Overview: 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)

Opening remarks

Thank you Mr. Chair,

Honourable senators, I am here today to discuss Bill S-7: An Act to amend the Customs Act and the Preclearance Act, 2016.

I am accompanied by officials from both the Canada Border Services Agency (CBSA) and Public Safety Canada.

Bill S-7 proposes to create a legal framework governing the examination of personal digital devices such as smartphones, laptops and tablets at the border that is consistent with the Charter.

As you know, The Court of Appeal of Alberta ruled in 2020 that the examination of personal digital devices under paragraph 99(1)(a) of the Customs Act was unconstitutional as it imposed no limits on the search of such devices. This has been subsequently echoed in an April 2022 ruling by the Ontario Superior Court. Until these rulings, the courts had consistently upheld the CBSA’s no-threshold search authorities in this regard.

In response to these rulings, Bill S-7 proposes three central legislative changes. The first is the establishment a new examination threshold for personal digital devices, "reasonable general concern" that offers traveller privacy protection and accounts for the unique border context.

Secondly, it creates express purpose limitations to ensure personal digital devices are examined only for border regulatory purposes.

And lastly, it authorizes the creation of regulations and Ministerial Directions to establish specific limitations to guide the conduct of personal digital devices examinations.

The new threshold of reasonable general concern is meant to be higher than mere suspicion or a hunch but less restrictive than reasonable grounds to suspect. Given this is a new legal threshold I would like to provide further detail about its intent; let me break down each component.

First, Reasonable – This means that the noted factual indications of non-compliance need to be objective and verifiable.

A novel threshold does not give officers carte blanche to examine personal digital devices – the decision to examine will still require indicators that are factually-grounded and subject to meaningful review.

Second, General – This is intended to distinguish it from higher thresholds which more frequently require a ‘particularized’ suspicion, one in which an officer is able to identify a specific contravention before the exam has begun.

Within the border context, officers have limited pre-arrival information and are restricted to a short interaction with the traveller and their goods. While indicators may exist that could point to non-compliance with border legislation, it can be difficult to isolate a particular contravention.

And lastly Concern – The decision to go with concern rather than suspicion was to differentiate the threshold from existing jurisprudence around generalized suspicion.

This is designed to be a new threshold and generalized suspicion has been applied in the past without being individualized, meaning that the suspicion was not isolated to a single individual or their belongings. Reasonable general concern requires that the concern be individualized and is attributable to a specific person or their device.

I will remind you that in Canfield, the Court purposefully did not recommended a specific threshold for personal digital device examinations. Rather it indicated that something less than reasonable grounds to suspect may be appropriate given the unique nature of the border. And that is exactly what we have done here.

While an established threshold such as reasonable grounds to suspect was considered, I believe it is too restrictive for the examination of personal digital devices, given the varied contraventions which may be found (like a failure to report, child pornography, hate propaganda, or evidence of drug importation, to give some examples).

In addition, reasonable grounds to suspect is used at the border for strip searches, which have been identified in jurisprudence as being more intrusive than the examination of PDDs.

I would like to underscore that we now have statistics to prove how challenging it is to meet the higher threshold in this context. We have already begun to see a sharp decline in the number of personal digital device examinations in Alberta and Ontario since the courts’ rulings came into force.

Unfortunately, prohibited materials are imported every day. National implementation of a higher threshold would compromise border integrity and drastically reduce the Agency’s ability to intercept heinous materials.

Since April 29, officers have had to rely on Customs Act 99(1)(e) which requires reasonable grounds to suspect to initiate an exam. 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.

Proposed amendments to the Preclearance Act, 2016, will continue to align examination authorities between United States (US) preclearance officers and CBSA officers, and ensure that they are consistent with the Charter.

I would also note that these new Customs Act requirements permit only designated officers to conduct examinations of personal digital devices. Officers will be required to successfully complete specific training on such exams in order to be designated.

The accompanying regulations have been concurrently drafted to ensure that they can come into force as soon as possible after Bill S-7 receives Royal Assent.

The threshold in the legislation – creating a limit on the initiation of the exam – and the legally-binding controls in the regulations, which govern the conduct of the exam, work together to create the necessary limits.

These limits address the constitutionality concerns raised by the Courts, and position the CBSA to lawfully conduct examinations.

The new regulatory elements will formalize several existing internal policy requirements, including disabling network connectivity prior to conducting an exam and taking contemporaneous notes on precise points.

These measures will ensure that only documents contained on the device at the time of crossing are subject to examination. Notetaking requirements serve an important accountability function and will ensure that every exam can be meaningfully reviewed.

I’d like to lay out for you how this would work in practice:

• A traveller goes through primary processing when they first arrive. The majority are low-risk travellers who demonstrate compliance with border requirements. These travellers would not be considered for a device examination, and such exams do not take place in primary
• From primary, a traveller may be referred for secondary examination for any number of reasons. There could be a need to verify their declaration, an intelligence-based lookout that they are importing contraband, a target based on their pre-arrival information, or it could just be a random referral
• Once in secondary, officers will typically undertake a baggage exam and do what we call branching questioning. This means that they follow up on problematic or evasive answers to questions about the trip and goods being imported as they conduct the examination
• Officers are asking these questions while they look for behavioural cues that someone is not being honest and responses that change or don’t make sense, and from this they may develop indicators. Let me stress here that indicators are developed in a non-discriminatory way, race and ethnicity are not factors
• Exams are progressive, and typically a full baggage exam is completed before an officer would turn to a digital device examination
• At the time of a PDD examination, if there are still concerns about non-compliance, the officer would need to be able to articulate in their notes the fact-based and objective indicators leading to a reasonable general concern that a contravention or evidence of same exists on the device
• Only then may an exam be conducted. Wireless connectivity must be disabled to ensure that only documents on the device itself may be examined and all pertinent details are to be recorded in the officer’s notes
• And colleagues, I would remind you that only designated officers, having undergone the necessary training, will be able to conduct examinations

Senators, I understand that you are concerned with privacy protections, and this is of utmost importance to me as well.

But it is critical to balance this need with public safety and border integrity. This novel threshold, tailored to the border context does just that. It will allow our officers to continue intercepting prohibited material before it crosses our borders and enforcing other border regulatory requirements without compromising the privacy rights of travellers.

I believe this is the ideal balance between the two imperatives and my officials and I would be very happy to take any questions you may have.

Thank you, merci.

Key messages

Issue 1: Examinations not done as a matter of course

Talking points

• Even under the no threshold para. 99(1)(a) authority, Canada Border Services Agency (CBSA) policy provided that personal digital device (PDD) examinations should be conducted sparingly and selectively
• Current CBSA policy provides that such exams are only conducted if a multiplicity of indicators exists that a device may contain a contravention (or evidence of a contravention) of border laws
• PDD examinations are used to screen for prohibited and harmful goods such as child pornography and other obscenity, and to screen for evidence of other regulatory contraventions (for example, undervalued or undeclared goods)
• In 2021, the CBSA processed just under 19 million travellers and conducted approximately 1,800 PDD examinations, representing an examination rate of less than 0.01% or 1 in every 10,000 travellers
• PDD examinations have a high success or resultant rate of uncovering regulatory contraventions at around 27% as compared to other types of exams, which have a resultant rate of less than 4%
• Resultant examinations include uncovering regulatory contraventions, which range from the discovery of prohibited goods that pose a threat to public safety (including child pornography and other obscenities) to evidence of undervalued or undeclared goods
• PDDs are now the primary method of importation of materials including obscenity such as child pornography across the border

Issue 2: The border is unique

Talking points

• Border crossings invoke unique statutory, regulatory, operational and Canadian Charter of Rights and Freedoms contexts that are distinct from domestic law enforcement environment
• Courts have long recognized the fundamental right of a sovereign state to control what enters its borders and that there is a reduced expectation of privacy at the border
• The Court in R v Canfield and R v Townsend declined to declare a specific threshold that would be required to examine PDD, instead acknowledging that something lower than reasonable grounds to suspect may be more appropriate for the border context
• When interacting with travellers, officers must make assessments and decisions based on very limited information, timeframes, and available evidence, as only the traveller and their accompanying goods are available to question / examine
• Officers gather information through their interactions with travellers, including baggage examinations and routine questioning and through these interactions, may develop concerns in the form of indicators that may potentially signal non-compliance
• Indicators or concerns of non-compliance at the border are frequently present and observed by officers however, many are behavioural (nervous fidgeting) or physiological (excessive sweating) in nature and not easily associated to a specific regulatory contravention

Issue 3: Creating the right threshold

Talking points

• Reasonable general concern is a novel approach in that this new legislative threshold does not currently exist in Canadian law
• For the first time, and after careful deliberation and analysis, an examination threshold has been constructed to respond specifically to the unique border context
• The reasonable general concern threshold must be localized to the border and case-specific to a traveller and their PDD but does not require that officers identify a specific suspected contravention prior to beginning an examination given the challenges of pinpointing an exact concern
• An established, higher threshold such as reasonable grounds to suspect was considered however, this threshold was deemed to be inappropriate for PDD exams at the border
• Reasonable grounds to suspect is used at the border primarily with respect to personal searches (strip or skin search), which Courts have recognized is more intrusive than a device examination
• Meeting a threshold of reasonable grounds to suspect for PDD examinations may require that pre-identification of a specific contravention
• Given the Agency’s lack of available pre-information and limited interaction with travellers, a threshold of reasonable grounds to suspect is considered unnecessarily restrictive and could potentially lead to overall weakened border control, leading to a decrease in the interception of prohibited materials, such as child pornography

Issue 4: Balancing privacy and aligning authorities

Talking points

• In a world of ubiquitous smartphones and constantly evolving handheld technology, it is necessary that legislation also evolve
• Respecting traveller privacy remains an ongoing priority for the Government of Canada and these amendments will actually strengthen existing traveller privacy protections as new limits on examination authorities will be enshrined in law
• Balancing privacy requirements without compromising border integrity is essential for the Government of Canada to deliver effectively on its border mandate
• The new reasonable general concern threshold is designed to capture key elements of existing CBSA policy but will ensure that they are legally-binding limits
• The changes provide a renewed legal foundation under which both CBSA officers and United States preclearance officers operating in Canada can lawfully conduct PDD examinations allowing them to identify contraventions of program legislation and intercept contraband
• The legislative changes align the examination authorities of CBSA officers and United States preclearance officers operating in Canada and are consistent with the Canadian Charter of Rights and Freedoms

Issue 5: Well trained and designated officers

Officers must be designated to perform PDD examinations, which will require completion of specialized training.

Talking points

• The new examination authority under section 99.01 of the Customs Act requires that only designated officers may examine documents on a traveller’s PDD and only if they have a reasonable general concern that the device contains contraband or evidence of a contravention of border laws regarding the importation or exportation of goods
• The President of the CBSA has the authority to designate any officer or class of officers to conduct PDD examinations
• Officers (including superintendents and chiefs) will be required to complete specialized training in order to be designated to conduct PDD examinations
• A new training course is being designed to reflect the legislative and regulatory changes. All officers who wish to become designated will be required to successfully recomplete this online course. The longer-term intention is to have this course included in the Officer Induction Training Program at Rigaud, QC to ensure that all new recruits have completed the training before graduation
• Preclearance officers are responsible for completing required training within six months of arriving into Canada, the training course will be updated to reflect the new changes to the Preclearance Act, 2016

Issue 6: Ensuring bias-neutral practices

Talking points

• CBSA officers interact with diverse populations with various expectations of the border crossing experience and different ways of engaging with positions of authority or law enforcement
• In all interactions, CBSA officers are expected to display professionalism and courtesy
• CBSA officers are required to complete a training module entitled Diversity and Race Relations
• The CBSA is committed to the non-discriminatory treatment of persons and is serious about reinforcing its commitment to bias-neutral practices
• CBSA officers will not engage in discriminatory behaviour in all aspects of their duties including when processing travelers seeking admission to Canada
• In 2021, almost 70% of all PDD examinations were conducted on citizens and or residents of Canada or the US

Key statistics

Canada Border Services Agency (CBSA)

Examinations

• The CBSA does not conduct examinations of personal digital devices as a matter of course
• On average, only 1 exam is conducted per 10,000 travellers processed

Results

Resultant describes an examination where a customs- or immigration- related contravention or offence has been uncovered and can include enforcement actions under both the Customs Act and the Immigration and Refugee Protection Act.

Preclearance

• The below table outlines the total number of travellers, originating from or transiting through Canada into the United States (US) and underwent US preclearance processing in a Canadian airport
• All figures have been provided by United States Customs and Border Protection

Preclearance talking points

Threshold

The Government of Canada has consulted with the US government on several occasions concerning the provisions of Bill S-7, including the proposed threshold.

The US is well aware that Canadian laws, including the Charter, must be respected while conducting Preclearance operations in Canada.

Reactive

The Government is committed to the Reasonable General Concern standard. We believe it is the right standard to apply at the border. This standard would apply to both CBSA officers and US Preclearance Officers.

We are aware that US officers conducting a personal digital device (PDD) search in the US are subject to different rules / policies than are being proposed for PDD searches conducted in Canada. This is a consequence of different court rulings across US jurisdictions. Our aim for the rules that apply to US officers working in Canada is to ensure PDD searches uphold the Charter, permit US Customs and Border Protection (CBP) to discharge its legislative mandate, and ensure that US officers are held to the same standards as CBSA officers.

US Engagement and reaction

The dialogue between Canada and the US, on this issue, has been very positive. The US view is that Preclearance operations can accommodate the proposed threshold of Reasonable General Concern. We have received no notable concern with regard to the controls we are looking to put in place through Ministerial Directions (MDs).

Reactive

We are committed to the Reasonable General Concern standard, therefore there have been no discussions, even hypothetical, with the US concerning a higher standard such as Reasonable Grounds to Suspect. So I am unable to say with certainty what the US reaction would be to a higher threshold, but it is reasonable to expect that US partners would raise the same serious concerns that CBSA has indicated – that a higher standard would impede ability to interdict goods that would contravene border laws.

Ministerial Directions/Regulations

MDs are being developed to set out legally binding controls on the examination of PDDs by US Preclearance Officers in Canada. After a period of being in place, we would evaluate whether adjustments to the controls would be required. Controls will be established in regulations within two years.

The proposed MDs would be consistent with the CBSA’s proposed regulations to ensure parity in the application of PDD search authorities between CBSA officers and US Preclearance Officers.

To ensure searches are limited to the purpose for which they are authorized, and to ensure the Reasonable General Concern threshold is respected, controls would: 1) limit searches to only files resident on electronic devices, 2) permit travellers to request Supervisory Officer approval of a search, and 3) require specific notetaking on the key aspects of a search.

Reactive

MDs provide an opportunity to test PDD search requirements in an operational context before they are codified into regulations. MDs can be put in place quickly, and are easier than regulations to adjust if changes are required to manage US practices. However, given their limited duration the intent remains to transition the MDs to regulations within two years.

Designation of US Preclearance Officers for PDD searches

Although the CBSA is designating which officers can conduct PDD searches, the Government of Canada is not undergoing this process for US Preclearance Officers.

Under the Preclearance Treaty, US Preclearance Officers are authorized to conduct searches without being subject to Canadian qualification. That being said, US Preclearance Officers must complete mandatory training before deploying to Canada to ensure that these searches are conducted in respect of Canadian law, including the Charter.

Operational requirements limit the practicality of designating certain US Preclearance Officers to conduct PDD searches. Additionally, one of the proposed MDs would include the requirement for US Preclearance Officers to inform travellers of their right to request approval from a Supervisory Officer before a PDD search can occur.

Unconscious bias

All new CBP officers receive unconscious bias training at the CBP Field Operations Academy.

It is the policy of CBP to prohibit the consideration of race or ethnicity in law enforcement, investigation, and screening activities, in all but the most exceptional circumstances (for example, national security cases).

The use of race and ethnicity information in violation of this policy may subject U.S. CBP employees to discipline under its Standards of Conduct.

Allegations of misconduct or discrimination are referred to the CBP Office of Internal Affairs. Personnel are specially trained to investigate and review allegations. If warranted, CBP will take appropriate action against the employee.

CBP is fully committed to the fair, impartial and respectful treatment of all travellers.

Senate debate summary

Very little of Senate debate to-date has concerned the implications of Bill S-7 to U.S. Preclearance operations in Canada.

• In response to a question about U.S. reaction to the new threshold, Senator Boniface (Ontario, Independent Senators Group) stated that discussions between Canada and the U.S. are ongoing and that the U.S. recognized their obligation to operate in compliance with Canadian laws and the Charter
• In his concluding speech on Bill S-7, Senator Dalphond (Quebec, Progressive Senate Group) described the U.S. electronic device search threshold as a “complete mess”, but was content with the fact that U.S. Preclearance operations must comply with the Charter^{Footnote 1}

Questions and answers

Customs Act related changes

Bill process and implementation

Question 1. Why has it taken this long for the Bill to be introduced?

In response to the ruling in R v Canfield and R v Townsend (Canfield), the CBSA had undertaken significant policy work in order to address the finding of constitutional invalidity. Typically, policy development of this nature takes upwards of 12 to 18 months to complete. This process involves extensive research, legal risk analysis, consultations with partner departments and agencies, option consideration and analysis. The Government of Canada expedited the policy development process as much as possible while attempting to address the complex nature of the analysis required and proposing changes simultaneously to both Acts. Timelines were unavoidably delayed by the Federal election and the added challenges imposed by the pandemic, conflict in the Ukraine, and the Freedom convoy.

Question 2. The Court of Appeal of Alberta’s suspension of its finding of constitutional invalidity has now expired, are exams still being done in that province?

The CBSA has mitigation measures in place in the province of Alberta and Ontario, where there was recently a similar ruling in Pike. Officers in these provinces are unable to examine PDDs under para. 99(1)(a) of the Customs Act. The CBSA has issued special operational directives to these officers to use a different examination authority which is much more limited and has already resulted in reduced interceptions of contraband given the limitations of the examination authority. CA 99(1)(e) requires that officers meet the higher threshold of reasonable grounds to suspect that a contravention of border laws exists prior to undertaking an exam. Importantly, this examination authority is strictly limited to documentary contraventions on the device (in other words, the document itself must be prohibited). As such, any evidence of contraventions (messages discussing hidden narcotics, receipts indicating undeclared jewellery, etc.) would not be a permissible search. Examination authorities for devices in other provinces and territories have not been impacted.

Examination policies and procedures

Question 3. What does the “reasonable general concern” threshold require to initiate an examination of PDDs?

The reasonable general concern threshold ensures that for a PDD examination to occur, an officer must have reasonable and objective concerns, that a contravention of regulatory import/export requirements or evidence of such a contravention exists on a PDD. Other no threshold examinations are typically conducted prior to PDD exams, such as the examination of accompanying baggage. If the examination of other accompanying baggage has been completed and an officer has reasonable general concern that a contravention or evidence of a contravention still exists, they may then move to exam a PDD. A threshold of reasonable general concern is intended to be higher than mere suspicion but lower than reasonable grounds to suspect. Concerns must be related to contraventions of border legislation relating to the import or export of goods and based on objectively discernable factors so that a reasonable person could come to the same conclusion if presented with the same facts. Importantly, this threshold does not require particularized suspicion meaning the exact suspected contravention does not have to be identified as part of the concern, though it would still need to be case-specific to an individual or their device. The reasonable general concern threshold does not allow for discriminatory profiling.

Question 4. Reasonable suspicion is already used as a threshold for examinations done under section 98 (in other words, personal searches) and paragraph 99(1)(c.1) (in other words, mail) of the Customs Act, and the Court in Canfield acknowledged that this threshold may be appropriate for examining personal digital devices. Why was an entirely new threshold created when reasonable suspicion is already recognized in law and used by the CBSA?

Reasonable suspicion (considered the same as reasonable grounds to suspect) is a threshold recognized by the CBSA and used in very specific circumstances. In the context of personal searches done under sec. 98 of the Customs Act, an officer is required to have reasonable grounds to suspect (RGTS) that a traveller has contraband or evidence of contravention of border legislation secreted on their person. The indicators and associated suspicion leading to such an exam tend to be specific and directly associated with the limited contraventions in question (routing from a source country for drugs, bulky clothing or evident bulges, chapped / dry lips from not eating or drinking during the flight, etc.), which makes reaching such a threshold more attainable for officers and more appropriate given the level of intrusiveness.

In the context of mail under paragraph 99(1)(c.1), this invokes a unique situation where there is no traveller present at the time of examining the goods. In the postal stream, the CBSA has limited information and is not in a position to further clarify any concerns with the accompanying traveller. The CBSA is reliant on other tools to examine to determine the validity of the declaration and whether it is suspected to contravene border legislations. Tools like x-rays and sniffer dogs can be used to scan/determine the contents of mail and parcels on a no-threshold basis. However, in order to open mail/parcels, an officer must have reasonable suspicion that it contains a contravention of border legislation. This can include the presence of hidden compartments seen on an x-ray or an indication of organic material in a package declared as machine parts. For the examination of PDDs, these same considerations cannot be applied as there is no way to determine the contents of a PDDs without unlock or accessing it.

Unlike with personal searches, the presence of indicators may not be as easily associated to a specific suspected contravention that may be found on a PDD. An officer may observe strong behavioural indicators of a deception of some kind (changing story, fidgeting with hands or feet, sweating, lack of eye contact, etc.) but still be unable to identify a specific suspected contravention. The traveller may be withholding an e-receipt for undeclared jewellery or attempting to import child pornography and the behavioural indicators may present identically.

Question 5. Why is the examination of personal digital devices so important?

The screening and examination of people and goods at the border, including the examination of personal digital devices, is fundamental to maintaining border integrity and protecting the health, safety and security of Canadians, permanent residents, and visitors.

Examinations of personal digital devices are not conducted as a matter of course, however they have a high success or resultant rate of uncovering contraventions. In 2021, over 27% of all examinations of personal digital devices conducted uncovered a contravention, which ranged from the discovery of prohibited goods that pose a threat to public safety (for example, child pornography, hate propaganda, etc.) to undervalued or undeclared goods.

Question 6. Why is the border considered unique in terms of examinations?

The CBSA administers and enforces more than 90 acts, regulations, and international agreements. The Agency is responsible for providing integrated border services that support national security and public safety priorities and facilitate the free flow of persons and goods, including animals and plants, that meet all requirements under this program legislation.

This means the breadth of responsibility is extensive for administering and enforcing importation and exportation requirements for goods. This resulting complexity can make it challenging for the Agency to pinpoint exact contraventions when interacting with travellers clearly demonstrating indicators of non-compliance. Officers have a very limited timeframe and available evidence upon which to make determinations.

Additionally, there is significant existing jurisprudence that acknowledges that there is a reduced expectation of privacy at the border as compared to dealing with law enforcement within Canada. At the same time, there is a high state interest in determining whether the import or export of goods is in accordance with Canadian laws.

Though many persons such as Canadian citizens have right of entry to Canada, everyone is subject to adhering to the requirements of CBSA program legislation with respect to goods. The proposed approach aims to balance privacy and the challenges of administering and enforcing Canada’s laws at the border.

Question 7. What percentage of travellers have their personal digital devices searched?

In 2021, examination of personal digital devices were only conducted 1,794 times, accounting for 0.009% of all travellers processed. Underscoring the effectiveness of those device examinations, over 27% of all examinations resulted in the officer uncovering a customs-related contravention.

Question 8. What documents are the CBSA authorized to examine under the new legislation?

Under the legislative and regulatory amendments being sought, the CBSA will be authorized to examine digital documents stored on PDDs. This would include things like emails, messages, receipts, photographs or videos, and is limited to documents stored on the device when network connectivity is deactivated.

Question 9. Can the CBSA examine all documents on the Cloud?

Before a PDD examination can begin, CBSA policy (since 2015) dictates that network connectivity must be disabled. This means that officers are limited to only examining material stored on a PDD at the time of border crossing and cannot access anything remotely access / stored in the Cloud. This limitation will be legally-binding under the proposed amendments.

Question 10. What happens when a traveller does not hand over their device or password?

Under the Customs Act, travellers have the obligation to present and open their goods if requested to do so by a CBSA officer. Because a password can be required to access an electronic device, travellers are likely to be asked to provide their password when their digital devices are being examined.

Depending on the circumstances, failure to grant access to a digital device may result in the detention of that device under section 101 of the Customs Act, or seizure of the device under section 110 of the Customs Act.

Question 11. How do we compel passwords?

Personal digital device examinations are considered “routine screening” for compliance with border regulatory requirements. Under section 13 of the Customs Act travellers are required to answer questions truthfully and provide access to their goods, which includes providing passwords and unlocking devices so an officer can conduct the examination. If a traveller refuses to comply at this stage, they are technically contravening s. 13 and could be potentially liable to prosecution for the CA offence of hindering/obstructing an officer. However, when these situations arise, the standard practice is that the CBSA officer will detain the device under section 101 and the device will be sent to the digital forensics lab to attempt to gain access to the device. In terms of the traveller, their admissibility is determined based on right of entry / any other admissibility issues which may be factors in the case.

In all cases, the CBSA officer should already have the required indicators before asking for the password. As such, traveller refusal/agreement to provide a password would not itself be sufficient basis to establish reasonable general concerns to examine the device.

Question 12. What happens when a BSO encounters evidence of a contravention of border laws?

The bulk of CBSA’s examinations are regulatory. Where evidence of a regulatory contravention is uncovered, various regulatory enforcement actions may be taken including seizure of the goods and requirements to pay applicable duties, taxes or penalties.

In some cases, the BSO’s regulatory examination may uncover evidence that is also relevant to a potential criminal offence. Agency operates a criminal investigations program to deal with offences against laws enforced by the CBSA which may be prosecuted criminally. CBSA investigators conduct criminal investigations into suspected cases of evasion or fraud with respect to various pieces of border legislation that regulate the importation and exportation of goods, or the admissibility of persons to Canada.

If evidence of such a contravention is uncovered, the Border Services Officer contacts the CBSA’s Criminal Investigations Program to hand over the evidence to an investigator. The device might be seized as evidence should a criminal investigation be initiated. For example, this could be a series of texts between two persons operating a smuggling ring.

To collect subsequent evidence, CBSA investigators use a variety of investigative techniques, including search warrants, production orders and surveillance. CBSA investigators refer their cases to the Public Prosecution Service of Canada for prosecution through the Canadian court system.

Question 13. What happens when a BSO encounters evidence of a Criminal Code offence?

The CBSA enforces more than 90 border-related acts and regulations that help keep our country and Canadians safe, including the Customs Act and the Immigration and Refugee Protection Act.

Subsection 163.5(4) of the Customs Act expressly precludes CBSA officers from using their regulatory authorities to look for evidence of criminal offences under any other Acts of Parliament, including the Criminal Code. However, if an officer encounters evidence relating to a Criminal Code offence, it would be transferred to local law authorities for further investigation and prosecution as appropriate. Depending on the circumstances, designated CBSA officers may have the authority to arrest the individual and detain them briefly until they are taken into police custody.

If pressed on officer powers authorites

Of note, many CBSA officers have received specialized training and are formally designated to be able to arrest for certain Criminal Code infractions, such as impaired driving, when encountered in the normal course of their duties.

Question 14. What safeguards are in place to protect Solicitor-Client privilege and/or for travellers who work in professions dealing with secure or protected information?

The CBSA is committed to respecting privacy while protecting the safety and security of the Canadian border. If a BSO encounters content marked as solicitor-client privilege, the officer must cease inspecting that document. The device must be set aside for a court to make a determination of the contents. The CBSA would treat any judicial work product in the same manner.

Respecting privacy rights while protecting the safety and security of the Canadian border is of great importance to the CBSA. CBSA officers are trained to conduct all border examinations in a professional manner with as much respect for privacy as possible.

Question 15. What are the differences between US and Canadian approaches to the examination of digital devices?

The US relies on no-threshold examination legal authorities that they apply to digital devices. By a matter of policy, Customs and Border Protection (CBP) has differentiated between “basic” and “advanced” exams – their basic exam is no threshold, their advanced exam requires reasonable suspicion.

Basic Search. Any manual border search of an electronic device that is not an advanced search, as described below, may be referred to as a basic search.

Advanced Search. An advanced search is any search in which an Officer connects external equipment, through a wired or wireless connection, to an electronic device not merely to gain access to the device, but to review, copy, and/or analyze its contents.

Question 16. The case of R v Brown required a threshold of “reasonable suspicion” for police using drug sniffing dogs and rejected a lower generalized suspicion threshold. Why is the Government proposing the threshold of “reasonable general concern” for CBSA’s authority to examine PDDs at the border when the SCC has rejected generalized suspicion as a threshold in other contexts?

Context matters when it comes to examination thresholds and constitutional requirements. The border is unique in this respect. In a border context the expectation of privacy is lower as compared to inland criminal investigations and the state interest is also higher.

Operational impact

Question 17. The proposed legislative changes are intended to have some impact on officers. What is the anticipated reaction from the Customs and Immigration Union?

The Customs and Immigration Union has been fully briefed on this proposal, though they may react negatively to any restrictions on the existing no-threshold search and potential regulation of examination guidelines.

CBSA regional operations was consulted during the policy development stage and were accepting of this proposal as the best way to mitigate the constitutional conflict without compromising border integrity.

Question 18. How will CBSA officers be designated to conduct examinations of personal digital devices?

The legislative changes permit only designated officers can conduct an examination of PDDs. As per internal policy, in order for an officer to be designated they must have successfully completed the PDD examination training course. This training is currently being updated to reflect the new legislative and regulatory requirements in order to have it available immediately following Royal Assent.

Question 19. How are CBSA officers trained to examine personal digital devices?

Officers are required to successfully pass a 1 hour online training course on PDD examinations before being allowed to complete these exams. This training includes details on the examination authorities used, requirement to disable network connectivity, notetaking requirements, and details on handling sensitive information, such as documents covered by solicitor-client privilege, etc. The course is currently in the process of being incorporated into the Officer Induction Training Program for all new recruits. In addition to training and internal policy updates on the new legislative framework, in-person training is planned for regional offices, subsequent to Royal Assent.

Question 20. Are there any concerns with ensuring compliance with notetaking requirements?

A recent targeted control audit on the examination of digital devices did highlight some operational challenges including consistent and accurate notetaking. Increased oversight and review measures have already been implemented and a monthly regional review of notetaking is ongoing. We are confident that compliance with new the statutory and regulatory requirements will be upheld going forward. These requirements will also be emphasized as part of training that officers must complete before being designated.

Privacy and the Office of the Privacy Commissioner

Question 21. The Office of the Privacy Commissioner (OPC) recommended legislative changes related to the CBSA’s examination of personal digital devices (PDD). Why were changes not made at that time?

The Agency determined at that time that the legislative options proposed by the OPC were too restrictive (in other words, would have unduly negative operational impacts on the Agency’s ability to enforce its mandate) and would not effectively address the concerns surrounding the examination of PPDs. It was instead recommended that, over the next year, the Agency would continue collecting and analyzing additional compliance data on the implementation of the internal Agency policy, followed by the conduct of a gaps / needs analysis to identify specific and appropriate legislative amendments.

Question 22. What measures were put in place to address the concerns of the OPC regarding the collection of digital device passwords?

CBSA officers are required to write passwords on a separate piece of paper and to return the password paper to the traveller if no evidence of a contravention is found on the device. The OPC recognizes the CBSA’s authority to collect information such as digital device passwords and has accepted this measure.

Bias and Racial Profiling

Question 22. How do we prevent Unconscious Bias and Racial Profiling?

In their dealings with the travelling public, Canada Border Services Agency (CBSA) officers interact with diverse populations with various expectations of the border crossing experience and different ways of engaging with positions of authority or law enforcement. In all interactions, CBSA officers are expected to display professionalism and courtesy.

The CBSA is committed to the non-discriminatory treatment of persons and is serious about reinforcing its commitment to bias-neutral practices. In accordance with the Values and Ethics Code for the Public Service, all CBSA employees shall value diversity and treat every person with respect and fairness. CBSA officers will not engage in discriminatory behaviour in all aspects of their duties including when processing travelers seeking admission to Canada. This includes any action, decision or increased scrutiny against an individual based fully or in part on any of the prohibited grounds of discrimination.

CBSA officers are required to complete a training module entitled Diversity and Race Relations whose objectives include:

• Defining diversity-related concepts and notions
• Understanding the CBSA's business case for diversity and race relations
• Examining the impact of stereotypes, prejudices, discrimination, and biases when interacting with different cultures
• Identifying strategies to provide equitable service to diverse clients
• Understanding how dealing with diversity and race relations effectively will directly relate to CBSA business

Question 24. How does a CBSA officer make the decision to focus on a particular individual? What is the risk of implicit bias impacting that decision?

A traveller may be referred for a secondary exam for a variety of reasons including verification of their declaration, required payment of duty and taxes, targets, random referrals, etc. This is considered part of routine border screening for regulatory purposes, and may include further questioning of the traveller. Through these interactions an officer may gather indicators pointing to a concerns about the admissibility of the traveller or their goods. The CBSA compiles indicators from a variety of sources, for example: past resultant examinations, previous criminality both in Canada and abroad, analysis from other enforcement actions, observed behaviour, etc. It would not be prudent to share the entirety of the CBSA’s indictors that lead to PDD examinations. However, beyond behavioural indicators (no eye contact, sweating, voice modulation, etc.) there are also additional travel related indicators such as irregular travel patterns, excess baggage, no declarations for extended trips, changing story, specific items in luggage, etc. It is through these indicators and the interaction with a traveller that an officer may build sufficient concern to lead to a PDD examination. Of note, behavioural indicators alone would not be sufficient to establish RGC. They would have to be accompanied by other fact-based concerns.

Question 25. Do the amendments being proposed on the examination of PDDs have any GBA+ implications, and if so, how will the CBSA work to address these issues?

This proposal will affect the internal process with the CBSA and will not result in a demonstrable change for the travelling public. While there are no anticipated negative impacts associated with the proposed amendments, officers must complete specific training to emphasize the importance of providing bias-neutral service.

There will be ongoing GBA+ assessments as the new legislation comes in to force. In the event that any new or emerging impacts on any groups are uncovered, they will be analyzed and addressed using the appropriate mitigation methods.

Other legislation

Question 26. The Court of Appeal of Alberta did not question the constitutionality of digital device examinations that fall outside the scope of the Customs Act (CA). Is there any concern that the authorities under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA) or the Immigration and Refugee Protection Act (IRPA) would face similar challenges in the future?

The decision in Canfield on the constitutional invalidity of examinations of personal digital devices (PDD) was specific to the CA. In light of the suspended declaration of invalidity, amending the CA has been the immediate priority.

The CBSA continues policy work with federal government partners to consider potential impacts of the Canfield decision beyond the Customs Act and how best to address them.

Question 27. Are there any correlations between this Bill and the proposed Public Complaints and Review Commission?

Officers would be bound to adhere to the new legally-binding controls, which will include detailed notetaking. Should an officer not comply with these controls, consequences would depend on the nature of the legal challenge or allegation, and the jurisdiction of the court or review body that would be assessing the non-compliance. The Government of Canada introduced Bill C-20, to create the Public Complaints and Review Commission on May 19, 2022. CBSA.

Question 28. Does the Government of Canada view the proposed legislation to be compliant with the Canadian Charter of Rights and Freedoms?

Yes, the Government of Canada believes the proposed new authority is consistent with section 8 of the Charter, and strikes an appropriate balance between individual privacy interests and the state’s interests in screening persons and goods crossing its borders. In any future assessment of constitutionality the courts will consider not only the proposed new “reasonable general concern” threshold, but also the other legal limits being imposed. These other limits include wording that ensures the new authority is used only by specially designated officers and only for border related regulatory purposes. And the proposed regulations that will limit the manner in which device exams are conducted.

Preclearance Act, 2016 related changes

Question 1. Why are changes being made to the Preclearance Act, 2016?

Changes to the Preclearance Act, 2016 (PCA) and the Customs Act (CA) are being proposed due to the Alberta Court of Appeal’s ruling in R v Canfield. The court found that examinations of personal digital devices (PDD) under the CA are unconstitutional to the extent that it imposes no limits on such examinations.

Given that existing preclearance search authorities are similar to those contained in the CA, the proposed amendments to the PCA would continue to align preclearance search authorities with those that apply to our Canada Border Services Agency (CBSA) officers. The Preclearance Act, 2016, amendments pre-emptively mitigate the risk that statutory provisions will be struck down by a court as occurred to the CA. Furthermore, amendments to the Preclearance Act, 2016 would ensure that US preclearance officers working in Canada are bound to the same standards that apply to CBSA officers.

Question 2. What are the changes to the Preclearance Act, 2016?

The proposed changes include:

• The introduction of a legal threshold that must be first met before preclearance officers can examine, search and detain a PDD

  A preclearance officer must have a reasonable general concern that a personal digital device may contain a document that is a contravention, or may afford evidence of a contravention, of a US law that preclearance officers are authorized to administer in Canada

• A new authority for the Governor in Council to make regulations guiding the conduct of personal digital device examinations
• A new authority for the Minister of Public Safety to issue directions
• The exclusion of commercially exported digital devices from the examination threshold
• Minor changes to the French version of the Preclearance Act, 2016 to ensure clarity of intent

Question 3. Is the proposed threshold the same in the Preclearance Act, 2016 and the Customs Act?

Yes, the threshold proposed in both pieces of legislation is the same, reasonable general concern.

This new threshold requires that officers’ concerns be localized to the border, individualized to the traveller’s PDD, but does not require the suspected contravention to be particularized.

This threshold has been carefully crafted to be better suited to the border context and is less onerous than the concept of reasonable grounds to suspect.

Question 4. What will requirements, to be established in regulations and Ministerial Directions, cover?

Generally speaking the requirements will establish procedures US preclearance officers must follow to examine and search documents on a traveller’s personal digital device, and requirements for detaining and transferring the PDD as applicable.

Question 5. Do the amendments apply to any device on which personal information could be stored?

No, the Bill excludes digital devices bound for the US that are solely for sale, commercial, industrial, institutional purposes, or similar purposes. These devices would be excluded from the examination threshold since these measures are intended to apply only to devices likely to contain personal information.

Question 6. When and how will new search requirements come into force?

Legally binding requirements are to come into force as soon as possible after amendments to the Preclearance Act, 2016 come into force. It is recognized that consultations with the US are needed and may be lengthy. Under these conditions utilizing Ministerial Directions at first affords the best possibility of putting in place requirements as soon as possible after the bill is passed.

Question 7. What requirements are being considered for US Preclearance Officers?

Legally binding requirements for PDD examinations by US preclearance officers are under development and are currently the subject of ongoing consultations with the US.

Canada has an interest in ensuring that the requirements which support the new threshold are relatively consistent with the operational requirements and policies applied to CBSA officers and are operationally practicable.

Question 8. What type of training will US Preclearance Officers receive?

The CBSA provides training to US preclearance officers on Canadian law that applies to the exercise of their powers and the performance of their duties and functions in Canada. The CBSA will ensure that the new requirements for examination of personal digital devices are integrated into training and ensure that it is delivered to new officers deployed to Canada and that existing preclearance officers are fully briefed on the changes.

CBSA review body

Question 9. Why was legislation to create a review body for the CBSA not introduced at the same time as the Personal Digital Devices (PDD) amendments in S-7?

Creating a review body remains a priority for the government and it intends to introduce legislation to create a review body for the Canada Border Services Agency (CBSA) as soon as it is ready.

S-7 needed to be introduced quickly to respond to the Court of Appeal of Alberta’s finding of unconstitutionality related to PDD searches, and the suspension of this finding until April 28, 2022. Legislation to create a review body is much broader in scope and does not have the same timeline for compliance.

Question 10. What is the current status of the Government commitment to implement a review body for the CBSA?

The government has reiterated its commitment to introduce a review body for the CBSA. The December 16, 2021, Mandate Letter to the Minister of Public Safety mandated him to “Introduce legislation to create a review body for the Canada Border Services Agency, including defined timelines for responding to complaints and recommendations.”

Public Safety officials are advancing this priority, in collaboration with the Royal Canadian Mounted Police (RCMP), the CBSA, and the Civilian Review and Complaints Commission (CRCC). The commitment is part of other larger governance reforms in the Public Safety portfolio that include Mandate Letter commitments to reform the RCMP, including establishing defined timelines to respond to recommendations from the CRCC.

Background: On January 27, 2020, the Minister of Public Safety introduced Bill C-3, which would have expanded the CRCC’s mandate to handle reviews and complaints for both the CBSA and the RCMP. Bill C-3 died on the order paper in August 2020, at the prorogation of Parliament. On June 21, 2021, a Bill entitled “An Act establishing the Public Complaints and Review Commission and amending certain Acts and statutory instruments” was posted on the Notice Paper, but was not introduced prior to dissolution for the 2021 Election.

Question 11. Did the Budget announce funding or legislation for the review body for the CBSA?

Budget 2022, tabled on April 7, 2022, did not announce the specifics of funding or legislation for the implementation of a review body for the CBSA, but work is ongoing and the introduction of legislation and implementation of a review body for the CBSA remains a priority.

Timeline of significant events

March 2014: Townsend border crossing incident at Edmonton International Airport (possession of child pornography).

December 2014: Canfield border crossing incident at Edmonton International Airport (possession of child pornography).

June 2015: Canada Border Services Agency (CBSA) released internal Operational Bulletin released to provide specific guidance to officers regarding the examination of personal digital devices. Officers were required to:

• Have a "multiplicity of indicators" to examine personal digital devices
• Disable wireless and internet connectivity prior to exam
• Record basic notes (notate the indicators present, what was examined on the device, and why)

Note: Prior to this, there was no distinct policy guidance at a national level for personal digital device examinations.

May 2018 Canfield and Townsend conviction. The defendants appealed this decision.

June 2018: Robust policy development surrounding examination of personal digital devices began with a target of Fall 2019 for implementation.

June 2019: The CBSA received preliminary findings report and recommendations from the Office of Privacy Commissioner (OPC) on a review on 6 complaints related to PDD examinations. The report found that the CBSA had contravened the Privacy Act in 2 cases and made six operational and three legislative recommendations.

July 2019: The CBSA replied to this report, highlighting that most of the operational recommendations were already being addressed by either the policy itself or through the implementation plan. The CBSA disagreed with the need for legislative changes in light of its new policy which was close to implementation. A copy of the policy was included for the OPC’s review.

August 2019: The OPC returned with minimal comments but was satisfied with the policy.

November 2019: The CBSA implemented the new formalized personal digital device examination policy which reiterated the requirement for a ‘multiplicity of indicators’ (or one strong indicator) to initiate an examination of a personal digital device. The updated policy required officers to:

• Disable wireless and internet connectivity
• Handle sensitive information, such as that covered by solicitor-client privilege, appropriately
• Complete and pass mandatory training course (made available in December 2019)
• Familiarize themselves with the new policy on examining personal digital devices (this included making timely and comprehensive notes)

December 2019: The OPC issued its final report, with identical recommendations. The CBSA noted these recommendations and committed internally to conduct a gap and needs analysis subsequent to policy implementation and compliance review.

October 2020: R v Canfield and R v Townsend appeal ruling determined that 99(1)a of the Customs Act in unconstitutional. Declaration of constitutional invalidity suspended for eighteen months.

November 2020: Policy work begins in order to mitigate court findings.

March 31, 2022: Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016, introduced in the Senate.

April 12, 2022: ABCA heard Canada’s motion to extend suspension of declaration of constitutionality invalidity for an additional 6 months. Request was denied on April 20, 2022.

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 the ONSC did not grant. The ONSC decided that the suspension would be co-extensive with the Canfield suspension and expire on April 28, 2022.

April 28, 2022: Deadline set by Court of Appeal of Alberta expires; examination of PDDs no longer authorized under paragraph 99(1)(a) of the Customs Act in Alberta and Ontario as of April 29.

May 11, 2022: Completion of the second reading of S-7 in the Senate.