THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 2, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:15 p.m. [ET] to study Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts.
Senator Brent Cotter (Chair) in the chair.
[Translation]
The Chair: Good afternoon, honourable senators.
[English]
My name is Brent Cotter. I’m a senator from Saskatchewan and I’m the chair of the committee. This is the Legal and Constitutional Affairs Committee. And I want to invite my colleagues to introduce themselves, starting on my left with our deputy chair.
Senator Batters: Senator Denise Batters, senator for Saskatchewan.
[Translation]
Senator Carignan: Claude Carignan from Quebec.
Senator Dalphond: Pierre Dalphond, senatorial division of De Lorimier, in Quebec.
Senator Audette: Kuei [Innu-Aimun spoken] Michèle Audette from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Simons: I’m Senator Paula Simons from Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Bernadette Clement from Ontario.
[English]
Senator Tannas: Scott Tannas, Alberta.
The Chair: Thank you.
Honourable senators, we are meeting to continue our study of Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts. Senator Dalphond is the sponsor of this bill.
We are pleased to welcome, as an individual, Professor Steve Coughlan of the Schulich School of Law at Dalhousie University. He is joining us by video conference. Welcome, Professor Coughlan, and thank you for your patience as we organize ourselves to commence consideration of this bill at this point today. We were somewhat delayed by developments on the floor of the Senate, but we are here and well under way.
We are going to begin with your opening remarks before we move to questions from members of the committee. The floor is yours for approximately five minutes, and that will be followed by questions. Professor Coughlan, please go ahead.
Steve Coughlan, Professor, Schulich School of Law, Dalhousie University, as an individual: Thank you very much, Senator Cotter, and thank you, senators, for the opportunity to speak with you about this bill.
I understand the worry about Canada Post, in particular letters sent via Canada Post, becoming a “safe haven” for drug traffickers. In general, I don’t think I have a concern about something being done in the manner that this bill proposes. The lingering concern I do have with the proposed approach is that, especially in the context of letters, it takes the state from having no ability to open letters to having too much ability to open letters. I wonder whether the balance has been struck correctly.
Two related considerations, I want to say, lead me to have that concern. One is that not everything sent by mail is equivalent one to the other, and the other is that not all warrants that allow the state to investigate are equivalent.
First, the Canada Post Corporation Act, of course, draws that distinction between letters and other things sent by mail in subsection 41(1). That is not being changed, but the inability of inspectors to open letters is part of what leads to this concern. It is worth thinking about why that distinction is there in the first place. Obviously, I think, it relates to the different contents of a letter as opposed to a parcel, and it is motivated by the same kind of concern that led Parliament to limit the power to intercept private communications within very tight bounds.
Of course, those rules are about electronic interception; they don’t apply literally to letters. However, the same kinds of privacy concerns arise. This has been noted a number of times in case law. Indeed, just last month, the Ontario Court of Appeal said that physical mail carries high privacy interests because it often contains sensitive information concerning the sender or recipient’s identity, personal life or political or religious beliefs. So letters can be particularly private.
The other point is that not all search warrants are equivalent. Section 487 warrants are relatively freely available. They can be sought by anyone responsible for enforcing any laws — so not just crimes, but fishery and wildlife offences. They can be issued by not just a judge but also a justice of the peace. We can contrast that with warrants to intercept private communications on a non-consent basis — the thing that is very private — where they are much more difficult to obtain, only a specially designated agent can seek them and only a superior court judge can issue them. So we try to balance the privacy interests at stake with the kind of authorization.
I note that Senator Carignan, in speaking to this bill, had said that, in principle, it would be possible just to repeal subsection 40(3). There is a reasonable expectation of privacy in all mail and certain protections would apply. I completely agree with that, but if that were to happen, that tosses to the courts the task of determining what level of privacy protection is necessary for the privacy interest at stake.
The current statute gives some hint about that. Currently, warrants can only be issued under the Canadian Security Intelligence Service Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. The Customs Act and Proceeds of Crime Act are about mail crossing the border, which raises special concerns. The only one about mail inside the country is the Canadian Security Intelligence Service Act, or CSIS Act. That actually has more protections in it than an ordinary search warrant. It can’t be sought by any police or public officer; it needs someone specially designated. It can’t go to a justice of the peace; it has to be a federal court judge. Additionally, the investigative necessity requirement, which is used for interception of private communications, also applies there.
This bill suggests that warrants should also be available to search for evidence of ordinary crimes, such as trafficking and narcotics, not just for national security. That’s a fair point. But extending it that way doesn’t change the high individual privacy interest at stake, and, indeed, where the competing state interest is ordinary crime as opposed to national security that typically means we need to impose extra limitations on the search power.
So an ordinary section 487 warrant might not be calibrated correctly and might actually be unconstitutional. Of course, this law goes further than that by allowing searches under an enforcement statute, which are also provincial statutes and bylaws created by Indigenous governing bodies. There is the risk that the amount of protection needed because of the privacy interest and the amount of protection given will be out of step.
Personally, I think it might be appropriate to require that a general warrant under section 487.01 be the minimum standard. As a practical matter, that’s what police often use now when they are dealing with courier shipments of drugs because they frequently don’t just want to seize the thing; they want to, say, put a tracking device in it, see where it goes, they want to arrest the person when it arrives and so on. So a general warrant would offer more protection, and I do not think it would pose practical obstacles to the police in pursuing this.
As a final closing observation, I want to say that it is easy to think of this issue in the context of “Let’s seize the fentanyl” because it is such a threat, and that is not untrue, of course. But the issue that must be kept front and centre for Charter purposes is that this is a power to open private mail, so the power has to be based upon the limits and requirements that match the privacy interests of everyone whose mail might be opened, not just those people who are using the mail to commit offences.
Those are my opening remarks, Senator Cotter.
The Chair: Thank you very much, professor. I’m going to now invite senators to pose questions.
Senator Batters: I appreciate you being here today, professor, to help us with the study on this bill on relatively short notice. Thank you very much for answering the call.
Can you please go a little bit further into how you believe these amendments contained in Bill C-256 comply or not — I believe you think that they do comply — with the protections afforded by the Charter, in particular the right to be secure against unreasonable search or seizure in section 8 of the Charter?
Mr. Coughlan: Sure.
To elaborate on that a bit, the Supreme Court of Canada has said that for there not to be a violation of section 8 when there is a search, three requirements have to be met. One is that the search is authorized by law, and, certainly, this is going to do that by changing it not just to be the CSIS Act and so on but to be in the Criminal Code and provincial statutes; it will be authorized by law.
The second step is that the law itself has to be reasonable, and that’s where I have some concerns as to whether this would be Charter compliant. There is no hard-and-fast test for this. For example, in Goodwin, the Supreme Court of Canada has talked about how you decide whether a law is a reasonable law or not. Typically, in broad terms, it comes down to balancing the privacy interest at stake with the requirements to obtain the warrant.
To offer a simple example, we have two different types of tracking warrants. I have mentioned that police often want to, say, see where a parcel is being delivered so they can get proof that the recipient is also involved in importing the narcotics or something of that sort. A tracking device for an object only requires reasonable suspicion because all we’re doing is tracking an object; we’re not really infringing on privacy very much.
But if we attach a tracking device to a person so that we see where their movements are, well, now we have got a much higher privacy interest at stake, and that requires reasonable grounds to believe they are committing an offence as opposed to reasonable suspicion. This is what I mean by calibrating the requirements for the search against the privacy interest at stake.
That’s where I come in here. I think that the privacy interest in letters, as opposed to mail generally, is quite high — higher than usual. Therefore, maybe we should have a higher standard than usual for the search than section 487.
Senator Batters: Okay. Would you suggest any amendments to Bill S-256 to alleviate any concerns you have in that regard? I note that right before this committee meeting, Senator Dalphond circulated some proposed amendments that he plans to make to this bill that he is sponsoring. He will undoubtedly bring this up perhaps even later in this meeting, but I’m not sure if any of those are to deal with this issue or not. Are there any amendments that you would suggest to alleviate any concerns that you have?
Mr. Coughlan: There are various provisions in the Criminal Code, one of which is the general warrant. Rather than simply say “an enforcement statute,” which then is likely to lead to Charter challenges about each particular power which is used, personally, I would just have it say a general warrant under section 487 and limit it to that or potentially a general warrant or something with equivalent protection. Some provincial statutes, for example, do have search powers that set equivalently higher standards for something like a general warrant. So language like that, a general warrant under 487.01 or its equivalent in the law of a province or made by a council, government or other entity authorized to act on behalf of an Indigenous group, something like that.
Senator Batters: Pretty good drafting right off the cuff. Thank you.
Mr. Coughlan: Mostly I was reading.
The Chair: Thank you both.
Senator Dalphond: Thank you very much for being with us today. Thank you for coming up with comments on short notice. We reached out to you earlier on this week or last week. You took the time to read the bill and to provide your contributions. Thank you very much.
I took notes of what you just said that we should be clear. It was always my intent that judicial authorization was required. Are you suggesting going into further detail and to provide that it would be under a general warrant or its equivalent pursuant to federal legislation, provincial legislation? That could be easy. How will that fit with bylaws issued by a council?
Mr. Coughlan: Well, I’m not sure that that creates a particular problem that isn’t already there anyway. Presuming that it is sufficient to have bylaws made by a council on behalf of an Indigenous group, that satisfies the authorized by law part. Satisfying the law itself is reasonable is the content of that law. So presuming that there is legislative authority in those councils in the first place — and I’m not challenging that and I’m taking it that you are satisfied there is — all this is saying is not going to their jurisdiction to do that; it is only going to the minimum content of such a law.
Senator Dalphond: In the test that has to be applied, that the seizure is authorized by law, that would mean that test is not a problem.
The second test is in connection with section 8 of the Charter. It is authorized by law, but is that law reasonable? The fact that there is evidence that the mail system is being used or abused to deliver fentanyl and other very powerful and deadly drugs will be a factor to consider in the analysis by the court.
Mr. Coughlan: Well, yes and no to some extent. What the law has to be weighed against is the privacy interest which is at stake. The Supreme Court has been pretty consistent for about 30 years that in assessing the privacy interest at stake, that’s got to be in a content-neutral way that does not look at the underlying criminality of the behaviour.
The first case in which the Supreme Court said this was a case called Wong where the accused was using a hotel room to conduct illegal gambling. The Crown wanted to argue that you don’t have a reasonable expectation of privacy in conducting illegal gambling in a hotel room. The Supreme Court said we have to ignore the illegality. The question is, if you rent a hotel room, do you have a reasonable expectation of privacy in it?
I want to say the same thing should be seen as true. If you send something by mail, do you have a reasonable expectation of privacy in it? It is not if you send fentanyl by mail, do you have a reasonable expectation of privacy?
Senator Dalphond: That’s the real issue, putting it in an envelope with an address on it and no message, and inside a small content of fentanyl in a special pouch is bringing with it some expectations of privacy?
Mr. Coughlan: Well, yes, it is because it is a content-neutral approach to it. If you use the mail, do you expect privacy? I think we do.
Though this does raise a point, senator — and no doubt this is something you will know more about than I do — is it actually necessary to open these letters to find out whether there is fentanyl in them? My understanding is that, for example —
Senator Dalphond: It is not necessary. The screening will be sufficient to indicate that we can do it.
The Chair: Can you let the witness complete his question, senator?
Senator Dalphond: I thought he was asking me a question.
The Chair: He is, but he didn’t quite finish the question. Go ahead. Your chance to question senators.
Mr. Coughlan: That’s great. Something to look forward to.
My concern is based on the privacy interest in opening mail because when you open mail, you look at it and you see what is there. But if all you do is use a drug-sniffer dog, you never open it, and I think anyone would happily concede that the privacy interest is less there. There is not as much of an intrusion on privacy. It is kind of a question as to if this is only about examining externally, well, that’s a very different question from opening it up to see what is inside.
The Chair: Senator Dalphond take a bit more time if you have some additional questions.
Senator Dalphond: I’m fine. Thank you.
Senator Simons: I’m so thrilled that you are able to be with us here today.
I want to come at this from a different direction which is the issue of the language “enforcement statute” which, as you said, is very broad. It could cover fish and game violations. It could also cover bylaws that a First Nation might set for itself which might include things that bump right up against Charter rights.
We had witnesses before us who suggested, for example, that they would like the power to screen every letter and every package that comes onto a reserve.
I am wondering if you feel that there would be a better language than “enforcement statute” that would narrow this. It would be the corollary of what you are saying about what is the threshold to search.
Mr. Coughlan: Yes, I have suggested it requires a general warrant, but a better way to do it perhaps might be to impose the requirement or that it is any act of Parliament, provincial law or bylaw which includes as a requirement that issuing the warrant is in the best interests of the administration of justice because that is, for example, one of the additional requirements which is imposed by general warrants, also imposed by non-consent interceptions.
The point you are making, senator, is that if any jurisdiction with the ability to create an enforcement statute here could, theoretically, create one that allows them, as you said, to examine every letter that went through, unquestionably, in those circumstances, someone is going to challenge that under section 8. As I said, we’re going to say, “Yes, that is authorized by law,” but I think it is undoubted that a law like that would be found to be unreasonable.
So even if such a law were passed, you are going to get a Charter challenge, the underlying legislation is going to be struck down and something stronger is going to be ordered to be put in its place. In essence, I’m just trying to anticipate that and say that if you set too low a standard, you are going to get a Charter challenge and a court is going to tell you have to have more protection. I’m suggesting let’s work that in right now rather than wait for that to happen.
Senator Simons: All right.
As a second question, you probably have not seen the amendments that Senator Dalphond has proffered.
Mr. Coughlan: I have not.
Senator Simons: All right. One of the amendments he is suggesting is to give Canada Post greater powers to open the mail. It is an amendment to subsection 41(1) before paragraph (a) where it would be replaced by the following:
The corporation may open any mail if it has reasonable grounds to suspect that
— which, as I understand it, Senator Dalphond would give postal inspectors new powers to open mail, presumably without a warrant in advance. Does that open any new concerns for you, professor?
Mr. Coughlan: It does. It depends upon exactly what is done with that. I recognize that the response to the Gorman decision in Newfoundland, which said you can’t open parcels without reasonable suspicion — so this bill has been saying you need reasonable suspicion to open a parcel. I think that ignores the distinction between parcels and letters, and the greater privacy interest in letters, so that the same standard probably does not apply to the two of them.
But the other issue that arises here is that we have to distinguish — and I say we have to because the Supreme Court says we do — between searches for criminal law purposes and searches for regulatory purposes, where all —
Senator Simons: — searches for customs, yes.
Mr. Coughlan: Exactly. In the Customs Act, we just want to see that somebody hasn’t dodged the duty they are supposed to pay or something like that.
We regularly allow regulatory search powers in circumstances where, if it were a criminal context, we wouldn’t allow because the stakes are low. We often require people to self-incriminate when, say, they are reporting how many fish they have caught so we can check whether they overfished and be fined for that. But that’s not criminal; that’s all just regulatory stuff.
The case law has a little ambiguity, I’ll acknowledge, but the general thrust of the case law is that you can’t do an end-run around the limits on criminal powers by pretending that you are just doing something regulatory and then finding the stuff and using it for criminal purposes. That’s not to say that if you legitimately are doing it for regulatory purposes and find evidence of a crime that you can’t hand it over — you absolutely could — but if the goal is to pretend we’re not really doing criminal law, then I think Charter problems are going to arise there.
Senator Simons: Second round, please.
[Translation]
Senator Carignan: I’m going to ask the witness a question I’m discussing with Senator Dalphond.
I’m on page 2 of the bill, clause 3, line 15 of the French:
(3) Malgré toute autre loi ou règle de droit, mais sous réserve des autres dispositions de la présente loi, de ses règlements ou d’une loi d’exécution —
— so this is about the other act —
— rien de ce qui est en cours de transmission postale n’est susceptible de revendication, saisie ou rétention.
The clause starts with, “Malgré toute autre loi ou règle de droit”, so it kind of grants preponderance to the act, and then it makes an exception, so it’s circular. Don’t you think that should be amended, or that the words “toute autre loi ou règle de droit” should be deleted, because if it stays in, the clause contradicts itself?
[English]
Mr. Coughlan: I confess that I had to read through the whole bill a couple of times to really get my head around the way that it works. I’m with you on that, Senator Carignan. I think that’s all right because the first part that says “any other law” is generally saying most laws won’t allow us to open the mail, but then when it says “except as subject to this act or an enforcement statute,” then it is saying — although most other laws don’t override the Canada Post Corporation Act, enforcement statutes override the Canada Post Corporation Act.
I agree it is confusing, but I think it is right in the end.
Senator Carignan: Okay.
Mr. Coughlan: It could be phrased more clearly, but I think it is okay.
[Translation]
Senator Dalphond: Okay. That was my question. You have to reread it a few times. Thank you.
[English]
Mr. Coughlan: Yes, I agree.
[Translation]
Senator Audette: I thank the witness. I’m going to speak in French, mainly because I’m surrounded by people who are knowledgeable about the law, and there are, of course, different systems of law.
I’m from the North, from Shefferville, which is far. Canada Post is the only entity that transports things from the south and elsewhere into our territories, places like James Bay, Ontario and the rest of Canada.
People there are dying of suicide and overdose. What’s happening in our communities is incomprehensible. There have been 19 suicides in Cree communities in a very short period of time. They submitted a brief. They sounded the alarm. Drugs getting into communities via Canada Post is an emergency. It’s not because of Canada Post. They’re not the ones sending the drugs, but their system allows it to happen. This void allows people to do something unacceptable. How can we make this happen faster? Yes, they’re trying to protect people’s privacy, and that’s important, but how can we protect people’s lives and put a stop to the incredible losses we’re seeing in the North? Boxes come in, they can be opened, there are confidential things inside, but they can be stricter depending on the size of the letter. In 2024, organized crime exploited that weakness. Can you suggest anything to protect Northerners? They’ve submitted recommendations and briefs about this crisis.
[English]
Mr. Coughlan: Sure. Obviously, I can’t solve the problem, but I can respond to your question, senator.
It does seem to me that, given the underlying sentiment behind this bill, there ought not to be a blanket prohibition on any method of checking the mail. That’s actually quite sensible, and it strikes me that this is equivalent to what I have already mentioned regarding the interception of private communications. When those provisions were first brought in, which was before the Charter, we made an absolute exclusion of any evidence obtained illegally because we didn’t have the Charter. The only thing we had was kind of the blanket rule you have to not use it at all.
Once the Charter came in that allows for balancing, we changed that rule. I think this rule around you just can’t open the mail is the same kind of thing. It was a rule that was brought in to protect the privacy interest when there was just that binary choice, yes or no. But, of course, now we’re not faced with that binary choice, so I think it does make sense to allow there to be circumstances in which the mail can be searched.
I’m repeating myself, I confess. But the two things are that we have to calibrate the power accurately to open the letters, but I do think that it is worth investigating — and I don’t know the facts around this — more the options for searching without opening. Because if, for example, sniffer dogs can detect it, well that’s not a very big invasion of privacy, right? Maybe there are other methods of detection other than sniffer dogs, some kind of scanners that can work out whether the outside of the envelope or something like that has come in contact with fentanyl. Those are things that would engage a lower privacy interest.
Typically sniffer dogs we allow on a reasonable suspicion, and then the notion is that if there is reasonable suspicion, you use a sniffer dog and a sniffer dog says, “Yes, it’s there.” Now you probably have the grounds to get a warrant and you worked your way up without jumping immediately to let’s open everybody’s mail. That’s the point. I don’t want to say we don’t get there, it’s just how do we get there?
Senator Audette: What if the community or nation has its own legislation or rules but they can’t afford to have dogs? They probably have another technology or people who are educated to be investigators in the community. Do you think their laws should be respected so they can do what they do to save lives?
Mr. Coughlan: Right. I personally think that we should be making more room for Indigenous self-government than we are, but I do also think that has to respect the Charter of Rights and Freedoms because that is also an overriding law here. I think we need to find the balance between those two things.
I wonder whether Canada Post can’t be fixed with some obligation in this case, though, if the issue is cost.
Senator Clement: Thank you, professor, for being here and providing different aspects concerning this legislation.
I just wonder about increased police activity power. It has led in some cases to an over-representation or the over-policing of certain communities — Black people, Indigenous people in particular. I wonder if you have any issues with the legislation in terms of that aspect or whether this conversation around requiring a search warrant in the more traditional sense addresses that, do you think?
Mr. Coughlan: There is nothing on the face of this law that is discriminatory. Of course, there is nothing on the face of most of our laws that is discriminatory and the issue is over-policing.
It’s a challenge because police — not just in this context but in any context — frequently rely on profiles. They think for things that are coming into the country or travellers who are coming into the country, “They’ve come from the Caribbean, and that’s a source country for drugs,” except, of course, that also often means, well, they’re someone from the Caribbean who now lives in Canada, so we’re disproportionately stopping people of colour. I do think there is a concern in that kind of context around confirmation bias in particular. Well-meaning police officers think that they detect patterns and, like the rest of us, they think they’re detecting patterns that aren’t there. That’s what confirmation bias does to all of us. I agree that’s a legitimate concern with any police power that we create.
Possibly it’s less of a concern around mail and searching the mail. I don’t know. It seems likely to me that you’re still going to have to show the reasonable grounds you would need for at least a section 487 warrant. You’ve got to know something about the circumstances. There is still that same danger for differential enforcement of the law. I don’t know that it’s any greater in this context. It’s probably no less, but I doubt that it’s any greater.
Senator Clement: Thank you for that thoughtful answer. I appreciate that.
I have to admit to you and my colleagues that when we started talking about screening with sniffer dogs, I thought sniffer dogs would be objective and maybe not as imbued with the systemic racism that our system currently suffers from. That is just an additional comment there.
I wondered if I could take you to section 2.1 of the bill, the notice of seizure or detention section, professor. Do you have it in front of you?
Mr. Coughlan: Yes, I do.
Senator Clement: That’s where there is a notice that is sent out to the corporation when there has been a seizure or a detention of mail. I wonder if notice should also be given to the addressee as well. Do you see that as something relevant or is that not an issue?
Mr. Coughlan: I think it is. Is that not covered somewhere else in the act already? The reason I say that, senator, is that if you go to the next page and, for example, the amendment to section 490 of the Criminal Code —
Senator Clement: Yes.
Mr. Coughlan: — of the Controlled Drugs and Substances Act or the Cannabis Act, I believe those are provisions which are about notice to the addressee — or at least certainly that’s what 490 is. So the addition of 19 I believe is accomplishing that, of giving notice to the addressee.
Senator Clement: Okay. So it doesn’t also need to be in that section then?
Mr. Coughlan: Well, I don’t want to on the fly guarantee that.
Senator Clement: Okay.
Mr. Coughlan: But I think it has been thought about.
Senator Clement: Okay. Thank you very much for your answers.
[Translation]
Senator Oudar: I thank the witness for clarifying that.
I want to go back to a concept you talked about earlier, which is the reasonable expectation of privacy, something we defend here as well. I’d like you to speak to something you didn’t discuss earlier, which is the fact that, to me, that same reasonable expectation of privacy applies to private courier companies, such as FedEx, UPS and Purolator, as well.
Why is there a double standard, and why is it allowed for private courier companies but not Canada Post? Isn’t that an incentive for bad actors to use Canada Post to commit crimes?
Can you speak to the distinction between private courier companies and Canada Post when it comes to the reasonable expectation of privacy? I don’t understand how it can be applied differently when the people being served are the same.
[English]
Mr. Coughlan: So to the extent that — the distinction now, of course, is that private courier companies can be searched and Canada Post just has complete immunity, I agree, that distinction doesn’t seem to make any sense.
So I do think it’s legitimate to have search powers for mail. It’s just a question of what search powers there should be for mail.
I’m actually quite willing to concede that the argument against my suggestion that it should be higher than an ordinary search warrant is that it does seem that nobody’s challenged the use of an ordinary search warrant if it’s Purolator or FedEx. That might just be a challenge waiting to happen, honestly, but it doesn’t seem to have happened. However, it is also the frequent case with private couriers that, in fact, the authorization the police seek is not a section 487 search warrant because they don’t just want to look at it; they seek a 487.01 general warrant, which is what I’m suggesting ought to be the standard imposed for Canada Post.
I don’t think it imposes a practical obstacle that’s going to undermine the goal of this legislation by saying that because that is, as a matter of fact, what police often do when dealing with private couriers anyway.
[Translation]
Senator Oudar: We’re still going to end up with a solution that’s a double standard. I read section 487 when you were talking about it earlier. It sets out conditions for conducting a search and provisions that are different for the use of Canada Post.
I learned about that here in the committee, but I’m not sure Canadians are aware of how mail is treated differently by those two entities, except, of course, as I was saying earlier, people pursuing nefarious ends, to whom that type of service appeals because they know there’s less monitoring and protection. That’s what we’re up against in the work we’re doing here, but thanks for sharing your perspective on the issue.
[English]
The Chair: We have a few senators who would like to ask a question on the second round, but just before we get there, I wanted to explore something that I guess is contextual.
As you identified, we have this increased respect for privacy associated with letters. It’s a historical perspective. But what we are experiencing is that letters have now become a mechanism by which contraband can be moved through the mail in ways that items we have historically considered contraband could not previously.
I wonder whether that societal change, if I can call it that, and the use of a new means of transport of contraband — or a different kind of contraband — ought to invite us to rethink and think to a lesser degree about the high expectations of privacy that letters should have.
Are we in a new era and need to have some different thinking about the nature of privacy and letters in ways that we didn’t have before?
Mr. Coughlan: There is room for incorporating that as a consideration. I don’t think it goes to the nature of the privacy interest in mail; I think the nature of the privacy interest in mail is unchanged by what it’s being used for. However, when we try to decide whether a law is reasonable, we’re typically looking at the privacy interest at stake and the state interest at stake, and balancing those against each other.
We have, for example, long thought that border security raises the state interest. It is a particularly strong state interest. Therefore, even though the privacy interest remains the same, we’re willing to allow searches more readily at the border.
So there’s scope for the kind of argument you’re making, Senator Cotter, that the ability to send fentanyl in letters has actually upped the stakes on the state side, so even though the individual privacy interest is still the same, the competing state interest is a stronger one than it used to be, which therefore justifies allowing for a search.
But, of course, you are allowing for a search with the law. You’re shifting from no power at all to actually power pretty freely available.
The Chair: Thanks. That’s a helpful way of enabling us to think about it.
Senator Dalphond: Thank you very much again, professor.
Some amendments have been suggested by previous witnesses, including when we studied the budget implementation act a year ago, such that we provide inspectors the ability to open letters. They can open parcels; the mail includes letters and parcels. I think you’re suggesting that inspectors should be limited to screening and not be able to open — am I right?
I distinguish between the police officers who have to seek a judicial authorization before they can intercept the mail, whether it be a letter or a parcel, and they can now intercept nothing in the mail because of the way the law is drafted.
But inspectors do inspect, including letters, and it’s easy for them to see that a letter containing drugs will have no return address. The machines can see that, so that’s easy to be removed. They can also have devices to screen the machines. They say in their brief that, since I’ve met with them in the last few years, I think the number of inspectors has been increased from 22 to 80 postal inspectors. That’s good news. They are trained to detect and remove non-mailable matter, including opioids, from the postal system.
Maybe for them we don’t need the authorization to open letters. Maybe they can discard those letters, provide tips to the police and the police will seek the judicial authorization to seize the letter that has been removed from the line.
What do you think of that?
Mr. Coughlan: It’s going to depend exactly how it’s structured, but, in principle, that kind of step-by-step approach occurs in a lot of places in the law. It is not illegitimate. It’s a question of whether what the postal inspectors discover is enough to be, say, the reasonable grounds to get the warrant.
But this is the kind of thing that becomes a bit messy. Let me offer an analogy here that has arisen. This is from a Supreme Court case called Jarvis, which has to do with income tax. The Canada Revenue Agency has two branches: people who audit you to see whether you owe more money and the investigators who see whether you’ve committed tax fraud. The second one of those is pretty high stakes, and they need the kind of criminal law to go and get a warrant in order to see your records. But an auditor can tell someone to bring all the records to go over them to see if enough tax was paid.
The Supreme Court said in Jarvis that if what you really want to do is criminal law investigation, you can’t tell the auditor to have a person bring in the records to be looked at. You can’t cheat the system that way.
So a step-by-step approach — an inspector finds something, acting legitimately for non-mailable matter reasons, but that then triggers them to call the police — that’s fine, but if it’s like an end-run around the legitimate requirements or looks like an end-run, then maybe there’s a problem. The distinction is not going to be straightforward there.
That’s the thing to keep in mind, from my point of view.
Senator Dalphond: Thank you.
The Chair: We now have two senators on the second round. I will invite you to limit your questions to three or four minutes, including the answer.
Senator Simons: Canada Post only sent us their brief this afternoon; at least, that’s when I received it. They raise an interesting question about the federal constitutional authority to regulate the national limitations of the mail.
I’m going to quote a little bit from them because they’re quite opposed to the bill. They say:
Bill S-256 would empower any province and/or community described in section 2(c) to pass an “enforcement statute” that would, on the face of things, be binding on Canada Post. Leaving aside the potential encroachment upon federal constitutional authority to regulate the national postal service, the definition of “enforcement statute” is untenably broad. . . .
They say that it’s, “. . . vague, over-reaching and clash with Canada Post’s mandate and operational necessities.”
They also say there is no requirement that the provinces or municipalities act consistently with one another and suggest a scenario where there could be bylaws that are in conflict.
I know constitutional law is not your bailiwick, but I wonder if you think there are any constitutional enforcement questions in having so many different orders of government all under the umbrella of enforcement statutes.
Mr. Coughlan: Well, maybe I can say from the start that this raises a potential further benefit of my suggestion of setting minimum standards for what the enforcement statutes have to say, right? Because then you don’t get into that, oh, it could say anything, right? It’s as long as it is a statute which says at these things that will be okay. I would suspect that there’s not a division-of-power issue over this if it’s seen as done legitimately for a purpose within the bounds given to the lawmaker.
Now, where we’re talking about intercepting fentanyl because it’s against the law, that’s fine for an act of Parliament. Depending on where we land on Indigenous self-government, perhaps it’s okay for the bylaw, but that is definitely a question there.
I’m not sure of the law of a province, though, on a division-of-power basis because I think provinces could legitimately act to limit what Canada Post does if they’re acting for a legitimate provincial law purpose. But if it’s the investigation of crime, that’s not a legitimate provincial purpose; that’s only a federal purpose.
Senator Simons: Okay. Thank you very much.
[Translation]
Senator Audette: People are used to traffic stops for Breathalyzers and drug tests. I commented on that last week, too. At the airport, officials can randomly pull people aside and search our belongings and open our bags. It’s very intrusive. Those are our personal things.
Why is that approach considered acceptable under the Charter? Why is there this discomfort with what First Nations want to see done about organized crime getting in? The two examples I gave have to do with the Charter. You’re an expert; can you tell us how we can be sure this bill will indicate that First Nations are going to respect it? I see contradictions here with respect to the Charter.
[English]
Mr. Coughlan: I’m not entirely sure what the question was, to be honest.
Senator Audette: I’ll try quickly in English, and I’ll do my best. The police can stop to do alcohol tests to know if the driver is sober.
Mr. Coughlan: Yes.
Senator Audette: Or at the airport, like I mentioned last week, they can open up my luggage — and it’s very personal stuff in my luggage or any luggage I hope — and the Charter seems to accept that. But to send an envelope with drugs, then we talk about the Charter, where it’s defending one side. Why it’s working on the other side, but not what we’re hoping to bring and to protect the community.
Mr. Coughlan: Senator, if they’re opening your luggage and you haven’t just arrived in the country, you actually should be objecting to that because like just flying around from place to place, they shouldn’t be opening your luggage. But we have these special concerns about — at least not routinely, but we have the special concerns about coming into the country and there are various rules set out around screening.
Senator Audette: For clarification, what we say in English — I’m from Canada. I leave from Quebec City to Ottawa and sometimes randomly they will open my luggage. Thank you.
Mr. Coughlan: I’d be complaining about that if I were you, honestly. I’m not certain how that is happening.
The Chair: Looking around the room, Professor Coughlan, that concludes the questions we have for you and the conversation with you. I want to extend my thanks and the thanks of the committee for you taking the time with us — entirely you with us for this hour — and also the preparation you did on short notice to help us as much as you have.
I’m going to bring this session to a close shortly. Colleagues, as a reminder, we will proceed to clause-by-clause consideration of Bill S-256 tomorrow. I think as you have heard in the conversation, Senator Dalphond has circulated some proposed amendments for consideration tomorrow. If there are others who may have amendments, out of courtesy, if you’re able to share them with committee members in advance of our consideration of the bill, that would be great.
Seeing no other conversation necessary, I’m going to bring this session to a close. I invite members of the steering group to stay behind shortly for a meeting. This session is adjourned.
(The committee adjourned.)