Mr. Chair and honourable members, we appreciate your invitation and are very pleased to be here today on behalf of the privacy and access law section, immigration law section, and commodity tax, customs, and trade sections of the Canadian Bar Association, as well as the Canadian Corporate Counsel Association and the ethics subcommittee of the policy committee of the CBA board, to present views on the privacy of Canadians at airports, borders, and travelling in the United States.
The CBA is a national association of 36,000 lawyers, law students, notaries, and academics. An important aspect of the CBA's mandate is seeking improvements in the law and the administration of justice. This is what brings us before you today.
My name is David Fraser. I'm an executive member of the privacy and access law section. I'll be representing the CBA sections that prepared our submissions to the committee on this issue, along with Cyndee Todgham Cherniak, who is here with me today. Cyndee is an executive member of the commodity tax, customs, and trade section.
Some information collection is necessary, and certainly expected, at the border; there is really no doubt about that. Our principal concern and the concern of the Canadian Bar Association is mainly about where the line is drawn and where the line is moving and how the fundamental principles in our charter may be left behind as this line is moved. We have commented in our document on both Bill C-21, related to Customs Act amendments, and Bill C-23, related to pre-clearance.
In Bill C-21, we're very concerned about open-ended discretion being given to the CBSA to examine people leaving Canada.
In Bill C-23, we're very concerned about what may be a general disregard of the charter and Canadian norms, when non-Canadian law enforcement officers are empowered to conduct invasive examinations in Canada. We're concerned about broad powers to interrogate those who choose to withdraw from entering the United States. We're concerned that U.S. officers can, for example, perform a strip search in Canada over the objection of a CBSA officer. We're concerned generally about a lack of accountability.
Obviously, electronic devices and the privacy of the contents are of great concern. As lawyers, we're seeing and hearing about searches of digital devices becoming much more commonplace. The CBSA is essentially using suitcase law, developed before the 1980s, to justify a massive intrusion into digital information.
The Customs Act provisions that are at issue were drafted before the 1980s, before laptops, before smart phones, and before thumb drives. In the meantime, the Supreme Court of Canada has said very strongly that all Canadians have an extremely acute privacy interest in the contents of computers, laptops, and smart phones. This has apparently fallen on deaf ears within the CBSA. People travel with a huge quantity of personal information, and the CBSA say that they can go through it legally on a whim. They say they don't, but the law, if applied as they say it is, would allow them to do it on a whim. We say this is likely unconstitutional and needs to be very closely examined by Parliament.
We also have concerns about information sharing, in that the devil is in the details: questions about information sharing between administrative agencies and law enforcement, between one law enforcement agency and another, between federal and provincial agencies, between private companies and governments, and vice versa. We think this needs to be scrutinized very closely, particularly as this information is moving around at a rapid pace. Then you overlay on top of this information sharing between governments, which of course is becoming even more common and something we need to be very concerned about.
My colleague Cyndee will introduce the balance of the issues that we've addressed.