The Supreme Court of Newfoundland and Labrador has ruled that the law that allowed Canada Post to search a parcel containing cocaine violates the charter right to privacy — but the evidence found in the parcel can still be used in the trial of the man who received it.
The decision by Justice Daniel Boone — delivered 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 if the contents are dangerous, illegal or violate regulations.
In his decision, Boone said the current legislation, part of the Canada Post Corporation Act, violates the part of the Canadian Charter of Rights and Freedoms that guarantees “the right to be secure against unreasonable search or seizure.”
Boone argued those who use Canada Post should have a reasonable expectation of privacy when they send parcels, and the current law is too broad.
“The breadth of search power in the statute is entirely inconsistent with the reasonable expectation that government will not intrude on privacy in the mail,” Boone wrote.
Crown lawyers Trevor Bridger and Paul Adams argued that Canada Post should be able to search parcels that could 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 ought to be required before a search can proceed,” Boone said, “It is not a sufficient safeguard of postal users’ constitutional rights to leave the decision whether to search a parcel entirely to the unfettered discretion of postal officials.”
Decision comes out of cocaine trafficking case
The decision stems from the case of a Newfoundland and Labrador man charged with trafficking in 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 picked it up, discovered what appeared to be cocaine, and alerted law enforcement.
Police got a warrant for a controlled delivery and put a tracking device on the package. Officers put an alarm on the package that alerted them when the package was opened. After the package was opened, police arrested the man.
Jonathan Noonan, the lawyer for the man, argued the Canada Post inspector’s search of the package violated his constitutional right against unreasonable search or seizure.
Though Boone agreed, he declined 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 followup April decision, also released Thursday, Boone suspended his January ruling for one year to give Canada Post and the federal government time to draft those new standards.
‘A hollow victory’
Boone also ruled the man charged with trafficking cocaine — scheduled at the time to go to trial in June — would not be exempted from the suspension and that the evidence seized could be used in his trial.
“Unfortunately for him, this is a hollow victory because the declaration of unconstitutionality is an insufficient remedy,” Boone wrote.
And while Boone said the section of the Canada Post Act allowing searches of packages was unconstitutional, the man did not sufficiently demonstrate that his privacy had been violated in this specific case.
According to the decision, the package was addressed to a company — not the man himself — and the man hadn’t demonstrated a connection between himself 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 statute has more of an impact on that public at large than on the specific case.
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