Bill S-7: An Act to amend the Customs Act and Preclearance Act, 2016

Tabled in the Senate, May 10, 2022

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill S-7, An Act to amend the Customs Act and Preclearance Act, 2016, for any inconsistency with the Charter. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill S-7 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

Bill S-7 would introduce amendments to the Customs Act to revise its legal framework governing the examination of personal digital devices at the Canadian border, and to authorize the making of regulations in respect of those examinations. The proposed amendments were informed by the decision in R. v. Canfield (2020). In that decision, the Alberta Court of Appeal ruled that the current Customs Act authority violates section 8 of the Charter (right to be secure against unreasonable search or seizure) because it imposes no legal limits, such as a threshold, on searches of personal digital devices at the border. Other Customs Act amendments include updating provisions in relation to obtaining a search warrant by means of telecommunication and the penalty for hindering an officer enforcing the Customs Act.

Bill S-7 also would make amendments to the Preclearance Act, 2016 sections governing the examination, search and detention of documents stored on a personal digital device in a preclearance area or preclearance perimeter. In addition, the amendments would authorize the making of ministerial directions and regulations related to those authorities, and would allow for the seizure of documents stored on a personal digital device that has been detained.

Customs Act Amendments

Examination of Documents on a Personal Digital Device

The Bill would introduce a separate legal power for designated officers to 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 that is in the custody or possession of a traveller. To exercise this power, the officer must have a reasonable general concern that there has been or might be, in relation to the documents, a contravention of the Customs Act or its regulations or of the provisions of another Act or regulations governing the importation or exportation of goods, or that the documents may afford evidence of these types of contraventions. In addition, the officer must comply with any regulations that set out how to conduct an examination of a personal digital device. The new legal rules for examining documents contained within a personal digital device do not apply if the device is being imported or exported solely for: sale; an industrial, occupational, commercial, institutional or other similar use; or any other use prescribed in the regulations.

Section 8 of the Charter protects against unreasonable search and seizure. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy by the state. A search or seizure will be reasonable if it is authorized by a law, the law itself is reasonable, in the sense of striking an appropriate balance between privacy interests and the state interest being pursued, and the search is carried out in a reasonable manner.

The examination of a personal digital device will engage section 8 of the Charter when it interferes with a reasonable expectation of privacy. The following considerations support the consistency of the proposed amendments with section 8. Privacy expectations are generally lower at the border. The amendments would introduce legal limits on the examination of personal digital devices at the border. To examine documents stored on such devices, the officer must be satisfied that the new proposed threshold of a “reasonable general concern” is met. Reasonable general concern is an objective standard that would require that there be a sufficient indication of a potential breach of a border law before an officer would be allowed to examine a digital device. This means that examinations into the contents of personal digital devices may no longer take place on a no-threshold basis. In addition, the new threshold to examine the devices can only be relied upon when the purpose of the search is tied to a regulatory purpose at the border. In other words, the examinations must be conducted for the purpose of helping to administer or enforce border laws and not for a criminal law purpose, which would be subject to a higher search threshold.

Obtaining a Search Warrant by Means of Telecommunication

The Bill would enable an application for a search warrant under subsection 111(1) of the Customs Act to be made by telephone or other means of telecommunication in accordance with section 487.1 of the Criminal Code, with any necessary modifications. To obtain a telewarrant (a warrant applied for by means of telecommunication) under section 487.1 of the Criminal Code, a peace officer must believe that an indictable offence has been committed and that it would be impractical to appear personally before a justice to make an application for a warrant.

The telewarrant amendment may engage section 8 of the Charter. The following considerations support the consistency of the proposed measure with section 8. The requirement under section 8 for a search or seizure to be reasonable can be met by obtaining authorization from a justice or judge in advance. The telewarrant amendment would keep the requirement for judicial approval of search warrants applied for by means of telecommunication. The amendment would not change the existing requirement that there be sufficient objective grounds for the warrant to be granted.

Amendments to Search Warrant Provision

The Bill would introduce several minor amendments to the English version of the search warrant provision under subsection 111(1) of the Customs Act. For instance, the amendments would clarify that the type of items that may be seized from a building, receptacle or place under the search warrant could include “a record or document in any form”. These amendments would align the English version of subsection 111(1) with the existing French version.

The amendments to the search warrant provision engage section 8 of the Charter. The following considerations support the consistency of the amendments with section 8. The amendments would preserve the requirement for the search and seizure to be judicially authorized in advance of the search based upon sufficient objective grounds. This requirement ensures the reasonableness of a search and seizure carried out under subsection 111(1) of the Customs Act.

Penalty for Hindering an Officer

The Bill would make a breach of section 153.1 of the Customs Act (hindering an officer) a hybrid offence. This amendment would make the penalties the same as those that exist for a similar offence under the Immigration and Refugee Protection Act. The new penalties would consist of: (1) a maximum fine of $10,000 and/or a maximum term of six months imprisonment (on summary conviction) or (2) a maximum fine of $50,000 and/or a maximum term of five years imprisonment (on indictment). Currently, a contravention of section 153.1 is only punishable by way of summary conviction and is subject to a minimum fine of $1,000 and maximum fine of $25,000 and/or a maximum term of 12 months imprisonment.

Section 7 of the Charter guarantees to everyone the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. These principles include the requirement that laws which engage these rights must not be arbitrary, overbroad or grossly disproportionate. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that is so broad in scope that it includes some conduct that bears no relation to its purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

As the new penalty provision includes the possibility of imprisonment, it engages the right to liberty under section 7. In reviewing the provision, the Minister of Justice has not identified any potential inconsistencies of the measure with the principles of fundamental justice under section 7. The scope of the offence is tailored to its objective, and upon conviction, a judge will have discretion to impose a fit and appropriate sentence.

Preclearance Act, 2016 Amendments

Examination, Search and Detention of Documents on a Personal Digital Device

The Bill would create separate legal powers for U.S. preclearance officers conducting preclearance in Canada of travellers and good bound for the United States to examine, search and detain documents (including emails, text messages, receipts, photographs or videos) stored on a personal digital device. The device must be in the custody or possession of a traveller bound for the United States and also, in the preclearance perimeter context, be one that is to be loaded onto a conveyance intended to be used to transport travellers or goods undergoing preclearance. These powers would apply within a preclearance area and for the purpose of conducting preclearance, and also within a preclearance perimeter for the purpose of conducting preclearance or of maintaining the security of or control over the border between Canada and the United States. To exercise these powers, the preclearance officer must have a reasonable general concern that a law of the United States on importation of goods, immigration, agriculture or public health and safety has been or might be contravened in respect of the documents or that the documents may afford evidence of these types of contraventions. In addition, the preclearance officer must comply with any regulations or ministerial directions that are made governing the examination, search and detention of documents on a personal digital device. The new legal rules for examining, searching and detaining documents contained within a personal digital device do not apply if the device is bound for the United States solely for: sale; an industrial, occupational, commercial, institutional or other similar use; or any other use prescribed in the regulations.

The examination, search and detention of documents on a personal digital device will engage section 8 of the Charter when it interferes with a reasonable expectation of privacy. Similar considerations to those identified in relation to the new Customs Act examination authority support the consistency of the proposed measures with section 8.

Seizure of Detained Documents on a Personal Digital Device

The Bill would amend subsection 34(1) of the Preclearance Act, 2016 to permit a preclearance officer, in a preclearance area or preclearance perimeter, to seize documents stored on personal digital devices that have been detained under the new powers introduced by the Bill.

The seizure amendment engages section 8 of the Charter. The following considerations support the consistency of the proposed measure with section 8. The seizure of documents stored on a personal digital device would be subject to the new general reasonable concern threshold for detaining the documents. As such, the seizure would only be authorized if there continued to be a reasonable general concern that a law of the United States on importation of goods, immigration, agriculture and public health and safety has been or might be contravened in respect of the documents, or the documents may afford evidence of these types of contraventions.