THE STANDING SENATE COMMITTEE ON NATIONAL SECURITY AND DEFENCE
EVIDENCE
OTTAWA, Wednesday, June 1, 2022
The Standing Senate Committee on National Security and Defence met with videoconference this day at 12 p.m. [ET], to study Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016; and the subject matter of those elements contained in Divisions 19 and 20 of Part 5 of Bill C-19, An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022, and other measures.
Senator Tony Dean (Chair) in the chair.
[English]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on National Security and Defence. I am Senator Tony Dean, representing Ontario, and the chair of this committee. I am joined today by my fellow committee members, Senator Jean-Guy Dagenais, Quebec; Senator Dawn Anderson, Northwest Territories; Senator Peter Boehm, Ontario; Senator Pierre-Hugues Boisvenu, Quebec; Senator Gwen Boniface, Ontario; Senator Pierre Dalphond, Quebec; Senator Mobina Jaffer, British Columbia; Senator David Richards, New Brunswick; Senator Paula Simons, Alberta; Senator David Wells, Newfoundland and Labrador; and Senator Hassan Yussuff, Ontario.
Today we’re continuing our examination of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016. We are joined today from the International Civil Liberties Monitoring Group, Tim McSorley, National Coordinator; from the British Columbia Civil Liberties Association, Meghan McDermott, Policy Director; and from the Canadian Civil Liberties Association, Brenda McPhail, Director, Privacy, Technology and Surveillance Program. Thank you all for joining us today by video conference. We now invite you to provide your opening remarks, followed by questions from our members. We will begin with the International Civil Liberties Monitoring Group. Thank you.
Tim McSorley, National Coordinator, International Civil Liberties Monitoring Group: Thank you very much, honourable senators, for inviting me to speak to you today on behalf of the International Civil Liberties Monitoring Group in regard to Bill S-7. To begin, I’d like to make clear that we find the central provisions of this bill, the creation of a new threshold of reasonable general concern in order to search personal digital devices at the border, deeply worrisome, and we are strongly opposed to its adoption. In the next few minutes, I will make clear why we are opposed and propose an alternative. I’d also like to mention right away that, similar to my other colleagues who will be speaking today, that there are other parts of this bill that deserve examination, and I hope they can be raised later on during our discussion today.
Every day, tens of thousands — and in pre-COVID times, hundreds of thousands — of Canadians and foreign travellers enter this country. Most of them will be carrying a cell phone, laptop, tablet, smart watch or other personal digital device. Many will be carrying multiple devices. All of these devices carry troves of intimate information about the individual person, from health, to financial, to personal records. They also carry intimate information about the people in our lives — our family, friends, colleagues and more. If any devices carry a reasonable expectation of privacy, these do. Much more so than a suitcase, purse or other piece of luggage.
The courts have recognized this, both in the Alberta Court of Appeal decision in R v. Canfield and also in a recent Ontario Superior Court decision, and even in a 2021 immigration decision. What the courts have told us is clear: These devices cannot be searched without a reason.
The government’s solution is the creation of the novel threshold of reasonable general concern. As I am sure you will hear from my other colleagues, this proposed threshold is unacceptable for several reasons, and we largely agree with the concerns others have laid out so far in their public statements and written documents, as well as in briefs that we know will be coming to the committee. We are expected to believe that a reasonable general concern will be based on specific, objective criteria, while the wording of the threshold indicates the exact opposite. At the same time, we are told that this new threshold will help codify the policies CBSA agents have already been following and what the courts have rejected as not meeting an adequate threshold.
Why should we be worried? On Monday, several senators raised concerns about racial and religious profiling, including speaking powerfully about their own experience at the border. Our coalition’s specific mandate is around the impacts of anti-terrorism and national security on civil liberties in Canada. What we have documented over the past 20 years reflects the same problems. People from specific countries, religions, ancestries and races face greater profiling at the border. This is especially true for Muslims, and people believed to be Muslim. We see how these prejudices are tried to be justified. Pro-democracy activists from Egypt are declared security risks by Canadian border agents because they are affiliated with a Muslim political party. A Ph.D. student is told their secondary screening is because they are from Somalia, a predominantly Muslim country. Reports from Muslim Canadians of back-to-back “random” searches while seeing fellow white travellers waved through, or being asked at length about their religious and political views, clearly demonstrate the problem. A reasonable general concern threshold will not ensure that those who are already bearing the brunt of profiling at the border have their privacy rights protected in regard to searches of their digital devices. Instead, it will simply make it more acceptable.
What is the solution? It is already found in the law. While not perfect, reasonable suspicion sets a known standard with known requirements to justify a search. On Monday, you heard arguments that the search of a cell phone does not meet the same level as a strip search. However, reasonable suspicion is not restricted to strip searches. It is also the threshold for searching mail. Like many others, I suspect, I receive very little letter mail these days. Most of what would have been sent by post, including across the border, is now stored locally on my phone and laptop. Why should we not use the standard that we already know? That is what a report from the Standing Committee on Access to Information, Privacy and Ethics in the other place has suggested, as well as what the Office of the Privacy Commissioner of Canada has said.
In closing, we have been asked to be reassured that regulations and after-the-fact complaints and review will help ensure that this new threshold does not run roughshod over our rights. We disagree. Regulations are adopted under less scrutiny than a law, and can be changed more easily. Complaints and review place the burden on those impacted to work to fix the system, after already having to go through a stressful, unacceptable and often demeaning process at the border. Instead, it is important that the law meet a standard that will protect the rights of Canadians and other travellers, and that after-the-fact review is used to ensure it is doing that job.
Thank you very much, I look forward to your questions.
The Chair: Thank you very much, Mr. McSorley.
Meghan McDermott, Policy Director, British Columbia Civil Liberties Association: Good morning, honourable senators. Thank you so much to this committee for the invitation to participate in this very important review of Bill S-7. People in Canada are increasingly concerned about privacy in the context of the border and cross-border data flows. Our association assists individuals in understanding their privacy rights, including through the publication of a privacy and security guide for electronic devices at the border, which we co-developed with the Canadian Internet Policy and Public Interest Clinic, that continues to be extremely popular.
People need reliable information and practical advice in this realm. They also need appropriate protection in law and policy. The association is clear that Bill S-7 fails to provide this adequate privacy protection for people, putting them and their families, friends, associates and even clients, as the case may be, at risk. There are vast numbers of topics that I could continue to discuss about this, but I can only touch on a few in this brief presentation, so I will start with the obvious — why we reject the new legal standard proposed for personal digital searches. Then I will explain why you should not be reassured by the minister’s overtures about the oversight model currently under proposal for the Canada Border Services Agency, or CBSA.
I will end with a recommendation about the destruction of collected information that would greatly assist in safeguarding the privacy rights of any impacted travellers.
It should be of little surprise to know that we don’t support the novel general reasonable concern threshold that’s being proposed in Bill S-7. We join the other witness here today, as well as many others, including Canada’s Privacy Commissioner, in recommending that the law reflect the higher and familiar threshold of reasonable grounds to suspect.
Your colleagues in the House of Commons also agreed that this be the appropriate standard to apply to customs officials when the Standing Committee on Access to Information, Privacy and Ethics studied this precise issue in 2017.
As was discussed by your committee on Monday, reasonable grounds is the standard that applies to the use of drug-sniffing dogs in Canada. It also applies to the CBSA currently in the examination of mail under the Customs Act. As has been pointed out many times, crossing the border with a personal digital device is analogous to crossing the border with almost every piece of mail a person has ever received or sent. It’s extremely unreasonable for a single written letter to attract even greater protection in law than the information stored in a personal digital device.
Now I want to speak to the lack of recourse that people will have, should they feel that either CBSA or a pre-clearance officer has unlawfully searched, copied records from or detained a person’s digital device at the border.
First of all, American pre-clearance officers. People won’t be able to complain about the actions of pre-clearance officers, except to direct complaints to the customs and border patrol of the U.S. to investigate themselves. U.S. privacy law does not apply to foreign nationals, even if they are invading privacy on our Canadian soil. The Preclearance Act has a limited and, frankly, quite bizarre recourse option by allowing people to inform Canadian senior officials if a situation has arisen in relation to privacy invasions, such as strip searches, monitored bowel movements and X-rays. Bill S-7 does not amend this particular section of the Preclearance Act to apply to personal digital device searches, which basically leaves people without any kind of recourse in the pre-clearance context.
As for holding the CBSA accountable should they err in their exercise of this new discretion, the minister and CBSA staff on Monday referenced Bill C-20 and the proposed new public complaints and review commission in a very positive light. While we are still studying the text of Bill C-20, I can tell you that it ultimately fails to provide an effective review and oversight mechanism, as that law, if it is passed, will continue to allow the CBSA to self-investigate any complaints launched against them. If a person is dissatisfied with how CBSA responds to their allegations, the review body would be able to get partially involved but ultimately wouldn’t have any binding authority over how the complaint should be concluded.
In our view, anything short of an independent, civilian-led oversight body that has jurisdiction to investigate all complaints against the CBSA is inadequate. We published a report about this, and I would be happy to share it with the honourable members. We will use that report to critique the shortcomings of the bill with the members of the other house.
Finally, I will turn to our concerns about the massive gaps in people’s privacy rights that become more apparent when considering how the Customs and Preclearance Acts apply in conjunction with other acts such as the Privacy Act and the Security of Canada Information Disclosure Act. The Privacy Act, in theory, allows people in Canada to find out what personal information federal public bodies hold about us and it provides us with the right to correct any information in a government record that is incorrect. This is an important right, especially when information held about us can be shared with the RCMP, secretive security agencies such as CSIS and even international partners that can use the information to protect their own borders.
This sounds good, right? Well, unfortunately, reality does not uphold this vision of privacy rights because of exceptions in the Privacy Act that we guarantee will be invoked by the CBSA to bar anyone from finding out whether data has been retained from the examination of their phones, how that data has been used, whether it’s been shared and for how long it will be retained.
Government agencies routinely refuse to say whether they even hold a person’s personal information, routinely and comfortably invoking exceptions related to law enforcement. It is for these reasons that we strongly urge that the bill be amended to expressly require that any information collected by the CBSA or by U.S. pre-clearance officers through these examinations be destroyed without delay if they do not relate to any detected contraventions. Thank you so much.
The Chair: Thank you, Ms. McDermott. Finally, we go to the Canadian Civil Liberties Association represented by Ms. McPhail.
Whenever you are ready, Ms. McPhail, please proceed.
Brenda McPhail, Director, Privacy, Technology and Surveillance Program, Canadian Civil Liberties Association: Thank you very much to this committee for inviting the Canadian Civil Liberties Association to appear before you today.
We have been waiting for a bill to address the lack of legal threshold for device searches at the border for a very long time, well before the Canfield case in Alberta and the subsequent Ontario cases made it imperative. That’s because we have serious concerns about the invasiveness of searches, as my colleagues have laid out, through the granular and detailed records of our daily lives that are contained on our devices. Everything from private and professional communications, photos and calendars that lay out the day-by-day progression of our days. It is unfortunate that the bill, now that it has arrived, was absolutely not worth the wait.
Canadian courts have firmly established that people have very strong interests, privacy interests, in their personal devices. Indeed the Supreme Court in a case called R. v. Morelli stated that:
It is difficult to imagine a search more . . . invasive of one’s privacy than searching a personal computer.
While acknowledging that the legal precedent establishes lower privacy expectations at the border, it is CCLA’s position that the proposed amendments contained in Bill S-7 fail to provide adequate protection against the violation of travellers’ privacy rights in their digital devices at the border for two main reasons. First, the novel threshold of reasonable general concern is both untested and far too low. Second, privacy protections should not be relegated to the regulations, which we are told are currently being created, but rather be included in the legislation.
There are, of course, other problems that we will get to in the discussion, as Mr. McSorley indicated.
The problem with the completely novel legal standard is that it is — to state the obvious — an unknown. In his presentation to this honourable committee on Monday, Minister Mendicino suggested that the government intends the standard to be read as one that is individualized and grounded in the same theoretically objective multiplicity of indicators that are currently in an internal CBSA policy guidance. In other words, they said they’ve basically tried to craft a law that lets border agents continue as they have been with better legal cover. There are three problems with this.
First, with respect, it is unclear how the wording, “reasonable general concern,” implies an individualized standard. A court faced with interpreting this standard for the first time cannot rely on a definition of the standard in the bill because there isn’t one. They might rely on signals of government intent, such as the minister’s statement to this committee, but they would also be bound to consider the facial meaning of the words and “general” does not, in common parlance, mean individualized. In addition to being legally unknown, a threshold of general concern leaves sufficient discretion for officers’ explicit or even their implicit, unrecognized biases to creep into questions of who gets searched, an issue that senators on this committee have already raised and which the CCLA agrees is pressing and unlikely to be solved by the whole hour of diversity training mentioned on Monday.
Second, those factors currently in internal CBSA policy guidance on which we are told agents will continue to rely, because they are going to be transferred to regulations, and the protective practices also in that policy document such as ensuring the device is disconnected from the internet so that only documents physically present on the device can be searched and are not going to be legislated are better being left to regulations. Regulations that are changeable far more easily, less publicly and less consultatively than amendments to legislation.
Third, people in Canada should not have to settle for a legislated version of an already inadequate status quo with details relegated to regulations when it comes to device searches. Quite frankly, people in Canada deserve better. The Privacy Commissioner has said so, notably in the context of an investigation that determined in six cases that the Canada Border Services Agency failed to meet their own policy standards. He called for a threshold of reasonable grounds to suspect. The Standing Parliamentary Committee on Access to Information, Privacy and Ethics, after extensive study, explicitly rejected the threshold of a multiplicity of indicators that Bill S-7 tries to awkwardly replicate. They, too, called for a threshold of grounds to suspect.
The Canadian Civil Liberties Association echoes those calls. Reasonable grounds to suspect would require consideration of the constellation of objectively discernable facts that have given the border official reasonable cause to suspect that an individual is involved in a contravention contemplated in the acts. Remember, too, it is an offence to lie to a border officer, so she or he has the tools at hand to establish those facts to meet the higher standard. This would not just better protect privacy by discouraging suspicionless searches but also provide greater protection against religious or racial profiling. Indeed, the committee heard on Monday that searches are down now that border agents are applying a higher standard in Alberta and Ontario.
From a civil liberties perspective, I think it is possible to speculate that higher thresholds are forcing officers to be more discerning. We, in Canadian society, always balance the powers we give to law enforcement with the values we hold as a society. It is reasonable to do so at the border, which is not a Charter-free zone, just as it is reasonable to do so in our communities. I look forward to your questions.
The Chair: Thank you, Ms. McPhail. Thanks to all three of you for your presentations.
We are now going to move to questions. I note that we have to finish by 1:30 p.m. In order to allow as many questions as possible, I ask my colleagues to be as succinct as possible and, where possible, identify the witness to whom your question is directed.
The good news is, today, we have around five minutes for each question and for answer.
[Translation]
Senator Dagenais: My first question is for Ms. McPhail. Last Monday, the official from the Canada Border Services Agency told us that this bill would not require more work of border officers, and that it is intended instead to standardize what customs officers already do.
I have to say that I was quite shocked by that answer. I wonder whether officers have engaged in irregularities since 2015 and whether we are about to normalize or standardize what their bosses had them do illegally. What do you think?
[English]
Ms. McPhail: Thank you for that question. We do, in fact, know through an investigation by the Privacy Commissioner of Canada released in 2019. When they looked at six complaints filed by people who had concerns about device searches at the border, all six of those cases were determined well founded. In several of those cases, officers had failed to disable the connectivity of the devices before searching. In other cases, they had failed to take notes to document why they had even initiated the search in the first place. It is absolutely the case that we know that the standards we currently have, which the CCLA believes are already unacceptably low and insufficient, are already not being followed.
The ways that officers deal with information needs to be enshrined in the law. That’s why we are saying that regulations are insufficient to embed those factors. It actually needs to be in the legislation, unchangeable and up front, what the duties of officers are in relation to searching, particularly in the context of what will already — even if they raise the standard to “reasonable suspicion” — be a relatively low standard when it comes to the invasiveness of these types of searches.
[Translation]
Senator Dagenais: My next question is for the three witnesses. Regarding the new rules that pertain primarily to customs clearance for travellers between Canada and the United States, do you have any concerns about how American customs officials will interpret them at the time of preclearance?
Mr. McSorley: Thank you for that question, senator.
[English]
We are definitely concerned with how pre-clearance officers will be carrying out their work if this law were to pass. As my colleague, Ms. McDermott, pointed out, there are concerns about being able to file complaints regarding the actions of pre-clearance officers, so that means they would be able to act freely in how they interpret the law, rather than being held to account if they do break the rules.
We are also concerned about and have not seen evidence of the effectiveness of the training that CBSA has been providing to pre-clearance officers since the adoption of the Preclearance Act in 2016. More information on that would be necessary to understand to what degree they are adequately carrying out their work. I would add that there is a lack of importance of statistics on whether there have been complaints about the activities of pre-clearance officers. This definitely raises concerns.
Senator Jaffer: Thank you to all three of you for your clear explanations. You won’t be surprised that I am concerned with the test of the “reasonable general concern.” You three are experts. I have heard from and worked with you many times.
I wanted to hear from you — I will start with you, Mr. McSorley — what the amendment should look like? Should we go back to “reasonable grounds to suspect,” because there is a precedent for that and the officers are familiar with that standard? Because even with a letter, you have to have reasonable grounds to suspect, but your devices, which sometimes carry your whole life, don’t have the same test. What should the new definition be, or how can we amend it?
Mr. McSorley: Thank you for that question. Yes, we would agree that for the idea of an amendment, the search of devices should follow “reasonable grounds to suspect.” As was mentioned earlier by my colleagues, it is a known standard. It is a clear standard. It is a standard that is already applied to mail, which, as we pointed out, should more than clearly be viewed as a parallel to the digital devices that people are bringing across the border.
Beyond an amendment that would change this to reasonable grounds to suspect, I’d echo my colleague, Ms. McPhail’s, suggestion that regulations are insufficient. We need to see the rules and procedures laid out in law. Finally, this bill should also include rules about accountability for when the standard is broken.
Senator Jaffer: Do either of you want to add anything further to help me, please?
Ms. McDermott: I would echo what Mr. McSorley has said. We would advise the same substitution of the standard to “reasonable grounds to suspect” and provide clear recourse mechanisms for people, should the discretion not be used properly by either CBSA or pre-clearance officers. We would suggest providing meaningful recourse and clear rules about the information that is collected under even that higher standard to ensure that it is not used in a way that could harm the person in the future and that it would only ever be used in relation to one of the regulatory contraventions found.
We have a number of other recommendations, too, that are more technical in nature. For the pre-clearance officers, this bill contemplates that directions will be made by the minister to govern and to guide the expectations by the pre-clearance officers. However, the use of the term “directions” means that it is not really law. It actually says expressly that it is not a regulation and that these rules will have to be published in the Canada Gazette but only within six months of being issued. This is clearly an issue from a rule of law perspective in terms of what people can even expect when they enter a pre-clearance area. This is important, too, if you consider the way that the Preclearance Act has been developed, and the way that it works, is that once you enter an area, you’re not allowed to withdraw at all. Even your desire to withdraw can raise suspicion and lead to your detention.
We need really clear parameters, as Ms. McPhail has said, in the statute itself. In addition to the very clear and higher standard, there are a number of other technical recommendations that we could forward to you in writing.
Senator Richards: Thank you to the witnesses. Mr. McSorley, it’s good to see you again.
I’m wondering if any one of you was ever consulted by the government when they were deciding about what to put in this bill. No? I didn’t think so.
I think it’s a terrible bill. I don’t know what we can do about it. Even the idea of “reasonable grounds” gives the border guard a lot of licence. I’m not saying border guards aren’t genuine in their efforts and conscientious, but it gives a lot of licence to them over travellers entering the country. I’m not at all pleased with it. I think this bill is rather sophomoric.
I remember when I was in Norway. It was late at night. Since I couldn’t remember the name of my hotel, I was taken in and strip-searched by this young border guard. I’m not saying that would happen in Canada, but that’s the kind of thing that you face at times. Could there be any grounds to sue and, if these measures are excessive, take them to court if you feel they’re excessive?
The Chair: Mr. McSorley, do you want to give it a shot?
Mr. McSorley: On the grounds of whether or not people could sue, there have been warnings from multiple lawyers and legal experts who have looked at Bill S-7 that one of the concerns about this new threshold, as opposed to using “reasonable grounds to suspect,” is that we’ll see years of legal cases being fought in order to try to define what this new legal standard will mean. A much more appropriate approach would be to use a standard that’s already known.
Yes, there is recourse to people to go through the courts if they believe their rights have been breached. That’s what we will expect to see if this new standard is adopted.
Senator Richards: I expect that, too. That’s why I mentioned it. I believe that most border guards are probably conscientious and truthful and work with due diligence, but there are always other cases. That’s why I wanted to mention that. Thank you very much.
Senator Wells: Thank you, witnesses. Your testimony here is important to us and I appreciate the knowledge that you bring to the table that we don’t have and that we’re seeking.
Right now, there’ll be an obligation flowing from this legislation and the regulations that personal digital devices be examined in a non-connectivity mode. There is no obligation of CBSA officers to confirm with the traveller that the examination of the device is taking place in this mode. Well, they told us this was their policy, namely that they would put it in non-connectivity mode, whatever the right term for that is.
From personal experience, I know that they did not follow their policy with me and they looked through my phone, my bank records and different things, without giving me the opportunity. Certainly, I didn’t know that it was their policy. I’m not required to know their policy. But now that it’s going to be written into the legislation.
This question is for Ms. McDermott. Do you believe that there is a benefit in enshrining in the legislation the obligation of the CBSA officers to inform the traveller of their rights in this respect? If so, should the connectivity be discontinued by the CBSA officer, or by the passenger, or by some sort of combination of both? What’s your thought on that?
Ms. McDermott: Thank you for your question, senator. We certainly support, as I’ve alluded to a few times, making very clear standards for anything about where your rights end and where the rights of the border officials end as well so that it’s clear to everybody what to expect.
We are always supportive of any kind of proactive disclosure requirements around rights. That is, having to share with a traveller that their device has to be disconnected and will be disconnected. I’m not so sure about whom it should be left up to. It’s good to hear that the traveller themselves can turn off the device, but I think they should be provided with some kind of certainty that if they hand it over without having disconnected it, they can somehow be assured in the process that it hasn’t been reconnected. Of course, it’s hard to contemplate how that would happen or how you would govern that in law, especially if the device is taken out of the view of the passenger which, I understand, happens quite often.
In summary, yes, we would be supportive of adding a need to provide notice and inform travellers of all their rights but specifically with respect to connectivity. That’s an important issue as it does, as they say, connect to the whole rest of the world and really invites a whole different level of privacy invasion.
Senator Wells: Thank you for that.
Mr. McSorley, I guess it’s somewhat more difficult for a passenger to know what removal of connectivity is. I think about this as a casual observer — that is, full-time user of a personal digital device but casual user of the airplane mode, which we’re told to put it in. Of course, airplane mode only disconnects from the cell network, not from the Wi-Fi network. So I wouldn’t expect a casual user, or someone who’s generally knowledgeable, to know this. I certainly didn’t until yesterday.
Should it be the obligation of the CBSA officer to put it in non-connectivity mode? I’m trying to find the right place for this to happen to give the passenger the right of privacy that the passenger deserves and requires under law.
Mr. McSorley: That’s an excellent question. Like Ms. McDermott, I do believe that it should be in the law that CBSA officers need to advise travellers of their rights and that their phones must be disconnected from either mobile or cellular data. Obviously, it’s also important for laptops, smart watches and other devices, too. There would have to be a degree of technical training of CBSA officers, so they know how to turn them off.
Like you, I can imagine there are travellers who don’t know how to ultimately make sure there’s absolutely no connectivity to their device, whether it’s issues with airplane mode or other issues. While it can make sense that passengers are asked to turn off the connectivity of their phone, ultimately it should be up to the CBSA officer to ensure that the phone is actually disconnected.
Again, as Ms. McDermott pointed out, it’s difficult to know whether a CBSA officer may possibly breach that by turning the connectivity back on or other issues. That, of course, comes back to issues around recourse if that is discovered. But I think there needs to be clear advising of travellers and clear rules in the law in terms of what CBSA officers must do in order to ensure that devices are disconnected.
Senator Wells: Thank you very much.
Senator Boniface: Thank you to our witnesses for being here.
I wanted to address the Canfield decision, particularly around the guidance that Canfield gave:
. . . in our view the threshold for the search of electronic device may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.
Further they said:
Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases.
I appreciate that you take the position of going through the higher standard, and I heard your reasons. But can you help me understand what you’re weighing that against, in terms of national security and public safety issues for Canadians? It seems to me that the court actually opened the opportunity for the novel threshold, so what I haven’t heard is the balance around what I think the court was tipping to the government.
Mr. McSorley, maybe we’ll start with you. I have another question, so if you could keep the response short. I welcome all comments.
Mr. McSorley: Certainly, the courts did leave it open to the possibility of a lower threshold. However, in our regard that does not mean a lower threshold is appropriate. The courts were not deciding on that. We believe, looking at what the Privacy Commissioner of Canada and the Access to Information, Privacy and Ethics committee have said that reasonable grounds to suspect is an appropriate threshold. Of course, it is important to balance that with national security concerns. We believe, though, that what we have seen in terms of the use of this threshold for other aspects of the Customs Act, for example, the searching of mail, should be recognized.
Also, currently there are two provinces that need to use reasonable grounds to suspect, and the question has been raised about whether or not that could be a case study in terms of what the impact is, and that might be something to look at as this bill moves forward.
In general, reasonable grounds to suspect is already a lesser threshold than what we see in other areas of the law, specifically because it is recognized that the border is a special situation. I’ll pass it is to my other colleagues.
Senator Boniface: I think Mr. McSorley covered it unless Ms. McPhail or Ms. McDermott has something they wanted to add.
Perhaps I can ask the question, because it’s going to Ms. McPhail if she wants to add anything. You cited the Morelli decision, so I had a quick chance to try to figure it out. That decision wasn’t involving the border. Am I correct on that?
Ms. McPhail: Yes, you are correct on that. That basically speaks generally to the court’s level of concern about invasive searches generally of devices. In a case like Morelli, where there’s a criminal prosecution, a standard would be more appropriately “reasonable grounds to believe,” and with a warrant. We’re not suggesting that higher standard that sits in criminal cases, nor are we suggesting a warrant, although both those things, from a rights perspective, would be good protections.
We recognize the need to balance the very legitimate interests at the border, the duty that the government has to protect our border. We believe it was, to flip back to the previous question, appropriate for the court to leave space for our democratically elected representatives and for this house to make decisions about the kinds of privacy protection that they believe people need in balance with national security. But I think the witnesses before you today are in uniform agreement that the standard of reasonable grounds to suspect, which is the lowest possible recognized standard, is the standard that we need to give certainty to people across Canada that their rights are going to be considered and that a court will know what to do with a case brought before it under that standard.
Senator Boniface: Thank you very much. From that perspective as well, it’s not always that the court leaves that type of express language. I think that’s the most interesting part of the Canfield decision. That’s fine for me.
Senator Dalphond: To follow up on Senator Boniface’s questions and the understanding of the Canfield decision. Correct me, but my understanding of Canfield is that the practice that was followed until recently by the border officers is not enough to meet the constitutional requirements. The government’s response so far is to codify or to put in statutory terms the current practice. On Monday, the witnesses made it clear, and there were questions from Senator Dagenais about the training and the additional officers that will be required, and the answer was “No, it’s already what we’ve been doing since 2015.” That was prior to the decision in Canfield.
Do you think that the court’s message was that, just put in statutory terms, what you’re doing now will be meeting the test? I think Ms. McPhail might be the best person to answer.
Ms. McPhail: The court in Canfield declared the way that device searches at the border were happening now are unconstitutional because there is a lack of legal threshold. They said that simply having policies which are not legally enforceable in place was inadequate and that there needed to be a legislated threshold for device searches to reflect the known invasiveness of this kind of search and to update the law that had been created at a time when searches were of boxes and bags, where the most dangerous or embarrassing thing that might turn up is a pair of dirty underwear.
The court was directing the government to establish a legal threshold for the search. What they have tried to do — I completely agree with your framing of it — is to create a novel legal threshold that they are pitching as: “This is how we can do exactly what we have always done and make it constitutional because we’ve added some new words about a threshold to a piece of legislation.” In our perception, that’s simply not good enough. The status quo was never good enough. Now that we’re looking at this issue, we can do better.
Senator Dalphond: Thank you very much for your analysis. I tend to share your analysis of the threshold. But I’m worried about the comments you made about surveillance or providing passengers some rights in the case of non-compliance with the necessary guarantees. I understand if there are criminal charges that are eventually made against the traveller following what they found in the telephone or the personal device. That would be a question of admissibility, compliance with proper protections would be at issue and the charge might be dropped. But this is a kind of ultimate case. For most travellers, they won’t be charged with anything, but they might feel that their privacy rights have been infringed, and seriously in some cases.
What would you propose? Based on your experience, Mr. McSorley, is there a place in the world where we would provide some kind of ombudsperson or watchperson, and people could file an administrative complaint — something easy instead of going to a Federal Court to sue the government?
Mr. McSorley: Thank you very much for that question, senator. I appreciate your clarification. It’s very true that the legal recourse is only available to those who have been charged under law and not to those who faced a search of their electronic device but then did not face eventual charges. That’s why it’s so important, as my colleague, Ms. McDermott, pointed out, that we have strong recourse for individuals who do file complaints when their rights are breached by any national security agency, including CBSA.
That’s why it will be so important to bring modifications to Bill C-20 as it moves through the process to ensure that even those who are not charged with a crime can bring a complaint and see actual accountability and repercussions in cases where the rules weren’t followed. That isn’t currently the case in Canada.
Senator Dalphond: In your experience, is there a country where there’s a mechanism?
Mr. McSorley: That’s a good question. I’ll pass it over to my colleagues who have done some other research on this. I’d say there are actually some ombudsbodies in the United States that are more powerful than what we have here in Canada and, I believe, have order-making power. That’s what we’d like to see — order-making power and stronger powers for review bodies.
But I might see if my colleagues have other examples they could point to.
The Chair: We’ll wait, if we could. We’re going to have additional time, so we can come back to this later.
Senator Simons: Thank you very much to all the witnesses.
On Monday, my colleagues in this room asked some very pointed and appropriate questions about racial profiling under this act. Seeing as it’s the first day of Pride Month, I want to ask a different question.
In the Canfield case, there was a second defendant, Mr. Townsend, who was searched because border services officers thought it suspicious that he had lube, condoms and penis rings in his luggage. There’s a certain sense in which he was pulled over for enhanced screening because he was suspected of being gay. Do you have any concerns about what this kind of language could mean for LGBTQ2+ passengers who are not traditionally seen as people who are profiled but who might well be profiled under the framework of this legislation? Perhaps, this is for Mr. McSorley.
Mr. McSorley: Thank you, senator. I have to say our expertise is in national security anti-terrorism, so some of my other colleagues might have more information. Certainly, while our focus is on that, we see how this concern is not restricted to individuals based on concerns around anti-terrorism or in regard to religion or race but that this can be extended to gender identity and sexual orientation. We think that stronger rules and accountability and clear rules in the law with a sufficient standard would be important to protect any individual who would face discrimination and questioning based on their particular gender identity or sexual orientation.
It’s a very important question, and it shows that this goes beyond questions of protecting one group or another but, rather, that any traveller could be placed under suspicion on the whim of a border services agent based on the new ruling. It’s ultimately most important that we protect those who already face marginalization and over surveillance by law enforcement agencies.
Senator Simons: I was struck in the Townsend case. It seemed that the primary reason he was pulled over was because he had accoutrements of gay sex.
Ms. McPhail: There are other documented cases as well of people who are LGBTQ2+ being pulled over because of literature they carry or because of their demeanour at the border.
One of the profound problems with a threshold of “reasonable general concern” as a kind of sniff test, which leaves extreme discretion to officers, is that they may consciously or unconsciously choose to investigate those they feel are different from them, and that difference could be a matter of orientation, appearance, ethnicity or religion. It’s hard to predict the many and varied ways that discrimination can come into processes where there’s such a difference in power between the participants. Of course, when you’re at the border, you are very much in the power of that border agent to whom we give significant discretion to conduct investigations and searches. That’s why, as we keep saying, the threshold needs to be one that provides a base level of protection, and then there does need to be serious attempts at thinking through what kinds of recourse people need if they believe they’ve been treated in a way that is discriminatory at the border.
Senator Simons: I have a quick question. The committee was told on Monday that this would be a higher threshold than they have in the United States or the U.K. I think Senator Dalphond raised some questions about whether that’s actually the case. Are there other countries that have thresholds akin to or higher than this?
Ms. McDermott: I haven’t been able to look into that, so I would defer to Ms. McPhail if she has an answer.
Ms. McPhail: We started to look into that after the conversation on Monday and will address it in our written submissions. In the U.K., the situation is complicated because they have searches for goods and for articles carried with people. We’re looking into the legal distinctions because there are different thresholds for those two things. We’ll provide more detail about that in our written submissions.
Senator Simons: Thank you.
Senator Yussuff: Thank you to the witnesses for being here today. I have a couple of points. One flows from questions my colleagues asked. I’m trying to figure out how we address them.
In regard to the connectivity issue, it is possible that, under regulation, it could be stipulated in a very clear way that an individual who is asked to turn their device over to a border agent can be clearly told — if it’s in the regulation — that they must turn off their device upon submitting it to an officer. Is it possible this could be taken care of in the regulation? Any one of the witnesses could answer in regard to their expertise on this issue.
Ms. McPhail: It’s entirely possible to clearly state in the regulation exactly the process that has to happen. But we would suggest that it’s equally important in the legislation itself to indicate that there must be a process to disconnect the phone. The regulations are the place where the details of how that happens can be included because it may change over time and it makes sense to leave that to regulation, which is more easily changed. But there should be a legal requirement in the legislation itself — not left to regulations — to provide those basic foundational privacy protections for people who are subject to search at the border.
Senator Yussuff: My second point is in regard to regulation. It is not unusual for legislation to be accompanied by regulation to give some directions and guidance. In regard to this bill, there’s nothing unusual in regard to what the government is proposing to have regulation accompany the legislation. Again, any one of the witnesses can answer.
Ms. McDermott: It’s certainly not unusual to have details in the subordinate legislation-like regulation. Of course, it’s better, when rights are being impacted, that those rules should be in the primary legislation — the statute. There’s a technical conversation we could have about what should be in primary versus secondary legislation. For the most part, it’s best to have it in the primary legislation, as much as possible, because it goes through these kinds of debates and study.
There is also a requirement to have the public be able to access it in the media. You can have scrutiny before it has been approved and enacted. We know that with regulations that’s not the case. Governments could choose to proactively disclose the text of a regulation. However, they routinely choose not to and we don’t end up seeing the text of it until it has been approved.
I want to highlight again, with respect to governing how U.S. customs and border patrol officers are going to administer the standard, this bill before you, Bill S-7, doesn’t contemplate regulations to govern that search. Again, it leaves it to ministerial directions that don’t have to go to the cabinet and don’t have to be made public for six months. That’s a big gap in the bill, how the searches will be governed by the U.S. customs and border patrol.
I also want to point out that people won’t have the same recourse. There have been some questions about liability and being able to hold the officials accountable. The Preclearance Act, if you look at it, provides civil immunity to customs and border patrol of the U.S. Even though they are here on Canadian land using and administering the Canadian Charter of Rights and Freedoms in their searches, if they somehow breach our rights and freedoms, we cannot take them to the Canadian Human Rights Commission, and we can’t sue them in court unless there has been something like a grievous bodily injury or even death. Anything short of that, there is a complete legal shield for any kind of errors made in relation to privacy, unless, of course, you are actually an American citizen. Then you might have recourse under the U.S. Privacy Act, but for everybody else, we won’t be able to do anything.
The Chair: Thank you. We are moving to a second round. We have a considerable number of people asking for questions, so we are going down to four minutes for both question and answer.
[Translation]
Senator Dagenais: My question is for Ms. McPhail. It will be very brief. Is there a risk that this bill, which evolved from a court decision, will once again be before the courts because the government did not follow the recommendations?
[English]
Ms. McPhail: I will answer briefly. I believe if this bill passes as written and the novel standard of “reasonable general concern” stands, there will absolutely be court cases. Groups like mine will watch for them, and we look forward to challenging that novel standard in court.
[Translation]
Senator Dagenais: I find this bill worrisome.
[English]
Senator Jaffer: My question is for Ms. McPhail. Ms. McPhail, I was asking the other two witnesses about how should we amend or how should I amend from the test of “reasonable general concern?” What do you think? What should I be doing?
Ms. McPhail: I agree with my colleagues that the appropriate standard is “reasonable grounds to suspect.” That is, frankly, the lowest standard currently recognized and perfectly appropriate for the lesser expectations of privacy at the border, while at the same time providing more reasonable protection for individuals.
Senator Jaffer: Thank you.
Senator Wells: My question is for Ms. McDermott. We were told that one of the comforts that CBSA officers would now have to provide under this new paradigm if it comes to pass — certainly it is the old paradigm because it is their policy — but they would be taking notes, and that was designed to give comfort. I’m not sure how that would give comfort. It would seem to me that the note taking would be for the protection of the CBSA officer, to say this was my general concern and that the suspect was shifty or looked dishevelled or is nervous or whatever.
What place would note taking have in an instance where a passenger would challenge what might happen to them at the border from what might be considered an unreasonable search?
Ms. McDermott: Thank you for the question. Contemporaneous note taking that’s detailed can go really far in helping decide, after the fact, of course, whether or not the officer at the time had met a certain threshold or standard to do whatever search they are going to do. In terms of policing and criminal law, it’s a very common practice.
As well, my understanding is that the CBSA — through policy up until now and until this bill should it be implemented — they are expected to keep these kinds of notes. I think that this will just serve to codify the practice that they are supposed to be doing already.
Of course, taking contemporaneous notes is not perfect. We know that from the criminal law realm. But I will get to my point. Usually the notes only become valuable to scrutinize if there ends up being a criminal or a civil proceeding that results. Outside of those contexts, I am very skeptical that the average person would be able to get their hands on the notes or be able to scrutinize them, if they were to file a complaint.
Let’s say charges didn’t result at all. No offences were detected. The person got their device returned and were allowed to go on their way, but they just felt that this was an undignified invasion of their privacy, that it delayed them and humiliated them, and they don’t think that the notes would establish even this reasonable general concern. Like I said, even trying to get information about yourself and what information they collected about you, I think it would be virtually impossible for the average person or even civil society groups like ours to be able to get at those notes short of criminal proceedings.
Senator Wells: Thank you. I have only 40 seconds left and I have another quick question. In these notes what would be typical? Would it be their grounds for suspicion? Would that be typical? And if that’s the case, isn’t it ironic that they are not going to the grounds to suspect, they are going for a somewhat lower bar?
Ms. McDermott: Yes. Certainly, I think you really hit the nail on the head there, senator. They could use these notes to establish even this lower threshold that we are advising you to use in Bill S-7.
All the time police are using this practice to get even higher legal standards, so there would be no reason, of course. The way they talk about multiplicity of indicators, saying that I came across this indicator and I suspect that — but how much they would have to glean and what that constellation is — again, that’s the heart of this issue of how much suspicion they would have to have before they have would actually be able to invade your privacy.
Senator Wells: Thank you very much to all the witnesses.
The Chair: Thank you for your response, Ms. McDermott.
Senator Richards: Thank you. This is quick. I asked about connectivity. Senator Yussuff asked about that. I am worried about the preconceived notions which become prejudice when your border guards are dealing with someone. Does the “reasonable grounds to suspect” automatically mean they will examine a personal digital device, or would other things come into play? Mr. McSorley or any of the other witnesses?
Mr. McSorley: I may defer to my other colleagues if they have something to add. If not, I could give it a shot.
Ms. McPhail: I will hop on that one. The threshold of “reasonable grounds to suspect” should make it less likely there will be searches, because there will need to be a greater number of defined objective factors.
Senator Richards: But what I’m asking is once they determine that they have reasonable grounds to suspect, does that immediately mean they will examine your personal digital device or will they search your luggage? Will they immediately go to the digital device and search it, or will they wait until an initial examination?
Ms. McPhail: It is difficult to speculate on what they would do in any given situation, because they have the discretion to conduct their search any way they like.
Senator Richards: Sure.
What amendments do you think would help this bill? If you have amendments, what would they be? That question is to any of the witnesses, please.
Mr. McSorley: I would reiterate what my colleagues have said, namely that an amendment to include “reasonable grounds to suspect” would help improve this bill.
We didn’t get to speak about other issues. There are issues around creating new indictable offences, of changing statutes of limitations and some other areas where some improvements could be made. I will leave it to my other colleagues if they want to jump in with any other suggestions.
The Chair: Are there any other thoughts? I don’t see any.
Senator Richards: Okay. Thank you.
Senator Dalphond: I know it is no longer comfortable to ask people to do homework, but I will ask our witnesses that if they have better access to larger organizations around the world than we do if they could provide information on how personal devices are considered, for example, in Europe. I don’t know if there is a European directive on that.
There must be some uniformity. There are a lot of other democratic countries in the world that operate and are facing similar challenges that we have to protect our security at the border but, at the same time, need to balance and protect human rights.
Another thing I would like you to follow up about is this: Could you find examples of mechanisms that are effective in providing the traveller a proper place where he or she could complain about the treatment or mistreatment at the border, even if no charge is laid? I’m quite certain that most travellers won’t bother to sue the federal government for damages in the Federal Court because they were improperly treated. That’s too much to ask, so we need some kind of easy mechanism where they can complain and where there would be an effective recourse. It might be something like the Commissioner of Official Languages, where you can file a complaint and they have the power to fine.
Sorry, it is not really a question; it is homework. Thank you for helping us.
The Chair: We will leave those requests with you and if you can provide us with some information that would be helpful.
Senator Simons: We have spoken about the private information on our devices, but I want to speak about the professional information that so many people carry these days. We have had questions from legal groups that are worried about solicitor-client privilege, and they have asked for us to amend the bill to put in a specific exemption for solicitor-client privilege documents. But I’m thinking about all the other professionals who might carry professional documents, whether they are physicians, counsellors, psychologists or social workers — all the other kinds of people whose privacy might be breached, even if they are not the one travelling.
Could you offer us any insight into whether that’s something you think should be added as an amendment to the text of the bill, or if it’s something we should push to see in regulation?
Ms. McDermott: I can start by saying that these are legitimate concerns. I belong to the Law Society of British Columbia, and our governing body still advises us, when we cross the border or come back to Canada, to always carry a letter with us from the Minister of Public Safety to give to the border official that says that solicitor-client privilege should be respected, because we know there are many, many instances where solicitor-client privilege is not respected.
When it comes to privately held health information, that’s gravely concerning because that doesn’t attract the same level of legal privilege, which we know is not properly observed and respected at the border.
You had asked about whether you could legislate or we might prescribe rules to somehow shore this up and ensure that CBSA and pre-clearance officers would respect these issues. I certainly think that’s a good idea. If you put something in law, it’s always more legally binding. It is more apparent to people; they know what their rights are and it is always made clearer.
However, another thing that can happen is to implement very strict controls over any of the information that’s accessed if no regulatory offences are detected. We have been told many times that our privacy will only be invaded to the extent of figuring out if we have undeclared goods or child sexual abuse imagery. If those are not found, what’s the reason for retaining any information?
Yes, it is egregious that the official would even have access to personal health information or overlook solicitor-client privilege, but if we accept that mistakes sometimes happen and that you can’t provide rules and technical safeguards for absolutely all kinds of information that an official might come across at the border, then we would advise that you have a protection in the law to make it clear that the officials have to destroy any of that information. Even if it’s in their notes, they have to destroy their notes if they include private health information, information subject to solicitor-client privilege and all the other types of private information you’ve alluded to.
The Chair: Okay. Thank you very much for that.
Senator Boniface: Thank you again to the witnesses.
One of the points I wanted to raise is references around the threshold. It’s viewed as more challenging because it is untested. I relate it to impaired driving, because we dealt with impaired driving a couple of years ago here. We had the same argument around it being untested. In fact, the legislation was tested and found to be valid on the threshold that was given.
Am I correct in saying it may be one factor but not the only factor that should be considered and that just because a threshold is untested that you don’t use that threshold? Because I would argue that governments have a right to put a threshold in place, and, in Canfield, they opened that door.
I understand why you would say it’s important from a challenge perspective, but it is not a reason we don’t do it. Am I correct on that? Ms. McPhail, maybe you could take that one, because I have a second one for you as well.
Ms. McPhail: Sure. It is absolutely open to the government to make decisions about thresholds, including creating novel thresholds. We would hope that when they do that, they take the privacy of people across Canada into account and strike the right balance. It is our contention that while they were within their right to create a new threshold, in this particular case, that balance was off.
Senator Boniface: Thank you. I am glad we were able to clarify it.
In your discussion with Senator Yussuff, it is a tricky piece to do legislation, regulation and policy. We know that in all government interventions, from police officers to customs officers and others. Framing it legislatively is the frame, implementation often follows to “guidance within regulation is law” and then policy is a broader guidance for how it is all carried out.
So it is also a bit of the balance when you put together a new regime, as you would in this case. Am I correct in that interpretation?
Ms. McPhail: You are. Our advice or position would be that the fundamental principles that you want to protect need to be in the legislation itself, which, in this case, ought to include some fundamental principles around privacy protection, balanced with legitimate national security concerns. Then, as you say quite rightly, the details of implementation are appropriately left to regulation.
Senator Boniface: Thank you for the clarification. Thank you to you all for being here.
Senator Yussuff: It is generally accepted there is a lower privacy protection at the border. Given that reality, does this pose a serious challenge for us trying to figure out what level we need to get to so we can all feel comfortable? I would welcome a response from any one of the witnesses.
Ms. McPhail: The fact that there is a lower level of expectation of privacy at the border is why we are unanimous in agreeing on a standard of reasonable grounds to suspect, which is a far lower standard than would be acceptable, I suspect, to any of our groups in criminal matters in a non-border context. We believe that’s the lowest level of compromise that provides a reasonable level of protection to people across Canada, as well as respecting the need for some flexibility at the border.
Senator Yussuff: On Monday, we had many questions regarding the issue of racial profiling. The minister, as well as his colleagues, indicated that they are creating a new agency that will monitor both the RCMP and CBSA going forward. They will, of course, be collecting data. Should this data be publishable on an annualized basis so we can understand what it reveals, but more importantly whether or not the issue of racial profiling has diminished or continues at the same level? We’ve seen previous complaints against CBSA in the past, and it forced them to change many practices, including their hiring practices in regard to who is actually working at the border agency in this country.
I won’t direct it to any particular witness. You are knowledgeable, so I leave it to all three of you.
Mr. McSorley: Briefly, it is very important that new provisions be brought in especially for the publishing of disaggregated race-based information. One of the problems we identified already with Bill C-20 is that it appears to call for the release of that information, but only in regard to information about complaints that have been filed with the commission, and that wouldn’t actually require the publication of information regarding enforcement and actions by CBSA officers.
If an individual were to take the step of filing a complaint, only then would they gather the necessary information to release that data, but it wouldn’t illuminate how the CBSA is actually enacting these policies. That’s something that would be very important to change.
Going back to 2011, the Canadian Human Rights Commission called for the release by national security agencies of disaggregated race-based data, but we still haven’t seen that yet.
The Chair: Any additional comments from the two other witnesses on that question?
Ms. McDermott: I will follow up to say that it is extremely important. The government here in B.C. has just introduced a whole act around the collection and publication of statistics around race-based data. It is an important factor in conversations, and I know it is kind of a new thing.
I share the concern of Mr. McSorley. I think that it may come down to what is in Bill C-20, but that wouldn’t stop your committee or the Senate as a whole from supporting amendments to this act, clarifying and strengthening what kinds of obligations, in terms of data collection and disclosure, to detect and address systemic issues of discrimination that could result from this law or that are already occurring.
Ms. McPhail: Very briefly, conversations about race-based data collection should include consultations with Indigenous groups to ensure that Indigenous data sovereignty is respected in any legislation or requirements.
The Chair: Thank you very much.
Senator Wells: I will ask this to any of the witnesses who feel comfortable responding. The government suggested that the Alberta Court of Appeal refused to go to reasonable grounds to suspect at the border, i.e. that the court implied that reasonable grounds to suspect might be too high a threshold at the border. Do any of the witnesses believe that this is a fair interpretation by the government or of this legal perspective by the court?
Ms. McPhail: There are a variety of ways in which legal decisions can always be interpreted. Our interpretation is that the court appropriately, not wanting to be seen to be overly activist, left the discretion to the government; and it is the government’s duty to decide on the appropriate threshold, which, like a broken record, we will say needs to be reasonable grounds to suspect.
Senator Wells: As a quick follow-up, I understand witnesses are recommending “reasonable grounds to suspect” might be a more reasonable place to go. The minister, on Monday, was very adamant that this would compromise border integrity. Why do you reject this position? Ms. McDermott?
Ms. McDermott: Well, one reason that I reject it is just based on the reality right now that Alberta and Ontario, as we know, are living with the effects of this decision. They have highlighted that the number of examinations has dropped significantly, I think by half, and yet there was no evidence provided about how this has compromised the integrity of the border, public safety, protecting the security of Canada. Even for those economic reasons that were made about not declaring goods and that this could hurt us economically, again no evidence has been provided about how it has harmed those interests and considerations.
The onus is on the government to say why this is proportionate to the threat, and right now we have this kind of vacuum in two really big provinces. I know COVID has put a damper on travelling, but travelling has just skyrocketed now. You would think they would be able to point to clear trends or evidence about how this is harmfully impacting their ability to protect the borders and to ensure that goods are being declared properly.
The onus is on the government. Whenever they want to infringe our rights, they would have to provide this kind of evidence to a court, and I hope that they would have to provide this kind of evidence to the public and parliamentarians when pitching these kinds of standards.
Senator Wells: Thank you for that.
The Chair: Thank you, Ms. McDermott. This brings us to the end of our panel. I want to thank all three of you — Ms. McDermott, Mr. McSorley, and Ms. McPhail — for bringing your expertise, knowledge and experience to this committee. You have helped us considerably. In the same way, I would thank my colleagues for offering questions that brought the very best from you. Thank you, everyone, and I wish you all a good day. We will move to the next section of our meeting.
Mr. McSorley: Thank you.
Ms. McPhail: Thank you very much.
(The committee continued in camera.)