Honourable senators, I rise today to speak on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016. In my remarks today, I will address several issues related to this bill. First, I think it is important to review the government’s rationale for the legislation and to understand that this bill has come to Parliament very late, with the result that there is a legal gap in Canada’s border enforcement. Secondly, I want to touch on some of the serious questions and challenges that arise from certain provisions of this bill. Finally, I would like to comment about the way in which the legislation has been brought forward and what, I think, this reveals about the very serious problem we have with the government’s reactive approach to policy-making.

Unfortunately, colleagues, this bill fits a pattern. The pattern is that of a government that is both highly reactive in its policy-making and extremely slow in its policy implementation.

First, let me address government’s arguments in relation to the purpose of the bill. The government’s arguments were presented by Senator Boniface here last week. In her remarks, Senator Boniface reviewed the fact that Bill S-7 arises from a decision rendered by the Alberta Court of Appeal in October of 2020 finding that examination procedures used by the Canada Border Services Agency, or CBSA, when it comes to the content of personal digital devices was unconstitutional. These devices were, until recently, examined under the terms of paragraph 99(1)(a) of the Customs Act. The court’s reason for striking down this provision of the act in relation to personal digital devices was that the act itself imposed no limits on such examinations.

For many years, CBSA officers have been using section 99(1)(a) of the Customs Act and its definition of “goods” to incorporate personal digital devices.

As Senator Boniface pointed out, digital devices have the ability to hold documents which might contain an individual’s entire life history and include the most private information about any person.

The Court of Appeal found that although persons crossing international borders must have a lower expectation of privacy than is normal in a free and democratic society, the scope of information that border officers have access to when examining personal digital devices suggests that some reasonable limits are required.

Senator Boniface quoted the Court of Appeal decision as follows:

We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process. It will be up to Parliament, should it choose to do so, to devise a new approach that imposes reasonable limits on the ability to conduct such searches at the border.

Colleagues, this is what we are doing today with this bill.

While the court referenced the fact that Parliament must decide whether it wishes to enact a law on this matter, the reality of our political system is that it is up to government to bring forward legislation to address the legal gap that has resulted from the Court of Appeal’s decision.

In this regard, we should be under no illusion that we do now, indeed, have a significant legal gap. That is because, although the decision of the Alberta Court of Appeal is only applicable to Alberta, the Ontario Superior Court has now also ruled that the same section of the Customs Act is unconstitutional, thereby extending this legal limbo to Ontario.

Colleagues, here I think it is important to note the nature of the cases that have triggered these rulings in both Alberta and Ontario. Each of these cases involved the importation of child pornography. I know that every senator in this chamber will agree that these offences are among the most disgusting and dangerous crimes which can be perpetrated. They are also crimes which prey upon the most vulnerable and innocent in our society.

In her remarks, Senator Boniface stated:

It is imperative that we take this incongruity seriously in the meantime. I implore you, colleagues, not as the sponsor of this bill, but someone who was involved in law enforcement for a long time, to prioritize Bill S-7 for our consideration. We can’t let this incongruity stand for a day longer than necessary for two reasons. First, training modules can’t occur for CBSA officers until the finalized version, and the finalized wording, of the bill passes through Parliament. Second, and most importantly, each day that passes from here on out can be used by those actors seeking to import obscene materials, such as child pornography, into Canada.

Naturally, I agree with that, colleagues. I think we all do you. However, I must point out that the court gave the government 18 months to respond to its ruling. It initially gave the government 12 months and then extended it for another 6 months. Yet, we now have a situation where Senator Boniface first spoke to the bill on behalf of the government on the very day that the court’s extension of the provisions of paragraph 99(1)(a) of the Customs Act expired. How does this happen? In fact, I approached Senator Gold two days prior, noting that the expiry was on our doorstep. Colleagues, I’m just the critic.

In my view, there is no excuse for this. There is particularly no excuse for this given the fact that what the government is now proposing to legislate in Bill S-7 is — to use Senator Boniface’s own words — already being done. What Bill S-7 does is take the previous internal policies of CBSA when it comes to the examination of personal digital devices and proposes to put them into law. Somehow, doing this took 18 months and counting.

In relation to this, I, again, want to quote the Alberta Court of Appeal:

We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process.

There is not any complex and delicate balancing process at all in Bill S-7. Instead, what we have is merely a cut-and-paste of the existing internal policy of CBSA into law. That’s what I was told in the departmental briefing and in the critic’s briefing.

This is extremely unfortunate because there are very serious privacy concerns which are at play here, and I will highlight a few. First, there are the legal criteria that will be used to justify the initiation of an exam of a personal digital device. The threshold for that will be there must be “a reasonable general concern.” That’s a quote, colleagues: a reasonable general concern. CBSA briefing notes state that “a reasonable general concern” could be triggered by a multiplicity of indicators or such concern could be triggered by one more significant indicator. No specific contravention is required. The concern need only relate to a contravention of legislation related to the import or export of goods.

This means that the term “reasonable general concern” could, in fact, mean almost anything. Each of those words reasonable, general and concern are the lowest possible bar you can come up with. If the CBSA officer said a traveller looked nervous, that would be grounds for a full search of a device — not just for the bad guys, but for every Canadian who is subject to a secondary search. During debate last week, our colleague Senator Busson stated that “. . . it worries me that this bill will create difficulties for border officers to search questionable personal digital devices . . . .”

Yet, our colleague Senator Simons stated:

I’m worried that might open the door for searches that are more aggressive than they were under the regime of regulations that border agents were using beforehand.

In fact, colleagues, it wasn’t even under regulation, it was simply policy and there were no controls or protections for Canadians whatsoever.

Senator Omidvar stated that if a reasonable general concern is to be triggered by the behaviour a border officer notices, that is “. . . hugely subjective.”

I would agree with that since it is made all the more subjective because the triggers could be multiple indicators, which are not defined for us. Or it could be a singe indicator, again, not defined. Or as one of our colleagues correctly stated in the briefing, it could be racial profiling. It could be nothing. Colleagues, if a Canadian is pulled in for a secondary search, it could be for no valid reason.

What is contributing to the confusion is the fact that, as Senator Simons correctly argued, there is no precedent in Canadian law for the legal use of the term “reasonable general concern.” The government has rejected the idea of employing the more familiar legal term of “reasonable grounds to suspect” by arguing that this term is not appropriate for the border context. Here, I think we need to understand the specific legal arguments. The fact that the Alberta Court of Appeal apparently declined to impose a threshold of “reasonable grounds to suspect” in its ruling may support that argument. What we need to understand as legislators is precisely why that is the case and why the simple codification of CBSA’s policy is the best approach. We have had no explanation from the government on that important point and the question was asked directly to them. We can’t really be sure about what the term “reasonable general concern” actually means. As I said earlier, “He looked nervous” could be enough.

This issue will be examined in committee if we were to conform to the court’s guidance to “. . . devise a new approach that imposes reasonable limits on the ability to conduct such searches at the border.” Reasonable limits, colleagues. Reasonable limits, the court said. Reasonable general concern is, in fact, no limits. I believe that government has actually not engaged in such an exercise in drafting this bill, having pulled it directly from their policy. It will be up to Parliament; it is up to us, colleagues, to fill the void, all the while, operating under the pressure of the gap in law that the government has created by waiting more than 18 months.

In relation to the examination of personal digital devices at the border, there are fundamental questions as to how exactly officers will perform these examinations. We are told that the examinations will be determined by regulations — regulations which we have not seen and will not create.

Colleagues, as you know, legislation like Bill S-7 allows regulations to be made, but we will not have a say in those regulations because our role is simply to make the law that permits regulations to be made. Therefore, it is our duty to ensure fairness to Canadians in the question of searches while permitting the necessary searches to take place where warranted. And this must be greater than reasonable general concern.

In relation to these regulations, the government has indicated just two things. First, that when the officers examine personal digital devices, they will be obligated to take notes during such examinations. Second, that these examinations will be limited to material that is present or stored on devices at the time that an individual is crossing the border.

At this point, we know very little about the tangible protection that note taking will provide and how the limits imposed on material that a border officer may examine on a personal digital device will be governed. Will it include simple links to a website or files stored on the cloud, which, of course, would not be resident on a digital device?

What we want, in this context, is it to provide border officers with sufficient capacity to intercept obscene or otherwise illegal materials but, at the same time, give Canadians the assurance that their privacy will not be compromised where there are absolutely no grounds. That is the balance we have to strike.

In that context, I was told in the critic’s briefing that CBSA officers that search a personal digital device must first turn off mobile connectivity — or as it is more commonly called “put in airplane mode” — so that there is no access to material that might be simply accessed via the web and not stored on the device. Colleagues, if it’s stored and accessible on the device, it’s fair game. Indeed, that is what I was told.

Colleagues, here is a personal story. I was stopped at the border a number of years back. In fact, in filling out the customs form, I said I had $1,000 worth of goods. I knew the limit was $800, so I went in and said I want to pay the taxes and duties on the additional amount. I went in for a secondary search. They asked for my phone, and I gave them my phone. They asked me to unlock it, and I unlocked it. They searched through my Visa statements. I wasn’t aware of the policy, and I have no reason to be aware of the policy. Ignorance of the law is no excuse, but perhaps ignorance of CBSA policy. The CBSA officer went through my Visa statements and asked, “Where did you buy this? What is this? What is that charge?” So that was a violation of my privacy. They didn’t tell me that they had to turn it to airplane mode, which, of course, they didn’t do. I don’t think they do it in the majority — perhaps all — of the cases.

I asked Senator Boniface after her speech whether it would be appropriate for CBSA officers to also advise travellers to shut down their connectivity. Of course, I wasn’t advised. This might improve the confidence of travellers that their privacy is being protected, but also ensure that illegal material stored on the device is accessible by CBSA officers.

Senator Boniface suggested that we look into this at our committee study, and I believe we need to do just that because it is a critical element. We need to be sure that the regulatory process will be transparent and provide Canadians with the assurances to which they are entitled.

There are other questions on the provisions of this bill that need to be asked. One of the measures incorporated in the bill is a decrease in the maximum fine for interfering with a CBSA officer conducting such a search. Colleagues, it is proposed in the bill that it drop from $50,000 to $10,000 for a summary conviction, and from $500,000 to $50,000 for an indictable offence.

I am not sure how a significant reduction in fines for the smuggling of child porn serves to protect children who are subject to these heinous abuses. In fact, I’m not sure what this provision has to do with any of the purposes of this bill. Colleagues, if anything, offences for crimes such as this should be stronger, not weaker.

In the Senate, we have witnessed a pattern on numerous bills that have come before us with sudden, proclaimed urgency, often arising from last-minute panic associated with poorly thought-out measures or looming deadlines. Colleagues, we saw it more than a year ago on the bill for offshore health and safety. The government had five years to implement offshore health and safety regulations. They sought two additional years and were granted them in a budget implementation act. Then in Senator Ravalia’s bill, which was obviously introduced in the Senate, they sought two more years. We said “no,” and told them to do it in one year. That was passed unanimously in committee, in this chamber and in the other place.

We are clearly seeing the looming deadline in relation to this bill. In fact, the deadline has passed. I have not heard any argument that such an approach was unavoidable in this case. I don’t want to get too far off topic, but, colleagues, we have become so used to this occurring that many of us scarcely blinked when we learned that — by the way — today is the deadline.

The Court of Appeal of Alberta signalled 18 months ago that it expected a very different approach from the government. To reiterate, the court said:

We are mindful that protecting the privacy interest in an individual’s personal electronic devices while recognizing the need for effective border security will involve a complex and delicate balancing process.

Colleagues, I couldn’t agree more. It now falls to us in Parliament, as the court said, to devise an approach that imposes limits on the conduct of searches at the border but at the same time ensures that our border is protected.

Colleagues, we have seen that this cannot include loose definitions such as “reasonable, general concern” that have no basis in Canadian law and even less so in practice. Thank you, colleagues.

Thank you, Senator Wells. I think you raised important questions, particularly around timing. I share some similar concerns in terms of this bill. Also, you didn’t mention — but I think you are aware — that it was denied referral to the Supreme Court. What it leaves for customs officers is inconsistency across the country. From my perspective, it’s so important to have a pan-Canadian perspective — one that we can make well known to our U.S. counterparts and others.

While we are frustrated, perhaps, with the speed with which the bill was put before the Senate, for the sake of those officers trying to do their work, would you agree with me that we should do a thorough review but not slow it down intentionally because of our displeasure with the government?

Thank you, Senator Boniface. This won’t be slowed down by anyone near me or who might be advised by me. I think this needs to be done as soon as possible, and with a rigour that protects Canadians.

Thank you, Senator Moncion. You’re correct; it’s easy to do. Unlocking a phone is easy to do — the facial scan or, on some, the thumb print or simply the password.

From my understanding — and I think it was in Senator Boniface’s second reading speech, and indeed in one of the two briefings I had from departmental officials — you are required to give your password to unlock the phone. That is a requirement. If you choose not to give the password, then CBSA has the right to hold the phone and unlock it in whatever ways they unlock phones.

I can’t remember the exact term, but CBSA told me that their policy was that they would only search it in non-connectivity mode. I call it airplane mode, and, yes, it’s easy to switch it off. If they do that, then obviously they would be violating their own policy, as they did in my case. In fact, I didn’t even put it in airplane mode because I didn’t know that was a choice I had. I think it’s a fundamental right, and Canadians should be told that they have a choice, certainly if it’s under policy. If it’s under law, they may not have that right.

You’re right that taking it off airplane mode is simple, but their policy — and this is what they told me — is that their searches can only be conducted without connectivity. Taking it off airplane mode is very simple, and perhaps if we make an amendment to the bill, it will be in law that they have to be informed. I think that would be an amendment that would be worthy of consideration for the protection of the rights of Canadians.

Senator Wells, when you gave your speech with regard to this legislation, you talked about the delay that the government put forward and also, I think, used the words “despicable” and “disgusting” to talk about some of the crimes that we’re talking about here today.

I think the principle of “better late than never” might apply in this case. Although you say there is a difficult balance to be found, wouldn’t you agree that this legislation ought to be forwarded immediately to the committee so they can discuss and debate this balance, accepting that in the gap are, as you called them, innocent victims who are the subject of this whole discussion?

Thank you, Senator Busson. You make an excellent point. This needs to be law as quickly as possible. I don’t want to say it could have been done 18 months ago, but it should have been done long before now, and I see no reason to delay the process of sending it to the committee.

Obviously, we all have a right to speak on it and that could take time. I don’t know if any of my colleagues that sit with my caucus are going to speak on it. I don’t think so — I haven’t been given any indication — but let’s get it to committee and give it the scrutiny that it deserves. It’s an important issue. It’s not something trite. It’s a serious issue that worst-case scenarios happen. I have no reason to want to delay it or to see it delayed.

Senator Wells, you discussed the issue around having your iPhone searched in the past and they found some Visa records. I would like you to comment whether you felt absolutely violated when they found these Visa records in your iPhone. And how do you feel when they go through your entire luggage?

Senator Busson, I live a boring life, so while I did feel some violation of my privacy — it was my bank statements; I do my banking on my phone, so there was that feeling of violation — but I also thought that this is the process that a free country has. Also, I had nothing to hide.

In fact, on the claims form I said I have higher than the amount. In a public position such as ours, we don’t need to sneak around and try to get around the law because the headline isn’t that some guy gets around the law, it’s that a senator gets around the law, or tries to.

I felt violated years ago. In the 1970s, I had a car and it was parked in my driveway and the door was locked. I got up in the morning and my car had been broken into, and my cassettes had been stolen. They weren’t 8-tracks; they were just the regular old-fashioned cassettes.

A couple of weeks later, I came out to my car again and one of the cassettes was on the passenger seat. So they had returned one of the cassettes.

Hang on. That might be true. That’s when I felt violated, when I was targeted with a specific act for nothing that had reasonable grounds. They didn’t come to steal anything. They already did that. The violation that I felt was when there was no reasonable grounds to do it, and I think that’s the crux of this debate.

They couldn’t find a player.

Senator Wells, in your speech, you stated that Bill S-7 introduces a new criterion. That is the case.

You referred to the comments of other senators who criticize this bill for introducing a new concept. Wouldn’t you say that the study you would like a committee to carry out — and I believe it is important to carry out this study — should not focus on whether a new concept is being introduced?

The problem is not that this is a new concept, because it was the Court of Appeal itself that introduced it. When the Court of Appeal states that the existing concept may be too strict for the situation we want to address, the legislator could favour a less-strict concept that creates fewer obligations for customs officers.

The fact that it is a new concept is therefore to be expected, but shouldn’t we focus instead on whether the concept chosen by the government in its bill is legally appropriate for the situation we want to address?

We should also not be engaging in scare tactics. As new concepts are often introduced into new laws, should we not instead determine whether this concept chosen by the government is appropriate in the context we want to cover in this bill?

Senator Dupuis, you’re absolutely right, that’s what the Court of Appeal said. The new concept chosen by the government is “reasonable general concern,” and that’s what I have issues with because, to me, there is no limit to what might trigger a search. We’re supposed to be given comfort by the fact that we are told they’ll take notes. Well, the notes will be there to protect CBSA, for sure; they won’t be there to protect the individual, in my opinion. They will say the person looked nervous or that it didn’t appear that he was from Canada or whatever. He was sweating and fidgety.

I think that the bar of reasonable general concern — which, exactly as you said, is the new concept presented by the government, which, I guess, follows advice from CBSA — is too low for the protection of the individual’s privacy rights that every law-abiding Canadian should be afforded.

Would the senator take a question?

Yes.

Thank you very much. It’s so difficult to talk about issues of child pornography because it is such a grotesque and exploitative crime. Online child sexual abuse is a scourge in Canada. There is no one in this chamber who is in favour of it.

What I am concerned about is a question of balance and volume. Every day in this country, thousands of pieces of child pornography are bought and sold and traded online. The amount of it available online is practically infinite.

Yet over the last five years, from May 5, 2017, to May 5, 2022, Canada Border Services Agency seized 392 examples of child pornography at the border that came in on digital media, some on cellular phones and computers but others on hard drives, USB sticks, CDs and DVDs, that kind of thing. That’s 392 seizures in five years, not all of which are on phones and computers. Probably the minority are on phones and computers. I’m not sure.

It seems to me that we are potentially breaching the civil liberties of every international traveller for the sake of stopping a very small hole in the dike, while over here millions of pieces of child pornography are coming over the internet. I want you to tell me whether you think the abridgement of our civil liberties is sufficiently balanced given the minute amount of child pornography that is actually being detected in this way.

That’s an excellent question. In the old days, if you wanted to import child pornography, which we all agree is heinous, you had it in a folder or binder or album or a magazine, something like that. But now you’re right, the vast — and I can’t say vast enough — majority is stored not on the pages of a book; it’s stored online, in the cloud, in attachments to things only accessible through the internet.

There is a way to stop people coming across our border with images that we’re talking about stored on their digital devices. That is to search everyone and give CBSA the right to have full access to all of the devices. We know that’s not reasonable. That’s like saying we know we can stop car accidents on the highway by having a five-kilometre-an-hour speed limit. It’s not practical. The liberties that we have, that right to privacy, which is fundamental to our society and is fundamental in Canada, is a strong one.

The need to stop this material coming across the border is also strong, but you are right. It is a finger in the dike because you can put your finger in the dike and the water still flows over the top of it. That is what is happening. I’m really just thinking about Canadians coming in, not others. Obviously, that is not as strong a concern as I have for the rights of Canadians to privacy. I think striking at that balance is important but not the lowest bar possible that has been called “reasonable general concern.”

You make an excellent point. We are looking at the nickels and dimes when there are dollars flowing in.

Senator Wells, did you know that even if you have your phone on airplane mode without the location on they will know where you have gone and how long you’ve spent at various locations?

Yes, I know a lot of that is tracked and stored. I know all of what we do geographically is tracked and stored. Having it on airplane mode or non-connectivity, if that is the policy, is a reasonable policy. Of course, you have to declare where you are coming from. It may seem obvious from your boarding pass, but I am aware other information can be gathered from your personal devices without connectivity.

Would Honourable Senator Wells take another question?

Of course, senator. I would be glad to do so.

Senator Wells, in truth I should have asked this question to the sponsor of the bill but I missed my time. I am forgetting exactly what happened, but perhaps you can help me to understand this.

With these new added authorities to search based upon reasonable general concern, what does the bill say about oversight of the CBSA officers, or do we simply have to wait for the independent oversight bill that is expected sometime?

That is a good question. It is a paragraph that I had in the speech but I took it out because I wanted to concentrate on the substance of the bill. The question of oversight of CBSA, which is lacking, wasn’t part of the bill.

Perhaps that question could be asked at committee when witnesses come from CBSA or perhaps Senator Boniface might know more about it at third reading. That is a good question and it is important.

Senator Wells, I’m wondering about a “reasonable indicator.” Do you have any idea what that might be? It is a very subjective thing by border guards. Running into them in Norway and Spain, I know what it can be like. Sometimes they are not very objective. What would be a reasonable indicator in your mind in Canada?

Senator Richards, I wish I knew. I know in Senator Boniface’s second reading speech last Thursday she noted that these officers are professionals. They have experience. They know how to pick up cues.

I have no experience. I do not know how to pick up these cues. You might have someone who has not shaved in three days, has not had a shower in four days, does not dress well and they could be fine, upstanding citizens having a bad week; or you could have members of the clergy coming through with their collars on; or you could have fine, upstanding, apparently well-shaven and well-bathed people who come in who could have the worst kind of stuff on their devices. I do not know. There are professionals who do know. I am not one of them.