Appearance before the Senate committee on Legal and Constitutional Affairs (LCJC) on Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts

March 30, 2017
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Mr. Chairman, Vice-Chairman, and members of the Committee,

Thank you for inviting me here today to comment on Bill C-37, An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts.

Let me start by acknowledging the importance of addressing drug abuse and addiction in a comprehensive manner.

While Bill C-37 touches upon a number of matters, I will reserve my comments to those clauses that amend the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

As the law stands now customs officers are permitted, on suspicion, to examine mail that is being imported or exported and weighs more than 30 grams. But where mail weighs 30 grams or less, consent must be obtained. If I understand correctly, this longstanding limitation has been in place to protect the privacy of correspondence.

While C-37 would repeal the requirement for consent, I would note the following:

• Border agents would need reasonable grounds to suspect the presence of prohibited, controlled or regulated goods. This is in contrast to the general customs examination of goods, which in most circumstances requires no grounds;
• Assessing the reasonableness of the amendments to the Customs Act and the PCMLTFA requires a balancing of privacy and public safety interests. According to the government, it has evidence demonstrating that the international mail system has been used to import in small quantities drugs that have been responsible for the death of a large number of Canadians;
• I have also been informed that customs officers do not open all mail; rather they employ a range of risk assessment techniques available to them in order to determine whether any contraband is being imported or exported prior to examining or opening mail. 

Taking into account these factors, I believe the amendments to the Customs Act and the PCMLFTA are justified. In my opinion, the implementation of these amendments, and ideally the bill itself, would clearly benefit from additional policy measures to protect Canadians’ privacy, specifically, to ensure that correspondence is not read in cases where no contraband is found. A government policy surrounding the implementation of these amendments could be sufficient. In a free and democratic society, the opening of mail by government is generally prohibited and must be carried out with the greatest possible restraint.

The recent Supreme Court of Canada decision in R v Fearon may be helpful to us in finding the right balance between the objectives of Bill C-37 and the protection of privacy. In that case, police searched an individual’s cell phone after arrest without a warrant. The majority of the Court held that such warrantless searches serve valid law enforcement purposes, that the search in question did not violate the individual’s Charter rights and that the evidence obtained was admissible.

While the context was different than Bill C-37, which contemplates searches at the border – and those have been referred to in the case law as a unique context – R v. Fearon also addressed the unique context of warrantless searches upon arrest and may therefore prove useful in navigating this issue. 

While it upheld the search as constitutional, the majority in R v Fearon clarified that a balance must be struck between the legitimate objectives of enforcing the law and privacy interests. And to ensure that searches upon arrest comply with the Charter, the majority outlined four conditions that must be met.

• First, the arrest must be lawful. In the case of Bill C-37, examination of mail must be conducted with reasonable grounds to suspect, in accordance with the provisions of the Customs Act or PCMLTFA.
• Second, the search must be truly incidental to the arrest.  In the case of Bill C-37, this means that the examining officer must have a valid reason to conduct the search, such as the discovery of prohibited or controlled goods, currency or monetary instruments.
• Third, and of highest interest in my view, the nature and extent of the search must be tailored to its purpose.  In the case of Bill C-37, any search of correspondence after an examination and opening of mail should be tailored to the initial purpose of the examination – the discovery of prohibited or controlled goods, currency or monetary instruments, for the purpose of enforcing the Customs Act or PCMLTFA. This condition is a flexible standard that could be applied in the case of all mail in order to balance privacy rights with the examination of mail at the border. For example, reading correspondence would not be permitted if opening the mail is justified by a suspicion it contains drugs and no drugs are found. However, if the justification for opening the mail is that it contains correspondence which itself is something the importation or exportation of which is prohibited (say, terrorist propaganda), then reading the correspondence would be authorized.
• Finally, the police must take detailed notes of what they have examined on the device and how they examined it. Likewise, officers should document the steps they take when examining and opening mail, the reasons for their suspicion and, if correspondence is read, why they believed the correspondence itself was contraband.

Thank you and I look forward to answering any questions you may have.