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Appearance before the Standing Senate Committee on National Security and Defence (SECD) on Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016

June 6, 2022

Ottawa, Ontario

Opening statement by Brent Homan
Deputy Commissioner Compliance Sector

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Introduction

Thank you Chair and Members of the Committee for the invitation to speak to the important Bill before you. I am Brent Homan, Deputy Commissioner of Compliance with the Office of the Privacy Commissioner. With me today is Regan Morris, Senior Counsel at the Office.

The legislation before you deals with a complex balancing of individual rights and security objectives.  

These complexities are amplified by the unique context of the border, where there is greater latitude extended under the law for border inspection and immigration control, and a corresponding reduced expectation of privacy for travellers.   

Despite this greater latitude, it does not mean people lose all rights to privacy at the border. The law needs to be updated in order to recognize the realities of modern technologies and their capacity to reveal a tremendous amount of personal information.

Sensitivity of digital device inspections

The Supreme Court of Canada has found that the search of a digital device can constitute a significant intrusion of privacy. As noted in R v. Fearon, digital devices have immense storage capacity and ability to generate information about intimate details of the user’s interests, habits, and identity, without the knowledge or intent of the user, and may provide access to information that is in no meaningful sense “at” the location of the search.

Both the Alberta Court of Appeal in R v. Canfield, and the Ontario Superior Court of Justice in R v. Pike have now called on Parliament to implement a legal threshold for the examination of digital devices at the border that accords with the Charter. 

The courts left the essential question of what threshold is appropriate to achieve this balance to be decided by Parliament. 

I would like to put forward some considerations in favour of a threshold of “reasonable grounds to suspect” which, in my view, would be more appropriate to achieve the balance sought by the courts in Alberta and Ontario than what is currently proposed in Bill S-7.

The appropriate threshold for examinations

First, to our knowledge no other statute uses the formulation “reasonable general concern” as opposed to the more common “reasonable grounds to believe” or “reasonable grounds to suspect” already found in the Customs Act. It’s not clear what the evidentiary basis is for this novel threshold, and its novelty creates a high potential for ambiguity in its interpretation and implementation. 

There is also a risk that ‘reasonable general concern’ could be interpreted as not requiring concerns specific to an individual but rather permit examinations based on “general” concerns, such as what country an individual is arriving from. Given the privacy interests at stake, border officials should require some objective basis for examining the device in question, and not permit broad sweeps of certain classes of travellers. Even if this isn’t the intent, there is nothing in the text of the Bill that specifies individualized “concerns” are required to meet this threshold.

Second, it is unclear why a device search should be subject a lower threshold than is required for an officer to open and search mail at a border crossing, which requires “reasonable grounds to suspect” under the Customs Act. Inspecting a physical piece of mail is arguably less extensive and potentially less intrusive than a digital device that could contain texts, photos, personal documents and electronic mail potentially spanning several years.

Third, reasonable grounds to suspect is a flexible standard that would not unduly constrain border officials. In the Supreme Court of Canada’s recent decision in R v. Stairs it stated that “to establish reasonable suspicion the police require a constellation of objectively discernible facts assessed against the totality of the circumstances.

In Stairs, the Court elaborated that the standard required a “possibility” not probability, and that the assessment was “fact‑based, flexible, and grounded in common sense and practical, everyday experience” (para. 68). Although decided in a different context, this case suggests reasonable suspicion is not too rigid a threshold. 

As well, in R v. Pike the Ontario Superior Court of Justice rejected the Crown’s submissions that having a “reasonable grounds to suspect” standard would be too burdensome. The court further noted that (para. 77):

“[r]easonable suspicion has been held to meet constitutional requirements in other contexts and would impose a standard protective of the public interest at the border”

With these cases in mind, coupled with the heightened sensitivity and intrusiveness associated with the search of digital devices recognized by the courts, I am not convinced of the need for a lower standard than the well-established threshold of reasonable suspicion.

Elements missing from Bill S-7

Before I conclude, I would like to briefly mention a few important procedural and accountability requirements that should also be included within the legal framework in support of a defined threshold in the law, which were key issues raised in the course of our investigation of the CBSA with respect to the examination of digital devices.  These include:

  • Specific record-keeping requirements related to device searches, including obligations to document indicators justifying the search,
  • Ensuring certain technical procedures and requirements are in place to limit the scope of the search to only what is stored on the phone (e.g. disabling network connectivity),
  • Rules for password collection and retention limits, and
  • Mechanisms for complaints, redress, and independent oversight.

While these could be provided for by the Regulations, there is nothing currently in the Bill that would require these specific elements be included.

Conclusion

A search of a personal digital device is inherently intrusive and I believe important questions remain as to whether the novel threshold proposed in this Bill achieves the right balance. While my remarks today have focused on the threshold under the Customs Act, I would also point out that the same threshold would permit examinations under the Preclearance Act for a much broader scope of reasons. I would suggest that this aspect of the Bill is worthy of distinct consideration.

Thank you – and we would be happy to take your questions.

 

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