Hon. Gwen Boniface: Would Senator Boisvenu take a question?

[Translation]

Hon. Gwen Boniface: Thank you very much, senator, for your speech. I think you hit the nail on the head, and I congratulate you. I had the same question. That was my concern.

Just as an add-on, I am just asking if you would agree. I know, Senator Patterson, we need to hear from the police investigators that this doesn’t affect how they see investigations going forward. The last thing we want to do is create some notion of two pieces when we have been working under one.

I come from an organization, as you know, that has been deeply involved in this for a long time in terms of investigations, so that was my concern about unintended consequences. I can only assume you have the same concern. Would I be correct in that?

Senator R. Patterson: You would be correct. This is why I think it is very important that this bill gets to committee for this look. I believe that we would like to have it on record that this must be reported back on as the committee goes through its work.

Hon. Gwen Boniface: Honourable senators, I rise to speak in support of Bill S-256, the Canadian postal safety act, proposed by Senator Dalphond. This bill would allow law enforcement to demand, seize, detain or retain items sent within Canada through Canada Post. There have been cases where counterfeit items, such as passports, firearms and other weapons have been delivered using Canada Post.

While Bill S-256 opens up the search authority to all contraband items being sent by Canada Post, I want to specifically address its influence on the drug trade.

As senators are aware, the rise in fentanyl and, subsequently, fentanyl-related deaths in our country has skyrocketed. There is no part of Canada left untouched. Of course, addictions and mental health issues ravage bigger cities like Vancouver, Calgary, Toronto, Montreal and even here in Ottawa, but now rural outliers, northern areas and Indigenous communities are all feeling the brunt of the opioid use perpetuated by the rise in fentanyl. This isn’t the first time you’ve heard me speak to this issue, as I have my own bill before this chamber that attempts to decriminalize simple possession of currently illegal substances through a national strategy process. That process alone won’t cure Canada of the poison that is fentanyl, but like Bill S-256 before us now, these are steps in the right direction to save lives, and ultimately that’s what this bill is about.

Senator Dalphond has very eloquently outlined what this bill will do and the impetus for it. That was a 2015 resolution from the Canadian Association of Chiefs of Police that has, until Bill S-256, not been considered, let alone implemented. Senator Dalphond referred to Chief Mike Serr, head of the Abbotsford Police Department and Co-Chair of the Drug Advisory Committee of the CACP, in both his second reading remarks and the press release tied with the introduction of this bill. I know Chief Serr, and I have the highest respect for his dedication to the work dealing with drug issues. I reached out to him, in fact, to consult on my own bill.

As I was once the president of the Canadian Association of Chiefs of Police, I understand the in-depth and evidence-based research the association performs, especially at the committee level. Resolution 8 from the CACP’s one hundred and tenth annual conference joined the work from the Drug Advisory Committee and the Law Amendments Committee to come up with the solution before us today.

Let me detail the issues straight from resolution 8; it’s a long quote, so please bear with me:

The Canada Post Corporation Act (CPCA) is the legislative basis for the Canada Post Corporation and was passed in 1981. Subject to the Canadian Security and Intelligence Service Act, the Customs Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the Canada Post Corporation Act currently exempts items in the course of post from search or seizure by law enforcement, pursuant to the Criminal Code, Controlled Drugs and Substances Act, Copyright Act or Trade-marks Act, and potentially others. This exclusion may perhaps be due to domestic trafficking not being seen as a priority when section 40(3) of the CPCA was last updated in 2005. This means that search and seizure authorities granted to law enforcement personnel under the Criminal Code of Canada and other criminal law authorities are overridden by the CPCA, giving law enforcement no authority to seize, detain or retain parcels or letters while they are in the course of mail and under Canada Post’s control. That said, the CPCA is augmented by the Non-mailable Matter Regulations which specify that Canada Post inspectors shall turn over any illegal material found in the course of mail to law enforcement. Recent court rulings have determined that postal inspectors cannot act as agents of the state where police convey information received to postal inspectors in order to intercept the contraband during the postal delivery process.

Senators, obviously this poses a significant challenge for law enforcement. Reliable intelligence may point to contraband being sent through Canada Post, but law enforcement would be unable to act upon this intelligence unless they’re able to actually intercept the contraband before it enters the postal system or after it is successfully delivered. There is a large gap during the course of mailing, sorting and delivery where law enforcement is exempted from intercepting contraband.

Let me remind senators of a few facts laid out by Senator Dalphond in his speech. There are 25 postal inspectors across Canada — 25 — so they are few and far between.

The maximum weight for an item of lettermail as outlined in the Letter Mail Regulations accompanying the CPCA is 500 grams. Lettermail currently cannot be opened by inspectors; they can only set aside an identified letter to remove it from the course of the system as non-mailable and call the police. Such is the dilemma.

In 2020, Canada Post handled approximately 384 million parcels and 2.5 billion letters. This is 6.5 times more letters than parcels.

Senator Dalphond also stated that 500 grams of fentanyl has a current street value of $30,000. This is a lot of money, but it’s meaningless compared to the number of lives that could be lost to those 500 grams of fentanyl. According to the Drug Enforcement Administration in the U.S., just one gram of fentanyl can result in the deaths of 300 to 500 people.

It would be easy to transport one gram of fentanyl through one letter, but I’ll let you extrapolate. Let’s consider if it’s 250 grams of fentanyl — half the allowed weight to be considered a letter. I’ll let you do the math on that.

In order for a piece of lettermail to be considered mailable, it must have the address of the addressee. A return address is optional. In many cases, the address listed will be one of a private residence. As already referenced by Senator Dalphond, Canada Post is the shipping method of choice for many drug traffickers. Someone will order illegal drugs online through the dark web, and those responding to the orders will use Canada Post as the base method to ship to the addressee. It should come as no surprise, then, that many illegal drug toxicity deaths occur in private residences; it should be no shock to us. A May 2021 report from Public Health Ontario has observed that over 70% of opioid-related deaths occurred in private residences. British Columbia has also seen a majority of drug toxicity deaths occurring in private residences, at around a 55% rate in 2022.

The ease of having illegal drugs sent straight to your home with very little chance — or, let’s be serious, no chance — of interception will only perpetuate these statistics and the wholly founded perception of drug traffickers that Canada Post is ripe for abuse.

Colleagues, those who work in the drug trade and organized crime writ large are always finding ways to be a step ahead of or work around law enforcement. These people are smart, they’re crafty, they’re creative and they don’t have to adhere to any law, and that’s how they meet their objectives. They have identified the Canada Post Corporation Act as a vessel to move illegal goods because of the very slim chance of detection. This has only been more prevalent with the ability to transport fentanyl through lettermail.

Private delivery or courier services such as FedEx, Purolator or DHL are not barred from search by police. Law enforcement currently has the lawful power to search packages and parcels being shipped through these companies with a warrant. Those shipping drugs throughout Canada are already avoiding the use of private courier companies for exactly that reason.

The key provision of the CPCA that Bill S-256 seeks to amend is section 40(3), which deals with the liability to seizure. The way the section is currently worded, nothing in the course of post is liable to demand, seizure, detention or retention, unless it’s subject to the Canada Post Corporation Act itself, the CSIS Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. As you will recall in the description of the issue provided in the Canadian Association of Chiefs of Police resolution, this means that mail in the course of post is exempted from search and seizure pursuant to the Criminal Code, the Controlled Drugs and Substances Act or other acts.

Bill S-256 amends this provision to widen the scope of liability in force of section 40(3) to include such acts as the Criminal Code and the Controlled Drug and Substances Act. It does this by creating a new definition of enforcement statute, which means an act of Parliament, the law of a province or the law of an Indigenous jurisdiction. As senators well know, the CSIS Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act are both acts of Parliament, as are the Criminal Code and the Controlled Drugs and Substances Act. The new definition would cover all of these acts and, as a result, allow for searches and seizures to apply to items in the course of post by law enforcement. Of course, this can’t be done on a whim. Peace officers would have to follow usual warrant procedures and submit an application before such a search and seizure can take place, as they would now when searching or seizing parcels being sent through a private courier service.

Senator Dalphond called this lack of law enforcement ability to seize, retain or detain contraband in the course of post a “loophole” in the law. I would certainly agree with our colleague, but perhaps I would take it even further: This is a legal chasm. This gap in the law is actively contributing to the erosion of safety and to the deaths of Canadians.

The principle of this bill is solid and, I hope, worthy of the argument. It is in this vein that I wholeheartedly agree with Bill S-256 and would recommend that it be sent to committee as soon as possible for a thorough — but perhaps expedited — study. Every missed Canada Post letter or parcel containing fentanyl or its analogues is a missed opportunity to save lives. The longer Parliament lingers on such a bill, the more lives are put in jeopardy by the menace of fentanyl.

Thank you, meegwetch.

(On motion of Senator Martin, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Housakos, seconded by the Honourable Senator Wells:

That the Senate call on the Government of Canada to:

(a)denounce the illegitimacy of the Cuban regime and recognize the Cuban opposition and civil society as valid interlocutors; and

(b)call on the Cuban regime to ensure the right of the Cuban people to protest peacefully without fear of reprisal and repudiation.

Hon. Gwen Boniface: Thank you, Senator Wells. I think you raised important questions, particularly around timing. I share some similar concerns in terms of this bill. Also, you didn’t mention — but I think you are aware — that it was denied referral to the Supreme Court. What it leaves for customs officers is inconsistency across the country. From my perspective, it’s so important to have a pan-Canadian perspective — one that we can make well known to our U.S. counterparts and others.

While we are frustrated, perhaps, with the speed with which the bill was put before the Senate, for the sake of those officers trying to do their work, would you agree with me that we should do a thorough review but not slow it down intentionally because of our displeasure with the government?

Senator Boniface: Would you agree with me that it is appropriate for the committee to take a close look at this issue, as I indicated in my speech, particularly around this issue, and how it’s specific to issues that balance public safety and particularly the unique role of customs in our society — protecting Canada?

Hon. Gwen Boniface: Thank you very much. I raised in my speech similar considerations that needed to be had around the threshold, but I do want to make sure that the Court of Appeal’s paragraph 75 was clear. I want to ask if you would agree that this is in fact what paragraph 75 of the Canfield ruling said that in their view:

 . . . the threshold for the search of electronic devices may be something less than the reasonable grounds to suspect required for a strip search under the Customs Act. . . .

and that:

Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases. . . .

Is it not clear to you in Canfield that they were giving the range for Parliament to make a decision around that? Am I correct?