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Privacy Commissioner writes Minister Cauchon regarding resolution of the issue of opening of mail coming into Canada
Ottawa, August 16, 2001 - The Privacy Commissioner of Canada, Mr. George Radwanski, today sent the following letter to the Hon. Martin Cauchon, Minister of National Revenue, regarding the opening by Customs officials of letters weighing more than 30 grams:
Dear Minister Cauchon:
In March of this year, I investigated allegations that Customs officials of the Canadian Customs and Revenue Agency (CCRA), acting on behalf of Citizenship and Immigration Canada, were improperly opening mail coming into Canada.
I found no evidence of illegality or impropriety. The activities in question are carried out lawfully by CCRA officials on behalf of Citizenship and Immigration Canada under the authority of Acts of Parliament, in good faith, and for the legitimate policy purpose of seeking to intercept fraudulent documents.
Nevertheless, I was very much concerned that these mail opening activities were not fully consistent with the spirit of the relevant legislation, which clearly seeks to distinguish between mailed correspondence versus parcels for purposes of opening for Customs inspection.
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.
That is why the Customs Act does in fact provide an "Exception for mail." Section 99(2) states: "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."
While the letter of the law was being observed in this regard, my concern was that the distinction between under 30 grams and over 30 grams is artificial and inappropriate as a means of distinguishing between correspondence and parcels. I was particularly concerned that 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 item in the "over 30 grams" category.
As I stated in the report of my findings, "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."
At the time of my investigation, officials of your Department, the CCRA, took the position that since they were acting in full compliance with the law, any change in approach would have to originate with Citizenship and Immigration Canada on whose behalf these activities were being carried out.
I accordingly 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. Regrettably, Minister Caplan concluded in due course that she could not be of assistance in this regard.
Since the privacy issues raised by this situation were in my view too important to leave unresolved, I met with you in June, outlined my concerns, and requested your assistance in seeking a solution through your Department. You undertook to have officials of your Department carry out a further review of this matter.
I am very pleased indeed that your intervention has now borne fruit.
Mr. Denis Lefebvre, the Assistant Commissioner, Customs Branch of the CCRA, has informed my office that the Agency will review and update its administrative practices and guidelines to reflect the use of larger envelopes such as express packs and bubble packs in the international mail stream. Specifically, Mr. Lefebvre has undertaken that the Agency will ensure that it is clearly understood that the weight of such external packaging is to be excluded for the purpose of arriving at the 30-gram limit.
This should go a long way toward addressing the concerns I have expressed, by much more closely approaching the legislatively intended distinction between letter mail and parcels. An anomaly that was permitting the opening of what would otherwise clearly be protected mail is being removed, and I very much welcome and appreciate this.
Since correspondence that exceeds the 30-gram limit simply by virtue of being lengthy and hence heavier will still be subject to opening without consent or a warrant, I am further heartened by Mr. Lefebvre's undertaking that the CCRA will "review all our policies, directives and training materials to ensure that all respects of our postal mandate are carried out with the greatest possible restraint and sensitivity to personal privacy."
I and my office will maintain an active interest to ensure that this outcome is indeed fully achieved in practice.
My understanding is that these undertakings will also carry through to the possible inspection of outgoing mail from Canada as contemplated in amendments to the Customs Act that are currently before Parliament.
I regard these modifications in the CCRA's approach as a significant gain for the privacy rights of all Canadians.
In conclusion, I wish to thank you for your intervention, and express my appreciation to you and to the officials of the Agency for the positive result it has produced. I believe that this exemplifies the constructive spirit of cooperation through which great progress can be made in meeting valid policy objectives while respecting the privacy rights of Canadians.
Privacy Commissioner of Canada
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For more information, contact:
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
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