Third reading of Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016

By: The Hon. Peter Harder

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Hon. Peter Harder: I rise today in support Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.

I do so, however, with reluctance given the substantial amendment regarding threshold of search made to the bill at committee stage and endorsed in this chamber at report stage.

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In my view, this amendment will create an unnecessary risk for the importation of obscene and dangerous material to our nation, the victimization and revictimization of children depicted in such material and an added burden on border security officials at protecting those children as well as Canadian society.

Moreover, I believe this amendment runs counter to the specific and clear intentions of a duly elected government. It is, in a sense, an overreach on our part.

As you are all aware, the bill before us creates a new and higher standard that must be met before border officials can lawfully examine personal digital devices, or PDDs, of travellers that may contain prohibited material. The need for a standard is required, given the decisions, as we’ve heard, from the Alberta and Ontario courts. The issue before us is what the proper balance should be and, in my view, who is most entitled to set it.

The case for the original unamended bill was ably made by its sponsor, Senator Boniface, in her second reading speech this past April, and further in her report stage speech last week. I agree with her that the original bill struck the right balance between safeguarding travellers’ privacy while providing border officers the needed enforcement capability to interdict prohibited goods that include child pornography and other obscene material.

Like Senator Boniface, I was also against the amendment made in committee, which raises the threshold from the original bill prescribing under what conditions a PDD can be examined. Simply put, the government believes that the new ceiling for examination which is being put forward in this amendment — which provides for a PDD examination on “reasonable grounds to suspect” rather than on a “reasonable general concern” — is too high. I share that fear.

In my view, the amendment will risk making it more difficult to interdict the importation of dangerous material, which includes child pornography, images of sexual abuse, hate literature or evidence of drug smuggling. If the government agreed with this amendment, it would have adopted it in the legislation in the first place.

A good part of the debate over this bill has centred around the need for striking a balance between the rights of privacy and the protection of Canadian society. That’s as it should be. I would add, however, that the issue of balance also needs to be considered in the context of harm done to victims. Their right to safety and not to be exploited by the recurrent circulation of harmful images ought to be part of this balance.

In her appearance before the committee, the general counsel for the Canadian Centre for Child Protection, Monique St. Germain, noted that between the years 2010 and 2020, Statistics Canada reported a 488% increase in the number of images and videos of child sexual exploitation. This is a number of deep concern. To quote Ms. St. Germain:

In the study of this bill so far, there is a lot of focus on the privacy interests of individual travellers. What has not yet been discussed is the safety, privacy and security interests of the children who are depicted in child sexual abuse material. We live in a world where this horrific material can be easily stored and hidden on a device you keep in your pocket and share to a worldwide audience via websites, encrypted apps and the dark web.

The children who are exploited in these images rely on us to protect them. When the material such as this is smuggled across the border, the children in the images have no power to stop it.

The surfeit of this type of material demands that border officials be given the maximum amount of flexibility that the law will allow. As an example, one of the individuals whose case has prompted the need for the creation of a threshold was found to have had a total of 4,411 pictures and 53 videos of child pornography on his devices. As it happens, his conviction and that of another man at the centre of this case was upheld, even though the Charter rights had been infringed.

Let me offer a couple of examples of how CBSA officers operate.

In one case conveyed to our office, a Canadian male citizen returned to Canada after a one-day trip to the Philippines, where he had been denied entry after having been placed on a sex offender registry due to a prior incident in the U.S. An examination ensued and an image of child pornography was found. The RCMP was called.

In another case, an individual arrived home from Thailand and was referred to a secondary officer due to his lengthy stay in a country known for sex tourism. The individual exhibited nervous behaviour that included stuttering, perspiration and swaying as his bag was searched. When he refused to answer questions about the contents of his digital devices, officers searched the PDDs and found images and videos depicting child pornography. Would these examinations still have been made under the amendment? If the answer is no, then it needs to be reconsidered.

It is instructive to know that, while CBSA may examine PDDs for a large variety of contraband ranging from an undervaluation of goods to messages on human trafficking, narcotics and money laundering, a full 40% of found contraband involves seizures of child pornography.

Somewhat overlooked in the debate we’ve had over this bill is its role in furthering the overall objectives of the CBSA. According to the mandate page of Public Safety Canada, one of the chief roles of the CBSA is — among others — to stop people and goods at the border that pose a potential threat to Canada. I fear that adopting a higher threshold will make it more difficult to achieve this mandate which, after all, is what this bill was intended to accomplish.

Indeed, as the CBSA is forced to use the higher threshold in Alberta and Ontario while it awaits the new law, enforcement has been affected. Both Minister Mendicino and departmental public servants testified to this at committee. It is early days, but according to CBSA vice-president Scott Millar, examinations in those two provinces have dropped approximately 60%. One could conclude from these numbers that, had the higher threshold been in place before the court cases were decided, at least some of the individuals who were previously caught would have passed through customs unexamined with their contraband intact.

The passage of the summer will give us a better understanding of whether these lower numbers reflect a pattern and whether a reduction in examination equals a corresponding reduction in the interdiction of contraband.

I would like to turn briefly now to privacy issues raised by some of our colleagues, who have argued for the amendment by saying the original bill will not pass constitutional muster, dooming it to a constitutional challenge in very short order that could take years to adjudicate. With due respect, my learned colleagues, an opinion even from our august body isn’t necessarily indicative of how the Supreme Court of Canada would rule, and we shouldn’t assume we know what the courts will say. I’m not comfortable when we put our views against the opinions of government, which relies on its own battery of constitutional expertise. I’m not a constitutional expert, so it seems wiser to me to let the courts decide while the legislators defer to the very clear intent of the government.

We may disagree with the balance that the government has struck and prefer to use a threshold that errs more on the side of privacy, but the government has overtly rejected that option by adopting a threshold that is not as stringent as the one the Senate committee wants, albeit stronger than what was in place.

The Alberta court itself said there appeared to be room for this middle approach:

. . . in our view the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act.

Colleagues, this at the very least indicates that the courts will consider something less than “reasonable suspicion” when they themselves hear arguments in the future.

I might also want to add that other amendments put forward by Senators Dalphond and Wells on solicitor-client privilege and network connectivity, as well as the government’s regulatory proposal, will in and of themselves make decisions about border interventions more rigorous. Perhaps changes such as these are what the court had in mind when leaving open the possibility that something less than “reasonable suspicion” would be acceptable.

I would also note that the original bar in this bill is higher than the level which exists in many jurisdictions with similar legal systems to our own, including the United States, Australia and the United Kingdom. The fact that the bill will almost certainly be challenged should provide some succour to those who believe it goes too far in either direction.

Nonetheless, I acknowledge our role here is made somewhat more difficult by the fact that the bill started in the Senate rather than the other place. As a chamber of sober second thought, I would prefer that bills of this import come to us after colleagues in the other place have dealt with them and made their own changes if need be. This could have guided us.

Despite my concerns, I do believe this bill needs to pass, for no less a reason than we have two competing enforcement processes being administered in our country today. This creates an inequality in law that needs to be rectified as soon as possible.

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Furthermore, the issue is one of significant concern for our relationship with the United States. It has long been a goal of our nation to pursue policies that enhance and streamline cross-border traffic. The thickening of the Canada-U.S. border is an issue that should be top of mind for all legislators. That becomes more difficult if we are seen as unable to get our act together.

I would also add that our border security is challenged daily by new digital technologies that require significant dexterity on the part of the CBSA. This bill underscores the challenges we face. It may well be time for a new and wider policy discussion on an updated security plan. The tragedy of 9/11 was a long time ago, and we haven’t had a comprehensive discussion of these issues since then.

Allow me to conclude by saying that, despite the understandable concerns expressed for privacy and the threats posed by criminal activity, like the importation of child porn, I believe our border officials conduct themselves for the most part with restraint and will continue to effectively do their jobs while we await what will hopefully be a prompt and well-considered passage of this bill. Thank you.

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