Follow-up letter to the Standing Committee on Public Safety and National Security regarding 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 additional 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. The Commissioner sent his first letter offering comments on Bill C-23 to the Committee on May 24, 2017.

June 8, 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 am writing to offer additional views further to my letter of May 24, 2017 regarding Bill C-23, the Preclearance Act, 2016. In that letter, I stated that the protections offered under Canadian law by section 11 of the Bill would appear to be hollow, due to the application of the principle of state immunity. I concluded that there were no obvious solutions to this difficult question. Let me offer a partial solution now.

The fundamental problem with groundless searches of electronic devices is that these searches do not recognize that they are extremely privacy intrusive. Yet Bill C-23 recognizes the sensitivity of other searches, namely searches of persons, from the relatively un-intrusive frisk or pat-down searches to the more intrusive strip and body cavity searches. These searches legally cannot be performed unless an officer has reasonable grounds to suspect some legal contravention, notably the concealment of goods. In my view, it is extremely clear that searches of electronic devices can generally be much more intrusive than frisk searches, for electronic devices can contain the most personal and intimate information we hold.

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devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. Border controls are important and legitimate for reasons of sovereignty and public safety, but they should not be exercised arbitrarily. I recommend that Bill C-23 be amended to place border searches of electronic devices on the same footing as searches of persons and therefore their performance should require reasonable grounds to suspect. A consequential amendment to the Customs Act would elevate to a rule of law the Canadian policy which provides that such searches may be conducted only if there are grounds or indications that evidence of contraventions may be found on the digital device or media.

The enforcement of such a rule would still be constrained by the state immunity principle, meaning it could not be enforced in a court of law. But my understanding is that, according to the government, the protections of s.11 would not be completely hollow because in the event of a violation of Canadian law, here a potential requirement for grounds to suspect before the search of an electronic device can be performed, the violation could be brought to the attention of the Preclearance Consultative Group, a bilateral working group created pursuant to Article XII of the 2015 Agreement on Land, Rail, Marine and Air Transport Preclearance, for discussions from state to state.

While very partial in my view, this solution would at least recognize the principle that border searches on Canadian soil should be conducted in accordance with Canadian law and values. I hope these points are helpful to Committee Members as you conclude your study and clause-by-clause consideration. If you have any follow-up questions on the specifics above or require any further work from my Office, it would be our pleasure to support the Committee’s work 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