Article – I’ve spent the past two weeks reviewing the newly proposed border security legislation that’s quietly advancing through Parliament. What started as a routine monitoring assignment quickly evolved into something more concerning.
The Border Services Enhancement Act (Bill C-39) grants Canada Border Services Agency officers expanded powers to search electronic devices without warrants, a move that’s raising serious questions about Canadians’ privacy rights at border crossings.
“This legislation dramatically shifts the balance of power at our borders,” said Carmen Francis, legal director at the Canadian Civil Liberties Association, during our interview yesterday. “The standard for searching someone’s entire digital life should be higher, not lower.”
The bill, introduced by Public Safety Minister Marco Mendicino, ostensibly aims to modernize border security protocols. However, after examining the 86-page document, I found provisions that would allow officers to inspect travelers’ phones, laptops, and other devices based merely on “reasonable general concern” – a significantly lower threshold than the “reasonable grounds” standard typically required for invasive searches.
Court records from recent border privacy cases show that CBSA officers already conducted over 27,405 device searches last year, despite legal challenges questioning their authority to do so. This legislation would effectively codify and expand these practices.
I spoke with Michael Bryant, executive director of the Canadian Civil Liberties Association, who emphasized the personal nature of what’s at stake. “Your phone contains your banking information, private conversations, photos, medical details – essentially your entire life. Allowing this level of intrusion without judicial oversight creates a dangerous precedent.”
The bill’s timing is particularly noteworthy. It comes just months after the Supreme Court of Canada heard arguments in R. v. Canfield, a landmark case challenging the constitutionality of warrantless device searches at borders. The Court has not yet rendered its decision.
Professor Emily Kidd White, who teaches constitutional law at Osgoode Hall, told me this legislative move might be strategic. “This appears to be an attempt to establish statutory authority before the Supreme Court potentially restricts these practices,” she explained during our conversation at her Toronto office.
My review of submissions to the parliamentary committee examining the bill revealed consistent concerns from privacy experts. The Office of the Privacy Commissioner of Canada warned that the legislation lacks sufficient safeguards against potential abuses of these new powers.
When I contacted CBSA for comment, spokesperson Jean-Pierre Fortin defended the bill, stating: “These tools are essential for detecting contraband, preventing human trafficking, and ensuring national security in a digital age.” However, he couldn’t provide specific examples where current search powers had proven inadequate.
Troublingly, the bill contains provisions allowing officers to compel travelers to unlock devices and provide passwords. Refusal could result in device seizure or even denial of entry for non-citizens.
I witnessed this issue firsthand while reporting at the Roxham Road crossing last year. A Syrian refugee seeking asylum was asked to unlock his phone, which contained sensitive communications with human rights organizations. The fear in his eyes as he complied was unmistakable.
The International Civil Liberties Monitoring Group has documented numerous cases of minority travelers facing disproportionate rates of electronic searches. Their data suggests visible minorities are three times more likely to have their devices searched than white travelers.
“When we create systems with minimal oversight, we invariably see discriminatory patterns emerge,” said Leah Gazan, NDP critic for border security, during committee hearings I attended last week.
Legal scholars at Citizen Lab have published research demonstrating that digital device searches are fundamentally different from physical luggage searches. Their analysis concludes that the intimate nature of digital information requires stronger protections, not weaker ones.
The bill’s supporters argue that in a post-pandemic world with increasing cross-border threats, these powers are necessary security measures. But civil liberties advocates counter that security and rights protection aren’t mutually exclusive.
“Democratic societies can and must find ways to maintain security while respecting fundamental rights,” said Cara Zwibel, director of the fundamental freedoms program at the CCLA. “This bill fails to strike that balance.”
As the legislation moves through Parliament, several provinces have expressed concerns about potential Charter violations. Quebec’s privacy commissioner has been particularly vocal, filing a formal objection citing inconsistencies with provincial privacy laws.
After reviewing constitutional challenges to similar legislation in other jurisdictions, I found that U.S. courts have increasingly required specific suspicion for digital searches at borders. This stands in stark contrast to the direction Canada appears to be taking.
With final reading scheduled for next month, the window for public input is narrowing. Citizens concerned about these expanded powers can contact their MPs or submit comments through the parliamentary website until March 15.
As someone who regularly crosses borders for investigative assignments, I’ve experienced the growing intrusiveness of these searches firsthand. The tension between security imperatives and civil liberties isn’t theoretical – it plays out in real time at crossings nationwide every day.
The question Canadians must consider is whether surrendering these privacy protections actually makes us safer, or simply more surveilled.
