Hon. Pierre J. Dalphond moved second reading of Bill S-256, An Act to amend the Canada Post Corporation Act (seizure) and to make related amendments to other Acts.

He said: 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 . . .

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.

[English]

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.

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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.

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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.

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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.

Hon. Pierre J. Dalphond moved second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

He said: Honourable senators, today, I have the honour to commence second reading of Bill C-233, An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner).

This bill was introduced in the House of Commons on February 7, 2022, by Anju Dhillon, the member for Dorval—Lachine—LaSalle and a family and criminal lawyer, in cooperation with Pam Damoff, the member for Oakville-North—Burlington and Parliamentary Secretary to the Minister of Public Safety, and with Ya’ara Saks, the member for York Centre and Parliamentary Secretary to the Minister of Families, Children and Social Development.

It was changed slightly by the Standing Committee on the Status of Women and then unanimously passed by 326 MPs on June 1. Unfortunately, this bill arrived in the Senate when we were working exclusively on government bills.

Although it consists of only four provisions, including one on the coming into force of the act, Bill C-233 proposes two measures that should help reduce incidents of violence, including femicide, against women who want to end a toxic relationship.

[English]

First, Bill C-233 proposes to amend the Criminal Code where an accused is charged with an offence against an intimate partner. Before making a release order, this change would require a justice to consider whether it is desirable — regarding the safety and security of any person — to include that the accused wear an electronic monitoring device as a condition of the bail order.

Second, Bill C-233 proposes to amend the Judges Act to signal to the Canadian Judicial Council the importance of continuing education seminars for judges on matters related to intimate partner violence and coercive control in intimate partner and family relationships.

I will start with the two proposed amendments to the Judges Act.

Those of you who were here in 2017, 2018 and 2019 remember the failed attempts in this chamber to reach a final vote on Bill C-337 introduced by the former leader of the Conservative Party, the Honourable Rona Ambrose. That bill aimed to improve judges’ knowledge relating to sexual assault law and social context by inviting the Canadian Judicial Council to establish seminars on these issues.

In September 2020, the government introduced a bill to the same effect, Bill C-3, that included social context, systemic racism and systemic discrimination. That bill was adopted by the Senate and became law on May 6, 2021.

Bill C-233 proposes that the Canadian Judicial Council be invited to offer seminars to judges on the following subjects: intimate partner violence and coercive control in intimate partner and family relationships.

Thus paragraph 60(2)(b) of the Judges Act would read that, “In furtherance of its objects, the Council may”:

. . . establish seminars for the continuing education of judges, including seminars on matters related to sexual assault law, intimate partner violence, coercive control in intimate partner and family relationships and social context, which includes systemic racism and systemic discrimination . . . .

With this proposed change, Parliament will signal to the Canadian Judicial Council and to judges the high importance that our society places on intimate partner violence and coercive control.

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Notably, Parliament would signal the necessity of protecting all family members from becoming the victims of the father exercising coercive control. In addition, Parliament will invite the Canadian Judicial Council to provide information on its annual reports on seminars offered on all the matters indicated in paragraph 60(2)(b), which I just read.

This part of Bill C-233 is described as “Keira’s Law,” in memory of Keira Kagan, a four-year-old girl killed in Milton, Ontario, by her violent father in what was likely a murder-suicide in February 2020.

Despite serious allegations by the mother that the father was a violent husband, the Ontario Superior Court of Justice granted him access rights. In fact, it seems that the judges tasked in 2018 and 2019 with deciding on access rights had assumed that the violence manifested by the husband against his wife did not mean that he could not be a good father and that he should, therefore, be denied access rights to their daughter, Keira.

Since this tragic event, the mother, Dr. Jennifer Kagan-Viater, and her spouse, Philip Viater, a lawyer who practises family law, have been working relentlessly to ensure other families do not suffer the pain of losing a child killed by a violent parent. Among the measures they seek is more training for all those involved in family law cases, including judges, about the importance of considering indicia of violence before deciding matters of custody and access rights.

Those proposed additions to the Judges Act will encourage the Canadian Judicial Council to continue and even expand its efforts to train judges on intimate partner violence and controlling spouses.

In the last two years, the Canadian Judicial Council has authorized numerous conferences, seminars and tools for judges, all provided by the National Judicial Institute. Those initiatives are funded by public money. The annual budget of the council exceeds $30 million, including over $6 million for education and assistance tools for judges.

As you might remember, in the 2019 budget, Parliament authorized the government to increase the amount allocated to judicial education by $5 million over the following 10 years.

Let me give you some examples of the programs currently offered.

One is a mandatory 10-day course for newly appointed judges that is intended to provide them with the essential knowledge, skills and understanding of social contexts to succeed in their new role. The course includes training on sexual assault trials, and on the myths and stereotypes that might arise in those trials. It also includes training on the importance of considering violence in family law matters.

As for sitting judges, they must attend two courses called Judging in Your First Five Years: Criminal Law. One is related to criminal law and the other one to family law. In addition, as part of their continuing education plan, sitting judges are invited to participate in national seminars and conferences in family law, criminal law, access to justice for children, jury trials, gender‑based violence and similar topics.

Furthermore, appeal courts and superior courts organize annual general meetings that include training. Since January 2018, 50 live-education programs have been offered during these annual meetings, dealing in whole or in part with issues related to intimate partner, domestic or family violence; sexual assault trials; and social contexts.

Digital resources are also made available to judges on sexual assault, Indigenous people’s issues, intimate partner and family violence, evidence, family law and jury instructions.

As said previously in this chamber, studies have shown that violence against a parent harms the children of the family. In fact, a violent husband cannot be a father who is able to act in the best interests of the children.

That is why Parliament adopted substantial amendments to the Divorce Act in 2019. Those changes were designed to identify violent acts and to force all those involved in divorce proceedings, including lawyers, social workers, psychologists and judges, to consider such acts in reports, agreements and decisions relating to sharing parental time and responsibilities.

The ultimate goal of those amendments has been to protect the ex-spouse and the children against further violence following separation, especially from husbands who have exercised coercive control over their spouses. Studies show that despite a separation, such husbands will often resort to violent acts to try to resume coercive control, including harassment, threats, assaults and even murder.

[Translation]

Since the coming into force of the reformed Divorce Act on March 1, 2021, we have seen a shift in the jurisprudence. A growing number of rulings handed down by the lower courts, appeals courts and the Supreme Court of Canada are noting the importance of considering incidents of family violence, assuming they are against the best interests of any child and putting measures in place to ensure that the former spouse or the children are no longer exposed to violence.

On May 20, in Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada stated, and I quote:

The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: s. 16(3)(j) and (4). The Divorce Act broadly defines family violence in s. 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.

That is a clear and unequivocal message from the Supreme Court to every judge and member of the judicial system and the law societies.

I could also quote numerous rulings handed down by provincial criminal court judges, superior family court judges and appeal courts across the country that confirm that Canadian courts now take family violence and intimate partner violence very seriously.

In my view, this change in attitude is the result of several factors. These include the aforementioned amendments to the Divorce Act and the Criminal Code relating to intimate partner violence, the importance that media and society have placed on the issue of spousal violence, and the increased knowledge within the justice system of the serious consequences associated with spousal and family violence. This growing awareness in the court system needs to be further encouraged, specifically through training for judges and lawyers.

I will now move on to the amendments to the Criminal Code.

[English]

Bill C-233 proposes to amend section 515 of the Criminal Code that deals with judicial interim release, called bail orders.

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When a person is arrested and charged, the principle is that the accused should be released without conditions pending the completion of the judicial process, unless the Crown shows that the detention of the accused is justified or that the release order should be accompanied by conditions.

There are some exceptions to that rule. For example, further to the adoption of Bill C-75 in 2019, when the accused has been previously found guilty of a violent offence against an intimate partner, it is up to the accused to show that their release could be managed safely for the alleged victim. Bill C-233 proposes to add that when the person is accused of an offence involving violence against an intimate partner, the judge can impose as a condition of release that the accused must wear an electronic monitoring device if the attorney general of the province makes the request.

In our digital and connected world, there are two types of devices. It could be a bracelet, worn by an accused, which is connected by radio frequency to a telephone line in the place of residence in order to indicate to a monitor in real time that the person is always in the place of residence. For example, if a convicted person has been released under the condition of staying at home at all times, such a device ensures compliance or at least serves as evidence of a breach of compliance.

A second type of device allows for the geolocation of a person at any time. In cases of intimate partner violence, such a device could be ordered for a convicted person when the release order includes the condition to maintain a certain distance from the house or place of work of the victim. A breach of the order could automatically be signalled to a monitoring centre that could alert the victim and dispatch the police. A more sophisticated system provides a corresponding electronic device to the victim that will automatically signal the presence of the accused if they are within a certain range.

Under the current provisions of the Criminal Code, a judge could order an accused person to wear an electronic bracelet as a condition of a bail order, assuming that it is available in the place of residence of the accused. This condition is often offered by the accused to show his desire to comply with the bail order and willingness to assume the associated costs.

One of the main providers is Recovery Science Corporation of Bradford, Ontario. According to its website, since 2010 over 800 people across Canada have been granted pre-trial release when including its GPS program as part of their plan of supervision. The company then enters into an agreement with each participant that includes a comprehensive waiver of confidentiality that enables it to report violations and share monitoring data with police, as well as the payment of over $600 per month for the service.

Incidentally, in a case before the Superior Court of Quebec in November 2021, this company acknowledged that with a good pair of scissors it was possible to cut off the bracelet, and that it had happened about 130 times so far, which is, more or less, about 15% of the cases.

It is also worth noting that wearing a bracelet may be ordered currently pursuant to the Immigration and Refugee Protection Act and the Corrections and Conditional Release Act to monitor compliance with conditions such as house arrest, curfew or not leaving a certain area. Bill C-233 proposes to make it clear to the Crown, the accused, the victim and the judiciary that such a condition in a bail order should be considered as a way to not only deter non-compliance but also protect the alleged victim in cases of domestic and intimate partner violence, pending criminal proceedings.

The sponsor of the bill in the other place has chosen to focus on bail orders because it is in the first 18 months post-separation that many women or children are killed. Statistics show that the post-separation period is an enhanced period of danger for the victims of violent partners. Of course, adopting this bill won’t prevent Parliament from providing for monitoring devices in other circumstances, such as those contemplated in Bill S-205 proposed by Senator Boisvenu.

In all cases, it must be clear that reliance on electronic monitoring devices depends on the existence of proper infrastructure to provide a reliable device, constant monitoring and a timely response if triggered, including from the police. Otherwise, the victims may live with a false sense of security. That’s why it is proposed that such a bail order condition can be imposed by a judge only at the request of the attorney general of the province. Hopefully, this should create an impetus for provincial governments to establish the required infrastructure for such monitoring systems.

[Translation]

On that note, I want to highlight the important initiatives undertaken in my part of the country, Quebec, to establish a monitoring device system. The Government of Quebec is acting on recommendation 84 of a report entitled Rebuilding Trust, which was tabled on December 25, 2020, by the expert committee on support for victims of sexual assault and domestic violence. Recommendation 84 states the following:

Where appropriate, consider requiring the accused to wear an electronic bracelet as a means of further protecting the victim.

This committee also recommended that victims have free‑of‑charge access to rapid intervention tools, such as emergency telephones, and encouraged the use of other technological methods for keeping victims safe, all at no charge to them.

In response to this report, Quebec adopted various measures. For example, the National Assembly passed Bill 24 in the spring. This bill amends the Act Respecting the Québec Correctional System and authorizes the director of a provincial prison or the Quebec parole board to require, as a condition of release, an offender convicted of domestic violence and sentenced to less than two years to wear a monitoring device that tracks their whereabouts at all times.

Of course, in order for an electronic monitoring device to fulfill its function, the victim’s location must also be known at all times. Therefore, this release condition can only be imposed with the victim’s consent. Quebec correctional services provide victims with the necessary equipment, such as cellphone software that tells the victim when the offender is within a certain distance of her. This is all at no cost to victims. These devices can only be imposed if the judge has ordered it for the accused as part of an application for release.

A budget of $41 million over five years has been allocated to implementing this system. This budget includes funding to train stakeholders in assessing abusive partners, and to cover the cost of equipment and the monitoring of the system. Incidentally, continuous monitoring of these electronic devices has been entrusted to a non-profit security company, the Commissionnaires du Québec, which includes former members of the Armed Forces and the RCMP.

On May 20, 2022, the Quebec government announced the launch of a pilot project in Quebec City. This will be followed by a gradual rollout across Quebec, with four regions to be added this fall, followed by eight more in the spring and, finally, the rest of Quebec in the fall of 2023.

The Quebec Ministry of Public Security estimates that 500 electronic monitoring devices should meet the requirements when the program is implemented across the province. Three devices have been ordered so far as part of the pilot project.

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This initiative is in addition to others introduced by Quebec, in particular the creation of courts specialized in sexual violence and domestic violence, the allocation of financial assistance to 11 municipal police forces for the hiring of staff specialized in the fight against domestic violence and femicide, and the provision of funding of treatment services for offenders.

I would remind colleagues that 26 women were murdered in Quebec in 2021, the majority in the context of domestic violence.

The monitoring device is therefore an interesting tool. We hope that, based on the Quebec experience, the National Parole Board will consider requiring offenders involved in intimate partner violence to wear a monitoring device while noting that the effectiveness of this device requires not only the consent of the victim but an adequate system of supervision.

That said, I believe it’s important to point out that to address intimate partner violence we need a comprehensive strategy as demonstrated by the Spanish experience after the adoption in 2004 of legislation addressing intimate partner violence that integrates an approach based on the victim, often a woman, as is the case here in Canada, in approximately 80% of cases.

I would like to highlight five features of the Spanish system: specialized courts; specially trained police officers; an effective public awareness campaign on domestic violence — a survey found that 8 out of 10 women in Spain are aware of these programs; an information platform called VioGén, maintained by police officers and the various institutions that care for abused women; and an electronic surveillance command centre, connected to the Spain’s department of health, social services and equality, which is responsible for 24-hour monitoring of the bracelets in use.

The use of monitoring bracelets in protection orders increased by 800% between 2009 and 2018, going from 166 to 970, which represents 5.6% of all violence-related orders issued in Spain. In fact, Spain is a leader among democratic countries in terms of the number of bracelets per capita.

These measures seem to be working. In fact, since the 2004 law, the number of femicides in Spain has decreased by 25%.

[English]

According to researchers and numerous scholarly articles, documented violations of these orders have been very scarce.

Some of the research also indicates that some victims of domestic violence are resistant to the use of electronic monitoring because this reminds them too much of the dynamic experience when they were living with their controlling partner. They felt monitored at all times. However, the feeling of security and confidence in the system has increased over time, according to Spanish police. It seems that more and more victims are satisfied with the system and that the number of false alarms is decreasing.

Several jurisdictions have followed Spain’s example: Portugal, France, Italy, the United Kingdom, Puerto Rico, Mexico, Chile and Japan.

[Translation]

Electronic monitoring bracelets were implemented in France in 2019. The French government announced an operational capacity of 1,000 units nationwide. As of April 1, 2022, French judges had ordered 995 electronic bracelets to be worn.

In that country, the imposition of an electronic bracelet, which is also referred to as being “placed under electronic monitoring,” may be applied before conviction or as part of the sentence.

What is more, a family court judge may issue a protection order to shelter a woman who is a victim of domestic violence, independently from any criminal proceedings.

Nevertheless, some victims feel that electronic monitoring devices are inadequate because they are not automatically ordered by judges.

It should also be noted that emergency telephones are another device that are recommended for Quebec. France implemented them in 2014, five years before the electronic bracelets. The device consists of a cellphone with a specific button that the victim can press to quickly alert the help line, which is informed of the call and the victim’s geographic location at that precise moment. This service dispatches law enforcement officers who are connected to the service through a special line, either with local police or with the national police force.

According to the French justice department, 3,512 of these phones were available on French territory as of March 1, 2022; 2,566 of them were assigned. That means another 1,000 are available for use.

However, in 2021, some associations criticized the fact that these phones were being handed out so sparingly.

According to the French justice department’s website, the electronic monitoring device is a more versatile tool than the emergency telephone.

There seems to be a big difference between outcomes in Spain and those in France, largely due to the funding allocated to other measures enabling women to get away from violent partners. For example, Spain has 8,600 specialized shelter spaces compared to 5,000 in France, even though France’s population is 30% bigger.

[English]

In conclusion, I want to thank the sponsor of Bill C-233, MP Anju Dhillon, and all members of the House of Commons for having unanimously adopted Bill C-233. It contains two interesting measures that could effectively help protect against further domestic and intimate partner violence. Thus, I invite you to adopt the bill at second reading as soon as possible and to send it to committee for review.

However, it should remain clear that the incremental steps contained in Bill C-233, though useful, are insufficient to end intimate partner and domestic violence. A comprehensive strategy must be developed. It must include help for aggressors — especially men — access to resources for victims, including shelters, public education and training for all those asked to intervene, such as police officers, social workers and judges.

[Translation]

Thank you for your attention. Meegwetch.

Hon. Pierre J. Dalphond: Honourable senators, as said by Senators Boniface, Simons and Wells, the constitutional question that Bill S-7 attempts to answer is the balancing of two competing values.

On one hand, it is widely acknowledged that officers at the border, in dealing with travellers coming into Canada, are entitled to ask questions, to inspect goods, including personal belongings, and to detain and search persons in order to ensure compliance with the Customs Act and related laws, all in order to protect our country. In fact, officers at the border are often entitled to act in ways that would not be acceptable for police officers dealing with citizens within the country.

On the other hand, there is the ever-increasing recognition by the courts of the informational privacy inherent in a personal digital device. The Supreme Court has stated that cellphones, like computers, implicate important privacy interests that are different in both nature and extent from the search of other places. The high courts added that it is unrealistic to equate a cellphone or a computer with a brief case, even if they all store material.

As stated in the recent Ontario Superior Court judgment, the core biographical information to be gleaned from a personal digital device can be used to construct an extraordinary, intricately detailed profile of the owner of the device. Judge Harris wrote:

A personal digital device mirrors who we are. It is the manifestation of both our external and internal life.

The intrusion of the state into informational privacy through investigation of digital media has the potential to extend well beyond anything George Orwell could possibly have imagined.

Within Canada, to perform a legal search, police officers have to meet one of two thresholds depending on the context: reasonable grounds to believe that a crime has been committed or is in progress, or a reasonable suspicion that such is the case. Both thresholds are reviewable by courts pursuant to an objective analysis, and not according to the subjective state of the mind of the police officer. Case law has established that the highest threshold is reasonable grounds to believe. I am not suggesting that it shall apply to customs operations, except maybe for an intrusive body search.

As for reasonable suspicion, it is defined by the Supreme Court as meaning the following:

The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

The fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient. Instead, to justify a search, the suspicion must be supported by the factual elements, which can be adduced in evidence and permit an independent judicial assessment.

As said by the Supreme Court in 1996, in the context of section 99(1)(f) of the Customs Act, a hunch based on intuition gained by experience cannot suffice as reasonable suspicion.

Before the courts of Alberta and Ontario, representatives of the border agency have testified that to apply the lowest threshold, reasonable suspicion, would seriously impede their operations, and I suspect this is the reason why the bill proposes a new threshold called “reasonable general concern,” intended to be defined by courts as being lower than reasonable suspicion.

In the Ontario judgment, the judge seems to be unconvinced by the border agency’s resistance to a threshold. He wrote:

In my view, skepticism is the appropriate reaction to an assertion by law enforcement that a search threshold will stymie investigations. Naturally, law enforcement officials would prefer not to have legislative obstacles regulating their ability to search. They would be more effective and productive without them. But there would be a cost to individual rights and to liberty.

(1540)

Colleagues, I believe we need a threshold. However, if Parliament decides to enact the proposed new threshold, we have to realize that it is an unknown concept to the law, and that the court will have to flesh out its contents considering the content of the binding regulations — which we don’t know yet, but have been promised after the bill is adopted.

On the whole, in order to meet the constitutional requirements under section 8 of the Charter, nobody can predict the end result of this process, but it is fair to say it’s going to take years, including judgments from Courts of Appeal and the Supreme Court of Canada. In the meantime, there will likely be criminal charges arising from the search of digital devices dropped or dismissed.

Of course, the use, instead, of the reasonable suspicion test will not bring such uncertainty. This is another area that should be studied by the committee, including the pros and the cons of having new tests in connection with documents found on digital devices rather than applying an existing test — reasonable suspicion — which is used for documents in the mail.

The studying committee should look at the existence — or not — of equivalent thresholds in other democratic societies. In the U.S., the use of an applicable threshold is a complete mess, controversial and subject to conflicting case law.

Moreover, considering this bill is a response to the Court’s decisions concluding in the unconstitutionality of the current regime if applied to a device, the committee shall hear evidence from legal experts about the ability of the proposed threshold to survive legal challenges that are promised to come.

Finally, this bill proposes that the new concept be applicable to the U.S. pre-clearance areas located in eight Canadian airports. However, in the United States, this concept does not exist. Moreover, as I said, the issue of access to personal devices is currently quite controversial and unsettled in the U.S. This means that if you go to the U.S. by car instead of flying from an airport, where there is a U.S. pre-clearance, you will most likely be subject to a different threshold. However, I am content to see that the Canadian Charter of Rights and Freedoms will be fully applicable across Canada, including in U.S. pre-clearance areas.

[Translation]

In conclusion, like Senators Simons and Wells, I believe that this bill raises some fundamental issues of constitutional law that will need to be thoroughly studied in committee.

I also believe that it would be preferable to have a committee study it soon, in order to put to an end, in the months to come, to the two different regimes that currently exist in Canada for the inspection and seizure of documents found on digital devices, that is, the regime that applies in Ontario and Alberta and the one that applies in the rest of Canada.

Thank you very much. Meegwetch.

[English]