45 Sheppard Avenue East ◦ Suite 900 ◦ Toronto, Ontario ◦ Canada M2N 5W9 Tel: (416) 825-0650 ◦ Fax: (416) 850-1402 ◦ Email: info@JafariLaw.ca SUBMISSION ON Bill S-7,

An Act to Amend the Customs Act and the Preclearance Act, 2016 Standing Committee on National Security and Defense Sent via email to: SECU@parl.gc.ca June 9, 2022 Honorable Senators; RE: S7- Proposed amendments to the Customs Act and Preclearance Act I am a lawyer in the province of Ontario and founded Jafari Law 10 years ago – a private law firm focusing in the area of citizenship and immigration law. Our office serves mostly racialized and vulnerable individuals and organizations in their efforts to explain and prove their circumstances to immigr ation officials.

In my personal capacity, I have also worked with many communities and legal organizations as a volunteer advocate, and mentor including but not limited to: serving as an executive on the Ontario Bar Association’s Citizenship and Immigration

section for 6 years; serving as an executive on the Ontario Bar Association’s International Law

section for 4 years; serving on the board of the Canadian Muslim Lawyer’s Association (“CMLA”) for 5 years; serving on the board of the Iranian Legal Professional of Ontario for 1 year, serving as the Election Chair of the Iranian Canadian Congress for 3 years; and serving on the By- Law Revision committee of the Iranian Canadian Congress.

I also teach in the areas of citizenship and immigration law, both to community members through public education seminars, as we ll as to colleagues through continuing professional development seminars run by the Canadian Bar Association, Ontario Bar Association, and the Immigration Education Alliance. I had the honor of testifying at the House and Senate Committees reviewing the previous set of amendments to the PreClearance Act, Bill C-23, on behalf of the CMLA. I also had the honor of testifying before your committee, on June 6, 2022, also on behalf of the CMLA .

The present submissions are in my personal capacity and supplement the submissions made therein. I would like to highlight several key issues with the proposed amend ments, starting with the one that has received the least attention from other witnesses: - Designation of the offence of “hindering an officer” a hybrid offence; - The unprecedented lowering of the legal threshold for searches of personal digital devices; - The lack of safeguard around solicitor-client privileged data contained therein; and

- The lack of guidelines and restrictions on the collection and retention of data collected. I will focus my submissions on ly on points not highlighted by other witnesses and endor se the submissions of my colleagues on many points, as noted below. 4. Designating “hindering an officer” as a hybrid offence Something that has gotten surprisingly little attention from witnesses before this committee is the immigration consequences of the proposal to designate the offence of “hindering an officer” pursuant to

section 153.1 of the Customs Act, (the “Offence”) as a hy brid offence. While I welcome the lowering of fines on

summary charges under , I am extreme concerned about the introduction of indictable offences for charges under this

section for the following reasons. First, the government has not provided any data on the frequency of charges under this

section of the Customs Act, nor any reasoning as to why increased penalties would be warranted. Instead, the increased penalties through the designation of the offence as hybrid will have an even more chilling effect on travelers. I and other equity seeking organizations oppose continued efforts across multiple legislations to both lower legal standards for searches by various government agents, as well as increasing penalties for perceived attempts to “hinder” those searches, where the need and justification for the same has not been made out.

I believe the presently available charges and penalties sufficiently deter such behavior such that increased penalties are not warranted unless specifically demonstrated, which is not the case presently. Second, the designation of the Offence as hybrid will render all charges pursuant to it as grounds to render Canadian temporary residents inadmissib le to Canada.

Section 36(2)(

a) of the Immigration and Refugee Protection Act renders temporary residents (i.e. visitors, foreign workers, and international students) inadmissible to Canada if they are convicted of an indictable offence, and

section 36(3)(

a) designates all hybrid offences as indictable for the purposes of

section 36(2)(a). Thus, even where a temporary resident is charged and convicted of a

summary offence with nothing more than a small fine, s/he will be rendered inadmissible to Canada basis of criminality. While this consequence is severe and concerning overall, it is even more concerning knowing that it will disproportionately be applied against and impact racialized individuals.

When this is coupled with the lack of meaningful ability to withdraw from pre-clearance areas as testified to in the last round of amendments, the increased penalty, and with it the severely increased consequence of being rendered inadmissible to Canada, will surely have a chilling effect on racialized individuals needing to cross the border. Together, they will serve as a tool to insti ll fear and compliance with the demands of border officials, however improper or unjustified.

It will chill racialized individuals’ ability to resist unwarranted and unreasonable demands of border officers for fear of the severe consequences that may ensue. Recommendation 1) Retain the designation of the offence of “hindering an officer” as a

summary conviction offence. 2. Threshold for searches of personal digital devices

The most significant concern with the proposed ame ndments, in my view, is the unprecedented lowering of the threshold for searches of personal digital devices by border officials. I agree with the submissions of many witnesses regarding the significant issues raised by the lower standard and confirm my opinion too that the standard would not survive legal scrutiny and will rely on their briefs for the legal analysis on which those opinions are form ed.

I note , however, that I agree with the position of the CMLA that the higher standard of “ reasonable grounds to believe ” should be adopted due to the unique nature of the privacy rights engaged by searches of personal digital devices , the most important of which is the vast amount of data contained therein about not only travelers but also their contact, personal and professional. I wanted to take a moment to comment on questions from S enators regarding whether the C ourt in R. v.

Canfield has seemingly left the door open for a lower threshold, one that may even be lower than the threshold of “reasonable grounds to suspect”. While it is true that the Court left it open for legislators to select the threshold, I do not believe that the Court envisioned or would sanction a threshold lower than “reasonable grounds to suspect ”.

This is because Canadian courts have already pronounced in multiple decisions that a search that does not minimally arise out of a suspicion of contravention of a Canadian law is not permissible .1 It is precisely because of th ese pronouncements by Canadian courts that so many witnesses have testified with confidence that they believe that the proposed standard would fail a Charter challenge. My request to you Senators, is to take head of the testimony of the many legal experts that have diligently investigated and reported on the present legal discourse on the issue of searches of personal digital devices.

While it is true that if legislators got the test wrong, affected individuals can engage in multi-year litigation to have the Courts declare it as such. However, knowing as you do that this standard will be disproportionately and discriminatorily leveled against racialized and vulnerable individuals in the interim, I ask that you save these communities from the hardship of such a legal challenge and the years of hardship they will endure in the meantime.

If all legal experts are already opining that the proposed threshold will not survive a legal challenge, why force already marginalized and disadvantaged individuals down the path of having to prove it. I ask and hope that the honorable Senators will use this opportunity to adopt a higher threshold, even if it is that of “reasonable grounds to suspect”, in order to prevent such knowable hardship to racialized and vulnerable populations for years to come.

Recommendation: 2) Set the legal threshold for searches of personal digital devices as that of “reasonable grounds to believe”, both in the Customs Act and the PreClearance Act; and 3) Require that the regulations set out parameters and guidelines for the search of personal digital devices, irrespective of the threshold chosen. 3. Lack of safeguard for solicitor-client privilege I will defer to the testimony of my colleagues regarding this issue as well. I simply wanted to highlight that the concern is two-pronged.

It is both a concern of privileged information contained on the personal digital devices of travelers, as well as the privileged information contained on the personal digital devices of lawyers. While the proposed amendments carve out exemptions from the invasive powers sought to be granted for the search of personal digital devices with respect to devices that are “solely” for occupational use, this does not go far enough as: 1 See for example: R. v. Al Askari, 2021 ABCA 204.

• It does not protect solicitor -client privileged communications contained on travelers’ personal digital devices; and • In the modern age most lawyers’ personal digital devices will not be “solely” for occupational use. Even where they may have a cell ph one dedi cated solely for professional purposes, which happens less these days , invariably their personal cell phones will also contain a degree of work-related data. This is of particular concern with respect to the metadata contained on personal digital devices that users are unaware of, as explained in the CMLA’s written brief.

Recommendation: 4) Create a new subsection, 99.1(4) of the Customs Act and subsection 20.1(5) of the PreClearance Act that provides specific exemption for the search of digital personal devices of lawyers, and the solicitor-client privileged information that may be contained on travelers’ personal digital devices. 4.

Lack of parameters for the use and retention of collected data Given the lack of adequate restrictions on the scope of investigation powers, and the vast amount of personal information that may be elicited and retained from personal digital devices, including metadata in the background of each file that is on the device, I call on the Senators to require parameters on the use and retention of the data collected. The present lack of parameters means that the information may be used for: I. Continued investigation and surveillance of the traveler and/or his/her contacts, both personal and professional; II.

Flagging the individual and/or his/her contacts for further questioning on subsequent efforts to cross the border; and III. Laying criminal charges against the traveler and/or his/her contacts, which, in the context of temporary and permanent residents, may also entail immigration consequences flowing from being rendered inadmissible to Canada.

On the first manner of potential misuse of the information gathered and retained, it is unclear whether the information could be shared with local, federal or international police or intelligence agencies to monitor and further investigate travelers or people they may be connected to.2 On the second manner of potential misuse of the information gathered and retained, all too often members of racialized and vulnerable communities, citizens and residents alike, experience increased questioning and interrogation at the borders.

Even where customs officers have confirmed a traveler is wrongly being flagged for secondary questioning, the process for having that flag removed is arduous and painstakingly long, often requiring the assistance of a legal 2 Border security and public safety concerns would be sufficient to trigger the ability to share information under the Security of Canada Information Sharing Act S.C. 2015, c. 20, s. 2,

representative. That such information will continue to remain on the database of information available on travelers will only exasperate their efforts to receive fair and equitable treatment at the borders free from targeting, stereotyping and fishing expeditions.

On the third manner of potential misuse of the information gathered and retained, aside from the criminal charges that may be laid against a traveler by virtue of further monitoring and investigations, given the increased aggravation to the individual resulting from more pronounced investigations when they seek entry, travelers would be more susceptible to a criminal charge of resisting or obstructing an officer if he or she is increasingly unwilling to engage in the process, as explained below. Recommendation: 5.

Re-insert the clause in previous versions of the PreClearance Act which explicitly requires information gathered on travelers to be destroyed within 24 hours of having been acquired except in certain circumstances; 6. Impose strict conditions for the retention of traveler information, including a requirement for its destruction within 2 years at most, as prescribed by the Privacy Act; 7. Impose strict conditions for the disclosure or use of traveler information to other entities; and 8. Amending the proposed

section 110(3.1) and

section 115(1) of the Customs Act to contain a requirement to destroy the electronic copy of the record or document obtained, within 24 hours of its collection. I thank this committee and the honorable Senators for taking the time to review my concerns. Best Regards, Pantea Jafari Barrister & Solicitor