Sex Party v. Canada Post Corporation

Sex Party v. Canada Post Corporation
Court (s) Database
Federal Court Decisions
Date
2008-01-14
Neutral citation
2008 FC 41
File numbers
T-65-06
Notes
Digest
Decision Content
Date: 20080114
Docket: T-65-06
Citation: 2008 FC 41
Ottawa, Ontario, January 14, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
THE SEX PARTY
Applicant
and
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S., 1985, c. F-7. The Sex Party (the applicant) seeks to have judicially reviewed a decision by Canada Post Corporation (the respondent), refusing to distribute a leaflet of the Sex Party using the Unaddressed Admail service on the grounds that the leaflet was sexually explicit.
FACTUAL BACKGROUND
[2] The respondent is a Crown corporation, created by the Canada Post Corporation Act, R.S., 1985, c. C-10 (the Act). The Unaddressed Admail Program (program) is a mass direct mail service for the delivery of flyers, printed material and product samples to households, and businesses across Canada, offered by the respondent corporation. It is different from other private distribution services because Canada Post is the only corporation with access to apartment buildings and rural mailboxes.
[3] The applicant is a registered political party in British Columbia with federal political aspirations. The applicant sought to distribute a flyer, in order to participate in the debate and discourse leading up to the 2006 federal election. On January 3, 2006, the applicant submitted a four page leaflet entitled “the Sex Party” to a senior executive at Canada Post, requesting an opinion as to whether the leaflet met the content standards of Canada Post’s Unaddressed Admail program, in order to proceed with a mass distribution to the public through the program.
[4] Beyond a simple statement of the party’s platform, the applicant’s leaflet included a painting of two individuals engaged in oral sex, a drawing of the torsos of two nude individuals embracing, and a doorknocker in the shape of an erect penis with wings. It also contained a quiz entitled “Test Your Sexual I.Q.”.
DECISION UNDER REVIEW
[5] On January 5, 2006, the director of product management of Canada Post replied to the applicant’s request by email, refusing to deliver the leaflets on the grounds that they were sexually explicit (respondent’s record, page 203):
[…] If you would like to choose our Unaddressed Admail service to deliver your items (noting that there are other distribution alternatives available), I would like to suggest that you remove any reference of sexually explicit nature, including graphics. For example, I would remove the section on “Test Your Sexual IQ” and the graphic pictures on the mail item. To reiterate, Canada Post will not knowingly deliver an item that contains sexually explicit content or graphics. Such material is not appropriate for Unaddressed Admail distribution. For example, an advertising message promoting your Party’s platform (as provided in the attachment below) with an invitation to visit your Party’s website and to attend your upcoming event would be appropriate […]
[6] The grounds for refusing sexually explicit material are found in the Unaddressed Admail Customer Guide, January 17, 2005, section 2.2.3. entitled Non-mailable Matter and Other Non-eligible Items (applicant’s record, page 33):
Canada Post will not knowingly deliver offensive articles that contain sexually explicit material, any information relating to bookmakers, pool-setting, betting or wagering or unlawful schemes, or any item related to schemes to defraud the public.
[7] Section C – Chapter 12 of the Canada Postal Guide also provides grounds for the decision (applicant’s record, page 59). It states:
Canada Post retains the right to refuse any item that it, in its sole discretion, deems unacceptable. For a detailed list of unacceptable items, go to Section B – Chapter 7, Non-Mailable Matter.
[8] The respondent’s decision states that other distribution alternatives are available to the applicant, thereby implying that the decision did not constitute a complete prohibition to the distribution of the leaflet. In the cross-examination of the respondent’s sworn evidence of February 22, 2007, the director of product management for the respondent corporation stated that, unless it was placed in an envelope with the words “Adult Material” or a similar warning, Canada Post would decline to distribute the leaflet. The applicant accepts that the option of distributing the leaflet in an envelope with a warning constitutes a distribution alternative intended by the decision. As such, I will treat this alternative as though it forms part of the decision.
ISSUES
[9] The applicant submits that there are two questions that need to be answered by this application:
a) Is the decision of the respondent ultra vires of the Act?
b) Is the decision contrary to section 2(b) of the Charter and if so, is the breach saved by section 1 of the Charter?
[10] In my opinion, it is necessary to reframe the questions as follows:
a) Is the respondent’s decision compliant with the governing principles of administrative law?
b) Does the decision to refuse to distribute the applicant’s leaflets infringe section 2(b) of the Charter, and if so, does the refusal constitute a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society?
c) Is the decision of the respondent ultra vires of the powers conferred on it pursuant to the Act?
RELEVANT LEGISLATION
[11] Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
2. Chacun a les libertés fondamentales suivantes:
b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;
[12] Canada Post Corporation Act, R.S., 1985, c. C-10.
Powers of Corporation
16. (1) In carrying out its objects and duties
under this Act, the Corporation has the capacity, and subject to this Act, the rights, powers and privileges of a natural person.
Regulations
19. (1) The Corporation may, with the approval of the Governor in Council, make regulations for the efficient operation of the business of the Corporation and for carrying the purposes and provisions of this Act into effect, and, without restricting the generality of the foregoing, may make regulations
(a) prescribing, for the purposes of this Act and the regulations, what is a letter and what is non-mailable matter and undeliverable mail, other than undeliverable letters, and providing for the disposition of non-mailable matter, undeliverable mail and mail on which sufficient postage is not paid, including the disposition of anything found therein;
(b) classifying mailable matter, including the setting of standards for any class thereof;
(c) prescribing the conditions under which mailable matter may be transmitted by post;
(d) prescribing rates of postage and the terms and conditions and method of payment thereof;
(e) providing for the reduction of rates of postage on mailable matter prepared in the manner prescribed by the regulations;
(f) providing for the refund of postage;
(g) providing for the transmission by post, free of postage, of
(i) letters, books, tapes, records and other similar material for the use of the blind, and
(ii) mailable matter relating solely to the business of the Corporation and addressed to or sent by a person engaged in that business;
(h) providing for the holding of mail by the Corporation at the request of the sender or addressee thereof or in any other circumstances specified in the regulations;
(i) providing for the insurance of mail and the payment of indemnity by the Corporation in case of loss of or damage to mail;
(j) providing for the payment of interest, including the rate thereof, on funds transmitted by post;
(k) governing the design, placement and use of any receptacle or device intended for the posting, insertion, reception, storage, transmission or delivery of mailable matter;
(l) regulating or prohibiting the installation of machines for vending postage stamps, postal remittances or other products or services of the Corporation;
(m) regulating or prohibiting the manufacture, installation and use of postage meters;
(n) regulating or prohibiting the making or printing of postage stamps;
(o) governing the preparation, design and issue of postage stamps;
(p) providing for the closure of post offices, the termination of rural routes and the termination of letter carrier routes;
(q) carrying out any international postal agreement or international arrangement entered into pursuant to this Act;
(r) dealing with any matter that any provision of this Act contemplates being the subject of regulations; and
(s) providing for the operation of any services or systems established pursuant to this Act.
Pouvoirs de la Société
16. (1) Dans l’exécution de sa mission et l’exercice de ses fonctions, la Société a, sous réserve des autres dispositions de la présente loi, la capacité d’une personne physique.
Règlements
19. (1) La Société peut par règlement, avec l’approbation du gouverneur en conseil, prendre toute mesure utile, dans le cadre de la présente loi, à l’efficacité de son exploitation et, notamment :
a) préciser, pour l’application de la présente loi et de ses règlements, ce qu’on entend par « lettre », « objet inadmissible » et, exclusion faite des lettres non distribuables, par « envoi non distribuable » ou « courrier non distribuable », et prévoir la façon dont il peut être disposé des objets inadmissibles, des envois non distribuables ou insuffisamment affranchis, ainsi que de leur contenu;
b) catégoriser les objets et fixer les normes applicables à chaque catégorie;
c) fixer les conditions de transmission postale des objets;
d) fixer les tarifs de port et les modalités d’acquittement des frais correspondants;
e) prévoir la réduction des tarifs de port dans le cas d’objets conditionnés de la manière réglementaire;
f) prévoir le remboursement du port;
g) prévoir la transmission en franchise :
(i) des articles à l’usage des aveugles, tels que des lettres, livres, bandes magnétiques ou disques,
(ii) des objets qui se rattachent exclusivement à ses activités et dont l’expéditeur ou le destinataire se livrent à celles-ci;
h) prévoir la garde de certains envois par la Société soit à la demande de l’expéditeur ou du destinataire, soit en raison de circonstances déterminées par règlement;
i) prévoir l’assurabilité par elle des envois et le paiement par elle d’indemnités en cas de perte ou de détérioration;
j) prévoir le paiement d’intérêts, y compris le taux d’intérêts, sur les fonds transmis par la poste;
k) régir les caractéristiques, l’installation et l’utilisation des contenants ou dispositifs prévus pour le dépôt, la réception, l’entreposage, la transmission ou la distribution des objets;
l) régir ou interdire l’installation de distributrices de timbres-poste, de titres de versements postaux ou d’autres produits fournis par la Société, ou de machines assurant certaines de ses prestations;
m) régir ou interdire la fabrication, l’installation et l’utilisation de machines à affranchir;
n) régir ou interdire tout ce qui concerne l’impression des timbres-poste;
o) régir la création, la fabrication et l’émission des timbres-poste;
p) prévoir la fermeture de bureaux de poste et la suppression de circuits ruraux ou de circuits urbains de livraison par facteur;
q) mettre en oeuvre les conventions ou arrangements postaux internationaux conclus aux termes de la présente loi;
r) prévoir toute mesure à prendre, aux termes de la présente loi, par voie réglementaire;
s) régir le fonctionnement des services, systèmes ou réseaux établis en application de la présente loi.
ANALYSIS
Preliminary Objections
1. Respondent’s Objection to Evidence on the Record
[13] The applicant has included in its record a flyer called the "The Prophetic Word" (PW) that was distributed by Canada Post in the fall of 2006 (applicant’s record, pages 87 to 101). He argues that the decision to distribute such a flyer is inconsistent with the decision at bar. The applicant alleges that PW is hate literature or hate propaganda and takes aim at a sexual minority on the ground of orientation. It was approved by Canada Post for distribution as part of the Unaddressed Admail program, a decision, which according to the applicant, is inconsistent with the decision process undertaken by the respondent in this matter. The respondent objects to the introduction of PW as part of the record. Further, it is submitted that this flyer has no relevance to the instant case, since there was no question of sexually explicit material contained in PW.
[14] The Court is of the opinion that this document should be excluded because it concerns a decision of Canada Post taken after the contested decision in January 2006. As a matter of administrative law, one decision of a Board, which may or may not be reviewable, cannot be used to impugn another decision. The present case must be judicially reviewed on its own merits. Similarly, any review of the decision to distribute PW would have to be judicially reviewed or upheld on its own merits. Further, I agree with the respondent’s submission that the lack of sexually explicit material in PW renders it irrelevant. Therefore, the objection is sustained.
2. Applicant’s Objection to the Introduction of Certain Social Science Evidence
[15] The applicant objects to the respondent's filing of pages 489 to 525 (social science evidence) of its record because it was not cited by Dr. Elterman and because the Sex Party did not have the time to respond to such evidence. Contrary to the applicant's allegation, this evidence was cited as references to Dr. Elterman report dated April 14, 2006, except for pages 509 and 510 (Report of the Surgeon General's Workshop on Pornography and Public Health). Pages 489 to 525 are attached to a letter dated May 23, 2006 addressed to Dr. Michael F. Elterman Inc. and found in the Respondent's Record, Volume III, which is dated May 31, 2007. Therefore, the objection is sustained only for pages 509 and 510. The applicant had ample time to respond to such evidence before the hearing in October 2007.
Administrative Law
[16] As a preliminary matter, in order to properly address the issues raised by the applicant, it is necessary to proceed with the analysis of the issues in two distinct steps: first, it is necessary to canvass the compliance of this decision with principles of administrative law, and second, to look at whether the decision of the respondent infringes section 2(b) of the Charter. Neither party made submissions regarding the standard of review, nor whether the decision is reviewable on administrative grounds; however, it is necessary to determine the standard of review and the compliance of that decision to the standard.
[17] The Supreme Court of Canada, in Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, provided the framework and reasoning for separating the administrative law review from the Charter examination. Citing Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, Justice La Forest, writing for a unanimous Court in Ross, found that:
[32] […] the administrative law standard and the Charter standard are not conflated into one. When the issues involved are untouched by the Charter, the appropriate administrative law standard is properly applied as a standard of review.
[…]
As Dickson C.J. noted, the more sophisticated and structured analysis of s. 1 is the proper framework within which to review Charter values.
[18] Ross, above was recently cited with approval by the Supreme Court of Canada. In Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 S.C.R. 256, Justice Charron wrote at paragraph 17 that “judicial review may involve a constitutional law component and an administrative law component.”
[19] I will therefore first proceed with the administrative law component of this case, followed by the constitutional component.
1. Standard of Review
[20] In order to determine the standard of review that will be applied to a discretionary decision by Canada Post, it is necessary to use the pragmatic and functional approach, and apply the four contextual factors outlined by the Supreme Court of Canada (see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). The first is the presence or absence of a privative clause or statutory right of appeal; the second is the relative expertise of the decision-maker; the third is the purpose of the legislation and the provision in particular; and the fourth is the nature of the question, that is whether it is a question of law, mixed fact and law or fact.
[21] In the case at bar, there is no privative clause, nor is there a statutory right of appeal. The Act is silent on the question of review, which is neutral; silence does not imply a high standard of scrutiny (Dr. Q, above, at paragraph 27; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 30).
[22] In order to evaluate the expertise of Canada Post in making this decision relative to the expertise of this Court, it is first necessary to identify the nature of the specific issue. The decision made by Canada Post requires the decision-maker to screen the explicit nature of the material which is intended for mass distribution. It requires an understanding of community standards for tolerating sexual material delivered to the public unsolicited, and an assessment of the explicitness of the material. These are highly subjective determinations of fact, which could result in a wide variety of conclusions depending on the tastes and standards of the individual. While a senior employee of Canada Post might possess some knowledge of what kinds of material solicits complaints from the public, I cannot find that the respondent is more expert than the Court. The respondent submits that a similar decision has been made in another case. The respondent points to a flyer sent by a company called “Jolly Joker Enterprises Ltd” (respondent’s record, page 487). Despite this example, there is nothing in the record to suggest that the respondent would deal with such matters frequently enough to have acquired significant institutional expertise. I therefore find that the lack of specific expertise of the respondent implies a higher standard of scrutiny.
[23] I accept the respondent’s submissions regarding the intent of the Act in the context of the statutory purpose. The Act provides that Canada Post is a Crown corporation whose objective is to operate a national postal service. Further, the Act prescribes the powers and mandate of Canada Post, by means of extensive regulatory power and the rights, powers and privileges of a natural person. A decision relating to what is mailable and what is non-mailable involves the balancing of multiple sets of interests, and the protection of the public. These facts all suggest that the functions of Canada Post can be polycentric in nature. The fact that the standards for non-mailable matter are the subject of a discretionary decision, suggests that Parliament did not intend a higher standard of scrutiny. On the whole, the purpose of the legislation militates in favour of deference.
[24] Finally, the nature of the question being reviewed is one of pure fact. The decision-maker was required to verify whether the material is sexually explicit or not. This factor would suggest a higher level of deference.
[25] Balancing the four factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter. The question is whether Canada Post’s decision to refuse to distribute the Sex Party’s leaflet was unsupported by any reasons that could stand up to a somewhat probing examination (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at paragraph 46).
2. Was Canada Post’s decision reasonable?
[26] Noting that I have not yet undertaken a Charter analysis, it is my belief that it was reasonable for Canada Post to conclude that the leaflet submitted by the applicant was sexually explicit, and therefore non-mailable in accordance with the Consumer Guide. There is no doubt that the pictures at page 26 (oral sex), 28 (intimate embrace) and 29 (erect penis) associated with the words in the applicant's flyer are sexually explicit.
[27] However, the more pressing, and substantive issue is whether the decision violates the applicant’s right of freedom of expression, and if it does whether the decision constitutes a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society. I will therefore proceed to examine the Charter issues raised.
Constitutional Law
1. Is there a prima facie violation of section 2b)?
[28] The crux of the applicant’s argument is that the Sex Party’s right to freedom of expression was infringed. The respondent submits that there is no prima facie violation of the applicant’s right under section 2(b) of the Charter, because the right is limited by the destination of the speech. The respondent cites the following passage from the recent Supreme Court decision in Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141, (City of Montreal) in support of this argument:
[56] Does the City’s prohibition on amplified noise that can be heard from the outside infringe s. 2(b) of the Canadian Charter? Following the analytic approach of previous cases, the answer to this question depends on the answers to three other questions. First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect? See Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
[29] The respondent concedes that the Sex Party leaflet constitutes expressive content and that the prohibition infringes the Sex Party’s right of freedom of expression, but argues that the method or location of this expression is excluded from the protection of section 2(b). Because it is sent to private places such as homes and mailboxes where anyone can pick it up, including children of all ages, the expression is not protected by section 2(b). In other words, the protection afforded by the freedom of expression is limited by the location or destination of the expression. The respondent relies on paragraph 62 of City of Montreal in support of this contention:
[62] Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of s. 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Canadian Charter. […] [Emphasis added]
[30] However, the present case is distinguishable. When Canada Post, acting as a federal board, makes the decision that material is not suitable for distribution, there clearly exists a state-imposed limit on speech. Therefore, the issue is not whether mailboxes are private spaces, but whether the decision of Canada Post infringes section 2(b).
[31] The respondent contends that not all government property is a forum for free expression, and emphasize again that the method or location of the expression can remove it from the protection of 2(b). Relying on Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, the respondent argues that Canada Post did not violate 2(b) by refusing to distribute the leaflet. I do not agree. The examples of government property to which the protection of 2(b) may not apply, include locations such as air traffic control towers, prison cells and judges' chambers (see Committee for the Commonwealth, above, at paragraph 134). The statutory objectives of the Act suggest that Canada Post is, at least in part, a vehicle for expression. The Unaddressed Admail program holds itself out to the public as a forum for expression, and is widely used for the distribution of householders and other political information, both from political parties and third parties. To liken the functions of the national postal service to those of an air traffic control tower, Cabinet meetings or judges’ chambers would be to misconstrue the statutory scheme in place.
[32] The respondent relies on the concurring opinion of Justice Rehnquist in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), a case from the United States Supreme Court, in support of their argument that mailboxes constitute private spaces:
[…] But because the home mailbox has features which distinguish it from a public hall or public park, where it may be assumed that all who are present wish to hear the views of the particular speaker then on the rostrum, it cannot be totally assimilated for purposes of analysis with these traditional public forums. Several people within a family or living group may have free access to a mailbox, including minor children; and obviously not every piece of mail received has been either expressly or impliedly solicited. […]
[33] Further in its argument, the applicant relies on the same case under the rubric of minimal impairment, further in its argument. I would briefly recall passages from the Supreme Court of Canada, discussing the usefulness of turning to American First Amendment jurisprudence to guide the Courts’ reasoning in the context of the Canadian Charter. Significant jurisprudential differences exist between the protection of the First Amendment and that offered by 2(b). These differences were canvassed extensively by Justice L’Heureux-Dubé concurring in Committee for the Commonwealth, above, and Chief Justice Dickson, writing for the majority in R. v. Keegstra, [1990] 3 S.C.R. 697, who at page 740, said:
Canada and the United States are not alike in every way, nor have the documents entrenching human rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada’s constitutional vision depart from that endorsed in the United States.
[34] Another important distinction exists between the Canadian and American constitutional approaches to free expression. In Committee for the Commonwealth, above, Justice L’Heureux-Dubé wrote at page 178:
However, the different structures of our two constitutional documents require that the balancing test be undertaken at different stages of the analysis. In the United States any limitations on the First Amendment, to the extent that any limitation exists, must be internal to the provision itself. The U.S. Constitution does not contain a s. 1.
[35] In the United States, the fact that a mailbox is a private space could serve to limit the scope of the freedom of expression granted by the First Amendment. However, under the Canadian Charter, the right provided by section 2(b) cannot be narrowed. The right to freedom of expression provided by section 2(b) is very broad, and should be interpreted in a large and liberal manner. It is not, however, absolute, and may be limited in the manner permitted by section 1. The Supreme Court has consistently held that the appropriate analytical framework for balancing competing values is section 1. In Ross, above, Justice La Forest wrote:
[73] This said, a broad interpretation of the right has been preferred, leaving competing rights to be reconciled under the s. 1 analysis elaborated in R. v. Oakes, [1986] 1 S.C.R. 103, decided after Big M. This approach was adopted by the majority in B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, which refused to formulate internal limits to the scope of freedom of religion. Speaking for the majority, I there stated, at pp. 383-84:
This Court has consistently refrained from formulating internal limits to the scope of freedom of religion in cases where the constitutionality of a legislative scheme was raised; it rather opted to balance the competing rights under s. 1 of the Charter; . . .
In my view, it appears sounder to leave to the state the burden of justifying the restrictions it has chosen. Any ambiguity or hesitation should be resolved in favour of individual rights. Not only is this consistent with the broad and liberal interpretation of rights favoured by this Court, but s. 1 is a much more flexible tool with which to balance competing rights than s. 2(a). As Dickson C.J. stated in R. v. Keegstra, supra, while it is not logically necessary to rule out internal limits within s. 2, it is analytically practical to do so. . . .
[74] This mode of approach is analytically preferable because it gives the broadest possible scope to judicial review under the Charter (see B.(R.), at p. 389), and provides a more comprehensive method of assessing the relevant conflicting values.
[36] It is therefore my opinion that the decision of Canada Post to refuse the leaflet of the Sex Party for distribution constitutes a prima facie infringement of section 2(b) of the Charter. It is now necessary to determine whether the decision is a reasonable limit prescribed by law that is demonstrably justifiable in a free and democratic society as is provided by section 1 of the Charter.
2. Is the decision a “limit prescribed by law”?
[37] The applicant submits that the Customer Guide is not a law, and therefore does not constitute a “limit prescribed by law” as required by section 1. The applicant further alleges that the terms “offensive” and “sexually explicit” are impermissibly vague, and therefore also defeat the requirement of a “limit prescribed by law”. I will address each of these issues.
a) The Decision is a Limit Prescribed by Law
[38] The respondent submits that the Customer Guide is enacted pursuant to its general management powers provided in the Act, and that such a Guide is needed in order to fulfill the statutory objects of the Act. Further, the Guide does not need to be codified because it constitutes “subordinate” or “delegated” legislation.
[39] So long as the policy is enacted and enforces within the powers given to Canada Post in accordance with the Act, it is a limit which is lawful. The Supreme Court recently addressed this issue in Multani, above:
[22] There is no question that the Canadian Charter applies to the decision of the council of commissioners, despite the decision’s individual nature. The council is a creature of statute and derives all its powers from statute. Since the legislature cannot pass a statute that infringes the Canadian Charter, it cannot, through enabling legislation, do the same thing by delegating a power to act to an administrative decision maker: see Slaight Communications, at pp. 1077-78. As was explained in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at para. 20, the Canadian Charter can apply in two ways:
First, legislation may be found to be unconstitutional on its face because it violates a Charter right and is not saved by s. 1. In such cases, the legislation will be invalid and the Court compelled to declare it of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. Secondly, the Charter may be infringed, not by the legislation itself, but by the actions of a delegated decision-maker in applying it. In such cases, the legislation remains valid, but a remedy for the unconstitutional action may be sought pursuant to s. 24(1) of the Charter.
Deschamps and Abella JJ. take the view that the Court must apply s. 1 of the Canadian Charter only in the first case. I myself believe that the same analysis is necessary in the second case, where the decision maker has acted pursuant to an enabling statute, since any infringement of a guaranteed right that results from the decision maker’s actions is also a limit “prescribed by law” within the meaning of s. 1. On the other hand, as illustrated by Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69, at para. 141, when the delegated power is not exercised in accordance with the enabling legislation, a decision not authorized by statute is not a limit “prescribed by law” and therefore cannot be justified under s. 1. [Emphasis added]
[40] Further, this Court has followed a principle stated by the Ontario Court of Appeal in Ainsley Financial Corp. v. Ontario Securities Commission, [1994] O.J. No. 2966, that a regulator may issue non-binding statements or guidelines even in the absence of specific statutory authority:
[11] The authority of a regulator, like the Commission, to issue non-binding statements or guidelines intended to inform and guide those subject to regulation is well established in Canada. The jurisprudence clearly recognizes that regulators may, as a matter of sound administrative practice, and without any specific statutory authority for doing so, issue guidelines and other non-binding instruments: Hopedale Developments Ltd. v. Oakville (Town), [1965] 1 O.R. 259 at p. 263, 47 D.L.R. (2d) 482 (C.A.); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pp. 6-7, 137 D.L.R. (3d) 558; Capital Cities Communications Inc. v. Canadian Radio-Television & Telecommunications Commission, [1978] 2 S.C.R. 141 at p. 170, 81 D.L.R. (3d) 609 at p. 629; Friends of Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at p. 35, 88 D.L.R. (4th) 1; Pezim, supra, at p. 596; Law Reform Commission of Canada, Report 26, Report on Independent Administrative Agencies: Framework for Decision Making (1985), at pp. 29-31. [Emphasis added]
[41] Because the power to issue a customer guide is within the power of Canada Post, the exercise of this right is a limit prescribed by law.
[42] Following this reasoning, I agree that the impugned decision, which infringes the applicant’s guaranteed rights, constitutes a “limit prescribed by law” pursuant to section 1.
b) Is the Guide Impermissibly Vague?
[43] The applicant submits that the terms “offensive” and “sexually explicit” contained in the Customer Guide, as well as the term “unacceptable items” contained in Section C – Chapter 12 of the Canada Postal Guide, are impermissibly vague. The Supreme Court has held that a law which is too vague may not constitute a “limit prescribed by law” (see Committee for the Commonwealth, above, at paragraph 161; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, at paragraphs 145-146).
[44] In order to determine if a law is impermissibly vague, the language of the provision must establish an intelligible standard. According to the Supreme Court in Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at paragraph 63:
Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no "limit prescribed by law".
[45] It is therefore necessary to determine whether the language of the Customer Guide and of Section C – Chapter 12 of the Canada Postal Guide provides an intelligible standard. The Customer Guide states that “Canada Post will not knowingly deliver offensive articles that contain sexually explicit material, any information relating to bookmakers, pool-setting, betting or wagering or unlawful schemes, or any item related to schemes to defraud the public.” The applicant submits that this must be read in such a manner that the pamphlet must be both offensive and sexually explicit. I do not read these as separate requirements. For this reason, I am satisfied to decide whether the term “sexually explicit” is impermissibly vague. I do not think that it is. While a certain level of judgment must be exercised by the decision-maker in determining whether an item is sexually explicit, it still constitutes an intelligible standard. It is open to the Court to rely on common sense when deciding what constitutes sexually explicit material.
[46] Because the decision itself constitutes a “limit prescribed by law”, as seen in Multani, above, any vagueness contained in the language of a Guide would not be fatal to the Charter analysis. I will proceed to determine whether the limit is reasonable in a free and democratic society.
3. Is the limit reasonable in a free and democratic society?
[47] Before applying the test established in R. v. Oakes, [1986] 1 S.C.R. 103, it is appropriate to reaffirm the principle that four contextual factors must be considered in order to determine the nature and sufficiency of evidence required by the respondent to demonstrate that the infringement of section 2(b) is saved by section 1. These factors were set out in Thomson Newspapers Co. (c.o.b. Globe and Mail) v. Canada (Attorney General), [1998] 1 S.C.R. 877, and Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827. They were recently reaffirmed in R. v. Bryan, [2007] S.C.J. No. 12 (QL), 2007 SCC 12 at paragraph 10:
[…] in determining the nature and sufficiency of evidence required for the Attorney General to establish that a violation of s. 2(b) is saved by s. 1, the impugned provision must be viewed in its context: see Harper, at paras 75-76, and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 88. This context can be best established by reference to the four factors which this Court set out in Thomson Newspapers and Harper: (i) the nature of the harm and the inability to measure it, (ii) the vulnerability of the group protected, (iii) subjective fears and apprehension of harm, and (iv) the nature of the infringed activity.
[48] A brief survey of the factors is instructive in determining the nature and sufficiency of evidence required to prove that the decision is saved by section 1. The harm caused to children by being exposed to sexually explicit materials is almost impossible to measure, since a controlled study on the impacts would be ethically impossible to conduct. In any event, it is open to the Court to rely on common sense and logic, following Harper and Bryan, above. The second factor, the vulnerability of the group protected, like the first, is a factor which allows the respondent to rely on common sense arguments. I accept that children are a particularly vulnerable group. The third factor is subjective fear and apprehension of harm. The respondent submitted that its burden was not to prove that harm would be done to children, but rather to prove on the balance of probabilities that there exists an apprehension of harm. The expert opinion found that an apprehension of harm should be sufficient. I