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April 16, 2001 Issue Full Text
Who's reading your mail?

The answer could be 'a lot of people from many branches of government, inside and outside Canada'

by Colby Cosh

RICHARD Kurland did not think too much of it at first when the government started opening his mail. Every morning, the immigration lawyer would convene with his colleagues at a table and ceremonially go through the short notes Canada Customs left to apologize for their intrusions. Sometimes there would be excuses: "Envelope damaged by sorting machine," and the like. More often, the letters would simply bear the brazen stamp of Canada Customs and Revenue. As someone who had clashed with the government in the past, Mr. Kurland initially thought he was perhaps being singled out for special treatment.

He thought wrong. As it turns out, anyone who sends a letter to Canada from abroad is liable to the same probing. Thanks to changes made to the Customs Act by the Mulroney government in its last days, few envelopes are entirely safe from Customs tampering. But don't worry, says the agency: it's for your own good.

Mr. Kurland's overseas mail started to be opened in 1993, not long after the Conservative regime altered the Customs Act so that the agency's right to examine "goods" included letters weighing over 30 grams. If a letter is under that limit, the law says that Customs needs the permission of the addressee; but Customs agents are not required to actually weigh the envelope--they can "estimate" its weight--and anything sent in a priority post or courier envelope is likely to crack the 30-gram limit.

Mr. Kurland, then a member of the Quebec Bar, thought the frequency with which his mail was opened reflected his status as an antagonist of the Conservative government. He had exposed some due-process-denying shenanigans at the Immigration and Refugee Board, and had provided NDP MP Svend Robinson with a refugee claim to introduce on the floor of the Commons during a visit from former Mexican president Ernesto Zedillo. But when he spoke to other immigration lawyers, he found that similar volumes of their own correspondence were being tampered with.

After years of Freedom of Information requests and digging, he was able to come up with evidence of Customs' freewheeling attitude toward envelope-sniffing. "Very early on, I simply phoned up a Customs agent and he told me 'Yeah, we open letters, photocopy them and send the copies to Immigration,'" Mr. Kurland recalls. "But it took years to get documentary proof of what they acknowledged quite freely in conversation."

Canada Customs claims the regulations that allow for all this are necessary to limit the flow of illegal documents into Canada from abroad. After Mr. Kurland's complaints made national headlines two months ago, federal Privacy Commissioner George Radwanski launched a hasty investigation into the agency's procedures, and found that while the government snoops were remaining within the letter of the law, the 30-gram distinction was "artificial and inappropriate."

"While what is taking place is legal and done in good faith," he wrote, "I nevertheless find aspects of it to be seriously wrong from the point of view of privacy." He has recommended that Customs seek a warrant before opening any envelope--whatever its weight--that does not contain some solid object that could be a laminated identity card or a passport.

Mr. Radwanski did not comment on Mr. Kurland's documentary evidence that Customs is working with the Canadian Immigration Centre to build a database of unsealed private correspondence. The 1992 legislation, the lawyer believes, was part of a push for a "superministry" of security that would include the RCMP, the Canadian Security Intelligence Service, Customs, Revenue Canada, Immigration and other departments. That vision never came to fruition under the Liberals, but it is clear that at least some of these units are sharing the information gained from Customs snoops.

One passage in an Immigration intelligence manual obtained by Mr. Kurland under the Freedom of Information Act says specifically that "the mail seizure database will result in the creation of a national database relating to documentation sent by the mail or by courier services internationally." Would such a database be restricted to viewing by Immigration officials? Mr. Kurland is discovering that it is not only immigration lawyers who seem to have their mail opened often.

"I'm hearing from blue-chip accountant types in Toronto now," he says, "the kind of guys who do estate planning. Private individuals are telling me they're having their tax bills from the U.S. opened. With Revenue Canada's new reporting requirements on global assets, we can expect people to start facing uncomfortable questions. 'What about this condo in Tampa? How'd you pay for it?'"

It does not seem to matter whether you are a citizen or not, nor whether what they discover is relevant only to some other country. The federal Immigration Department has signed reciprocal agreements to share data with the U.S. Department of Justice, the Internal Revenue Service, the Immigration and Naturalization Bureau and analogous UK agencies. "I haven't put my mind around the dimensions of the intrusion," says Mr. Kurland. "This is the worst systematic violation of civil liberties at the national level since the War Measures Act."

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