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Privacy Commissioner urges Citizenship and Immigration Minister to respect privacy rights
Ottawa, April 24, 2001 - The Privacy Commissioner of Canada, George Radwanski, sent the following letter today to the Hon. Elinor Caplan, Minister of Citizenship and Immigration:
Dear Minister Caplan:
Thank you for your letter responding to my recommendations for a more privacy-sensitive approach to the opening and inspection of mail from abroad under the aegis of your Department.
I appreciate the sense of urgency with which you caused your Department to undertake and complete its review of these recommendations.
I very much regret, however, that you reached the definitive, negative conclusions formally communicated in your letter - and made them public through the news media on April 13 - without having first given me an opportunity to discuss the results of this review with you.
All the considerations raised in your letter are ones of which I was aware, and which I carefully weighed, before making my recommendations to you. I regard these considerations as hurdles that can be overcome with effort and good will, rather than as insurmountable obstacles.
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.
Your letter reports an extensive set of justifications for refusing to depart from the status quo. But analysis of those justifications leaves a strong sense that if the review had proceeded from the premise that a way must be found to better respect the privacy rights of Canadians, the conclusions might have been entirely different.
Let me briefly summarize the recommendations I made:
Customs inspectors acting on behalf of your Department currently open any mail weighing more than 30 grams that they regard as suspicious from an immigration standpoint, and provide the contents to your officials. I brought to your attention my finding that this practice is insufficiently respectful of the privacy rights of Canadians.
This practice is lawful and done in good faith. But it is based on an artificial and arbitrary distinction between correspondence under 30 grams, which cannot be opened without consent or a warrant, and heavier mail that is none the less correspondence. All correspondence, as distinct from packages, is communication that should be treated with the greatest possible respect for privacy.
I therefore recommended that where Customs officials detect in an envelope of more than 30 grams a solid object that appears to be something other than correspondence, opening it would continue to fall within the normal activities of the customs process.
But where no such solid object is detected and an envelope is detained for your Department only on suspicion that it might contain fraudulent documents, I recommended that your Department request Customs to provide such envelopes to your officers unopened. If CIC has reasonable grounds to believe that the envelope may contain fraudulent documents, it could then obtain a warrant to open it. This would, I believe, strike an appropriate balance between the needs and responsibilities of your Department, and the privacy rights of Canadians.
In rejecting these recommendations, your letter made three key points I would like to address at this time.
First, you state that your officials were "unable to arrive at a practical operational definition of what would constitute a 'no solid object' package or envelope."
You go on to explain: "For example, the thickness of sheets of paper, perhaps discernible by touch or by instruments such as a micrometer, that would be judged as a 'solid object' is not at all clear. In addition, the thickness of most courier company packaging materials has been found to obscure the presence of solid objects such as laminated identity cards and photographs."
With all respect, this strikes me as a matter of simple common sense. Your officials appear to have tried to define a negative, the absence of a solid object, which of course is no easy task. But the everyday reality that is involved is far more straightforward.
In their cursory examination of the great volume of mail that passes through the postal facility, Customs officials either detect the apparent presence of something other than correspondence paper in an envelope or they do not. If they do, then the customs function - quite independent of the needs of CIC - clearly entitles them to open it; it might as easily be a packet of drugs, after all, as a laminated card.
But if the thickness of the courier packaging obscures the possible presence of an object other than correspondence, then - with or without my recommended approach - it is not the detection of an object that leads to the opening of that particular envelope. Customs officials must have some other reasonable cause to believe that it contains something prohibited. That same reasonable cause would be the basis, under my recommendation, for obtaining a warrant to open the envelope.
It seems to me that the difficulty you describe would arise only if officials first want to open an envelope, and only then are seeking justifications for doing so. That's not the way the system is supposed to work.
Your second major point is that the volume of warrants required under my recommended approach, and hence the demand on resources, would be unmanageable.
There is no doubt that additional resources, and additional work, would be required. That is also the case when authorities must obtain warrants before intercepting telephone conversations or searching premises. Due process is always more cumbersome than rough justice. But expediency cannot be the justification for brushing aside fundamental rights such as privacy.
The Customs Act already recognizes that envelopes under 30 grams cannot be opened without consent or a warrant, whatever the additional cost or inconvenience. That's precisely because the privacy of written communications - as of telephonic ones - must be safeguarded. In my view, it is therefore not acceptable to argue that lengthier correspondence, or correspondence sent in heavier courier envelopes to ensure its safe arrival, should be denied the same privacy protection for reasons of cost, convenience, or manageability.
Your third key point is that, to comply with my recommendation, the Immigration Act would have to be amended to provide statutory authority for your Department to open mail. You say you would not wish to do so, because "in our view, it is preferable that a relatively intrusive state activity such as opening mail be limited to as few government bodies as possible."
The legal analysis I have received is that your immigration officers in fact appear to already have all the statutory authority they need in this regard, under Sections 110 and 94 of the Immigration Act and Section 487(1) of the Criminal Code. It may well therefore be possible to implement my recommendation without any change to existing legislation. Immigration officers are peace officers, and they are empowered to do whatever is necessary to enforce the Act, presumably including obtaining the appropriate warrants.
But in any event, even if a legislative amendment were required, I fail to understand your reasoning. You want your Department to be able to examine and even seize the contents of mailed envelopes; you just don't want the power to actually open the envelopes, preferring to have this done on your behalf by Customs agents.
I must confess that I do not understand how privacy rights can be better protected by having the mail in question continue to be opened at will by Customs on your Department's behalf without any need for judicial permission or oversight, rather than by having the envelope-opening activity extended to your Department - but only in instances where a court has issued a warrant.
I certainly agree that the power to intrude on privacy should not be extended to any department that does not have a demonstrably compelling need to do so. But where such a need exists, as appears to be the case for your Department in this particular instance, it strikes me as highly preferable that the power - and the accompanying accountability for its appropriate and restrained use - be clearly situated in the department in question.
In rejecting my recommendations, you have nevertheless stated that you will "issue guidelines that will help CIC officers perform their duty with minimal intrusion on the privacy of individuals."
While I appreciate the good intentions behind this undertaking, I cannot envisage how it is to be achieved. Requesting the interception and opening of private mail without judicial authorization or supervision, and then examining that mail, is by its very nature a maximal intrusion on the privacy of individuals. I find myself unable to imagine the guidelines that could render it "minimal."
Likewise, you state that "in redrafting our instructions to officers in the field.we wish to incorporate in those instructions the most up-to-date principles and standards of the Office of the Privacy Commissioner."
Again, I appreciate this. But the difficulty is that the most up-to-date principles and standards of the Office of the Privacy Commissioner, and indeed of the Privacy Commissioner himself, are that mailed correspondence that does not obviously contain a detectable object should not be opened except with the consent of the addressee or under the authority of a specific warrant.
It is those principles and standards that I believe we should discuss further, at the earliest opportunity.
Since the activities in question are lawful even if profoundly disturbing, my powers in this situation are limited to sharing with you - and with the public - the very serious privacy concerns that I continue to have. I would ask you to regard this letter, which as a courtesy to you I have deferred until your return from travel abroad, as a restatement of those concerns with the greatest possible vigour.
Beyond that, there is little more I can do. The matter now rests with you, with the Government, and with public opinion.
If it is not resolved, I will revisit it on appropriate occasions, because this is a privacy issue far too fundamentally important to abandon. It is certain to keep resurfacing, in any event, because the consequences are so serious and the ramifications so powerful.
In a free and democratic society like Canada, the opening of mail by government carries extraordinarily strong symbolic and psychological implications. Canadians are entitled to feel confident that their mail will not be arbitrarily opened and examined. As a result of the practices that have come to light, and now of your endorsement of the continuation of those practices, this confidence is being seriously eroded.
If Canadians remain deprived of the right to feel secure that their private written communications are in fact private, this will mark a grave, needless and unjustifiable deterioration of privacy rights in our country.
I very much hope that, on further reflection, you will judge it appropriate to reconsider your position and bring this matter to the sort of positive resolution that I believe Canadians are entitled to expect. Safeguarding for Canadians the basic individual right and cherished social value of privacy of communications is fundamentally vital.
Privacy Commissioner of Canada
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