Bill S-7 would “weaponize the Customs Act”: Senator

A Government bill in the Senate that seeks to codify the legal threshold for the search of digital devices at border crossings would "weaponize the Customs Act in fresh and unintended ways," according to one Senator. In remarks to the Senate Tuesday, Senator Paula Simons criticized a Government effort to update the Customs Act and said that the new threshold established by the bill, known as S-7, is far too low. In her remarks, Simons pointed to language in the bill that would allow Canadian Border Services Agency (CBSA) officials to search a digital device if the agent has a “reasonable general concern,” an entirely new standard. "What does a 'reasonable general concern' mean, legally speaking? I wish I could tell you but I can’t since there is no Canadian jurisprudence related to this newborn phrase," Simons said. "It sounds even more vague and more subjective than a good old-fashioned hunch or an inkling. It is a fuzzy, ill-defined threshold, one that opens the doors to all kinds of possible misapplication or abuse," she said, and added that she expects the bill to be challenged in the courts quickly, should it pass. The standard of reasonable general concern is a lower threshold than the more commonly used "suspicion on reasonable grounds" for a search in the Customs Act. "Why on earth should it be easier for border agents to search the contents of our personal electronic devices than it is for them to search our mail or our coat pockets or our car trunks or our suitcases?" Simons asked. "Yet that is precisely what Bill S-7 allows." The legislative effort flows from a 2020 Alberta Court of Appeal ruling in a case known as R. v Canfield, in which the court ruled that the search of digital devices under the Customs Act – which governs the authorities of border officers – violated the right to be free from any and all unreasonable searches and seizures under the Canadian Charter of Rights and Freedoms. The court also directed Parliament to establish the threshold. In 2019 – before the court decision in Canfield – the Office of the Privacy Commissioner released the results of an investigation following a series of complaints about searches of personal digital devices by Canada Border Service Agency (CBSA) officers at borders. The OPC found that the CBSA had violated the Privacy Act, and made a number of recommendations for CBSA officers governing such searches. The OPC also said last month following the introduction of the bill that despite offering its advice and expertise on the crafting of the bill, it was not consulted. In a speech bringing the bill to the second reading stage in the Senate, Senator Gwen Boniface pointed to the need for device searches to combat child pornography. "Regarding child pornography in particular, personal digital devices are now the primary method of importation of this prohibited material. As we all know, senators, child pornography is not just about pictures, it is about victims — child victims," Boniface said. Boniface also said that the new threshold was necessary. "With respect to the proposed changes to the legislative examination authority, while an established higher threshold, such as reasonable grounds to suspect, was considered, this threshold is used in limited contexts in border processing and was deemed to be inappropriate for these types of examinations," she said. She added that "the new reasonable general concern threshold ensures that officers need not identify a specific suspected contravention prior to beginning an examination," and that the lower threshold is needed at the border because there "there may be a difficulty identifying specific contraventions given CBSA officers have short interactions with travellers and limited access to information." The bill, according to Simons, appears to be passing through the national security and defence committee, rather than through the legal and constitutional affairs committee. "I wish it were possible for both committees to study this, because I think the Standing Senate Committee on Legal and Constitutional Affairs, with its unique expertise in that area, should also apply its critical lens to this bill," Simons said. –Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Paul Park at ppark@thewirereport.ca

Bill S-7 would “weaponize the Customs Act”: Senator

News | May 4, 2022

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Bill S-7 would “weaponize the Customs Act”: Senator

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