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

The Privacy Commissioner of Canada, Daniel Therrien, sent the following email to the Senate Standing Committee on National Security and Defence, regarding their study on Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States. The email offers further input for consideration, following the Commissioner’s appearance before the Committee on the same issue on December 4, 2017.

December 5, 2017

The Honourable Senator Gwen Boniface
Chair, Standing Senate Committee on National Security and Defence
The Senate of Canada
Ottawa, Ontario  K1A 0A4

Dear Ms. Chair:

During my appearance on December 4, 2017 before the Senate Standing Committee on National Security and Defence (SECD) on Bill C-23, an Act to Amend the Customs Act (Preclearance Act, 2016), I recommended that the Bill be amended so that searches of electronic devices would be subject to the same threshold as searches of persons, that is, reasonable grounds to suspect.

Under paragraph 20(1)(c), a preclearance officer may, for the purpose of conducting preclearance, ”examine, search and detain goods bound for the United States, including by taking samples of the goods in reasonable amounts.”  For reasons given during my testimony, certain electronic devices should not be governed by this rule which does not require legal grounds. I would therefore recommend that this paragraph would apply “subject to” a new section, potentially numbered 21.1, which would read thus:

“21.1 A preclearance officer may, for the purpose of conducting preclearance, examine, search and detain a traveller’s electronic device that is capable of holding personal information and is bound for the United States, if the officer has reasonable grounds to suspect that the device contains evidence of a contravention of this Act or any other Act administered or enforced by the preclearance officer.”

For symmetry, as suggested by Senator Boisvenu, paragraph 99(1)(a) of the Customs Act would be amended to impose a similar standard on Canadian border officials examining persons seeking to enter Canada.

Finally, to ensure that access to the Preclearance Consultative Group is a remedy available for alleged misuse of the authority to examine, search or detain certain electronic devices, section 26.1 would have to be amended by adding a reference to the proposed new section 21.1.

I trust this will be helpful.