but I would like to hear from you on the lawmakers’ choice of words in this bill. Regardless of what the courts have said, they have come up with the expression “reasonable general concern” rather than using “reasonable doubt”, which is well known to the police and the courts. Several witnesses have predicted that this issue is likely to end up in court. What assessment will a court make of this expression? Do we have an expression here that provides for authorities I would qualify as nebulous?
[English]
Mr. Nesbitt: I will do my best here. Please let me know if I’ve properly understood the question. Unfortunately, in Alberta, my capacity to speak French has not been what it once was when I lived in Ottawa and Southern Ontario. Your question is essentially what the legal implications of the distinction are.
[Translation]
Senator Dagenais: We’re talking about “reasonable general concern” as opposed to “reasonable doubt”. I was a police officer for 40 years. I always understood that one had to have reasonable doubt, not reasonable general concern. This is the first time I’ve heard the term.
[English]
Mr. Nesbitt: It’s the first time I’ve ever heard of it. We have reasonable grounds to believe and reasonable grounds to suspect, which are both, as you know, well known to police, to CSIS and, frankly, under the Customs Act, to border agencies. What we have never seen before is this reasonable general concern.
The first thing I suspect you’re thinking is, why create a different standard when you have a standard in the Customs Act that is so well understood and so well known and is working fine for searches of individuals, mail and other such things. Why is it that the phone has to be treated like a suitcase and not like a search of an individual or of mail? The court has answered that. It said that it can’t be — that it’s different. Why, then, set a standard that seems, as you note about this reasonable general concern, to be lower than even reasonable suspicion? To put it bluntly, it’s going to be hard to justify a more invasive search on a lower standard. Someone will have to stand up and explain that this is a more invasive search than your mail but that we have a lower standard for doing the search. Why is that minimally impairing? How is this consistent with what the police and border agency are doing at the border and so on?
The second concern is that we have 20 years of jurisprudence now that is saying very consistently that reasonable suspicion or reasonable grounds to believe, depending on which standard you’re using, have to be tailored to the individual in some way. That’s not to say you can’t consider factors like being worried about what’s happening coming off a certain flight in particular, but it is to say that specificity of suspicion has to be associated with a specific individual. In this case, the insertion of the general concern makes it sound like it’s not going to be specific to the individual. It is almost impossible to imagine how that would pass constitutional muster if it were interpreted in that way on the plain reading.
That’s where I get back to my statement, which is that it’s either going to be shot down for that reason — because you can’t have a reasonable general concern; that concern has to be attached to the individual — or, on the flip side, something will be read in and read down in that legislation such that the real definitional work, the real standard setting, is being done by the courts. We know that now, so to get back to my commentary, my request for those who are responsible for the bill is that they go back and make sure legislature does its job and doesn’t defer it back to the courts and doesn’t set it without having all these hearings.
[Translation]
Senator Boisvenu: Thank you very much to our witnesses for continuing to enlighten us. It seems we have a common thread: from a legal standpoint, everyone has their doubts about certain measures in this bill.
I see that an officer will now be able to perform three types of searches: a luggage search if there is reasonable suspicion; a traveller search if there is reasonable cause; and a digital device search if there is reasonable general concern. Mr. Nesbitt, I understand that we may be putting our officers in some very complex situations and travellers will be on the losing end of this.
My question is for Mr. Nesbitt or Mr. Short. Do you agree that this bill should be amended to ensure that, legally speaking, officers only have one definition to rely on, reasonable suspicion, if they are going to search a person, luggage or a digital device.
[English]
Mr. Short: I do agree at this level that there needs to be more clarity. Certainly, using that lower threshold would create that. I think the conditions at the border are stressful and uncertain, and clarity for travellers is needed in this space. People are already unsure about what information is contained on their digital devices, as I tried to make clear in my opening statement. There’s an unrealistic burden placed on travellers when they’re required to bring this device with them to ask them to then sort through and decipher what information is contained on that device. It doesn’t make sense. It doesn’t seem reasonable that the standard would be higher for something like mail, and it doesn’t seem reasonable that when mail is then contained on the digital device — and it could be mail dating back years and years in a person’s life — we would have a different, lower standard for the search of that device. So yes, I agree.
Mr. Nesbitt: I don’t have much to add to that, but I agree as well.
[Translation]
Senator Boisvenu: As you said, the cell phone is an extension of privacy. It contains photos of our children and spouses. In many cases, these are personal photos. Would an officer who gains access to these photos while conducting a phone search risk being sued by the traveller for violating the Privacy Act?
[English]
Mr. Nesbitt: To clarify, you’re asking if —
[Translation]
Senator Boisvenu: I will rephrase it. Let’s say an officer decides to take my cell phone. They ask me for my password and I give it to them. During the search, they come across compromising statements and have access to personal data, such as photos of my spouse or my children. Under these circumstances, will I have any legal recourse under the Access to Information Act or the Privacy Act to sue the Canada Border Services Agency for overstepping their authority by gaining access to data unrelated to their right to search?
[English]
Mr. Nesbitt: Lex Gill might have something to add, but in short, I can’t imagine in practical circumstances where that could happen.
It does bring me to one of my other recommendations here, which is that whenever we’ve seen this sort of legislation — not with respect to the standard but with respect to accessing this sort of data, and I’m thinking here of the Communications Security Establishment Act, or CSE Act, and amendments to the Canadian Security Intelligence Service Act, or CSIS Act, and their data sets regime — you also have a regime for how you access the data, what data you can access, how it can be subsequently used, how it can be stored, what’s done with it and all that sort of detail. That’s now all in our CSIS data sets regime. The police are dealing with it. It’s mostly in our new CSE Act, and that is completely absent here.
On top of having this lower standard, you also have, as I think you’re implying, very little opportunity to respond as a citizen or have amends be made. We have very little indication as to how the information can be accessed, stored, reaccessed down the line, shared, that sort of detail.
Ms. Gill: I would like to respond to the question that was asked.
There would be some sort of recourse through the Privacy Act. There would also be potentially a remedy that flows from section 24 of the Charter. What needs to be in every senator’s mind is that the vast majority of people, as in this scenario described by the senator, who will be affected by this power are going to be innocent people whose rights can only be vindicated retroactively. We know that no matter how robust of a complaints process — I will say that our federal privacy law has a long way to go before we can call it that — it is never going to be able to fully remedy that kind of Charter breach.
Senator Jaffer: Thank you to all three of you. I found your presentations very interesting.
I’ll start with you, Ms. Gill. You are a researcher. I wanted to know whether in all of your research — and I’m sure for today as well — you have ever seen this term “reasonable general concern” used anywhere in the world.
Ms. Gill: I’m a researcher, and I’m also a litigator. I can tell you if you go to CanLII and type in “reasonable general concern,” or its French equivalent, you get exactly zero results. The standard doesn’t exist in Canada. I’ve never seen an equivalent standard in a foreign jurisdiction.
I’ll be honest; it’s not really clear what this standard is meant to mean. It’s hard to find an international comparator if we are using a different phraseology. On the one hand, we’re hearing from the minister, for example, the other week, that CBSA will essentially be able to continue business as usual under this standard. On the other hand, we’re hearing that it’s a robust, constitutionally protective response to people’s privacy rights. With extraordinary respect, it can’t be both at the same time.
As a researcher, but also as a lawyer, when I read a standard like reasonable general concern what comes to mind is a hunch, intuition, gut feeling or fishing expedition. And that I think, frankly, is what you are being asked to approve in approving this bill.
Senator Jaffer: To both Ms. Gill and to Professor Nesbitt, I’m also a litigator. The first thing I did was go to CanLII and I saw there were none. I thought, around the world, maybe I’m missing something.
There has been a stone in my shoe since I heard the officials speak about having indicators, and then some indicators we can’t even share with parliamentarians. If you followed any of these hearings, you can see where I come from and how I look. For me, that means, what are those indicators? So you are saying that behaviour and sweating are some indicators, but there are others that we can’t even share with parliamentarians. That makes me think: What are the indicators? Because both the minister, I think — I don’t want to misquote him — but definitely the officials said that with this goes the indicators. So to both of you, and to Mr. Short — any of you — do you know more about the indicators? What are the indicators? I’ll start with Ms. Gill, and then anybody else can add something if they wish.
Ms. Gill: Unfortunately, I have no more information than you do about what these indicators might be.
What I can say is that I’m actually taking a break from a month-long constitutional trial on racial profiling to join you today. What we know in that context is that when there are highly discretionary search or detention standards, or no standards at all, officers nonetheless come up with reasons to justify what they do. Those reasons, when you scrutinize them carefully, rarely hold up to any sort of meaningful constitutional scrutiny. For example, that might be the case of a Black man driving a luxury car. That’s an example that’s routinely cited as a pretext for stopping a driver which, in fact, has nothing to do with that person’s safety or compliance with the rules of the road whatsoever.
When I hear language like indicators that fall short of reasonable suspicion based on a multiplicity of factors that justify, on a reasonable basis, intruding into someone’s constitutional rights, I can’t help but think that we are walking directly into the same universe as we do in racial profiling cases in other contexts.
The Chair: That was a very comprehensive answer. Thank you, Ms. Gill.
Senator Boniface: Thank you to the witnesses for being here. This is an important discussion.
My question is for Mr. Nesbitt. I thank you for your comments. I think one of the challenges we have here is trying to determine how you balance. You spoke to that in the issues that you outlined. In Canfield particularly, they specifically said it may be something short of reasonable to suspect, so the government has come up with something based on that.
When I look at the current practices and the practices that would fall under this, I look at the search of luggage. In fact, there is no threshold for the search of luggage, correct? Then this one would fall somewhere short of the suspicion reasonableness which, besides mail, is also used for body searches.
When you look at those three thresholds in its current mandate, what do you consider when you look at the public safety, security balance of it? Because it is the border. As a sovereign state, we have the right, as a country, to figure out how we screen what comes in and out. It’s a safety issue. What types of things do you look at from the public safety perspective when you come up with the conclusion you do?
Mr. Nesbitt: I’m looking at the same thing, or at least I’m trying to look at the same things, that I think a court would look at in order to provide what I hope is the most insight for you guys.
In that respect, you’re looking at all the things on the privacy side that we’ve talked about. We’re also looking at it generally. We have numerous cases, including Supreme Court cases, that say you do have a reduced expectation of privacy at the border, and rightfully so. There’s a reason we want to be protective of what’s coming into the country. There’s a reason we all want to feel safe when we get on an airplane and travel with our loved ones to meet loved ones or for business. So we’re trying to, as you indicate, balance those sometimes competing interests. It’s not easy.
On the security side, what you’re going to be looking for is, is this minimally impairing? That is going to be one of the big constitutional questions. In other words, why do you need a new standard if another standard that’s better understood would suffice?
There I think the big concern, which may be implicit in a lot of the commentary you’ve gotten over the last couple of days, including today, is this insertion of the term “general.” It gets back to Senator Jaffer’s really good question, which is you’re going to have indicators on the security side that you might look to and which will be both specific and general. We know X is more likely to come from this country, but also we’re going to be looking at the individual who was travelling alone, younger, sweating, unable to answer questions, whatever the case might be. So you’re going to be combining those two.
The courts have been very clear. There has to be that combination of factors. There has to be something specific about the individual that makes you think we should probably take a closer look at this person. When you talk about the general concern at the border, then you get into all these general security concerns. I’m not even a border guard and I have a general concern. I’m a bit of a nervous traveller.
Senator Boniface: I only have a few minutes. Some of the information we’ve received recently — and this is flat data, so the difficulty is I don’t have the analysis that goes with it — since the decision has come down and the change of practice is required in Ontario and Alberta compared to the rest of the country, there’s a significant drop percentage-wise in the number of searches. Some would say that’s the threshold change. We don’t know what other factors, but let’s say it’s a factor. Does that cause you concern, given these cases particularly coming out of pornography, but there are issues of hate literature or other issues that the minister spoke about?
I’m trying to figure out how you balance this. I understand the individual right, but on the flip side, I worry that the public safety aspects and the uniqueness of the border are not giving the weight, because it’s easier to go to the old threshold because we’re not following Canfield specifically to say that there could be a threshold that is somewhat less.
Mr. Nesbitt: It’s a totally reasonable and good question. If you went around to the general public and searched everyone, you’d find a lot of stuff that might be criminal, and then if you stopped randomly searching everyone, you’d find less. Is that a concern? To me, that’s not asked in isolation with respect to that security; it’s asked in combination with the individuals: What is it that we’re stopping? How reasonable are we being in the searches? How do you balance those interests?
On the security side, unfortunately, we haven’t been provided with the data. As Ms. Gill mentioned, we don’t know whether there’s more child pornography or hate literature coming across the border than there is in the general public at large. What we do know is that this is not like when I was in law school, which is that something is coming across the border so as to be distributed here because it’s coming across in hard copies and being distributed in hard copies. That distribution network exists on the internet, in the ether, not coming across the border. In a way, I’m a little less concerned about that side of things if we’re talking about hate literature, for example. That’s getting across the border regardless of whether a phone was searched or not.
Senator Yussuff: Thank you, witnesses, for being here today and for the concerns you’re raising.
My fundamental question is on the question of general concern. Is this too broad for allowing CBSA officers to simply use that as a defence for every person they may stop unwarranted and justify their duties because they have this legal protection now? They don’t have to necessarily worry about whether they stop somebody unwarranted. The fact is, though, that general concern could cover everything. You may look suspicious, or you may not look suspicious, but I have a general concern about this person. I could just stop you without necessarily having any factual reasons. Anyone coming across the border, including me, could be subjected to a general concern maybe because of my skin colour or maybe my name. Maybe I’m twitching at that particular moment. Maybe I’m a little bit sweaty because I just got a message telling me something I didn’t want to hear, but a CBSA officer now has the opportunity to examine me because I look sweaty. From your analysis, is it reasonable to suggest that you think this might lead to abuses at the border? This is to both Mr. Nesbitt and Ms. Gill.
Ms. Gill: Senator, I wholeheartedly agree with you. I think your concerns are well founded.
The only thing I would add is that not only does this kind of broad-based standard open the door to group-based discrimination and the use of group-based characteristics as a pretext to stop and question someone and search their devices, but these are also powers that are very difficult to review after the fact. I’m raising that issue because I think there’s a reflex to say, “Well, people can file a complaint afterward if they don’t like the way they’ve been treated.” The reality is that where we have a combination of a highly discretionary, ambiguously defined power and the reality of implicit bias and racial prejudice, we will get abuse and we will discriminatory effects. An individual person trying to challenge the result of that process will find themselves in a very difficult situation because they’re essentially being asked to prove what was or wasn’t in the mind of an individual officer at a given point in time. We know that’s incredibly difficult. We know that innocent citizens are discouraged from filing those kinds of complaints, and quite frankly, the remedial frameworks are not in place to make that process any easier.
I think your understanding of the bill is exactly right.
Mr. Nesbitt: I concur. The reason the courts have liked the specificity element with respect to reasonable suspicion — that the general concern is also specific to the individual — is exactly to get at these implicit biases that Ms. Gill talked about and which you’re indicating as a concern. They’re not going to get a warrant like we would if you were a police officer. They’re just having to articulate if they have a concern. So it’s asking them to say, “Can you write down your logic and explain yourself?” In that process, hopefully, either the quality of that logic, implicit biases and so on can be reviewed or, at the time, the process of writing out why an officer is concerned about an individual, forcing them to think consciously about the reasons for the search, helps to overcome those sorts of biases with respect to race, skin colour, country of origin or anything else that might not be associated with an individual — in other words, which will be associated with something more random.
Senator Boehm: I’d like to thank our witnesses for being here.
I’ve asked a similar question to other witnesses. Any sort of border cooperation involves giving up a little bit of sovereignty. That’s just the nature of any bilateral agreement, and in this case, it is with the United States. The U.S. has eight points of pre-clearance service in Canada. We have been talking about setting up pilots in the U.S., I think, for about a decade, and nothing has happened.
My question goes in this direction: Since we agree that reasonable general concern is in the mind of the beholder, and the beholder could be a CBSA officer or a U.S. pre-clearance officer, are you at all concerned about levels of training? Implicit bias was mentioned earlier. One could argue that your implicit bias, if you’ve grown up in another country and trained in another country, might be a little different than perhaps here in Canada. I’d welcome your comments on this, starting with Ms. Gill, please.
Ms. Gill: Thank you.
One thing we need to be aware of is that when we talk about something like reasonable suspicion, there’s a framework in place and decades of jurisprudence that guide how officers think through whether what they’re doing is reasonable or not. When we invent a new standard, we have to train around that standard, we have to define it, it will be subject to constitutional scrutiny, and it will be litigated and interpreted over decades, potentially. So when we talk about training, it’s training with what? Training with these three words that we have? That’s my first reflex.
The other thing I would say is that when we talk about implicit bias, the evidence is not very good on the question of whether you can train out implicit bias. The border is a context where the situation is often rapidly evolving, where people are acting with low information in a high-stress context. That’s exactly the kind of scenario that brings out those kinds of implicit assumptions, stereotypes and prejudices that people may not even know they have.
In terms of training, I’m not incredibly optimistic that training alone will mitigate those kinds of issues.
Mr. Nesbitt: One area where training could work is that we know with reasonable suspicion or reasonable grounds to suspect — same thing — some of the things you might look for, specifically and generally. You could train on that, which would help create certainty for the border guards, which creates certainty for legal cases that come out of it and for the individuals. But it also might help address this in that it’s being determined not in the moment on the border under understandable stress, but it’s being determined, as Ms. Gill said, over years with respect to the types of factors that you really want to be thinking about. So we can train something like reasonable suspicion to say, “Here are some of the things that might make you suspect in this context a specific individual. Here’s how you would put them with more general factors to make you think” —
Senator Boehm: Thank you, but if I have just a few more seconds, I would like Mr. Short to comment on this too, please.
Mr. Short: I don’t have anything to add beyond what Lex Gill and Professor Nesbitt have said. I think Professor Nesbitt’s answers to the previous line of questioning from the senator stand here as well around implicit bias.
Senator Wells: Thank you to the witnesses.
In a previous committee meeting, I asked CBSA for a copy of the regulations being proposed, and I received that yesterday or the day before. I have one document here, which is Notice of Intent to Develop Examination of Documents Stored on Personal Digital Devices. It’s the regulations. My first question is for Professor Nesbitt. My next question is for Ms. Gill.
Professor Nesbitt, under required notes, it says they would detail the steps taken by the officer, and then it goes on to say these notes would show “the basis for examination (i.e., facts giving rise to officer concerns).” Would you see this as a definition of reasonable grounds to suspect or reasonable suspicion or reason to believe? If so, why would they go with a lower standard of reasonable general concern, which shows no facts giving rise to concerns, which is what they have detailed in their regulations?
Mr. Nesbitt: I don’t have a good answer for you, honestly. I’m not sure about that one. Again, the thing I’d get back to there is it’s asking for reasons, and because it’s a reasonable general concern, the reasons could be that country of origin X has more of X; therefore we stopped people who look like they came from or were on a plane from country X, whereas if you have the reasonable suspicion standard, you’re going to add into those details something specific about the individual that made you think we should stop this individual. That’s the only distinction I could see being made. Again, it almost reinforces why you would want the other standard. All it says is that we just want something a little more detailed and more specific, whereas with this it sounds like general concerns might suffice.
Senator Wells: Does it seem to you they’re not targeting the person but they’re targeting the country from where that person came in their assessment?
Mr. Nesbitt: There’s nothing there that would indicate that isn’t the case.
Senator Wells: Thank you for that.
Ms. Gill, in the same document, the Notice of Intent to Develop Examination of Documents Stored on Personal Digital Devices, it says:
Making some of these policy controls legally binding would give them the force of law, reinforce privacy protections, and increase transparency and public confidence in the CBSA’s actions.
What’s your thought on that, in particular to the reinforced privacy protections?
Ms. Gill: I don’t have the full document that you do in front of me, so I can’t evaluate it as a whole. Of course, I would say that not only does enacting these kinds of rules in law or regulation reinforce privacy protections potentially, but it’s also constitutionally required. The courts have been quite clear that leaving these kinds of operational considerations purely to CBSA policy is not good enough and doesn’t have the force of law, so it is essential that these kinds of safeguards and protections are enacted directly into statute and to some degree into regulation. I echo my colleagues in civil society who spoke to you last week who said that the framework should be set out in law, democratically approved, tested, debated and not subject to the kind of discretionary exercise that regulations-making necessarily is.
Senator Wells: Thank you.
One final question: What’s the big issue with the courts making a decision versus Parliament making a decision?
Ms. Gill: I think that both the courts and Parliament are guardians of individuals’ constitutional rights. The distinction I was making in my previous question is the distinction between lawmaking through Parliament, through a democratic vote, and regulations-making, which is a discretionary exercise that normally takes place at the order-in-council level, which is necessarily subject to less scrutiny.
Senator Dasko: Thank you for being here.
Mr. Nesbitt, you’ve talked about the concerns you have with the word “general.” If we were to take that phrase, “reasonable general concern,” and drop the word “general” from it to read “reasonable concerns,” would that make it a better phrase, in your opinion?
Mr. Nesbitt: I think it would. I think it would do a lot to provide certainty in terms of constitutional challenge. But then you are left with the question of what’s the difference between reasonable concern and reasonable suspicion? Arguably, I’d say “concern” sounds higher in some ways. I’m just not sure. If you’re there, just go with what we know and is working and is working in the context of mail and some searches of individuals at the border and all this sort of stuff.
Senator Dasko: Thank you.
Ms. Gill, do you have any thoughts about that? Would that be a better phrase, in your point of view?
Ms. Gill: I agree with Professor Nesbitt that there’s no reason not to adopt the legal standard that already exists rather than open the door to a set of additional constitutional challenges about what the difference between a concern and a suspicion and a belief might be. But that is maybe just because I spend too much time with lawyers.
Senator Dasko: An issue came up at one of our previous committee meetings, and it’s the issue of random searches. I’d like to probe that a little bit. In my understanding, there seem to be two types of searches: those that are prompted by suspicions or concerns, or whatever the concept is, and those that are described as random. Do you know anything about the random searches and how they are actually carried out? We hear about them. Are they carried out in a routinized way, or are they carried out in a haphazard way that would make them open to the kinds of issues we’ve heard from Senator Jaffer and others? If you know anything about random searches, that’s the kind of information I’m looking for. This is to any of the panellists.
Ms. Gill: I don’t have inside knowledge about CBSA operational practice on this issue, but I think there’s a very important distinction to make between a random search or detention in the sense of every three people or every single person who happens to be at this place and point in time, versus random in the sense that the power is exercised in an arbitrary manner, which is a standardless search or detention. That, I think is, quite clear. There’s just no constitutional justification or rationale for that at this point.
Senator Dasko: Right.
Mr. Nesbitt, do you know anything about random searches?
Mr. Nesbitt: Not in the context of the border, to be honest with you. I think, as Ms. Gill said, you’re talking about either every third person to make it truly random, or you’re talking about our luggage, in which case I have no idea how they choose which luggage.
Senator Dasko: Thank you.
The Chair: I’m afraid to say we’ve run out of time. I apologize to Senator Jaffer and Senator Dagenais that we can’t get you on again. We are at the end of the panel.
I want to thank Ms. Gill, Mr. Nesbitt and Mr. Short for sharing both your knowledge and your experience, which is considerable, as we examine this important piece of legislation. You’ve been very impressive witnesses. On behalf of my fellow committee colleagues, I thank you for joining us.
Senators, moving to our next panel, I’d like to welcome, from the Canadian Centre for Child Protection, Monique St. Germain, general counsel; and Benjamin Goold, Professor at the Peter A. Allard School of Law at the University of British Columbia. Thank you both for joining us today. We now invite you to provide your opening remarks, to be followed by questions from our members. We might need to ask you to adjust your microphones at some point, so please understand if I have to interrupt. Ms. St. Germain, you may begin when you’re ready.
Monique St. Germain, General Counsel, Canadian Centre for Child Protection: Mr. Chairperson and distinguished members of the committee, thank you for the opportunity to present on Bill S-7.
My name is Monique St. Germain, and I am general counsel for the Canadian Centre for Child Protection, which is a national charity dedicated to the personal safety of all children that has been operating for over 37 years. Our agency supports the objectives of Bill S-7, particularly as it relates to the issue of child sexual abuse material, which is referred to as “child pornography” in the Criminal Code and the customs tariff.
Our agency operates Cybertip.ca, Canada’s national tip line, to report the online sexual abuse and exploitation of children. The tip line is a central part of the Government of Canada’s national strategy for the protection of children from sexual exploitation on the internet. Cybertip acts as the front door for Canadians who have concerns of this nature, and we have never been busier than we are right now.
Our role is to triage reports to the appropriate police and child welfare agencies where necessary, as well as assist Canadian families and children directly by providing education, awareness and support services.
Since 2002, we have processed over 370,000 reports from the public. The vast majority pertains to child sexual abuse material, and there is an increasing number of reports in other categories such as online luring, sextortion and sexual exploitation of children in the context of travel and tourism.
In 2016, we conducted an international survey, and 150 survivors from around the world who had their child sexual abuse recorded and in most instances uploaded and traded online told us these crimes have a significant lifelong impact on them and their safety. The lack of control that they have over possession and sharing of the images and their widespread accessibility can be one of the most difficult aspects of this abuse to overcome.
Deeply concerned about the victimization of children and determined to do what we could to reduce the online propagation of child sexual abuse material online, we created Project Arachnid. This innovative platform, launched in 2017, finds where child sexual abuse material is being made publicly available online, and it issues takedown notices to the host. So far, over 6 million images and videos of child sexual exploitation have been removed from the internet following a notice from Project Arachnid. These images and videos were detected across more than 1,000 electronic service providers, spanning nearly 100 countries. The problem is immense.
The ready availability of this material online is clearly a factor driving the increase in the number of police-reported incidents involving these crimes. StatCan reports a 488% increase in such reports from 2010 to 2020 — 488%. Children are the targets, and digital devices are the weapons of choice. StatCan also reports that 85% of police-reported child pornography incidents were not cleared. This means no accused person was identified. This is attributed to the challenge of investigating online crimes.
In the study of this bill so far, there is a lot of focus on the privacy interests of individual travellers. What has not yet been discussed is the safety, privacy and security interests of the children who are depicted in child sexual abuse material. We live in a world where this horrific material can be easily stored and hidden on a device you keep in your pocket and share to a worldwide audience via websites, encrypted apps and the dark web. Like-minded offenders can connect with other like-minded offenders using a multitude of programs that make it easy to remain anonymous and evade detection. Devices can and are used to connect an offender with a child in any part of the world. The reality is when child sexual abuse material is moved across borders on devices, the children in the images have no power to stop it. They must trust those who protect our borders to protect their privacy and their dignity.
We acknowledge the concerns with the novel threshold used in the bill. We also know the border context is unique. Interactions with travellers are very brief. Border agents must make their assessments in an instant, relying heavily on their training and being highly attuned to behavioural and other indicators. Even if a search is triggered, it won’t be anything as extensive as a forensic exam in a criminal context. It can’t be. Not at the border.
We believe clear direction in the regulations as to how the search is to be conducted and reported, coupled with the establishment of a threshold that recognizes the uniqueness of the border and fulsome training to curb abuses, is a reasonable approach. From a child protection and rights perspective, we must recognize that the ways in which children are exploited is ever-evolving, and our borders must remain responsive to that reality.
Thank you.
The Chair: Thank you very much, Ms. St. Germain.
We’ll now move to Mr. Benjamin Goold. Proceed when you are ready, and we welcome you to the committee.
Benjamin Goold, Professor, Peter A. Allard School of Law, University of British Columbia, as an individual: My thanks to the chair and members of the committee for the invitation to appear before you today and for being given the opportunity to offer some of my thoughts on the provisions of Bill S-7.
Before I start my presentation, I want to begin by noting that I’m located in Vancouver, and I acknowledge that I’m coming to you from the traditional ancestral and unceded territories of the Musqueam, Squamish and Tsleil-Waututh peoples.
In terms of my research over the past 20 years, I’ve written on various issues related to policing, surveillance, privacy and security. Most recently, I’ve been involved in a five-year social sciences and humanities Research Council-funded project, examining how legislative and policy changes introduced as a result of the 2011 Beyond the Border agreement have affected the governance of the Canada-U.S. border and their impacts on rights and civil liberties of border crossers.
With regard to the substantive provisions of Bill S-7, specifically the proposed amendments to section 99 of the Customs Act, I’d like to begin by stating that I fully support the recommendations made in 2017 in Report 10 of the House of Commons Standing Committee on Access to Information, Privacy and Ethics with respect to the legal standard required for searching electronic devices at the border. To my mind, requiring reasonable grounds to suspect before a search is undertaken strikes an appropriate balance between the competing interests identified in the report and subsequently by the courts in R v. Canfield and R v.Townsend.
I would also like to note that the standard was endorsed by the Office of the Privacy Commissioner of Canada in its 2019 report Crossing the line? To my mind, both of those reports provide an excellent analysis of the relevant legal issues and present clear and well-supported justifications for the recommendations on searches at the border. Importantly, in its response to the CBSA’s rejections of recommendations 7, 8 and 9 of its report, the Office of the Privacy Commissioner provided a convincing rebuttal, in my mind, of the agency’s objections.
Given that representatives of the Office of the Privacy Commissioner have already appeared before this committee, I don’t think I have anything to add on the question of the legal standard other than to say, perhaps, that I struggle to understand what is meant by reasonable general concern and fail to see how this proposed standard could provide an adequate basis for individualized searches at the borders.
On these issues, I would also encourage the committee to read published work by Professor Robert Currie at Dalhousie University and Professor Robert Diab at Thompson Rivers University. Both have written important and insightful articles on the constitutionality of searches at the Canadian border.
For my part, however, I want to spend the rest of my opening statement drawing attention to what I regard as a problem when it comes to balancing individual rights, such as the right to privacy, with the legitimate pursuit of goals, such as public safety, crime prevention and security at the border. In my experience, agencies like the CBSA are rarely called upon to demonstrate that searches conducted at the border are actually achieving their intended purpose. As a result, travellers are effectively being asked to accept a significant infringement of their rights without clear evidence that such infringements, either in the specific case or more generally, are necessary or proportionate.
In the government’s March 31, 2022, news release announcing Bill S-7, it stated that examinations of personal digital devices are:
… both extremely rare – affecting a mere 0.009 percent of all travellers entering Canada in 2021 – and highly effective, uncovering a contravention in 27 percent of all cases.
Leaving aside the question of whether such searches should be thought of as extremely rare, it is important to note that the data on resultant searches — that is, effective searches — provided on the CBSA website are aggregate in nature; that is, the category includes any searches that uncovered evidence of money laundering, discovery of prohibited goods that pose a threat to public safety, and undervalued or undeclared goods. Based on this data alone, it’s impossible to determine how many searches uncovered security threats or serious criminal behaviour as opposed to minor customs infractions.
Looking at the data for the period November 2017 to December 2021, the CBSA reported that 33,373 travellers had digital devices examined, and those examinations led to 12,457 resultant searches. In order to determine whether those 33,373 searches were justified, we need to know more about the outcome of those searches. If the vast majority of the 12,454 resultant searches uncovered evidence of only minor customs violations and few, if any, of them could be said to have revealed significant threats to public safety or national security, then it becomes harder, in my mind, to justify the routine infringement of travellers’ rights.
Going further, it’s also unclear whether a contravention as defined by the CBSA only includes instances where the search resulted in some sort of legal response or sanction. No data is provided, for example, on how many of those resultant searches were challenged and later found to have been carried out in contravention of the Customs Act or, for that matter, CBSA’s own guidelines.
In my view, by referring to this aggregate data as evidence that existing practices are highly effective and rejecting the well-reasoned recommendations of the House of Commons standing committee and the Office of the Privacy Commissioner, the government is, in effect, asking travellers to trust that current CBSA practices are working and do not represent an unjustified threat to individual rights, and that, as such, we should accept a low threshold when it comes to the legal standard required for searching electronic devices at the Canadian border.
But this approach, in my view, runs counter to the very basic idea that lies behind rights; namely, that it’s not enough for the state to simply reassure the rights holders — in this case, anyone who crosses the Canadian border — that they are striking an appropriate balance between those rights and questions of safety and security. Instead, the onus is on the government — the state — to demonstrate with evidence that the infringement is necessary and proportionate. To propose a new and, arguably, very low threshold for searching electronic devices at the border is worrying enough, but to do so with reference to aggregate and opaque data on the effectiveness of the existing practices is particularly problematic. In blunt terms, if we are to take individual rights, and privacy in particular, seriously, then we must demand more of the government and those agencies responsible for managing and policing the border.
Thank you. I look forward to answering any questions from the committee.
The Chair: Thank you to both of our witnesses. Those presentations were very helpful.
We’ll now proceed to questions. We’ve got four minutes for questions and answers, and I’d ask my senator colleagues to direct their question to the witness that you intend it to. As usual, the first question goes to our deputy chair.
[Translation]
Senator Dagenais: My first question is for Professor Goold, and it has to do with preclearance operations by U.S. customs officials working on Canadian soil. Should we be satisfied with Minister Mendicino’s assertions that the Americans are willing to act in accordance with our rules, or should we be cautious?
How will Canada be able to ensure that the rights of outbound travellers are respected?
[English]
Mr. Goold: Thank you very much for the question.
I have to say I don’t find myself particularly reassured by reassurances. It’s difficult to imagine a situation where a Canadian citizen, permanent resident or anyone crossing the Canadian border would have a reasonable prospect of challenging a decision of a U.S. customs agent operating through pre-clearance. It’s difficult to see by what mechanisms they could challenge the nature of a search and the likelihood that those challenges would be taken seriously on the U.S. side.
I have to say — and this is obviously my own opinion — I have real difficulties with the operation of pre-clearance on Canadian territory. I think it’s an exceptional incursion into Canadian sovereignty and one that has not, I should note, been reciprocated on the U.S. side. There’s no possibility of pre-clearance. Canadian officers don’t, as I understand, operate on U.S. soil, performing the same function.
I am concerned, and I am not especially reassured by the government’s statements that U.S. officers will operate in the standards that we would hope to be consistent and compliant with, say, Charter protections.
[Translation]
Senator Dagenais: Border controls on digital devices must certainly be more targeted at those who trade in and use child pornography. The current legislation is at risk of another legal challenge that will neutralize the intended effect for years to come, simply because the law is poorly written and people are stubbornly refusing to change it for reasons that are still unknown to us.
In the interest of further protecting our children and acting swiftly to do that, should we reject the bill or assess opportunities to improve it right now?
[English]
Ms. St. Germain: I am not going to pretend to be an expert on border thresholds. The role that we play in Canada is really in trying to combat the scourge of child sexual abuse material on the internet. We recognize that the border is one of those places where individuals who have a sexual interest in children can be identified.
In terms of the actual wording of the bill, I know that there’s been a lot of witnesses who have come before the committee and made a number of different suggestions. What we think, from the study that we’ve done so far, is that the reasonable suspicion standard is something that is known and understood in criminal law. We understand that it’s also been used in the border context.
A concern that we have is that we actually don’t think the child sexual abuse material ought to be treated as a good. Perhaps there is actually a need for something different to be done for this type of material at the border. However, we’re working within the confines of the legislation as it exists today.
[Translation]
Senator Boisvenu: Thank you to our witnesses, who continue to enlighten us on the strengths and failings of this bill.
My question is for Ms. St. Germain. I agree with you when you say that all the pedophile rings dismantled by the police in recent years use digital devices, be it a tablet, computer or cell phone, to exchange child pornography photographs. Have you made any recommendations to the government to improve the tools that border officers are given to prevent this material from entering Canada through digital devices like cell phones and tablets?
[English]
Ms. St. Germain: No, we have not made any specific recommendations to Border Services.
[Translation]
Senator Boisvenu: You haven’t made any recommendations to the government to improve this bill either. Haven’t you discussed this issue with the government?
[English]
Ms. St. Germain: No, we have not.
[Translation]
Senator Boisvenu: My second question is for Professor Goold. As we know, subsection 99.01 is now inoperative in Alberta and Ontario. According to the border officers’ union, 60% fewer digital device examinations are being undertaken.
I will come back to my colleague Senator Dagenais’ question. If this legislation is challenged and some provisions are declared inoperative for years due to legal issues, wouldn’t it be better for us to improve the bill today to avoid any challenges and also to avoid creating a legal vacuum that would give free rein to those who trade in photographs of children?
[English]
Mr. Goold: Thank you for the question. I’m conscious that there were some really excellent comments on this exact issue in the previous session from the other witnesses, and I would struggle to improve on them.
I do think that it’s important to have a clear standard as soon as possible. I think uncertainty around these questions is of little good for anyone. This really is an opportunity, having this bill in front of you, to deal with an issue that is long-standing. There is a long jurisprudence around section 8 in Canada. There’s been a lot of academic and civil society interest in the whole question of what constitutes a legitimate search at the border. This is really an opportunity to adopt a standard that the courts will hopefully recognize as being constitutionally valid. I would encourage this committee to take seriously the question of this is an opportunity to really do that. I think as it’s currently presented, Bill S-7 does not do that, I think as you’ve heard from other witnesses. The general standard that’s being proposed is problematic and most likely will end up back in front of the courts, subject to a significant constitutional challenge.
Senator Jaffer: I want to thank both witnesses. I really appreciated your presentations.
My question is to Professor Goold. Welcome. We are both from the same province. It makes me proud when you appear, so thank you.
I understand that you have spent some time in the U.K. as an advisor in matters of data collection and surveillance. How does that inform your opinion on this reasonable general concern search? Does the U.K. have anything like that? What does the United Kingdom have?
Mr. Goold: Thank you very much for the question. Thank you for the shout-out to British Columbia. I appreciate that. Thank you.
It’s an interesting question. I have to confess I’ve been in Canada now for 12 years, and I haven’t followed developments in the United Kingdom as closely. Most of my time has been spent learning about the Canadian situation. I would say I don’t recognize the general concern standard that’s being proposed here. My understanding is that it’s not one that is recognized in the United Kingdom, so I very much doubt that there is an analogous sort of position there.
I would say my experience of working in the U.K., which was mostly directed at questions of police surveillance and privacy, really brought home to me the point that it’s rarely the case that agencies like CBSA or Customs and Border Protection in the United States, or their equivalents in the United Kingdom and elsewhere, are called upon to actually demonstrate that the sorts of searches that they are doing at the border are actually achieving the purposes that they are designed for. I was really struck when I was preparing for this committee presentation, and some work I’ve done recently, that CBSA just don’t provide information on that. When you look at the data that’s been provided which, let’s be frank, was provided because of criticism of the CBSA that they were providing nothing in relation to these sorts of searches for a very long time, it just doesn’t allow us to know what’s going on.
I’m quite concerned that bringing in a general standard against the background of not knowing really what’s being done in the context of these searches and whether they are actually achieving their stated goals is really just asking this committee and the public at large to really take it on faith that things will be done in the proper way. I’m troubled by that.
I would say, to be fair to the CBSA, most agencies I’ve seen at the border in my career are very reluctant to provide this sort of data and very reluctant to show evidence of effectiveness when it comes to border procedures, be it around searches or security measures in general.
Senator Jaffer: Do I have time for another question, chair?
The Chair: You have one minute, yes.
Senator Jaffer: So you’ll have to give me a quick answer, Professor Goold.
Do you believe that the reasonable general concern threshold would meet the requirements of section 8 of the Charter in terms of the privacy rights?
Mr. Goold: No, I do not.
Senator Jaffer: Thank you, Professor Goold. Thank you, Ms. St. Germain.
Senator Boniface: Thank you both for being here. I think it’s such an important contribution to our study.
Ms. St. Germain, I’ll ask you a question first, then I have one for Mr. Goold as well. Can you tell me, in the time that your agency has been set up and the work that you’re doing, how you see the amount of child pornography? Has it increased? I’m assuming it’s increased given what you read about it. How significant of an issue is it for us as Canadians, particularly obviously online?
Ms. St. Germain: Right. Yes, there has absolutely been an increase in the amount of child sexual abuse material that is circulating online. Our organization has evolved in the way that we operate and the way that we process reports considerably as a result, and Project Arachnid is a part of that.
The internet is really obviously the greatest threat to children in terms of the distribution of this material. However, individuals who do use this material do store it on their devices as well, particularly if it’s newish material or material of a child who they are abusing themselves, so there is definitely a huge concern overall with this type of material, and it is a danger to Canadian society, most particularly its children.
Senator Boniface: Thank you very much. I’d love to have a much longer discussion on this issue.
Mr. Goold. Thank you so much for being here. I’ll note that, in our research, the U.K. has no threshold for searches of personal devices.
When I look at Canfield, and as I reread it many times, it seems to me the Canfield decision left the government an opportunity to create something less than reasonable suspicion. I can’t remember the exact wording, but the court opened the window to say it’s within Parliament’s right to do that. So that I get your point clear, you would be saying that you think the threshold they chose is wrong, but you’re not arguing that they can’t choose a new threshold?
Mr. Goold: I’m sorry; I’m not entirely sure that I understand the question. If I’m understanding you correctly, I think it’s right to say the government can choose to include a different, new, novel threshold in the legislation. I think that’s entirely open to the government to do that and open to Parliament to approve it.
On the question of whether that will pass constitutional muster if it gets appealed or becomes the subject of a challenge and winds its way through the courts — and most likely to the Supreme Court, in my view — the general standard being proposed won’t do that. I think if it ends up in the Supreme Court, based on everything we’ve seen around the jurisprudence on section 7, it would fail, because I don’t think it’s sufficiently onerous in terms of protecting the rights of individuals.
Senator Boniface: I’m sure there are other people with other opinions, but I wanted to clarify because I wasn’t sure which you were saying.
You may be aware that a bill has been tabled in the house, Bill C-20, on oversight for CBSA. On some of the issues that you raise, rightly, do you see an opportunity for new oversight for CBSA to address some of those issues — statistics collection, those sorts of things?
Mr. Goold: I’m encouraged to see that there’s finally some movement on the question of independent oversight for CBSA, because this has obviously been up for discussion for a long time. If I have a few moments, I might say a couple of things around this.
I think it’s in everyone’s interest that the operation of CBSA at the border is driven by evidence, and evidence of effectiveness. One of the things that has struck me in my years of looking at surveillance and security is that often we don’t know whether things are actually working. This has particularly been the case in the last 20 years, particularly in the wake of the events of September 11, 2001. We’ve seen a real increase in a raft of security measures around the world, at borders and elsewhere, but there’s very little in the way of independent, empirical review of whether these things actually work.
Independent of the rights question, the question of whether the infringement can be justified, there’s also the question of whether it is a good use of resources. If we’re concerned about improving our security and dealing with the serious problem of the harms associated with things like child pornography, one of the most important questions is: Does this thing that they are doing actually work?
I hope that independent oversight of the CBSA will get us closer towards actually having that sort of independent oversight or independent assessment, because it troubles me at the moment. I can’t determine, looking at it from the outside, whether the practices of searching at the border are actually making me safer or, for that matter, preventing damaging material from entering this country. We just don’t know.
Senator Boniface: I gather we will save that for the next discussion on Bill C-20. Thank you.
Senator Wells: Thank you, witnesses.
This question is for Ms. St. Germain, but I’d also like to hear from Mr. Goold on this. The bill proposes to decrease the maximum fine for interfering with a CBSA officer — and that could be attempting to hide or not cooperating or some other physical intervention — for interfering with a CBSA officer conducting such a search, from $50,000 down to $10,000 for a summary conviction, and from $500,000 down to $50,000 for an indictable offence. Ms. St. Germain, what is your opinion of the significant weakening of the penalty in this legislation?
Ms. St. Germain: I don’t know that we have a specific position on that issue. I’m not sure why the fine would have been reduced. I would imagine there must be some reason or rationale behind it, but there isn’t any explanation that we’ve seen for it. It seems a bit concerning, but it might be because they made it into a hybrid offence.
Senator Wells: Thank you. Mr. Goold?
Mr. Goold: I’m afraid I have no insight into what the rationale is behind reducing the fines. I’m sorry; I can’t assist with that. I can say, just hearing those numbers, that the existing fines seem quite high. But, again, I don’t have any particular extra information or insight into why the fines are being reduced, or the proposals to reduce them.
Senator Wells: Thanks.
I have another question for Ms. St. Germain. Given the possibility of the legal limbo — because we’ve had testimony from legal scholars that suggests a strong likelihood that this legislation, as written, is highly likely to be Charter challenged and therefore end up in legal limbo or court challenges for years — how damaging would that be to the cause you’re representing, namely, the protection of child sexual abuse, primarily on the internet?
Ms. St. Germain: First and foremost, I think that no matter what standard is chosen, there will be litigation. There is no question about that. What the litigation will be and what it will look like will largely depend on what kind of insight and other things that are wrapped around the meaning of reasonable general concern. This is a new standard, but it’s a novel standard for a novel context. When you read Canfield, it’s pretty clear that the court understood that the border is a novel context.
The more information we have about what is happening at the border and the different criteria that are used to select passengers for secondary screening, et cetera — recognizing that we can’t know everything, for a variety of reasons — I think will help to make that litigation go forward in a smooth and effective manner. There will always be challenges. This issue is subject to a lot of challenges. There’s a lot of litigation on the issue of child sexual abuse material.
Senator Wells: Thanks very much.
Senator Yussuff: Thank you, witnesses, for being here today, and thank you for your insight.
Ms. St. Germain, thank you for your efforts and for the work your organization is doing on behalf of children in this country but also around the world. I know it’s not an easy task, and I’m sure all of us would applaud you for that.
The importance of this legislation is to aid in the efforts you are making but, equally, to protect our borders. Would we not want certainty with regard to the legislation proposed by the government? The myriad of witnesses who have come before us raised serious concerns about whether this legislation will survive at the end of the day, given the uncertainty about its infringement on the rights of Canadians and their privacy. Would it not be better to use a definition that is well known and that has been litigated to a large extent, such as reasonable grounds to suspect? Would it trouble you if that were the place we ended up as a committee with regard to our recommendation to aid and abet the efforts you are making to try to ensure this takes place at the end of the day?
Ms. St. Germain: From our perspective, reasonable grounds to suspect will likely be able to catch many individuals who are potentially doing this.
The concern we have — and we have to rely on the legislators who are drafting this bill — is in terms of the information they have and that we don’t. The border context is not a specific area of expertise for our organization in terms of the issue of importation of child sexual abuse material on a device. Many border issues occur that surround children that don’t necessarily have to do particularly with goods. It could be an individual who is abducting a child or an individual who is travelling with a child unknown to them or travelling to meet a child. There are many issues that surround this. I’m just not sure whether the rising of reasonable grounds of suspicion in this context is going to enable border control officers to do what they need to do to protect children at the border. I just don’t have enough information on that.
Senator Yussuff: Professor Goold, thank you again for being here.
How would you assist us in regard to what we have to do? The court has certainly said to Parliament that we have some latitude in regard to the standard we need to draft, and Parliament has done so. We as a committee are hearing from witnesses in regard to what their thoughts are. Is it also not reasonable in regard to the standard that the government has drafted that it may not be as litigated as you and others have suggested? Is it also reasonable to suggest that this could actually stand the scrutiny of the Supreme Court?
Mr. Goold: I would say a couple of things in response to that.
One is that I think you’ve heard from a range of witnesses, as has already been noted, who are of the view that it won’t withstand scrutiny if it does make its way through to the courts. Obviously, that could be incorrect. It could find its way to an appellate court or the Supreme Court and the court could decide that the standard being proposed by the government is sufficient, but I think the majority of legal scholars who have spoken to this don’t share that view.
The question that really is in my mind is why the government has proposed this novel standard. Having reviewed this as best I can, I’m somewhat baffled as to why they have done that and what the reasoning is, particularly given that you have quite strong recommendations, as already noted, from the House of Commons Standing Committee and the Office of the Privacy Commissioner for the reason to suspect standard. I just don’t understand the rationale behind the government’s proposed novel standard. Perhaps part of the problem is that we don’t really have a full explanation as to why they have gone that route.
I do think it’s important to remember that legislation can be amended. If we adopt the standards being recommended by the witnesses here and that we raise the standard that’s proposed in the bill to one reason to suspect, and we find after five years that the number of searches being conducted at the border has dropped dramatically, that CBSA expressed concerns about their capacity to deliver their mandate at the border, then there’s also an opportunity for Parliament to revisit this. I think at that point it would be beholden on the CBSA and others to produce evidence to show that the standard is not working.
Again, as I keep coming back to — and I know I’m a bit of a broken record — it’s very difficult to make these sorts of decisions in the absence of evidence around effectiveness. This is why I think to some extent that for those of us who are on the side of the higher standard, it is because we have to be thoughtful about the rights that are engaged by these searches.
Of course, Parliament can come back. If you amend or if you change the wording of Bill S-7 to the standard that’s being proposed by many of the witnesses and it turns out that CBSA can demonstrate that this is really not working and the general standard might be more appropriate, it’s a matter for Parliament to reconsider.
Senator Yussuff: There is obviously a lot of missing guidance in regard to CBSA officers conducting their efforts at the border. The minister did assure us that they are drafting regulation that would provide guidance to CBSA officers. Does it worry you that we don’t know what those regulations might be at this point in time, given, of course, that other witnesses have raised very specific issues in regard to what could be in the regulations? We don’t know what the regulation may contain at this time. Does it worry you right now that we don’t have an understanding what the regulations may look like given that the government haven’t yet revealed any sense of that at this point?
Mr. Goold: It worries me, but it also speaks to what I consider to be a really fundamental problem in the way this conversation is being constructed. By not producing those guidelines in advance and not providing that information so that we can know it before Parliament needs to make a decision about this legislation, what is effectively happening is the government is saying we have to trust them that we will do this appropriately. When we are talking about individual rights, that’s really problematic. The whole point of rights is to protect the individual from excessive use of power by the state, so the argument that you should trust that we will not abuse that power is really problematic in these contexts. I do think it’s very worrisome, and I don’t see why those guidelines and additional regulations could not be produced in advance of a decision being made about this bill.
Senator Jaffer: We have sort of been provided with regulations — well, not really — and one of the things that it says is that the proposed regulations would enshrine key elements of current policy requirements on the conduct of exams into law, working together with the legislative threshold to establish limits to device examinations. These limits include the requirement to take detailed notes on every PDD examination.
I don’t know if you had an opportunity to hear the Privacy Commissioner, but he was very unhappy with the note taking that CBSA was providing. What are your thoughts on saying that there will be detailed note taking when the Privacy Commissioner has already said it’s been inadequate?
Mr. Goold: I share the concerns of the Privacy Commissioner. The Privacy Commissioner, if I recall correctly, in 2017 released a report of a complaint where they demonstrated that the report given had been inadequate and in some cases absent. Again, to return to my theme, it’s a case of saying you have to trust that we’re going to do this properly when, in fact, there’s evidence to suggest that it’s not being done properly. I’m concerned, and I share the worries of the Privacy Commissioner around that. I do think there’s a question about whether that note taking will happen in the way that it should. There’s also the question that we’re yet to know what the independent oversight will look like and whether we can be sure that there will be appropriate audits and oversight to guarantee that those notes are being kept in a way that’s appropriate and, to be frank, provide to people who have concerns about their rights an opportunity to challenge those decisions and potentially appeal them.
Senator Jaffer: We haven’t seen the bill on independent oversight, and it’s post, so after all the damage has been done. How many people have the ability to go for that? It’s really, “Trust us, we will have independent oversight,” which we have been hearing for years. Even now we are being told that there will be a bill soon. Thank you, both of you.
[Translation]
Senator Dagenais: My question is for Professor Goold. We’ve heard a lot about the training provided to border services officers to enable them to act. Their boss, whom we heard from last week, seemed to say that it wouldn’t be a lot of extra work for them. How do you see the training that should be provided to officers who facilitate border crossings? What oversight or supervision should be put in place?
[English]
Mr. Goold: Thank you for the question. If I recall correctly, a witness in the previous session also spoke to this question.
Unfortunately, I know very little about the training that’s undertaken in the CBSA and the extent to which they follow up on their training to see whether it’s actually being implemented in practice and whether it’s being effective. It’s very difficult to comment. I think more transparency around the training that the CBSA officers receive and more independent oversight and review of that training would only be for the good. That’s something the CBSA should hopefully welcome. Training for law enforcement in any context is enormously important. It’s also the case that the agencies that have engaged in that training need to have independent oversight and independent review to ensure their training is best practice. It’s difficult to comment. It’s very hard to know what training is happening in the CBSA because, for the most part, it’s not publicly disclosed, and information about it is very difficult to obtain.
The Chair: I want to thank all of our witnesses today, but in this moment our two witnesses in front of us, Mr. Goold and Ms. St. Germain. It is the final hearing for us with witnesses in front of us, and I want to thank you, in particular, Ms. St. Germain and the Canadian Centre for Child Protection, for reminding us, as you did in your opening comment, that this is not solely a discussion about civil liberties and privacy rights. It occurs in the context of the regulation of known harms, and some of those harms are very serious. I’ll balance that by saying, as Mr. Goold and other witnesses have pointed out, that at the same time, whatever regime is in place has to be practical and defensible. Thank you for joining us.
Our next meeting will take place on Monday, June 13, at 2 p.m., when we will proceed to a clause-by-clause consideration of the bill. I remind members who wish to propose amendments that they are encouraged to consult the office of the Senate’s Law Clerk to ensure any amendments are drafted in the proper format and in both official languages. With that, I thank my fellow committee members and our witnesses and declare the meeting to be adjourned.
(The committee adjourned.)