Honourable senators, I do not know if I can promise to be wise, but I shall definitely be enthusiastic about what I’m saying.

I rise today to speak to the report on Bill S-256, the Canadian postal safety act. It may seem odd to begin my response in 1840, but that is where we must start to understand how radical a shift this bill represents in almost 200 years of legal tradition.

In 1840, Great Britain established the Penny Post. Up until then, people had exchanged letters and messages through all sorts of private delivery and courier services, but the Royal Mail, keen to establish a functional monopoly and to democratize the delivery of letters at a time of rising literacy rates, slashed its prices. It created the Penny Post, and thanks to rapidly expanding railway networks, that meant it cost only a penny to send a letter, no matter how far it had to travel, be it from the tip of Cornwall to the northernmost reaches of the Scottish Highlands.

Customers were guaranteed safe, reliable delivery of their most important business correspondence and most intimate personal messages, and all went swimmingly until the great Post Office Espionage Scandal of 1844.

In 1844, London was home to the great Italian republican rebel Guiseppe Mazzini, who had been exiled there thanks to his campaign to unify Italy and free it from Austrian control.

Mazzini maintained an active political correspondence — something that greatly worried Austria’s ambassador to Britain, Baron Philipp von Neumann. So Ambassador von Neumann prevailed upon the British Crown and the Secretary of State for the Home Department, Sir James Graham, to intercept Mazzini’s mail.

Thus it was that on March 1, 1844, Sir James Graham issued an official warrant for the opening of letters sent to Mazzini. The letters were removed from the mailbags, copied and forwarded to the Austrian ambassador.

Meanwhile, the letters themselves were carefully resealed and sent on to Mazzini. But Mazzini himself began to grow suspicious that someone was tampering with his mail, so he asked his international correspondents to begin adding things like poppy seeds, grains of sand or even a few loose hairs to their envelopes. Sure enough, when the letters arrived, those seeds, grains and hairs were missing.

Mazzini, however, was not without his own powerful friends in the House of Commons. In June 1844, Mazzini’s friend the radical MP Thomas Duncombe petitioned Parliament to stop opening Mazzini’s incoming mail. Sir James Graham responded, insisting it was not in the public interest for Parliament to pry or inquire into his use of government power.

The outrage was immediate because almost everybody used the Royal Mail almost every day to conduct their personal, political and financial business. They all expected that their private mail would be safe from government surveillance. People were shocked to learn that this simply wasn’t the case.

As The Times of London put it:

No man’s correspondence is safe. No man’s confidence can be deemed secure; the secrets of no family, of no individual, can be guaranteed from reaching the ear of a Cabinet Minister, and, worse than that, of a Minister’s officials.

The House of Commons and the House of Lords each struck a special committee to inquire into the allegations. The Lord Chief Justice, Lord Denman, demanded to know how Sir James Graham felt about “. . . opening a private letter, becoming the depositary of the secrets of a private family . . .” and “. . . knowing that he was in possession of secrets dearer to him than his life. . . .”

The novelist Charles Dickens and the philosopher Thomas Carlyle thundered. The satirical magazine Punch ran devastating cartoons. In a speech in the House of Lords, the Earl of Haddington argued that “there was nothing more sacred than private communication passing through the Post-office.”

The Law Magazine, in an editorial published in 1845, wrote, “the post-office must not only be CHEAP AND RAPID, but SECURE AND INVIOLABLE.”

There was so much public and political indignation that from that time forward, no more warrants were issued for the searching of letters sent via the Royal Mail. The government understood that in order for people to have confidence in the penny post, they had to have confidence that the Crown would not monkey with their mail.

In 1849, when the Canadian colonies established their own postal services, they kept that contract. That is why police in 2024 can get a warrant to search packages delivered by FedEx, UPS or Purolator but not a warrant to search a letter dropped in a red Canada Post box. When you send a letter via a private courier company, you simply do not have the same expectation of privacy that you do when Canada Post, a Crown corporation, handles your mail.

During our Legal Committee hearings on Bill S-256, we repeatedly heard this situation referred to as an anachronism, a practice that no longer makes sense today.

However, that is not what contemporary Canadian courts have found. In a case from the court of Newfoundland and Labrador, R. v. Crane and Walsh, the court found that:

The search and seizure of private mail is in my opinion a most serious matter. The privacy of one’s mail is a most important and highly-protected element of our society.

In the more recent 2023 case of R. v. Gorman, the Supreme Court of that same province held that because the mail has been used to transmit messages that reflect aspects of private life and individual identity:

People using the post have a reasonable expectation that the government will not search the mail and see what they are sending or receiving.

It continued, stating, “. . . people expect that the government will refrain from opening their mail.”

Here we have before us in Bill S-256 legislation that would upend some 180 years of legal tradition and precedent.

This bill, for the first time in Canadian history, would give the police the power to intercept, open and inspect packages and letters being carried by Canada Post. Police would indeed require a warrant to perform such a search. I am happy and grateful to say that thanks to a timely amendment of his own bill, Senator Dalphond’s proposed legislation now requires that police have a general warrant or its equivalent to conduct a search. That means, as Senator Cotter explained, the grounds for such a search must be reasonable grounds to believe and not just reasonable grounds to suspect; there is now a higher threshold to meet.

These are significant improvements to the bill, and I commend Senator Dalphond for his wisdom in making them. And yet, even with these substantive amendments, there remain things about Bill S-256 — which has been strongly opposed by Canada Post itself — which make me uncomfortable.

Ostensibly, the bill was designed to counter the practice of slipping fentanyl, a powerful opioid, into standard letter-sized envelopes. Because the drug is so potent and concentrated, even a lightweight amount, tucked into an envelope, can be sold as many hundreds of doses.

The Standing Senate Committee on Legal and Constitutional Affairs heard testimony that drug dealers are routinely using letters to send fentanyl this way, especially to rural and remote Indigenous communities. We even heard dramatic testimony about fentanyl being dissolved in ink or soaked into paper, but we were shown no proof or evidence of any such thing ever happening in Canada.

Bill S-256 wouldn’t just allow police to search for drugs, alcohol or other contraband. It would allow them to open and read letters in transit, looking for evidence of all kinds of crimes, for example, for proof of criminal conspiracy or political insurrection.

Perhaps that thought, that image, is quaint. After all, I suspect more criminals and terrorists do their plotting via WhatsApp or text than conventional snail mail these days. However, there is something about the idea of police being able to open our mail, even with a warrant, that bothers me on a visceral level.

Perhaps it stems from my childhood. Both my father and mother had family members in the Soviet Union, who had been trapped there after the war when the Iron Curtain slammed down. The only way my family could communicate with siblings and cousins in the U.S.S.R. was by letter. My grandparents and great-aunts in Edmonton wrote those letters knowing they could well be opened and read by Soviet censors. And family members writing from Russia assumed that every word they said to us in Canada would be scrutinized too.

There was a joke my father, of blessed memory, liked to tell about two Jewish brothers. One of them, a communist idealist, decided to travel back to the Soviet Union to see what it was really like and promised to write home with his news. Knowing that the censors would read their mail, the brothers agreed to a code. If the letter came in black ink, the brother in Canada would know it was true. If it came in red ink, then the brother would know it was false propaganda.

Weeks went by, and the brother left at home began to worry. Finally, a letter arrived from Moscow. In black ink, the brother who had travelled to Russia gushed about the wonders of the Soviet regime: cheap apartments, delicious food, fabulous ballet and outstanding hockey. The Canadian brother was thunderstruck until he read the postscript, “PS: The only thing they don’t have in Moscow is red ink.”

I grew up hearing that joke long before I truly understood the mordant twist in the punchline. Perhaps that is why I have such a gut reaction to the prospect of allowing agents of the Crown to open and read the mail. Today, we’re acting with goodwill, responding to the urgent legitimate requests from Northern Indigenous communities to protect them from the scourge of opioids. But once you give the police this right, where could it lead? You don’t need a wild imagination to picture some future government in some future time using this new power that fundamentally erodes the civil liberties of all Canadians, privacy rights we’ve enjoyed since the time of Queen Victoria.

I have a separate concern about Bill S-256, which is a bit more specific to the here and now. At committee, we approved, on division, a set of separate amendments specifically allowing Indigenous communities to ask Canada Post to screen all mail entering the reserve for drugs or alcohol. This power was specifically requested by the Cree Nations of the Mushkegowuk Council of northern Ontario and supported by the Assembly of Manitoba Chiefs. I understand why Indigenous leaders are desperate to stem the flow of opioids into their vulnerable communities. But I’m nonetheless concerned about including a clause that singles out reserves and other Indigenous settlements for special, stricter treatment in this way. What some advocates might see as respect for the legal autonomy of First Nations, others might perceive as paternalistic racism.

And I worry about adopting this very particular clause without input from the Assembly of First Nations, Inuit Tapiriit Kanatami or the Métis National Council and without hearing from the governments of Yukon, Northwest Territories and Nunavut. I just don’t think we’ve done enough consultation to justify and buttress a bill that could potentially infringe on the Charter rights of Indigenous citizens and treat them differently than other Canadians in the name of respecting First Nations’ sovereignty.

I am not blind to the ravages of the opioid crisis, and you do not have to visit a northern reserve to see the devastation that fentanyl has wrought on our communities. You only need to step out of the Senate building and look at the streets of Ottawa to see the human costs and consequences of opioid addiction.

But the problem isn’t supply. It is demand. As long as we lack adequate mental health care and addiction treatment in this country, as long as we are still wrestling with the consequences of racism, economic injustice and intergenerational trauma, and as long as many Indigenous people in Canada, whether they live on-reserve or in our cities, feel hopeless, alienated and marginalized, the hunger for drugs that soothe that pain will only grow. Even if we could magically make all the fentanyl disappear, we wouldn’t have solved the crisis of addiction; we’d just have shifted the addicts to a different intoxicant.

As we consider this legislation, let us ask ourselves: By doing what seems expedient and practical in the here and now, what historical rights are we sacrificing, and are the possible benefits worth the future unintended consequences? Thank you, hiy hiy.