New Border Search Legislation in Canada: 8 Questions

1.?????What the heck is “reasonable general concern”??

It is the new threshold for Canadian border agents for the search of personal digital devices (e.g. laptops, mobile phones).?

2.?????Where does it come from?

Bill S-7, which amends s. 99(1)(a) of the Customs Act. The bill was introduced in the Senate on 29 March 2022. The text of the bill is available?here.

3.?????Why is the federal government doing this?

The legislation is in response to the Alberta Court of Appeal decision in??R v Canfield.?Canfield?was a 2020 decision which declared s. 99(1)(a) of the Customs Act?unconstitutional because the statute had no criteria for the search of personal digital devices (PDDs) at the border.?Historically, customs officers “read into” that provision the ability to search PDDs even though the provision only allowed border agents to “examine any goods that have been imported and open or cause to be opened any package or container or imported goods”.??A subsequent appeal to the Supreme Court of Canada was denied, leaving the federal government to address the issue. The federal government was given a year to do so but, in 2021, the Court of Appeal extended the timeframe until 28 April 2022.

4.?????What does the legislation say?

Bill S-7 adds a new s. 99.01 to the Customs Act. Subsection 1 of the bill in part reads:?

“At any time up to the time of release or at any time up to the time of exportation, an officer… may, in accordance with the regulations, examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern?that…" [there has been a violation of a Canadian law.]

5.?????What does this amendment do?

It creates a threshold for searches of PDDS at the border that didn’t exist before. All that the court in?Canfield said was that?no?threshold was unconstitutional and that?a?threshold for border searches was needed. This legislative amendment is what the federal government is providing in response.?

6.?????What does “reasonable general concern” even mean?

Your guess is as good as anyone’s. It’s not “reasonable grounds”; it’s not “a reasonable suspicion” and it’s not a “general suspicion”. “Concern” is a term that has a lot of room for, let’s just say, interpretation. No one’s seen this as a standard before. Such language has never been, as far as I know, used in previous Canadian statues.?

7.?????Is this new standard constitutional?

Supreme Court of Canada caselaw has established that searches of laptops and mobile phones are an intrusion on privacy. One might venture – given the contents of what we put on our devices today - that it can be a significant intrusion on privacy. Future legal decisions will have to tell us if this new threshold offers any privacy protection for travellers at the Canadian border.?I suspect there will be a lot of wrangling over what "reasonable general concern" means and whether it's constitutional.

8.?????Does this change provide greater privacy protection?

Doubtful. Assuming Bill S-7 is enacted as presented, an officer of the Canadian Border Security Agency will have to have a "reasonable general concern" before he/she/they can search through someone's PDDs at border entry points. This "new" threshold is a vague term that still gives border agents a lot of latitude. Historically, privacy protection under the Canadian Charter of Rights and Freedoms has been weaker at the border and this legislative development likely won't change that.