Honourable senators, this reasonable general concern examination authority includes specific purpose limitations, ensuring that the examination must be regulatory in nature, and will be limited to what is stored on a device at the time of border crossing. Of equal importance, however, is that the officer’s concerns must be reasonable, insofar as they can be objectively identified and meaningfully reviewed, akin to what CBSA is already doing.

This, combined with new legally binding controls to be included in regulations, would guide the conduct of the examination. These controls are intended to create the appropriate limits on the examination and would include specific note-taking requirements and restrictions around accessing documents stored only on the device itself, and not on “the cloud.” Again, that is something the CBSA is already doing internally.

Colleagues, in a world of ubiquitous smartphones and constantly evolving hand-held technology, this legislative change is necessary to maintain the integrity of our border and keep Canadians safe, while demonstrating the ongoing commitment to respecting traveller privacy. While, yes, this is a novel approach, it is one that has been carefully developed, having regard to the uniqueness of both personal digital devices and the border regulatory context.

As with many legislative amendments, it is likely that there will be other challenges in charting this new ground. That said, the approach laid out for this bill responds to the legal concerns the court identified in Canfield, and now the Ontario cases, and preserves operational integrity for the CBSA, which should be vitally important to all Canadians.

The changes in this bill will ensure that the CBSA continues to fulfill its mandate to protect and secure Canada’s borders, while at the same time respecting the privacy rights of travellers. It will also align the examination authorities of CBSA officers and U.S. pre-clearance officers, both of which are subject to the Canadian Charter of Rights and Freedoms. In my view, it is a necessary and measured balance between privacy and security.

Practically speaking, what do you think these amendments mean for the average traveller? Frankly, colleagues, I don’t think we will notice much of a difference in processing when we return to Canada from our voyages. As mentioned, much of what is being legislated in Bill S-7 is already being done. This bill isn’t creating substantial new authorities for CBSA officers. It is, in fact, limiting those authorities found to be unconstitutional, authorities which the CBSA itself has already limited in its internal policies and operations for inbound travellers. But don’t misconstrue this bill as being any less important because of this.

Senators, the suspension of constitutional invalidity was originally for one year only, which put us to last October. The government applied for, and received, a six-month extension on that suspension. The extension is now set to expire today as the court refused a further extension. Beginning tomorrow, we will have two regimes in this country. Alberta and Ontario will be required to use subsection 99(1)(e) of the Customs Act, which obligates border officers to suspect on reasonable grounds that a contravention has occurred to examine personal digital devices, while everywhere else in the country can continue to use subsection 99(1)(a) as they have since the Simmons ruling. The higher bar of reasonable grounds to suspect is detrimental to the mandate of our border officers and detrimental to the public safety of our nation. Suspicion on reasonable grounds is harder to determine than using a multiplicity of indicators pointing to a contravention, which border officers currently use.

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. Starting tomorrow, it will be much easier to do so through Alberta and Ontario. Because of this, let’s be prudent, let’s be efficient, but let’s also be critical because this bill is seeking to implement a new evidentiary threshold for our ports of entry.

And let us ensure that we consider this bill, keeping in mind what is good for our borders and what is good for our communities.

Thank you. Meegwetch.

Senator Boniface, quite a few senators want to ask questions. Will you take questions?

Yes, of course.

Thank you, Senator Boniface. I understand the reasoning for the threshold that Bill S-7 seeks to create, but I am worried that implementing this new threshold will have a negative operational impact on the important work that our border officers and the United States pre-clearance officers do on a regular basis to protect our borders and, by association, all Canadians. As you mentioned in your speech, the border is unique, with its own privacy implications and thresholds that are generally lower than in most other places. But it worries me that this bill will create difficulties for border officers to search questionable personal digital devices, thus making it harder to find obscene materials and child pornography and, at the same time, easier for this unspeakable material to enter Canada. Can you assure me that the creation of this threshold will not negatively impact the operations and efficiency of our border officers?

Thank you, Senator Busson, for the question. Let me also say that, as someone who shared a career with you, these concerns were mine as well when I first looked at the bill.

What know as a result of the Canfield decision in Alberta that the court has left the CBSA with the options of creating something less than the threshold that they are living with now, which is actually a higher threshold in Alberta and Ontario, which I spoke about.

For CBSA, I think it is an obligation on which they have little choice, and I think they have shown to be particularly adept at shifting and moving into what will be this legislative model. They’ve also started to think particularly about how they will do their training. I think all of that convinces me, and I’m certainly convinced from our discussions with them — I hope the committee feels the same way — that they are prepared for the shift and that it will be very much a reflection of the policy that they’ve been working under since 2019.

Senator Boniface, thank you for taking on the sponsorship of the bill. You are not unoccupied as it is already, and we appreciate your taking on the sponsorship.

I note that the proposed amendments to the Customs Act and the Preclearance Act will be accompanied by regulatory changes, and we all know from experience that those regulations can lag behind the legislation or the amendments themselves, and we often have to confront this. I suspect we will have to confront it in this case.

What you can tell us about whether there will be some delay? And could I ask — and I’m not doing this on my own behalf but on behalf of all senators here — that you communicate to the minister that the narrower that gap, the better for everybody concerned and, indeed, the stakeholders and those who will be affected by the amendments?

Thank you for the question. From the briefings I’ve had with CBSA, they are working on the regulations already. They are very aware that the regulations and the legislation will best serve the officers and the community as they move forward in having them as closely aligned as possible. That was a question raised during the briefing by one of our colleagues, and he was reassured that is, in fact, their goal. As you know, and as you said, regulations tend to drag. I think they are very cognizant of that. I will reiterate that back to Canada Border Services Agency. I expect our colleagues on the committee to which this is referred will be looking for that level of reassurance as well.

Senator Boniface, you have 20 seconds left. Do you wish to ask for five minutes more? We have five more senators who want to ask questions.

May I have five more minutes if the chamber permits?

Honourable senators, are we agreed?

Thank you for the question, Senator Simons. How Canfield was interpreted — and I hope I spoke clearly on it — was that the court recognized there would be something between what would be the routine check and the reasonable grounds. I will send you the paragraph number to be clear.

They said it would be somewhere in between. It is novel. However, when you refer to other countries, let me also say that in the United States, in the United Kingdom and in Australia, the threshold is actually lower than what Canada is putting in here in its place. When we compare this to some of our like jurisdictions, this is actually a higher standard than exists in other jurisdictions.

That is an important question and that is why I said at the end of my speech that the committee that has the privilege to look at this bill needs to ask these questions. It is a unique circumstance at the border. Devices are unique in terms of the time frame that border officers have to look at them and to make their decisions. I think how they built in some of the accountability for officers is an important mechanism that helps us flesh it out. There is no doubt that the courts will have to look at this at some point; it will be challenged, and they will have to look at it. I am extremely hopeful that we will be in a position where we recognize the balance that must be taken in this case. I encourage those at the committee that sees this to make sure you ask those questions.

Thank you, Senator Boniface. You just said that the standard used is higher than that used in the United States. That raises the question of the pre-clearance agreements that we have with the Americans and the changes to pre‑clearance that will be affected by this bill. Is there a need to negotiate with the Americans for this to happen?

Thank you for the question, Senator Woo. The discussions with the U.S. government have already taken place. They already understand. Of course, because they operate in our state, in Canada, they already have to conform to the Charter of Rights and Freedoms. Consequently, they are well versed on this already and are prepared to move forward.

Thank you, Senator Boniface, for your deep deconstruction of this bill. I appreciate that.

I may not have heard you correctly, but when you spoke of the new thresholds that this bill is bringing into play, I think I heard you say, “behaviour.” This is where I want to ask you a question, because assessment of behaviour is hugely subjective. How can we contract CBSA officers to appropriately judge behaviour and whether or not that is an expression of real concern or an expression of some mental health condition or other physical condition? I need clarity there.

They have such a unique role and they have such a short interaction. In fact, this is what they do every day. This is how they are trained. With every person they meet, they are making an assessment of what that interaction means and what the indicators are.

As they move on issues regarding personal devices, they would be sent to secondary for that examination to take place. You would have the interaction of more than one person as well. But this is what customs officers do every day. They make those assessments based on the questions they ask and based on the types of behavioural things that they observe. Like the rest of people in those fields, they are tested on their accuracy. I just want to draw to your attention, again on the personal devices — what we would call the hit rate — the fact that 27% of them are actually finding contraband on those, which tells me that they are actually doing quite well when you compare it to any other area of work like that. They are very focused and looking for the right stuff.

We are out of time, but we still have four senators who wish to ask questions. Senator Boniface, are you asking for five more minutes?

I am happy to continue answering questions if the chamber is agreed.

Honourable senators, are we agreed?

Thank you, Senator Boniface, for your leadership on this. Finding the balance on this is something where your judgment and experience are really important. Regarding the challenge of getting it right, what came to mind was Bishop Lahey. He had negotiated a settlement for the sexual abuse victims in the diocese of Antigonish but then was caught at the Ottawa airport shortly thereafter with a computer filled with child pornography that he was importing into the country. He was subsequently charged and convicted, but it had a devastating effect on both the Catholic community in Nova Scotia and the broader community. There was a loss of trust. You are working on something that is very important.

I want to understand. The officers only have the opportunity to view the data on the phone — not on the cloud but on the phone. At that point, they can make a judgment. Is the next judgment that they make about retaining the device, or do they somehow capture information from the device? If they do capture it, what is done in terms of how that’s held or subsequently destroyed because of findings? Can you help me a bit in that regard?

So much depends on the specifics of what they find and what they do. One important piece — and I mentioned it in my speech — is if it comes to the point of a criminal investigation, such as the one you refer to, that would normally be referred to a different area. The material would be held — the phone — and then they would send it over for an investigation, which would likely then go to the local police to lay the charge.

The distinction is what the device initially is looking for is regulatory contraventions under the regime of the customs legislation. I should have mentioned it at some other point, but they have 90 different pieces of legislation that are covered under the contraventions. The criminal piece is normally done by the local police service, so it would be a connection then. Then they do a criminal investigation that’s separate and apart from it. That’s normally how the process would work locally.

Thank you, Senator Boniface, for the important work you are doing. Let me also, indirectly, extend thanks to CBSA officers for the tremendous work they do to guard our borders in this country at the different points, which is not an easy challenge given the multitudes of people who come across.

One of the things that has been noted in the debriefing is that the Privacy Commissioner has not yet commented on the bill. I presume that will happen soon. Should comments come in that alter some aspect of the legislation from that perspective, is this something the government is prepared to consider — recognizing, obviously, that privacy rights in this country are very different from those in the United States?

Senator Yussuff, thank you very much for the question. As indicated in the briefing that I received, as well as the briefing that was available to senators this morning, discussions have been ongoing with the Privacy Commissioner over some period of time. On this topic specifically, they haven’t yet had a conclusive discussion with the Privacy Commissioner. However, I would encourage the committee — whichever committee it is decided this goes to — to invite the Privacy Commissioner for those discussions and views. I would expect, as we do in this chamber all the time, that everyone will be open to amendments, and certainly the Privacy Commissioner’s voice is an important one to hear.

I have a couple of questions, Senator Boniface, if you will indulge me.

You talked about the multiplicity of indicators. How do you define “reasonable general concern” or, in fact, “lower than reasonable general concern”? What sort of indicators or behaviours would a CBSA officer look for? I am mostly concerned about this lower bar. If I come off an eight-hour flight, I’m at the airport, and if I don’t get sleep, I’m irritated, maybe dishevelled, not my normal absolutely pleasant self, how would a CBSA officer know that’s not my general nature?

Colleagues, we’ve already had two five-minute extensions. Senator Wells and Senator McCallum wish to ask questions. Senator Boniface, do you wish to ask for another five minutes?

I am at the mercy of the chamber. I would be happy to take Senator Wells’s and Senator McCallum’s questions, and perhaps we can agree to call it there.

Do honourable senators agree that we grant an additional five minutes, maximum?

Senator Wells, you said that you have many questions. You will need to make your questions brief in order to give Senator McCallum an opportunity to ask her question.

Agreed. I asked the question and I was waiting for the answer.

Thank you very much, Senator Wells, for your question, which very much aligns with Senator Omidvar’s question. I want to be clear that the “reasonable general concern” is legislated but not as high as “reasonable grounds.” To be clear, that is the difference. In fact, prior to Canfield, there was no threshold requirement; it was part of a routine search. I want to make sure that is clear.

You raise the same question that Senator Omidvar spoke to on the indicators. As I said, this is the work that CBSA officers do every day. They may ask you a question, not knowing you are Senator Wells, such as, “What do you have with you? What’s on your phone?” for instance. You may indicate, “nothing.” Then they will question further to see if they can get some indicators. They look for issues like avoidance in answering the questions. They look for people who are nervous.

It is important to remember that they work in this environment every day, so they take into consideration whether you have an explanation for the way you are acting or the way that you appear. They are professional in what they do. They are trained to look for this type of thing. The fact that they have to make notes around the personal devices is an important step in terms of any challenges they may have but also to ensure that, as they do this over time — which isn’t that often, as you can tell from the statistics — they will become very good at it. It is important to remember that this is what they do every day; it is not unique to this.

You mentioned that this is the regular policy of CBSA border officials, turning this into legislation. Ignorance of the law is no excuse, of course. I was stopped at the border a number of years ago. They asked for my phone and I gave them my phone. They asked for my password and I gave my password. I don’t know CBSA policy. Ignorance of policy is kind of an excuse and I think it would be challengeable.

Because the proposed law says they have to shut down network connectivity before they do a search, do you think it would be reasonable in the legislation for them to advise that the traveller has the right to shut down connectivity? Under policy, they have no obligation to tell the passenger anything.

Do you think it is reasonable under the legislation that they would have the obligation to do that — something like the Miranda law, where someone is given certain rights if they are under suspicion?

The question you ask is so specific that I would request that you ask it of the CBSA officers when they come before us. In fairness, I have not stood in their shoes to know exactly the step-by-step process. For me, that is how I best understand it. I would suggest that you put the question on the step-by-step process. You raise a fair question in terms of to what extent they have to inform. I think that when you learn how they walk through it in practice, that might be much better than any answer I could give you.

Thank you.

Your Honour, I have more questions, but I will cede the floor.

When you talk about the challenge of getting it right in terms of legal issues surrounding Indigenous people, it has always been — and continues to be — problematic, especially with racial profiling. To me, 27% finding contraband is very low. How long will the guards have to search for these sites that are often super-encrypted? If we are going to be fair, don’t you think it should apply to all Canadians?

I can’t fully answer the question, Senator McCallum, but I would be happy to send you a response that will hopefully help answer your question. I do know that the racial profiling issue will be an important question to be answered at committee.