I'll begin by discussing preclearance and the thresholds for searches.
Currently, electronic devices are considered goods in the context of the Canadian border and in preclearance areas at Canadian airports, and there are no statutory safeguards to protect them from arbitrary search by border agents. Preclearance areas are those designated zones in some Canadian airports where U.S. agents have been empowered to process U.S.-bound travellers.
Bill C-23, an act respecting the preclearance of persons and goods in Canada and the United States, was introduced last June and is intended to repeal and replace the existing act from 1999. Bill C-23 contemplates that preclearance areas will be expanded beyond airports and could be established at rail, marine, and land border crossings. It expands the powers that U.S. agents have and, in our view, unjustifiably limits the rights of travellers in the preclearance areas. We've expressed our concerns with this bill in testimony to the committee on public safety and national security, and we'll make our written submission available to this committee as well. Under both the existing and the contemplated preclearance law, a traveller cannot be arbitrarily strip-searched. An agent must have reasonable grounds to suspect in order to have the legal authority to detain the traveller for a strip search.
The OPC has recommended that an identical threshold for the searching of digital devices be written into Bill C-23. In a letter to the committee on public safety, the OPC asks 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.” The BCCLA endorses this position, as well as the OPC's further recommendation to make a consequential amendment to the Customs Act to similarly protect the privacy of Canadians who are returning home through Canadian borders. We agree with the OPC that “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devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.” Interestingly, the interim policy documents of the CBSA do appear to acknowledge that it is not appropriate to classify digital devices as “mere goods”. A CBSA operational bulletin from 2015 does not provide for suspicionless searches, but rather states that searches may be conducted if there are “a multiplicity of indicators” that ”evidence of contraventions” may be found on the digital device. We support the OPC's call to codify this policy through legislative amendments. The law should require a border agent, whether CBSA or American, in a preclearance area to have reasonable grounds to suspect that a contravention of law has occurred before they may lawfully search an electronic device. Such legislation would provide legal clarity and transparency to Canadians while also giving existing policy the force of law. It would also support the recognition by the Supreme Court of Canada that the search of electronic devices is an extremely privacy-intrusive procedure.
Finally, I have just two short points. The first is about solicitor-client privilege. This is a matter that the Canadian Bar Association flagged for the committee on public safety, and it applies to ordinary border crossings as well as preclearance areas. Neither we nor the CBA can tell whether Canada has a defined policy about claims of privilege over documents or electronic records on our digital devices. As this privilege is fundamental to our legal system, we want the government to shape a policy that recognizes solicitor-client privilege and entitles travellers to make this claim of privilege over physical or electronic information when they are crossing the border.
Secondly, we'd like to draw your attention to our recommendation to curtail the powers of U.S. officers to strip-search travellers in Canada under Bill C-23. Last month at the committee on public safety, we strenuously objected to conferring any power on U.S. preclearance officers to perform strip searches in preclearance zones in Canada. Under current law, a U.S. agent has no legal authority to strip-search anybody in Canada. If he or she has reasonable grounds to suspect that a strip search is necessary, a Canadian agent must agree that such grounds exist, and only then can they perform that search. We maintain that only Canadian officers should have the power to perform strip searches in Canada, and only in limited circumstances, according to law.
That concludes our prepared remarks. We look forward to your questions.