Regulatory policy

Canada Post’s research policy is unconstitutional, NL Supreme Court rules

A Supreme Court judge in Newfoundland and Labrador has ruled that part of the Canada Post Corporation Act violates the Charter of Rights and Freedoms. (Paul Daly/CBC)

The Supreme Court of Newfoundland and Labrador has ruled that the law that allowed Canada Post to search a package containing cocaine violates Charter privacy — but evidence found in the package may still be used in the trial of the man who received it.

Judge Daniel Boone’s decision — released Jan. 11 and released Thursday — gives Canada Post and the federal government one year to change legislation that allows the Crown corporation to “open any mail, other than a letter.” to determine whether the content is dangerous, illegal or in violation of regulations.

In his ruling, Boone said the current legislation, which is part of the Canada Post Corporation Act, violates the part of the Canadian Charter of Rights and Freedoms that guarantees “the right to be protected from search or seizure abusive”.

Boone argued that those who use Canada Post should have a reasonable expectation of privacy when sending packages, and the current law is too broad.

“The scope of the search power in the statute is completely inconsistent with the reasonable expectation that the government will not intrude on privacy in the mail,” Boone wrote.

Crown attorneys Trevor Bridger and Paul Adams argued that Canada Post should be able to search packages that may contain dangerous or illegal material. Boone didn’t disagree with that argument, but said the current rules don’t work.

“Some form of objective standard should be required before a search can take place,” Boone said, “It is not a sufficient guarantee of the constitutional rights of postal users to leave the decision to search a package entirely to the unimpeded discretion of postal agents.”

Ruling in cocaine trafficking case

The decision stems from the case of a Newfoundland and Labrador man charged with trafficking cocaine. The Crown alleges the man picked up a package containing two kilograms of cocaine from a UPS store.

A Canada Post inspector searched the package before the man retrieved it, discovered what appeared to be cocaine and alerted law enforcement.

Police obtained a warrant for controlled delivery and placed a tracking device on the package. Officers placed an alarm on the package which alerted them when the package was opened. After opening the package, the police arrested the man.

A Canada Post inspector alerted authorities after finding what appeared to be cocaine in a package. (Sean Kilpatrick/The Canadian Press)

Jonathan Noonan, the man’s attorney, argued that the Canada Post inspector’s search of the package violated his constitutional right against unreasonable search or seizure.

Although Boone agreed, he refused to set an alternative standard for a constitutional search, instead saying the responsibility lies with Canada Post and the federal government.

“It is for Parliament to choose which standard would be appropriate,” Boone wrote.

In a follow-up decision in April, also released Thursday, Boone suspended his January decision for a year to give Canada Post and the federal government time to draft these new standards.

“A Hollow Victory”

Boone also ruled that the man accused of cocaine trafficking – who was then due to stand trial in June – would not be exempt from the suspension and that the evidence seized could be used in his trial.

“Unfortunately for him, it is a futile victory because the declaration of unconstitutionality is an insufficient remedy,” Boone wrote.

And although Boone said the section of the Canada Post Act authorizing the search of packages was unconstitutional, the man has not sufficiently demonstrated that his privacy was violated in this specific case.

According to the decision, the package was addressed to a company – and not to the man himself – and the man had not demonstrated a link between him and the company.

Boone argued that the outcome of the criminal case is more important than what he called a “minimal intrusion” of Charter rights. He said the unconstitutional law had more impact on that general audience than on the specific case.

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