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May 14, 2001 Issue Full Text
Return to sender

The Grits reject an order from the privacy commissioner to quit opening mail without warrants

by Colby Cosh

LAST month, Immigration Minister Elinor Caplan appeared before a Commons committee to discuss a new proposal for electronic passport scanning at Canada's borders. Canadian Alliance leader Stockwell Day recognized the need for some kind of scanning system, suggesting that it could help catch more foreign criminals entering Canada on forged passports. But Ms. Caplan raised her voice to speak up for the bedrock principles of Canadian democracy. "Any new technology has to be assessed on the basis of 'does this interfere with our civil liberties,'" she pointed out to the presumably chastened Opposition Leader. "Most Canadians love the fact that we are free. Nobody monitors our movements. Nobody checks our whereabouts in a way which makes us feel Big Brother is watching us."

They do, however, rummage through our mail sometimes. On March 19, as readers of this magazine are already aware ("More power for state snoopers," April 30), federal Privacy Commissioner George Radwanski released the results of his investigation into Canada Customs and Revenue's habit of opening inbound envelopes from foreign countries, photocopying the contents and sending the material to any federal ministry that might be interested in it. Mr. Radwanski's report acknowledged that Customs was acting within the law, which allows the agency to open envelopes that weigh more than 30 grams. But he described the activity as "by its nature invasive of privacy and highly disturbing," requesting that Customs obtain a search warrant before opening any envelope over 30 grams unless it clearly contained a solid object.

On April 13, Ms. Caplan's response to the recommendation became public. In short, her answer was that when it comes to envelopes, Mr. Radwanski should kindly get stuffed. "As much as the recommendation appeared to be a reasonable solution to your concerns, we find we cannot implement the search warrant requirement without hampering our success, and the success of our partner agencies,'' she wrote.

Asked to elucidate on Ms. Caplan's statement, ministerial spokesman Derik Hodgson explains that Immigration is fighting a tough battle against a cross-border traffic of forged documents and pilfered forms; under the circumstances, getting permission from a judge to open private correspondence would be inefficient. "Since 1995, we've seized 1,200 items in B.C., 500 in Quebec and 2,000 in Ontario," he explains. "The kinds of things we're looking for can be anything from blank letterheads to forged passports, and a lot of it simply doesn't involve a 'solid object.' Blank birth certificates are not solid. Blank academic credentials aren't solid. Ready-to-laminate identity cards aren't solid."

Mr. Hodgson says there is no meaningful difference between having your mail opened by Customs and having to stop for questioning at an international border. "We aren't opening anything ourselves," he says. "And Customs opens no envelope without having probable cause to do so." When asked to elaborate on the "probable cause" criterion, he refers the question to Customs--whose spokesman, Michel Proulx, says that "it's a difficult one for us to answer.

"As far as techniques for determining what packages and envelopes we open, that's not something we can just go around and divulge," says Mr. Proulx. "As soon as we start putting that in print, they'll figure out a way around it. I can give you the obvious example of a parcel containing an illegal drug or foodstuff that was picked out by a detector dog. But beyond that, I can't elaborate." Mr. Proulx does confirm that seized mail can be forwarded to any federal agency. (In fact, at the combined Customs and Revenue secretariat, transferring confidential financial information to the taxman can be done entirely in-house.)

Mr. Radwanski's rather acid response to the Immigration Minister's letter appeared on April 24. Certainly, obtaining a warrant to open an envelope is time-consuming, said the commissioner: "Due process is always more cumbersome than rough justice." Expressing veiled outrage that his concerns had been given mere lip service, he said that "expediency cannot be the justification for brushing aside fundamental rights such as privacy...You are perhaps familiar with the old proverb that says, 'When a man does not want to do something, one reason is as good as another.' The findings of your departmental review give me cause for concern that it was carried out in that spirit."

Mr. Radwanski admits in the letter that he has no power to compel Ms. Caplan to change policy, but promises to "revisit" the issue if nothing is changed. Meanwhile, Senate bill S-24, which will amend the Customs Act to allow the agency to open, examine and distribute the contents of outgoing international mail, awaits second reading in the upper chamber.

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