1 SECU@parl.gc.ca CANADIAN MUSLIM LAWYERS ASSOCIATION SUBMISSION ON Bill S-7,

An Act to Amend the Customs Act and the Preclearance Act, 2016 Standing Committee on National Security and Defense June 9, 2022

2 ABOUT THE CMLA The Canadian Muslim Lawyers Association (CMLA) was founded in 1998 by a small group of Toronto-based Canadian Muslim lawyers. It now has several hundred members across Canada with active chapters in Ontario, Quebec, Alberta, British Columbia, and the Atlantic provinces. The CMLA is focused on four key areas of engagement. First, the CMLA helps build professional relationships among Canadian Muslim lawyers and between Canadian Muslim lawyers and members of other legal organizations. Second, the CMLA educates its members and the broader Canadian Muslim community on legal topics of interest.

Third, the CMLA provides peer support by providing law students and junior lawyers with mentorship and professional development seminars. Fourth, the CMLA serves as an advocate on select issues of importance to Canadian Muslim lawyers and the broader Canadian Muslim community. With respect to advocacy, the CMLA has appeared as a public interest intervenor before the Supreme Court of Canada. In addition, the CMLA actively participates in the discourse on national security law and policy.

In this regard, the CMLA has made submissions to, and testified before, Parliamentary committees examining national security, human rights and civil liberties on numerous occasions since 2001, including testimony before the House and Senate committees reviewing the previous round of amendments to the Pre -Clearance Act, in 2017. We are pleased to contribute to the study of Bill S-7 presently, as it engages important matters for all Canadians, but which stand to have a disproportionate impact on racialized individuals.

The work of the CMLA is driven by several core values: promoting the human rights and dignity of all people, of which Canadian Muslims and Muslims in Canada are a subset; the rule of law and holding our elected officials accountable to the necessity and ef fectiveness of the legislation it proposes and implements; and analyzing government conduct and proposed legislation through the lens of rights and values enshrined in the Charter of Rights and Freedoms and Canadian human rights legislation.

We not only speak when Muslims in Canada are adversely affected by proposed legislation, but also recognize that the post-9/11 era of national security means that the wide range of racialized and equity-seeking populations are caught by the vast net cast in the efforts to spot and deter terrorism.

3 Contents OVERVIEW SUBMISSIONS ON BILL C-23 A - The Test for Unreasonable Searches of Digital Devices. B - Reasonable Expectation of Privacy at the Border. C - The Nature of Searches of Digital Devices at the Border Differ Significantly than a Search of Goods, as Confirmed by Canadian Courts. D - Searches at the Border and Digital Devices. E - The Legal Test of "Reasonable General Concern" Provides Limitless Discretion and is Likely to be Found Unconstitutional. F - Reasonable Suspicion vs Reasonable Belief. G - Unprecedented Expansion of Powers are Concerning Given the Lack of Meaningful Recourse.

H – Ancillary Consequences: How is Metadata Affected? I - CMLA’s Recommendation: Reasonable Belief or in the Alternative, Reasonable Suspicions with Constraints J – Other Issues with Bill S-7

4 SUBMISSION: BILL S-7 -

An Act to amend the Customs Act and the Preclearance Act, 2016 CANADIAN MUSLIM LAWYERS ASSOCIATION OVERVIEW The CMLA welcomes the opportunity to contribute to the review of Bill S -7,

An Act to amend the Customs Act and the Preclearance Act, 2016 (the "Bill"). The Bill's proposed amendments provide border officers with further unchecked and unconstitutional powers exacerbating similar problems that many groups identified in the review of the recent amendments to the Pre-Clearance Act made in 2017. While the CLMA takes issue with a number of concerning features of the current Bill, this brief focuses on the proposed standard: "reasonable general concern." The CMLA submits that such a standard is not only legally unfounded, but also unreasonably broad and low.

The overly broad nature of the proposed standard will invite arbitrary application and while undoubtedly, will result in unjustifiable searches of a wide swath of people, it will be most acutely felt by minority and equity-seeking communities. Instead, the CMLA proposes that this Committee consider "reasonable belief" as a more appropriate standard to adopt in this context, as described further below. If the Committe e takes the view that a “reasonable suspicion standard” should be imposed, the CMLA asks that the legislation include language that sets out clear restrictions on searches of digital devices. A.

The Test for Unreasonable Searches of Personal Digital Devices. The widespread use of digital devices means that all Canadians have a stake in the outcome of this Bill.1 However, the question of the legal standard required to search a traveler’s digital devices has critical importance from an equity and anti -racism perspective. This is because Indigenous, Black, racialized, religious minorities and other equity -seeking groups disproportionately find themselves 1 As summarized in R. v. Canfield, 2020 ABCA 383 at para. 28: In January 2019, there were approximately 28 million mobile internet users in Canada.

In January 2020, 96% of Canada’s population had a mobile connection and 94% used the internet. Of those who use the internet, 89% own a smartphone, 85% own a laptop or desktop computer, and 55% own a tablet device.

5 subject to the immense power of border officers to single them out for heightened scrutiny. The potential misuse of authority to conduct invasive searches of private communications and information stored in digital devices diminishes the fundamental privacy and dignity rights of members of the se groups. The approach proposed with Bill S-7 would reinforce the systemic discriminatory practices experienced by these individuals at the border without a corresponding tangible increase in border protection. As noted by Professor Steven Penney: We should therefore interpret

section 8 to forbid searches for mere evidence (including digital contraband) under border control legislation. Put simply, such searches are "unreasonable" under that provision because they are highly invasive of privacy and do not further legitimate border control objectives … Digital data, however, should remain off limits for searches authorized under border control legislation, even with reasonable suspicion or probable grounds.

If such suspicion does exist, then police (or customs officials with peace officer status) are free to use their criminal investigative powers (under statute or common law) to search digital devices. But border control powers should be used exclusively for border control, not criminal law enforcement. 2 There does not appear to be a connection between dropping the threshold that border officers must meet in order to search devices and an increase in national security or the ability to protect state sovereignty. If such a connection exists, it has not been rationally connected or demonstrated. B.

Reasonable Expectation of Privacy at the Border. The CMLA agrees that effective border security is important. However, border protection rules must be designed to advance border security interests within reasonable limits which includ e protecting individual rights and (

b) minimizing discrimination. The government has no t identified how the 2 “‘Mere Evidence?’ Why Customs Searches of Digital Devices Violate

Section 8 of the Charter” (2016) 49:1 UBC L Rev 485, 514

6 reasonable general concern test with its extensive powers to conduct digital searches promotes national security or controls border threats. Granting broad untrammeled discretion to search through travelers’ personal information does comparatively little to improve national security threats but seriously harms the privacy interests of all travelers. C. The Nature of Searches of Digital Devices at the Border Differ Significantly than Search of Goods, as Confirmed by Canadian Courts.

The unique technological capacity of digital devices has required the courts to craft responses that meaningfully protect informational privacy. In R. v. Vu, the Court remarked that computers are a multi-faceted instrumentality without precedent in our so ciety. 3 The use of digital devices has increased exponentially in a manner not contemplated when Parliament first enacted the Customs Act.1 The information stored in digital devices engages a biographical core of personal information, which reveals intimate details of the lifestyle and personal choices of the individual.

In addition, digital devices contain immense storage capacity and may hold details of the user's interests, habits and identity without the knowledge or intent of the user and may retain information that the user believed had been destroyed. It even includes information on others, such as an individual’s family members, friends, and professional contacts. Nor can it be said that traveling with a digital device is truly voluntary. Many people must carry their digital devices for work, to organize travel itinerary, store digital tickets and digital hotel reservations. This fact was recognized in R. v.

Pike: Possession of a digital device is not truly a matter of free choice nor is carrying it over the border. It is difficult for many of us to conduct our work or home lives without computers and cell phones… We cannot live without them.4 While the Bill treats digital devices as "goods" as a mechanism to invest border officers with broad power to examine digital devices, the CMLA stresses that the information contained in digital devices attracts substantially different expectations of privacy than luggage and purses. 3 R. v. Vu, at paras 40-43. See also R. v. Makarah, [2017] 2 S.C.R. 608. 4 R. v.

Pike, 2022 ONSC 2297 (CanLII) at para 75.

7 The jurisprudence has established that privacy in informational data differs from traditional concepts of privacy. For example, R. v. Vu, held that the numerous and striking differences between computers and traditional 'receptacles' call for distinctive treatment under s. 8 of the Charter.5 Furthermore, R. v. Morelli held that "it is difficult to imagine a search more intrusive, extensive, or invasive of one's privacy than the search and seizure of a personal computer."6 The very reason we are here is because the Alberta Court of Appeal, in R. v. Canfield, struck down

section 99(1)(

a) of the Customs Act as unconstitutional and declared t he definition of “goods” in

section 2 of the Customs Act as having no force or effect, specifically because said sections failed to recognize the pivotal difference of the search of traditional concept of “goods”, such as luggage and purses, from that of digital devices: “We have also concluded that s 99(1)(

a) of the Customs Act is unconstitutional to the extent that it imposes no limits on the searches of such devices at the border, and is not saved by s 1 of the Charter. We accordingly declare that the definition of “goods” in s 2 of the Customs Act is of no force or effect insofar as the definition includes the contents of personal electronic devices for the purpose of s 99(1)(a).”7 More recently in R. v. Pike , Harris J. of the Superior Court of Justice in Ontario struck down as unconstitutional s. 99(1)(

a) of the Customs Act because it lacked a legal threshold and allowed for a potentially limitless search of a digital device.8 It is clear through a review of the jurisprudence that Courts confirm that the greater the intrusion into the individual's privacy, the greater the onus of justification, and the greater the degree of constitutional protection. D. Searches at the Border and Digital Devices Given the distinctive features of digital device searches, it is important to consider the framework upon which searches at the border are conducted. In R. v. Simmons, the Court recognized three categories 5 R. v.

Vu, [2013] 3 S.C.R. 657. 6 R. v. Morelli, [2010] 1 S.C.R. 253 at para. 2. 7 R. v. Canfield, 2020 ABCA 383 at para. 111. 8 R. v. Pike, 2022 ONSC 2297 (CanLII).

8 of searches at the bo rder, each with increasing levels of intrusiveness:

a) routine questioning and searches of baggage;

b) strip or skin searches; and

c) body cavity searches.9 R. v. Simmons did not anticipate the state of technology in modern times. Most recently in R. v. Pike the Court noted that while searches of digital devices do not fall under the first category of search, the categories of strip searches and body cavity searches are of limited assistance in assessing the question of searches of digital devices at the border.10 In determining the appropriate test for searches of digital devices at the border, R. v. Fearon offers a useful point of comparison. 11 In R. v.

Fearon the court considered whether police could search an arrestee's cellular telephone pursuant to the common -law authority to search incident to an arrest or whether the police required a warrant before searching. In a narrow majority, the Supreme Court of Canada allowed for warrantless searches of a cellular telephone but only on strict grounds. The Court held that because digital devices engage a much more significant invasion of privacy than the typical search incident to an arrest, then a warrantless sear ch incident to an arrest had to be circumscribed in the following manner:

a) the search must be tailored to a “valid law enforcement” purpose, which precludes a fishing expedition;

b) police could not use the power to discover evidence but rather could only use it to continue an ongoing investigation; and

c) police must take detailed notes of the extent and nature of the search to allow review. A very important feature of R v. Fearon is that the strict constraints placed on the search apply to a person who is already properly arrested on reasonable and probable grounds. The specialized treatment of a cellular telephone for properly arrested individuals suggests that much more is needed for digital device searches at the border than a “reasonable general concern”.

This is especially the case because the searches currently contemplated at the border are not merely cursory searches or searches that are connected to an offense. Instead, they are a full search of digital devices where information can be copied and passwords compelled. Given the contextual factors in the searc hes of digital devices at the border, the CMLA suggests that 9 R. v. Simmons, [1988] 2 S.C.R. 495. 10 R. v. Pike, supra, at para 59. 11 R. v. Fearon, [2014] 3 S.C.R. 621.

9 the proposed “reasonable general concern” test is inappropriate. Furthermore, while a reasonable suspicion appears to be a viable test, it carries problems that the reasonable belief test does not. E. The Legal Test of "Reasonable General Concern" Provides Limitless Discretion and is Likely to be Found Unconstitutional Regrettably, the government's proposed standard of "reasonable general concern" as a threshold test for conducting digital searches falls far short of a fair constitutional balance between state interests and privacy protections.

While many Canadians may see routine questioning or searching of luggage as a necessary component of international travel, the same cannot be said of, potentially, a wholesale search of personal digital devices, rendered acceptable by the proposed amendment. This proposed standard is bound to set travelers and the legal community up for years of litigation, as the proposal is palpably below the standard dictated by Canadian courts. The CMLA is not satisfied that the "reasonable general concern" test imposes any meaningful standard. “Reasonable general concern” is a novel test that has no basis in Canadian law.

The proposed test offers no constraints on the power to search personal digital devices, nor does it offer a guideline for the parameters of (

a) what can justify a search and (

b) the limits of a search. Specifically, a "concern" suggests something much less than a suspicion or a hunch. The modifier "general" explicitly removes any need for an individualized concern by shifting the concern away from a specific concern. The additional term "reasonable" does nothing to limit the broad and arbitrary authority granted by "a general concern". Moreover, the reasonable general concern need not be directed to a specific infringement. The concern need only be related to the contravention of legislation related to the import or export of goods.

One is hard-pressed to imagine indicia that would not be captured in the category of reasonable general concern. In short, far from being a careful balancing between interests of border integrity and informational privacy, the standard gives carte blanche to border officials to search through a vast trove of the highly personal information in a traveler’s digital devices. The lack of any true limit to the discretion to search is particularly problematic for Indigenous, Black,

10 racialized, religious minorities and other equity-seeking groups. The reasonable general concern test invites an arbitrary exercise of power, the effects of which will be unfairly shouldered by members of these groups. Empirical evidence confirms that members of minority groups experience the disparate negative impact of state action.

They also are subject to racial profiling.12 The Supreme Court of Canada has relied on the following definition for racial profiling: Racial profiling is any action taken by one or more people in authority with respect to a person or group of persons, for reasons of safety, security or public order, that is based on actual or presumed membership in a group defined by race, colour, ethnic or national origin or religion, without factual grounds or reasonable suspicion, that results in the person or group being exposed to differential treatment or scrutiny.

Racial profiling includes any action by a person in a situation of authority who applies a measure in a disproportionate way to certain segments of the population on the basis, in particular, of their racial, ethnic, national or religious background, whether actual or presumed.13 Racial profiling is widespread and documented.

As early as 2006, the Ontario Court of Appeal noted that there is “an acceptance by the courts that racial profiling occurs and is a day-to-day reality in the lives of those minorities affected by it”. 14 It extends beyond policing and includes actions taken at airports and border crossings. 15 Muslims and individuals who appear to be Muslim attract greater unwarranted security in transportation settings.16 Training state actors against implicit bias has been found to be ineffective when patterns of discrimination are systemic and institutionalized, as in the foundations of the security space.

Broadening the scope that state actors can use to act upon implicit 12 Under Suspicion: Research and consultation report on racial profiling in Ontario" (PDF). Ontario Human Rights Commision. April 2017 (“Under Suspicion”). 13 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] 2 S.C.R. 789 cited in R. v. Le, [2019] 2 S.C.R. 692 at para. 77. 14 Peart v. Peel Regional Police Services Board (2006), 43 C.R. (6th) 175 (Ont. C.A.), at para. 94. 15 Cotter, Adam (February 16, 2022).

"Perceptions of and experiences with police and the justice system among the Black and Indigenous populations in Canada". Statistics Canada; See also: Under Suspicion, supra. 16 Under Suspicion, supra, at pp. 56 - 60; Pratt, Anna; Thompson, Sara K. (September 2008). "Chivalry, 'Race' and Discretion at the Canadian Border Get access Arrow". The British Journal of Criminology. Oxford University Press. 48 (5): 620–640. doi:10.1093/bjc/azn048. SSRN 1285927.

11 biases, rather than placing checks and balances around them, will continue to have a compounding impact on members of these communities. F. Reasonable Suspicion vs. Reasonable Belief The Privacy Commissioner recommended the reasonable suspicion standard in the Commons Standing Committee on Access to Information, Privacy and Ethics 2017. 17 However, the CMLA wishes to highlight some of the well-known problems in the reasonable suspicion test as recently summarized in R. v.

Chehil in the context of drug detection dogs in the airport setting.18 The problems in the reasonable suspicion test, as applied, authorizes random generalized searches of a large number of innocent travelers, especially members of equity-seeking groups. The reasonable suspicion test is also criticized because it relies on unreliable profiles, which are widely construed to capture people on something less than a hunch. In a review of the reasonable suspicion test, the Court in R. v.

Pike, disagreed with the PPSC that reasonable suspicion is a “rigorous standard”. 19 Reasonable suspicion is a lower standard than a reasonable belief. It engages the reasonable possibility rather than probability.20 Reasonable suspicion is a suspicion that an individual might be connected to a particular offence. A reasonable belief involves a belief that an individual is connected to the offence.

The CMLA recognizes that the reasonable suspicion standard ameliorates some of the problems that the reasonable general concern test introduces; however, the reasonable suspicion test carries with it a high level of subjectivity which can, and likely will, be exercised in discriminatory ways. As such, the CMLA does not support a reasonable suspicion standard without the addition of express legislative constraints. The search of sensitive personal data on suspicion does not comport with and is not a reasonable limitation on basic constitutional protections of private electronic data.

A reasonable belief standard better safeguards the nature of informational privacy in electronic data.

Section 99 (1) (c.1) of the Customs Act applies the lower standard of reasonable suspicion to searches of regular mail at the border. However, digital devices demand a higher standard because of the greater informational privacy than that contained in mail. A reasonable belief standard, with its focus on 17 https://www.ourcommons.ca/DocumentViewer/en/42-1/ETHI/report-10/page-39#6 18 R. v. Chehil, [2013] 3 S.C.R. 220. See also R. v. MacKenzie, [2013] 3 S.C.R. 250 19 R. v. Pike, supra, at paras. 78-79 20 R v Chehil and R v MacKenzie, supra.

12 individualized and objective factors, will limit discretion in a manner that would curtail th e negative impact of explicit or implicit bias against Indigenous, Black, racialized, religious minorities and other equity-seeking groups.

The reasonable belief standard has been used elsewhere and is a familiar test in the customs setting: s 139(1) of th e Immigration and Refugee Protection Act , SC 2001, c 27 provides that persons seeking to enter Canada, their luggage, personal effects and the means of transportation that conveyed them to Canada may be searched if the officer believes on reasonable grounds that the person has not revealed their identity, has hidden on or about their person documents that are relevant to their admissibility, or has committed or possesses documents that may be used in the commission of people smuggling, human trafficking, or document fraud. s. 111 of the Customs Act provides that a building or receptacle or place can be searched if the officer believes on reasonable grounds that the conditions of subsections a to c are present therein.

The reasonable belief standard taken from the immigration context has been described as follows: The first issue raised by s. 19(1)(

j) of the Immigration Act is the meaning of the evidentiary standard that there be “reasonable grounds to believe” that a person has committed a crime against humanity. The FCA has found, and we agree, that the “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters of proof on the balance of probabilities.

In essence, reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information.21 The reasonable belief standard is less onerous than a warrant requirement advoc ated by the Canadian 21Mugesera v. Canada (Minister of Citizenship and Immigration, [2005] 2 S.C.R. 100 at para. 114 cited in R. v. Al Askari, 2021 ABCA 204

13 Bar Association in their 2017 Report entitled Privacy of Canadians at Airports and Borders: Immeasurable amounts of electronic information stream in and out of Canada through fiber optic cables without any degree of scrutiny by CBSA. Any review of this information without a warrant would be unconstitutional under the Charter, and no court would i ssue a warrant for wholesale fishing expeditions of it. 22 The reasonable belief standard allows for the necessary flexibility at the border, considering the logistics of obtaining a warrant.

Given the problems in the application of the reasonable suspicion standard, coupled with the very personal nature of information contained in a digital device, something more is needed than a reasonable suspicion standard. The reasonable belief standard, short of a warrant, best protects the information privacy in digital devices while allowing for flexibility at the border. G.

Unprecedented Expansion of Powers are Concerning Given the Lack of Meaningful Recourse The disproportionate impact of the expa nsion of search powers granted to border officials is particularly concerning in the context of pre-clearance areas as travelers do not have an unequivocal right to withdraw 23 and have no recourse to Canadian courts.

As testified to by all civil liberties, human rights, and legal organizations in the last round of amendments to the Pre-Clearance Act in 2017, and as even testified to by the Privacy Commissioners, the immunities built into the Pre - Clearance Act mean that there is no legal recourse against US border officials as access to Canadian and US courts is explicitly circumvented, and only very limited liability exists against the US government in situations of death or bodily harm.

With respect to Canadian pre -clearance officers, for the most part, travelers only have access to a written complaint process, the result of which has no significant consequence for the officer. In fact, the Privacy Commissioner has testified that even the minimal parameters on an officer’s authority at the border, such as the requirement to take detailed notes of search incidents, are not being followed by border officials. Mr. Morris testified that “[t]his is a widespread issue”.24 22 "Privacy of Canadians at Airports and Borders" (PDF). Ottawa: The Canadian Bar Association.

September 2017. pp. 9–1 23 Please see CMLA’s brief on the amendments to the Preclearance Act, 2017 for further discussion on this point. 24 Testimony of Regan Morris, Senior Legal Counsel, Office of the Privacy Commissioner of Canada, SECD 55577, June 6, 2022.

14 H. Ancillary Consequences: How is Metadata Affected? The proposed amendments further broaden and enable border officer search powers by way of access to less visible forms of data, otherwise known as metadata. All information stored on digital devices have a second la yer of data which describes the information stored about the content held on these devices, this is metadata. Most users create and share content without knowing that the content they share or retain contains this second layer of data.

For example, if a digital device contains a photo depicting friends having dinner, the visual information may include the identification of the individual featured in the photo, some visual indicators of where they are (home or restaurant), and perhaps a visual depiction of the meal they are eating. The metadata of that photo would, for example, further describe things like the exact moment of when the photo was taken, the coordinates of where it was taken, whether it was sent to the device by someone, downloaded from somewhere, or taken directly from the devices’ own camera.

The lack of parameters and guideline s for the collection, use, and retention of data collected from travelers will also lead to the collection and retention of a significant well of metadata that will seemingly be retained indefinitely and which can be used for purposes irrelevant to the border context. It is trite that personal digital devices contain substantial data about a traveler and his/her personal and professional contacts. Metadata, thus, contains more information than the file content.

Without parameters on the use and retention of the data collected, and without any explicit requirements for the destruction of that data, border officials will be free to warehouse the collected metadata into a pool that allows the connection of data points to be detected and used for purposes outside the border context, such as criminal investigations. While metadata is not well known and discussed, there are examples of its use and challenges thereof in various jurisdictions.

For example, a German politician, Malte Spitz, once challenged a German law requiring telecommunication providers to collect the metadata of its clients in response to the security problems after the 11M attack in Madrid and the 7J in London. The European Union Court

15 of Justice decided years later that metadata collection w as unduly interfering with the privacy rights of citizens.25 In another more recent case, the European Union Court of Justice also struck down the indiscriminate retention of traffic and location data in an effort to combat serious crime. 26 The most famous example of the use and import of metadata is the Snowden leads.

While the indiscriminate and expansive breach of one’s privacy rights is a concern for all travelers, the impact will undoubtedly be borne by racialized and vulnerable travelers who are proven to be the disproportionate targets of expanded search and investigative powers. They, as well as their contacts, would not only be the target of border s earches, but may also be the targets of tangential or even unrelated investigations enabled by the metadata extracted and retained from their personal digital devices. I.

CMLA’s Recommendation: Reasonable Belief or in the alternative, Reasonable Suspicions with Constraints While individuals have a diminished expectation of privacy at the border, the privacy expectation is not entirely lost. Canadians deserve balanced and rational measures that do not permit arbitrary and potentially discriminatory conduct. The CLMA recommends that the Senate reject the “reasonable general concern” test and recommends a standard of “reasonable belief" as a threshold requirement for searches of digital devices at the border.

In the alternative, the CMLA recommends a reasonable suspicion standard with legislated circumscription of the search powers. J. Other Issues with Bill S-7 In addition to the concern that the legally unfounded standard of “reasonable general concern” to search personal devises is unreasonably low, the CMLA highlights some of the other troubling features of the Bill.

While not exhaustive the following are the most salient problems with the Bill: 25 Farivar, Cyrus. “EU high court strikes down metadata collection law- Citizens made to feel that they ‘are the subject of constant surveillance’”, Arc Technica, April 8, 2014, available at: https://arstechnica.com/tech- policy/2014/04/eu-high-court-strikes-down-metadata-collection-law/. 26 Case c-140.20, Court of Justice of the European Union, Press Release No 58/22, Luxemberg, April 5, 2022, available at: https://curia.europa.eu/jcms/upload/docs/application/pdf/2022-04/cp220058en.pdf.

16 ● Designating the offence of “hindering an officer” pursuant to

section 153.1 of the Customs Act will have significant immigration consequences. Even where a charge is pursued as a

summary offence, a conviction would render temporary residents (i.e. visitors, foreign workers and international students) inadmissible to Canada on the basis of criminality.27 Given the reliance on racial profiling in the security context, this will mean that racialized individuals will again bear a disproportionate impact of these significant consequences, and will have their future in Canada at jeopardy each time they are interacting with border officers; ● The lack of guidelines for the use and retention of data collected under the expanded powers of border officers is deeply concerning and is likely to have disproportionate impact on minority groups and racialized individuals.

Not only will their devices be searched more often, but the aggregation of collected data will create an increasing web of metadata from which to further investigate and criminalize their behaviours; ● The lack of guidelines for the collection and retention of data collected thereof have a concerning impact on solicitor -client privilege.

As racialized and vulnerable individuals are proven to be at heightened risk of targeted questioning and searches at t he border, they may seek legal advice on their rights at the border; there is presently no protection over the privileged information they would receive and likely retain on their device in result. As well, where lawyers’ devices contain privileged inform ation regarding their clients, that too is not protected.

The inclusion of an exemption for devices being transported for the “sole” purpose of professional use will not capture either of these two scenarios, as in neither is the device likely to be “solely” for professional purposes; and ● The CMLA is deeply concerned with the arbitrary extension of time provided to officers to commence

summary conviction prosecutions, from three years presently to eight. 28 The Minister has not provided any discernable reasoning or justification for why such an expansion 27

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. 28 The Bill,

section 163 of the Customs Act

17 of powers is sought. Travelers should not have the shadow of potential charges looming over their head for so long. Conclusion We thank the Standing Committee on National Security and Defense for reading our brief and considering our recommendations to improve Bill S-7, so as to ensure that the rights of Canadians and immigrants while traveling are protected.

Schedule A personal information means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing, (

a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual, (

b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, (

c) any identifying number, symbol or other particular assigned to the individual, (

d) the address, fingerprints or blood type of the individual, (

e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations, (

f) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence, (

g) the views or opinions of another individual about the individual, (

h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and (

i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual, but, for the purposes of sections 7, 8 and 26 and

section 19 of the Access to Information Act, does not include (

j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including, (

i) the fact that the individual is or was an officer or employee of the government institution, (ii) the title, business address and telephone number of the individual, (iii) the classification, salary range and responsibilities of the position held by the individual, (iv) the name of the individual on a document prepared by the individual in the course of employment, and (

v) the personal opinions or views of the individual given in the course of employment, (

k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services, (

l) information relating to any discretionary benefit of a financial nature, including the granting of a license or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit, and (

m) information about an individual who has been dead for more than twenty years; (resignments personnel