Senate committee rejects Gov. threshold for border cell phone search bill

The Senate's National Security and Defence Committee has pushed back against the government's effort to establish a legally novel threshold for the search of personal digital devices at Canadian ports of entry. Monday the committee voted to amend Bill S-7 to raise the bill's threshold for a search from "reasonable general concern" to the more widely used "reasonable grounds to suspect." Mobina Jaffer proposed the amendment, referring to her own experience with the border in doing so. After 2001, Jaffer said, she experienced an increased amount of racial profiling at border crossings being sent routinely for secondary screenings when travelling, only to be told by border officials after producing the green passport of parliamentarians that she had been randomly selected. "What would happen if I didn't have a green passport? What happens to my family who don't have green passports?" Jaffer said. "What happens to Muslim, Black, and brown people?" Gwen Boniface said that the government's proposed threshold was not in fact a "new" one, but merely codifies in law the threshold that border officials have been operating under for some time, as mandated by the Alberta Court of Appeal in the case R v. Canfield. The case was an appeal of a criminal conviction for child pornography that resulted from the search of a digital device at the Edmonton airport. In the decision, the court determined that the search of digital devices under the Customs Act – which governs the authorities of border officers – violated the right to be free from any and all unreasonable searches and seizures under the Canadian Charter of Rights and Freedoms. In the decision, however, the court declined to establish the threshold itself, and gave Parliament a year to “craft a solution that addresses and balances the various competing interests.” On Monday Boniface said she "worries somewhat" that "we are now putting personal devices on the same line as body searches." "That concerns me that that's what we're expecting from a public safety perspective." In order to conduct a strip search, a border official must have "reasonable grounds to suspect" that the person they want to search has violated the law. Public Safety Minister Marco Mendicino had made the same argument to the committee last month. However, civil liberties advocates that appeared before the committee pointed out that while that higher threshold is used for strip searches, it is also used for the searching of physical mail, and argued that there should not be a lower threshold for searching a digital device than a piece of mail. Speaking on behalf of the government, Marc Gold argued that the reasonable general concern threshold is establishing a threshold where none existed before, and said he would therefore oppose the motion. Canada Border Services Agency Director General Julia Aceti told the committee in response to a question from Gold that many of Canada's peer nations have no threshold at all for the search of personal digital devices, treating them as goods like any other. Pierre Dalphond, who also supported Jaffer's amendment, said that the Supreme Court of Canada has decided that a sniffer dog can only sniff a traveller's luggage if an officer has grounds to suspect a crime. "The agent must, at least, have reasonable grounds to sniff in my computer," Dalphond said. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca.

Senate committee rejects Gov. threshold for border cell phone search bill

News | June 13, 2022

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Senate committee rejects Gov. threshold for border cell phone search bill

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