THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Thursday, October 3, 2024
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 11:46 a.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, senator from Saskatchewan, and I am the chair of this committee. I’m now going to invite my colleagues to introduce themselves, starting with the deputy chair.
Senator Batters: Senator Denise Batters, Saskatchewan.
[Translation]
Senator Carignan: Claude Carignan from Quebec.
Senator Dalphond: Pierre J. Dalphond from Quebec.
Senator Audette: Kuei [Innu-Aimun spoken]. Michèle Audette from Quebec.
Senator Oudar: Manuelle Oudar from Quebec.
[English]
Senator Duncan: Pat Duncan from the Yukon. I’m substituting for Senator Kim Pate this morning.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Clement: Senator Bernadette Clement, Ontario.
The Chair: Thank you, colleagues, and welcome, Senator Duncan.
At steering yesterday, we gave consideration to reprioritizing the bills under consideration at this committee. I think in informal discussions, we reached the view that there is a consensus to do exactly that. Upon completion of the consideration of Bill S-230 next Wednesday, we will move to consideration of two C bills beginning next Thursday. I will take it there is a consensus on that within the committee, absent any objection? Are we agreed on that?
Hon. Senators: Agreed.
The Chair: Thank you all. Thank you, Senator Dalphond, for having prepared a motion that turns out to be unnecessary now.
Senators, we have taken care of the question of that motion, and we can now move on to the main purpose of our gathering today, which is to undertake our main item: meeting to begin clause-by-clause consideration of Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts.
So turning now to Bill S-256, colleagues, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-256?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
You have an amendment to propose to clause 2?
Senator Dalphond: Yes. Mr. Chair, if you allow me.
The Chair: — clause 3 rather than clause 2, Senator Dalphond. But I don’t want to presume —
Senator Dalphond: I can introduce what I proposed for clause 2 and also deal with clauses 3 and 4 at the same time.
The Chair: It is a bit tricky with respect to clause 3 because we also have an amendment to that clause proposed by —
Senator Dalphond: I understand, but if I could explain what I am going to propose.
The Chair: Sure. This is on the amendment to clause 2.
Senator Dalphond: Correct.
The Chair: Thank you.
Senator Dalphond: My proposal is to delete section 2, to delete section 4 and to rewrite section 3. So, essentially, I’m going to explain: It is going to be like Senator Boyer’s bill. It is two and a half pages that become one page.
I have listened carefully to what was said. I also read the brief that we got kind of late in the game from Canada Post. As you know, I was reading it yesterday as we were going on, quite frankly.
Some concerns were raised about some of the amendments that will have impacts on their operations, including provincial laws and the immunity of maybe a federal agency of the Crown versus provincial laws. I see they were raising interesting flags and concerns — I also came to the conclusion that we maybe could do the things in a simpler way.
What we are trying to achieve here and the intent of the bill is essentially to stop the distribution of fentanyl through envelopes. That’s part of the mail; envelopes are one part of the mail. There are also the parcels. There are also inspectors that have functions to carry out.
My bill is focusing on mail, including parcels, which, under the current systems, are free from seizure because the laws says that you cannot seize them when they are in the mail — from the time they are posted to the time they are delivered. So what we’re trying to do here is to give the police the power to obtain the judicial authorization to seek from a judge authorizations to seize an envelope or a parcel. Yesterday, the witness was clear that he was suggesting that we should go for the highest level of protection because Senator Simons expressed concerns about privacy interests. I think the professor yesterday also raised some issues about privacy. So I think the best way to bring the privacy interest and what we’re trying to do here — protect the public and stop the distribution of illegal products through the mail — is to go for the general warrant. That requires reasonable ground to believe, and not to suspect, which is the criteria for the inspectors but it is something else.
What I am then proposing — we’re dealing with enforcement statutes because they include laws of provinces and a law or a bylaw made by a council. That idea of councils making legislation will remain relevant for the other provisions where we are asking Canada Post to do screenings of some of the mail that is going to some reserves to be distributed among local Indigenous communities. That’s a separate section. So that part of the definition will be incorporated there.
What remains for our search warrant will be clause 3 of the bill, which was amending subsection 14(3) of the Canada Post Corporation Act, which says that nothing can be seized except pursuant to two or three pieces of legislation. And I will propose that, in that provision, we add “except pursuant to a general warrant or the equivalent of a general warrant under any other act of Parliament.” That will cover federal legislation. It won’t cover the fishing permits or licence under provincial laws. For Indigenous bylaws, they will be covered separately in the screening provision.
So if you follow me there, the logic of it is that we delete clause 2 of the bill. That’s what I’m going to propose, and then I will propose to add these words at the following clauses that will deal with search warrants.
Senator Batters: The one thing I noticed is that in the amendments we received earlier, none of the amendments that I noticed included the deletion of that clause 2, but perhaps that’s on something that wasn’t handed out.
The Chair: It was anticipated that a set of amendments included the deletion of clause 2. So we’re playing a bit of catch-up.
Senator Simons: If you are just deleting it, you are just supposed to say — everybody votes against it.
Senator Dalphond: I am proposing to delete, not to amend — I’m proposing to delete clause 2. I am told that you have received what would be page 2 of the bill.
The Chair: Fourteen.
Senator Dalphond: That is the text I’m working on.
The Chair: We should try to make a decision. That was helpful, Senator Dalphond. It prepares us for understanding what the subsequent amendments are.
Senator Dalphond: Sorry about that — but working in real time after yesterday’s testimony.
The Chair: Thank you to your team and for the engagement on this. Are there comments with respect to that? It might be slightly out of sequence, but if the deletion of clause 2 requires a bit of an understanding of what’s going to come next, I would welcome comments or even questions of Senator Dalphond.
Senator Duncan: I have a question about interpretation, but I think Senator Batters was slightly ahead of me, Mr. Chair, so I’ll defer to her first and then I could ask my question.
Senator Batters: Thank you.
My question was this amendment — 3-2-14 at the end — the text of this doesn’t say that clause 2 is deleted. It just goes on to clause 3, and it doesn’t say, “On page 2, line such and such are deleted.” So that will need to be added in so they can achieve that.
Senator Dalphond: — amendment.
Senator Batters: Sure, it is.
Senator Dalphond: Is it?
The Chair: It is not, strictly speaking, an amendment. One can just vote against the clause to that effect.
What I understand here is that Senator Dalphond is proposing that approval of clause 2 be defeated, and he offered an explanation for why that should happen. I think I understand the technical dimension of it.
Senator Batters makes a good point. It’s hard to know what we were going to be doing without a signal of deletion of a clause of the bill. But I think Senator Dalphond has offered an explanation. We are okay in our understanding at this point.
Senator Duncan: My question is specifically on this proposed amendment. So do you want me to wait?
The Chair: Is it a helpful question in order for you to understand whether you support Senator Dalphond’s proposal to actually delete clause 2?
Senator Duncan: No, it is specifically on this amendment, so I will wait.
The Chair: Maybe we will save it until we have dealt with clause 2.
Colleagues, shall clause 2 carry?
An Hon. Senator: No.
The Chair: I declare that clause 2 has been defeated.
— against his own provision. Thank you, senator. Okay. Given the context, Senator Carignan, if you are all right, we may invite Senator Dalphond to carry on with his comprehensive amendments, and then you can offer your views on whether we need your amendment as well.
Senator Carignan: No, that’s okay because —
The Chair: So once we hear from Senator Dalphond and make a decision, you may withdraw your amendment — once we have sorted out Senator Dalphond’s proposed amendment?
Senator Dalphond: He reserves his right.
The Chair: Of course. Do you want to say a bit more about clause 3, Senator Dalphond?
Senator Dalphond: Yes, thank you, Mr. Chair.
So clause 3 will be the original section 3 of the Canada Post Corporation Act, to which we’re adding the words at the end. So if you look at document 3-2-14 — so by replacing line 14 — I will read it. I move:
That Bill S-256 be amended in clause 3, on page 2,
(a) by replacing line 14 with the following:
“(3) Despite any other Act or law, but subject to this Act and its regulations and to the Canadian Security Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, nothing in the course of”;
(b) by replacing lines 16 and 17 with the following:
“except pursuant to a general warrant or the equivalent of a general warrant issued under any other Act of Parliament.”;
(c) by deleting lines 18 to 21.
So you have these three acts of Parliaments that are already in the Canada Post Corporation Act. What we are adding to the existing provisions of the Canada Post Corporation Act are the words that you find replacing lines 16 and 17 with “except pursuant to a general warrant or the equivalent of a general warrant issued under any other Act of Parliament” and by deleting lines 18 to 21. That was dealing with limited liability and all those types of things, which I don’t think are necessary.
The Chair: We’re now into the amendment.
Senator Duncan: It is an amendment further on that I was looking at. It is the new clause 3(1). The new clause that is proposed is what I have my questions on rather than this — Indigenous lands one.
Senator Simons: I want to thank Senator Dalphond for his flexibility in recognizing some of these privacy concerns, which I confess I still have in part. For me, this is still a big jump from the status quo. But I think that raising the standard to “reason to believe” rather than “reason to suspect” and requiring a general warrant give me much more assurance.
There was a question we were discussing last night that, since it all happened out of the room, I want to put on the record here. The old regulations were that Canada Post wasn’t notified if mail had been seized unless it was seized for more than 60 days. We had some discussion among ourselves about an amendment. As I understand it, this would mean that Canada Post would be notified every time because there would be a warrant. Is that correct?
Senator Dalphond: You will see that the notifications are in the current act, and we don’t touch it. It does apply to the three other pieces of legislation. So when a customs officer seizes a mail item that is coming to Canada through the border, Canada Post doesn’t have it yet. It is in the mail bag, let’s say. They pick it out from the mail bag — the parcel or letter. So then they have to notify Canada Post that they took something; otherwise they will not know because, at the end of the process, they get the mail bag but with something missing.
So police would be acting pursuant to an illegal authorization. That warrant, they will have to show Canada Post when they show up and say, “We would like to seize what is in the little truck or in the mailbox there or somewhere in the warehouse.” They will have to show it and provide a copy. They will be notified.
Senator Simons: And that way, in terms of accountability, if, at the end of the year, someone wanted to be asked how many packages were seized and how many letters were opened, there will be a record of that. This won’t be happening —
Senator Dalphond: Seized and remitted to the police, yes. Maybe they don’t open or not, but they will be remitted to the police.
Senator Simons: Thank you very much.
Senator Clement: I want to follow up on that. I had an amendment I circulated this morning on that very issue. I just need assurances from the sponsor that we’re indeed okay.
These are historic changes that are being made, and I know you are dealing with the fact that we have a high level of expectation of privacy around mail. So the point of being able to have a record of every time there is activity being done to mail — that we be able to, five years from now, go back and see how frequently it was used and how often it was done — has value for us in terms of analyzing whether the law is working, whether it is necessary and whether things need to be changed.
So what you are saying is the warrant is the notice, and five years from now, we’ll be able to ask Canada Post how often this has occurred.
Senator Dalphond: — registers of the warrants they get as much as they keep registers of the notice they receive from the border agency. I don’t know what they do with the notices they receive. I don’t know if they file that somewhere in a file where nobody is looking after it, and if you ask five years later if some items were taken at the customs office by customs officers, they might not be able to answer. But they will be notified. What they do with the information is not something that this bill deals with.
Senator Clement: So the warrant is the notice? That’s what I’m trying to get at. I understand what you are saying further: You can’t guarantee what Canada Post is going to get. But the purpose of my amendment was so that we have a record somewhere so we aren’t making changes and aren’t able to come back and somehow track — if people keep records — how this is being used. The change you are making here means that I don’t have to then insist on a notice every time in an amendment?
Senator Dalphond: Correct.
Senator Clement: Thank you.
Senator Dalphond: Correct. Maybe to add to that — maybe it is going a bit in advance — but the following page, we are proposing to amend the Criminal Code to add that the person who was to be the recipient of the mail item will be notified because he is deemed to be the owner. So the property is seized, brought to the police and then disposed of according to — they have to report to the judge that they have an item and what is to be done with it — destroy it, return it, whatever. So you have to notify the owner.
Senator Clement: Okay.
Senator Dalphond: But the owner being here for the purpose of that section that says that for the purpose of this section, the lawful owner of a thing seized in the course of post under the Canada Post Corporation Act is presumed to be the addressee if that person is —
Senator Clement: Right.
The Chair: Thank you. Does that answer —
Senator Clement: Yes, thank you.
Senator Duncan: Again, I am on a different amendment.
The Chair: Next one? Okay.
Senator Duncan: Yes.
[Translation]
Senator Carignan: I’d just like to see, from a technical point of view, where I was proposing my amendment, because the provision has been changed. However, my amendment is still relevant. I would even say that it is even more relevant, given the reference to another federal law, once again. It’s doubly relevant. Are we waiting to adopt the amendment and are we proposing to further amend the amendment with a subamendment?
[English]
The Chair: I think we are supposed to approve this and then invite you to make a subamendment to the amended clause 3. Is that acceptable, colleagues?
So I’m going to now invite colleagues — I hope you don’t ask me to read everything — but it has been moved by the Honourable Senator Dalphond that the bill be amended at clause 3, on page 2, beginning at line 14 and so on. Can I take that as read? Do you want —
Senator Batters: It’s not read in at all yet. I don’t think Senator Dalphond read it all in at the beginning.
The Chair: I think he did, actually.
Senator Batters: I don’t recall that he read it already. I think that he just started immediately to explain it.
The Chair: Colleagues, I’m going to now read the amendment:
That Bill S-256 be amended in clause 3, on page 2,
(a) by replacing line 14 with the following:
“(3) Despite any other Act or law, but subject to this Act and its regulations and to the Canadian Security Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, nothing in the course of”;
(b) by replacing lines 16 and 17 with the following:
“except pursuant to a general warrant or the equivalent of a general warrant issued under any other Act of Parliament.”;
(c) by deleting lines 18 to 21.
The powers that be have suggested that we hold this in suspension and invite Senator Carignan to make his subamendment to this amendment. Then we will have a final amendment to vote upon. This is advice from the clerk and law clerk.
[Translation]
Senator Carignan: Rather than an amendment, it’s a subamendment. I move:
That Bill S-256 be amended in clause 3, on page 2, by replacing line 14 with the following:
“(3) Nothing in the course of”.
The paragraph will therefore begin with “Sous” in French.
[English]
In English, the amendment in clause 3, on page 2, by replacing line 14 with the following: “Nothing in the course of.”
[Translation]
The objective remains the same as the one I raised yesterday. I think we’ve discussed it —
[English]
The Chair: Can I interrupt just to make sure that everybody knows, this is the first of the package. It appears as CC-256-3214. Sorry, Senator Carignan.
[Translation]
Senator Carignan: In drafting, this became a circular argument and risked creating interpretation problems. The problem is even greater today with the amendment, because it refers — at the very end, no less — to a mandate issued for this purpose under another federal law. This amplifies the effect I mentioned yesterday. It will make it all the more relevant to completely remove this notion of paramountcy so that the new section proposed by Senator Dalphond can be the regime itself, without the need to refer to “Despite any other Act or law”.
[English]
The Chair: Could I invite you, Senator Carignan, to move this as a subamendment to Senator Dalphond’s amendment?
[Translation]
Senator Carignan: Certainly. I thought I had done it. I move:
[English]
The Chair: Colleagues, it has been suggested, just so that we have clarity on this, that we suspend for a few minutes so a document be prepared to capture this in the proper form of a subamendment. We have the amendment, but we are now capturing it as a subamendment to Senator Dalphond’s amendment. This will only take a moment.
Senator Carignan: Okay, I got it. It doesn’t work to be a subamendment because the references are not good.
The Chair: Right. We will clear that up.
We’ve cleared it up just to ensure that this is procedurally precise. We now have, and have distributed to you, the language of Senator Carignan’s amendment. I’m going to invite him to move it in the present language and read it into the record.
[Translation]
Senator Carignan: Thanks to the whole team for their hard work, which enabled us to produce the document so quickly.
I move:
That the motion in amendment be amended in paragraph (a) by replacing “Despite any other Act or law, but subject” with “Subject”.
The English wording is obviously different, given the drafting, but the content is exactly the same. The net result, in fact, is to remove the redundancy that refers to another rule of law. This makes it possible to clarify the article as drafted by Senator Dalphond and avoid going in circles.
[English]
The Chair: Senator Dalphond, this is a subamendment to your amendment.
Senator Dalphond: I support the amendment. I notice that what Professor Coughlan said yesterday is that you can keep it, but you have to read it a few times to understand. So maybe removing the words will make it for most people — because you read it once and you understand.
The Chair: I think it’s fair to say the students listened closely to the professor, which is good.
[Translation]
Senator Oudar: I’m a bit early. I’ll save my contribution for another section, when we get to section 3.1. Thank you.
[English]
The Chair: Is there any further discussion or commentary with respect to the subamendment?
Some Hon. Senators: No.
The Chair: Thank you. Colleagues, then, it is moved by the Honourable Senator Carignan that the motion in amendment be further amended by the following —
Senator Batters: Dispense.
The Chair: Thank you. Let me read this precisely. Is it your pleasure to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Thank you.
We now return, colleagues, to the amendment proposed by Senator Dalphond. Is there further discussion with respect to Senator Dalphond’s amendment? Hearing none, let me then move to invite your consideration of it.
Is it your pleasure, honourable senators, to adopt the motion in amendment, as amended?
Hon. Senators: Agreed.
The Chair: I declare the motion carried. We now move to this. Shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chair: I think 3.1 is next. Shall clause 3.1 carry? I’m a little ahead of myself, I think. Senator Dalphond, you have, in a sense, created a new clause.
Senator Dalphond: Thank you, Mr. Chair. The new section 3.1 is the act — I will read it in:
That Bill S-256 be amended on page 2 by adding the following after line 21:
“3.1 The Act is amended by adding the following after the heading “Inspection of Mail” before section 41:
40.1 (1) When expressly authorized by an enforcement statute made by the Council, government or other entity that is authorized to act on behalf of the Indigenous group, community or people, the Corporation may, for the purpose of identifying the presence of a controlled substance, screen any mail addressed to a place of residence or business located on
(a) a reserve; or
(b) Indigenous lands prescribed by regulations made under this Act.
(2) A screening under subsection (1) may not include opening mail but may include use of a scanner, canine detection or a similar non-intrusive device.
(3) The following definitions apply in this section.
controlled substance has the same meaning as in subsection 2(1) of the Controlled Drugs and Substances Act. (substance désignée)
enforcement statute means a law or by-law made by a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982. (loi d’exécution)
reserve has the same meaning as in subsection 2(1) of the Indian Act. (réserve)” .
If I could briefly explain, that’s a revised version of the amendment that was circulated earlier this week to authorize screening, not opening, of items in the mail that are destined to be delivered essentially on the reserve or a territory under the control of an Indigenous community, council or government.
Since we have deleted an enforcement statute that included provincial laws, bylaws and laws made by Indigenous councils or government, we have repeated that definition here. It applies only to that provision and nothing else in the Canada Post Corporation Act.
For the rest, the provision is based on the document that was submitted to us by the Mushkegowuk Council on behalf of some Indigenous groups in northern Ontario. That revised document has been approved by them. It was circulated to their legal counsel and those who have appeared before us, and they gave their consent to it.
Rightly so, Senator Audette and Senator Oudar are pointing out that the definitions we are using and that have been approved refer to mail addressed to a place of residence or business located on a reserve. Senator Oudar mentioned what about a post office box. Senator Audette added that on most reserves the only thing they have is a post office box. Strictly speaking, if we read “a place of residence,” maybe by extension you can say the one who holds the key for that special post office box is an extension of the residence, but to avoid any doubt, we can add the words “or post office box located on a reserve.” If I could, I will add these words after “place of residence, business or post office box located on.”
The Chair: Did you follow that? So the language Senator Dalphond is actually moving is slightly richer than what’s in the text here. I can’t read the line on the provision, but on the tail end of 40.1(1), that line would read “a place of residence or business or post office box located on,” et cetera. We may have an intervention from Senator Oudar, but since she may have been the inspiration for this, with your consent, we might go to Senator Oudar first to reflect on this phrasing issue and perhaps other comments.
[Translation]
Senator Oudar: I’m going to take a step back to talk about section 40.1. This is an exception and an infringement of rights. So, from a jurisprudence perspective, if the section is ever examined by the courts, it will be interpreted restrictively. Everything that is not written will not be permitted, if I can put it that way. The section reads as follows: “…the Corporation may, for the purpose of identifying the presence of a controlled substance, screen any mail addressed to a place of residence or business located on…”. Then the locations are listed.
What it does not include is not mentioned, because the Canada Post Corporation Act uses other words. The reason the legislator uses another word is that it has another meaning in mind. The law also talks about post office boxes, rural post office boxes or any other place used for the same purpose. During the break, I asked how mail was delivered to the reserves, and Senator Audette will be able to confirm that it’s in post office boxes. My fear is that the section will not apply if mail is delivered by post office box, because section 40.1 will always be interpreted restrictively. My suggestion is therefore not to add text — you shouldn’t bite off more than you can chew — but to delete the words after “mail addressed to”. It could look like this: “…the Corporation may, for the purpose of identifying the presence of a controlled substance, screen any mail addressed to…”.
We would delete the words “a place of residence or business located on” and continue the sentence as follows: “…a reserve; or Indigenous lands…”.
If I read it again, it would read as follows: “… the Corporation may, for the purpose of identifying the presence of a controlled substance, screen any mail addressed to:
(a) a reserve; or
(b) Indigenous lands…”.
It’s a question of deleting text rather than adding to it, because I think that the article should retain its scope and so that it can be put to good use.
[English]
The Chair: I think it might be helpful for us to have a conversation on this point because if we do proceed and have a comfort level around it, we are going to need to invite, with some guidance from Senator Oudar, a subamendment to this amendment.
Senator Batters: Senator Oudar, I’m just wondering about whether saying “addressed to a reserve or Indigenous lands prescribed by regulations made under this act” and leaving out the other parts of that, whether some potentially may take that as it actually needed to be addressed to the actual reserve or something like that rather than making it clear that those would be addresses included in that reserve. Do you think there’s any possibility of that? Do you understand what I mean here? I’m not sure it would have to fall within what you’re suggesting. It would then potentially need to be — I just don’t want any misinterpretation.
Maybe even the fact that we’re having this conversation and we make it clear that, no, what we mean here is that, our discussion could be used then as interpretation later only. I just want to make sure that all of those residences, post office boxes and businesses that are located on the reserve or Indigenous lands prescribed by regulations or included within this — even though we’re not saying that — it wouldn’t have to be something like, for example, in Saskatchewan, White Bear First Nations reserve or something like that. Do you see what I mean?
The Chair: Senator Oudar, would it be helpful for you to respond? I have a small suggestion along those lines.
[Translation]
Senator Oudar: These are words that I had suggested should be deleted, so as far as I’m concerned there’s no problem.
[English]
Senator Duncan: The challenge I have with this is that in the Interpretation Act where it says “province or provincial,” I don’t have to stand up every time to say, “Oh, it needs to say province or territory” because the Interpretation Act covers the territories. In this instance, I have real difficulty because there are no reserves in the Yukon. We have self-governing First Nations, and I’ve seen court cases where Old Crow, the Vuntut Gwitchin First Nation have said, “No, this person is not allowed on our lands.” Because they voted to be an alcohol-free community, they have been to court over issues of the RCMP and the right of the RCMP to take things.
I’m a non-lawyer and I’m walking into the middle of a movie, but this raises real flags for me in terms of interpretation and applicability. One size does not fit all when we’re writing legislation for this great, big country, particularly dealing with First Nations who have different Indigenous — many Yukon First Nations have explicitly said to me, “We are First Nations; don’t use the term Indigenous.” I’m very concerned about how this might be interpreted in the Yukon.
The Chair: This is a bit larger question than just the focus of Senator Oudar’s contemplated subamendment, but Senator Dalphond, do you want to respond to that?
Senator Dalphond: To the amendment or to the concerns of Senator Duncan?
The Chair: Maybe respond to Senator Duncan’s question, and then we will return with an intervention related to Senator Oudar.
Senator Dalphond: Thank you, Senator Duncan. It is a valid concern.
Canada Post also referred to that and said there is no uniformity between all the councils. They have different types of regulations and everything else. So at the end, the compromise we have done there with the authorizations of the Mushkegowuk Council is that it is not “must.” It says, “when expressly authorized” — it is for a specific purpose, a controlled substance — and it says “the corporation may, for the purpose of identifying the presence of a controlled substance, screen the mail.” It is not making strict obligations to Canada Post. It is a strong invitation to work in collaboration with the councils that will have enacted this type of legislation.
There was a pilot project that was done in Nunavik where they were able to —
An Hon. Senator: Inuit.
Senator Dalphond: — and they were able to drastically reduce the quantity of alcohol and drugs that went into the community — because it is not necessarily a reserve — during that period. They did so by working together with the local police and Canada Post.
Here, Canada Post would be only authorized to screen, not to open, the boxes or mail — but to screen or identify potential things. Then, working collaboratively with the local police, act accordingly.
The Chair: I think Senator Duncan’s question was more focused on the fact we have not adequately or appropriately identified the communities of interest — in this case, the Yukon, for example — that are captured here as the description of the governing authority that could make such a request. So if I could invite your attention, actually, to subsection (b) here in the reference to Indigenous lands, among other things — and there is a reference in here to Indigenous group, community or people — and then, again, with respect to mail that would come to Indigenous lands prescribed by regulations made under this act.
If I understood it correctly, her concern is that is not an adequate or maybe even an appropriate choice of language to capture all of the Indigenous communities, many of which are not even comfortable with that language of recognition.
So have we gotten this respectfully and comprehensively done enough here to meet expectations across — is that a fair description of your concern, Senator Duncan?
Senator Duncan: That is correct. The Yukon First Nations land claims agreements refer to settlement land, for example. So the terminology being used is problematic because it is a Canadian law and it doesn’t fit all of Canada.
I really hate to redraft laws on the floor and on the fly. Might I suggest that this be revisited with a better definition or wording that encompasses the country?
Senator Batters: Are we still speaking about the —
The Chair: I think we are turning to that. Whichever part of the point you want to make, we started with Senator Oudar, and it would be nice to close that off, then turn to this —
Senator Batters: I’m wondering if the concern I raised about taking those terms out and just have it saying “addressed to a reserve or Indigenous lands” is perhaps too specific. If the address on the parcel or what-have-you did not say “reserve” or that sort of thing, it potentially wouldn’t be included if we’re — I don’t know. I’m looking for some guidance whether that is a valid concern or whether it is not something we need to worry about.
The Chair: While Senator Dalphond reflects on that larger question of Senator Duncan’s, perhaps we can focus on Senator Oudar’s contemplated subamendment. Let me invite a suggestion on language because I had somewhat of the same feeling as Senator Batters. I wonder if the phrasing in here, Senator Oudar — I would invite you to think about this and then we’ll have some comments — whether it could read on the English side “any mail addressed to any location on” and then go on from there. That avoids the challenge that Senator Dalphond was trying for with specificity. But it then targets a place where the mail was coming rather than being slightly more open-ended.
Then, if you are comfortable or think that might be helpful, I would ask what the best French language choices might be. That addresses our thoughts on this, Senator Batters, I think.
I want to invite people to comment for the moment on Senator Oudar’s suggestion, maybe modified a bit by this suggested language, and determine whether you are comfortable. Then, if we are, we might get to work on the actual crafting of a subamendment. We might need another short suspension to do that. But it will then also enable us to turn to the questions that Senator Duncan raised as well as any others.
Senator Oudar, does that undermine the suggestion of adding words like “on location” — or the best French language choice for that — hold your point together? Would it maybe work as a good subamendment — the things that you wanted removed and the suggested two or three words that I was suggesting? What are your thoughts on that?
[Translation]
Senator Oudar: Any amendment that will enable section 40.1 to be applied correctly. To come back to what Senator Batters said, I understand that in English it’s “addressed”, and in French it’s “destiné”. There is a difference. In French it suited me fine, and it might have suited her, but in English it’s much more precise. It’s “addressed”, so the address has to be written — and I understand her comment very well — whereas “destiné” is the end or the destination. There could have been a different address, but a destination indicated that proves that the mail is going to the reserve. I don’t know if I’m clear. For me, “addressed” and “destiné” are not the same thing. I understand her comment and it needs to be clarified. I agree with her.
[English]
The Chair: We’re close.
Senator Simons, maybe on this point for now — this is the point about the targeting location.
Senator Simons: I don’t know if Métis settlements are envisioned to be encompassed in this. They are unique, I think, to the Prairie provinces, and they function similarly to a reserve, but it is land that has been set aside by the provinces.
What is interesting about this is — I will stop there.
The Chair: I do want —
Senator Simons: I will stop there.
The Chair: I do think this is an important point. Partly, we are also thinking about the future, if I may say that. Who knows exactly what the shape of Métis land authority is or might evolve to, for example. That’s more on Senator Duncan’s point. I am just wondering whether us trying to identify this issue about mail addressed to a location at one of these spots is acceptable or unacceptable.
Senator Clement, you had your hand up on this point.
Senator Simons: — community?
The Chair: I’m trying not to take over Senator Dalphond’s bill. Do you have thoughts?
Senator Dalphond: I was going to say screening mail addressed to any location on a reserve or Indigenous lands as applied by regulations made under this act. It has to be Indigenous lands prescribed by regulation. So if the land has no status according to the Indian Act, I suppose, it won’t be covered. What we are trying to achieve here is something that is defined.
So if it were to use “mail addressed to any location on reserve.” In French, it could read:
[Translation]
…of a controlled substance, screen any mail addressed to a location on:
a) a reserve; or
b) Indigenous lands…
[English]
Senator Simons: I just want to come back to saying that I think getting tied up in the land is what could trip this up. In British Columbia, there are very few reserves, but there are lots of lands that are traditionally claimed by communities. The issue isn’t the land. The issue is the governing body. If the governing body is Indigenous, they have control, in theory, over what comes in and out of their community. I think to tie this up in different kinds of land and settlement agreements invites mischief.
The Chair: I think this is a useful point, but it is just that mail has to go to some location, and the question here is whether the location is under the jurisdiction of an entity. That’s really what we’re trying to capture here. Senator Clement, we passed you by. Did you want to —
Senator Clement: No, I just wanted to fully agree with Senator Oudar and then Senator Batters’ concerns and your elegant solution.
[Translation]
“Destiné” and “adressé” are two different things in French. So I understand.
[English]
The Chair: I think we are trying for the same thing, but it doesn’t necessarily fully answer Senator Duncan’s point yet.
Senator Duncan: Respectfully, on that point, I am positive the land claim agreements all have a clause that state “and the laws of general application shall apply.” We don’t create different laws for transport, for example, if there is an airport or a helicopter landing on a reserve. They don’t follow different rules.
With Canada Post, these are national regulations, so why would — even though it is a destination on reserve, I’m not convinced. Please tell me why we need a separate clause.
Senator Simons: That’s a whole other question.
The Chair: I think Senator Dalphond needs to answer this. Maybe Senator Audette may provide some context, but Senator Dalphond, this is your bill, so I want you to respond first.
Senator Dalphond: The answer is that we don’t want to screen all mail because we are talking about millions of items per day. This was explained by witnesses previously. What they are asking is that only parts of mail items that are to be delivered on a reserve or on a territory that is under the control of a council, if that council has made some regulations, it will have to be screened. We are talking about a small proportion of all the mailed items, maybe 5%, I don’t know. Otherwise, it becomes a cumbersome obligation if we’re going to screen everything.
It is only for the councils that are asking for the mail that is delivered on the territory that is under their control that the screening happens. The screening does not entitle opening mail, boxes or whatever, parcels or letters. It is only a kind of advanced warning given to the local authority that could act pursuant to the authority they have. If they say, “We have special regulations about alcohol and we ask you to check to make sure that parcels that are intended to be delivered on the territory upon which we have control, that this be identified and give us the opportunity to intervene, either by the local police on that territory, the RCMP, the Sureté du Quebec or even the Montreal police, if they intercept it before it leaves Montreal.”
The Chair: If I understand it correctly, Senator Duncan, this is an empowering provision for those Indigenous communities, however we define that phrase, to basically empower Canada Post to do this form of screening based on the concerns of their communities.
It is not a question so much, I think, of laws of general application but a targeted empowerment for the communities that are concerned that too much — probably in this context, fentanyl, is making its way into their communities. It is more of an enriching authority than anything. I think that’s fair, Senator Dalphond?
Senator Dalphond: Yes.
The Chair: I’m sorry, Senator Duncan?
Senator Duncan: I believe they already have that authority.
Senator Dalphond: They have the authority to adopt a bylaw if they want pursuant to the authorizing authority, but here it is saying, if you have made such regulations, you may ask Canada Post to do it, and if Canada Post agrees, the law authorizes Canada Post and it wouldn’t be considered a breach of the Canada Post Corporation Act, which, in principle, entitles Canada Post to participate more actively in the enforcement of these communities’ bylaws.
[Translation]
Senator Audette: Some regions across Canada have Indigenous police forces with tripartite agreements; if we had had the police bill, we could have talked about this kind of power. In this case, if two political groups representing governing bodies — that’s the term used by the federal government — with the Northern Cree, seven communities and the Assembly of Manitoba Chiefs…. These are people who are proposing that the bill be given greater force to combat this problem. So these are proposals from leaders and people from these First Nations. I’m in favour of improving the bill, but to see it go…. I don’t think that’s the case, but we should support these leaders so that the bill has more teeth. I think the expression “peut procéder” is weak. They want to work with Canada Post, and I would have used slightly harsher words like “contrôler et déceler”. We must honour every opportunity we have to fight this crisis that is affecting our territories.
I think we’re starting a major debate on the territories, and I appreciate that, but it’s a very complex issue. We’re not going to settle the issue today. How can we find the best words to bring together as many people as possible to respond to a major crisis? Other bills will have to be looked at in greater depth, because this is a global crisis.
I’m making this comment so that we can get back to the reasons why the leaders came to present this to us. How can I include my colleague’s comments?
[English]
Senator Simons: To follow up from Senator Audette’s comments, this is the thing I don’t quite understand about this clause. We know from the Canada Post brief we received yesterday that they already have the power to screen for drugs. They don’t open the envelopes, but they have the power to screen.
Senator Cotter, when you called this an empowering provision, I don’t see in the language that it actually empowers Canada Post to do anything that they don’t already have the power to do. They may screen the mail for drugs, and there is nothing here that I think — even if a chief and council vote for something — would compel them to act.
On the other hand, I will say now because I haven’t had an opportunity, but I am still uncomfortable with the idea of creating laws that are specific to Indigenous people when we have not had a robust consultation with Indigenous voices from across the country. We have heard from people in a very particular area. It takes me back to the days when Indigenous people weren’t allowed to buy alcohol by the government. Having a two-tiered government makes me uncomfortable, even though I recognize that the Indigenous leaders we heard from asked for this power.
I don’t love the optics of saying an Indigenous community has to have its mail screened but a rural community in Northern Canada, where they may also have a huge fentanyl crisis, doesn’t have to have its mail screened.
I find myself very torn, but I just want us to consider the optics of having heard from very few Indigenous witnesses and enacting a law that would create a difference in the way the mail is regarded in different kinds of communities based on ethnicity.
The Chair: That’s really for Senator Dalphond to respond to, whether the evidence is — as I think is one of your points — insufficient or not comprehensive enough.
Senator Dalphond, did you want to observe on that?
Senator Dalphond: Briefly.
I think the Mushkegowuk view is that this is an important encouragement to Canada Post to take seriously the Indigenous jurisdiction. Canada Post inspectors are bound to apply regulations that are made by the federal government or by the Canada Post Corporation Act, that is, what is a mailable item or not.
This is addressing concerns that some of these items might be on the list of what are not mailable items. Some might not be. It’s a way to recognize that the Indigenous jurisdictions enjoy some autonomy about the way they would like their community to address some important health issues, like alcohol and drugs, and that’s an invitation to Canada Post not to ignore what these communities have set up and the programs and bylaws they have adopted.
I think it sends a positive message. That was the intent of it. It also resolved the issue of some debates about if they can inspect something because it is pursuant to a bylaw adopted by an Indigenous group or community but not by the federal government. I guess it’s also part of the recognition that they have legislative authority and that we take what we do seriously.
I think some of the witnesses — and that day Senator McCallum was at the table, and she said how it is difficult to have the RCMP enforce their bylaws. It’s all part of that. It’s a gesture of reaching out and also of reconciliation and listening to what they said. It doesn’t force any Indigenous group or community to adopt bylaws, but if they do, because they consider that’s the way to address some of their important health issues, Canada Post will have a kind of moral duty to consider that and see how they could work together through the inspectors, which I’ve seen — happily — the number increased from 20 something to 80, according to Canada Post.
Thank you, and there’s nothing else I can say. If people don’t agree with this, maybe they should vote down the amendment, and that’s it.
Senator Duncan: What about this first suggestion, “when expressly authorized by a legally enforceable statute?”
If it is on settlement land or on First Nations land, if the governing body has tasked something that is legally enforceable — whether it is by the First Nation’s police or by the RCMP — if it’s legally enforceable, Canada Post may.
Then we’re not saying who has to make the law; we’re just saying it has to be able to be enforced. There’s no point in allowing them to do something if they can’t enforce it or can’t follow through. You need laws for what you cannot do, not for what you can do, right? They are already able to do this.
That’s just a suggestion. It has to be legally enforceable. We don’t say who has to make the law because it would recognize that that First Nation or Inuit community is not alone in this situation either.
Senator Dalphond: Just a short answer to that concern. I think it is addressed on page 2 of the amendment:
Enforcement statute means a law or bylaw made by a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that hold rights and affirmed by section —
They have to have a legal authority, which is recognized by our Constitution and our laws to act, and then they adopt the bylaw. It has to be a bylaw which is valid.
Senator Duncan: Right.
Senator Dalphond: I suggest we cover that by the definition of “enforcement statute.” If we try to redraft the whole thing and put that in the main provision instead of being in the definition of “enforcement statute,” I wonder if we’re not trying to draw a horse, but it’s looking more and more like something else.
An Hon. Senator: Like a camel.
Senator Dalphond: Even worse.
Senator Audette: Or a caribou.
Senator Batters: Or a pig, I don’t know.
The Chair: — a subamendment, and then we can turn to consideration of the vote on that and then a vote on the amendment itself.
Senator Batters: Thank you. I just wanted to make a brief point to what Senator Duncan was suggesting, to have the phrase, “legally enforceable statute.”
All statutes would be legally enforceable, so we don’t need to add the words “legally enforceable” to that.
The Chair: I want to apologize, Senator Carignan. We have had you on the list for quite a while.
Senator Carignan: No problem because that’s another topic.
The Chair: On this amendment, though, at some point?
Senator Carignan: It would be a subamendment, but on another discussion.
The Chair: I’m going to propose we suspend for two or three minutes to invite the printing of a subamendment that Senator Oudar might introduce.
Thank you very much. We have had the opportunity to have drafted a potential subamendment that we hope responds to the interventions of Senator Oudar. At this point, I’m going to invite her to move the subamendment.
[Translation]
Senator Oudar: Thank you, Mr. Chair, and thank you to the whole team around you, who helped find a solution for the drafting of the subamendment.
I move:
That the motion in amendment be amended by replacing “a place of residence or business” with “any location”.
[English]
The Chair: I don’t think we need further discussion on this. I think we’re close to a decision on it.
In that context, I think that’s a great end. Let me propose this: It is moved by Senator Oudar that the motion in amendment be further amended by — may I dispense?
An Hon. Senator: Dispense.
The Chair: Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Shall the motion in amendment, as amended, carry?
[Translation]
Senator Carignan: I have another amendment to propose. It concerns subsection 2, so section 40.1, which states that “ce contrôle ne peut pas consister à ouvrir le courrier”. I would like to add, after “ouvrir”, the words “ou lire le courrier”. In English, I imagine it would be “or read”. This would prevent anyone using a scanner or other device to read the contents of a document, even if the letter has not been opened.
[English]
The Chair: Senator Dalphond, I’m going to invite you, since you’re the mover of the amendment, do you have a comment on this before we invite others to contribute?
Senator Dalphond: He is the mover of the amendment.
The Chair: Yes, sorry.
Senator Dalphond: I agree with it. It’s in the spirit of protecting privacy.
Senator Simons: I just want to make sure, this would not authorize people to open mail?
Senator Dalphond: No. The machines cannot read, so this amendment is to say that the inspectors cannot open or read.
Senator Clement: Where are we?
Senator Dalphond: Subparagraph (2) under subsection (1), “may not include opening or reading mail but may include the use of a scanner.”
The Chair: We don’t have a paper trail of this.
[Translation]
Senator Carignan: I spoke to the law clerk earlier. Have we received the amendment yet?
[English]
The Chair: Not yet, but we will momentarily. We will have it printed, distributed and then decided upon. I agree, but the law clerk is whispering in our ear, if I can put it that way.
If you can focus on Senator Carignan’s subamendment.
Senator Duncan: We’ve concluded the discussions of 41(1)(a) and (b), then? That’s concluded?
The Chair: No. Once we complete this, we will then return to Senator Dalphond’s amendment to consider whether we will adopt it. With that includes the points that you’ve raised and others may raise and other aspects of it. We just carved out, I think, small pieces of it for the subamendment, and we’re presently just resolving Senator Carignan’s small subamendment.
It is important, given that we’re approaching 1:30, for there to be a hard stop because the Senate will start shortly. We will almost for sure need additional time. I would invite you to consider whether at the beginning of next Wednesday, we turn first to clause by clause. Hopefully we can do that expeditiously, and that we have gotten through the hard work of this one and we can move to consideration of Bill S-230, which we had planned to do and we would do for the balance of next Wednesday.
We now have a hard copy drafted and ready for Senator Carignan to move. I invite Senator Carignan to move your subamendment and maybe read it into the record.
[Translation]
Senator Carignan: This is a proposed subamendment, which reads as follows:
That the motion in amendment be amended by adding “or reading” after “opening”.
[English]
The Chair: Just a bit of discussion on this. As a result, I’m going to invite you to be comfortable moving to consider and decide upon the subamendment.
Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Now we are back to the original amendment. Shall the motion in amendment, as amended, carry?
Senator Batters: No.
The Chair: So far we have a “no,” but we may have a bit more discussion.
Senator Batters: Thank you. Senator Dalphond, I have a question about the definition of enforcement statute near the end of this particular amendment. I just wanted clarification on — because as it says:
enforcement statute means a law or bylaw made by a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982.
I would just like your clarity that all of that is meant to incorporate — the modification on this is only those dealing with “on behalf of an Indigenous group,” whether that be a council, government or other entity. All of that is encompassed within that rather than a city council or other types of things? I thought it was important to potentially get that on the record.
Senator Dalphond: Thank you very much for the question. It’s designed and the intent is really to cover only the Indigenous groups that are entitled by law to adopt Indigenous bylaws applicable on the territory they have control of and not a school board, hospital or city council.
Senator Batters: Thank you.
The Chair: Other comments with respect to the amendment? Hearing none, colleagues, I’m going to move to the motion on this.
Shall the motion in amendment, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division or do you want a vote?
Senator Duncan: On division.
The Chair: On division. Shall clause 3.1 carry, as amended?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry?
Some Hon. Senators: No.
The Chair: That takes care also of the contemplated amendment on your part, Senator Clement.
Senator Clement: As I said earlier in the meeting, I had proposed an amendment. I’m withdrawing it because I’m satisfied with Senator Dalphond’s response that the general warrant language will mean that we have some form of record hopefully around how this law is being used.
The Chair: There’s not much left by way of amendments, colleagues. If you’re comfortable, I’d like to plow ahead for the next few minutes. If there tends to be a substantive discussion, my suggestion would be to stop and carry over. If not, we could move right through. Are you comfortable with that? Thank you.
Shall clause 5 carry?
Some Hon. Senators: Agreed.
Senator Dalphond: No.
The Chair: Have I lost track here of clause 5, Senator Dalphond?
Senator Dalphond: The amendment was just to add reference to enforcement statutes. We have removed the enforcement statute definition, so the amendment becomes obsolete.
The Chair: With the support of the sponsor, we would defeat clause 5. Is that your proposal, then, Senator Dalphond?
Senator Dalphond: Absolutely, chair.
The Chair: Let me ask again, then. Shall clause 5 carry?
Hon. Senators: No.
The Chair: Thank you. It is defeated. Shall clause 6 carry?
An Hon. Senator: Yes.
The Chair: Shall clause 7 carry?
An Hon. Senator: Yes.
The Chair: Carried. Shall clause 8 carry?
Some Hon. Senators: Yes.
The Chair: Thank you. Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Agreed.
The Chair: Shall the preamble carry?
Some Hon. Senators: Agreed.
The Chair: Shall the title carry?
An Hon. Senator: Agreed.
The Chair: Shall the bill as amended carry?
An Hon. Senator: On division.
The Chair: On division. Thank you.
Colleagues, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical, or other required non-substantive changes as a result of the amendments adopted by the committee, in both official languages, including updating cross-references and renumbering of provisions?
An Hon. Senator: Agreed.
The Chair: Thank you. Does the committee wish to consider appending observations to the report?
An Hon. Senator: No.
The Chair: Hearing none, thank you.
Is it agreed that I report this bill as amended to the Senate in both official languages?
Some Hon. Senators: Agreed.
The Chair: Colleagues, I think that concludes our consideration of this bill, Bill S-256. Let me extend, on all our behalf, thanks for your thoughtful interventions and contributions. I would like to thank Senator Dalphond for his initiative and his flexibility in the consideration of amendments and subamendments, and thank you to the team that supported that and provided us expeditious guidance through this process. It’s been an interesting morning and early afternoon. I want to thank you all, and for those who are listening, I hope you enjoyed the experience as well. This brings us to conclusion. We will reconvene next Wednesday to consider Bill S-230.
(The committee adjourned.)