Legislation: 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)
Copy of the bill
Government Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016
Background
On , the Court of Appeal of Alberta ruled in R v Canfield and R v Townsend (Canfield) that the examination of personal digital devices (PDD) under the Customs Act (CA) is unconstitutional to the extent that it imposes no limits on the searches of such devices. The Court suspended its declaration of invalidity until to enable Parliament time to make legislative changes to reconcile this constitutional deficiency. No further extension was granted.
The policy intent is to establish a distinct legislative framework for the examination of PDDs to strike the optimal balance between respecting travellers’ privacy and maintaining border integrity. Parallel changes are being made to the Preclearance Act, 2016 with embedded flexibility to account for unique operational and binational aspects of preclearance.
The proposal includes three key components:
- New legal threshold required to initiate an examination – designated officers must have reasonable general concern; threshold falls between ‘mere suspicion’ and ‘reasonable grounds to suspect’ and is designed to equate to the existing operational policy requiring a multiplicity of indicators
- Specific purpose limitations – formally limits examinations to regulatory border-related purposes
- Legally-binding controls – guides the conduct of the examination (to be implemented in regulations under the Customs Act and in ministerial directions or regulations for the Preclearance Act, 2016)
The new regulations would prescribe certain aspects of the conduct of PDD examinations, as authorized under the Customs Act. Regulatory work is well under way and will be timed to come into force immediately following passage of the bill.
Summary
Enactment amends the Customs Act to:
- clarify the circumstances in which Canada Border Services Agency (CBSA) officers may examine documents stored on personal digital devices
- authorize the making of regulations in respect of those examinations
- update certain provisions with respect to enforcement, offences and punishment
Enactment also amends the Preclearance Act, 2016 to:
- clarify the circumstances in which United States preclearance officers operating in Canada may examine, search and detain documents stored on personal digital devices
- authorize the making of regulations and ministerial directions in respect of those examinations, searches and detentions
- update the French version of that Act in respect of a traveller’s obligation to identify themselves
Overview deck
Purpose
- Provide an overview on the legislative proposal regarding the examination of the contents of personal digital devices (PDD) responding to the Court of Appeal of Alberta’s ruling that such examinations are unconstitutional under the Customs Act (CA)
- Discuss complementary changes to the Preclearance Act, 2016 (PCA), ensuring that United States preclearance officers working in Canada are bound to the same standards that apply to Canada Border Services Agency Officers
Bottom line:
- As of the examination of PDDs in Alberta and Ontario are no longer constitutional under paragraph 99(1)(a) of the CA
- As legislative changes could not be ratified before the end of the Court’s suspension period, the CBSA is currently applying temporary mitigation measures in Alberta and Ontario until the new legislative framework is implemented nationally
- Proposed legislative changes include the creation of a unique new examination threshold and legally binding controls on the conduct of the exam
Background
Relevance to Canada Border Services Agency (CBSA) mandate
The authority to examine goods crossing the border is fundamental to the mandate of the CBSA as it allows the Agency to correctly:
- Classify goods, assess the value for duty, and collect duties and taxes
- Determine the admissibility of goods
- Deter and detect non-compliance with CBSA program legislation
Legislative amendments must reconcile the observations of the Court without unduly compromising the CBSA’s ability to determine the admissibility of goods and meet its regulatory obligations
Importance of personal digital device examinations
- As per CBSA policy, PDD examinations are only conducted if there are a multiplicity of indicators that a contravention (or evidence of a contravention) of border laws may be found on the device
- PDD examinations are used to screen for prohibited and harmful goods such as child pornography and obscenity, and to look for evidence of other regulatory contraventions
- Examinations are not conducted as a matter of course, however the success or resultant rate is significantly higher than other types of examinations at around 27% compared to less than 4%
Case history: R v Canfield and R v Townsend
Case history
Both cases date from 2014 and involve examination of travellers’ PDD, resulting in convictions in 2018 for possession and smuggling of child pornography.
- At the time of examinations, there was little guidance on conducting these examinations; an interim policy was issued in 2015 to address the gap and the current policy was published in 2019 to further refine officer guidance
- Trial judge convicted both defendants and found that their Charter rights were not breached and the use of paragraph 99(1)(a) of the Customs Act to examine digital devices did not violate section 8 of the Charter
- Defendants appealed on the basis that societal changes and the inherent personal nature of the devices’ content brings the examination of these devices into conflict with Charter rights
Appeal decision in R v Canfield and R v Townsend on
- Found that para.99(1)(a) in the context of digital device examinations is unconstitutional to the extent that it imposes no limits on such examinations
- Declared that digital devices will no longer fall under the definition of “goods” in the Customs Act with respect to examinations under para.99(1)(a)
- Suspended the declaration of constitutional invalidity for 18 months to give Government time to devise “complex and delicate” legislative change should it wish to do so, expired
- The Ontario Superior Court referenced this decision in their R v Pike and R v Scott ruling
Significant events
- Office of Privacy Commissioner (OPC) issued report based on Privacy Act complaints against the CBSA concerning its examination of personal digital devices at ports of entry
- CBSA updated internal policy to include more prescriptive guidance on when and how to conduct digital device examinations
Court of Appeal of Alberta ruled in Canfield, that para. 99(1)(a), is unconstitutional to the extent that it imposes no limits on the examination of PDDs
Extension requested and subsequently granted from the Court of Appeal of Alberta
- Ontario Superior Court ruled in R v Pike and R v Scott that personal digital device examinations are unconstitutional under para 99(1)(a) of the Customs Act
- Deadline for the suspension of constitutional invalidity in Ontario and Alberta ()
The approach
Legislative Framework for PDD examinations in the CA and PCA with legally-binding controls and minor non-PDD related amendments
Create Exam Distinction: differentiating PDD search authority from other goods
Enact Legally-Binding Controls: to guide the conduct of examinations
New Threshold: to be met prior to initiation of examinations
Other Amendments: to align the CA with other related legislation
The unique border context
- Border crossings invoke unique statutory, regulatory, operational and Charter contexts that are distinct from domestic law enforcement environment
For example: Child pornography is identified and interdicted under Customs Tariff item 9899.00.00 which is considered a regulatory exam and therefore part of routine screening at the border. Any resulting criminal investigation and potential conviction fall outside of the routine border screening context.
- PDD examinations have consistently been upheld in jurisprudence as Simmons level 1 (routine, non-intrusive) searches until Canfield
- Officers must make assessments and decisions based on very limited information, timeframes, and available evidence, as only the traveller and the accompanying goods are available to question / examine
- Indicators at ports of entry are frequently behavioural in nature and not easily associated to a specific suspected regulatory contravention
- Threshold of reasonable grounds to suspect (RGTS) is used at the border primarily with respect to personal searches as a Simmons level II (strip or skin search) exam, which Courts have recognized is more intrusive than a device examination
Reasonable general concern
Process flow:
- Primary
- Arrival at port of entry
- Referral to secondary based on observed indicators, lookout/target or random referral
- Secondary
- Suspicion is established through officer observations and routine examinations
- If an officer is unable to negate the indicators of a suspected regulatory contravention through standard exams, other exams may be conducted
- Reasonable general concern reached
Allows for broader inferences of a contravention rather than requiring specific particularized suspicion (Particularized refers to suspicion of a specific contravention)
Reasonable general concern:
- Would function similarly to the existing standard of multiplicity of indicators
- Officers would be required to have reasonable and objective concern(s) that a contravention or evidence of a contravention exists on a digital device and that those concerns could not be negated through other types of examinations
Reasonable general concern continued
- Commercial Products
- No privacy protections considered
- No personal use = no threshold required
- Professional Use Products
- Some personal privacy protections considered
- Professional use one = no threshold required
- Personal use allowed = reasonable general concern
- Personal Use Products
- Personal privacy considerations
- Personal use = reasonable general concern
Material on any device identified as solicitor-client privilege is not examined. If concerns exist, material can be reviewed by independent 3rd party to assess whether privilege applies.
Note: Verification of a traveller’s declaration on a digital device, including public health screening requirements (ArriveCAN) will not be subject to an examination threshold. This is considered routine and mandatory for all travellers entering Canada
Bill – Customs Act
New Documents on personal digital device
At any time up to the time of release or at any time up to the time of exportation, an officer designated under subsection (2) may, in accordance with the regulations, examine documents including emails, text messages, receipts, photographs or videos that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern that:
- this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents
- any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act has been or might be contravened in respect of one of more of the documents
- one or more of the documents may afford evidence in respect of a contravention under
- this Act or a regulation made under it
- any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act
New Designation by President
The President may designate any officer or class of officers for the purposes of subsection (1).
New Non-application
Subsection (1) does not apply in respect of personal digital devices that are imported or exported solely for
- sale
- an industrial, occupational, commercial, institutional or other similar use
- any other prescribed use
Bill – Preclearance Act, 2016
New Documents on personal digital devices
A preclearance officer may, for the purposes of conducting preclearance examine and search documents including emails, text messages, receipts, photographs or videos that are stored on a personal digital device that is in the possession or control of a traveller bound for the United States if the preclearance officer has a reasonable general concern that
- a law of the United States on importation of goods, immigration, agriculture or public health and safety has been or might be contravened in respect of one or more of the documents
- one or more of the documents in question may afford evidence in respect of a contravention of any of those laws
New For greater certainty
For greater certainty, the power to examine, search and detain documents under subsection (1) includes the power to detain the personal digital device on which they are stored.
New Regulations and directionsFootnote 1
A preclearance officer who examines, searches or detains documents under subsection (1) must do so in accordance with the regulations or any directions given under subsection 45.1(1).
New Non-application
This section does not apply in respect of personal digital devices that are bound for the United States solely for
- sale
- an industrial, occupational, commercial, institutional or other similar use
- any other use that is prescribed by regulation
Creation of a new regulation
For the CBSA, an accompanying new regulation is being developed which will:
- Reduce the level of associated legal risk with the examination of PDDs
- Prescribe how officers will conduct examinations of PDDs
Notetaking requirements
Minimum notetaking requirements (based on Fearon principles) detailing specific regulatory purpose and scope of exams
In Fearon, police officers are required to take detailed notes of what was examined on the device, how it was examined, the applications searched, the extent of the search, the time of the search, its purpose and its duration
Disabling network connectivity
Examinations will be limited to material present and/or stored on devices at the time of border crossing
Annex - Reasonable general concern vs RGTS
Reasonable general concern
- Intended to be factually-grounded in objective indicators but more general in terms of the suspected contravention
- Less likely to require an officer to identify a specific regulatory contravention
- Less likely to result in the Court concluding that a traveller is detained for Charter purposes triggering rights to counsel
- Officers frequently face situations where behavioural indicators or other concerns of general non-compliance exist but they may not be able to identify the specific suspected contravention
- Threshold similar to the existing ‘multiplicity of indicators’ threshold (in internal CBSA policy)
- Less likely to significantly impact operational enforcement
Reasonable grounds to suspect
- PDD examinations only authorized if the officer has objective and reliable basis to suspect the device contains prohibited goods or evidence relating to a contravention of border legislation
- Behavioural indicators alone may be insufficient
- Requires more than “mere suspicion” but less than “reasonable grounds to believe”
- In practice the examination threshold for PDDs would be equivalent to personal searches (for example, strip search)
- High probability of a decrease in PDD examinations and related interceptions of prohibited materials due to difficulty reaching RGTS in a border context
- [Redacted]
Threshold progression
- No Threshold
- Mere Suspicion
- Reasonable General Concern
- Reasonable Grounds to Suspect (RGTS)
- Reasonable Grounds to Believe
Annex: Threshold comparison
No Threshold
- Specific location – Yes
- Specific to an individual’s PDD – No
- Specific Contravention – No
- Example: random machine-generated referral to secondary
Mere suspicion (hunch)
- Specific location – Yes
- Specific to an individual’s PDD – Sometimes
- Specific Contravention – Sometime
- Example: selective referral to secondary based on observed indicators
Reasonable general concernFootnote 2
- Specific location – Yes
- Specific to an individual’s PDD – Yes
- Specific Contravention – Sometimes
- Example: e-Device examination if indicators exist and cannot be negated through other types of exams
Reasonable suspicion (RGTS)Footnote 2
- Specific location – Yes
- Specific to an individual’s PDD – Yes
- Specific Contravention – Yes
- Example: personal search of a traveller if indicators exist and cannot be negated through other types of exams
Annex: Other cases
R v Pike (Ontario)
- Canadian Citizen returning from Indonesia
- Constitutional challenge to section 99(1)(a), along with section 2 of the Customs Act
- Status: Court ruled on that para. 99(1)(a) of the CA is unconstitutional
R v Scott (Ontario)
- Canadian Citizen returning from Belize residence
- Companion case to R v Pike
- Status: Court ruled on that para. 99(1)(a) of the CA is unconstitutional
R v Benedicto (Saskatchewan)
- Permanent Resident returning from the United States.
- Constitutional challenge to sections 2, 99(1)(a), and 101 of the Customs Act
- Status: case management conference May, 2022, trial likely in Fall, 2022
R v Al Askari (Alberta)
- Refugee claimant of Palestinian nationality with no country of citizenship
- Court of Appeal of Alberta found that IRPA section 139 did not authorize the officer’s search of the cell phones, and IRPA section 16(1) is not broad enough to have supported the officer’s search of the cell phones. Interpreted IRPA, ss. 16(3) to require a reasonable suspicion relating to the individual’s identity or inadmissibility before examining a PDD
Annex: CA examination practice changes
Current practice
- Referral to secondary
- Conduct goods examination
- 99(1)(a) of the Customs Act
- Officers examine baggage and other accompanying goods
- Initiate device examination
- 99(1)(a) of the Customs Act / Internal policy
- Officers can examine the contents of a PDD when a multiplicity of indicators are present
- Conduct device examination
- Internal policy
- Officers conduct a PDD examination as guided by internal CBSA policy
- Conduct goods examination
New proposed practice
- Referral to secondary
- Conduct goods examination
- 99(1)(a) of the Customs Act
- Officers examine baggage and other accompanying goods
- Initiate device examination
- New 99.01 of the Customs Act
- Officers can examine the contents of a PDD if they have reasonable general concern
- Conduct device examination
- New regulatory controls – Officers conduct a PDD as according to enacted controls
- Internal policy – Officers conduct a PDD as guided by internal policy
- Conduct goods examination
Summary placemat
Bottom Line:
- Need to introduce legislative changes regarding the examination of the contents of personal digital devices (PDD) in response to the Court of Appeal of Alberta and Ontario Superior Court’s decisions that such searches are unconstitutional under the Customs Act (CA), para. 99(1)(a) keeping in mind the following:
- Court’s deadline of for suspension of constitutional invalidity has now passed
- Proposed framework balances traveller privacy with border integrity
- As legislative changes could not be ratified before the end of the suspension period, the CBSA is applying temporary mitigation measures in Alberta and Ontario until the new approach is implemented nationally under the new legislative threshold in order to avoid further enforcement gaps
R v Canfield and R v Pike
- In , the Court of Appeal of Alberta ruled in Canfield that para. 99(1)(a) of the CA, in the context of PDD examinations, is unconstitutional as it imposes no limits on such examinations
- Court suspended the decision of unconstitutionality until to allow Parliament to make changes
- Ontario Superior Court in Pike similarly finds such exams under unconstitutional, ruling is concurrent to the timing of Canfield’s expiry
Why PDD examinations matter?
- PDD examinations are used to screen for prohibited and harmful goods such as child pornography and obscenity, and to look for evidence of other regulatory contraventions
- Examinations are not conducted as a matter of course, however the resultant rate is significantly higher than other types of examinations at around 27% compared to less than 4% for other no threshold exams
Legislative proposal
- The CBSA and Public Safety are proposing changes to both the CA and Preclearance Act, 2016 which includes:
- a new exam threshold (reasonable general concern) required to initiate the exam
- a specific purpose to differentiate border-related exams from criminal enforcement ones
- controls or limits to guide the conduct of the exam (in regulation for CBSA)
- A new regulation is proposed to prescribe examination controls for PDD examinations under CA
- Reasonable General Concern:
- Functions like current standard of multiplicity of indicators
- Officers must have reasonable and objective concern(s) that a contravention or evidence of same exists on a PDD
Engagement plan
- Strengthening of traveller privacy protections may track positively with the Office of the Privacy Commissioner and the travelling public
- Digital devices and privacy both sensitive issues that garner attention
Next steps
- Regulations have been drafted; awaiting bill introduction before publication
- Updating internal policy and training material as needed
Threshold overview
Personal digital device examinations – Customs Act and Preclearance Act, 2016
Reasonable general concern requirements
New threshold states the basis and limits for the lawful examination of personal digital devices (PDD), when an officer has a reasonable general concern that the device may contain contraband or evidence of a contravention. The concern:
- Must be reasonable – more than a mere hunch and based on factors that can be objectively identified and meaningfully reviewed
- Must be localized – specific to the border at the time of crossing (PDD examination must occur at the border)
- Must be case-specific – based on the constellation of factors relating to a specific traveller or device
- May be non-particularized – no precise contravention need be identified
Threshold progression
- No Threshold
- Mere Suspicion
- Reasonable General Concern
- Reasonable Grounds to Suspect (RGTS)
- Reasonable Grounds to Believe
Unique border context
- The border presents a unique environment with a reduced expectation of privacy in comparison to a domestic law enforcement environment
- Officers must make assessments and decisions based on limited information, timeframes, and available evidence, as only the traveller and the accompanying goods are available to question/examine
Current CBSA Policy
A PDD examination can occur if:
- There is a multiplicity of indicators suggesting a contravention or evidence a contravention of CBSA program legislation may be found on the device
- An officer has concern(s) that contravention or evidence of one (related to importation or exportation of goods) exists on a PDD
RGC vs. RGTS
- RGC is more conducive to routine border examinations whereas RGTS is primarily used at the border for personal searches which are considered more intrusive
- Risk that RGTS may require particularized suspicion; if applied to PDD exams, it could lead to weakened border control and integrity (given the need to articulate indicators of a specific contravention)
Reasonable General Concern (RGC) Process Flow
Here is the process flow demonstrating progression of CBSA examinations involving personal digital devices:
- Traveller referred for secondary examination
- Routine level of questioning and exam conducted
- Baggage exam completed
Note that the intensity of exam progression is in response to any emerging indicators
- Does officer continue to have RGC?
- If no – Secondary exam completed and goods released
- If yes – exam continues
- Accompanying PDD may be examined in response to RGC
- Officer must be designated (CA 99.01)
- Officer must disable network connectivity
- Officer must take detailed notes
- Exam resultant?
- If no – Secondary exam completed and goods released
- If yes, the following will occur
- Resultant for regulatory contravention only (for example, prohibited material, evidence or undervaluation). Officer would proceed with appropriate enforcement action
or - Resultant for suspected criminal offence (for example, child pornography, evidence of narcotics). Officers would refer to appropriate law enforcement entities
- Resultant for regulatory contravention only (for example, prohibited material, evidence or undervaluation). Officer would proceed with appropriate enforcement action
2021 Statistics
- Number of travellers: 18.97 million
- Number of PDDs examined: 1,794
- Examination rate: 0.009%
- Number of resultant exams: 502
- Resultant rate: 27.98%
Charter statement
Charter Statement S-7, An Act to amend the Customs Act and the Preclearance Act, 2016
- Date modified: