A Supreme Court challenge awaits a Liberal bill allowing border guards to search cellphones because it is so vague, says Blacklock's Reporter..“Bill S-7 fails to provide adequate privacy protection for people, putting them and their families, their friends, their associates and even their clients at risk,” testified Meghan McDermott, policy director with the British Columbia Civil Liberties Association, to the Senate national security committee..Bill S-7 An Act To Amend The Customs Act would permit Canada Border Services Agency officers with any “reasonable general concern” of illegality to search cellphones, tablets and laptops. Travelers would be compelled to surrender passwords under threat of confiscation of mobile devices..McDermott said the bill was so broad that lawyers could be compelled to breach solicitor-client privilege on electronic files..“We know there are many instances — many, many instances — where solicitor-client privilege is not respected,” said McDermott..Mail inspectors and handlers of drug-sniffing dogs are required to prove a “reasonable suspicion” before initiating a search, testified McDermott..The lower “reasonable general concern” threshold under Bill S-7 was too vague, she said..“Crossing the border with a personal digital device is analogous to crossing the border with almost every piece of mail a person has ever received or sent,” said McDermott. “It is extremely unreasonable for a single written letter to attract greater protection in law than information stored in a personal digital device.”.Tim McSorley, national coordinator of the International Civil Liberties Monitoring Group, testified the bill was “deeply worrisome” and should be rewritten..“What the courts have told us is clear,” said McSorley..“These devices cannot be searched without a reason. The government’s solution is creation of a novel threshold of ‘reasonable general concern.’”.The bill followed a 2020 Alberta Court of Appeal decision that struck random cellphone searches as unconstitutional. The Customs Act classified cellphones and laptops as ordinary “goods” subject to inspection..“If this bill passes as written and the novel standard of ‘reasonable general concern’ stands there will absolutely be court cases,” testified Brenda McPhail, privacy director with the Canadian Civil Liberties Association. .“Groups like mine will watch for them and we will look forward to challenging that novel standard in court.”.The “reasonable general concern” standard left federal agents with broad discretion, said McPhail. “When you're at the border you are very much in the power of that border agent to whom we give significant discretion to conduct investigations and searches,” said McPhail..Sen. Pierre Dalphond (Que.), a former federal judge, noted Bill S-7 did not appoint any ombudsman to take complaints from travelers who suspect the Border Services Agency of unfair searches..Asking complainants to sue “is too much to ask,” said Dalphond..“I’m quite sure most travelers will not bother suing in federal court.”
