Colleagues, I rise today at second reading of Bill S-256, the short title of which is the Canadian postal safety act. I fully support the objective of the bill, as described by Senator Dalphond in his November 29 speech. He said, and I quote:

The Canadian postal safety act’s purpose is to assist law enforcement, Indigenous communities and rural municipalities in their efforts to intercept dangerous drugs, particularly fentanyl and other opioids, that could be delivered by the mail system, especially in remote areas. . . .

The aim of this bill is not to weaken or change requirements for searches and seizures, but rather to remove an old statutory limit that prevents police from fully assisting Canada Post inspectors and customs officers in enforcing the law.

The old statutory limit that Senator Dalphond was talking about is subsection 40(3) of the Canada Post Corporation Act, which reads, and I quote:

Notwithstanding any other Act or law, but subject to this Act and the 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 post is liable to demand, seizure, detention or retention.

This provision clearly sets out a broad prohibition — applicable to police officers in particular — on seizing or retaining items in the course of post. As Senator Dalphond pointed out, when an item entrusted to Canada Post is being sent, the police cannot intervene without the assistance of a Canada Post inspector.

The fact is, postal inspectors can open all mail items that weigh 500 grams or more to check whether they contain objects that contravene any Canadian law or regulation. This authority is set out in subsection 41(1) of the Canada Post Corporation Act. This provision is an exception to the prohibition on seizure and detention set out in subsection 40(3).

Senator Dalphond summarized the very important limits that subsection 40(3) places on police work as follows, and I quote:

While an item is in the mail, the only option the police have is to work closely with 1 of the 25 inspectors at Canada Post — 25 to cover the whole country. An inspector could then find a way to inspect a parcel and retain it if illegal material is found inside. Subsequently, based on the information communicated by the inspector, the police could seize the item for further investigation and possibly to lay a charge.

In his Bill S-256, Senator Dalphond proposes an exception to the prohibition in subsection 40(3). He proposes that this prohibition not apply if the seizure or detention of mail is necessary for the enforcement of federal laws, including the Criminal Code and the Controlled Drugs and Substances Act, as well as provincial laws.

Personally, I wonder if it would be better to simply repeal the prohibition in subsection 40(3).

The Assembly of Manitoba Chiefs also recommended repealing this subsection. The association believed that this would, quote, “increase the effectiveness of the proposed changes to combat the trafficking of contraband,” according to a May 19, 2023, letter from the assembly that I will come back to later.

In my opinion, subsection 40(3) was rendered obsolete in 1982, when protection from unreasonable seizure was enshrined in section 8 of the Canadian Charter of Rights and Freedoms.

It is important to note that the prohibition on seizure in subsection 40(3) is a privacy safeguard established long before 1982. Indeed, the current wording of subsection 40(3) of the Canada Post Corporation Act is substantively very similar to previous versions from the last few decades. Examples include the 1981 version, subsection 38(3) of the Canada Post Corporation Act, and the 1951 version, section 41 of the Post Office Act, which reads as follows:

Notwithstanding anything in any other Act or law, nothing is liable to demand, seizure or detention while in the course of post, except as provided in this Act or the Regulations.

Like Senator Dalphond, I think the current wording of the ban is undesirable because this ban is far too broad.

This provision jeopardizes the safety of Canadians and it even prevents a judge from issuing a warrant under section 487 of the Criminal Code or section 11 of the Controlled Drugs and Substances Act, to allow police officers to open a letter which they have reasonable grounds to believe contains fentanyl or other banned substances.

This problem was raised in 2017 in R. v. O’Dell in the Provincial Court of Saskatchewan. In fact, Ms. O’Dell was charged with trafficking in fentanyl. The day before her arrest, she dropped off a package containing that drug at a Canada Post office. Police officers seized it without a warrant, but obtained one afterward before opening the package. The judge found that the seizure of the package was not authorized under the Canada Post Corporation Act, because of the ban in subsection 40(3).

This subsection also prevents, for example, a judge from authorizing police, under section 487.01 of the Criminal Code, to intercept and secretly open an envelope left in the possession of Canada Post by a suspect. That was the finding in the 2018 Supreme Court of British Columbia ruling in R. v. Perkins. In that case, an individual was accused of possession of cocaine and fentanyl for the purpose of trafficking. In its ruling, the court accepted the admission of the Crown prosecutor that the judge could not provide this judicial authorization given the prohibition in subsection 40(3).

I am going to the trouble of citing these examples to demonstrate that if subsection 40(3) did not exist, the police would have to respect the usual privacy protections found in the Constitution, the Criminal Code and other laws.

I am obviously thinking of the protection against unreasonable search and seizure in section 8 of the Charter, and also sections of the Criminal Code imposing rigorous conditions that police must satisfy in order for a judge to issue a search warrant.

In addition to these legal provisions, there are thousands of court decisions interpreting them. In other words, since section 8 of the Charter was created in 1982, there have been more than 40 years of case law, primarily from the Supreme Court of Canada, requiring police officers to obtain judicial authorization to conduct investigations or seizures in situations where a person has a reasonable expectation of privacy or protection.

Thus, the common law principles created by these decisions will automatically apply if exceptions are created or if we repeal the prohibition on seizing or retaining objects in the intended course of post.

This contradicts the argument that Bill S-256 proposes overly broad exceptions to the prohibition set out in section 40(3), a provision that, on the face of it, no longer serves any purpose. It has become outdated since the Charter was created.

Bill S-256 grants no new investigative or seizure powers to police officers compared to those they already have with respect to packages shipped by any company other than Canada Post.

As Senator Dalphond pointed out, traffickers have spread the word that there is much less risk of their packages being intercepted if they send them through Canada Post rather than through any other private courier company, such as FedEx, UPS, Purolator or DHL.

It is critically important that we do everything we possibly can to combat fentanyl. Bill S-256 is a step in that direction. It also represents a concrete solution to enable police to tackle one of the links in the fentanyl trafficking chain by allowing judges to issue authorizations to police officers to open parcels and letters in the possession of Canada Post, when there are reasonable grounds to believe they contain fentanyl or other criminally prohibited goods.

As the saying goes, great sorrow is often silent. This is true of the sorrow experienced by many people who are, or will be, suffering from opioid addiction. Many of them will die or find themselves vulnerable, living on the margins of society or even homeless. They need us, as parliamentarians, to speak out and take action against the ravages of opioid trafficking on public health and public safety.

Opioids have caused over 32,000 deaths in Canada according to statistics recently posted on a Government of Canada website.

The trafficking of opioids and other hard drugs does not just affect addicts. This scourge tears families apart and increases the violence and profits of criminal organizations. That is the situation described by Justice Moldaver in his dissenting opinion in the 2021 Supreme Court of Canada case R. v. Parranto, which was uncontradicted on that point. Justice Moldaver said, and I quote:

The dangers posed by trafficking in hard drugs, such as heroin and cocaine, have long been recognized in Canada. . . .

Trafficking also leads indirectly to a host of other ills, including an increase in all manner of crime, committed by those seeking to finance their addiction, as well as by organized crime syndicates . . . .

A further and perhaps even more devastating consequence of the hard drug trade is its impact on families and the intergenerational trauma it causes . . . .

Justice Moldaver goes on to say that the threat posed by the trafficking of drugs, such as heroin and cocaine, and I quote:

 . . . pales in comparison to the one posed by fentanyl and its analogues. . . . [F]entanyl has altered the landscape of the substance abuse crisis in Canada, revealing itself as public enemy number one. . . .

The scale of fentanyl’s devastating impact becomes even more apparent when one considers that, between 2016 and 2020, there were approximately 3,400 homicides across Canada, a number far below the number of fentanyl-related deaths . . . .

Therefore, to prevent such misdeeds, I urge you to vote in favour of Bill S-256.

As I explained, this bill will finally close the loophole that traffickers have been exploiting in the Canada Post Corporation Act. This loophole, which only applies to items sent by Canada Post and not through other courier companies, means that traffickers prefer to do business with Canada Post because they know that this law deprives the police of their usual legal means of seizing, opening or tracking items containing lethal drugs.

As Senators Dalphond and Boniface mentioned in their speeches, the Canadian Association of Chiefs of Police has in fact publicly expressed, in a resolution adopted in August 2015, the need to close this loophole as soon as possible.

Why is it that, six years after this resolution, the federal government has not introduced a bill to try and address this urgent problem? How seriously does the government take the fact that the Canada Post Corporation Act deprives police and postal inspectors of essential powers to intercept mail containing drugs or other illegal and dangerous items?

On this point, I would like to return to R. v. Gorman, which Senator Dalphond referenced in his speech. In this case, the judge found, among other things, a very important power of inspectors in subsection 41(1) of the Canada Post Corporation Act to be unconstitutional.

The ruling by the Supreme Court of Newfoundland and Labrador was not appealed by the federal government. In fact, the Attorney General of Canada even decided not to intervene to plead legal arguments before the judge.

The court first gave the federal government one year, which ended on April 12, 2023, to amend the Canada Post Corporation Act. Subsequently the court granted an additional six months, which will end on October 12.

On April 20, the government introduced Bill C-47, the 2023 budget bill. Clause 509 of the bill proposed a legislative amendment required to comply with the ruling in R. v. Gorman.

Let’s recall that, in this case, the court found that the challenged provision was contrary to section 8 of the Canadian Charter of Rights and Freedoms because it allowed the postal inspector to open a package without objective reasons to suspect that it contained an illicit object. If the bill is passed, the wording of clause 509 would correct this problem. The relevant part of clause reads as follows:

509 Subsection 41(1) of the Canada Post Corporation Act is replaced by the following:

Inspection of mail

41(1) The Corporation may open any mail, other than a letter, if it has reasonable grounds to suspect that . . .

(c) the mail is non-mailable matter.

“Non-mailable matter” is defined in a regulation as “Any item transmitted by post in contravention of an Act or a regulation of Canada.”

Although section 509 of Bill C-47 makes it possible to comply with the ruling in Gorman, I find it disappointing, inexplicable and very worrisome that the proposed amendment still proposes maintaining the words “other than a letter” in subsection 41(1). That means that postal inspectors are still not allowed to open items that are being transmitted by post weighing less than 500 grams, which is the regulatory definition of a letter, even if they have reasonable grounds to suspect that the letter contains fentanyl or other illegal objects within the meaning of the Criminal Code. Five hundred grams of fentanyl is a lot, given that consuming even the tiniest bit of this drug can be fatal.

If the government chose to amend subsection 41(1) through the 2023 budget bill in response to the Gorman decision, why didn’t it take the opportunity to incorporate the contents of Bill S-256, the heart of which is an amendment to subsection 40(3) of the Canada Post Corporation Act, which I mentioned earlier? The federal government was well aware of this problem.

As evidence of that, here’s an exchange that took place in the Senate on December 1, 2022, between Senator Dalphond and Minister Hutchings, Minister of Rural Economic Development. Senator Dalphond asked the following question:

As you may know, it is reported that, for fentanyl sellers, Canada Post is the shipping method of choice, and often the only one available to ship these illegal products into rural and remote communities.

 . . . are you ready to consider proposals such as Bill S-256 to remove from the Canada Post Corporation Act restrictions that impede the police from seizing illegal drugs and other illegal items shipped through mailed envelopes?

The minister replied with the following:

Thank you, senator. That is an incredible question because it alludes to what I mentioned earlier about the terrible drug problem that we have in rural Canada. As you know, Canada Post is a Crown corporation, but I will be following that bill’s progress to the detail. I know that is exactly how some of the drugs are getting into these rural communities.

If Bill C-47 on Budget 2023 were adopted and came into force in its current form, postal inspectors would still be prohibited from opening an object weighing less than 500 grams in the course of post containing drugs, weapons or any other object prohibited under the Criminal Code. Police would also still be prohibited from opening any object in the course of post with the assistance of a postal inspector even if the police had obtained a search warrant from a judge.

In view of these facts, are you, like me, seriously concerned about the fact that the federal government is not taking seriously the threat of the trafficking of hard drugs, such as fentanyl, shipped through Canada Post? Why is the government not closing as quickly as possible the loopholes I have just mentioned that are in the Canada Post Corporation Act?

Another thing in Gorman fuels my concerns about the inadequate measures taken by the federal government to combat trafficking in hard drugs. In this case, a significant amount of cocaine was seized: It was two kilograms of apparently high purity. What’s more, the judge found that Mr. Gorman was planning to receive more packages containing the drug, again for trafficking. I’m concerned that because of government Bill C-5, which just passed, this individual will be given a sentence to be served in the community and not in prison.

In closing, I completely agree, on one hand, with the purpose of Bill S-256. I invite you to refer this bill to the Standing Senate Committee on Legal and Constitutional Affairs for further scrutiny. On the other hand, I hope the Senate committee will carefully consider in its study of Bill S-256 the two recommendations for amendments that I raised in my speech. These are exactly the same recommendations that the Assembly of Manitoba Chiefs made in the letter I mentioned previously and that it sent to the Standing Senate Committee on Legal and Constitutional Affairs as part of its study of Bill C-47 on Budget 2023.

I will read an excerpt from that letter about these recommendations. The assembly makes the following recommendations to the Standing Senate Committee on Legal and Constitutional Affairs:

1) Replace the current section 41(1) of the Canada Post Corporation Act with the proposed amendment from Bill C-47, and remove the words “other than a letter” from the provision; and

2) Remove section 40(3) of the Canada Post Corporation Act in its entirety.

I also note that the position of the Canadian Association of Chiefs of Police expressed during the study of Bill C-47 by the Senate committee was along the same lines as the two recommendations made by the Assembly of Manitoba Chiefs.

In closing, I thank attorney Michael Spratt and law professors Steven Penney and Steve Coughlan, and the Association des avocats de la défense de Montréal-Laval-Longueuil and the Association québécoise des avocats et avocates de la défense for sharing their observations about certain aspects of this bill with my team. Thank you.