Senate amendments needed to save flawed border search bill: Senator Wells
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You’re returning home after a long trip. You’re exhausted, jet-lagged and perhaps irritated because of the line-up at border control. If it’s an overseas flight, you probably slept in your seat — and it shows.
If the federal government gets its way, your fatigue could give border agents a “reasonable general concern” — a made-up standard allowing them to pull you aside without cause and search your emails, browsing and search history, banking, legal or health records, and anything else stored or accessible on your phone, tablet or laptop.
Or maybe you’re travelling with only a carry-on bag, or perhaps you have three checked bags. These, too, could trigger a “reasonable general concern.”
Bill S-7 is a government bill introduced in the Senate to amend the Customs Act. It’s supposed to clarify the circumstances under which border officers can search documents and files stored on your digital devices.
Instead, it invents a shallow search standard that gives border officers a free hand to root through your most private and personal information — including documents that might be stored online, in the cloud or attached to remote email servers.
It would legalize the routine, arbitrary and indiscriminate violation of our Charter right to be secure from unreasonable search and seizure, and it is virtually guaranteed to be the subject of lengthy court challenges — unless the federal government is willing to accept the amendments agreed to in the Senate that I and my colleagues on the Senate Committee on National Security and Defence made to this bill.
We replaced the language of “reasonable general concern” with “reasonable grounds to suspect” — a standard well established in law.
This established standard will keep cases from cluttering the courts. But I wanted to go further by adding language allowing digital devices to be searched only when their network connectivity has been disabled. The committee and the Senate agreed, and this language now appears in the amended bill that will go to the House of Commons for consideration.
I recognize that there are reasons for border officers to be able to examine travellers’ devices; the event that led to Bill S-7 was the discovery of child pornography on a cell phone and laptop that two creeps were attempting to bring into Canada.
The panel of judges of the Court of Appeal of Alberta heard the case and declined to toss the evidence. The judges upheld the conviction of the two criminals. However, they found that the section of the Customs Act used to justify the search was “unconstitutional to the extent that it imposes no limits on the searches of such devices at the border.”
The court referred it back to Parliament to develop clarity around the grounds for a search. After much foot-dragging, Bill S-7 was the clumsy and unfortunate result.
The court’s message was clear: overly broad search powers violate the Canadian Charter of Rights and Freedoms. Remember, the Charter is there not to protect the majority or the minority. It is there to protect the individual — that means you.
The government’s response? To enshrine border agents’ overly broad search powers in law.
We know how this story ends because we’ve seen it before.
When the courts forced the federal government to address medical assistance in dying, it proposed a bill that senators warned was unconstitutional. The government rammed it through anyway and was forced to introduce a new bill when the Quebec Court of Appeal determined that the Senate was right.
I urge the government to spare Canadians the burden of defending another lost cause — and, most importantly, to defend Canadians from the clear violation of their rights.
As the Alberta court wrote, the negative effects to personal and digital privacy “provide compelling reasons to curtail unfettered search powers of electronic devices at the border.”
My Senate colleagues and I have heard the court’s message and made the necessary changes to the government bill — and if history is any lesson, the government will likely undo it when the bill is debated in the House.
The Senate has done what is necessary to protect Canadians’ Charter rights. I hope these efforts are not ignored.
The Honourable David Wells is Official Opposition Critic of Bill S-7. He represents Newfoundland and Labrador in the Senate.
A version of this article appeared in the June 27, 2022 edition of the Toronto Sun.
You’re returning home after a long trip. You’re exhausted, jet-lagged and perhaps irritated because of the line-up at border control. If it’s an overseas flight, you probably slept in your seat — and it shows.
If the federal government gets its way, your fatigue could give border agents a “reasonable general concern” — a made-up standard allowing them to pull you aside without cause and search your emails, browsing and search history, banking, legal or health records, and anything else stored or accessible on your phone, tablet or laptop.
Or maybe you’re travelling with only a carry-on bag, or perhaps you have three checked bags. These, too, could trigger a “reasonable general concern.”
Bill S-7 is a government bill introduced in the Senate to amend the Customs Act. It’s supposed to clarify the circumstances under which border officers can search documents and files stored on your digital devices.
Instead, it invents a shallow search standard that gives border officers a free hand to root through your most private and personal information — including documents that might be stored online, in the cloud or attached to remote email servers.
It would legalize the routine, arbitrary and indiscriminate violation of our Charter right to be secure from unreasonable search and seizure, and it is virtually guaranteed to be the subject of lengthy court challenges — unless the federal government is willing to accept the amendments agreed to in the Senate that I and my colleagues on the Senate Committee on National Security and Defence made to this bill.
We replaced the language of “reasonable general concern” with “reasonable grounds to suspect” — a standard well established in law.
This established standard will keep cases from cluttering the courts. But I wanted to go further by adding language allowing digital devices to be searched only when their network connectivity has been disabled. The committee and the Senate agreed, and this language now appears in the amended bill that will go to the House of Commons for consideration.
I recognize that there are reasons for border officers to be able to examine travellers’ devices; the event that led to Bill S-7 was the discovery of child pornography on a cell phone and laptop that two creeps were attempting to bring into Canada.
The panel of judges of the Court of Appeal of Alberta heard the case and declined to toss the evidence. The judges upheld the conviction of the two criminals. However, they found that the section of the Customs Act used to justify the search was “unconstitutional to the extent that it imposes no limits on the searches of such devices at the border.”
The court referred it back to Parliament to develop clarity around the grounds for a search. After much foot-dragging, Bill S-7 was the clumsy and unfortunate result.
The court’s message was clear: overly broad search powers violate the Canadian Charter of Rights and Freedoms. Remember, the Charter is there not to protect the majority or the minority. It is there to protect the individual — that means you.
The government’s response? To enshrine border agents’ overly broad search powers in law.
We know how this story ends because we’ve seen it before.
When the courts forced the federal government to address medical assistance in dying, it proposed a bill that senators warned was unconstitutional. The government rammed it through anyway and was forced to introduce a new bill when the Quebec Court of Appeal determined that the Senate was right.
I urge the government to spare Canadians the burden of defending another lost cause — and, most importantly, to defend Canadians from the clear violation of their rights.
As the Alberta court wrote, the negative effects to personal and digital privacy “provide compelling reasons to curtail unfettered search powers of electronic devices at the border.”
My Senate colleagues and I have heard the court’s message and made the necessary changes to the government bill — and if history is any lesson, the government will likely undo it when the bill is debated in the House.
The Senate has done what is necessary to protect Canadians’ Charter rights. I hope these efforts are not ignored.
The Honourable David Wells is Official Opposition Critic of Bill S-7. He represents Newfoundland and Labrador in the Senate.
A version of this article appeared in the June 27, 2022 edition of the Toronto Sun.