Mail opening

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The BCCLA sent the following letter to the then Solicitor General, urging the federal government to reconsider its decision to enact legislation allowing the RCMP to open first class mail. The letter was also made public as a general press release.

13 February 1978

The Honourable Jean-Jacques Blais
Solicitor General of Canada
350 Laurier Avenue
Ottawa, Ontario K1A 0P8

Dear Mr. Blais:

The B.C. Civil Liberties Association has grave reservations about the recently introduced Government bill to permit the RCMP to open the mails. We believe that any further erosion of the right to privacy—certainly on the present state of the evidence—is unwise. We believe that the bill’s protections against abuse—mirroring those applying to electronic surveillance—are inadequate and ineffective. We believe that the enactment of such a bill now—before the McDonald Commission has made its report—is in any case premature.

The Post Office Act is a remarkable piece of legislation. Its prohibition against the opening of the mails is absolute. The Government now intends to weaken that prohibition so that the mails enjoy no privilege over most other private communications. Before taking such action, however, the government ought to consider why the Post Office Act was written as it was. Surely its drafters were aware that by weakening its provisions they could strengthen the hand of the RCMP in its fight against crime. Yet they chose not to do so. Why? Were they just being irrational and short-sighted? We believe not.

Recent Canadian experience supports our view that the drafters of the Post Office Act knew what they were doing. Look, for example, at what has happened to private telephone communications. The wiretap provisions of the Criminal Code came into effect in 1974. Last year they were substantially enlarged: the period for wiretaps was made longer; it became easier to use evidence resulting from an illegal wiretap; applications to extend the period before a person subject to a wiretap had to be notified, could be withdrawn if the judge were uncooperative so that the police could try their luck with another judge.

And now, this year, the government wants the power to open the mails when it suspects threats to national security or shipments of narcotics. They very same argument used to justify this measure can—and no doubt will—be used to justify mail opening where other offences are suspected.

After all, why be partial in mail openings to offences involving narcotics and national security when wiretaps can be authorized for other criminal offences as well? It is perfectly clear that once the initial breach is made, the right to privacy becomes further and further eroded at great speed. No doubt this was one of the reasons why the Post Office Act was written as it was and why it should continue to read that way.

A similar conclusion is necessary when trying to imagine how the bill might be applied. It authorizes judges to allow mail opening by the RCMP where there are reasonable and satisfactory grounds, for example, to believe that heroin in being sent through the mails. But what is required for the grounds to be reasonable? Interception of heroin by the police has invariably led to more sophisticated methods of shipment. It could be “reasonable” to open most parcels and letters sent from Southeast Asia or from South America.

The public hearing held by the McDonald Commission have already cast considerable doubt about the alleged usefulness to the RCMP of illegal mail openings. The loss of privacy, on the other hand, is clear and demonstrable.

All these doubts are exacerbated by growing evidence that the safeguards against the misuse of electronic surveillance simply do not work. When the Protection of Privacy Act was originally introduced, Parliament was warned on the basis of statistical evidence from the United States that the requirement of the police to get authorization from the Courts for a wiretap offered no effective protection. Police requests were seldom turned down. The same has proven to be true in Canada. According to the Solicitor General’s report covering 1976, for example, 1,152 applications for original authorizations or renewals were made to the courts. All without exception were approved. The Court have allowed—and doubtless have had little alternative but to allow—the RCMP to institute wiretaps virtually at will. There is little reason to believe that they will be any less generous when it comes to opening the mails.

While an affidavit requesting court authorization for a wiretap can be produced for public scrutiny by order of a superior court judge, “not one application for such an order under the wiretap provisions of the code has ever been successful.” (Michael Valpy, Vancouver Sun, February 9, 1978) Add to that the admissibility of illegally obtained evidence, and it is clear that the Canadian public has much to fear from the Government’s bill, because it already has so much to fear from the bills the Government has already enacted.

Finally, the proposed mail opening legislation is in any case premature. It seems highly irregular to create a new power when the McDonald Commission has been charged to determine whether it would be wise to do so. It is no good saying that this power is being created for a limited time only. The need for such a power has not been shown to exist. And history has shown that once such powers are created even for a limited period, it is remarkably difficult to make them anything but permanent.

We sincerely hope that the Government will reconsider its position on this bill.

Yours sincerely,
Jim Dybikowski,
President, BCCLA

In 1980 a night letter was sent to the then Federal Solicitor General as follows:

11 April 1980

Mr. Robert Kaplan
Solicitor-General for Canada

The British Columbia Civil Liberties Association is gravely concerned about the recent statements that government intends to introduce legislation to permit the Royal Canadian Mounted Police to open mail. For many years the Post Office Act has had an absolute prohibition against the opening of the mails. Its weakening represents a serious blow to the principle of an individual’s right to privacy. The B.C. Civil Liberties Association believes that such an infringement of the individual’s right to privacy can only be justified by the strongest of reasons. We are not convinced that there are sufficient grounds to support the government’s proposed legislation.

The previous Liberal government established the McDonald Commission to enquire into the practices and procedures of the RCMP and to make recommendations concerning what powers the RCMP ought to have. One of the matters on which the McDonald Commission has heard extensive evidence and arguments concerns the opening of the mail by the RCMP, and the justification, or lack of justification, for such an invasion of our individual right to privacy. Surely the government should await the recommendations of its own Commission before it proceeds with so drastic an infringement of individual liberty.

The Government has presented no evidence to show that so serious and immediate a crisis faces Canada that such powers are needed before the McDonald Commission can present its reasoned recommendations. Caution in proceeding to enact such legislation seems all the more reasonable when we view the history of wiretap legislation.

The wiretap provisions of the Criminal Code came into effect in 1974. Approximately two years later they were substantially enlarged. Even under the wiretap legislation, the RCMP are required, except in cases of the clearest emergency, to obtain the approval of a Judge before instituting the wiretap. Despite this safeguard, the public has recently learn that in two recent cases, not involving narcotics or any threat to the security of Canada, over a quarter of a million telephone conversations involving a Minister of the provincial Cabinet were wiretapped. Very, very few of those conversations were relevant to the case when it finally proceeded to trial.

How many pieces of private mail will be read (and, we assume, photocopied and placed in files) in an attempt to find one or two pieces of damaging evidence? The potential for abuse where the RCMP, or anyone else, is allowed to make wholesale invasions of individual privacy is great. Who os us may not be writing, quite innocently, and about matters which may be highly personal or confidential in a business sense to individuals who are suspected on who knows what grounds, of involvement in narcotics?

The evidence before the McDonald Commission does not convince the McDonald Commission that the value to be obtained by opening private mail will offset the clear and demonstrable loss of privacy. These doubts are exacerbated by the growing evidence that safeguards against the misuse of electronic surveillance do not work.

The proposal of the government to introduce legislation permitting the RCMP to open the mail in search of evidence of the commission of criminal offences appears unjustified, dangerous and premature. We urge the government not to take so precipitous a step before it has heard the recommendations of its own McDonald Commission.

Christopher Rigg