THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
EVIDENCE
OTTAWA, Monday, June 13, 2022
The Standing Senate Committee on National Security and Defence met with videoconference this day at 2 p.m. [ET] for clause-by-clause consideration of 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, everyone, and welcome to this meeting of the Standing Senate Committee on National Security and Defence. I’m Tony Dean, senator representing Ontario and chair of the committee. I’m joined by my fellow committee members, some of whom are in the room and others joining online. I’d ask those in the room to please introduce themselves, starting with Senator Jaffer.
Senator Jaffer: Senator Jaffer from British Columbia.
Senator Gold: Senator Marc Gold from Quebec.
Senator Boniface: Senator Gwen Boniface from Ontario.
Senator Yussuff: Senator Yussuff from Ontario.
Senator Boisvenu: Senator Boisvenu, Quebec.
Senator Dalphond: Senator Pierre Dalphond, Quebec.
Senator Dasko: Donna Dasko from Ontario.
Senator Richards: David Richards from New Brunswick.
The Chair: Thank you very much. Joining us online are Senator Dawn Anderson, representing the Northwest Territories; Senator Jean-Guy Dagenais, deputy chair of the committee, representing Quebec; Senator David Wells, representing Newfoundland Labrador; and Senator Marty Deacon, representing Ontario.
Today, colleagues, we proceed to clause-by-clause consideration of act Bill S-7, An Act to amend the Customs Act and Preclearance Act, 2016. Before we do so, I’d like to remind senators of a number of points regarding process.
As chair, I’ll call each clause successively in the order they appear in the bill. I will remind senators that when more than one amendment is proposed to be moved in a clause, amendments should be proposed in the order of the lines of a clause. If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that we all have the same understanding of where we are.
If a senator is opposed to an entire clause, I would remind you that in committee, the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill.
I would also remind senators that some amendments that are moved may have consequential effects on other parts of the bill. Should this be the case, it would be useful if a senator moving an amendment identify to the committee the other clauses in this bill where the amendment could have an effect. Otherwise, it will be difficult for members of the committee to remain consistent in their decision making.
If committee members have any questions about the process or about the propriety of anything occurring, you can certainly raise a point of order. As chair, I will listen to argument, decide when there’s been sufficient discussion of a matter or order and make a ruling.
Senator Richards: If it’s a clause, can I say “on division?”
The Chair: Yes, that’s correct.
If committee members have any questions about the process or the propriety of anything, they can certainly raise a point of order and I will make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I’ll do my best to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will be dependent on your cooperation and ask you all to consider other senators by keeping your remarks as concise as possible.
Finally, I wish to remind senators that if there is ever any uncertainty as to the results of a voice vote or show of hands, the most effective route is to request a roll call vote, which obviously provides for unambiguous results. Senators should be aware that any tied vote negates the motion in question.
Senators, today we have with us government officials from Public Safety Canada and the Canada Border Services Agency to answer technical questions if they arise. We welcome back to the committee Julia Aceti, Director General of Traveler, Commercial, and Trade Policy, CBSA; Scott Nesbitt, General Counsel, Department of Justice, CBSA Legal Services Unit; and Randall Koops, Director General, International and Border Policy Directorate, Public Safety Canada.
Are there any questions about anything I’ve mentioned thus far?
Senator Wells: In proposing amendments, do you want just the amendment or is it permissible under your practice to have a short explanation about what this proposed amendment does?
The Chair: I think it would be helpful, Senator Wells, for us to have a short explanation in all cases, or wherever the mover so desires.
Senator Wells: Thank you.
The Chair: Any other questions, colleagues?
Colleagues, is it agreed that the committee proceed to clause‑by-clause consideration of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016?
Hon. Senators: Agreed.
The Chair: There is agreement that we shall move to consideration of the clauses.
Colleagues, shall the title stand postponed? I think that is regular business.
Hon. Senators: Agreed.
The Chair: That is agreed. The title stands postponed.
Shall clause 1 carry? I understand we have some amendments coming up, and I think Senator Wells is first.
Senator Wells: I would like to make an amendment to this bill:
That Bill S-7 be amended in clause 1, on page 1, by replacing line 12 with the following:
“about to be exported, has had its network connectivity disabled and is in the custody or possession”.
Colleagues, this makes disabling a stated precondition to any search. As we know, CBSA has told us that disabling prior to a search is policy and therefore would continue to be the practice under the legislation. However, it’s not explicit in the legislation. It may or may not have been explicit in the policy; I don’t know. We leave the elaboration — that is, who disables it — to the regulatory level.
The Chair: Any questions or comments?
Senator Boniface: Just a comment, and I raise it with great respect, Senator Wells. I question the necessity of the amendment. It’s already in the act that they limit any examinations to documents stored on the device itself. We also received a draft regulation, which I think would cover that.
One of the reasons it should be in regulations as opposed to in the legislation itself is because technology will evolve over time. We may have different terminology and suchlike.
Because it’s slightly technical, I’m wondering if the officials may want to comment on how it relates to the current legislation and the proposed regulations.
The Chair: Let’s ask our officials first if there’s comment and then we’ll open it up to the committee.
Julia Aceti, Director General, Traveler, Commercial, and Trade Policy, Canada Border Services Agency: If I may, Mr. Chair, underscore that point. From our perspective, this type of technical language is well placed in regulation given the potential for technology to change.
I would also say, to limit any ambiguity — the point was raised about who would undertake the disabling — that our officers would undertake such an action to ensure that the traveller doesn’t take any steps to perhaps wipe the phone before an examination could take place.
These types of technical details are well placed in the regulations. We have shared a copy of those regulations with the committee. You can see it is accounted for there, along with the requirement to take detailed notes.
Senator Wells: Not to debate the point, but obviously regulations can change. I was very general in my wording of the amendment, “to disable connectivity.” There’s no specificity on what that might look like. I was also silent on who might do it. I think it’s important for the protection of privacy of the individual, and certainly for the knowledge of the travelling passenger, that they know they have this right. As I said before during debate and at committee, that travellers had the right before, but, of course, CBSA did not honour that right.
Senator Gold: The government appreciates the intent of the amendment but can’t support it, for the reasons that were implicit in Senator Boniface’s question and the answer.
Perhaps I might ask the officials one last question. With regard to the question of who could disable it or not, I’d like you to comment on whether or not you have a concern that this would allow a traveller to avoid or refuse to disable connectivity, even though the threshold for the search of the device has already been met. Would that not potentially frustrate the purpose of the act?
Ms. Aceti: Thank you for the question. Indeed, I think we are aware that it is technologically possible for travellers to wipe a phone, in handling it, once they know an exam might take place. So it is in CBSA policy, and it’s clear in the regulations, that the disabling of the device should be done by the officer to guard against a traveller potentially wiping the device.
Senator Gold: Thank you.
Senator Dalphond: This question is for the same official to follow up on Senator Gold’s questions.
I assume that attempting to wipe the device would be obstructing an officer, the same way that it would be if the traveller were refusing to provide their code to open up a personal device. Is that the case?
Ms. Aceti: Certainly, if a traveller were to attempt to wipe information off a device before an examination that an officer signals should take place, that would certainly be hindering the operations and the officer and potentially result in other potential infractions as well.
Senator Dalphond: Thank you.
The Chair: I see no other comments. Let’s test support for this motion by first asking to see a show of hands from those who are prepared to support the motion in amendment. Thank you. And those opposed? It looks to me like the motion in amendment is carried. We will record that. Staying with clause 1, we move to the next motion which comes from Senator Jaffer.
Senator Jaffer: Honourable senators, I would like to introduce the following amendment:
That Bill S-7 be amended in clause 1, on page 1, by replacing line 13 with the following:
“of a person if the officer has reasonable grounds to suspect”.
Senators, this will not come as a surprise to you from my questions to the witnesses. I’m concerned about lowering the threshold test. Also, we did not have one witness, except the minister and the officials, say that this was a good idea. Even Ms. St. Germain, from the Canadian Centre for Child Protection stated:
. . . 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.
And she says “reasonable grounds to suspect” would likely catch many individuals who potentially do this. Even she did not really strongly oppose it.
Normally, as we all know, in a committee you have witnesses on both sides. I think we have to sit and reflect as to why steering did not call any other witnesses to support the minister or the officials’ position. I’m not faulting steering, not for a minute. It’s obvious, because steering couldn’t find anybody who was supportive of this.
Senators, we live in a diverse country and now we also have a very diverse Senate. With that in mind, it is unacceptable to have a one-hour diversity training for CBSA officers, and the agenda we’ve been provided is very superficial.
Senators, throughout my questioning, you’ve understood that I’m very concerned about this threshold, and I have thought a lot about this. I don’t really want to share too much about myself anymore, because I’m at the end of my career, but I want to say to you that I have heard from so many Canadians across the country with so many examples that I feel I’m forced — as I’m not just warming a chair in the Senate — to represent the point of view of many Canadians.
Senators, before 2001, I travelled a lot. I was the president of the YWCA and I was the president of the National Women’s Liberal Commission. As of then, I had no problems. Come 2001, my world changed, the world of brown, Muslim and Black people changed. I would go to the Senate, to Prime Minister Chrétien and to Prime Minister Martin, and they would always say to me, this is just temporary. It will stop. This is just temporary.
I have been here for 21 years. Racial profiling has not stopped. I’m not going to give you many examples of how my family, I and the community that I often represent have suffered, but I want to give you one example, senators.
Senators, I used to travel a lot with senator international groups. When I travelled in international groups, very often, I would be sent for a secondary test. My colleagues in the beginning would tease me, saying, what did you not declare? Because people know I love shopping. I wouldn’t say anything; I would just go quiet. When I went into the secondary exam, I showed my green passport and they would say, “Oh, that was a random test.” And they would let me go. What would happen if I didn’t have a green passport? What happens to my family who don’t have green passports?
So, senators, I say to you very humbly that Maria Chaput, who was a very good friend of mine, would start coming with me to these secondary exams and stand there just so that she could let people know that she was watching what they were doing. I share this experience with you very reluctantly because I’m not wanting to get any pity from anybody. But I say to you, when I have a green passport and get a random check and have to go for a secondary exam and then nothing else happens, what happens to Muslims, Black and brown people?
That’s why, senators, I’m saying that until CBSA officials have better diversity training, more than one hour, and until CBSA officials are able either to share with us what the indicators are — You all heard what they said about the indicators. They gave us one or two, and then they said, we can’t tell you others. I have a lot of family members who work for CBSA, and they immediately phoned me and told me the other indicators, which I won’t share with you. I’m telling you that by lowering the standard when there’s not proper diversity training would be a mistake.
I respectfully ask that you support my amendment to make it that the officer has to have reasonable grounds to suspect. As you all know, senators, throughout the Customs Act, that’s what the ground is. It is just for devices that it is being changed. Thank you, senators, for listening.
[Translation]
Senator Boisvenu: I support my colleague Senator Jaffer’s amendment. I think she’s right; this is one of the concerns raised most often by researchers and professionals during our meetings. Several legal experts have also said that this provision is legally questionable and that it will be challenged. Therefore, there’s a good chance we’d have to pick this up again in a few months.
This is also very vague language for Canadians. I feel we’re going to put Canadians in tough situations, that they could have their cellphone seized and searched at the whim of an officer.
Finally, as I pointed out when we were considering the bill, when an officer searches luggage or individuals, they are acting based on “reasonable grounds”, but now, when they search a cellphone—which is a very private place—they will be acting based on “general concern”. Legally speaking, I don’t think that holds water.
[English]
Senator Boniface: Thank you to Senator Jaffer and Senator Boisvenu for their comments. Let me speak to a couple of issues and then I would ask if the officials can comment as well.
Just to be clear on the training, Senator Jaffer is correct in terms of the initial response from officials, but we did receive further information on the type of training. I think it is a broader explanation of training that has taken place, and that was received as a follow-up from the officials. Again, they can speak to the specifics of it or I’m happy to.
I’d like to speak about this threshold as referred to as new or novel threshold. It is the threshold they’ve been operating under for some time in policy, and what the Canfield case said is that it should be in law in order to be found to be constitutional. I want to just be clear on that.
When we speak of no threshold, no threshold is actually what applies for luggage. I worry somewhat. I certainly understand the comments from my colleague and I respect them very much. But we are now putting personal devices on the same line as body searches, and that concerns me that’s what we’re expecting from a public safety perspective.
As well, it was indicated in a comment from Senator Jaffer that officials can’t provide all the indicators, and that’s one of the dilemmas of the type of work that we’re discussing; otherwise, one could be creating a playbook for those who are crossing the border with contraband. I just make those comments to give a broader perspective on this.
The minister spoke to the new threshold, and I believe it is consistent with section 8 of the Charter, and it strikes the balance that we suspect. I do believe that no matter what the threshold is, it will be challenged by the courts and it will continue to be challenged. We’ll find our way somewhere along the line, as Canfield anticipated, through the courts working out the parameters. So I leave it there. I’d like to hear from the officials, if I may.
Senator Jaffer: This is not a technical amendment. This is a policy amendment. It is my understanding that officials are here for technical clearing up. They’re not here to explain this amendment because this is a policy amendment that the minister made. With the greatest of respect, obviously they can speak about diversity training, because that’s technical, but as to the wording of this amendment, I believe it’s a policy issue. Officials are not here to talk about policy. Thank you, chair.
The Chair: We’ll leave it to the judgment of officials having heard from you, Senator Jaffer. Ms. Aceti, are you going to take this one as well?
Ms. Aceti: Thank you, Mr. Chair. Perhaps to the technical question about the training, I would apologize that incorrect information was shared in testimony, that the training in the area of diversity is simply one hour.
As was noted, we did provide some follow-up information to outline several additional hours of training in the theme of diversity and race relations in preventing racial bias at the frontline. There’s also a suite of training related to Indigenous issues and dealing with Indigenous travellers and sacred goods and several more pieces of new training that are coming into the frontline, into their repertoire of training, again, on cultural bias. I just want to offer that correction. Thank you very much.
The Chair: Thank you. We’ll henceforth be consistent in our approach to the technical support that we’re achieving here as opposed to the policy support so that one standard applies to all.
Senator Gold: Thank you. Let me preface this by saying, I respect the work of the committee, but I have an obligation to put the government’s position on the record. In that spirit, I’m going to do it.
We oppose this amendment. The courts have been clear that a lower expectation of privacy is appropriate and that’s why the government identified this standard.
One point and a question: The lower standard, in fact, now creates a standard where none existed before. Respectfully, Senator Jaffer, it’s not lowering a standard; it’s actually creating a legal standard where one never existed before. The amendment seeks to change the threshold, and that’s a totally legitimate position, but, this is, for the first time, a legal standard.
Could the officials give us an idea of which other democratic jurisdictions impose a legal standard on searches of these digital devices and what that standard might be? Where will Canada sit in the context of the U.S. or other countries with similar democratic traditions?
Ms. Aceti: We often look to what we call our “Border Five partners” for international comparison. The United States, the United Kingdom and Australia all maintain the no-threshold examination of goods at the border, which includes personal digital devices, similar to what the Canadian system has been to this point.
I may also note that should this law go forward and a threshold be established, that would be the first time for the U.S., which operates in pre-clearance locations around the world, to have a threshold for these types of routine regulatory examinations be applied. Thank you.
The Chair: Thank you very much.
Senator Dalphond: Thank you chair.
It’s a policy decision. It’s also a decision that must be related in a coherent way with the rest of the law. I’ve looked first at the enforcement provisions in the Customs Act, section 98, Search of the person. It says, “An officer may search . . . if the officer suspects on reasonable grounds that . . . “
Section 99, Examination of goods, subsection 99(c.1):
An officer may . . . at any time up to the time of exportation, examine any mail that is to be exported and, subject to this section, open or cause to be opened any such mail that the officer suspects on reasonable grounds contains any goods the exportation of which is prohibited, controlled or regulated under any Act of Parliament . . .
Subsection 99(d) says:
. . . where the officer suspects on reasonable grounds that an error has been made in the tariff classification, value for duty or quantity of any goods . . .
And in subsection 99(d.1):
. . . where the officer suspects on reasonable grounds that an error has been made with respect to the origin claimed or determined for any goods . .
Subsection 99(e):
. . . where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any goods . . .
Subsection 99(f):
. . . where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance . . .
The bus, train, whatever.
The bill is all about “reasonable grounds to suspect,” and you want to introduce something which is admittedly lower than that for things that are more serious than what we’re referring to. I don’t think it can meet the test in terms of policy-making. This is absurd, I think, with respect.
From a legal perspective, I want to refer to the fact that the Supreme Court has decided in the sniffer dogs case that the dog can sniff my suitcase or luggage if the officer has reasonable grounds to believe that something is happening. Quite frankly, if the agent escorting the dog is bound to have reasonable suspicions in order to sniff the baggage, I think the agent must at least have reasonable grounds to sniff in my computer.
Finally, Senator Dagenais asked very pointedly: What kind of training and additional resources would be required to enforce the new criterion? The answer from the officials was very simple: We don’t need more resources, we don’t need more training, that’s already what we’re doing. Clearly, what is being proposed to us is to codify the current practice. In my opinion, this is not acceptable. Thank you.
The Chair: I’m glad that we’ve introduced the sniff test into our discussions. I was hoping it would be there.
Senator Richards: Senator Dalphond certainly explained it far better than I could, but I think “reasonable grounds to suspect” is a pretty low threshold, actually. It’s like giving your property to a stranger and expecting them to treat it with honour and decorum. I’m not sure if that’s always going to happen.
You might clear someone’s cultural bias, but there’s always a personal bias. I’m very afraid of this bill. My whole life, with my publishers and everything in this device, and all my personal information with my family — so I tend to suspect anything that allows a stranger to look through it. So I certainly agree with Senator Jaffer on this. I think it’s a very modest proposal and amendment. Thank you.
Senator Wells: Thank you, colleagues. I fully support Senator Jaffer’s proposed amendment. She is right, and she has had first-hand experience that racial profiling is real — subconsciously, we’ll grant that, as we’ve heard from the expert witnesses. Here, we’ve had the first two amendments, mine and Senator Jaffer’s, where we have first-hand evidence of CBSA perhaps not following their own rules.
Senator Gold did say that the court said that a lower standard was appropriate. I want colleagues to know that the court did not say that; the court actually said that any other standard should be left to Parliament. I think the well-known and court-tested “reasonable grounds to suspect” is appropriate here. Thank you.
Senator Yussuff: I have a couple of points. Reflecting on the testimony of the witnesses that came before us and who had to speak to the challenge we are now dealing with as to what is appropriate, there was not a single witness that came before the committee who spoke in favour of the current definition that is included in the bill.
That’s a hard place for us to get our head around, because an absence of somebody actually saying that this could actually suffice, would meet the test of the courts and will ultimately resist a Supreme Court challenge, it’s hard for us as a committee to think otherwise.
I understand, to some degree, the challenges facing CBSA officers in their role. These two cases all had to do with child pornography, and I don’t think any one of us around this committee would want to be derelict in our duties as to how we protect children in this country. Trying to balance that is trying to recognize what the appropriate standard is that we should have. I don’t believe I know any more than the witnesses who came here to say that the standard that’s provided for in the legislation is not likely to survive a Supreme Court challenge.
That’s the dilemma.
We are examining this piece of legislation before it gets to the other place, and in the context of doing that and having heard the witnesses that we have heard, it’s a real dilemma to say that the standard that has been provided in the legislation is appropriate. Clearly, everybody who spoke before the committee notes that “reasonable grounds to suspect” is the known standard that can be defended and that, more importantly, will meet the test at the end of the day.
I also appreciate Senator Jaffer highlighting the reality of racial profiling at the borders. This is not a new reality. It exists in Canadian society, and it’s something that we have to contend with. No matter what amount of training there is, I don’t think we will ever stop racial profiling happening at our borders. It’s critical in the context of trying to protect all Canadians that we try to ensure that the legislation will meet the test of time but, equally, will survive the test of the courts.
I’m supporting Senator Jaffer in regard to her amendment in this legislation. It’s hard to ignore what we heard from the expert witnesses who came before this committee. Thank you.
The Chair: I would ask that we shorten our comments. We have had a fairly extensive conversation on this one.
[Translation]
Senator Dagenais: I will be brief.
I read Senator Jaffer’s amendment and I thank her for her explanation. I fully agree with her. The purpose of this amendment is to prevent what I would call abuse of power by border services officers. Therefore, I will support Senator Jaffer’s amendment.
[English]
Senator Jaffer: There is a lot I can say, but you told me to be brief, so I will just talk about the diversity training.
I’m embarrassed about the explanation they gave. They have just put “diversity training” at one hour, and then it’s “race relations” and “racial bias,” but nowhere is there “racial profiling.” I don’t want to belabour it, but if that is the kind of training they are giving, then I think we have a lot of issues.
I am a professional racial-profiling trainer, and when I saw that, it made me sad. That’s not the discussion for today, but I’m saying I brought it up, so I have to deal with it. If you look at the explanations, the topmost senior official was right when she said that it’s one hour of “diversity training,” not “race relation training.” It’s six and a half hours for all the different kinds of training, but for “diversity training,” it’s just one hour.
Senator Gold: Senator Wells, I believe — and I stand corrected by Hansard if I’m wrong — but I think what I said is that the courts have recognized there is a lower expectation of privacy at the border, which speaks to how they would apply section 8.
May I just ask the officials one question raised by Senator Dalphond’s remarks about sniffer dogs? Does this take place at the border when the dogs are involved?
Ms. Aceti: Regarding the sniffer dog issue, I believe the Supreme Court finding being referenced here relates to police activity, which is domestic law enforcement activity; that’s where that threshold applies.
At the border, though, the use of detector dogs as part of routine border processing does not require reasonable grounds to suspect. So that is just perhaps a technical clarification there. Dogs are used at the border similarly to X-rays and other detection tools. Again, that is regarding routine regulatory screening, which does not require reasonable grounds to suspect. Thank you.
Senator Gold: Thank you.
The Chair: Thanks very much, everyone. We’ve had a very broad and deep discussion. It’s time to test your inclinations.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
I think the motion in amendment is carried.
Senator Gold: On division, just so the government can register its opposition.
The Chair: Certainly. On division. That’s good. Thank you very much, everyone.
Senator Jaffer: Earlier, I said we should indicate if it affects things elsewhere. Should I do that now or when we come to that clause?
The Chair: I think we probably all understand that this appears in two other places in the bill.
Senator Jaffer: Yes. So I don’t need to do anything?
The Chair: I think we’re okay, but thank you for the offer, Senator Jaffer.
We now move to the next proposed amendment in clause 1, and this comes to us from Senator Dalphond, I believe.
Senator Dalphond: It was disposed of right away, just before the previous vote. It’s the same amendment.
The Chair: You have a second one dealing with solicitor-client privilege. It’s amendment 1-2-10, Senator Dalphond, on solicitor-client privilege. That’s in clause 1.
Senator Dalphond: Yes, thank you. This amendment is to reflect the concerns that were expressed to us about the protection of privileged information, which could be in the context of solicitor-client privilege, an informant for a journalist, or professional secrecy for other types of professionals. The amendment is before you.
There might be another way to do this. I certainly would like the officials to comment on it. I’ve been struggling with the idea of how we can protect this privilege and, technically speaking, how we could achieve it. Since we didn’t have much time to propose the amendments, I decided to engage with an amendment with an open mind about other ways to go.
What I’m proposing is that once privilege is claimed, the officer cannot search that part of the computer, at least, without a judicial authorization. That might be a heavy burden to discharge. It may end with the officer seizing the computer and then waiting for judicial authorization, which might also mean the traveller cannot leave with the computer. They will leave the personal device behind.
To be quite honest, I’m struggling to find balance on the issue. I asked the Canadian Bar Association, and they were also going back and forth on the issue in their answers.
I have another amendment, 2-2-14. This one may be different. It suggests that the Governor-in-Council may adopt regulations respecting measures to be taken by officers when privilege is claimed.
I’m quite open, frankly. I’m presenting the committee with two options. I’m in your hands. I see that the first option is a heavy burden. The second one is a light burden. I haven’t found the middle ground.
The Chair: Thank you, Senator Dalphond. I think we will all be better informed if we go to officials first for their reactions, as Senator Dalphond suggested.
Ms. Aceti: We believe that it’s already legally clear based on the Supreme Court of Canada findings that officers cannot examine documents that have been identified as being subject to solicitor-client privilege. I understand in this amendment, it would be the reverse; there would need to be a statement indicating that it would be possible. Without that, it’s understood legally that this information is protected.
Of course, it is in accordance with the legal framework and the Canada Border Services Agency, or CBSA, practice and policy today that materials with solicitor-client privilege cannot be accessed by officers. In that sense, I don’t know that it’s legally necessary to include this, but I may invite my colleague to comment.
I might also offer, Mr. Chair, that adding this amendment could potentially generate some uncertainty or confusion in that this provision only deals with examinations of personal digital devices and not with other examinations where the questions regarding solicitor-client privilege may arise, elsewhere in this act or in other statutes that provide examination authorities.
I offer that for consideration as well.
Scott Nesbitt, General Counsel, Department of Justice, CBSA Legal Services Unit, Canada Border Services Agency: Ms. Aceti covered the key points unless there are further questions I can address.
Senator Boniface: Senator Dalphond and I had a discussion about this and tried to figure out how it would work.
In my recollection from when the Canadian Bar Association, or CBA, was here, I believe the witness recommended that there be a working group to figure out the details on how to work through this problem, both to serve the interests of the security at the border and the interests of solicitor-client privilege.
I’m wondering whether we are better served to take that recommendation in an observation to say that we believe we should follow the advice of the witness from the CBA. That’s just a suggestion.
Senator Gold: That’s what I was going to suggest. Certainly, a recommendation that the House deal with this appropriately and effectively, I think, is probably the best way to solve it, at least, given what we heard from the Canadian Bar Association and from the officials. Thank you.
Senator Dalphond: As I said, I was struggling myself with the issue. I certainly appreciate the fact that the agency representative is telling us they instruct their officers not to go further if somebody claims a privilege.
In that sense, maybe my second amendment would be the proper amendment, that the Governor-in-Council could adopt measures to reflect that practice but they’re made in the regulations. That will give it some weight, a greater weight than internal policies have. It will also ensure more transparency on the practices and could be challenged if the standard is not high enough. The courts will decide if the regulations are satisfactory or not.
The Chair: Am I hearing that you’re withdrawing the current motion and moving —
Senator Dalphond: With the authorization of the committee, I withdraw the amendment.
Senator Yussuff: First, let me thank my friend for raising this point. It was also raised, of course, by the Canadian Bar Association with regard to their effort to set up this working group. What Senator Dalphond is proposing is a reasonable but also practical way to ensure that the issue that’s been raised before us regarding solicitor-client privilege will be protected and that CBSA officers clearly know this is the reality in how they must conduct searches at the border.
The Chair: I’m seeking leave of the committee to withdraw this motion and we will deal with the next one. Is leave granted to Senator Dalphond? I see no objections.
Senator Dalphond: If forced to vote, I will vote against.
The Chair: That brings us to the end of clause 1. Shall clause 1, as amended, carry, colleagues? I see no dissent that clause 1 carries. Thank you.
Shall clause 2 carry? I believe we have an amendment in clause 2 from Senator Dalphond.
Senator Dalphond: That would be in the last sentence. I think I presented it before, and some colleagues commented on it, so I don’t think I need to add anything. It does not mean the government must adopt the measures, because the language regarding that power is “may adopt,” but I understand that the practice of the agency is such that maybe they would like to formalize it and make it more transparent than the internal policy, should they want.
The Chair: Thank you, Senator Dalphond. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Kutcher: Could I have the line? I’m kind of lost.
The Chair: It says:
That Bill S-7 be amended in clause 2, on page 2, by adding the following after line 14:
“(a.01) respecting measures to be taken by an officer if a person asserts that a document to be examined under subsection 99.01(1) is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries, or litigation privilege;”.
Did you find it?
Senator Kutcher: Yes.
The Chair: Thank you. Is it your pleasure, honourable senators, to adopt the motion in amendment? I see no dissension, so the motion —
Senator Gold: On division.
The Chair: The motion is adopted on division. Thank you.
The next motion comes to us from Senator Yussuff.
Senator Yussuff: The issues raised by the Office of the Privacy Commissioner when they were before us I think are important for us to consider. Again, I’ll ask you to ask the officials to respond.
Four points were raised by the Office of the Privacy Commissioner when they were before us: specific record-keeping requirements related to device searches, including obligations to document indicators justifying the search; ensuring certain technical procedures and requirements are in place to limit the scope of the search to only what is stored on the phone, e.g. disabling network connectivity; rules for password collection and retention limits; and mechanisms for complaints, redress and independent oversight.
I noticed in the regulations provided, officials so far acknowledge at least one of the points. I realize the process is still ongoing and the department had requested public input. Maybe we can hear from the officials and then try to conclude where we may want to land on this.
Ms. Aceti: Indeed, two of the proposed elements here are a part of the draft regulations that have been prepared and that I believe have been shared with the committee.
As noted earlier, we did see the regulations as a good place for those more technical requirements and, again, important controls on the conduct of the exam to be made legally binding — certainly the network connectivity and the note taking, both of which were noted by the OPC as well.
The third element is something that could be positively considered around passwords as well for the regulatory work.
Senator Yussuff: I would be absolutely fine with that. I think it acknowledges what we’ve heard. In the context of this bill and privacy protection, I’m satisfied if it’s in the regulations. I’m not opposed to what the officials have raised.
The Chair: Are you suggesting that you would withdraw —
Senator Yussuff: Yes, I would be fine with withdrawing my amendment to this clause.
The Chair: Is leave granted by the committee for the withdrawal of the motion? I see no objections. The motion is withdrawn.
That brings us to the end of clause 2. Senators, shall clause 2 carry, as amended? I see no dissent. It is carried as amended.
[Translation]
Senator Dagenais: Mr. Chair, I’m sorry. Correct me if I’m wrong. I don’t know if the expression “reasonable general concern” is in clause 2, and I want to be sure that it isn’t in that clause. If it is, you will understand that I’m going to vote against anything that involves “reasonable general concern”. I don’t believe that those words should be used. The expression “reasonable grounds to believe” or “reasonable grounds to suspect” should be used throughout instead. We’re talking about the much-touted threshold of “reasonable general concern”. I don’t think that expression is used anywhere else, but if it’s in clause 2, then I’m not going to vote in favour of clause 2.
[English]
The Chair: I don’t believe it is used in clause 2. I think there are amendments throughout that would ensure that transfer to “reasonable grounds to suspect” would be in place. But thank you for asking the question.
[Translation]
Senator Dagenais: Thank you. I want to be reassured about the expression we’ve talked so much about that I think is always going to end up before the courts if it’s used in the bill. Once again, I’m referring to the expression “reasonable general concern”. The expression must be completely removed from the bill or it will be challenged in court. We won’t get very far if we pass a bill that’s going be consistently struck down in court.
[English]
The Chair: I think, senator, by the end of these proceedings you will see that result, if the first motion holds true. Thank you.
Is it agreed that clause 2 carries, as amended?
Hon. Senators: Agreed.
The Chair: Thank you very much. That’s carried.
Shall clause 3 carry, colleagues?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5 carry? I see an amendment on clause 5 from Senator Dalphond. This is to do with destruction of records.
Senator Dalphond: Yes. This amendment is in relation to copies that can be made of what is found in the personal device. The amendment is as follows:
That Bill S-7 be amended in clause 5, on page 4, by adding the following after line 8:
“(1.1) If any copy of a record is made under subsection (1), subsection 110(3.1) or subsection 111(3.1), the officer or Minister, as the case may be, must
(a) make a record detailing the nature of the record that has been copied;
(b) destroy the copy forthwith if they conclude that it does not afford evidence that there may have been a contravention either of this Act or its regulations or of any other Act of Parliament — or any regulation made under that Act — that prohibits, controls or regulates the importation or exportation of goods; or
(c) destroy the copy if, within three months of the seizure of the record, no judicial proceedings in which the copy will serve as evidence have been instituted.”.
The first point is to take notes of what is being copied in order to have a certain recollection of that. The Office of the Privacy Commissioner investigated six cases, and in the six cases, unfortunately, note taking was missing or not done. I think it’s a practice that must be changed.
The second point is that if they have “reasonable grounds to suspect” and they check your computer, they may make a copy as they check. If they conclude there’s no reason to go further, the copy should be destroyed right away and not shared or stored in the system.
The third point is that if they find that things should go further, the copy should be destroyed if, within three months of the seizure of the record, no judicial proceeding has been instituted. This is similar to the provision that now exists under the Customs Act regarding paper copies of records. When they seize a paper record, they have to either return or to —the maximum is three months. So this point is intended create a parallel to what is current with paper copies and to add the destruction of the copy as soon as possible. Because on the system, one wonders where it is five minutes later, or five days later, all around the world.
The Chair: Any questions or comments on this proposal?
Senator Dalphond: If any of the officials would like to comment, please do. I don’t have the benefit of their insight.
Senator Boniface: This is very technical and may create an inconsistency. I look to the officials, if we may.
Ms. Aceti: I would offer that the Customs Act, subsection 115(2), already establishes limits around how long records may be retained when seized as evidence. We apply already these same limits where copies of records are taken rather than the records themselves. So I would offer that that protection and control already exist in subsection 115(2).
Given that this proposal is slightly different, I would flag a potential concern that there could then be a different set of rules for retention of copies of records and then the digital copy. Again, we already look to subsection 115(2) to govern if digital copies are taken.
I don’t believe we had a chance to explore this in testimony, but this particular amendment relates to activities beyond personal digital devices. It can also apply to commercial investigations and be used more frequently there. Again, the act of making a copy is often to alleviate pressure on Canadian businesses that may be involved in investigations or where there’s such a volume of records that it’s more practical and prudent to take a digital copy.
I wanted to offer that additional context, but the main technical point here is looking to subsection 115(2), which already exists in the Customs Act. Thank you.
Senator Dalphond: The explanation is very interesting and very important. It says this is the practice, and subsection 115(2) will apply automatically to a copy of an electronic document. So within three months, it will be destroyed, as is provided already.
I’m satisfied with that explanation. There is only thing missing. If a copy is made during the search, will it be destroyed right away if the officer concludes that although he thought he had reasonable grounds to suspect, once he has checked, he is convinced he no longer has any grounds?
Ms. Aceti: This refers to copies taken once the threshold is established and the document is a piece of evidence in a proceeding — so once all of those confirmations have been made. That three-month threshold would apply once this was an authorized piece of evidence.
Senator Dalphond: My concern is this: Is the seizure the practice in a routine search or is it the practice that no copy will be made while the search is conducted? Is it that they just review things, but don’t make any copies; then once the review is completed, if they think there is nothing further to go on, they let the person go without making copies?
Ms. Aceti: Yes. I believe that’s correct, Mr. Chair.
Senator Dalphond: If this is the practice, I am satisfied with the explanations and the fact that the explanations are recorded here and could be used in court if there is a dispute about it.
The Chair: With that, colleagues, is leave granted for Senator Dalphond to withdraw his motion?
Hon. Senators: Agreed.
The Chair: Thank you very much. Shall clause 5 carry, colleagues? I see no disagreement. Clause 5 is carried.
Shall clause 6 carry? Agreed.
Shall clause 7 carry? There is agreement.
Shall clause 8 carry? There is agreement.
Shall clause 9 carry? I believe we have a consequent amendment from Senator Wells.
Senator Wells: Thank you, chair. You’re correct. It is a consequent amendment to the first one that was passed by the committee, and that’s an amendment to the Preclearance Act.
I move:
That Bill S-7 be amended in clause 9, on page 5, by replacing line 3 with the following:
“bound for the United States and that has its network connectivity disabled if the preclearance officer”.
Colleagues, this is a consequential amendment from the first one that was passed on this alone. It’s an amendment to the Preclearance Act, 2016, that U.S. agents should be held to the same standard for Canadians travelling to the U.S. under this permission or protocol.
The Chair: Thank you, Senator Wells.
Is it your pleasure, honourable senators, to adopt the motion, in amendment?
An Hon. Senator: On division.
The Chair: Thank you. That is carried, on division.
Staying with clause 9, we go to the next motion, which brings us back to Senator Jaffer.
Senator Jaffer: Chair, it is also a consequent amendment:
That Bill S-7 be amended in clause 9, on page 5, by replacing line 4 with the following:
“has reasonable grounds to suspect that”.
“Reasonable general concern” would be taken out and be replaced with “reasonable grounds to suspect.”
The Chair: Colleagues, is it your pleasure to adopt the motion, in amendment? It is adopted, on division. Thank you.
Senator Dalphond, you have a consequential amendment or a repeat of the one dealing with solicitor-client privilege. I think this is one that you want to retain. It is in clause 9, and it is dealing with solicitor-client privilege and professional secrecy. It’s PJD-S7-9-5-25. I believe you withdrew this one earlier, if I’m correct.
Senator Dalphond: The previous one, I’m not sure it’s from me. Isn’t that what we just covered? It was, yes. It’s logical. It’s a copy of the first amendment, yes.
The Chair: Again, we’re seeking leave to withdraw this amendment. I see no dissension, so that one is withdrawn. That means I should ask the question.
Is clause 9 carried, as amended? There is agreement. Thank you, colleagues.
Shall clause 10 carry? Agreed.
Shall clause 11 carry? It is agreed.
Shall clause 12 carry? We have an amendment here, going back to Senator Wells, which is another consequent amendment.
Senator Wells: Thank you, chair. Indeed, you’re right. It is consequential to the concept, so this is to make it official.
I move:
That Bill S-7 be amended in clause 12, on page 6, by replacing line 8 with the following:
“a traveller bound for the United States, that has its network connectivity disabled and that is to be”.
Colleagues, this just expands the same restriction to pre‑clearance done in a pre-clearance perimeter.
The Chair: Thank you, Senator Wells.
Colleagues, is it your pleasure to adopt the motion, in amendment? It is agreed, on division.
We now move to another amendment to clause 12(b). This, again, is “reasonable grounds to suspect,” Senator Jaffer.
Senator Jaffer: I would move as follows:
That Bill S-7 be amended in clause 12, on page 6, by replacing lines 10 and 11 with the following:
“6(2)(a) if the preclearance officer has reasonable grounds to suspect that”.
The Chair: Thank you. I take it there is no discussion on this one.
Is it your pleasure, honourable senators, to adopt the motion, in amendment? Agreed, on division.
I believe that the next one, which came from Senator Dalphond, has been previously withdrawn. I’m going to ask leave of the committee for Senator Dalphond to also withdraw this motion. I see agreement. Thank you very much.
Colleagues, shall clause 12, as amended, carry? I see agreement.
Senator Dalphond: I had the amendments, and the first one was the same as a copy of Senator Jaffer’s. So that’s fine; we’ll withdraw. Yes.
The Chair: So that one is withdrawn.
Senator Dalphond: Thank you. For a moment, I was confused with all these papers.
The Chair: Just to be clear, clause 12, as amended, carries.
Shall clause 13 carry, colleagues? It is agreed.
Shall clause 14 carry? Agreed.
Shall clause 15 carry? It is agreed.
Shall clause 16 carry? Here we have an amendment from Senator Yussuff. This one was withdrawn earlier, and I presume it will be consistent —
Senator Yussuff: I have a technical question more than an amendment question.
The Preclearance Act is different in regard to how U.S. officials on Canadian soil are adhering to their responsibility in the Canadian context. My question would be for the officials. How would the Preclearance Act recognize what we’re talking about here in regard to the regulations?
Randall Koops, Director General, International and Border Policy Directorate, Public Safety Canada: I’ll take that one. Thank you, senator.
The government’s intent would be that the Preclearance Act reflects as closely as possible the conditions that are set out in the Customs Act, with whatever necessary operational differences have to be drawn between the interaction of the two regimes.
If the amendments to the Customs Act are being further amended, we would propose that it is prudent that the identical provisions be amended in the Preclearance Act thereby preserving the principle that U.S. officers in Canada operate under the same conditions and same constraints as CBSA officers.
The Chair: Are you okay with that? All right, thank you.
Senator Richards: Will they be required to or will they be asked to?
Mr. Koops: Sorry. In the context of disabling connectivity?
Senator Richards: In the context of pre-clearance, would the United States officers be required to act under Canadian discipline or would they be asked to?
Mr. Koops: They are required to act under the provisions of the Preclearance Act. They can exercise only the search powers that are given to them by Parliament in the Preclearance Act.
Senator Richards: Okay, thank you.
The Chair: Thank you. Leave is sought for Senator Yussuff to withdraw this motion. I see no objection. That motion is withdrawn.
We have one further motion to amend subclause 16(b). This is also a motion that has partly been previously withdrawn.
Senator Dalphond, you might want to look at this motion and see if you want to retain it or withdraw it.
Senator Dalphond: The only amendment I have left is found on page 7, to add the same power to the Governor-in-Council to make regulations in connection with the Preclearance Act that we have already adopted in regard to the Customs Act and, to follow up on what the officials said, to have the same regime on both sides. Should I read it?
The Chair: If you want to proceed with it, you should read it.
Senator Dalphond: Yes. We have adopted the other one, so we have to adopt this one.
The Chair: I don’t think we did. I think you withdrew based on advice from officials. Sorry, that was carried.
Senator Dalphond: Carried, the power given to the Governor-in-Council to adopt it, if they want to. It would be the same thing here, but under the Preclearance Act.
The Chair: If you read it, that would be good. Could you read it please?
Senator Dalphond: Yes. It reads:
That Bill S-7 be amended in clause 16, on page 7, by adding the following after line 22:
“(c.2) respecting measures to be taken by a preclearance officer if a person asserts that a document to be examined, searched or detained under section 20.1 or 28.1 is subject to a privilege under the law of evidence, solicitor-client privilege or the professional secrecy of advocates and notaries, or litigation privilege;”.
It’s the same wording except it refers to a different section because it’s a different act.
The Chair: Any comments or discussion on this one, colleagues?
Reactions from officials?
Is it your pleasure, honourable senators, to adopt the motion in amendment? Agreed, on division.
Senator Yussuff: So I’m not confused — and it could be me, and nobody else in the room — am I right to think that this amendment was already withdrawn, but the clarity was that it will be in the regulations?
The Chair: This applies to a different act, I believe.
Senator Dalphond: Yes. The previous amendment was to spell it out in the law, and it has been withdrawn according to the suggestions and the facts we covered in the regulations.
This provision is about confirming the power of the Governor-in-Council to adopt regulations to provide that in the regulation.
Senator Yussuff: I can confirm it was my confusion.
Senator Dalphond: You are not the only one sometimes.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
I see no dissent. That is carried.
Senators, shall clause 16 carry as amended?
I see agreement. Thank you very much.
Shall clause 17 carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill as amended carry?
Senator Richards: On division.
The Chair: On division.
Colleagues, is it agreed that the law clerk and parliamentary counsel be authorized to make necessary technical, grammatical or other required non-substantive changes as a result of the amendments adopted by the committee, including updating cross-references and renumbering of provisions? Is that agreed?
Hon. Senators: Agreed.
The Chair: That is agreed. Thank you.
Does the committee wish to consider appending observations to the report?
I see none.
Colleagues, is it agreed that I report this bill as amended? It is agreed?
Hon. Senators: Agreed.
The Chair: It is agreed. Thank you.
Colleagues, thank you so much for the comments and for the work today.
Thank you to those who proposed amendments and, in some cases, withdrew them.
Thank you very much again to our officials who joined us today; you have been enormously helpful.
I will now declare the meeting adjourned.
(The committee adjourned.)