The Canada Border Services Agency (“CBSA”) has statutory authority in subsection 99(1) of the Customs Act to open goods that are being imported – this includes letters and packages. Currently, most packages can be opened, including legal documents sent by a law firm to another law firm or a client. A few years ago I was surprised to see that the CBSA opened a package I received from Professor Henry King sending me a signed copy of his book.
Currently, many letters cannot be opened. Subsections 99(2) and 99(3) of the Customs Act currently restrict the CBSA’s power/authority to open mail – they cannot open mail weighing less than 30 grams (unless the person consents to the letter being opened). However, this is about to change. Subsections 99(2) and 99(3) of the Customs Act will be repealed if Bill C-37 “An Act to amend the Controlled Drugs and Substances Act and to make related amendments to other Acts” is passed (see Section 52 of Bill C-37). Bill C-37 has received Second Reading in the House of Commons in Canada and is being reviewed by the Standing Committee on Health.
Bill C-37 addresses the serious fentanyl crisis. CBSA officers use sniffer dogs and x-ray technology at international mail facilities in Canada. The change contained in Bill C-37 is said to be needed because fentanyl is being sent by mail and a deadly dosage can be less than the 30 grams restriction. As a result, the CBSA is not able to stop certain mail with fentanyl contained therein. While no one would have difficulty with permitting the CBSA to stop deadly drugs crossing the border, the proposed change allows the CBSA to open any mail. Lawyers letters can be opened (e.g, the CBSA can receive a look out from the Canada Revenue Agency or RCMP for letters from law firms in tax havens). Letters shipping receipts can be opened (there have been many cases of Canadians taking a cruise and buying jewelry outside Canada and shipping the receipts home to avoid payment of duties). Letters with currency or cheques or other financial instruments may be opened. All of these letters can be opened without a warrant or a reasonable suspicion.
As previously indicated, section 52 of Bill C-37 repeals subsections 99(2) and 99(3) of the Customs Act, which provide:
“99(2) An officer may not open or cause to be opened any mail that is being imported or exported and that weighs thirty grams or less unless the person to whom it is addressed consents or the person who sent it has completed and attached to the mail a label in accordance with article RE 601 of the Letter Post Regulations of the Universal Postal Convention.
99(3) An officer may cause imported mail, or mail that is being exported, that weighs thirty grams or less to be opened in his or her presence by the person to whom it is addressed, the person who sent it or a person authorized by either of those persons.”
By removing both provisions in their entirety and without adding any reasonable suspicion of drug test or privacy threshold criteria, the CBSA will be able to open any mail. This raises various privacy concerns, but also concerns about solicitor-client privilege. General Counsel should be aware that letters, when sent by mail, can be opened by the CBSA. There are no checks and balances to ensure letters are not photocopied or scanned or duplicated in some manner. The letter will arrive with some indication that it has been opened, but there is no reference number so that a person can find out if the CBSA duplicated the contents of the envelope.
If you are concerned about the CBSA being able to read your mail, this is the time to speak up. Section 52 of Bill C-37 is hidden and the ramifications are not clear unless you dig deeper. This Bill may pass with good intentions and long term effects unrelated to finding fentanyl and other serious drugs.
For more information about the powers of the CBSA, please contact Cyndee Todgham Cherniak at 416-307-4168 or at firstname.lastname@example.org. See also the following articles about solicitor-client privilege at the border: