6. Supplementary Information
C-47, An Act to implement certain provisions of the budget tabled in Parliament on March 28, 2023
Part 4 - Division 30 - Amendment to address the Supreme Court of Newfoundland and Labrador Decision in R. v. Gorman (Canada Post Corporation Act)
Table of Contents
Part 4 -Various Measures
Overview
The amendment will introduce a “reasonable grounds to suspect” standard to s.41(1) of the Canada Post Corporation Act to address the Supreme Court of Newfoundland and Labrador decision in R. v. Gorman, that found s.41(1) violated section 8 of the Canadian Charter of Rights and Freedoms.
Key Messages
- The Government of Canada takes the health, safety and privacy of Canadians very seriously.
- While Canada Post is an independent Crown Corporation that operates at arm’s length from the Government, we recognize the importance of Canada Post’s legal authority to inspect parcels to keep illicit drugs and dangerous goods out of the mail system and to protect the health and safety of its employees and Canadians.
- The Government of Canada recognizes the importance of Canada Post’s Indigenous and Northern Reconciliation Strategy through which it is working with the leadership of Indigenous communities to reduce prohibited items, such as alcohol and illicit drugs, entering their communities through the mail.
- Limiting Canada Post’s authority to inspect parcels to situations where there are reasonable grounds will both help ensure the continued safety of the mail and protect the privacy of Canadians.
- Canada Post indicates that its team of postal inspectors will continue to work closely with police on the seizure of illegal items and to support their investigative work.
Questions & Answers
Q. What happened in the Gorman case?
A. In R. v. Gorman, Mr. Gorman was charged with trafficking in cocaine after a search of a mailed parcel was conducted by postal inspectors. Mr. Gorman argued that section 41(1) of the Canada Post Corporation Act, which provides the authority to search, violated section 8 of the Canadian Charter of Rights and Freedoms.
On January 11, 2022, the Supreme Court of Newfoundland and Labrador held that section 41(1) violated section 8 of the Charter, and found that unfettered authority to search parcels is not proportionate in light of one’s reasonable expectation of privacy under the Charter. The Court did not decide on a remedy at the time to provide Mr. Gorman and the Crown the opportunity to make further arguments.
On April 12, 2022, the Court invalidated section 41(1) of the Act in Newfoundland and Labrador. However, it suspended the issuance of its declaration for a year, or until April 12, 2023, to allow Parliament the time to pass legislation to remedy the issue.
Q. What will happen if legislative amendments are not passed by the deadline of April 12, 2023?
A. If the legislative amendments are not passed by April 12, 2023, all possible steps will be taken to request an extension from the Court or an appeal may be sought in an attempt to stay the Court’s decision to provide more time for the Government to pass the legislative amendments.
Canada Post has not been able to identify any mitigation strategies that would reduce the impact of the Gorman decision if the amendment is not in force by the Court’s deadline.
Q. What is the effect of invalidating section 41(1)?
A. Invalidating section 41(1) would mean that in the province of Newfoundland and Labrador, postal inspectors will no longer be able to open packages suspected of containing non-mailable matter such as illicit drugs, dangerous substances, explosives, restricted/prohibited firearms, ammunition, as well as other prohibited matter.
Without this regulatory capability, Canada Post will not be able to properly maintain the safety and security of the postal system and its employees working in Newfoundland and Labrador. This could result in serious negative repercussions linked with the trafficking of illicit substances via the mail.
During the suspension period (i.e., until April 12, 2023), Canada Post can continue to inspect parcels. However, once the Court deadline passes, Canada Post will no longer have the authority to inspect parcels in Newfoundland and Labrador unless new legislation, consistent with the Court’s reasons, is enacted.
Q. How effective are postal inspectors?
A. According to Canada Post, approximately 95 per cent of inspected parcels are found to contain non-mailable matter such as opioids, ecstasy pills, methamphetamine, and other illicit substances, as well as alcohol destined for dry, prohibited, or restricted Northern and Indigenous communities.
3,457 parcels were inspected in 2021 and 64 per cent of those parcels were destined for Indigenous and Northern Communities.
Q. What is Bill S-256 and how is it related to this proposal?
A. Bill S-256 was introduced by Senator Pierre Dalphond on November 22, 2022, and would amend the Canada Post Corporation Act to allow law enforcement to search and seize the mail.
The proposed bill would amend sections 2(1), 40(3) and 48 of the Canada Post Corporation Act. The Senate bill is unlikely to be passed quickly enough to remedy the issue, if it were successful at all.
More importantly, as the proposed bill would not amend section 41(1) of the Canada Post Corporation Act, it does not address the R. v. Gorman decision.
Q. What is Canada Post’s Indigenous and Northern Reconciliation Strategy?
A. Canada Post announced the Indigenous and Northern Reconciliation Strategy on November 17, 2020, to renew its long-standing relationship with First Nations, Métis and Inuit people and Northern communities.
As part of this strategy, Canada Post has committed to working to reduce prohibited items, such as alcohol and illicit drugs, that enter these communities.
Q. How does the proposed amendment affect the operations of postal inspectors?
A. The Court decided to invalidate section 41(1) because no standard exists in the Act and not because of how Canada Post applied section 41(1).
The proposed amendments would have little affect on the operations of postal inspectors because Canada Post’s postal inspectors have historically applied a higher legal standard before inspecting parcels than that required under the Act.
Canada Post has agreed to align their postal inspection policies with the proposed amendments, once the amendment is passed
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