Information & Ethics Committee on Sept. 27th, 2017

[David Fraser]

Yes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Well, with respect to obtaining a warrant in real time when I want to cross the border, I'm trying to imagine that functioning in practice.

[David Fraser]

There is no doubt that there would be a delay—there is no doubt about that—although judges are standing by 24–7 to do telewarrants across Canada.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Perhaps not for violations of the Customs Act, though.

[David Fraser]

Perhaps not.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I think I'm out of time.

[The Chair, Conservative, Bob Zimmer]

Yes, you are.

Now we'll go to MP Blaney for seven minutes.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you, Mr. Chair.

Welcome, everyone.

For the record, I'd like to say that I'm very proud to have introduced Bill C-51, the anti-terrorism act, and I sure sleep better at night. This being said, I also want to acknowledge that the Liberals tabled Bill C-21, the entry/exit initiative, and I'm glad to see the Canadian Bar Association is recommending that the government implement it. We agree on that.

In light of my former capacity, one thing I'd really like to hear you make recommendations on to this committee—and I will begin with you, Madam Cherniak—is the oversight of CBSA. It is my understanding that currently there is a recourse within CBSA. I'd like to hear more on that. You seem to have some ideas on the oversight of CBSA, and also on the review mechanism and the way people who feel they have not been dealt with properly could exert their rights.

[Cyndee Todgham Cherniak]

Based on my experience as a lawyer, there are a number of mechanisms already. There is a complaints process, but there is not a lot of back and forth with the complainer in that process. Also, it's going to the CBSA; it's not going to someone else looking at the actions of the CBSA.

The second mechanism is the recourse directorate. When a contravention has occurred, the recourse directorate is looking for a decision of the minister to overturn that contravention, or if a NEXUS pass has been taken away, confiscated and cancelled, a review of that process.

If you haven't had a contravention, though, you can't complain about the CBSA looking at your cellphone or your laptop. If someone who has had his or her cellphone reviewed without it leading to anything and then writes a complaint to the recourse directorate, the recourse directorate would say they have no jurisdiction to look at this because there is nothing for them to review. There is no provision of the Customs Act that authorizes them to do this.

There needs to be some mechanism in place to review the narrative reports of the officers, and the complaints. You have access to the complaint process, to the CBSA, not the Privacy Commissioner. How many people have complained about their laptop and electronic device searches through that mechanism? How many people have complained in the course of recourse directorate reviews? Also, even getting a number of narrative reports written by CBSA officers...they are a treasure trove of information as to what happened with respect to a particular incident at the border. You will find information in there.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Do you have any recommendations, examples, on what good oversight would look like? We have other organizations that have oversight mechanisms. Some have said we could regroup or use the existing oversight mechanism that we have.

[Cyndee Todgham Cherniak]

One option would be that if an officer would like to search a cellphone, he would need to fill out a piece of paper and ask a supervisor to sign off. There would be a report written, not only about the decision to search an electronic device but what they are looking for on that device.

Let's just say that they are looking for the invoice concerning a particular camera that they think was purchased outside Canada. You could narrow what they are looking for. They can't go on a fishing expedition if, in that form, they need to state specifically what it is they would like to search. If what they want to search is, say, a lawyer's laptop, we would be able to stop them from looking for information about a particular client.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Isn't the issue that CBSA is overlooking its own activity? Should there not be an independent oversight body that would review those mechanisms after a certain level of review, as you've explained?

[Cyndee Todgham Cherniak]

I think it would be a great idea to have someone other than the CBSA looking at the CBSA activities, especially in connection with electronic device searches and solicitor-client privilege at the border. There needs to be someone other the CBSA policing their own.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Please, Mr. Klein.

[Kris Klein]

The problem with the Privacy Commissioner being the only body that really oversees CBSA right now is that under the Privacy Act there are a few shortfalls. One is that it's complaint-driven, so somebody has to actually file a complaint. The other thing is that we have a really low standard of the Privacy Act that allows government institutions like the CBSA to collect personal information on a very low standard. Right now the law says that the CBSA can collect any information so long as it relates to an operating program or activity. We heard the Privacy Commissioner say many times that this needs to be augmented. We need the test to be, is it necessary for an operating program or activity? I think if you increase the commissioner's powers, and if you fix the threshold by which government institutions can collect personal information, you're moving in the right direction.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you.

Mr. Geist.

[Dr. Michael Geist]

I just want to highlight the problem with a complaint-driven process in an environment when it's largely a black box to most individual users...about the availability of a complaint process as well as what the proper guidelines are. The concern, I would argue, from an individual's perspective, knowing that there's an ongoing record, is the prospect of being red flagged as someone who has launched a complaint. The risk inherent in sticking yourself out and saying you're going to launch a complaint is that even if it's well-founded, what are the repercussions longer term?

There's a reason in access to information requests. We ensure that there's anonymity for the requester so that there isn't that ability to identify. Any system where there is oversight that is at least in some way reliant upon complaints—and we've already heard about why a complaint-driven process raises some challenges—has to ensure that there is anonymity for the person launching the complaint because without that, I suspect most people will say the risk of repercussions longer term outweighs any benefits they might get from filing the complaint in the first place.

[The Chair, Conservative, Bob Zimmer]

Thank you, MP Blaney.

MP Trudel, for seven minutes.

[Karine Trudel, NDP, Jonquière, QC]

Thank you, Mr. Chair.

Thank you very much for your presentations. They were very interesting and instructive.

My question is for you all, and deals with complaints over searches. I read a Supreme Court of Canada report about it.

How can we strike a balance between the provisions of the Canadian Charter of Rights and Freedoms, our privacy and our freedom as individuals, on the one hand, and our security, on the other?

There has been a lot of talk about the fact that we have rights. Given all that, how can we keep things in balance?

I would like to hear your opinion and your ideas about it.

[David Fraser]

I'm happy to start.

In the last number of years we've clearly have had a recognition from the Supreme Court of Canada of the very high value of privacy that is existent in these devices. They are at the very high end of the scale. You can get a search warrant to search a house, and if it contains a computer, you need an extra search warrant to go into that computer. We actually have a recent case from the Supreme Court of Canada which recognized that there are circumstances where maybe that can be pierced in a little way, and that's the search incident to arrest. That's where, by analogy to the kind of security imperatives at the border, you have officer safety issues, you have the destruction of evidence issues, things like that, and the Supreme Court of Canada said ordinarily that you can never get into this thing without a warrant, but in a search incident to arrest we'll let you in there, but only in a very careful, very controlled way.

That may be in fact the middle ground, the documenting of exactly why you're doing it, what you're doing, and how you're doing it. I think part of that also is it's too easy for the CBSA to get into these phones. They have their policies and they have their procedures, but according to the law, as they seem to understand it, a CBSA officer can go looking through a young woman's phone just because she came from Cuba and there may be bikini pictures on it. There is no threshold in the law, as they understand it, to allow them to do that. There needs to be a balance, but it certainly doesn't need to be down here. It needs to be higher, up here.

[Dr. Michael Geist]

I would start my response by noting—I think it was Kris that noted—that the courts often say that you have no reasonable expectation of privacy. I think part of the problem here is that, if we are reliant on a reasonable expectation of privacy, but many people have in a sense been taught that you should not expect any privacy when you're crossing a border—I don't think that's the right thing to have been taught. However, from an experiential perspective, that is how many people regard that experience. Then it is a bit of a self-fulfilling prophecy, if we're reliant on a reasonable expectation of privacy, but people don't expect any, well then they say, “Sorry, you got exactly what you expected.”

From my perspective, one of the starting points for solving this issue is to leave out the privacy side and let's establish reasonable expectations about what people will encounter when they cross the border. Part of that depends upon far better disclosure and information. We've already seen, in some of the questions here where there is confusion, even after you've heard from the CBSA or other officials about what the policy happens to be.

If you're getting the actual officials in here and questioning them and you're still not sure about what is actually taking place, Canadians can hardly be blamed for not having any real understanding about what the standards are, much less the fact...the idea that we ought to be separating what Canadian officials are doing and what U.S. officials are doing. When we have U.S. officials on Canadian soil, many people struggle to distinguish between what's taking place because it's all happening here, at the Ottawa airport, or at Pearson, or wherever it happens to be, even if the officials come from different places.

Even before we say let's set out and fix the law, we have to begin, I think, to establish reasonable expectations for people, which must surely come from far better disclosure and clarity about what is permitted and what is not. I think that will allow for a much more robust debate to ensure that people do sleep well at night, when it comes to the kinds of standards that we have about protecting our borders, but also sleep well at night knowing that the next morning, when they're going to the airport, they're not going to be subject to an invasive search that seems inappropriate.

[Karine Trudel, NDP, Jonquière, QC]

Earlier, you talked about Bill C-21. I believe that the bill will be voted on this evening in the House. You talked about preclearance, broader powers, and the need to establish parameters.

Can you give us more details about it and tell us what you think of it?

[David Fraser]

Sorry. Are you referring to Bill C-21 or Bill C-23, the preclearance act?

[Karine Trudel, NDP, Jonquière, QC]

I am talking about Bill C-21.

[David Fraser]

If you're voting on it, there may not be a whole lot that we can offer.

The element that I focused on in the comments and also in the submission relates to what seemed to be an expansion of CBSA and general Canadian government powers with respect to Canadians who were exiting the country. CBSA has traditionally been focused on keeping threats out of Canada and people who aren't authorized to be here and otherwise.

There seems to be an additional spreading of their attention to Canadians who are otherwise engaged in lawful activity, which can include leaving the country. The same powers that they're looking at, which they already have with respect to people and goods entering the country, they're looking to have for goods that are leaving. We don't see that that's necessarily proportional.

It's one thing to keep the theoretical bad guys out of Canada and CBSA is on the front lines of that. However, regarding the threat of things leaving Canada, well, you can unlawfully export a whole bunch of things, which I don't think requires the same commensurate power. There needs to be a proportionality. They shouldn't have the ability to pull any Canadian standing in a departure lounge into the back of the airport and interrogate them, where if they don't answer a question, they can be charged with obstruction. That seems to me to be a disproportionate response.