THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, March 30, 2017
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts, met this day at 10:30 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we continue our consideration of Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts.
Joining us for the first hour, from the Royal Canadian Mounted Police, is Chief Superintendent Andris Zarins, Director General, Federal Coordination Centres and Covert Operations, Federal Policing; from the Canada Border Services Agency, Lisa Janes, Director General, Border Operations; and from Canada Post, Chad Schella, General Manager, Government Affairs.
Mr. Schella is here with us to answer any questions that fall within the responsibilities of Canada Post, but he will not be making an opening statement.
We will begin with an opening statement from Ms. Janes.
Lisa Janes, Director General, Border Operations, Canada Border Services Agency: Good morning, Mr. Chair and honourable members. My name is Lisa Janes, Director General, Border Operations, Canada Border Services Agency. I would like to thank the committee for the invitation to speak to you on Bill C-37.
Fentanyl and its analogues are the newest illicit substances appearing at the border, in increasing volumes. We have noted that the fentanyl powder and equivalent substances that are most often smuggled into Canada come mainly from China. With extreme potency, where an amount measured in milligrams can cause a fatal overdose, a package weighing 30 grams could contain as many as 15,000 fatal doses.
[Translation]
Small but deadly amounts of drugs can be smuggled into Canada through international mail. Postal and courier shipments are often accompanied by false declarations or are intentionally mislabelled to avoid detection.
All mail that arrives in Canada is subject to inspection, since the Canada Border Service Agency officers have authority under the Customs Act to examine any mail that enters Canada.
[English]
The CBSA uses a variety of detection techniques and technologies, including X-rays, trace detection technology and detector dogs. Officers may select high-risk mail for closer examination. There are, however, specific limitations to opening mail that weighs 30 grams or less.
A CBSA officer who forms reasonable grounds to suspect that mail weighing 30 grams or less contains illicit goods may only open it or cause it to be opened if consent from the addressee is obtained or if the sender has completed and attached a specific label to the mail.
[Translation]
When consent is not forthcoming from the addressee, or when no label is completed and attached, the shipment is returned to Canada Post and prevented from entering the domestic mail stream.
[English]
Bill C-37 proposes to repeal certain provisions of the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act to allow officers to open mail that weighs 30 grams or less in order to detain or seize illicit substances, such as fentanyl, that may be in those smaller mail packages.
The proposed amendments would result in granting CBSA officers the authority to open all items, regardless of weight, in the international mail stream, when an officer has reasonable grounds to suspect the mail contains goods referred to in the customs tariff or goods whose importation is prohibited, controlled or regulated under an act of Parliament.
[Translation]
The Government of Canada is committed to respecting the privacy of mail recipients, which is why officers must have reasonable grounds of suspicion before opening mail.
Bill C-37 also proposes amendments that would require that certain devices, such as pill presses or encapsulators, be registered with Health Canada.
[English]
While the CBSA does not regulate these devices, the trafficking and use of pill presses to produce illicit drugs is a growing concern for the public safety and public health community. The proposed amendment would require that proof of registration for these goods be presented upon importation.
In cases where no proof of registration is provided, CBSA would detain the goods to assess compliance and have Health Canada or the Royal Canadian Mounted Police undertake further admissibility measures.
[Translation]
In conclusion, the CBSA fully supports the proposed amendments to the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and the regulation and control of pill presses and encapsulators.
[English]
These changes will protect Canadians by helping keep harmful substances off the streets and out of the hands of criminals.
Mr. Chair and honourable senators, this concludes my opening statement.
[Translation]
I look forward to answering the committee members’ questions. Thank you.
Acting Chief Superintendent Andris Zarins, Director General, Federal Coordination Centres and Covert Operations, Federal Policing, Royal Canadian Mounted Police: Hello, Mr. Chair and committee members.
[English]
Thank you for inviting me here today alongside my colleagues to speak about Bill C-37, which seeks to amend the Controlled Drugs and Substances Act, as well as other related Acts.
As this is my first time before this committee, I will introduce myself and give you some background about my role with the RCMP. I am Acting Chief Superintendent Andris Zarins, Director General, Federal Coordination Centres and Covert Operations at RCMP National Headquarters. Part of my role is oversight of an area called the Federal Coordination Centre, Serious and Organized Crime.
The FCC Serious and Organized Crime has functions and core responsibilities which include creating and maintaining partnerships with domestic and international law enforcement partners, other government departments and stakeholders, to advance program initiatives.
As my colleague mentioned, and as we are well aware, there has been a large increase of reported lethal and non-lethal opioid overdoses in Canada, which is why the changes being proposed in this bill are important for the Canadian policing community to augment our response to this epidemic.
Bill C-37 proposes a number of amendments to the CDSA that would support the Canadian law enforcement community in addressing the ongoing opioid crisis.
Of particular interest for the RCMP, Bill C-37 proposes to accelerate the scheduling of substances; streamline the disposition process for controlled substances and precursors; create a registry for the importation of designated devices such as pill presses; extend the offences applicable to unauthorized activities involving precursors and other materials used in the production and trafficking of methamphetamine to all controlled substances; and provide the CBSA with the authority to open mail under 30 grams.
Allow me to briefly outline the threat environment from the RCMP's perspective. We know that organized crime groups operate in Canada and are heavily involved in the importation, production and trafficking of illicit drugs and precursor chemicals. In fact, nearly all of the organized crime groups that have been identified and assessed in Canada are involved in one or more aspects of the illicit drug market. According to Criminal Intelligence Service Canada, in 2016 it was 89 per cent of these groups.
Sophisticated organized crime groups and criminal facilitators are exploiting Canada's drug control efforts by producing and trafficking new substances that have yet to be captured in our laws and, as such, are not illegal. For instance, in order to circumvent current drug control laws, some of these groups make slight modifications to the chemical structure of a controlled substance and are thereby able to produce and traffic them with relative impunity.
The RCMP's federal policing program prioritizes its enforcement efforts against those organized crime groups and networks that pose the greatest risk to the safety and security of Canadians, including those involved in the illicit drug market.
It is the policing community's view that the additional enforcement measures proposed in this bill will enhance our ability to combat these pervasive organized crime groups and networks. By providing the authority to the Minister of Health to rapidly schedule new substances that appear on the Canadian illicit market, police will be provided the ability to take criminal enforcement action against criminals and organized crime groups engaging in such activities and therefore stem the distribution of newly identified illicit substances earlier.
Additionally, the provisions of Bill C-37 allowing for the safe and timely disposal of dangerous substances are advantageous, as they will reduce the number of seized dangerous goods that are stored in police custody and the associated inherent risks and costs. Establishing a registry to control the importation of the pill presses and related devices provides an additional tool to mitigate the domestic production of illicit tableting operations, which will be welcomed by the Canadian policing community.
Further expanding the existing offences applicable to unauthorized activities involving precursors and other materials used in the production of methamphetamine to all controlled substances will provide Canadian police with additional tools when conducting investigations into the manufacturing of illicit substances, including those containing synthetic opioids, such as the various forms of fentanyl.
Criminals and organized crime groups heavily depend on the postal stream to traffic contraband, including controlled substances. We have seen an increase in instances where small amounts are sent, due to the level of potency of some illicit substances, as well as to reduce the risk of detection and ensure successful delivery. Providing CBSA with the ability to open mail of less than 30 grams will also assist in the ongoing fight against illicit synthetic opioids that are arriving through the international postal system.
We also know that criminals are also exploiting the domestic postal system to traffic illicit drugs. As such, the RCMP works in close collaboration with domestic partners and stakeholders, including my colleague here at Canada Post, to target and disrupt drug trafficking through the domestic mail within the Canadian legislative authorities.
Federal policing's approach to tackling the importation, production and distribution of synthetic opioids by organized crime groups is heavily reliant on successful relationships with our domestic and international partners. To this end, the RCMP is working closely with CBSA, Canada Post and our domestic law enforcement partners to enhance information sharing and enforcement actions. We are also engaging with key international law enforcement agencies, such as the Drug Enforcement Agency in the United States and China's Ministry of Public Security, to address sharing public safety threats, including those posed by synthetic opioids. Bill C-37 bolsters our work with international partners, as it allows our international partners to see that we can have an impact on this illicit drug trade.
Thank you again for inviting me to participate in your study of Bill C-37. I would be happy to answer any questions you may have.
The Chair: Thank you very much, and we will begin these questions with Senator Jaffer.
Senator Jaffer: Before I begin, I wanted to express to both the chief superintendent and to Ms. Janes my appreciation of the exceptional work your men and women are doing. I live in Vancouver, close to East Hastings Street, and I see what the Vancouver police and the RCMP are doing in my area. I truly believe you are heroes for what you do, and in what terrible circumstances. I worry about you, because you are also exposed to this, so I wanted to convey our thanks for the work you do.
My question is for you, Mr. Schella. It was raised yesterday as well, but I knew you were coming so I was waiting to ask you.
There is the concern about the right to open envelopes of less than 30 grams. I'm sure you knew this legislation was coming. I would first like to know what protocol you are putting in place as to which letters will be opened. Would the post office prefer there be a warrant before that letter is opened?
Chad Schella, General Manager, Government Affairs, Canada Post: Thank you very much for the question, first of all, and thank you for having Canada Post appear today.
From our perspective, our role is limited to delivering the mail, as you know. We are not involved in the screening process at all. When Canada Post receives incoming letter mail from international jurisdictions, it goes through one of our three international processing centres. We verify receipt of it and then turn it over to CBSA. Once they have cleared the documents and inspected them as they see fit, they are then returned to Canada Post and we deliver them as per our obligation.
Senator Jaffer: Ms. Janes, the concern is privacy rights. We want to stop this, but do you have a protocol for which letters you will open?
Also, I am interested in that you have identified one source from which a lot of this material is coming in. Could you tell us how have you identified that?
Ms. Janes: Thank you very much for the questions.
First off, I would like to say that the CBSA takes privacy very seriously and that we strive to ensure that the dignity and respect of all persons are maintained. We use non-intrusive technology to help us when we do examine mail, such as X-rays, as I mentioned in my opening remarks.
When the CBSA's officers do look at mail, we have to have reasonable grounds to suspect. It's not that we just automatically open up the mail; we have to have reasonable grounds to suspect that there may be goods referred to in the customs tariff or that there may be goods that are prohibited, controlled or regulated by an act of Parliament. We have to consider that before we even open mail.
We also work very closely with our law enforcement partners, like the RCMP and others, and we follow risk assessments. That's an important consideration as well from a protocol perspective. Hundreds of thousands of pieces of mail arrive on a daily basis, and we work very closely with Canada Post on which of those items we would like to see, and that's based on risk assessment.
When I referred to China, it would be one country that would be part of that risk assessment. We would look at relying on intelligence and information sharing with partners as to where we would want to focus our attention on the mail.
Senator White: Thank you very much to the witnesses for being here.
My first question is for you, chief superintendent. We walked through supervised consumption sites and the way they work today. We have organized crime involved in the production of drugs, and they provide it to street dealers who then provide it to addicts. Often, the addicts are involved in criminal activity. They enter a supervised consumption site where they consume the drugs, hoping they don't die, and if they do, then medical practitioners are there who can help them.
This is about medical practitioners and addicts. Strictly from a community crime perspective, would it not be better to look at a model like Switzerland's and take the criminal organizations out of that equation and actually have medical practitioners provide pharmaceutical solutions to those addicts?
Mr. Zarins: Thank you, sir. This is where I'm in a spot. The RCMP is supportive of harm reduction initiatives. We believe they can encourage the transition to treatment, and that's where we do not feel these sites should facilitate a state of perpetual use.
Statistically, Statistics Canada is responsible for collecting information and determining the crime rate through the Uniform Crime Reporting Survey, and they would be best-placed to respond with respect to crime rates. That said, the local police jurisdiction would be in the best position to speak for crime trends in their communities. So for me to offer an opinion on whether or not it's better to provide the drugs directly at the site, or the model that's being proposed, we will enforce whatever law is there, sir. It is not our position to provide —
Senator White: Thank you very much. Here is a simplified question, if I may.
Wouldn't you agree that our purpose at least should be to remove the criminal element and organized crime from the provision of pharmaceuticals to addicts?
Mr. Zarins: That's what our focus is, sir. The RCMP is focused on the organized criminal groups that are providing this poison.
Senator White: Poison, thank you. I have real difficulty calling them drugs because there is no evidence that most of it would ever meet a pharmaceutical testing of drugs.
Senator Galvez: Like Senator Jaffer, I want to say that you are doing an incredible job and that Canadians appreciate the efforts that you are conducting.
I'm replacing Senator Pratte. My background is not medical or judicial, but I know toxic substances, hazardous substances. When we want to control hazardous substances, we look at the source. I know that, with this law, things are going to slow down. It seems that they are going to slow down and that some people will be protected. But they seem to me as mitigation measures. The event and the practice will continue if other measures are not taken implicating the people in the medical sector, the doctors, and also the ones that are sending us the drug.
You mentioned very clearly that they are already progressing because new substances are coming, and they just slightly modify the chemical composition and then get out of your radar.
You also said that the criminal groups have been identified. You said that you're working with China, so can you please be more specific on the efforts to not only mitigate but tackle the problem at source in order to have a permanent solution and not just mitigation?
Mr. Zarins: Thank you for your question. I will start with the general way we approach the crime, and then I will discuss China.
The issue of fentanyl and illicit opioids remains a top concern for the RCMP and Canadian law enforcement. We remain committed to collaborating with domestic and international law enforcement partners to go after these criminal networks that are fuelling this public health epidemic, as well as increasing public awareness of the risks associated with this illicit drug use.
The RCMP's federal policing program is leading a national operational approach to target synthetic opioid importers, distributors, manufacturers and traffickers. The approach is in partnership with CBSA, Canada Post, and domestic and international law enforcement partners. Our goal is to detect, disrupt, dismantle and support the prosecution of criminal networks, so it's multi-faceted.
The key activities to your approach: gathering information and data to identify national trends and enforcement opportunities; raising awareness among law enforcement agencies and the public; collaborating with the Ministry of Public Security in China to combat illegal drug trafficking networks and disrupt the flow of fentanyl into Canada; and coordinating the information between all of our partners.
To protect our members and the Canadian public, the RCMP has also equipped its front-line officers with naloxone nasal spray, which can temporarily reverse the effects of an opioid drug overdose. So we continue to work with other law enforcement and government agencies at all levels to raise awareness of the risks associated with the use of the drugs.
With respect to China, the RCMP recently renewed a memorandum of understanding with the Chinese Ministry of Public Security that enhances law enforcement cooperation between the two law enforcement agencies. It strengthens cooperation on crime prevention and criminal investigations involving illegal drugs, tri-national crime, and smuggling. China has committed to cooperate with Canada and other international partners to disrupt the export of fentanyl, including classifying a number of fentanyl analogues as controlled substances under Chinese law and investigating leads provided by Canadian law enforcement.
Senator McIntyre: Thank you all for your presentations.
In its 2011 Insite decision, the Supreme Court of Canada made it clear that the minister has the discretion to grant exemptions. However, that discretion must be exercised in accordance with the Charter.
Now, citizens also have a right to security and protection, and the bill would allow consultations of less than 90 days but without a minimum. Mr. Zarins, would you agree that some consultations should be allowed, at least a minimum of weeks or months? Under the bill, a consultation could be done, for example, in one day.
Mr. Zarins: I can't comment on legislation. We will enforce whatever laws are in place, but for me to comment I don't think would be appropriate.
Senator McIntyre: Well, what do citizens who are opposed to drug consumption sites tell you about their worries? I'm sure they tell you something. Do you consider their worries legitimate?
Mr. Zarins: The police of jurisdiction would be the ones that would be consulted, sir, and, whatever they tell us, we would listen to it and factor it in. But, again, we're not part of the decision-making process on these sites, sir.
Senator McIntyre: This question is for the CBSA. Drugs also enter the country through means other than envelopes. What other trends do you see at the border in terms of drug trafficking and what are some of the techniques used to bring in these drugs?
Ms. Janes: Thank you very much for the questions.
Yes, you are correct that drugs unfortunately are arriving in Canada through all of our modes. CBSA is responsible for all modes coming into Canada, whether it is air, land, rail, marine, which are all modes that people will take advantage of and attempt to exploit. Whether it is through packages or secretion on the individual, it arrives back in Canada with their bags, or they will use it as an importation with a large company. So they will use different methodologies to bring the drugs into Canada.
Senator Bovey: Thank you very much for the work you do and for appearing before the committee.
My question is really around the law enforcement aspect, particularly when you see what has occurred in the opioid crisis in the past couple of years and how the legislation frames up. From an enforcement perspective, does the legislation contain enough to actually work with to make a difference? I'm assuming you had some input into that.
Second, have you anticipated what the next inevitable move will be by organized crime and others to circumvent this in some other way in terms of importation?
Mr. Zarins: We are very supportive of any tools that can be given to us to ensure public safety and help us in our enforcement efforts.
With respect to your question of whether it is enough, we welcome whatever we can get.
As to the next thing coming, this is also addressed in this bill by allowing the Minister of Health to have that flexibility to put in things, as these opioids get changed in their molecular structure, so it's giving us time to keep up with what's happening. If we have intelligence that says, “This is the next opioid coming in here,” at least we have the mechanisms now that we can feed into the Minister of Health and have that already listed as an illegal substance. That gives us and the CBSA the tools to go after this.
[Translation]
Senator Boisvenu: I’ll go back to the issue my colleague, Senator McIntyre, discussed with you. In many regions of Quebec, your police force plays the role of the local police, so you’re in direct contact with the citizens. You need to know the citizens’ concerns. You work with them each day.
We know the establishment of sites — which you overlooked in your brief — raises concerns for citizens. On that note, you’re on the front line when it comes to organized crime. If, tomorrow morning, for example, a site were established in a local community and a day were set aside to consult you or the citizens or mayors, would you find this normal?
I have a second question for you. In terms of transparency, does the bill give you all the answers regarding the substances that will be used, the target clients and the site’s management? Does this bill fully ensure that, when you’re in contact with the citizens, you’ll be able to give them all the answers?
[English]
Mr. Zarins: Thank you for your question, sir. We are concerned with what the community has to say. The supervised injection sites, that's a process that has been established. We don't control that process. We'll abide by whatever legislation Parliament sees fit to be in place.
We are focused on the safety of our citizens, and we are also focused on the organized criminal groups bringing these substances in. That's where our focus is, sir. Whatever system is put in place with respect to approving these supervised injection sites, it is a concern for us; however, we don't control that process, sir.
[Translation]
Senator Boisvenu: If a site were established in a high-risk area, would your police force react by informing the authorities whether a certain area represents a higher risk than another area? My view is that you seem to be leaving this to the politicians and that you’re not concerned about the safety of the communities. I find this response worrying.
[English]
Mr. Zarins: We are very much interested in the safety, sir. But this is where the police of jurisdiction know the local crime trends.
Speaking for the police as a whole, we always respond and provide resources to where we see the criminality occurring. If there were criminality occurring in an area related to where these sites would be placed, the appropriate resources would be allotted to that particular area.
As the national police force, we're concerned about these illegal substances coming into the country and the groups bringing them in. The police of jurisdiction are the police agencies that will be addressing the local crime.
I can't give you more of an answer than that, but we constantly evaluate the threats and then provide appropriate resources to address those threats.
Senator Joyal: Welcome. I want to come back to clause 52 of the bill, the Customs Act amendments, which proposes to remove subsections 99(2) and (3). My concern is that it's now a blanket authorization for opening mail of less than 30 grams, for any reason. The bill doesn't specify to fight drugs, organized crime or the illegal proceeds of organized crime; it is just a blanket authorization. It means that you can now open the mail for whatever reason you believe.
I totally support the idea of fighting drugs imported through mail. I have no problem with that. But what kind of system do we have in place to balance a discretion that can go overboard? We have seen it with the mail. There's a long history of censorship in the mail through the Little Sisters case in B.C. That was before you were born, Ms. Janes, but some of us remember it very well, the fight we had with Canada Post and the border agencies. It seems to me that when you say “reasonable grounds to believe,” who will review the reasonable grounds to believe of an officer who decides to open the mail? In other words, it's not just a blank cheque to the person who is there and says, “Oh, this envelope is pink. I don't like pink. Let's open it.” There has to be real control over the exercise of reasonable grounds to believe.
In practical terms, how does it work in your system to avoid the kind of over-exploitation of that power by an officer who feels he has all the grounds to do that?
Ms. Janes: Thank you very much for your question and your compliment on my age. I appreciate that. It's always nice to have a compliment like that.
Earlier I spoke about the importance of privacy. Our officers do receive training, and there is oversight from superintendents, chiefs and senior management regarding when officers are opening mail or boxes — or whatever items they are — that the reasonable grounds to suspect are present. There is oversight on that as well, and our officers do receive training on the importance of respecting privacy.
As I mentioned in my earlier response, we see hundreds of thousands of pieces of mail that are presented to us on a daily basis. We use non-intrusive technology, like X-ray, to facilitate the movement of the mail. For our job, we don't want to hold things up; we want to be able to specifically look at those items that, as I mentioned, would be of risk to the health and safety of Canadians. That's why we're here. We're not here to open up letter mail to just gather intelligence or, as you say, it's a pink envelope and we want to look at it. We have to follow the fact that we need to have reasonable grounds to suspect that before we move forward on any of those actions. That's why we have the oversight as well, and our officers receive the training.
Senator Joyal: I understand that, from then on, mail that I receive will be opened and the content will be checked, but I will never be notified that in fact they have looked into it.
Ms. Janes: Yes, you will.
Senator Joyal: How will I be notified that the mail I receive has been opened and for what reason it has been opened?
Ms. Janes: When we open up any type of packet or envelope over 30 grams, current procedures are that tape is applied to close up the item, and it says the item was opened by CBSA.
Senator Joyal: In other words, you open the item on the basis of your own criteria. What are those criteria?
Ms. Janes: As I said, the officers have to have reasonable grounds to suspect that the mail and the goods contained therein are related to a customs tariff or that the items are prohibited, controlled or regulated by an act of Parliament.
Senator Joyal: I agree, but —
The Chair: We have to move on, senator; I'm sorry. We'll put you on the second round.
[Translation]
Senator Dupuis: My question is for Mr. Zarins. If I understood correctly, you said that, as a federal police force, you’re interested in organized crime, which is involved in 89 per cent of illicit drug market activities. I want to fully understand this statistic. The police are interested in organized crime, and not in any other sector that manufactures, produces or prescribes this type of product. Is that what you meant?
[English]
Mr. Zarins: No, ma'am. We'd like the entire criminal network, from the point of where it's coming from, who's manufacturing it, how it's brought in and delivered to the Canadian public. The entire network is what we're interested in. Criminal organizations are involved every step of the way, so it's the entire organization that we are trying to dismantle.
[Translation]
Senator Dupuis: Your work doesn’t consist only of monitoring or taking action when it comes to organized crime. It could also involve taking action in cases of doctors who prescribe or over-prescribe opioids.
[English]
Mr. Zarins: Anybody that would be involved in the chain. We don't target the prescribing or over-prescription, but if somehow they're connected to these organized crime networks that are bringing this in and distributing it and it comes to our attention during the course of our investigation, we'll definitely not turn a blind eye to it. But we're not targeting that.
[Translation]
Senator Dupuis: I have a quick question. I simply want to understand your statistic. About 89 per cent of organized crime groups are involved in the illicit drug market. The remaining 11 per cent comes from other sources, such as manufacturers or importers. Regarding the 89 per cent, do you have data — I don’t know whether this exists — on organized crime’s involvement in importing drugs rather than in manufacturing them on site?
[English]
Mr. Zarins: For clarification, the Criminal Intelligence Service of Canada, CISC, has estimated that 89 per cent of the Canadian-based organized crime groups it assessed in 2016 are involved in some aspect. It could be any aspect of the illicit drug market. That includes production, import, export and distribution. These groups seek profits anywhere they can. It doesn't matter where the profit is coming from; anywhere along the chain.
So 89 per cent of all of the organized crime groups in Canada are somehow involved in the illicit drug trade. It means that 11 per cent might not have their hands on illicit drugs but they are still organized crime. So it's anywhere in the chain.
[Translation]
Senator Dupuis: So we don’t have a breakdown of the data, in those 89 per cent of cases, on importation in relation to on-site manufacturing.
[English]
Mr. Zarins: Do you mean of the illicit product?
Senator Dupuis: Yes.
Mr. Zarins: It comes in different stages. It can come as a product that is already completed or as a precursor. This is where this legislation is extremely helpful for us, because it can be manufactured and put into pill form here in Canada. There are all different variations that are crossing our borders, and we'd like to have the tools to address all of it, which is what we're getting.
Senator Sinclair: I want to thank you for your presentation. I want you to know that I'm very supportive of the principle of the legislation in trying to address the issues that the legislation is addressing.
I was a judge before I came here for a number of years, and I always had difficulty with definitions in the legislation that appeared to be too vague. I can recall during the course of a trial, in determining whether a search warrant was valid, the officer seeking the search warrant had listed, among other reasons, that he had information that marijuana-grinding devices were in the household. When I asked him what a marijuana-grinding device was, he said a coffee grinder. I thought somebody was selling marijuana-grinding devices, but apparently it was a coffee grinder.
Therefore, I was looking carefully at the question of the designated devices that are in here, and the importation of designated devices among other provisions in the legislation. It appears to be a rather vague definition. I wonder if you have any concerns about the vagueness of it because it might have implications for the validity of that aspect of the legislation.
The definitions of encapsulators and tablet presses, for example, are listed in the schedule. They essentially seem to refer to anything that you can use to make tablets and that you can use in order to fill capsules. If that particular aspect of the legislation is found to be too vague, it strikes to the heart of an important provision in this legislation. Do you have any concerns about the vagueness of that, or were you consulted with respect to those definitions?
Mr. Zarins: While you were asking your question, sir, we were looking at each other here. It's the Ministry of Health that will designate what a device is. We'll enforce the definition that is given to that, and if we're unclear, we'll seek clarity of what it is. I think it's more that these devices will need to be registered with Health, so we'll have to defer that question to the ministry to decide.
Senator Sinclair: Under the definition of encapsulators, for example, it says:
. . . [any] device that may be used to fill capsules with any powdered, granular, semi-solid or liquid material.
That could include a spoon. I was curious whether you had been consulted, but obviously not.
How about your force?
Ms. Janes: My response is consistent with the chief superintendent’s.
The Chair: You're talking about 30 grams. To folks like me, that's about an ounce, I gather. If you're explaining this to Canadians generally, that sounds like a modest amount. Could you expand on the implications because it sounds, on the surface in any event, that this is not a serious problem. Perhaps you could elaborate with respect to the need for this?
Mr. Zarins: We'll both address this one. I believe it was addressed because the stuff that is coming over now, one gram can kill you. A minute amount of fentanyl and its derivatives is enough to cause serious harm, if not death. So the 30 grams might seem very small, but the quantities coming in and that can cause serious injury to our citizens is tiny. This is why the 30 grams would be a level that's not unreasonable.
Ms. Janes: I would echo my colleague's comments.
As I mentioned in my opening remarks, we understand that 2 milligrams is a lethal dose, and this is 30 grams. You can multiply that out and see what the potential impact could be. By being able to put it in the letter mail, it's very inexpensive, easy to do, and it is anonymous. So there are a lot of positives for people who want to use the legitimate mail system for this purpose.
The Chair: Chief, I think you mentioned, in one of your comments, operational crime agreements with China. I was curious about that. How does that work with respect to this issue? Does it include information sharing?
Mr. Zarins: We're always aware of the care that we take when we share information with any country, not just China. We are cognizant of what can be shared and what can't.
Things are moving forward, sir. An example of that is that on March 1, 2017, China added four more analogues of fentanyl to its list of controlled substances: carfentanil, furanylfentanyl, acrylfentanyl and valerylfentanyl. So they're listening to us.
We're working very hard to get a better handle on precursor issue with them. So they are cooperating with us, and we are moving forward. We'll see as it happens. We will be engaging them in the near future in face-to-face meetings, and we are hopeful that things will work out.
The Chair: You said you're cautious about information sharing. That's wise, I would think. You didn't say it's not occurring, so I assume to some degree it is occurring.
Mr. Zarins: Yes, sir. In police ongoing investigations that happens, but we're still very careful with what we share. It's like every country, sir. We have to know where it's going and it has to be for consistent use.
So as we move forward, as the trust level carries on, the more sharing can happen. Again, it's on a case-by-case basis and under a very controlled environment.
Senator White: I have two quick questions. One is on pill making and capsule making. Just to be clear, this legislation won't outlaw them. It just means you have to have a permit to own one. It will not take away a legitimate veterinarian who makes pills for animal care. It just means that it will be listed, that's all.
Ms. Janes: That is correct. The pill presses or encapsulators would have to be registered with Health Canada, absolutely.
Senator White: One of the challenges with listing precursors right now is that we have a 90-day gazetting process. Does that change with this legislation, or do we still end up knowing today that something is going to kill people but have to wait until June or July to have it unlawful to possess?
Mr. Zarins: My understanding is that the Minister of Health will now have the ability to go and have them listed. The timeline, sir, I couldn't answer for you. At least he or she now has the ability to get that listed.
Senator White: But the Minister of Health does that now. They listed all of the fentanyl precursors, all eight of them, last September, but they didn't take effect until December because of the gazetting. I didn't see anywhere in the legislation that removes the requirement for gazetting. Do you know?
Mr. Zarins: I don't know, sir; I can't comment on that.
Senator White: I will ask Health Canada.
Senator Omidvar: Thank you all for coming. This is a question to Ms. Janes.
I know that you already have the authority to open packages and now you're going to get the authority to open letters. Do you have the capacity to do that?
Ms. Janes: Thank you very much for the question. When we look at letter mail under our current process, right now we have the ability under the Customs Act to examine all mail that is coming to Canada. Where we have limitations is in our ability to open up mail that is 30 grams or less and where we have to go to a secondary process and seek permission.
When the mail is presented, as I mentioned earlier, we work very closely with Canada Post on identifying, based on risk assessment and the information, the letter mail or mail that we would like to see Canada Post present to us, because there are hundreds of thousands of items of mail. We work on a risk assessment basis because there's a lot of mail in the system, so we want to better target and we want to rely on non-intrusive technology to help us do our job.
Senator Omidvar: In other words, yes, you do have the capacity and the protocol?
Ms. Janes: Using our tools, yes.
Senator Omidvar: Currently, when you are looking at packages, because that's where your authority lies, can you give us a sense of how many warrants are currently issued in any given time period?
Ms. Janes: I am unable to answer that question. I do not have that information at this time.
Senator Galvez: I believe that when you say “risk assessment,” it includes where these letters are coming from. I believe that you will concentrate on the mail that is arriving in the provinces where the problem exists. I am in Quebec. I don't know how many of the letters in Quebec you will be opening compared to the ones that you will be opening in B.C.
Based on your experience and your conversations with the other places where this problem has been seen, what percentage of the problem are you going to solve and in what time frame? What are your hopes? What will you attain and achieve in terms of mitigating the problem by these measures?
Ms. Janes: Thank you very much for the question. I think what's important is that we're trying to close a gap in the sense that we have mail that is more than 30 grams that we can immediately open, and then we have mail that is less than 30 grams that we have to follow a process to do because people are taking advantage. There's abuse there. We're trying to create a level playing field across all modes, as well as within the mail itself, that there's no opportunity to abuse the “30 grams or less.”
By doing that, as we've mentioned earlier, because there are such small amounts of the product, whether it's fentanyl or other opioids, this is the challenge. They're using this as an avenue for that. They're taking advantage of the fact that we don't have the ability to automatically open the mail.
[Translation]
Senator Dupuis: I didn’t want to cut you off, Mr. Zarins, but you may have the chance to answer my question. Regarding your discussions with China and the United States, I was wondering whether you had data on the percentage of the importation of opioids or other illegal substances by country of origin. In other words, more specifically, how much comes from China in terms of what we receive here and what you intercept, in relation to other countries, and do we have data on those countries?
[English]
Mr. Zarins: I don't have the exact percentages. However, our focus is on China, both for precursors and for the finished product. It fits into my colleague's answer earlier. We, as CBSA and RCMP, strive to be intelligence-led. We have liaison officers and analysts deployed abroad. We try to develop the intelligence to know where they're coming from, and this helps us to target, whether that's letters or organizations. We really use our footprint abroad to find out where it's coming from so we can be ready to receive it when it comes here.
In relation to the percentage, right now our focus is on China, but I'm not saying it's the only place it's coming from.
Senator Jaffer: I have a very quick question of you, Ms. Janes. At the moment, for less than 30 grams you have to get a warrant; is that correct?
Ms. Janes: For less than 30 grams, we have to get permission from either the addressee or the sender.
Senator Jaffer: And the sender has to get a warrant? No? They can just give permission?
Ms. Janes: No, we would have to seek written permission from either the addressee or the sender in order to open up an item.
Senator Jaffer: Addressee or sender; okay.
The Chair: Thank you, witnesses. That is very helpful information for the committee to consider during our deliberations on this legislation.
Our second witness today is the Privacy Commissioner of Canada, Mr. Daniel Therrien.
Commissioner, welcome. We very much appreciate your appearance here today and we are looking forward to your testimony.
Daniel Therrien, Privacy Commissioner, Office of the Privacy Commissioner of Canada: Thank you very much, Mr. Chair.
[Translation]
Honourable senators, thank you for inviting me here to comment on Bill C-37.
Let me start by acknowledging the importance of addressing drug abuse and addiction in a comprehensive manner. While Bill C-37 touches upon a number of matters, I’ll comment only on the clauses that amend the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. These clauses concern the mail inspection powers of different government agencies.
As the law stands now, customs officers are permitted, on suspicion, to examine mail that is being imported or exported and weighs more than 30 grams. However, when mail weighs 30 grams or less, consent must be obtained. If I understand correctly, this longstanding limitation has been in place to protect the privacy of correspondence.
While Bill C-37 would repeal the requirement for consent, I want to say a few things on the matter.
First, prior to any examination of mail, customs officers would need reasonable grounds to suspect the presence of prohibited, controlled or regulated goods. This is in contrast to the general customs examination of goods, which in most circumstances requires no grounds.
Second, assessing the reasonableness of the amendments to the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act requires a balance between privacy and public safety interests. The government says it has evidence demonstrating that the international mail system has been used to import, in small quantities, drugs that have been responsible for the death of a large number of Canadians.
Third, I’ve also been informed that customs officers don’t systematically open all mail. Before examining or opening mail, they use a range of risk assessment techniques to determine whether any contraband is being imported or exported.
In light of these factors, I believe the amendments to the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act are justified. However, I think these amendments should be accompanied by additional measures to protect Canadians’ privacy, more specifically to ensure that correspondence isn’t read in cases when no contraband is found. These measures would ideally take the form of additions to the bill. Otherwise, a government policy on the implementation of these amendments could be sufficient. In a free and democratic society, the opening of mail by the government is generally prohibited and must be carried out with the greatest possible restraint.
[English]
The recent Supreme Court of Canada decision in R. v. Fearon may be helpful to us in finding the right balance between the objectives of Bill C-37 and the protection of privacy. In that case, police searched an individual's cellphone after arrest, without a warrant. The majority of the court held that such warrantless searches serve valid law enforcement purposes, that the search in question did not violate the individual's Charter rights, and that the evidence obtained was admissible.
While the context was different than Bill C-37, which contemplates searches at the border, and those have been referred to in the case law as a unique context, R. v. Fearon also addressed the unique context of warrantless searches upon arrest and may therefore prove useful in navigating this issue.
While it upheld the search as constitutional, the majority in Fearon clarified that a balance must be struck between the legitimate objectives of enforcing the law and privacy interests. To ensure that searches upon arrest comply with the Charter, the majority outlined four conditions that must be met.
First, the arrest must be lawful. If we apply this to Bill C-37, examination of mail must be conducted with reasonable grounds to suspect, in accordance with the provisions of the Customs Act or the PCMLTFA.
The second condition is that the search must be truly incidental to arrest. In the case of Bill C-37, this would mean that the examining officer must have a valid reason to conduct the search, such as the discovery of prohibited or controlled goods, currency or monetary instruments.
The third condition, and of highest interest in my view, is that the nature and extent of the search must be tailored to its purpose. In the case of Bill C-37, any search of correspondence after an examination and opening of mail should be tailored to the initial purpose of the examination: the discovery of prohibited or controlled goods, currency or monetary instruments for the purpose of enforcing the Customs Act or the PCMLTFA. This condition is useful in that it is a flexible standard that could be applied in the case of all mail in order to balance privacy rights with the examination of mail at the border. For example, reading correspondence would not be permitted if opening the mail was justified by a suspicion that it contained drugs, and no drugs are found in the envelope. However, if the justification for opening the mail is that it contains correspondence, which itself is something the importation or exportation of is prohibited — say, terrorist propaganda — then reading the correspondence would be authorized.
The fourth and final condition of the Supreme Court in Fearon is that the police must take detailed notes of what they had examined on the device and how they examined it. Likewise, I would suggest that officers should document the steps they take when examining and opening mail, the reasons for their suspicion, and if correspondence is read, why they believe that the correspondence itself was contraband.
So I hope this is useful and I look forward to your questions.
The Chair: Thank you, sir.
We will begin questions with Senator Jaffer.
Senator Jaffer: Thank you once again. You always make yourself available to us and we appreciate that.
I have a weird question for you. After your presentation, when you, whose opinion we respect, say there isn't much to be worried about, that this is the right way and you can justify it, the only concern I have and the only way I can say it is “mail profiling,” in the sense that we heard from the CBSA that there are lots of concerns about material being sent from China. My concern is that not everything that comes from China should be seen by them. They have a job to do; I'm not being critical of them.
But for your job, how do you assure that anything that comes from X country, everyone's mail has to be looked at? How do we prevent that kind of generalization?
Mr. Therrien: The CBSA would need to have reasonable grounds to suspect —
Senator Jaffer: And they said they do.
Mr. Therrien: To me, country of origin in itself would likely not be reasonable grounds to suspect. You would need something other than the simple country of origin, but country of origin may be relevant among other factors in providing reasonable grounds to suspect.
Senator Jaffer: The other thing that you said here, which I found very interesting in your presentation, concerned some of the things that we should maybe point out, which don't have to be in the bill but there could be some protocol or warning. That is very useful because we could make that part of our recommendations to the minister. I appreciate you giving us that as something we could look at.
Mr. Therrien: Thank you.
The Chair: I'm curious about country of origin and China. The evidence, and we heard testimony as well, is that it is a primary concern of the RCMP. I'm curious why you would not consider that a justification.
Mr. Therrien: In and of itself?
The Chair: Yes.
Mr. Therrien: I said not likely would that in itself provide reasonable grounds to suspect. I don't have the evidence. I don't know the amount of mail that comes from that country or other countries. I suspect it is extremely large. I would suspect as well, but I don't have the evidence, that the CBSA would not be in a position to examine all mail from a given country and will want to have other factors than the mere country of origin.
Maybe of more direct relevance to your question, many people will correspond from a given country, say China, with Canadian citizens for extremely legitimate reasons. So again, the mere country of origin of the mail I would suspect would not generally be sufficient in itself, but it could be a factor, among others.
The Chair: Given the current situation with respect to the ability to open mail, do you receive many complaints over the course of the year? What has your experience been?
Mr. Therrien: About the searches of mail by the CBSA?
The Chair: Yes.
Mr. Therrien: No, we do not see many complaints about this.
The Chair: Do any other senators have questions?
Senator White: When we're talking about items coming from another country, and we understand that we're protecting personal information in relation to what has been written inside, if we're searching for drugs as an example, we also understand that in the mail system they are already going to scan, X-ray those items. Do we require more clarity around the fact that they're searching for a substance and not written material? Or do you think this already covers that what we're searching for is drug material, precursors or ingredients? Realistically, they're not picking up an envelope and saying, “I want to open it.” They are actually going through another process that would have already generated some form of lawful grounds. Wouldn't you agree?
Mr. Therrien: The law itself requires that customs officers have reasonable grounds to suspect very specific things: that things are in the package, whether it's mail under 30 grams or bigger packages over 30 grams, that the package contains goods, the importation of exportation of which is prohibited. That is a finite series of goods, so they need to have suspicion that that contraband is in the package in order to open it.
The historical distinction between packages of less than 30 grams versus over 30 grams I think is based on the privacy concerns that less than 30 grams is more likely to only include correspondence. And correspondence, even in that border context, is entitled to some expectation of privacy. But I take notice of the fact that nowadays, mail under 30 grams is viewed, as I heard this morning, to import illicit drugs.
At the end of the day, I think we need to balance privacy and other considerations. Here there is importation of drugs that lead to death, and we need to recognize that, but it should be done in a way that is privacy protected, which is why I am recommending certain privacy protection measures. To start with, customs officers need reasonable grounds to suspect that the package contains something illicit.
Senator White: Thank you for that.
The second piece for me is an item arriving from another country. Does it have the same expectation of privacy when, for example, there is often no name and there is no return address on the envelope? Who has that expectation of privacy on an envelope that has no other name on it other than Vern White's and it's coming to my house? Is it my expectation?
Mr. Therrien: As the destination of the —
Senator White: The future recipient?
Mr. Therrien: The recipient would have some level of privacy expectation, but here we're at the border, and the case law is clear that at the border, the reasonable expectation of privacy is much less than in other contexts. But “much less” does not mean “not at all.”
Senator Galvez: I work in a chemical lab, and when the RCMP says they're going to use non-intrusive instruments or mechanisms and they mention X-rays, an X-ray doesn't tell you whether or not a chemical product is in there. What you have to do is take out the compound and send it to a lab, and lab will say it is a drug or not. So in reality, what they will use is the intelligence they gather and the risk assessment. I'm saying that they won't be able to know whether the drugs are there, so they will open it. Do they press charges when it is directed to the drug issue specifically, or can they relate it to another crime, such as immigration or another drug offence not related to fentanyl?
Mr. Therrien: Customs powers are not limited to drugs. They extend to any goods that are regulated or something that is prohibited in terms of exportation or importation. So the impetus for this bill is particular drugs, but the customs powers that we're discussing now extend to anything that is illicit, the importation or exportation of which would be illicit.
Senator Galvez: Thank you very much. I think it's important to say that it extends to that.
The Chair: Anything else from members?
Seeing no further questions, thank you, sir, for your willingness on short notice to appear before the committee. It is very much appreciated by all of us.
Mr. Therrien: You're welcome.
The Chair: That concludes today's meeting. A reminder that we have two more meetings scheduled next week to wind up our consideration of the legislation. The plan, of course, is to do clause by clause on April 12 and then report back to the Senate on that date.
(The committee adjourned.)