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The Privacy Commissioner of Canada, George Radwanski, today issued the following statement:

Ottawa, March 19, 2001 - On March 2, an article in The Globe and Mail reported that Customs officials of the Canadian Customs and Revenue Agency (CCRA) are opening mail coming into Canada and passing along information pertaining to immigration cases to Citizenship and Immigration Canada (CIC).

I immediately initiated an investigation into these allegations, including sending senior investigators from my Office to the Canada Post mail processing plants in Vancouver and Toronto to determine firsthand what is taking place. This investigation is now completed.

I have found no evidence of illegality or impropriety. The activities in question are being carried out lawfully by officials of the CCRA on behalf of Citizenship and Immigration Canada under the authority of Acts of Parliament, in good faith, and for the legitimate public policy purpose of seeking to intercept fraudulent documents. Impeding the flow of such documents is important both to maintain the integrity of Canada's immigration processes and to meet international obligations.

Nevertheless, the opening and examination of mailed correspondence without a search warrant or consent is by its nature invasive of privacy and highly disturbing. In a free and democratic society like Canada, the opening of mail by government carries extremely strong symbolic connotations, and must be carried out with the greatest possible restraint and sensitivity.

I therefore met on Friday, March 16, with Citizenship and Immigration Minister Elinor Caplan and recommended to her a modified approach that her Department, as the client in this matter, could request the Customs officials to follow.

I am pleased that Ms. Caplan has agreed to undertake, on an urgent basis, a review of my recommendations.

In view of the interest and concerns aroused by the initial allegations, I have judged it appropriate to release my findings at this earliest possible time, rather than await a final resolution. Those findings are as follows:

When international mail arrives at a Canada Post Corporation (CPC) processing plant, CPC employees sort letter mail - defined as weighing less than 30 grams - from packages. Anything over 30 grams in weight, even if it is an envelope, is considered a package. The weight is estimated by these employees; mail is not actually weighed.

If Customs officials wish to open a piece of mail weighing less than 30 grams, they send a letter to the addressee requesting consent. If consent is not received, the piece of mail is either returned to sender or destroyed, or a search warrant is obtained.

Mail over 30 grams - which may be either packages, or correspondence in envelopes - is sent for inspection by Customs officials at the postal processing plant.

Envelopes over 30 grams are opened if Customs officials detect a solid object - which might be a passport, a laminated card or a packet of drugs, for instance - or if they originate from a place identified by Citizenship and Immigration Canada as a likely source of fraudulent documents.

If an envelope is cleared by Customs after opening, it is resealed with tape indicating "Examined by Customs" and released back to Canada Post for mailing.

If the opening reveals documents which might be false, the envelope is detained for further inspection and/or seizure by a CIC officer. The detention is logged for tracking purposes.

When documents are seized by CIC, they are taken to the CIC office and details of the seizure are recorded on a computer tracking system.

When fraudulent documents are discovered, they are referred to the RCMP for enforcement action. When the documents are found to be authentic, CIC notifies the addressee that the mail was detained and inspected.

These activities of detention, opening, inspection and possible seizure are carried out under provisions of the Canada Post Corporation Act, the Customs Act and the Immigration Act.

Section 42(1)of the Canada Post Corporation Act states:

"All mail arriving in Canada from a place outside Canada that contains or is suspected to contain anything the importation of which is prohibited, controlled or regulated under the Customs Act or any other Act of Parliament shall be submitted to a customs officer."

Section 99(1)(b) of the Customs Act states:

"An officer may . . . at any time up to release, examine any mail that has been imported and, subject to this section, open or cause to be opened any such mail that he suspects on reasonable grounds contains any goods referred to in the Customs Tariff, or any goods the importation of which is prohibited, controlled or regulated under any other Act of Parliament..."

This section also provides an "Exception for mail":

"99(2) An officer may not open or cause to be opened any imported mail that weighs thirty grams or less unless the person to whom it is addressed consents..."

Section 101 of the Customs Act states:

"Goods that have been imported or are about to be exported may be detained by an officer until he is satisfied that the goods have been dealt with in accordance with this Act, and any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods, and any regulations made thereunder."

The definition of "goods" in the Customs Act includes "any document in any form."

Section 94(1)(n) of the Immigration Act states:

"Every person is guilty of an offence who . . . imports or exports, by mail or otherwise, in order to contravene this Act or the regulations, a visa, passport or other travel document, any document or thing that may serve to establish the identity of a person or any document or thing purporting to be any of those documents or things."

And Section 110 (2) of the Immigration Act states that an immigration officer may:

"(c) for the purposes of this Act and the regulations, seize and hold any thing or document if the immigration officer believes on reasonable grounds that it has been fraudulently or improperly obtained or used or that that action is necessary to prevent its fraudulent or improper use."

The combined effect of these various statutory provisions appears to provide sufficient legal authority for the detention, opening and seizure of mail in the circumstances identified by my Office's investigation.

But while what is taking place is legal and done in good faith, I nevertheless find aspects of it to be seriously wrong from the point of view of privacy.

Precisely because the privacy of communications is recognized by our society as a fundamentally important right, the laws of Canada impose specific safeguards with regard to the interception of communications by law enforcement authorities.

Telephone communications cannot be intercepted by wiretapping except with the permission of a court order. And letters (under 30 grams) cannot be opened except with consent or under a search warrant.

The opening of parcels under the customs power is clearly a different matter, because the shipment of goods, as such, is not a communication in the same sense as a telephone conversation or the sending of a letter.

In the case of letter mail, the distinction between under 30 grams and over 30 grams is, I believe, artificial and inappropriate. Sending a letter by any form of "priority post" requires placing it in a large and comparatively heavy outer envelope that by itself can often put the mailing in the "over 30 grams" category. Likewise, a lengthy letter consisting of many pages can easily weigh more than 30 grams.

The clear intention of Section 99(2) of the Customs Act is to distinguish between parcels and correspondence, as evidenced by its title, "Exception for mail." But a letter should not be considered any the less "mail" and therefore less deserving of privacy protection, simply by virtue of being sent in a larger and heavier outer envelope to ensure its timely and safe arrival, nor by virtue of being lengthy and hence heavier.

Accordingly, I have recommended to Citizenship and Immigration Minister Elinor Caplan a modified approach that would be more respectful of privacy rights while still meeting the policy objectives of her Department:

Where Customs officials detect in an envelope of more than 30 grams a solid object that appears to be something other than correspondence - whether it potentially be a passport, a laminated card or any other thing - opening it clearly falls within the normal activities of the customs process.

But where no such solid object is detected and an envelope is detained for CIC only on suspicion that it might contain fraudulent documents based on place of origin or other intelligence considerations, I have recommended to the Minister that her department request Customs to provide such envelopes to CIC officers unopened.

If it has reasonable grounds to believe that the envelope may contain fraudulent documentation, CIC would then have to obtain a warrant to open it. Since Customs has informed my Office that the great majority of envelopes detained for CIC do contain a solid object, the number of instances requiring a warrant would not appear likely to impose an impossible administrative burden on CIC's resources.

This approach would, in my view, strike an appropriate balance between the legitimate need to protect Canada against an inflow of fraudulent immigration and identification documents, and the importance of protecting privacy rights against the opening of correspondence without specific authorization.

I am pleased that the Minister has recognized the seriousness of this privacy issue and has undertaken to carry out an urgent review.

 

 

George Radwanski
Privacy Commissioner of Canada

For more information, contact Lisa Azzuolo :

Media Relations
Office of the Privacy Commissioner of Canada
(613) 943-5549

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