Appearance before the Senate Standing Committee on National Security and Defence (SECD) on Bill C-23, an Act to Amend the Customs Act (Preclearance)

December 4, 2017
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Introduction

Thank you for the invitation to appear before you today on Bill C-23, the Preclearance Act, 2016, which implements the 2015 Agreement on Land, Rail, Marine, and Air Transport Preclearance between Canada and the United States.

As I have emphasized in the course of other Parliamentary studies, privacy rights must be considered in the context in which they are applied.  In the specific case of preclearance, trade and security are vital issues for Canada-US border policy, and we need smart controls at borders for people, goods and data. But this does not mean that privacy should be set aside when at the border.

Threshold for Search of Goods

Bill C-23 authorizes US officers to conduct preclearance activities including searches at preclearance facilities on Canadian soil.  Under this Bill, Canadians and other persons seeking to enter the US from Canada through pre-clearance facilities would be subject to searches of electronic devices without legal grounds.

This is not different from existing Canadian law that allows Canada Border Services Agency (CBSA) officers, without any grounds, to search goods carried by individuals seeking to enter Canada (paragraphs 99(1)(a) and (c) of the Customs Act). 

However, it is significantly different from CBSA policy that requires specific grounds for search of electronic devices in particular, namely that ‘evidence of contraventions may be found on the digital device or media’.   For reasons I will explain, I believe this more nuanced policy should be elevated to a rule of law.

Electronic devices:  more than “goods”

The idea that electronic devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.

While the law generally affords greater latitude to state authorities to conduct searches at the border to enforce sovereignty, territorial integrity and regulate immigration, the Supreme Court has also found in many contexts that search of electronic devices is extremely intrusive. 

Therefore, while the law is not yet settled, I think it is clear that Canadian courts would find groundless searches of electronic devices to be unconstitutional, even at the border. This may explain why CBSA has adopted a nuanced policy in this regard.

Cabinet members, including the Prime Minister and the Minister of Public Safety, have sought to reassure Canadians by saying Canadian law, including the Canadian Charter of Rights and Freedoms, will apply to US officers as they perform their duties and exercise their powers in pre-clearance facilities (section 11 of Bill C-23).

However, the principle of state immunity as enacted by the State Immunity Act, 1985 would appear to make the protections of section 11 of Bill C-23 hollow, as these protections could not be enforced in a court of law, except in circumstances largely irrelevant to the present discussion.

Redress and Amendment

In an effort to address weaknesses in the remedial provision of C-23, the bill was amended in the House to provide for administrative redress to the Preclearance Consultative Group as delineated in section 26.1.  But these amendments still have important flaws, including that they do not apply to searches of electronic devices. 

This leads me to recommend two amendments to Bill C-23: 

1. Amend C-23 so that searches of electronic devices are subject to the same threshold as searches of persons, that is, reasonable grounds to suspect; and,
2. Extend the administrative remedy in section 26.1 to all activities performed by US officials in pre-clearance facilities, including searches of electronic devices.

With that, I welcome your questions.