Letter to the Standing Committee on Public Safety and National Security regarding the review of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States

The Privacy Commissioner of Canada, Daniel Therrien, sent the following letter to the Standing Committee on Public Safety and National Security, to provide input for the Committee's review of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States. On June 8, he submitted a follow up letter to the Committee providing additional input on Bill C-23.

May 24, 2017

Mr. Robert Oliphant, M.P.
Chair, Standing Committee on Public Safety and National Security
House of Commons
Ottawa, Ontario  K1A 0A6

Dear Mr. Chair:

I would like to thank you and the Members of the Committee for their work to date on review of Bill C-23, the Preclearance Act, 2016. The views I provide below, I hope, will be useful given your previous study of Canada’s national security framework. Concerns over the status of Canadian law and sovereignty have arisen with various iterations of preclearance measures over the years. Certainly, issues of privacy, information-sharing and reasonable limits on search are also being voiced by legislators, so I believe it is important to deal with these questions directly.

My immediate concern stems from recent announcements by the US administration that they intend to search at their discretion and without legal grounds other than a desire to protect homeland security the electronic devices of any and all aliens who seek to enter the United States. This would include intent to require persons seeking admission to the US to provide the password of their cellphone or social media accounts. It would appear that this policy would equally apply at preclearance locations in Canada. By contrast, the Government of Canada’s policy is to perform border searches of persons seeking admission to Canada only if there are grounds or indications that evidence of contraventions may be found on the digital device or media.

The search of an electronic device is an extremely privacy intrusive procedure. This has been recognized by the Supreme Court of Canada on a number of occasions^{Footnote 1}. While I understand that state agents have broader search powers at the border, it is unlikely Canadian courts would uphold as constitutional searches without grounds of electronic devices or of the content of social media accounts. That may be why Canada’s policy is more nuanced.

As is the case under the existing Preclearance Agreement, preclearance officers would be required to comply with the laws of the host country while in that country. This would apply for both Canada Border Services Agency (CBSA) officers working in the US and Customs and Border Protection (CBP) officers working in Canada. Under the Agreement, any US preclearance activities in Canada would have to be carried out in a manner consistent with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights,and the Canadian Human Rights Act. This is reflected in section 11 of Bill C-23.

Although in principle, it appears that by operation of section 11 of Bill C-23, fundamental Canadian rights will be protected, section 39 of the Bill provides that civil proceedings against the US remain subject to the State Immunity Act, 1985. This significantly limits access to civil remedies against the US for the actions of CBP officers in the performance of their preclearance duties.

To be clear, 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.

There are no obvious solutions to this difficult question. Subsection 20(2) of Bill C-23 provides that a preclearance officer “is not permitted to collect biometric information unless notification that travelers may withdraw from preclearance is provided in the preclearance area, through signage or other means of communciation.” The content of electronic devices can be as privacy sensitive as biometric information, depending on context. Subsection 20(2) of Bill C-23 could perhaps be extended to searches without grounds of electronic devices.

In many situations, however, it would appear that Canadians who wish to enter the US will, at preclearance locations in Canada as well as at border points in the US, have to face the difficult choice of either accepting a search without grounds or foregoing their wish to travel to the US.

I hope these points are helpful to Committee Members as you pursue your study. If you have any follow-up questions on specific issues noted above or would like copies of further research work from my Office, it would be our pleasure to support your study as best we can. Please do not hesitate to contact Pierre-Luc Simard, Parliamentary Affairs Officer, directly at 819-994-6015.

Sincerely,

 

c.c.: Jean-Marie David, Clerk