Second reading of Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, today, I’m pleased to begin the second reading of Bill S-256, the Canadian Postal Safety Act.

My bill is rather short with only eight clauses, only one of which is of substance. The others are ancillary amendments to the first clause.

The amendment of substance proposes to amend subsection 40(3) of the Canada Post Corporation Act, which sets out the following principle, and I quote:

Despite any other Act or law, nothing in the course of post is liable to demand, seizure, detention or retention, except as subject to this Act and its regulations . . . .

This principle dates back to 1867 with the passage of the Post Office Act. At that time, it was inconceivable to interfere with the operations of the Royal Mail or to read the content of letters one was tasked with delivering. In short, the objective of this law was to protect privacy.

For quite some time, only a postal inspector could detain an item, for instance if it wasn’t sufficiently stamped for the class of mail or if it contained items that were illegal to send by post. It would be more than 100 years before any exceptions to the principle of prohibiting interference with mail items were adopted. This was done through the passage of the Canadian Security Intelligence Service Act in 1984, an amendment to the Customs Act in 1986 and the passage of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act in 2000.

Under the amendment to the Customs Act, a shipment entering Canada may be subject to inspection by border services officers if they have reason to suspect that its contents are prohibited from being imported into Canada. If this is the case, the shipment, whether a package or an envelope, may be seized. However, an envelope mailed in Canada to someone who resides at a Canadian address cannot be opened by the police or even by a postal inspector. Paragraph 41(1)(c) of the Canada Post Corporation Act states the following, and I quote:

The Corporation may open any mail, other than a letter, to determine in any particular case . . .

(c) whether the mail is non-mailable matter.

The Letter Definition Regulations state that a letter is a mailed item that does not exceed 500 grams. However, postal inspectors may open a parcel if they believe it contains something that is prohibited under legislation that applies to the post. If it is, the item is confiscated and turned over to police.

I will conclude my introduction by saying that Canada Post handles billions of items per year. In 2020, Canada Post delivered 6.4 billion items, of which 2.5 billion were letters, 384 million were parcels and the remainder was advertising.

That is the current situation in Canada.

To summarize, nothing in the course of the post in Canada is liable to demand, seizure, detention or retention, except if a specific legal exception exists in the Canada Post Corporation Act or in one of the three laws I referenced. However, items in the mail can be inspected by a postal inspector, but if it is a letter, the inspector cannot open it to complete the inspection.

Thus, a police officer who has reasonable grounds to suspect that an item in the mail contains an illegal drug or a handgun cannot be authorized, pursuant to a warrant issued by a judge, to intercept and seize an item until it is delivered to the addressee or returned to the sender. I am told that letters containing drugs have no return address.

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. It is important to remember that if the illegal object — for example, a packet of fentanyl — is in a letter weighing less than 500 grams, it cannot be opened by the postal inspectors. The most they can do, if they identify such a letter, is to remove it from the course of post as non-mailable matter and call the police.

By the way, colleagues, 500 grams of fentanyl currently has a street value of $30,000.

Incidentally, in 2020, postal inspectors inspected approximately 3,287 items, with 3,067 found to contain non-mailable matter. During that same year, as I said a few minutes ago, Canada Post handled 6.4 billion items. Of these, 384 million were parcels that could be inspected, including being opened, and 2.5 billion items were letter mail, which cannot be opened; the rest were direct marketing materials and advertising.

This context is, unfortunately, well known by criminals, including drug distributors.

In 2019, Maclean’s reported that the Canada Post system is exploited by drug traffickers in an article entitled, “For fentanyl importers, Canada Post is the shipping method of choice.” That article outlines that on the dark web, an anonymous online marketplace for illegal drugs and other contraband, Canada Post appears to be traffickers’ preferred shipping method for Canadian orders.

Mike Serr, chief of the Abbotsford Police Department and co-chair of the Canadian Association of Chiefs of Police Drug Advisory Committee said in 2019:

The word is out there that you don’t use the courier service, you use Canada Post because of the limitations to law enforcement.

In the same Maclean’s report, an anonymously quoted man from London, Ontario, who had ordered fentanyl, heroin and other drugs online from the dark web said:

Some will also offer private courier services at really high prices, but almost always offer Canada Post as the base option. Sending through Canada Post can never be a 100 per cent surefire way to beat the cops, but it works 99.9999999 per cent of the time.

A Canada Post carrier told Maclean’s that the postal system moves too quickly for due diligence:

You don’t have time to be discerning as to what you’re actually delivering and handling. You’re going to throw it in there, get into your truck and get out there as fast as you possibly can.

One carrier told Maclean’s:

As an employee, you’re going, ‘Jeez, I didn’t sign up for this.’ I signed up to be a mailman, to deliver Christmas cards. Not fentanyl.

To complicate the matter further, in a recent judgment from the Supreme Court in Newfoundland and Labrador called Her Majesty the Queen v. Christopher Gorman, the judge concluded that the power of the inspector to seize a parcel was unconstitutional, being too broad. The judge granted the Attorney General of Canada one year to fix the problem, until April 12 next year. This judgment was not appealed.

My bill is an attempt to put an end to the perception that our postal service is the best way to ship illegal drugs and other illegal materials.

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.

As such, this bill will facilitate police operations and should reduce harms in Canada, assisting efforts toward this goal of Canada Post inspectors and customs officers.

Rest assured that, under this bill, any detention or search of parcels or letter-sized items in the mail would be subject to the same judicial authorization already required by law in situations for such items while outside the course of post, such as a search warrant.

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.

Canadians’ expectation of privacy in the mail will not be reduced by Bill S-256, although there will no longer be a legal barrier to appropriate authorization of police searches and seizures while an item is in the course of post.

This legislation will simply grant police the same powers for Canada Post mail that police currently have in relation to items shipped by private courier services such as FedEx, UPS or DHL. Incidentally, such powers already apply to Purolator, a courier company 91% owned by Canada Post.

To sum up, section 40(3) of the Canada Post Corporation Act, as drafted now, prevents law enforcement from detaining and seizing items in the course of post. For example, although police may have reasonable grounds to believe that a package of fentanyl or a prohibited weapon is being sent through the mail, the police cannot lawfully detain the item until it has been delivered to the addressee or until a postal inspector has intercepted it independently of the police investigation.

This framework places an unnecessary operational and logistical burden on the police in doing their job and bringing drug traffickers to justice, costing valuable time and resources, including for surveillance, and risking exposure of investigations and missed opportunities.

The current framework also seems to preclude the possibility that some mail should be situationally delayed to identify and remove contraband, such as if a package of fentanyl is dropped in a red postbox and the item risks becoming unidentifiable if mixed with other mail.

As the law stands now, the police cannot go to the red box where somebody has dropped 20 letters and try to seize these letters. They have to call an inspector, and if they are lucky enough and the inspector comes along with a little truck when they empty the mailbox, they can inspect the thing. With judicial authorizations they will be able to seize the letters in that mailbox before they go to the little truck, the distribution centre and sorting centres where billions of items are processed. And, of course, the letter is difficult to retrieve.

Parliament’s past actions do suggest that the ability to open letter-sized items, where authorized by law, may be important in intercepting fentanyl. In 2017, Parliament passed Bill C-37 to allow customs officers to open mail weighing less than 30 grams, due to the problem of fentanyl imports. Parliament effected this change by repealing section 99(2) of the Customs Act. At the time, it was said in reply to the Minister of Health, the Honourable Jane Philpott:

My Conservative colleagues have been pushing the government to finally acknowledge the flaws at our borders and grant officers the authority to search and seize suspicious packages weighing less than 30 grams. . . . Removing the “30 grams or less” exemption from the Customs Act is a much-needed step in combatting the opioid crisis facing our country.

Senators, why should the same not be true of Canada Post mail? The change proposed by my bill will be further progress along the lines of Bill C-37, allowing police to detain and search letter-sized items with judicial authorization where sufficient grounds are present to believe that they contain fentanyl or other contraband.

To address this enforcement loophole — I call it a loophole — in the Canada Post Corporation Act, I propose to amend section 40(3) of the statute to read:

. . . nothing in the course of post is liable to demand, seizure, detention or retention, except as subject to this Act and its regulations or an enforcement statute.

In Bill S-256, the term “enforcement statute” means any act of Parliament, any law of a province or territory, or any law of an Indigenous jurisdiction. My intent is an approach of cooperative federalism and reconciliation. Essentially, an illegal item present in the mail will no longer be a barrier to law enforcement for any jurisdiction, while still requiring the same judicial or other authorization necessary for search or seizure in other situations, such as a search warrant.

On this point, it is an important step for any federal statute and our postal system to respect Indigenous jurisdiction, including self-determination to prohibit or limit the importation of certain products into the nations’ territory, provided this is done in a lawful way. This bill aims to facilitate Indigenous and other police forces to enforce Indigenous laws as the federal government works to support Indigenous policing and self-government. At the same time, Bill S-256 does not impose any policy on any Indigenous nation but rather upholds their jurisdiction.

I am encouraged and honoured that the Assembly of Manitoba Chiefs, or AMC, has supported the goals of this legislation through a resolution adopted at their annual general assembly on October 25-27 of this year. This followed a review of a preliminary draft of the bill as part of my consultations. The AMC represents 62 First Nations across Manitoba. Their resolution reads in part:

WHEREAS, a statutory limitation currently exists whereby police are unable to search packages sent through Canada Post . . .

WHEREAS, legislation is being proposed to the Canada Post Corporation Act that would allow jurisdiction for police forces to search mail in the possession of Canada Post, if duly authorized with a search warrant, for the purpose of seizing contraband . . .

WHEREAS, opioids, firearms, illegal alcohol, and counterfeit items . . . are being sent through mail carriers and are an ongoing issue for First Nations in particularly in northern and isolated First Nations.

THEREFORE BE IT RESOLVED, that the AMC Chiefs-in-Assembly calls upon the federal government to amend existing legislation or create a new law . . . . ensuring law enforcement’s ability to search and seize mail through Canada Post . . .

BE IT FURTHER RESOLVED, that any federal legislation to prevent contraband from entering First Nations should also provide First Nations police forces with the same powers as their federal, provincial, and municipal counterparts . . . .

Thank you to Senator McCallum for her help and her leadership in this project. She facilitated the adoption of these resolutions, and I am grateful to her.

This past January, the Winnipeg Free Press reported on a death where drugs sent through the mail are believed to have been a contributing factor. This incident occurred in the Sayisi Dene First Nation, the northernmost First Nation in Manitoba. Chief Evan Yassie said in that news report, “Drugs were involved, drugs are involved, and it’s coming in steady through the mail.”

In June of 2021, the Health Canada Expert Task Force on Substance Use released its second report, regarding recommendations on the federal government’s drug policy. One recommendation reads:

Define the role of enforcement as a means to clearly support the aims of the public health framework and legal regulation by focussing on criminal organisations and the illegal toxic drug supply.

Colleagues, Bill S-256 is consistent with this recommendation, as enforcement actions against illegal drug supplies and traffickers, including organized crime groups, are complementary to harm reduction approaches on this public health matter.

In advancing the Canadian postal safety act, I’m happy to be working with Member of Parliament and prospective House of Commons sponsor Ron McKinnon, representing Coquitlam—Port Coquitlam in B.C. From Mr. MacKinnon:

The Canadian Postal Safety Act is one more important tool in the harm reduction tool kit which will help get poisonous drugs off our streets. Too many of us have lost friends or family because of the toxic drug crisis. This bill is an important move that will disrupt criminals and save lives.

Mr. McKinnon previously authored the Good Samaritan Drug Overdose Act. This was also a private member’s bill, Bill C-224, passed unanimously in 2017, to provide a legal exemption from possession charges or violations of related conditions for persons calling 911 to seek help for an overdose, as well as those at the scene. On May 4 this year, the fifth anniversary of that bill passing, Senator Gold told this chamber that the government will be pleased to work with parliamentarians on potentially expanding the Good Samaritan exemption such as to other non-violent offences.

I am also honoured to be working to close the Canada Post loophole with some members of the Canadian Association of Chiefs of Police’s Drug Advisory Committee. Canadian police chiefs have been pushing for the change in the Canada Post Corporation Act for years.

Bill S-256 is a response to their call. A resolution adopted in 2015, already seven years ago, calling for police authority to seize illicit drugs, weapons and counterfeit items from the mail where authorized by law. That resolution reads in part:

. . . BE IT RESOLVED that the Canadian Association of Chiefs of Police requests the Government of Canada to amend the Canada Post Corporation Act to provide police, for the purpose of intercepting contraband, with the ability to obtain judicial authorization to seize, detain or retain parcels or letters while they are in the course of mail and under Canada Post’s control.

This was seven years ago. Unfortunately, so far there has been no response from the government to their call.

Chief Mike Serr, Co-chair of the Canadian Association of Chiefs of Police Drug Advisory Committee, and to whom I referred previously, said about my bill:

The legislation responds to the CACP’s 2015 Resolution #08 which calls for police authority to seize illicit drugs, weapons, and counterfeit items from the mail, where authorized by law. The CACP Drug Advisory Committee supports legislative changes that provide tools for law enforcement to keep communities safe.

In advancing this bill, I wish to thank particularly Rachel Huntsman, who was in the gallery previously today, also from Newfoundland and Labrador, and Member of the Law Amendments Committee of the Canadian Association of Chiefs of Police, or CACP. Her knowledge, advice and passion have been critically important to launching and shaping this bill. We have been working on this bill together for two years, along with Canada Post, the police chiefs and a lot of other people. I want to thank the Progressive Senate Group for providing research funds to finance this work.

Colleagues, the question with this bill becomes, “What are we waiting for?” I hope a Senate committee will hear from witnesses on this point and, if they reach the same conclusion as I have, that Parliament would proceed to close this loophole as soon as possible.

In conclusion, with Bill S-256, the “Canadian Postal Safety Act,” I think we are creating one more tool — an effective tool — to enforce the law and reduce the illicit distribution of fentanyl and other drugs through the mail. I hope that, as a chamber, we will make a difference and adopt this bill on second reading and send it to committee as soon as possible. Thank you, meegwetch.

Some Hon. Senators: Hear, hear.

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