A new, easier way for officers to search your devices at customs

Jordan You’re probably not a lawyer, but you have seen them on TV, maybe even even worked with one in person. Either way, I am reasonably sure that you know the definitions of some important legal terms like these ones: beyond a reasonable doubt, a duty to accommodate, hearsay, or double jeopardy. You know those, right? You probably also inherently understand a couple more terms because these ones just say generally what they mean. The terms are: suspicion on reasonable grounds and reasonable and probable grounds. These two are used as thresholds for when police can search you as you enter the country in the first case and when they require a warrant to search you or your home or your car in the second.

Now I’m going to give you one more: reasonable general concern. Do you know what that one means? No, you don’t, because legally in this country it has never existed. Now, however, that term is in an amendment to the Customs Act that would allow customs officials at the border or American border security working preclearance in Canada to use it as a reason to search your electronic devices–smartphone, laptop, Kindle tablet, Nintendo Switch, whatever. So what is a reasonable general concern anyway? And does it sound at all to you like something an official could claim to be basically anything if they wanted? Good. We’ve identified the problem. Now we’ll explain how we got here, what’s about to happen, and why a whole lot of privacy advocates and one Canadian Senator are really concerned.

I’m Jordan Heath-Rawlings. This is The Big Story. Senator Paula Simons is an independent Senator from Alberta. She is a member of the Standing Senate Committee on Transportation and Communications. Hello, Senator Simons.

Paula Simons Hello.

Jordan Can you start by just telling us what Bill S-7 is?

Paula Simons Sure. Bill S-7 is a bill to amend both the Customs Act and the Preclearance Act to add a new legal threshold for when a Canadian Border Services agent can search through your cell phone, your laptop, your tablet, your smartwatch when they can go through your digital devices. What is intriguing and perhaps controversial about S-7 is that it establishes a new threshold, a novel threshold of reasonable general concern. That’s the trigger point at which a CBSA officer is allowed under this act to go through your phone, your laptop. And under the Preclearance Act, it’s the threshold at which an American officer who’s doing preclearance at an international airport in Canada is also allowed to go through all the personal documents on your digital devices.

Jordan What is the intention of this bill? We’re going to get to the definition that you’re concerned about in a minute, and we’ll get deep into what the reasonable general concern might be. But what’s the purpose of the bill?

Paula Simons Well, up until now, customs officers have had very broad latitude to search your digital devices. Very broad latitude. And this goes back to a court ruling from 1988 called Simmons, which basically was giving them carte blanche to go through your phone if they chose to, without having any kind of threshold or legal standard. So in response to a decision by the Alberta Court of Appeal that said that that was unconstitutional, the federal government came up with a new threshold to say, all right, you can’t just go on a phishing trip. There has to be reasonable general concern before people can go looking through your phone.

Now, what are they looking for? They are looking specifically for things that violate our border laws. So they are looking to see if you’re importing child pornography. They are looking to see if you are importing hate literature or material that is treasonous or seditious. But they are also looking for more mundane things. They’re looking to see if you’re violating Copyright by bringing in works that have Copyright protection in Canada. So are you smuggling in 1000 DVDs, which people don’t really do anymore, but that’s from back then. Also, they’re looking to see, did you maybe do a little more shopping than you declared? Did you buy some new shoes and then take off the price tags and then scuff them up on the concrete and try to pass off your new shoes as old shoes? Did you declare that you had X amount of something in your luggage, but really you brought in a lot more? So what they can do is use this to go through any banking records or financial information on your phone. So if you’ve been using your phone to your Apple wallet or you have your Visa statements, what have you, they can go looking to see if you have undeclared merchandise.

Jordan So let’s talk about the term itself, then. What actually is a reasonable general concern. How is that defined,

Paula Simons Dang, if I know. Because it isn’t defined and this is what has raised so many eyebrows. This is a completely novel legal threshold. We have all kinds of legal thresholds in Canada for when you can conduct a search. And some of those thresholds are higher than others. But this is a completely, I don’t want to say made up. Made up is such a judgmental term. This is a newly created term. There’s no precedent for it in any Canadian law. There’s no precedent for it in any Commonwealth law or American law. Or as near as anybody is able to tell us, it is a threshold that doesn’t exist anywhere else in the world. And that’s problematic because it means that border services agents don’t have any frame of reference for what that means. When is a reasonable general concern triggered? There is no template that tells you when. There’s no rubric. And similarly, if cases go to court, if defence lawyers say, hey, that was an unreasonable search, the judges won’t have any frame of reference either. And so one of my significant concerns about this bill is that it will create a lot of confusion at the border. Agents won’t know when they’re supposed to search and when they’re not. And it will tie up our courts because this will have to be litigated and adjudicated probably eventually all the way to the Supreme Court to define what reasonable general concern means and to define, in fact, if it’s actually a constitutional standard.

Jordan Which might bring us right back to where we started this thing, with another need to amend the Customs Act.

Paula Simons Yeah, exactly.

Jordan Okay, so you mentioned this is a brand new term, but that we do have terms related to this. So could you just give us a couple of examples that people might be familiar with, and why wouldn’t they have worked in this instance?

Paula Simons Well, all through the rest of the Customs Act, for example, it’s a standard of reasonable suspicion. So if somebody let’s say you get to the border and you’re an old fashioned soul and you have love letters in your briefcase, if they have a reasonable suspicion that your love letters might be in code and that you’re trying to bring about the downfall of the government, they can go through your mail. They can go through file folders, manila file folders. Your audience won’t remember what those are, but they can go through file folders and envelopes. They can search your luggage. If you’ve arrived at a land border point, they can search the trunk of your car if they have a reasonable suspicion. And everybody knows what that means.

Now, there are some people who would argue that reasonable suspicion is also too broad. But we need to remember that at the border we have fewer rights than we do walking down the street. So if you’re walking down the street, a police officer can’t just stop you and ask you to turn out your wallet or your handbag. They need to have a warrant for that. And the standard to get a warrant is the highest of all. So there’s that kind of standard. At the border, the standards are less because you’re entering that liminal space between two countries, and you surrender some of your civil rights because you’re really asking to come into Canada. And so the Canadian government can set a threshold at which it allows you in. So we all understand that when we go through the border, we can be searched in ways that we can’t be searched if we’re just going about our daily lives. The question is how do you calibrate a standard that both protects the border and also recognizes the fact that the border is not a charter free zone?

Jordan And I guess when you’re using the term reasonable suspicion, to your point earlier, if those cases do get challenged and they do make it to court, we probably have reams of precedent about what constitutes a suspicion.

Paula Simons Precisely. I mean, these are defined terms. So the question becomes, why have they set a lower threshold and I don’t know if you want me to start going down the rabbit hole of the court case yet, but I can explain a little bit about how we got here, if you would like.

Jordan Yes, I would love that. That’s my next question anyway. Why was this even necessary? Where did it start?

Paula Simons All right, so five or six years ago, we had two cases, the Edmonton International Airport of men arriving, and they were pulled over and searched through their phones and laptops looking for child pornography. And they had child pornography. The defendants were named Canfield and Townsend, and they weren’t traveling together. These are two cases that got lumped together at the Court of Appeal. And the Court of Appeal said, look, you pulled these guys over because you just got a weird read. You got a hunch. In Mr. Townsend’s case, the trigger was that he was carrying lube and condoms and penis rings. And the guard thought that was suspicious and the fact that he was traveling alone and he was coming back from Thailand. So I think they thought maybe he was a sex tourist. And then they found child pornography. In Mr. Canfield’s case, I think he was just he came to the border and he looked guilty and they were like, right, you look shifty. Let’s see what you got. And the court said, look, we know you found child pornography and a fair bit of it. So we’re not actually throwing out the convictions. But we are saying that this is not right. You can’t just go on phishing trips. There has to be some standard. You have to set a standard. You can’t just have it be border guards sort of using their spidey sense.

Jordan Right, eyeballing people. You look shifty. Let me see your phone.

Paula Simons Yeah. As it turned out, the border guards intuition in this case was perfectly correct. But the court said, look, that’s not good enough because you don’t want this being applied in a way that is unfair. Because you can imagine, in the case of LGBTQ people, are they going to be profiled based on their sexual orientation? In the case of people who are looking for seditious or treasonous literature, are people going to be profiled based on their race?

Jordan Sure. Wearing hijabs or turbans?

Paula Simons Exactly. We know how these things happen.

Jordan Yes.

Paula Simons But the court also said, and this is, I think, a really important point–that we now carry what the court called a biographical core of information on our phones and laptops. And the court pointed out that today what you have on your phone is exponentially more private personal information than ever before, more than you could possibly have carried in a briefcase or on a laptop ten years ago. And the court said this is a profound invasion of privacy. The court didn’t use a word like soul, but that’s basically what they’re saying. Your soul is on your phone. And they’re saying that the agents of the state have to have a good faith reason to subject you to that kind of search of your most private, intimate information. So the court said, all right, we’re not going to tell you what the standard should be. You federal government come up with a standard. And then the court gave them a year to do that, and the government came to them cap in hand and ask for an extension, like a kid in the last months of University. And the court gave them one extension. And then the government came back and asked for another extension. And the court was like, no, that’s it. You’ve had enough extension time now.

So as a result, we’ve ended up in this really peculiar situation where, in Alberta, if you arrive at the Montana border in your car, if you’re crossing at Coutts, if you’re flying in after a vacation abroad, you are not subjected to the standard that everybody else is. You get searched on the basis of reasonable suspicion. And then as if it weren’t enough for Alberta to be out of step with the rest of the country, as it so often is in different ways, Ontario had a similar case that was litigated. And the court in Ontario took its direction from the Alberta Court of Appeal and said, right. We also say you have to have a threshold. So now when people arrive at Pearson, they are subjected to a higher standard than everybody else. If you arrive in Montreal, they can look at your cell phone without any kind of standard at all. In Ontario, they must meet the standard of reasonable suspicion.

Jordan Stop me here if I’m putting words in your mouth, because I don’t want to do that. But it sounds like the bill created, after the Court of Appeal left a vacancy, is doing the exact thing that the Court of Appeal was saying was bad.

Paula Simons Yeah, that would be my interpretation.

Jordan Okay, what the hell?

Paula Simons So this is the problem, right? So the government came back and said, right. The court said we had to have a threshold. This is a threshold. To which I say that’s not much of a threshold. How is that any better than what the court already said was not good enough? Now, there are different interpretations of this. Minister Mendicino, whose bill this is, that he’s a former Crown prosecutor, that this is a bill that they need, that searches in Ontario and Alberta have dropped by 60% since, now they have to meet the standard of reasonable suspicion, and who knows what could be coming in. And the sponsor of the bill in the Senate, Gwen Boniface, is the former head of the OPP, and she argues quite strenuously that this is the appropriate threshold. And Senator Boniface’s argument is that the standard to do a strip search is reasonable suspicion. So she says, shouldn’t the standard for searching your phone be lower than the standard for doing a strip search.

And it’s an interesting philosophical question because, in committee, Senator Boniface put that question to the Office of Canada’s Privacy Commissioner, who is opposing the threshold of reasonable general concern. And she said, but shouldn’t it be harder to search your body than to search your phone? And the very thoughtful witness from the Office of the Information Privacy Commissioner, he thought for a minute, and then he said, there are two kinds of privacy. There’s the privacy of your bodily autonomy, because, of course, it’s humiliating to be strip searched, to have a body cavity search. It’s very invasive and strikes to the core of your bodily autonomy. And I think for somebody, especially if you’d had a history of sexual assault, it could be very triggering. But he said that’s one kind of privacy, the other kind of privacy is all the information on your phone, which these days can be extremely intimate, extremely personal, but could also be an invasion of your civil liberties because they can use information they find on your phone while they’re looking for child pornography or visa receipts. If they find evidence of other crimes, they can turn that over to the general police service. So could we fight more crime if at any point your phone could be searched? Sure. I bet if you rented random stops of every 100th person on the street, you could find some interesting stuff in their phones. But we don’t do that. We don’t let the state just go on random phishing trips in the name of keeping the community safer.

Jordan I want to play devil’s advocate, too, for just a second here, because we’ve talked about child pornography. We’ve talked about obviously trying to evade customs and copyright stuff. How often is that stuff actually brought into the country on someone’s phone? Like the customs stuff is actually physical goods that is usually smuggled in. And even if you’re bringing in, I don’t know, I’m talking randomly now, but like copyright movies of stuff that’s still in theater, you’re probably bringing them in on physical disks to sell them. And how many people, and obviously anything we can do to stop child pornography from getting in the country is worth looking at, but how many people smuggle child porn into this country on their phones?

Paula Simons Well, this is the point, and it’s a very difficult line to walk. Right. Because these days in American political discourse, as soon as you accuse somebody of being soft on pedophilia or being a groomer. Right. It’s the worst thing you can say to someone. And I’ve had people say to me when I’ve tried to make nuanced arguments about child pornography law. Oh, well, she’s a pedophile. She loves child pornography. I want to be very clear here. As a mother and a feminist, I think child pornography is appalling and disgusting, and especially when it victimizes real children as opposed to sort of anime child pornography. I mean, we need to do everything we possibly can to save children from being victimized in this way. I mean, it is among the worst crimes imaginable. But the percentage of child pornography coming into this country piece by piece on people’s phones, as opposed to in torrents over the Internet, I think we have to think about what we’re trying to do here. Are we trying to plug a small hole in a dike while over on the right hand side, waves and waves of disgusting imagery are coming in unchecked over the dark web. Not even the dark web, just the regular web.

Jordan Right? That’s what I’m saying. I just didn’t even know that this was the method.

Paula Simons Yeah. I mean, these laws you have to imagine that this is all predicated on the laws from the 1940s and 1950s when they stopped you from bringing dirty books and dirty magazines into the country. And when Canada had very puritanical laws, and so people would go to the States and they’d get a girly magazine and they tried to bring it back into the country and a border agent would stop them. They’d be smuggling in a copy of Lady Chatterley’s Lover and it would get seized at the border. Right, I mean, that’s the ancestry of these kinds of laws. But people are not bringing in, especially not for commercial redistribution images on their phones that way. Unfortunately, the trade in child pornography, it’s a much more toxic and sophisticated distribution network. Similarly, when they say that they’re looking for evidences of hate speech, you can’t bring. So, yes, I guess it’s possible someone went to the States and made printed out copies of pamphlets that support white supremacy. You can imagine that. But is that really how hate speech is coming into the country? On printed pamphlets in somebody’s suitcase or on someone’s phone? Turn on Twitter, and there are Russian bots and Proud Boys and ISIS in Afghanistan. I mean, there’s so much hate and seditious material online. Trying to stop it at the border seems almost quaint.

Jordan So what happens next? Is this bill destined to become law? Is there any chance of it being changed to even just a better definition of the term? What’s happening here?

Paula Simons This is the other part that I think people have found sort of interesting and confusing. It is not typical for bills to begin in the Senate. The way we usually do things is the government has a bill. It proposes the bill in the House of Commons. The bill gets a thorough debate in the House of Commons. There’s lots of press attention because it’s in the House of Commons, which is where most of the reporters are. And then it comes to the Senate, and the Senate does its sober second thought this time. The bill is it is a government bill. I want to be clear about that because there’s been some confusion. I’ve seen people talking on Twitter not understanding this. So the government started the bill in the Senate, which it has the right to do as long as the bill doesn’t spend money in large volume, because the Senate can’t direct the House of Commons in how to spend money. So it’s atypical to start a bill in the Senate, but it’s certainly not unheard of. And I think in this case, things are so congested in the House of Commons, like on the ground at Pearson, that I think they thought it might go faster if it started in the Senate.

But what’s happening now is that the bill is up for debate in front of the Standing Senate Committee on National Security and Defense. It’s getting a very thorough airing and a very thorough vetting. There have been a lot of witnesses who have been very critical of the bill, and I’ve been able to sit in on a couple of meetings of that committee. I’m not a member, but the committee members are asking some extremely tough questions. And without telling tales out of school, I believe that there will be a number of senators proposing amendments at committee. So the bill could well be amended at committee. Whether it’s amended at committee or not, it will come back to the Senate as a whole, where if it’s been amended, the Senate as a whole has to approve those amendments, or if the amendments were defeated in committee, they can be re-litigated in the Senate, and then we’ll send it to the House of Commons. And if the Senate decides to amend the bill substantively and send back to the House of Commons a bill that the House of Commons is not happy with, we can get into a little bit of constitutional ping pong.

And it’s important for people to understand, because nobody understands much about the Senate and there’s so much cynicism and skepticism about the Senate, that this is not your dad’s Senate. In the olden days, the Senate was a partisan body with Conservative and Liberal senators. These days there are only 16 partisan members of the Senator party affiliated, I should say members of the Senate left. There are 16 Conservative senators. All the rest of the senators are independent, and we meet in three separate groups, sort of like caucuses, but not quite. And we are not whipped. We don’t have leaders. We are not acting at the behest of the government or the behest of the opposition or any opposition party. So we all bring to the bill a nonpartisan lens. And these reforms that have been happening in the Senate since 2015, 2016 have made the Senate, I guess I would say, more muscular. And so I think there was a somewhat cynical belief, not entirely valid in the before times, that the Senate was either a rubber stamp for the government or it would be obstructionist.

Jordan Depending on who was in power.

Paula Simons Yeah, depending on who’s in power and who held a balance of power in the Senate. Now that senators are free range, we, I think, have a little more credibility to push back. It is one of the Senate’s fundamental jobs to ensure that bills are constitutional. It’s our job to be a line of defence for the Charter of Rights and Freedoms. It’s our job to ensure that we don’t pass unconstitutional legislation. We’re sort of the last line of defence before you get to the Supreme Court. And so this, I think, is the Senate doing some of its best and most important work. We have here a piece of legislation that responds to a court decision that said the law was unconstitutional. We get to adjudicate whether the proposed correction is constitutional and whether it’s good public policy. And so the Senate can’t just defeat bills because they don’t like them, because they don’t like the government. But it is our job to use our power to defend the Charter of Rights that properly belong to all Canadians. And that’s what we’re doing.

Jordan Senator, thank you so much for this explanation, it’s been really revealing. Before you go, because you’ve just been walking me right up to this question for the last 3 minutes. Do you think this bill is unconstitutional?

Paula Simons Unlike many of my Senate colleagues, who are a lot of them former constitutional law professors and former judges, I’m a former journalist, so you can take that for what it’s worth.

Jordan That means you’re an expert on everything as far as I’m concerned.

Paula Simons I’ve written a lot about the Constitution and the Charter over my 30 year career as a journalist. It was sort of a passion point of mine. We have certainly heard testimony from lawyers and experts in privacy law, from Canadian Civil Liberties, B.C. Civil Liberties, the Office of the Information and Privacy Commissioner, the Canadian Bar Association. Those people who are much smarter than I am have all raised questions of whether this bill is constitutional. I am not a member of the Supreme Court, but I can tell you that the three judges from the Alberta Court of Appeal were three very smart women, and they all found the current law unconstitutional. One of them is my neighbour, and my husband said, well, why don’t you just go ask her if you think if she thinks that, I said no–just because you have a barbecue with an appeal court judge, you can’t go asking them questions like that, that gets everybody in trouble. Do I think it’s constitutional? I fear it is not.

Jordan Thank you so much for that answer and for showing us a little bit of how the sausage gets made.

Paula Simons Yeah. I have to say this is one of the great joys of having gone from a 30 year career in journalism to being in the Senate. All those years as a journalist, you want to find out what’s going on behind the other side of the door. Now I get to be on the other side of the door and occasionally report back into dispatches. And being in the sausage factory, sometimes that’s not always a pretty process, but it’s fascinating to see it happening.

Jordan We appreciate the glimpse. Thank you again.

Paula Simons Take care.

Jordan Senator Paula Simons from Alberta. That was The Big Story.

For more head to thebigstorypodcast.ca. If you have a reasonable general concern about this episode, you can find us on Twitter at @TheBigStoryFPN. You can write to us[click here!], or you can call us and speak legalese if you like. The phone number is 416-935-5935. You can also find us in all sorts of podcast players–Apple, Google, Stitcher, Spotify, and I learned a new one today. It just launched, it’s called Fathom. I checked and we’re already there, so go subscribe.

Thanks for listening. I’m Jordan Heath-Rawlings. We’ll talk tomorrow. Bye.

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