Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


In R. v. Gorman, 2022 NLSC 3, January 11, 2022, the accused was charged with the offence of trafficking, contrary to the Controlled Drugs and Substances Act. After a parcel addressed to the accused was opened by a postal inspector, the police were contacted and a controlled delivery was made to the accused.  The accused argued that the authority of postal inspectors to open mail pursuant to section 41(1)(c) of the Canada Post Corporation Act violated section 8 of the Charter.  That section states:

The corporation may open any mail, other than a letter, to determine in any particular case

(c) whether the mail is non-mailable matter.

Section 3 of the Non-mailable Matter Regulations, indicates that “the items set out in the schedule are non-mailable matter”.  Item 4 of the schedule refers to “[a]ny item transmitted by post in contravention of an Act or a regulation of Canada”.

Justice Booneheld that section 41(1)(c) violates section 8 of the Charter and is not saved by section 1.  

Section 8 of the Charter:

Justice Boone held that an “expectation of privacy in the mail arises from the basis for the constitutional right to privacy protected by the s. 8 guaranteed protection from unreasonable search or seizure…Therefore, in general there is a reasonable expectation of privacy in the mail that includes an expectation that the Crown Corporation that is delegated the privilege of operating the postal system will not search it” (at paragraphs 19 and 22). 

Justice Boone held that the “search in this case was conducted pursuant to a statute governing the regulated postal scheme.  However, that factor is not in and of itself sufficient to displace any reasonable expectation of privacy of those using the parcel post system.  The values engaged in trusting parcels to the post office impact on the core aspects of identity protected by s. 8 of the Charter” (at paragraph 39).  He concluded as follows (at paragraphs 68 to 70):

In this case, prior judicial authorization ought not to be required.  In this regard, I do consider the state objective in ensuring the safety of the mail system to be relevant.  The possibility of toxic chemicals or explosives or other potentially harmful agents being shipped through the system requires an immediate response by postal officials, rather than a response delayed by the requirement for a warrant.  As with the school officials in R. v. M. (M.R.), postal officials are better placed than judicial officers to determine the possibility of packages containing such substances. Leaving aside the presence of contraband or dangerous goods, the other regulatory requirements (packaging, postage, etc.) against which postal officials can measure searched parcels are fairly mundane and do not require judicial attention.  The efficient operation of the postal system requires that parcels move through the system with no more interference than necessary.

However some form of objective standard ought to be required before a search can proceed.  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.  The authority provided in s. 41(1) to search any or all parcels clashes with the reasonable expectation of privacy in the mail.  I do not think that users of the postal system would expect that the post office could never search a parcel under any circumstance.  However, they would expect that a search would only take place on the basis of an objective standard that the regulatory purpose of the search is engaged.

Therefore, s. 41(1) violates the guarantee against unreasonable search in s. 8 of the Charter.

Section 1 of the Charter:

Justice Boone held (at paragraph 82):

…although the Crown has demonstrated that effective security measures are necessary to ensure the safety and security of the parcel system, the unfettered search authority in s. 41(1) is not proportionately responsive to the intrusion on postal users’ s. 8 rights.  The statute is not saved by s. 1.