Collecting and sharing important information at the border is necessary for the security of Canadians, provided it’s done in a way that protects our individual privacy rights and freedoms. That’s the gist of a letter from the Privacy and Access Law, Commodity Law, Customs and Trade Law, Criminal Justice Sections and the Ethics and Professional Responsibility Subcommittee of the Canadian Bar Association in response to Bill S-7, An Act to amend the Customs Act and the Preclearance Act, 2016.
The letter in part repeats some comments the CBA made in 2017 on proposed changes brought by former Bill C-21 and former Bill C-23. As the most recent letter notes, “dependence on technology has become even more entrenched in our personal lives since 2017, and reliance on digital tools to weather the challenges of the COVID-19 pandemic accelerated that process further.” The need for balance between security and privacy is more important now than it was five years ago.
Nowadays many people store personal information on their devices that date back to the purchase of the phone or earlier, including long-term geo-location data, call history, text messages, emails, photos, appointments, physical activities, financial details, shopping history and much more. Journalists, lawyers or doctors, for instance, are also likely to have highly sensitive information about other people stored on their device or accessible via a cloud service.
The new, lower threshold of “reasonable general concern” for border searches of a traveler’s personal electronic device is “too vague to be an approSpriate threshold requirement,” say the CBA Sections, adding that it has not be used to justify searches or employed by Canadian courts. “Absent further clarification, it is difficult to know how it will be applied and whether its application by border security officers will be Charter-compliant.”
Courts are trying to keep up with technology. The Supreme Court, the CBA letter says, “has clearly established that the greater the intrusion on privacy, the greater the constitutional protections and a greater justification for the search is required. And while there may be a diminished expectation of privacy at the border, this expectation is not completely extinguished.”
The CBA Sections consider Bill S-7’s effect “not consistent with the existing caselaw regarding searches of electronic devices, given the very high privacy interests in their contents. The low threshold set out in S-7 does not offer any meaningful protection to the acute privacy interests of travelers.” The Senate has amended the Bill to raise the threshold to “reasonable grounds.”
Solicitor-client privilege
This fundamental element of the Canadian legal system must be protected at the border, as well as when Canadian lawyers and their clients travel to the United States. The Sections recommend creating a working group to develop a binding policy on solicitor-client privilege that is public and accessible. “More detailed guidance should be available to CBSA officers and the public, including lawyers, to ensure safeguards are in place to avoid unauthorized access to documents protected by solicitor-client privilege,” the submission reads.
At the moment there is no specific provision in the Customs Act, regulations or Bill S-7 deals with solicitor-client privilege, and there is some concern that CBSA might apply s. 153 of the Customs Act if a lawyer or client does not permit the examination of solicitor-client documents. This section “gives CBSA authority to charge an individual (or corporation) with avoiding compliance with the Customs Act.”