Lower, legally novel threshold in Bill S-7 needed for “unique situation”: minister

The government's attempt to create a brand new threshold of "reasonable general concern" for the search of personal digital devices at Canada's border crossings is necessary because of the presence of the evidence of drug trafficking, child pornography, and "hate propaganda" on devices like cell phones, according to the minister responsible for the legislation. The risks to civil liberties presented by the update to the Customs Act, known as Bill S-7, will be mitigated by the institution of trainings for the Canadian Border Services Agency (CBSA) officials that will conduct the searches, as well as a new CBSA complaints commission introduced in a separate bill, C-20, Minister of Public Safety Marco Mendicino told the Senate National Security and Defence Committee Monday. In his opening remarks to the committee, Mendicino described the "reasonable general concern" language as "a unique threshold for a unique situation." "The new threshold of reasonable general concern is meant to be higher than a mere suspicion or a hunch, but less restrictive than reasonable grounds to suspect," Mendicino said. In explaining the new threshold, Mendicino decided to go word by word. "Reasonable," he told senators, means that "the denoted factual indications of noncompliance need to be objective and verifiable," and that these indications must be factually grounded and subject to meaningful review. The term "general," Mendicino continued, is meant to distinguish the new threshold from higher thresholds "which may require officers to identify specific contraventions before beginning the exam." The limited context and time with which a border officer assesses a traveller means that it can be difficult to identify a specific contravention, he added. The final word, "concern," is meant to "differentiate the proposed threshold from reasonable suspicion and judicial commentary around generalized suspicion," the minister said. "This is designed to be a new threshold which is more flexible than reasonable suspicion. At the same time it does not authorize officers to examine devices without individualized concerns, as the courts have suggested a generalized suspicion threshold might," Mendicino said. The bill has its roots in an October 2020 decision by the Alberta Court of Appeals, known as R v. Canfield, which was an appeal of a criminal conviction for child pornography that resulted from the search of a digital device at the Edmonton airport. In the decision, the court determined 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. In the decision, however, the court declined to establish the threshold itself, and gave Parliament a year to “craft a solution that addresses and balances the various competing interests.” In 2019, after the release of the results of an investigation following a series of complaints about searches of personal digital devices by CBSA officers at borders, the Office of the Privacy Commissioner recommended that the government elevate the threshold for such a search, and offered its "expertise" to the government in crafting legislation. The government did not take up the OPC on its offer. A threshold lower than that of "suspicion" is needed, Mendicino told Senators Monday, "given the varied contraventions which may be found, like a failure to report, like child pornography, hate propaganda, or evidence of drug importation." He said that "suspicion" is the threshold used for significantly more invasive strip searches. The minister said that since the court's ruling came into force this year, border officers have had to rely on a threshold of "reasonable ground to suspect" in order to examine a personal digital device (PDD). "Prolonging the requirement to use this higher threshold will unquestionably compromise public safety and border integrity, related to the decrease in the interception of prohibited materials on PDDs," Mendicino. In addition to mandating training for officers authorized to search devices, government regulations will require officers to take notes on their searches and to disable network connectivity so that only data physically stored on the device is searchable. Mendicino gave a hypothetical scenario of a traveller returning from a country known for sex trafficking after a lengthy stay without a "reasonable explanation" for the journey, who then becomes agitated and nervous during questioning by an officer, shifting their weight and sweating. After multiple digital devices are discovered on a search of the traveller's luggage without explanation, this would give an officer a reasonable general concern to search the devices, Mendicino said. The hypothetical search would not have been allowed under the higher "reasonable suspicion" threshold, the minister added. A separate piece of legislation would create a new civilian review complaints commission for CBSA conduct, the minister said, which will add to accountability for those with the authority to search PDDs under the new lower threshold. New Brunswick Senator David Richards was unconvinced. He said that the legislation was "arbitrary and intrusive," and added that it is "the same kind of searches, I witnessed in Spain during Franco." British Columbia Senator Mobina Jaffer said that the bill does not ensure that an officer's notes will be recorded when a search uncovers nothing. "I can't help but think that this is going to lead to racial profiling and systemic racism at the border," Jaffer said. "If nothing is found, there won't be a note taken, so you will not even know that people have suffered the indignity of a second exam." Earlier this month, Senator Paula Simons told Senators that the bill would "weaponize the Customs Act." “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 at the time. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

Lower, legally novel threshold in Bill S-7 needed for “unique situation”: minister

News | May 31, 2022

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Lower, legally novel threshold in Bill S-7 needed for “unique situation”: minister

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