THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
OTTAWA, Monday, May 30, 2022
The Standing Senate Committee on National Security and Defence met with videoconference this day at 2 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.
The Chair: Welcome to this meeting of the Standing Senate Committee on National Security and Defence. I’m Tony Dean, the chair of the committee, representing Ontario, and I am joined today by my fellow committee members: Senator Jean-Guy Dagenais, Quebec, deputy chair; Senator Margaret Dawn Anderson, representing the Northwest Territories; Senator Peter Boehm, representing Ontario; Senator Pierre Dalphond, representing Quebec; Senator Donna Dasko, representing Ontario; Senator Marty Deacon, representing Ontario; Senator Mobina Jaffer, representing British Columbia; Senator David Richards of New Brunswick; Senator Larry Smith, Quebec; Senator David Wells of Newfoundland and Labrador; and Senator Hassan Yussuff, Ontario. Also joining us today are Senator Gwen Boniface, Ontario, the bill’s sponsor, and Senator Paula Simons representing Alberta.
Today, colleagues, we are beginning our examination of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016. This bill would amend the Customs Act and Preclearance Act of 2016 to set standards for the examination of documents on personal digital devices. It responds to the 2020 Court of Appeal of Alberta decision R. v. Canfield and R. v. Townsend, in which the court ruled that the section of the Customs Act that Canada Border Services Agency, or CBSA, officers rely on to search digital devices at the border is unconstitutional. The decision noted it was up to Parliament to establish a threshold requirement for CBSA officers to examine digital devices.
Colleagues, if over the course of these deliberations members wish to propose amendments to the bill, they are encouraged to consult the office of the Senate law clerk to ensure any amendments are drafted in the proper format and in both official languages.
Thank you to our witnesses for joining us today. We begin by inviting Mr. Mendicino to provide his opening remarks, to be followed by questions from our members. Minister, you may begin when you’re ready.
Hon. Marco E. L. Mendicino, P.C., M.P. Minister of Public Safety, Public Safety Canada:
Thank you, Mr. Chair. Good afternoon, honourable senators. I am here today to discuss Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.
I am accompanied by two officials from the Canada Border Services Agency (CBSA). We have Mr. Millar to my right and Ms. Aceti to my left.
Bill S-7 proposes to create a legal framework governing the examination of personal digital devices, such as smartphones, laptops and tablets, at the border in a manner that is consistent with the Charter.
As you know, the Court of Appeal of Alberta ruled in 2020 that the examination of personal digital devices under paragraph 99(1)(a) of the Customs Act was deemed unconstitutional as it imposed no limits on the search of said devices. This has been subsequently echoed in an April 2022 ruling by the Ontario Superior Court. Until these rulings, the courts had consistently upheld the CBSA’s no-threshold search authorities in this particular regard.
In response to these rulings, Bill S-7 proposes three central legislative changes. The first is the establishment of a new examination threshold for personal digital devices in the words of “reasonable general concern,” which will offer travellers privacy protection and account for the border context, which I’ll expand on. This is a unique threshold for a unique situation.
Secondly, it creates express-purpose limitations to ensure personal digital devices are examined only for border regulatory purposes.
Lastly, it authorizes the creation of regulations and ministerial directions to establish specific limitations to guide the conduct of personal digital device examinations at the border.
The new threshold of “reasonable general concern” is meant to be higher than a mere suspicion or hunch but less restrictive than “reasonable grounds to suspect.” Given this is a new legal threshold, I would like to provide further detail about its intent.
Let me break it down for you.
First, the term “reasonable” means that the noted factual indications of non-compliance need to be objective and verifiable. A novel threshold does not give officers carte blanche to examine personal digital devices. The decision to examine will still require indicators that are factually grounded and subject to meaningful review.
Second, the term “general” intends to distinguish it from higher thresholds that may require officers to identify specific contraventions before beginning the exam.
Within the border context, officers have limited pre-arrival information and are restricted to a short interaction with the traveller and their goods. While indicators may exist that could point to non-compliance with border legislation, it can be difficult to identify a specific contravention.
Lastly, the intent behind using “concern” rather than “suspicion” is to differentiate the proposed threshold from “reasonable suspicion” and judicial commentary around “generalized suspicion.” This is designed to be a new threshold that is more flexible than “reasonable suspicion.” At the same time, it does not authorize officers to examine devices without individualized concerns as the courts have suggested a “generalized suspicion” threshold might. “Reasonable general concern” requires that the concern be individualized and is attributable to a specific person or their device.
I will remind you that in Canfield, the court purposefully did not recommend that a specific threshold for personal digital device examinations. Rather it invited the government to consider whether something less than reasonable grounds to suspect may be appropriate given the unique nature of the border. And that is exactly what we have done here.
While an established threshold such as “reasonable grounds to suspect” was considered, I believe it is too restrictive for the examination of personal digital devices at the border for regulatory purposes, given the varied contraventions that may be found, such as, to give you a few concrete examples, a failure to report, child pornography, hate propaganda or evidence of drug importation.
In addition, “reasonable grounds to suspect” is used at the border for strip searches, which have been identified in jurisprudence as being more intrusive — more invasive — than the examination of personal digital devices.
I would like to underscore that we now have statistics to prove how challenging it is to meet the higher threshold in this context. We have already begun to see a sharp decline in the number of personal digital device examinations that we carry out in Alberta and Ontario since the courts’ rulings came into force.
Unfortunately, prohibited materials are imported every single day. National implementation of a higher threshold would compromise border integrity and drastically reduce the agency’s ability to intercept illegal contraband. Since April 29, officers have had to rely on Customs Act 99(1)(e), which requires “reasonable grounds to suspect” to initiate an exam. Prolonging the requirement to use this higher threshold will unquestionably compromise public safety and border integrity related to the decrease in the interception of prohibited materials on PDDs.
Proposed amendments to the Preclearance Act, 2016 will continue to align examination authorities between United States pre-clearance officers and CBSA officers and ensure that they are consistent with the Charter.
I would also note that these new Customs Act requirements permit only designated CBSA officers to conduct examinations of personal digital devices. Officers will be required to successfully complete specific training on such exams in order to be designated.
The accompanying regulations are being concurrently drafted to ensure that they can come into force as soon as possible after Bill S-7 receives Royal Assent.
The threshold in the legislation creating a limit on the initiation of the exam and the legally binding controls in the regulations, which govern the conduct of the exam, work together to create necessary and meaningful limits.
These limits address the constitutional concerns raised by the courts and position the CBSA to lawfully conduct examinations for legitimate and important border regulatory purposes.
The new regulatory elements will formalize several existing internal policy requirements, including disabling network connectivity prior to conducting an exam and taking contemporaneous notes on precise points.
These measures will ensure that only documents contained on the device at the time of crossing are subject to examination. Note taking requirements serve an important accountability and transparency function and will ensure that every exam can be meaningfully reviewed.
Let me walk you through some examples of how this will work. You have a single traveller returning from a lengthy stay in a country known for sex trafficking without a reasonable explanation for the journey. The traveller then becomes increasingly agitated and nervous as the exam progresses, demonstrating continued avoidance of eye contact, shifting weight back and forth, stuttering and sweating. Multiple digital devices are found during the baggage exam without a rationale as to why they are necessary for the journey. An examination of the devices uncovers multiple images of child pornography. In this case, we believe a threshold of reasonable, general concern would have been met thus authorizing the officer’s search of the personal digital devices. However, it is doubtful that the higher “reasonable grounds to suspect” threshold would have been met, thus allowing the harmful content to pass through the border and enter the country.
Senators, I understand that you are concerned with privacy protections, and this is of utmost importance to me as well.
It’s critical to balance this need with public safety and border integrity. This novel threshold, tailored to the border context, does just that. It will allow our officers to continue intercepting prohibited material that crosses our borders and enforces other border regulatory requirements without compromising the privacy protections which are contained in the Charter.
I believe this strikes the appropriate balance between the two imperatives.
I would also like to draw your attention to Bill C-20 that I recently introduced in the House of Commons to establish a new public complaints and review commission for the CBSA and RCMP. This new commission, which would foster independent civilian review, would ensure that, for the first time, CBSA officers in respect of their responsibilities would be reviewable by way of public complaint or inquiry, and we look forward to seeing this law come into force as well.
My officials and I would be happy to take any questions you may have. Thank you again.
The Chair: Thank you very much, minister. Before we proceed to questions, I would like to introduce the officials accompanying you today. From Public Safety Canada, we have Randall Koops, Director General, International and Border Policy Directorate. From the Canada Border Services Agency, we have Julia Aceti, Director General, Traveller, Commercial, and Trade Policy, and Scott Millar, Vice President, Strategic Policy. From the Department of Justice Canada, we have Scott Nesbitt, General Counsel, CBSA Legal Services Unit.
We will now proceed to questions. As usual, I would like to offer the first question to the deputy chair, Senator Dagenais.
Senator Dagenais: Mr. Minister, I would like to tell you that I find it unfortunate that you have chosen the end of this afternoon, following your appearance before our committee, to announce what you intend to do to prevent illegal handguns from entering Canada. I hope we will have an opportunity to have you back to talk about that.
This morning, the newspaper La Presse denounced what the editorial said was Canada’s “complacency” in monitoring our borders. That being said, how can we take you seriously when the fines for obstructing our border officers during a search go from $50,000 to $10,000 for a summary offence and from $500,000 to $50,000 for an indictable offence?
Why do we give so many advantages to those who do not respect our border services officers?
Mr. Mendicino: Thank you for the question. On the issue of firearms and our fight to restrict their use, I hope we will have a lot to say later this afternoon. I am always ready to debate this matter vigorously with you and with all members of the Senate and, of course, the House of Commons.
With respect to Bill S-7, the government believes it is very important to respond to the decisions of the Alberta Court of Appeal and the Ontario Superior Court of Justice. This is a new legal test that we are suggesting to help prevent smuggling. I can give you some specific examples.
There is a system that allows for accountability and penalizes those who break the law. This is a very important proposal that will provide Canada Border Services Agency (CBSA) officers with the tools they need to do their jobs at the border.
Senator Dagenais: Child pornography is a complicated issue for police officers—it was when I was a police officer. Will border services officers have a database of potential suspects that would allow them to search their computers?
Mr. Mendicino: Mr. Senator, one of the tools will be the techniques that CBSA officers will use and are certainly using now in all interactions at the border. It’s a challenge because the time they have to interact with travellers at the border is indeed short. They have to work quickly. That is another reason we are introducing this bill: to try to meet the challenges in the context of working at the border and to help our officers do a good job with a practical test that nevertheless respects the need to remain charter-compliant and respect the privacy rights of individuals. In my opinion, we have struck a balance between the two imperatives.
Senator Dagenais: I would hope that border services officers will be trained to search these devices, because it takes training.
Senator Richards: Thank you, minister, for being here. I find this arbitrary and intrusive. I don’t think what you said today really convinces me otherwise. You know, it’s the same kind of searches I witnessed in Spain during Franco. Who gets to decide whom to search, and how in God’s name can we ever be fair or impartial during these searches? I don’t think you have convinced me that you can be.
Mr. Mendicino: Let me try to persuade you, senator.
First, I want to acknowledge that we should all be very much committed to protecting the protections that are contained in the Charter, including the right to be protected against unreasonable search and seizure. I will just let senators know that I worked on the front lines of the criminal justice system as a prosecutor for nearly a decade. I understand very well, as do our government and officials, the need to be sure that we are protecting people’s rights. We take that responsibility very seriously.
With regard to addressing the specific point about arbitrariness, this new threshold of “reasonable general concern,” first and foremost, localizes the authority under the Customs Act at the border. This is not a power that can be used outside of the border context; it is specifically designed to address that particular set of circumstances, which the Supreme Court of Canada has previously ruled does attract a lower expectation of privacy because the borders are vulnerable ports of entry.
It also makes the search specific to the traveller. That is to say that the grounds have to be based on objective, reviewable factors that are gathered by the officer in relationship to the traveller that is before them and/or the device that they are carrying with them or that is travelling with them.
So when you look at these factors, we are trying to both respect the Charter and ensure that officers are accumulating objectively discernible facts that can be reviewable before they conduct their search of the personal digital device.
Senator Richards: Thank you for that.
I just have a quick followup. It is still up to the officer doing the investigation. It could be or might be quite subjective, depending on the time of day or night that he decides to do it. There are no real ground rules here that will cover all situations and all peoples. That is what gets me quite concerned, sir.
Mr. Mendicino: Again, senator, it’s entirely fair for you to ask how it is that we at the CBSA intend to circumscribe this power. I have articulated how the triggering of the threshold has to be informed by objective, reviewable factors. In addition to that, I would highlight that there is also a requirement that officers be designated by the President of the CBSA prior to carrying out these searches. There is a requirement that they be trained prior to designation, and there is a requirement that they take notes, which will lend itself to transparency and review, if necessary.
So you’re right to urge the government to express restraint prior to implementing a flexible standard, but on the other hand, we are very concerned about the importation of contraband, like child pornography, that could cause a threat to public safety.
Senator Jaffer: Minister, it’s always a pleasure to welcome you to the Senate. I miss working with you while you were Minister of Immigration.
Minister, I have listened to you very carefully. I have difficulty accepting what you’re saying. When you talk about note taking, I get that; if somebody comes, the border officer takes detailed notes. However, when nothing is found, there will be no notes taken, and you will have no way of knowing how many people were stopped.
Let me tell you specifically what I mean.
Over the last 20 years, I’ve been working to stop racial profiling, especially when it comes to the CBSA. I could give you a lot of examples — personal examples, too — but this is not what I’m going to do. I cannot help thinking that this will lead to racial profiling and systemic racism at the border. I’m very concerned about further racial profiling under the “reasonable general concern” test. I don’t understand how this won’t lead to racial profiling and systemic discrimination.
I already mentioned that you said note taking, but I’m not convinced about that, because if nothing is found, notes won’t be taken. You will not even know that people have suffered the indignity of a second exam.
So, minister, I want to say to you that this is just going to increase racial profiling at the border. I know about the indicators — I’ll ask officials about that — but I want to know how you personally are going to keep an eye on this so that people who look like me do not suffer an unnecessary second examination.
Mr. Mendicino: First and foremost, I want to assure you that we take systemic racism and racial profiling extremely seriously, not only at the CBSA but right across every branch of law enforcement. Indeed, officials in every branch of law enforcement, to their credit, acknowledge that it exists and that we must root it out. This is a challenge around which we must all be united.
I also want to assure you as well, senator, that the mandate letters that I have issued following the mandate that was given to me by the Prime Minister do require, in very express language, that all agencies continue to do the important work of rooting out systemic racism in all of its forms. What does that mean? It means better training, being culturally sensitive and being aware of the biases that have infiltrated the way the work has been done.
Last week, as I mentioned, I introduced Bill C-20, which, for the first time, creates a new commission that will be in a position to engage in civilian review of the CBSA. It will also require the new commission to collect race-based data so that we can better inform our policies to root out the kinds of harms you mentioned.
So you are absolutely right to underline this as a concern, but I assure you that I am here, and I know my officials share this view, that, fundamentally, we will do what it takes to root out the systemic inequities within our system.
Senator Jaffer: Minister, there is nothing I doubt regarding what you’re saying and your commitment. But the thing is that the note taking does not help the person where nothing is found but where they suffer the indignity of a second exam. There will be no note taking if nothing is found and the person goes on their way, except that the whole world saw that person go to a second exam.
Privately, I will talk to you about all the things that have happened to me and my family, but not now. I want to say to you that’s the challenge with this. You talk about note taking, but it doesn’t affect the racial profiling of a person where there is nothing found.
Mr. Mendicino: Senator, I assure you, we are prepared to rise to that challenge. I also want to assure you that CBSA officers are required to take notes in every case, including where they don’t find anything in the examination.
Finally, senator, I would just point out that I know how important this work is. That’s why we launched the commission last week. Even in an instance where there is a concern about whether or not there may have been a lack of record of the interaction between the individual and CBSA, the complaints mechanism through the new commission does afford greater transparency and accountability. We think it will be a way in which we can to foster a more equitable and fair system.
Senator Jaffer: Thank you.
Senator Yussuff: Thank you, minister, for being here.
Let me start with recognizing that the folks who work at our borders do not have an easy job. They are there to guard our security and, to a large extent, to ensure that somebody looking to cause harm does not come into the country.
More pertinently, there are former members I had to represent in the Canadian Labour Congress, so I have a bit of a bias. Putting that aside, I recognize it is not an easy job that they have to carry out.
You said that the new standards that will apply to CBSA officers will be higher and need to be objective, but objectivity is still subjectivity, because exercising the objectivity requires one to be clear-minded, of sound judgment and without any bias.
You gave a very good example of somebody coming back and being examined by an officer who exhibited all the qualities that you would make you want to examine them further. But there are a lot of people who look like me — are dark-skinned — and will exhibit all of those things that you gave as an example. I think it’s reasonable to suggest that there would need to be a lot of training, because, as you know, people who have to subject themselves to law enforcement don’t necessarily respond that way. Most of the people I’m talking about will originate from countries where child pornography and the exploitation of children occur; they are coming from those countries, because they are former citizens of those countries.
So, again, to pursue what my colleague asked you, how will we be able to understand the data that will be collected by CBSA in terms of when they examined somebody found to be carrying material that violates our laws?
Also, individuals who are innocent of any violation, how would we be able to make sense of the data and ensure that whatever bias may exist around CBSA officers determining who needs further examination — how they actually enforce the law at the border?
Mr. Mendicino: Thank you for the question, senator, and for your advocacy and acknowledgment of the challenges that our front-line officers at the border face. You are quite that it is not an easy job, but by and large, they discharge their responsibilities to the best of their capabilities.
I also want to thank you for sounding a note of caution as we establish this new threshold. It is a novelty, and I accept that.
In regard to your question and Senator Jaffer’s question around institutional biases that could lead to differential treatment on the basis of race, among other immutable qualities, I know from my conversations with the CBSA president and our officials that it is something that they take very seriously. The statistics that we accumulate at CBSA, as well as the new obligation of the commission once it is established under the legislation that I introduced last week, will require the collection of race-based data that can be disaggregated and broken down in a way that is very transparent and will allow us to detect and correct where there may be institutional biases that are materializing despite best intentions.
You are quite right, as is Senator Jaffer and all of our colleagues, to really urge that we show care and attention to that issue, which is why training will be required prior to designation. I am certainly confident that as this new regime comes into force, this will be one of the issues that will be addressed within the training so that individuals who are interacting with CBSA officers get the best and fairest treatment when they interact with CBSA.
The Chair: Thank you, minister.
Senator Anderson: My question is about clause 3, which would add subsection 110(3.1) to the Customs Act. Subsection 110(3.1) would state the following:
An officer who exercises the power referred to in subsection (3) may make an electronic copy of a record or document if it is impossible or impractical to seize anything on which the record or document is stored . . .
Under what circumstances would that occur?
Second, how will court services ensure that the information that they electronically copy is secure, not compromised and an accurate reflection of the document or the record?
Mr. Mendicino: Senator, thank you for that excellent question. And I’m not just saying that because I posed those questions to my officials in preparation for my evidence today before this honourable committee.
My response, in the first instance, is that prior to making a copy, the designated officer has to form some grounds to believe that it would be impracticable to maintain access to the information that they are searching and/or may be concerned about its loss or destruction over the course of the examination. That would be the first threshold that needs to be crossed before a copy can be made, and my officials can expand on that.
Second, I want to assure you — I sought these assurances myself — that the federal Privacy Act does trigger protections, once a copy is made, to ensure that it is preserved and not kept for any longer than is permissible under the law. That is an important protection that is enumerated under the Privacy Act and, of course, would also be enshrined under section 8 of the Charter.
Senator Anderson: Could you tell me how long a record would be held before it is removed?
Mr. Mendicino: I’m sorry, senator. I believe the answer is two years under the federal Privacy Act, but I want to be as precise as I can be. I’m going to defer to Ms. Aceti or Mr. Millar to confirm.
Julia Aceti, Director General, Traveller, Commercial, and Trade Policy, Canada Border Services Agency: Under the Privacy Act, if an administrative action is taken, the requirement is to retain the material for two years. That could be extended if there were an investigation that would take longer than that, as the material could be held for the duration of the investigation. Otherwise, it would end there.
The Chair: Thank you very much.
Senator Boehm: Thank you very much for joining us today, minister. I have a question about the partnership. This involves, obviously, the Canada-U.S. partnership. In my previous career, I was involved in some of the pre-clearance negotiations and our wishes to ensure that everything was handled in a fair manner.
What does “reasonable general concern” mean in the mind of a U.S. pre-clearance officer? How do we know that individual has been trained enough, depending on where they have been rotated from? Maybe they are not completely acculturalized to us, or it may be on social media they never will be, I don’t know. My question is: How will the government cooperate with the U.S. side in doing this? What happens?
We have talked about pilot projects for pre-clearance for Canada and the United States for about 20 years. It has not happened. And all of the U.S. pre-clearance officers, of course, are here in Canada, so there is a bit of an inequality there, at least in terms of perception.
What happens if the U.S. border enforcement officer asks a Canadian for the password and the Canadian refuses? What would be the impact of that?
Mr. Mendicino: Mr. Chair, I’m beginning to think that colleagues at the table saw all the questions that I put to my officials in advance of my appearance today.
I again want to thank you, senator, for posing the question about the relationship and partnership with the United States. I would begin by pointing out that in the United States, there is currently zero legal threshold for searching of personal digital devices, but in the context of those U.S. pre-clearance officers who will be working on Canadian soil for the purposes of determining entry into the United States, they will have to apply the threshold that we have established, and that is “reasonable general concern.”
I will also point out, and then perhaps turn to my colleagues to add a bit more granularity, that under the pre-clearance treaty, U.S. pre-clearance officers are authorized to conduct searches without being subject to Canadian qualification. However, U.S. pre-clearance officers must complete mandatory training before deploying to Canada to ensure that they understand how searches are conducted in Canada, according to Canadian law, including this law — if and, hopefully, when it passes — as well as the Charter.
I will turn to Mr. Millar to add more.
Scott Millar, Vice President, Strategic Policy, Canada Border Services Agency: When it comes to passwords, by law you need to provide a password under section 13 of the Customs Act. If you don’t, we will detain that item and basically have the code cracked so that we can see that information.
That touches on the password piece, but as it relates to some of the larger points you made around pre-clearance, senator, I do note my colleague, Randall Koops, from Public Safety Canada is here. He was running point on pre-clearance.
Randall, I’m not sure if there is anything you want to add.
Randall Koops, Director General, International and Border Policy Directorate, Public Safety Canada: Senator, just to add to what the minister said, the law obliges that U.S. pre-clearance officers in Canada be trained to the Canadian standard. The Minister of Public Safety is responsible for that. That training is delivered by CBSA. So there will be Canadians training the U.S. officers to the understanding of the Canadian threshold. They will be obliged by law and by the treaty to abide by that Canadian threshold.
Unlike CBSA officers, where there will be designated officers to perform these types of searches and there will be other officers who are not, the intention is that all U.S. pre-clearance officers in Canada will be required to undergo the training to conduct the search of a personal digital device.
Senator Boehm: Would CBSA be involved in the training?
Mr. Koops: Yes.
Senator Boehm: This goes to the heart of the question posed by Senator Jaffer and Senator Yussuff as we look ahead.
Senator M. Deacon: Thank you for being here, and thank you to all of the border services. The work has been particularly challenging over the past three years and seems to get more complex and more in the public eye than ever.
Thank you also for your elaboration on that “reasonable general concern” language versus the “reasonable grounds to suspect” from the 2017 House committee. That was helpful.
I’m not sure if this question was part of your rehearsal, but I’m looking at the proposed legislation where it says a border officer can examine documents that are stored on a personal digital device. As we know, much of this information can easily be deleted from our phones and then can be stored elsewhere. For instance, I can sign out of my Apple account and delete my messages before I enter an airport, purposefully, but they would still exist in the cloud for me to access later.
My question today in pondering this is: Does this legislation empower border guards to access documents that are stored in a cloud-based server, or is the language that is used, the reference to “stored on a personal digital device,” mean the search is limited to what remains on that device at that moment, the second, it is taken from the individual in question?
Mr. Mendicino: The short answer, and it is a good one, is if the threshold of “reasonable general concern” is met, then that empowers the CBSA officers to search documents, and there are enumerated examples of that what includes — documents, emails, photos — that are physically stored on that phone. As part of the protocol of the search, officers will be trained and instructed to deactivate the antenna and any wireless signal that would allow access to the cloud. So that is another way, if you will permit me to go back to another concern articulated by senators, in which we are circumscribing the search to strike the balance on that particular threshold of “reasonable general concern.”
Senator M. Deacon: Thank you. I would give a comment here quickly instead of a question. I’m just so hopeful and optimistic, and somewhat begging, that through this legislation, the commission and other good work that is intended, these conversations around racial profiling, discrimination and exclusion no longer become part of the conversation. That’s what I’m so hopeful for.
Mr. Mendicino: Senator, I think we all embrace your exhortation, and we know that you, all colleagues and parliamentarians have an expectation that people have a relationship with CBSA and all law enforcement that is rooted in respect, trust and integrity. That is one of the reasons why we have elaborated on the training that will be provided to officers prior to being designated to conduct searches under this new law, as well why we are creating and establishing a new commission that will collect race-based data that can be disaggregated. Through these measures, we are responding to the challenges that have manifested for far too long in our institutions when it comes to systemic racism. We completely agree with you.
Senator Wells: Welcome, Minister Mendicino. I have a question about the special training for certain CBSA officers. Will that special training be for the primary or for the secondary?
Mr. Mendicino: Well, I may very well turn to my officials to elaborate. The training for this particular threshold in this particular situation of a personal digital device will be conducted in a secondary inspection or examination.
Senator Wells: I understand that, minister. That’s clear. But the specialized training to recognize people under the category of “reasonable general concern” — you mentioned shifting weight or sweating or country of origin aspects — would be at primary, I assume, because secondary is where the bags are opened. I’m just wondering where the specialized training comes in. Will it be for the people who are trained to recognize based on “reasonable general concern” or the people in secondary who will be searching devices and bags?
Mr. Mendicino: I’m going to do my best to unpack your question, but I think I understand it. As a general proposition, CBSA officers are provided with rigorous training prior to taking on the job where they are taught about these different thresholds. So it is “reasonable grounds to suspect” before conducting a strip search, let’s say, of an individual who is sent to secondary. The training will be on how to conduct a basic inquiry at primary that will allow them to determine whether or not “reasonable general concern” exists when it comes to personal digital devices, and then if that threshold is met at primary or secondary, then it will enable them to search the personal digital device.
Senator Wells: We were told by your officials in two briefings that I had that it was policy that digital searches are done with connectivity turned off. I don’t want to say airplane mode because you can have Wi-Fi access even on airplane mode. We were told that [Technical difficulties] and specifically, no one told me about turning off my connectivity when I volunteered to pay the additional amount from my purchases.
You had mentioned in your remarks, or in an answer maybe to someone else, that the specially trained officer would turn off connectivity, or would the passenger be given that right to turn off connectivity?
Mr. Mendicino: The instruction will be on training that once the device has been turned over to the CBSA officer to conduct a “reasonable general concern” search, once they have gotten past the password, the officer should immediately deactivate the cellular or antenna signal so that the search will be limited to only that information that is stored physically on the device.
Senator Wells: I was told the policy is now hoped to be legislation. Will the legislation require that the officer turn off that connectivity, or will the passenger be given the right to turn off that connectivity? How does that play out? That’s an important aspect of the privacy issue.
Mr. Mendicino: It is a very practical question. The instruction will be that the officer is responsible for deactivating the antenna signal. I assume — again, officials can elaborate — that even in a situation where a traveller volunteers to turn it off, it will still be the responsibility of the officer to verify that the signal has been turned off since that is consistent with the training.
I would point out your questions are entirely appropriate because they are precisely what is informing the training module that will be necessary prior to a CBSA officer’s designation, which, I would hasten to add, is a direct response to one of the Privacy Commissioner’s recommendations, namely, that we establish a legal framework prior to establishing this new threshold.
Senator Dalphond: Thank you, minister, for being here. My concern is about this new threshold you would like to have in the law. The current Customs Act requires reasonable suspicion to get access to mail in order to check if there is illegal material — that could be child pornography or something else. The Supreme Court has ruled that in order to have the sniffer dogs at the airport that come to you and sniff your luggage, the officer must have reasonable suspicion. The House of Commons in its report in December 2017 has recommended we go for reasonable suspicion. However, you refuse to go that way. You propose to instead have a new threshold, which is undefined and will be defined by the courts over the years and ultimately by the Supreme Court and will bring a certain amount of uncertainty in the system for maybe two, three or five years. Why is it so advantageous to set up a situation of such uncertainty rather than going for a threshold that brings certainty?
Mr. Mendicino: I’m happy to answer that question. Before I do, I have had a chance to meet some of our canines that work for the CBSA, and they and their trainers do remarkable work.
I hear you about the concerns about establishing the appropriate threshold, which, as I have tried to explain, is really about striking the right balance between the two imperatives — namely, addressing the social harm in the potential importation of very harmful content such as child pornography or hate content and hate speech, which sadly we are seeing infiltrate more into our public discourse, and other potential harmful content — with the need to protect the rights of the individual from unreasonable search and seizure. I think the court contemplated this. We have taken a look at the spectrum of what legal thresholds exist and what they allow CBSA officers to conduct in the way of searches, and we have found ourselves in the middle, a happy compromise between luggage, for which there is a zero threshold — anybody can be a subject to a search upon entry without there being any grounds, and that is well-established law following the Supreme Court of Canada’s ruling in Simmons, given the unique situation at the border — and the higher threshold that is required, like “reasonable grounds to suspect,” for more invasive searches, including searching the body. I would argue that searching a phone is not as invasive as searching someone’s body, so we have created this new standard that situates itself right in the middle of that continuum.
Senator Dalphond: I submit that having your computer checked is more invasive than having a dog sniffing at your suitcase, and nevertheless, the Supreme Court has said reasonable suspicion is required.
Mr. Mendicino: Fair enough. In the course of that investigation, if the dog were to detect something in the way of contraband on a person, it could lead to a very invasive search.
We think we have found the right place on the continuum with this new threshold, and I have expanded on how the factors that allow for the officer to exercise the search have to be objective, have to be in the border context, have to be localized to the individual, have to be localized to the general enforcement of the Customs Act or other enforcement responsibilities that are carried out by CBSA.
The Chair: Thank you, minister.
Senator Dasko: Thank you, minister, for being here. I wanted to follow up on your example you gave with respect to the hypothetical person who would appear at a border crossing, would have no eye contact, would be shifty and sweaty and the other characteristics you provided. Why wouldn’t you be able to search this type of a person if you had a higher threshold? Would you not be able to search this person if the threshold were actually higher, “reasonable grounds to suspect?” If a person is behaving in a suspicious manner, wouldn’t that person qualify under the higher threshold? Why is it that you need the lower threshold to examine someone who has the characteristics you described?
Mr. Mendicino: To begin, if the higher threshold were met, then we would be entitled to do a more invasive search, like a secondary or body search. I presented that hypothetical in part because the case of Canfield, which came from Alberta, pointed out that that threshold was not met. The hypothetical underlines there may be doubt as to whether or not the higher threshold is met. Rather than continue to allow that contraband, that harmful content, to enter into Canada, we have established this new threshold that distinguishes itself from the higher test of “reasonable grounds to suspect” by not requiring the same kind of localized concerns around specific provisions of the Customs Act, which would otherwise be required for the higher test.
That’s why we say this new threshold is more flexible and reflects the need to address the social harms that I have identified.
Senator Dasko: I have another question about the data collection you are proposing. We have heard you are going to collect race-based data. Will you collect other types of data, for example, gender and age data, and what about Indigenous data, which is not the same as race-based data? Those are different measures in the way background data are collected. Also, with respect to national origin or nationality, what kinds of data are you already collecting? And, if you are not collecting this data now, what types of data will you be collecting along with these kinds of basic demographic data?
Mr. Mendicino: Thank you, senator. First, I envisioned that the new commission that will be established once Bill C-20, which I introduced last week, becomes in full force and effect will collect exactly the categories of race-based data that you provided in your the examples so that we can be very proactive in determining whether or not there may be unconscious or institutional biases that are manifesting in the interactions between CBSA and the traveller.
I’m happy to defer to Mr. Millar to expand on whether or not we collect some of that data now.
Mr. Millar: Consistently, we are looking at this issue. Obviously, when it comes to the Privacy Act, departments can only collect information that is consistent with their mandate and the authorities that they have under their own respective enabling legislation. At the same time, we want to make sure we have information that informs our work and that we are not inadvertently affecting a certain travelling population. It is ongoing work. We can get back to you with a more extensive answer on that.
Senator Boniface: Welcome, minister. With respect to your standards that will be put in place with the training, would I be correct to assume that training will include the Privacy Act and the protections that fall within that? They are already trained in evidence collection, but I assume that they will be trained in it in the context of “reasonable general concern.” Would that be correct?
Mr. Mendicino: Yes, and as part of the broader training they receive as well.
Senator Boniface: You indicated that every case would have a record that would be made and kept for a period of two years whether or not a person is charged or not. Was I correct in hearing that?
Mr. Mendicino: Let me clarify. In a case where a copy of a document that is seized in a personal digital device is made, as you heard from Ms. Aceti, there is a requirement under the Privacy Act that that record be kept for two years. There could be circumstances that lead to an extension. That is one clarification.
The other is there is an expectation that CBSA officers keep notes of all their interactions during the course of their duties. I will leave it to Mr. Millar as to how long those notes are required to be kept.
Mr. Millar: The notes are there to support review, both management oversight and external review as well. They’re kept as long as they’re pertinent.
On the destruction of records, they are certainly retained for the evidence where there is a regulatory offence, but when there is not, perhaps Julia Aceti or Scott Nesbitt can speak to that.
Ms. Aceti: To clarify, the two-year time frame we’re speaking of is when there is an administrative action taken — some kind of measure there. Otherwise, that wouldn’t apply. But we may have to come back to you to confirm just for all notes what their retention period would be.
Senator Boniface: It would be helpful for the committee to understand that you looked at other jurisdictions. I look at the U.S. and the U.K., and neither one of them have this standard in place. The standard you’re putting in place would be higher than both of those jurisdictions. Is that correct?
Mr. Mendicino: That is correct.
Senator Boniface: Thank you.
The Chair: We want to thank you very much for taking the time with us today and for helping us to better understand the proposed changes and their practical implications. We wish you well. We’ll be spending more time with your colleagues from the public service.
Mr. Mendicino: Thank you very much.
The Chair: We are continuing now with Mr. Koops, Ms. Aceti, Mr. Millar and Mr. Nesbitt. They will be with us for the remainder of the meeting, as they have agreed to stay behind and continue answering our questions.
Moving forward, I ask that members identify to whom they are addressing their questions if at all possible.
Senator Jaffer: I want to continue with what the minister said. More specifically, I know about indicators. We all know. I have had too much time learning about what you do. My worry is that the indicators don’t really cover issues of racial profiling. Unfortunately, we are all the products of our birth, upbringing and stereotypes.
I want to hear from both of you and from Mr. Koops. What specific measures are you going to put in place that will be different? This test is the lowest it can ever be, so what additional things are you going to be putting into place to make sure that there isn’t racial profiling?
I’m not talking about the example the minister gave. Obviously, that is very legitimate. I’m talking about people like me who have suffered the indignity of a second exam when it wasn’t necessary.
Mr. Millar: I can start off. There are a few things. One is that racial profiling is illegal. That already existed as a prohibition. As the minister touched upon, the values of CBSA —
Senator Jaffer: I apologize. I don’t want to be rude and interrupt you, but we all know it’s illegal. That doesn’t make me feel good when I’m sent for a second examination. I don’t want to talk about it here, because I don’t want to make a bigger issue and tell my colleagues that I’m sent for a second examination all the time, because it doesn’t make me feel very good.
That is illegal. I know that. I worked hard to get that. For 20 years, I’ve been working in Parliament to do that. That doesn’t mean it’s not being done. Let’s move on from there.
Mr. Millar: Okay, maybe I’ll talk about a couple of things. One is that policy that exists now will be enshrined in legislation. So there is a matter of course of how we conduct these examinations and the thresholds and the objective indicators required. Race is not one of those indicators that anyone is trained on, because, again, we are not allowed to, nor should we be allowed to, collect based on that. So the objective indicators are enshrined.
The training is required. Officers have to be designated. There will be review, not only that exists now, say, under the Office of the Privacy Commissioner but also under the new review and complaints commission that the minister mentioned has been proposed. Should Parliament pass it, that would also have that. There is the note taking as well.
So those are all pieces. Frankly, some of those have existed in policies since 2015. This will enshrine those requirements in legislation. Then a review is also available when the courts review respective cases. Those are some of those measures.
Maybe the only other thing is that when it comes to the examinations that we do conduct, in 2021, up to 19 million travellers came in and out of Canada. We conducted around 1,700 examinations of personal digital devices. We had a 27% resultant rate. For other types of examinations, it’s 4%. Some months, it’s 40% or 47%.
That is all to say that not only is racism illegal and against our values, but it’s also operationally — if I may be frank — stupid. It does not help us get the kinds of results and rates that we’re talking about here. It is those objective indicators around somebody who lied or were inconsistent in their information, or maybe we have information from another partner or we have examined their goods. We are seeing a problem there — an inconsistent pattern. So that’s the other element. Not only is there a legal or moral incentive, but operationally, there is an incentive not to do race-based profiling.
Senator Jaffer: You have said all these things, but you haven’t told me what indicators you will put in place.
Mr. Millar: I see.
Senator Jaffer: Maybe I didn’t make it clear. I apologize. So what specific indicators will you use?
Mr. Millar: There is a multiplicity of indicators. Some will be behavioural, and the minister gave some examples of that. It will be people sweating and people not making eye contact. None of that would be enough for the threshold. There are the other pieces in terms of what their travel itinerary is and how much luggage they have. Part of this is also undeclared and undervalued goods. So if one person goes away and they come back with seven bags of luggage, that’s interesting.
There are some indicators that I won’t list exhaustively in a public space because they are useful for us to be able to keep prohibited goods out or to properly process undeclared goods. But they are objective indicators, and they are not indicators related to race in any way whatsoever.
There will be an exhaustive list that officers will receive. Not all of those indicators will be public. There might be some things that would be adverse information shared with international partners around a certain person who may have conducted certain activities in their country that we should be aware of, or they might be on an alert.
The Chair: Thank you, Mr. Millar.
Senator Wells: I want to ask the official who had mentioned “code cracked” after confiscations during our questions to the minister. I’m not sure who that was. I couldn’t read it on my screen.
Mr. Millar: That was me, senator.
Senator Wells: Thank you.
So if the digital device is confiscated because someone is not going to give their password, and that code is cracked, as were the words used. Would the search be done with connectivity on or off? Will the policy or the rule still be respected?
Mr. Millar: The rule will always be that the first thing an officer must do is kill connectivity to the device.
Senator Wells: I understand that. But after that, if I say I’m not going to tell you my password, and you take my phone and it goes to some place and the code is cracked, will the search be done with connectivity on or off? Because I assume it would be done off-site.
Mr. Millar: Off.
Senator Wells: Is there any assurance to the passenger — or to Canadians — that this would be turned off?
Mr. Millar: Well, the legislation and the regulations, but maybe I’ll turn it to Scott Nesbitt, who is our lawyer. I’m going to lawyer up on this one.
Senator Wells: I do have another question on connectivity, so don’t go too far.
Scott Nesbitt, General Counsel, Department of Justice, CBSA Legal Services Unit Canada Border Services Agency: It’s still the same examination authority that would be used after the password is cracked, so the same limits would apply, including the fact that the officer cannot access anything except data stored on the device itself. So network connectivity would have to be disabled after the password was overridden.
Senator Wells: Mr. Nesbitt, there is still no assurance to the passenger that this would be done, because I assume he wouldn’t be in the room when that is being done.
Mr. Nesbitt: Not if the device —
Senator Wells: Whereas in secondary, the passenger was standing right there.
Ms. Aceti: May I add something to this response? In those instances where the password is not provided and CBSA, under the Customs Act, detains the device for it to be unlocked, the device would go to our lab. It would be unlocked there, and then it would be returned to the officer to resume the exam. The exam would not be conducted by the lab off-site. It would return to the officer, and they would be subject to the regulations that do prescribe that network connectivity be disabled.
Senator Wells: Thank you. I have a question on connectivity because I have heard four terms, and I want to be correct on them. I heard the minister mention “antenna signal.” It’s the first time I have heard that term. I have heard “disconnecting Wi-Fi and cell.” I have heard “airplane mode” — we’re familiar with that — and there was discussion at second reading on “digital connectivity.”
What is the right term to use to ensure we’re obviously saying the right things? Because I can put it on airplane mode but still access the internet, for instance, through Wi-Fi. So what is the correct term we should be using? What does that encompass?
Mr. Millar: “Connectivity.” It is ultimately about only searching what is on the device. So the way things proceed is that it’s only ever what is on the device and not imprecise language that allows us to go broader than that.
Senator Wells: Would it be digital connectivity or network connectivity? We’re making law, and we have to be precise, so I want to know.
Mr. Millar: Network connectivity, yes.
Senator Wells: All right, great. Someone mentioned — I think it was the minister, actually — that regulations on Bill S-7 are now being drafted. Is that correct?
Mr. Millar: That is correct.
Senator Wells: Because this legislation grants the right to draft regulations, can the committee get a copy of the draft regulations?
Mr. Millar: I’ll take that back, senator, in terms of the appropriate timing around that. This is ultimately something that would be approved by the Treasury Board Cabinet Committee, but it will lay out all the elements of how we will do that.
We could provide more information on what is envisaged to be in the regulations, which would be designed to come into force at the time that this legislation comes into force, recognizing that they are a key part of the accountability measures for this new threshold.
Senator Wells: Sure. Thank you.
Senator Boniface: Thank you to the officials for being here. I wanted to focus on a couple of things, particularly around training. I want to have a good understanding of the level and type of training CBSA officers go through, particularly around those officers who will be dealing with this issue. Can you give us a little more detail?
Mr. Millar: Yes, I’ll start, and then look to colleagues to add.
As the minister alluded to, there is intensive training. We have our CBSA College, where a border services officer learns all the tools of their trade. They are trained now under our existing policy around the search of personal digital devices, including indicators that are used, terminating network connectivity and the like. As well, as has already been discussed this morning, there is training around diversity and race relations.
Then, obviously, there is training on the job after they have graduated from the CBSA College. Obviously, the supervisors and management play a role in terms of guiding them in that on-the-job aspect.
All this to say that what it means to be security officer is a mixture of elements that are broader than what is laid out here in the legislation, but it already includes many of the elements that are covered by the legislation. However, obviously, enshrining the threshold in legislation will further enrich our training around indicators. They will be trained on the regulations themselves, which will cover the note taking and all the elements around things like when the device was searched and for what purpose, what was found on it, what the disposition of it was, what applications were looked at and what the duration was — so a number of those different pieces. Obviously, the training will be further enhanced by the legislation.
Senator Boniface: Thank you. I’m trying to be quick here. The minister made reference to the searches and the result of the Alberta and Ontario decisions. I imagine that you’re tracking something. Can you enlighten us at this point as to what the impact of those two court decisions have been? Are you at that stage yet?
Mr. Millar: For those two provinces, it’s now “reasonable grounds to suspect” to be able to initiate that examination. The early data is showing us that our examinations have dropped by 60% as a result of that higher threshold. That’s what we’re seeing so far, and that is concerning.
Senator Boniface: Thank you.
Senator Yussuff: Witnesses, thank you again for being here.
The minister indicated that the regulation is being drafted. But will the regulation be subject to the same public process of gazetting and public comments? Could additional changes or recommendations come from the public process?
Ms. Aceti: Thank you, Mr. Chair. I would say we already have published an intent to regulate to start to solicit any input from the public on the regulation to support the transparency that you’re seeking. So we have done that. That was supposed to be for a period of 30 days, and then we’ll proceed with the regulatory process with Treasury Board colleagues.
Senator Yussuff: Once you publish the actual regulation, would the public still be able to see it? We don’t know what it is you’re drafting. We haven’t seen it yet. Obviously, it is guided by the legislation and what the minister has indicated, but when would the public get a chance to actually look at the regulation and not just comment about the fact that you’re drafting the regulations?
Ms. Aceti: Right, so there is some urgency in finalizing the regulations so they may come into force alongside the legislation. We need to consider whether there will be that publication timeline factored into this, which is why we did post the consultation notice and can describe here today the way regulations are expected to contain the requirement that officers disable network connectivity and take detailed notes in the context of the exam. The regulations are designed to create limits on the conduct of the exam and to work in conjunction with the legislation, which provides limits on the initiation of the exam. Again, the two pieces work together to create the limits and controls called for by the court.
Senator Yussuff: You indicate that we are obviously going to have a new public review complaint commission. It would seem to me that this complements the legislation the minister is proposing here. The other side of this, of course, is that it is coming after the legislation that is before us being passed.
Again, I suppose when it gets to the Senate, we’ll have to examine to see the consistency, how they complement each other in regard to some of the points that have been raised by myself and other senators on this committee.
What is the timing? I shouldn’t ask you that question. We will find out sooner or later when this legislation will get through Parliament and over here so we can see the complementary aspect of the public complaints commission to deal with some gaps that we may want to correct, senators, in regard to this new piece of legislation.
Mr. Millar: Absolutely. As you say, I can’t opine on the will of Parliament in terms of the level and duration of scrutiny around this and what might be adjusted, but clearly it’s a piece that is important in terms of ensuring robust review and that we are held to account for how we administer this legislation. There is also the Privacy Commissioner and courts as well.
Public Safety Canada has carriage for the review commission. It would be inappropriate for us to have carriage of the legislation for which we’re reviewed.
Mr. Koops, I don’t know if there is anything you want to add there, but I think it’s tricky to surmise on the timeline.
Mr. Koops: Indeed, Scott. The bill was introduced the week before last. It is awaiting second reading in the other place. The minister has called on his MP colleagues there to pass the bill quickly.
I would note, for the purposes of the committee, that this bill that is before you, and Bill C-20, do not coordinate in their amendments. They are amending different things. The types of searches that are being discussed here would, of course, be reviewable by the new commission, either in response to a specific complaint about a specific instance or under the commission’s broader power to review what we refer to as “specified subject matter” or what would be a broader policy review.
In the meantime, they do not coordinate one to the other. They are, obviously, aligned, but they are amending different things.
Senator Yussuff: Thank you, witness.
Senator Dalphond: If I get through my questions, I would like to ask the department to do a follow-up.
The minister said that there are no criteria and that we are agreeing to have higher criteria than in the U.S. and the U.K. I have the Customs and Excise Management Act 1979. Section 163A refers to the power to search articles. It is given to the border officers if they have reasonable grounds to suspect. Section 164 gives the power to search persons if they have reasonable grounds to suspect.
Will the department confirm that they have reviewed the legislation in the U.K., especially, and in the U.S., and confirm that it is not “reasonable grounds to suspect” which is being used in the U.K.?
I’m asking, Mr. Chair, if the department can follow up with the committee and let us know, because the minister seems to have said that there were no criteria, was no threshold, in the U.K.
My other question follows from what the minister said and what you said, Mr. Millar, before. It’s about what has been the current practice in Alberta and Ontario. You said that the impact of having “reasonable grounds to suspect” being used has reduced the number of searches by 60%. Could you tell us about the 40% that were conducted? What was the rate of success?
Mr. Millar: I couldn’t do that offhand. What I was saying is that there was a 60% reduction in examinations. That’s any examination, whether successful or not successful. That is an early indication that we have on that side.
Senator Dalphond: Sixty per cent fewer?
Mr. Millar: Fewer examinations.
Senator Dalphond: Of computers, iPads or in general?
Mr. Millar: Personal digital devices. Anything that stores digital data that we see as somebody’s property.
Senator Dalphond: Could you provide us information about the 40% that was conducted, the smaller amount, if it was more successful than usual because the grounds were more focused?
Mr. Millar: I’ll turn to Ms. Aceti both on that and on your question on international as well.
Ms. Aceti: Thank you. Perhaps I’ll start with the U.K. Our understanding is that the treatment of personal digital devices in the U.K. is handled under the no-threshold examination authority that applies to goods, so much like the current Canadian model. Personal digital devices are considered inclusive goods in the U.K. and therefore subject to a no-threshold examination authority. I believe section 164, regarding search of the person, is similar to our skin or strip search, which does hold the higher threshold here in Canada as well.
Senator Dalphond: Section 163 is search of articles.
Ms. Aceti: I would have to look at that to confirm, but, again, our understanding is that the definition of “articles” does not likely including personal digital devices, that those would be in the no-threshold category of goods.
Senator Dalphond: You will also check for the data about the rate of success of the focus test?
Ms. Aceti: Certainly.
Mr. Millar: If I may, just on the rate of success, we’ll follow up on that point.
It’s still important to underscore that it’s not that reasonable grounds to suspect will not lead to authority to examine. It’s more that there is a very compressed timeline within which the border service officers only have so much information available to them: they have the person, and they have what they are carrying. It might be the case where we know that a specific contravention and certain indicators are there, but it will also very often be a situation where there are inconsistent answers, behavioural indicators, inconsistent luggage, all the rest. The lower threshold provides the scope not to have to second-guess and pause or stop if the officer does not know specifically if there is a particular regulatory offence. It allows for the escalation of examination to that point. Whether we’re missing anything from not doing more examinations, I don’t want to surmise that everything was adverse either way. However, we know that a process of examination that has been successful to date — to a level much beyond other types of examinations — is not occurring anymore.
Scott Nesbitt, just on the U.K. example, just so we don’t have too many follow-ups here, maybe you can answer all the questions within the committee meeting. Do you have anything to add on that?
Mr. Nesbitt: I don’t have anything to add beyond what Ms. Aceti has already said. Our understanding is that U.K. border officials examine devices pursuant to the no-threshold examination authority that they use for goods, much like the CBSA had been doing under 99(1)(a). They do have a reasonable suspicion standard for the search of persons, but that’s consistent with the Customs Act provisions in section 98 here for strip searches or other personal searches.
The Chair: Thank you. We would appreciate any follow-up material in response to the questions raised by Senator Dalphond.
Senator Dagenais: What worries me about all this is that the Canada Border Services Agency will be given additional responsibility, when we know that there is a serious shortage of staff and that some border crossings have to close early. We are falling back on the main border crossings where there are endless lineups. I look forward to seeing the result of additional responsibilities and untrained border services officers.
As usual, the minister didn’t answer my question about the rationale for the very significant reduction in fines for those who interfere with the work of peace officers during the search. I would like to hear from the border services officers who aren’t here at the table to express their views.
In your opinion, what is the justification, once again, for giving a new advantage to those who do not respect border services officers? I think a significant decrease in fines doesn’t give border services officers any tools. We are giving them additional responsibilities, but we are taking away their tools; I would like to hear what you have to say about that.
Mr. Millar: Thank you for your question, Mr. Senator.
Would you allow me to answer in English to be more specific?
Senator Dagenais: Of course, Mr. Millar, we have translation.
Mr. Millar: The responsibility for CBSA to conduct these examinations does exist now, and the policies and operational bulletins that have guided our work have guided us since 2015 and have been reviewed by the Office of the Privacy Commissioner and have been improved and informed by those reviews, and, obviously, will be enshrined in legislation.
I think an important thing that I would like to underscore, though, is, as you say, senator, CBSA officers are very busy, and there is a lot going on. We do enforce 90 acts and regulations that are not our own. What we were talking about here is in relation to regulatory offences. It is not in relation to criminal offences at all. It will be undeclared goods, undervalued goods — there is quite an economic component to what we are talking about here — as well as prohibited goods where you do capture, as the examples have been given, hate propaganda, child sex victimization and child pornography.
All this to say that this is in that regulatory space. If something — say child pornography, being the clearest example — where there is that overlap with a Criminal Code offence, that information on that device is turned over to the police, and then they move into that criminal threshold space and their own requirements around continuing with that examination. Anything that moves into a criminal space around fines, like summary convictions and indictable convictions, that’s down a separate criminal space where police would investigate that.
At the end of the day, yes, there is the requirement to answer truthfully a border services officer, to make available a personal digital device that will help us to determine whether we need to calculate duties in a certain way based on what has been given, or, again, follow up from the regulatory offence results from other things. But this is about keeping goods from coming in that shouldn’t be coming in or properly valuing the goods, those that should be valued.
Julia, is there anything you want to add to that?
Ms. Aceti: Certainly, if I may just add on the first point, again, as Mr. Millar is noting, what we are doing in this proposal is creating limits and creating controls where previously a no-threshold examination authority existed. The CBSA was authorized to do these examinations previously, and that had been upheld by the courts in a lot of different jurisprudence. In this exercise, we are creating controls and creating a limit. This does not represent a new authority or an expanse of authority for CBSA officers.
Just on the second point, I believe, Mr. Chair, we’re referring to the amendment on the penalty for hindering an officer, so I may just offer here that this amendment is designed to align with a similar offence that exists under the Immigration and Refugee Protection Act, and so the effort there is just to align those two similar offences in those two important pieces of legislation for the CBSA. It, in fact, does not represent a lessening; rather, it makes sure there is both a summary conviction and an indictable offence noted, again, so that those two acts are aligned.
The Chair: Thank you very much for those helpful responses.
Senator Richards: Thank you to the witnesses.
I know this is a broad statement, but I’m going to make it. If you can’t convince me that this won’t be arbitrary or authoritarian, then I cannot in all conscience support it.
The idea of profiling goes beyond race or gender. It goes into a personal opinion of border guards at times, and I’m not sure that anyone can have enough training to stop their own prejudice in this regard.
I’m just wondering if you have convinced yourself that the bill is well-thought-out, or do you think amendments should be given to it by the Senate when it comes?
Mr. Millar: Senator, I do want to leave space for policy-makers to make policies and to defend them and make sure that I’m in the space of answering what this legislation does and was designed to do. Maybe I can make a few general comments.
One is that while the expectation of privacy at the border is reduced, it is not non-existent. A phone or personal device is not what it was 20 years ago. Your whole life can be on your device, particularly where there is network connectivity. While the court has made clear that given this mosaic of circumstances, a no-threshold does not remain consistent with section 8 of the Charter, it recognizes that there would be space, possibly below the level of “reasonable grounds to suspect,” and that is something that, again, prior to this legislation, prior to those court opinions, CBSA has taken on board. Again, this is why we have had these policies today, and this is why the Office of the Privacy Commissioner has looked at it. We have circumscribed by policy and put in place certain protections, but, absolutely, we respect the court. In terms of speaking to the need to legislate the threshold, absolutely, it is excellent to legislate and enshrine what in practice is a requirement now at CBSA. Absolutely, we are happy to be held to account, and beyond other types of external review that happened, the review and complaints body is something that is important to us. The note taking and other elements will support that. There will be the legislative requirement for our officers to follow along.
What I can say is that as I understand it, how this has been designed and how it has actually been touched on in the Charter Statement as well is to touch on both security and privacy and to update the legislation, the Customs Act, to reflect the current environment.
Senator Richards: Thank you. Just quickly I will say that it still comes down to a personal interaction between the border guard and the passenger, and if the passenger feels nervous but has no reason to and is sweating, he can be taken in and strip-searched and his phone identified, and I think that is a plausible indicator of overreach.
I’ll leave it at that.
The Chair: Thank you, Senator Richards. We’ll take that as a comment as opposed to a question.
Senator Dasko: My question does follow Senator Richards’ question with respect to the privacy issues. I would like to drill down a little more on the privacy issues.
Some of the background material we received suggests that the Privacy Commissioner was looking for a higher threshold than we see in this legislation, so I want to ask you about that and what the Privacy Commissioner’s response to this legislation is. If the Privacy Commissioner was looking for a higher threshold, what does that say? Does that bode well for the future of the legislation, then, if the Privacy Commissioner is not entirely pleased with this?
I just want to ask a very minor question with respect to the 60% reduction in examination. I want to make sure that we are not talking about a reduction that might be related to COVID, the overall reduction in travel because of COVID, but rather that the 60% reduction is related to the pool of travellers who present themselves, a reduction in that, as opposed to a COVID-related reduction.
Those are my questions, and thank you.
Mr. Millar: Absolutely. Unfortunately, COVID has been going on for a while now, and the application of the “reasonable grounds to suspect” threshold in Alberta and Ontario is quite recent, given the applicability of that decision. It came into force April 28, if I recall correctly offhand. Hopefully, that addressed your point on that one.
Around privacy, I am so sorry. What was the question?
Senator Dasko: I understand that the Privacy Commissioner —
Mr. Millar: Yes, the Privacy Commissioner. Thank you. Sorry.
Absolutely. I do not want to speak for the Privacy Commissioner, and certainly we have briefed them on elements of the bill, but I will leave it to them to speak to it.
In their 2019 report, there was a recommendation to exclude personal digital devices as a “good.” This legislation makes it a special class with certain limits, because a digital device is a good. We will have importations of iPads and all the rest. It is the examination itself, and it’s the engagement of section 8 of the Charter that brings in the threshold. It did call for the development of a legal framework, which you have before you, and it did call for going from a multiplicity of indicators to “reasonable grounds to suspect.”
Again, as the Charter Statement lays out, the intent of this legislation is to reflect the uniqueness of the border and the reduced expectation of privacy but also the operational exigencies — or demands, if you will — around how this has helped us to date at the reduced threshold, below “reasonable grounds to suspect,” to maintain a level of examination that continues to have a good resultant rate compared to other types of examinations.
Senator Dasko: I understood that the Privacy Commissioner wasn’t onside with the basis here, so I want to confirm that is the case. I was really asking about whether this is going to pose a problem with the legislation as it goes forward in the courts or down the road. Maybe I’m wrong. If I’m wrong in my interpretation of what I’ve read, then I’m happy to be corrected.
Mr. Millar: My understanding is the Privacy Commissioner continues to suggest the “reasonable grounds to suspect” threshold. The degree to which something can be a problem, I will leave to the House of Commons and Senate to determine. Again, I refer you to the Charter Statement. I know it just came out on Friday, but that will speak to the consistency of this with section 8.
Senator Dasko: Thank you.
Senator M. Deacon: My question has two parts, and it is about the practical and functional parts of this work. You talked about the note taking that we read about in the regulations. Would a border official have to note the details of why they enter each app on a personal digital device based on their objective reasoning? Is this something that is already done?
Ms. Aceti: Yes, the regulations will specify that the note taking would have to include a number of factors, as you described: the duration of the examination, which applications were accessed, what the indicators were that led to meeting the threshold. All of those details would be in the notes.
In coming up with those parameters, we did look to the Therens case, another case that describes police note taking, just as a guide — trying to hit precise pieces of information that would need to be included in the notes, again subject to that meaningful review to show those objective and reasonable factors that led to meeting the threshold.
Senator M. Deacon: Thank you. This has come up a couple of different ways this afternoon, but thinking about borders and, of course, water, land and air — at all our different borders.
Can you walk me through this a bit more? Say I’m a citizen and I have arrived — leaving, arrived — and I am in that moment — I’m going to call it the “heat of the moment” — where I feel perhaps unfairly targeted under these new measures, or I might feel that the authorities — bear with me — are abusing their powers to get a look at my photos or messages. Can you talk to us about what that looks like?
Mr. Millar: A couple of things. One is that, again, there will be legal requirements where you have to present goods. You have to answer truthfully to the questions posed. You have to make available, in this case, the password. Again, the Office of the Privacy Commissioner can receive complaints. The proposed review and complaints body will be able to receive complaints. Certainly, we can also receive complaints as an organization and, from a management oversight perspective, look to address concerns. There’s kind of a mosaic there.
Ms. Aceti: Perhaps I’ll briefly walk through a typical process. As Mr. Millar alluded to, all travellers have to make their customs declaration, answer truthfully in that regard and report their goods. They go through primary inspection for that process.
The vast majority of travellers are processed quite quickly through primary. They demonstrate compliance — returning Canadians, visitors, et cetera. That’s where we point to the data point that in 2021, fewer than 1% of travellers were subject to a device examination. The vast majority of travellers coming through process through primary and demonstrate compliance with border requirements and border legislation.
Travellers can be referred to secondary for a variety of reasons. One may be indicators that present at primary, so inconsistent information that the officer feels should be explored further. There could be a target that is issued based on a pre-screening pre-arrival. That could be outstanding warrants against an individual, a previous criminal history, et cetera. Or there could be a random referral to secondary.
In the case of travellers going to secondary, the officer at secondary would continue questioning. The device search would only happen in secondary examination. But again, that officer would have to observe the indicators that meet the threshold based on additional questioning. They may follow a line of questioning if they felt there was inconsistent or unclear information. Often there is a progressive search, so baggage would be examined first before the device exam would be turned to — again, only when the officer can articulate those reasonable and objective facts that contribute to the threshold being met.
Senator M. Deacon: You said an important part of this is the communications piece. Generally speaking, folks think, “Oh, it is random” or “I’m just the lucky 100” — with all due respect, that you are trying to do a quota.
Everyone has their story. I thought someone was looking for a sandwich in my backpack, not a gun. When they said, “We think you have a gun,” you know what happens to your body and your responses.
I’m just trying to think of any of those pieces, as we think through this, that mitigate the impact, such as good communication and understanding. Because in the times we are in, stress levels are higher than ever with travel. That whole perception of “I’m random” or “They’ve picked me because . . . ,” and that’s not the case at all.
Ms. Aceti: Certainly. Those random referrals to secondary, the threshold would have to be developed and articulated by the officer in secondary, again, based on those indicators.
The question has come up a few times this afternoon on the behavioural indicators. Certainly, officers understand that different people might react differently to law enforcement — nervousness, long trips, frustration. Certainly, all travellers can relate to perhaps being impatient, frustrated and nervous. One behavioural indicator like that would not meet this threshold. The officers are looking for indicators coming together beyond those behavioural indicators. That’s an important point. It also guards against perhaps differential treatment for those who may interact with law enforcement differently. Officers are also trained in their diversity and race relations courses about how different groups may behave and interact differently with law enforcement.
Senator Boehm: Picking up from Senator Deacon’s comment about communication, as we go into a third decade of collaboration between the Department of Homeland Security and CBSA and Customs and Border Protection, or CBP, and all the different actors involved, how would you characterize the level of communication you have in terms of the day-to-day and whether you feel there is understanding at the U.S. end for what we are trying to achieve in this bill, for example?
Mr. Millar: Absolutely, senator. From communication from the inter-agency relationship standpoint, there is extensive — in fact, on Wednesday I’ll be in Washington having a bilateral with my counterpart at CBP. We have always had strong relationships with our U.S. counterparts, certainly with COVID and the dynamic health situation and respective border requirements, as well as dealing with Ukraine. There are always crises and situations. There’s Syria and the [Technical difficulties] Certainly, Afghanistan, Ukraine and the like have required a constant operational exchange of information, but also, more importantly, policy decisions have been made, respective legislation passed on both sides to try, as much as possible, to demystify the process for travellers, and to, as my colleague alluded to, ensure that travellers understand the requirements so we are not just having people nervous for no reason. We have very strong coordination with our U.S. colleagues.
Senator Boehm: I would like to get a little more granular. Both the Canadian Bar Association and the Barreau du Québec have recommended a working group on solicitor-client privilege at the border. This affects, of course, the specification of any documents inspection agents might want to see on personal electronic devices. Has this been created? Is this a concern you’re discussing with the Americans as well?
Mr. Millar: As it relates to personal digital devices, if an examination is being conducted and we see suggestions of solicitor-client privilege or if it’s a lawyer’s or a judge’s phone, we stop the examination at that point. We make a notation of that. We refer to legal counsel who may refer it to a judge.
I’ll invite my colleague Mr. Nesbitt to add any points, to confirm whether privilege indeed exists. The idea here is not to breach solicitor-client privilege as it relates to this legislation.
Mr. Nesbitt: Just to confirm your point, the bill itself is silent on solicitor-client privilege. The case law recognizes the fundamental importance of solicitor-client privilege, and requires an express provision that would allow access, it is clearly prohibited under section 7 of the Charter. That explains the approach that Mr. Millar explained.
Senator Boehm: So no working group has been set up?
Mr. Millar: Not specifically on that. Have we discussed all aspects of policy at different times? Absolutely. I’ll follow up if indeed a specific working group has been created on that. But given the multiplicity of things we connect on, there are more sort of standing tables where different issues are brought to bear.
Senator Boehm: Thank you.
Senator Jaffer: Thank you for all the clarification you have given.
First of all, I don’t know if I’m the only exception in Canada, but I have had lots of random searches. Oh, random searches — do you know how many random searches I have had? So when you say there are no random searches, there definitely are. I have been party to them. Forget that for now.
I want you to explain to me how long your diversity course is and how often it is held. You said something very interesting, and I appreciated it. With Afghanistan and Ukraine, I assumed you were talking about further diversity training. First of all, with the basic training, how long does your diversity training take? Can you provide the committee with information regarding what it consists of?
Mr. Millar: There are multiple courses that are mandatory training for CBSA, and there are some courses around unconscious bias as it relates more specifically to this type of authority. Our diversity and race relations course is, I believe, an hour in duration. There is testing involved.
Senator Jaffer: An hour in duration?
Mr. Millar: It is an hour in duration, but it is not the only training, and I guess what I’m getting at is there are other pieces.
Senator Jaffer: How often is the other training?
Mr. Millar: To let you know how often, we can follow up on that particular point.
Ms. Aceti: I don’t know how often, but I know this is mandatory training. Officers would be required to ensure these courses are completed.
The diversity and race relations course that Mr. Millar is referring to, in terms of the content, to give some examples: defining diversity-related concepts and notions; examining the impacts of stereotypes, prejudices, discrimination and biases when interacting with different cultures; and identifying strategies to provide equitable service to diverse clients. That is a sample of the content.
Senator Jaffer: All that is done in an hour.
Ms. Aceti: I would have to confirm frequency and duration.
Senator Jaffer: May I please ask that you provide the content of your diversity training, for how long and how often.
Mr. Millar: Sure.
Senator Jaffer: Because our population is changing, as you very appropriately said, and I appreciated that, so that when a diverse population comes in, I’m sure you have further training, and I would like to know how often that is. Thank you.
Senator Dagenais: I would like some clarification to help me understand. They say that digital devices have already been checked since 2015, but that Bill S-7 will provide more tools. Explain this to me, because I’m having trouble understanding how something that did not have the force of law can be enforced. I would like to understand.
Mr. Millar: I’ll see if I’m getting to the crux of your question, senator, but I’m happy to be steered in a better way.
Since 2015, again, the policy requirements for officers, as we have touched on, involved indicators; it involved determining network connectivity and other types of things. Again, this legislation will place that and other limits and the note-taking elements in legislation. It will enshrine a new threshold that doesn’t exist now that is above mere suspicion but below “reasonable grounds to suspect” in response to the changing context of not only reduced expectation of privacy at the border but also in the change of what a digital device is compared to what it was the past.
Is it around the threshold, sir? Did I get that right?
Senator Dagenais: What I understand is that border services officers will now be able to go further in checking digital devices. That is what the bill will allow them to do. You will understand that sometimes, when laws are enforced, they should be laws first. I understand that before they could do that, but this bill will strengthen the search of the digital object. I would have been uncomfortable applying a law that doesn’t necessarily have the force of law.
Today, thanks to Bill S-7, this will help them. I’d be curious to hear from the representatives of the border services officers about what they think about this legislation—I’m talking about the representatives, the union leader.
Mr. Millar: It is a threshold that did not exist before. The courts point out that it has no threshold. The Charter Statement discusses the addition of a threshold that is based on objective indicators and the fact that indicators and other limits discussed will be enshrined in law and will be a legal requirement of our border services officers. That this threshold will not only be a policy requirement but something that by law and regulation officers will have to follow and enforce is, I think, very clear. I shouldn’t say “think,” but it has been designed to be a very clear threshold that is certainly above no threshold. It is the case that it does reflect our current practice of using indicators but makes it very clear that they must be objective indicators. Again, it will all be subject to review by the new proposed body, which has not been the case to date.
The Chair: Thank you, Mr. Millar.
Colleagues and witnesses, this brings us to the end of our meeting. I want to thank our expert witnesses very much for helping us understand the existing framework and how it may change in the wake of these amendments. It has been very helpful in helping us to understand what we can expect from this.
While I’m at it, I will say thank you very much all of you for the work you do for Canadians in all the other aspects of your work when you are not thinking about Bill S-7. We are grateful to you for all of that, and we wish you well.
Our next meeting will take place on Wednesday, June 1, at 12 p.m. Eastern Time, when we will continue our study of Bill S-7 and complete our work on the study of the subject matter of Divisions 19 and 20 of Part 5 of Bill C-19, the Budget Implementation Act.
With that, I wish everyone a good evening.
(The committee adjourned.)