Airport and Port Employees May Be Subject to Expanded Searches

According to a report from iPolitics.ca (reproduced at the Vancouver Sun), Canadian Privacy Commissioner Jennifer Stoddart is investigating a government plan to give Canada Border Service Agency (CBSA) officers expanded powers to search airport and port employees in new customs-controlled areas. The plan aims to curtail organized crime, drug trafficking and contraband items by cutting down on port employees’ involvement in the trades.

It’s really no longer a plan since amendments to the Customs Act came into force on June 11, 2009, to provide for the creation of customs-controlled areas (CCAs). The Customs Controlled Areas Regulations were published in the Canada Gazette Part I on November 13, 2010. The regulations propose the following:

1. To define the classes of persons who may be granted access to a CCA and who may be searched in a CCA or at exit
2. The requirements respecting the presentation of persons and reporting of goods inside a CCA or upon exit
3. The circumstances and manner in which searches are to be conducted and the type of searches that may be carried out
4. The manner in which the non-intrusive examination of goods is to be conducted inside a CCA or upon exit, and the type of tools that may be used to conduct such examinations

Moreover, once the CCA regulations are phased in, the Customs Act will allow CBSA officers to search any airport or port employee within the newly defined areas with “reasonable grounds” to suspect the persons are involved in illegal activity. Currently, CBSA officers can search employees as they are leaving a customs-controlled area only.

The controlled areas will be phased in over three years starting with Canada’s three largest airports: Lester B. Pearson International Airport in Toronto, Pierre Elliott Trudeau International Airport in Montreal and Vancouver International Airport.

In the second year, customs-controlled areas will be set up at six other airports and three marine ports. In the third year, the customs-controlled areas will spread to other highway, rail and postal ports of entry and in some duty-free shops and sufferance warehouses across the country.

While the new powers come with a cost to both business and the CBSA, the government argues the costs are outweighed by the benefits of reducing the supply of illegal drugs, which it estimates cost Canada $8.2 billion per year in illness, lost productivity and death.

The proposal will cost the CBSA about $214,900 annually to train officers and to enforce the regulations, and an average $11,800 for the business community due to questioning of employees during work hours.

After the privacy commissioner was made aware of the CCA regulations via the iPolitics.ca report, she decided to examine the initiative and has asked the CBSA for more information.

The commissioner’s spokeswoman said, “There are clearly privacy implications for workers, and we would expect these new powers to be used very judiciously.”

Meanwhile, Liberal MP Mark Holland is calling for the CBSA to put the proposed changes on hold until a parliamentary committee has a chance to study them. He expressed concern about the increasingly invasive security procedures in airports, suggesting the government is overreacting. Holland also said that Canadians feel security at airports and border crossings is getting increasingly intrusive.

“If you’re going to start strip searching employees, it’s a pretty intrusive process, and you have to demonstrate that it’s going to yield results.”

The impact on employees consists of the potential loss of privacy; the inconvenience that may result from the CBSA questioning and searching employees suspected of being involved in illegal activities; potential violations of their charter and human rights due to discriminatory action with how suspected employees are selected for searches among others; and possibly other issues.

The basic question is what level of intrusion are people willing to accept in the name of security—or more specifically how comfortable people are with intrusions into others’ lives. It’s important to be clear that this case revolves around certain employees—not the general public—and focuses on specific locations at ports and airports—places that aren’t open to the general public. It’s no intrusion to the average person at all.

When it comes to smuggling illegal or dangerous goods, we must, as the government is arguing, weigh the advantages to society against the inconvenience to airport and port employees. Is it fair to expect workers who handle goods entering and leaving the country to undergo invasive security checks if border guards suspect they are involved in criminal activities? Border guards already have the discretion to strip search general passengers if they suspect a person is carrying something illegal, why shouldn’t we hold airport and port employees to a higher standard?

As for the possibility of discrimination due to racial profiling, I think—perhaps naively—it’s fair to assume that law enforcement officials who are investigating smuggling at Canada’s ports will not be choosing persons to search at random. I certainly hope that they have studied their suspects and will base their searches on reasonable grounds, as the regulation demands.

If we are going to have laws preventing certain goods from entering the country, we should give our officials the power to enforce them. Frankly, I’m a bit surprised officials don’t already have this power.

It’s important to remember that this isn’t about abstract threats of terrorism; it’s about concrete facts of law and order. Smuggling happens at Canada’s ports and airports, and it happens with the help of corrupt border, airport and port employees. I’m no fan of measures that invade citizens’ privacy, but the proposed regulation applies only to a very specific segment of the population, it offers a significant potential benefit to the general public, and we can hope, along with the privacy commissioner, that the CBSA will use the powers “very judiciously”.