Question Period Note: Personal Digital Devices

Media article was released on Bill S-7 which sets a new legal standard of 'reasonable general concern' in order to search personal digital devices. Civil liberties groups say the approach is too permissive.

• In response to the Court of Appeal of Alberta’s ruling in Canfield, the government has proposed a new legal framework in Bill S-7 governing the examination of personal digital devices at the border that is consistent with the Charter.

• We recognize that personal digital devices may contain private information. CBSA officers are trained to conduct all border examinations in a professional manner, respecting traveller privacy..

• The proposed threshold of reasonable general concern is meant to be higher than mere suspicion or a hunch but less restrictive than reasonable grounds to suspect.

• Reasonable general concern requires factual indicators which are objective and verifiable. This concern must be specific to an individual and their device as well as directly related to regulatory border contraventions.

• The court, in Canfield purposely did not recommend a specific threshold for examinations of personal digital devices. Rather, it invited the Government to consider whether something less than reasonable grounds to suspect may be appropriate given the unique nature of the border.

• Reasonable grounds to suspect is primarily used at the border with respect to strip searches which have been identified in jurisprudence as being more intrusive than examinations of devices.

• The Customs Act authorizes the CBSA to conduct no threshold examinations on all goods, including mail. In the mail stream, this may include x-ray, address searches, organic material scans, etc. A threshold of reasonable grounds to suspect is only required in the event the mail needs to be opened.

If pressed on statistics:

• Examinations of digital devices are performed occasionally with the clear goal of administering or enforcing the CBSA’s mandate and program legislation that governs the cross-border movement of people and goods. In fact, in 2021, only 0.009% of the approximately 19 million travellers to Canada underwent an examination of their digital devices (approximately 1 out of every 10,000 travellers).

• Of those examined, the CBSA uncovered non-compliance with border laws in approximately 27% of their examinations.

Subsequent to a ruling by the Alberta Court of Appeal in October 2020, the Government has proposed legislative changes with respect to the examinations of personal digital devices (PDD). Bill S-7 was introduced in the Senate on March 31, 2022, proposing a new legislative framework for the examinations of such devices including a required threshold of reasonable general concern. It is the Government’s view that this new threshold best fits the unique border context and appropriately balances privacy protections for travellers with border integrity.

One of the most fundamental methods of meeting the mandate of the CBSA is through the examination of goods crossing the border. This is key to classifying goods, assessing the value for duty, collecting duty and taxes, determining the admissibility of goods, ensuring compliance with the law of Canada, detecting non-compliance, and providing a deterrent against non-compliance.

The CBSA conducts no-threshold examinations on mail (x-ray, address searches, organic material scans, etc.) A threshold of reasonable grounds to suspect is only required in the event that the mail needs to be opened.

Personal digital devices are now the primary method of importation across the border of obscenity such as child pornography. The Canfield ruling came into effect, along with a parallel ruling by the Ontario Superior Court (Pike), on April 29. As such, PDD exams in both provinces are now only conducted under an alternate, more restrictive examination authority [s.99(1)(e)] which requires reasonable grounds to suspect. This has resulted in a precipitous decline in exams in these two provinces. With the sharp increase in traveller volumes as the pandemic eases, this has unquestionably compromised border integrity as digital contraband is more difficult to intercept.

As such, it is imperative that the new legislative framework, reflective of the unique order context be brought into force as quickly as possible.

None