Hot issues: Standing Committee on National Security, Defence and Veterans Affairs: Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016 (May 30, 2022)

Office of the Privacy Commissioner concerns with personal digital device examinations under the Customs Act

Proposed response

Respect for travellers’ privacy has been and remains an ongoing commitment for the Canada Border Services Agency.

In the Office of the Privacy Commissioner’s 2019 report, nine changes were recommended in order to address the privacy concerns. The Canada Border Services Agency accepted the six operational requirements and has incorporated them into internal policy and procedures.

The proposed legislative amendments look to address the three legislative recommendations made by the Office of the Privacy Commissioner and the privacy concerns raised within the report.

While the proposed changes are not identical to those recommended by the Office of the Privacy Commissioner, they are comparable and are expected to be positively received as they generally respect what had initially been recommended.

Background

In December 2019, the Office of the Privacy Commissioner (OPC) published a report on six Privacy Act complaints against the CBSA concerning its examination of digital devices. The report found that the CBSA had contravened the Privacy Act in two of these cases, sighting issues concerning the retention of personal information for non-administrative purposes:

• Case 4: officer’s actions in copying information from the digital device were inconsistent with an officer’s authority under the Customs Act (CA) and the Criminal Code
• Case 6: officer’s line of questioning and the associated collection of information went beyond the CBSA’s authority under the CA

The OPC recommended nine changes (six operational and three legislative) to address these concerns. The CBSA accepted all operational recommendations which have either been completed through incorporation into internal policy and procedures, or scheduled (in other words, internal audit expected to be published in spring 2022). The OPC was consulted during the process to update to internal policy.

The legislative recommendations from the OPC included:

1. Changing the definition of ‘goods’ within the CA to exclude digital devices
2. Developing a clear legal framework for examination of digital devices including specific rules
3. Amending the examination threshold in Agency policy from a ‘multiplicity of indicators’ to ‘reasonable grounds to suspect’ and subsequently reflecting this in the CA

Policy consideration

In early 2020, the CBSA analyzed the recommendations to determine whether legislative changes were necessary. After careful consideration and extensive consultation, it was determined that more data over a longer period (at least a year) was necessary to decide whether the OPC’s concerns surrounding the examination of digital devices could be more effectively addressed through policy changes and oversight.

The intention was to not overly restrict examination authorities thereby impeding officers’ ability to effectively interdict harmful goods. In many cases, the CA examination authority is the legal tool which the CBSA uses to administer and enforce a broad range of border legislation. The potential adverse impacts of accepting the OPC’s recommendations could extend beyond the CA itself and impact some of the other 90+ acts and regulations that the CBSA administers on behalf of other departments and agencies.

As a result, the Agency’s Executive Policy Committee approved the recommended approach that further analysis of the legislative recommendations and related examination data was required prior to seeking any changes.

Post R v Canfield and R v Townsend (Canfield)

Following the outcome of Canfield in October 2020, the CBSA needed to amend legislation to align the examinations of personal digital devices with the Charter. The OPC’s suggested legislative changes remained under consideration, however the decision to implement a lower examination threshold (than what was recommended by the OPC) was guided by the ruling in Canfield and based on extensive legal risk analysis (summary below).

OPC suggestion: 1

Exclude PDDs from the definition of “goods” in the CA.

Recommended approach

• Actual privacy concern centers on the examination of documents on a PDD (rather than just the device itself), which are still considered goods however, are now subject to a higher examination threshold (reasonable general concern)
• PDDs remain included in the definition of goods given that digital devices (such as commercial shipments of iPads) are still subject to a no-threshold examination

OPC suggestion: 2

Develop a clear legal framework.

Recommended approach

Legal framework for the examination of PDDs has been developed that includes a new specific threshold to initiate examinations of PDDs and new regulations to guide the conduct of exams.

OPC suggestion: 3

Amend examination threshold to reasonable grounds to suspect.

Recommended approach

• Court in Canfield agreed that a threshold lower than reasonable grounds to suspect may be more appropriate for a border context
• Reasonable general concern is intended to be higher than mere suspicion and lower than reasonable ground to suspect to allow for flexibility when concerns exist but the exact contravention is not known
• Considered more operationally feasible while continuing to protect border integrity

The OPC released its annual report in December 2021 which highlighted its 2019 report findings and the ruling in Canfield, however had no additional comments or recommendations.

Preclearance privacy concerns

Proposed response

These changes to the Preclearance Act, 2016 enhance the privacy protections afforded to travellers and are expected to alleviate some of the general concerns has raised by the Office of the Privacy Commissioner about travellers’ privacy regarding their electronic devices in a border context.

The United States government will ensure that all information collected during preclearance operations is treated in accordance with the applicable privacy laws and policies, including those that protect personal data against inappropriate access, use or disclosure.

Every United States preclearance officer must participate in training on Canadian law, and this training will be updated to reflect these legislative changes.

While the newly proposed threshold is not identical to the one recommended by the Privacy Commissioner when the Preclearance Act, 2016 was first ratified, it is similar, and is expected to be positively received as it increases the privacy protections afforded to travellers.

Background

When the Preclearance Act, 2016 first made its way through parliament, it was amended in the House to include section 26.1, which created a feedback mechanism for travellers to, regardless of any applicable recourse, inform senior Canadian government officials of the Preclearance Consultative Group of any situation relating to strip searches, monitored bowel movements, x-ray or body cavity searches or withdrawal.

The Privacy Commissioner subsequently spoke before Senate Standing Committee on National Security and Defence, and recommended that all activities performed by United States (US) officials in preclearance facilities should be included in this traveller feedback mechanism, and specifically mentioned the search of digital devices. It was argued that examinations of personal digital devices should subject to the same threshold as searches of persons, that is, reasonable grounds to suspect.

In addition, the Office of the Privacy Commissioner (OPC) reported on travellers’ privacy at airports in 2018, specifically referencing preclearance in this context. The OPC informed travellers of the possibility of their personal digital devices being searched by US preclearance officers.

OPC suggestion: 1

In a preclearance context, amend section 26.1 of the PCA 2016 to include the search of all the actions of US preclearance officers, particularly personal digital devices.

Recommended approach

• This was a recommendation from the OPC when the PCA 2016 was before the Senate and was not incorporated into PCA 2016 at that time
• Section 26.1 is intended to provide feedback mechanism in respect of corporal searches

OPC suggestion: 2

In a preclearance context, the searches of electronic devices should subject to the same threshold as searches of persons, that is, reasonable grounds to suspect.

Recommended approach

• The new threshold of reasonable general concern has undergone stringent legal analysis and review
• Subjecting personal digital devices to the threshold of reasonable grounds to suspect is not viable in an operational border context

Canada – United States relations: Preclearance

Proposed response

Prior to the introduction of the Bill to Parliament, general consultations occurred between the Government of Canada and the United States Government, specifically the colleagues within United States Customs and Border Protection and the Department of Homeland Security.

During these initial consultations, the United States Customs and Border Protection and the Department of Homeland Security were made aware of the R v Canfield court decision and the timelines for making legislative amendments.

The United States Customs and Border Protection and the Department of Homeland Security were also made aware that a threshold and other legally-binding requirements will be put in place for examination of personal digital devices.

With the introduction of the Bill, in-depth consultations are underway with United States government officials to explain the new threshold and receive their feedback on the legally-binding requirements that will be required on how personal digital device examinations are conducted.

The Canada Border Services Agency will also train all United States. preclearance officers on the new threshold and requirements after the changes come into force.

Under the Agreement on Land, Rail, Marine and Air Transport Preclearance, United States preclearance officers in Canada must comply with Canadian law while operating within its territory. Canadian law applies in both the preclearance area and the preclearance perimeter.

Background

As agreed upon in the Agreement on Land, Rail, Marine and Air Transport Preclearance (LRMA), the U.S. is required to operate in a manner consistent with Canadian law while conducting preclearance in Canada and vice versa.

Prior to the Bill being tabled in Parliament, only general consultations had occurred between Canada and the U.S. on the amendments to the PCA. Specifically, the U.S. had been informed of the R v Canfield ruling, the timelines for making legislative amendments, and that a legal threshold as well as legally binding requirements are to be applied to U.S. preclearance officers’ PDD search authorities. Now that the Bill has been made public, more fulsome consultations will be ongoing with U.S. government officials in order to refine requirements that will be applied to preclearance officers and to explain the threshold US officers will have to meet before examining, searching or detaining a personal digital device.

Canada has consulted the US in the past on legislative changes that have touched on U.S. preclearance operations and the U.S. has been cooperative and accommodating in those instances. The U.S. also has an appreciation that the decision rendered in R. v. Canfield has impacted the examination of personal digital devices at a constitutional level. Under the circumstances it is not anticipated that the U.S. will contest the new threshold.

Ongoing discussions with the U.S. will afford an opportunity for Canada to integrate feedback form the U.S. into development and finalization of legally binding requirements which are initially planned to be implemented by way of ministerial directions, and subsequently codified in regulations.

More broadly, because U.S. operations must be undertaken in a way consistent with Canadian law, the Preclearance Act, 2016 contains a provision under which the Minister of Public Safety must provide preclearance officers with training on relevant Canadian laws. As such, officers already have an appreciations that their activities in Canada, and particularly their search authorities, must be in compliance with the Charter. This training will be supplemented to include new material on the threshold and requirements applicable to the detention, examination and searches of personal digital devices.

Non-viability of reasonable grounds to suspect as a threshold

Proposed response

In its ruling, the Court did not recommended a specific threshold for personal digital device examinations, but signaled that something less than reasonable grounds to suspect may be more appropriate given the unique nature of the border.

While an established threshold such as reasonable grounds to suspect was considered, it is rarely used in a border context and was deemed to be too restrictive for these regulatory exams.

Examinations of personal digital devices are considered regulatory and part of routine border processing, however, they are not conducted as a matter of course.

Reasonable grounds to suspect is more likely to require individualized suspicion of a specific contravention prior to examination. If applied to personal digital device examinations, there may be difficulty identifying specific contraventions given short interactions with traveler and limited access to information.

Difficulty in meeting a higher threshold such as reasonable grounds to suspect could lead to overall weakened border control and a likely decrease in the interception of prohibited materials such as child pornography.

A reasonable grounds to suspect examination threshold is currently required under the Customs Act to order to initiate non-routine searches such as a personal search (skin or strip search).

A new threshold was developed after extensive consultation which actively responds to the Court’s ruling of unconstitutionality while balancing traveller privacy and operational enforcement priorities.

The new threshold of reasonable general concern requires that concerns be localized to the border and individualized to the traveller’s personal digital device but does not require the suspected contravention to be particularized.

If pressed on the Canada Border Services Agency’s authorities

Reasonable grounds to suspect is recognized and used by the Canada Border Services Agency in the context of personal searches, mail examinations, the mixed traffic corridor, customs-controlled areas, and suspected errors in origin or classification declarations.

In these situations, officers deal with cases where indicators largely point to suspicion of a particular contravention and that the suspected contraventions can be identified with specificity prior to examination.

In most of these cases, examinations would not be considered part of routine border processing.

Background

R v Canfield and R v Townsend involves two convictions from 2018 for possession and smuggling of child pornography. In the original trial, the judge found that the defendants’ Charter rights were not breached and the use of section 99(1)(a) of the Customs Act to examine travellers’ digital devices does not violate section 8 of the Charter. The defendants appealed that decision, emphasizing that societal changes and the inherent personal nature of the content on digital devices brings the examination of these devices into conflict with Charter rights.

In October 2020, the Court of Appeal of Alberta found that 99(1)(a) in the context of digital device examinations is unconstitutional because there are no limits on the examination – they have declared that digital devices no longer fall under the definition of “goods” in the Customs Act and therefore are not subject to examination under 99(1)(a). Of note, the judges explicitly declined to establish a threshold requirement for the examination of digital devices and stated that some of the information commonly stored on digital devices must be available to officers as part of the routine screening of passengers. While the Court did not provide an explicit recommendation, it did signal that an appropriate examination threshold may be something less than reasonable suspicion (reasonable grounds to suspect) given the unique nature of the border.

On April 14, 2022, the Ontario Superior Court (ONSC) also ruled in R v Pike and R v Scott (possession of child pornography cases) that personal digital device examinations are unconstitutional under para 99(1)(a) of the Customs Act. The Public Prosecution Service of Canada (PPSC) had requested a one-year extension in the event that the provision was found unconstitutional, which ONSC did not grant. The ONSC decided that the suspension would be co-extensive with the Canfield suspension and expire on April 28, 2022.

The Court stayed the decision until April 28, 2022 to allow for the Government to respond with the relevant legislative changes. While the Government has introduced Bill S-7 proposing amendments to the Customs Act to address these Court decisions, Parliament was unable to pass these legislative amendments before the declarations of constitutional invalidity came into effect in Alberta and Ontario. Therefore, as of April 29 2022, personal digital devices examinations in the provinces of Alberta and Ontario are no longer permitted under para. 99(1)(a).

The CBSA consulted extensively with stakeholders in order to identify an examination threshold that actively responds to the Court’s ruling of unconstitutionality, while also remaining operationally balanced in its ability to enforce the CBSA’s mandate. Regional consultations determined that an examination threshold of reasonable grounds to suspect (RGTS) would be too high to meet, operationally and would thus lead to a significant decrease in examinations and weaken border integrity.

The threshold of RGTS is recognized and used by the CBSA in the context of personal searches, mail examinations, the mixed traffic corridor, customs-controlled areas, and suspected errors in origin or classification. Recognized most largely for its use in personal searches (in other words, strip searches), RGTS is more likely to require individualized suspicion of a particular contravention prior to examination. This means that an officer is required to have RGTS that a person has currency, or narcotics (for example) secreted on their person prior to conducting an examination. Unlike personal searches, PDD examinations often deal with situations where there is difficulty in associating indicators to a specific contravention due to the limited time and evidence available at the border.

The new threshold of reasonable general concern (RGC) requires that concerns be localized to the border and individualized to the traveller’s personal digital device but does not require the suspected contravention to be particularized. The RGC threshold has been tailored to respond to the unique border context and requires indicators to be objective and factually-grounded. This threshold is designed to operationally mirror current CBSA policy in order to continue lawfully intercepting and interdicting harmful goods while also demonstrating the importance the Government of Canada places on upholding traveller privacy protections.