Paula Simons: The government is trying to create a new legal threshold to authorize invasive search

I have a "reasonable general concern" that some travellers could be targeted for phone and computer searches based on their political views.

By: Paula Simons

What is a reasonable general concern?

That’s not a rhetorical question. I really don’t know the answer. I’m not sure anyone else does, either.

And that’s exactly the problem with Bill S-7, a new piece of government legislation, which amends both the Customs Act and the Preclearance Act.

Bill S-7 set a new standard to allow border services officers to search through our cellphones, laptops, tablets, Apple Watches and other personal computers. If the bill passes, it will allow officers who feel a “reasonable general concern” to search through the emails, documents, texts, instant messages, photos or videos stored on our digital devises, to look for evidence that we may have violated customs regulations.

Reasonable general concern. Or, as it says in the French-language draft of the bill, “des préoccupations générales raisonnables.”

It’s an absolutely novel legal threshold. That phrase, be it in English or French, doesn’t appear anywhere else in Canadian criminal or civil law. It’s not a standard borrowed from any other country. It’s a brand new legal test to authorize an invasive search of your most private personal records and correspondence.

A reasonable concern, one might intuit, is a lower standard than a reasonable suspicion, because a concern is less grave, less specific, than a suspicion.

But a general concern?  A general preoccupation?

That sounds even more vague, more subjective, than a good old- fashioned hunch or inkling.

It seems counter-intuitive, to put it mildly, to create a lower, broader standard to search our private data on our private devices than to search our conventional mail, or our suitcases, or our car trunks. Yet that is exactly what Bill S-7 does.

How did we get here? The answer is an ironic one.

Back in 2020, the Alberta Court of Appeal ruled unanimously that portions of the Customs Act were unconstitutional.

The court found the act violated the protection against unreasonable search and seizure, because it allowed for what the court called “suspicion-less and unlimited” searches of our personal digital devices.

That violation, held the court, could not be saved by section 1 of the Charter, because it allowed unfettered and unrestricted access to people’s most personal and intimate information, and because it allowed the state almost unlimited latitude to dig around in the what the court called our “biographical core of identity.”

For decades, the Customs Act had been broadly interpreted in a way that treated the documents, emails, texts, photos and videos stored on our personal computers as though they were “goods” being brought into the country. But those rules, the court noted, were created long before the invention of the smartphone or laptop. The time had come, the appeal panel said, to create a proper legal threshold to authorize a search of a digital device at the border.

The greater the intrusion, added the judges, the greater must be the justification, and the greater the degree of constitutional protection.

Now, the court didn’t specify what it thought the right threshold should be. It left that to the government. But it suggested it might be something akin to “reasonable suspicion” — as opposed to the more stringent standard of “reasonable and probable grounds,” the test required to get a search warrant.

Instead, the government created a brand-new threshold: reasonable general concern.

It’s a peculiar situation, because the Customs Act already has an accepted recognized search threshold baked into its language. In order for a border services officer to search a person, to search mail, to open and search a package, that officer must “suspect on reasonable grounds” that something is hinky.

That still gives pretty broad latitude for the Canadian Border Services Agency to search someone or something. But at least it’s a time-tested standard. Why invent a new and looser one, to search the gadgets that hold so many of our personal and professional confidences?

There is a degree of political risk in criticizing Bill S-7 because it has been championed as a way to fight child pornography. And I’m leery, in this fraught political climate, of being smeared as someone who is soft on child porn.

But most child porn is not “imported” into this country physically. It’s bought and sold and shared online. Between May of 2017 and May of 2022, border services officers seized just 392 examples of child pornography carried into the country in digital form: some of that was carried on phones and computers, some on CDs, DVDs, hard drives and USB sticks.

Child pornography is a scourge, especially when it is created by abusing real children. But this amendment of S-7 will not stem the tide of images being shared via the internet.

And this bill isn’t just about child pornography. Prohibited items under the Customs Act include hate propaganda, obscene material, treasonous or seditious material — and even reprints of Canadian copyrighted works.

That leaves me with what you might call a reasonable general concern that some travellers could be targeted for phone and computer searches based on their political views. Or rather, based on what a border officer’s “general concern” about their political views might be. And I don’t think it requires much creativity to imagine how much more vulnerable you might be to such a search if you were, for example, Black, or Muslim, or Chinese, or Indigenous or LGBQT+.

Your phone and laptop can also be searched if a generally concerned officer is looking for receipts or banking information stored on your devices that might show you bought more things abroad than you’ve actually declared.

If officers discover what may be evidence of a criminal offence — an offence that has nothing to do with the customs act — that evidence may be provided to local police, who may then conduct their own criminal investigation and consider possible criminal charges. That could be a boon to law enforcement — but not to civil liberties.

Creating this novel threshold for searching our personal computers won’t do much to stop child pornography or child sex abuse. But it will put the privacy rights of thousands of Canadian travellers in real jeopardy, opening the door to emotionally intrusive and potentially embarrassing searches of our banking records, our health data, our dating histories, our photographs, our professional confidential documents.

This “novel” legal threshold is going to create confusion, not clarity, for many border officers. And it will undoubtedly become the subject of passionate litigation almost as soon as it’s applied.

My senatorial inbox is jammed these days, with thousands of emails from people who’ve fallen prey to what have been called thought-scams, desperate letters from people who are convinced that Justin Trudeau is either a puppet of the World Economic Forum, or an incipient dictator, or a replicant. So I don’t want to suggest that there’s anything darkly nefarious about S-7. I don’t think it’s part of an Illuminati plot to steal our liberties. But its language is needlessly sloppy. Why waste time dreaming up a novel search threshold, one that will cause pointless perplexity at the border, tie up our courts, and play right into the worst paranoid fantasies of conspiracy theorists and hate-mongers?

The Honourable Paula Simons is an Independent Alberta senator. Before joining the Senate, she spent 30 years working as a radio producer, news reporter and political columnist.

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