OTTAWA — The Senate has passed an amendment to Bill S-7 that raises the standard under which officers can search cellphones at the border, as the bill now makes its way to the House of Commons.
It will now be up to the Liberal government to either accept the Senate’s changes or reverse them during the legislative process in the House. A spokesperson for Public Safety Minister Marco Mendicino didn’t directly answer when asked what the government’s plans are.
Sen. Paula Simons said in an interview that the Senate sent a “very strong, united message about our grave concerns about the reasonable general concern standard. It is now up to the government to consider that.”
Bill S-7, a government bill first introduced in the Senate, amends the Customs Act to clarify the circumstances under which border officers can search personal digital devices like cellphones and laptops.
When it was introduced, the legislation created a new standard of “reasonable general concern” for device searches at the border. However, legal experts pointed out at committee that “reasonable general concern” is a standard unknown in Canadian law, and warned it would face constitutional challenges.
They also said it was unclear what it means. David Fraser, who appeared on behalf of the Canadian Bar Association, told senators “your guess is as good as mine, but it seems pretty close to whether the officer’s spidey sense is tingling,” while Lex Gill, a research fellow at the University of Toronto’s Citizen Lab, said it amounts to a “fishing expedition.”
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Civil liberties groups told senators that the standard was too low, and should be raised to the same one that covers physical mail: “reasonable grounds to suspect.”
The Senate national security and defence committee did just that on June 14, voting in favour of an amendment to change the standard. The Senate as a whole accepted the amendment and the bill passed third reading in the Senate on Monday evening. It must now go through the legislative process in the House of Commons, where it could be amended again.
Simons said the senators on the committee “did very thorough work” and then came to a “considered, non-partisan decision.”
In the chamber, not all Senators were in favour of the amendment, but “the Senate as a whole concurred. That carries some weight, or at least it ought to carry some weight,” Simons said.
On Monday, Sen. Marc Gold, the representative of the government in the Senate, was among those who argued in favour of the original reasonable general concern standard. “The government does worry that the ‘reasonable grounds to suspect’ threshold may unduly limit the ability of border officers to interdict illegal activity and detect contraband, including material depicting the exploitation of children,” he said.
Gold also pointed out the bill puts in place a standard where there is currently none. The government introduced Bill S-7 after courts found that having no threshold is unconstitutional.
Asked whether the Liberal government plans to change the standard back to reasonable general concern, Mendicino’s director of communications, Alexander Cohen, pointed to an earlier statement from the minister’s office.
“Regardless of the standard that is ultimately enacted, Section 8 of the Charter will continue to provide the necessary oversight required for all searches,” that statement said. “We intend to work with our colleagues across the Senate and the House to ensure that the threshold legislated is appropriate and practically useful in terms of detecting contraband.”
Section 8 protects Canadians against an unreasonable search and seizure.