T-1040-80
Fred Steiner (Plaintiff)
v.
The Queen, the Postmaster General, Lawrence F.
Reid, A. E. Green and Marc Savoie (Defendants)
Trial Division, Decary J.—Campbellton, January
14; Ottawa, July 17, 1981.
Prerogative writs — Declaration — Postmaster decided that
flyers submitted by the plaintiff for delivery were non-mail-
able matter on account of the text which was critical of the
Post Office — Post Office Act gives the Postmaster General
the power to decide what is non-mailable matter and the right
to delegate such power — Whether such discretionary power is
restricted to mail that is the object of a regulation issued
under the Act — Application for a declaration that the
defendants have a public duty to accept for delivery all mail
which complies with the Act and Regulations, and a declara
tion that the defendants have a duty to accept for delivery the
particular flyer, is allowed — Post Office Act, R.S.C. 1970, c.
P-14, ss. 2, 3(1), 5(I)(e),(p), 5 ( 4 ), 6 (a),(b),(f),(g), 7 ( 1 )(a).( 6 ) —
Third Class Mail Regulations, SOR/78-899, ss. 2, 3(1) —
Prohibited Mail Regulations, C.R.C. 1978, Vol. XIV, c. 1289,
ss. 2, 3 — Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix II!], ss. 1, 2.
The plaintiff seeks a declaration that the defendants have a
public duty to accept for delivery all mail which complies with
the Post Office Act and Regulations and a further declaration
that the defendants have a duty to accept for delivery the
particular item which the plaintiff submitted to the defendants
for mailing. The plaintiff wished to mail a flyer which met all
physical requirements of the Regulations, but its text was
critical of the Post Office. The Postmaster exercised his discre
tion and decided that the flyers were non-mailable matter on
account of their text. Paragraph 5(1)(p) of the Post Office Act
gives the Postmaster General the power to decide what is
non-mailable matter and subsection 5(4) gives the Postmaster
General the right to delegate such power to assistant deputy
postmasters general. Mailable matter is defined as any thing
that by the Act or Regulations may be sent by post. The
question is whether the flyers could be the object of the exercise
of discretion under section 5 of the Act on account of their text,
or whether such an exercise of discretion was unreasonable or a
breach of the duty to act fairly.
Held, the defendants have a public duty to accept for deliv
ery all mail which complies with the Post Office Act and
Regulations. Further, the defendants have a duty to accept for
delivery the particular item which the plaintiff submitted for
mailing. The definition of "mailable matter" indicates that it is
only the Act or the Regulations that should define what is
mailable, not the discretion of the Postmaster General or his
designate. The legislator having enumerated in the definition
and in the regulation section what is a mailable and a non-mail-
able matter, has in so doing fettered the discretion as it cannot
be exercised except if it relates to items in the Act or in the
Regulations. Had Parliament intended for the Postmaster Gen
eral to have an absolute unfettered discretion to interrupt the
mails or to refuse to accept mail because he did not agree with
the contents of the mail, there would have been provided
specific legislation permitting such actions. There being no such
specific authority, it does appear that the legislator intended
that all matters were mailable unless there were specific restric
tions by way of regulation. Through the passage of the Prohib
ited Mail Regulations there is defined what is a non-mailable
matter for the Act as well as the Regulations. Nowhere in the
Act or Regulations is there the authority to refuse to accept
mail because the Postmaster General or his designate does not
approve of the purport of the mailing. Unless there is a specific
regulation permitting the Postmaster General to refuse to
permit the mail to go through, it is not to be inferred from the
language that it is permitted to refuse the use of the mails.
There are enabling words which permit the plaintiff to mail the
flyer in question and, as a result, those words must be read as
being compulsory. The Regulations in no way provide authority
for the Postmaster General to refuse to accept third class mail
because of the contents. The power to decide what is a letter
given the Postmaster General at paragraph 5(1)(p) of the Act
is only one of making a regulation as to what is a letter, a
mailable matter and a non-mailable matter, and cannot be
exercised unless through the medium of regulations.
Re Fisheries Act. 1914 [1930] 1 D.L.R. 194 (P.C.),
applied. Labour Relations Board of Saskatchewan v. The
Queen [ 1956] S.C.R. 82, applied. R. v. Drybones [ 1970]
S.C.R. 282, applied. Re Pacific Press and The Queen
(1977) 37 C.C.C. (2d) 487 (B.C.S.C.), agreed with. Ron-
carelli v. Duplessis [1959] S.C.R. 121, referred to.
ACTION.
COUNSEL:
Ronald A. Pink for plaintiff.
A. R. Pringle for defendants.
SOLICITORS:
Kitz, Matheson, Green & Maclsaac, Halifax,
for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
DECARY J.: The issue as I understand this
matter*, is whether the exercise of discretionary
power given the Postmaster General by the provi
sions of the Post Office Act, R.S.C. 1970, c. P-14,
is restricted or not to the mail that is the object of
a regulation issued under the authority of the Act
and to the mail that is unlawful by virtue of the
Act itself.
Before stating the facts that gave rise to the
action seeking a declaration that the defendants
have a public duty to accept for delivery all mail
which complies with the Post Office Act and
Regulations and a further declaration that the
defendant, the Queen, and her servants have a
duty to accept for delivery the particular item
which the plaintiff submitted to the defendants for
mailing, I believe that the pivotal sections of the
Act and of the Regulations should be quoted and
commented upon.
First, subsection 3(1) of the Post Office Act
states:
3. (1) There shall be a department of the Government of
Canada called the Post Office Department over which the
Postmaster General shall preside.
The purpose of this clause is patent: there shall
exist a Post Office and an overall manager.
The next section to consider is, in my view, this
one:
5. (1) Subject to this Act, the Postmaster General shall
administer, superintend and manage the Canada Post Office,
and, without restricting the generality of the foregoing, may
(p) decide in any particular case what is a letter, mailable
matter or non-mailable matter;
If there were no Regulations, only these provi
sions of the Act, then the Postmaster General
would be vested with an unfettered discretion to
decide what is mailable and unmailable matter.
* The notes submitted by counsel for plaintiff, Mr. Pink,
have been used to a great extent.
That discretionary power could be delegated to
and exercised by certain public servants, in view of
subsection 5(4):
5....
(4) The Postmaster General may delegate any or all of the
powers, duties and functions set out in paragraphs (1)(p) and
(g) to assistant deputy postmasters general and to directors of
the Post Office Department.
A mailable matter is defined in subsection 2(1) as:
2. (1) ...
"mailable matter" includes any thing that by this Act or any
regulation may be sent by post;
The object of the discretion in subsection 5(1) is
to decide what may be sent by post and what may
be sent by post is only what is defined in the Act or
the Regulations.
The provisions of section 6 give the power to
make regulations for, inter alia, the following pur
poses amongst these enumerated from (a) to (y):
6. The Postmaster General may make regulations for the
efficient operation of the Canada Post Office 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, what is a letter
and what is mailable matter and non-mailable matter;
(b) for the classification of mailable matter;
(J) prescribing the conditions under which mailable matter
may be sent by post;
(g) for excluding non-mailable matter from the mails and
providing for the return to the sender or other disposition of
non-mailable matter;
I note that Parliament has stated that the Regu
lations are for the efficient operation of the
Canada Post Office, initially, and, secondly, for
carrying the purposes and provisions of the Act
into effect. It is also the first mention of non-mail-
able matter which is defined by reference to mail-
able matter by deducing that it has to be an item
that cannot be sent by post.
The definition of "mailable matter" in subsec
tion 2(1) indicates that it is only the Act or the
Regulations that should define what is mailable,
not the discretion of the Postmaster General or his
designate. If it was the intention of Parliament to
allow the Postmaster General to have an unlimited
discretion in this regard then the only mention
needed would be paragraph (p) in subsection 5(1).
The legislator having enumerated in the defini
tion and in the regulation section what is a mail-
able and a non-mailable matter, has in so doing
fettered the discretion as it cannot be exercised
except if it relates to items in the Act or in the
Regulations.
The provisions of paragraphs 7(1)(a) and (b)
deal with the use of the mail for unlawful
purposes:
7. (1) Whenever the Postmaster General believes on reason
able grounds that any person
(a) is, by means of the mails,
(i) committing or attempting to commit an offence, or
(ii) aiding, counselling or procuring any person to commit
an offence, or
(b) with intent to commit an offence, is using the mails for
the purpose of accomplishing his object,
the Postmaster General may make an interim order (in this
section called an "interim prohibitory order") prohibiting the
delivery of all mail directed to that person (in this section called
the "person affected") or deposited by that person in a post
office.
The legislative scheme becomes more apparent
upon reading this section. It is elaborate and
detailed and is indicative that where Parliament
wanted to give a broad discretion to interfere with
the operations of the mail then it has said so
specifically and exactly. It is submitted that this
exact reference to the use of the mails for unlawful
purposes is in keeping with the legislative intent.
When one considers the purpose of section 7 in
light of the entire Act, the powers provided are
understandable, but it is important to understand
that when Parliament wanted to restrict in some
way the proper flow of the mail specific authority
was enunciated.
Had Parliament intended for the Postmaster
General to have an absolute unfettered discretion
to interrupt the mails or to refuse to accept mail
because he did not agree with the contents of the
mail there would have been provided specific legis-
lation permitting such actions. This is what Parlia
ment did with respect to the use of the mails for
unlawful purposes, and the same could easily have
been provided had Parliament wanted the Post
master General to review the contents of flyers to
ensure that they met the Postmaster General's
standard of approval. There being no such specific
authority permitting the Postmaster General or his
designates to refuse to permit the mailing of mat
ters because the Postmaster General or his desig
nates do not agree with the contents of the mail
ing, then it does appear that the legislator intended
that all matters were mailable unless there were
specific restrictions by way of regulation.
To this point, we have considered only the provi
sions of the Act but the Act makes numerous
references to the use of regulations for the defini
tion of what is mailable or non-mailable matter. In
the Third Class Mail Regulations, SOR/78-899,
30 November, 1978, a flyer is defined as:
2....
... an item of householder mail not exceeding four ounces in
weight that is not in card or envelope form and that is not
enclosed in an envelope;
A flyer is the kind of mail we shall be dealing
with. The general authority for persons to use
third class mail is subsection 3(1) which states:
3. (1) Subject to subsection (2), an item of Domestic Third
Class Mail may be posted at the rate of postage set out for that
item in Schedule I if the item is posted in accordance with the
conditions in respect of that item set out in this Part.
When reference is made to section 9 of the
Regulations, it can be seen that there are some 13
conditions which must be met. If all of the techni
cal requirements of section 9 of the Regulations
have been met then there is the right to post a
third class mail in accordance with subsection
3(1), inasmuch as the flyer is a mailable matter in
accordance with the definition of mailable matter
in the Act.
What is left to determine is whether it is possi
ble or not that the flyer was a non-mailable
matter. In the Prohibited Mail Regulations,
C.R.C. 1978, Vol. XIV, c. 1289, non-mailable
matter is defined in section 2 as:
2....
... anything prescribed as non-mailable matter by section 3.
Section 3 which identifies what a non-mailable
matter is states in its introductory language the
purpose for which there is such a list of articles
from (a) to (j):
3. For the purposes of the Act and these Regulations, the
following articles are non-mailable matter:
None having any bearing in the matter at issue,
there is no need to quote the list.
The language of section 3 of the Prohibited
Mail Regulations is similar to the language of the
regulation section of the Act, i.e. section 6.
Section 3 of the Prohibited Mail Regulations
establishes a list of articles that are non-mailable
"for the purposes of the Act" and section 6 of the
Act establishes a list of objects for which a regula
tion can be made. Through the passage of these
Prohibited Mail Regulations there is defined what
is a non-mailable matter for the Act as well as the
Regulations. Although there is no specific defini
tion in the Act of a non-mailable matter, there is
reference in sections 5 and 6 to non-mailable
matters and prohibited mail. This Regulation
defines for the purposes of the Act under the
authority of paragraph 6(1)(a) what is non-mail-
able matter. The Regulation being made pursuant
to the power granted by the Act and there being
no conflict between that power and the Regulation
made by the exercise of that power, there cannot
be any question of priority of the Act. The Regula
tion was made pursuant to the power granted by
the Act.
Has the Postmaster General, once he has
defined what is a non-mailable matter, the right to
decide other matters which are enunciated in the
Prohibited Mail Regulations? Nowhere in the Act
or Regulations is there the authority to refuse to
accept mail because the Postmaster General or his
designate does not approve of the purport of the
mailing.
The facts, as I find them in the evidence and the
agreed statement of facts, are such that they either
comply or do not comply with the Third Class
Mail Regulations and consequently the matter
desired to be mailed was or was not a mailable
matter under the provisions of the Post Office Act
and its duly issued Regulations and furthermore
the exercise of discretion relating to the purport of
the article to be mailed could or could not be
exercised.
I find that the facts determinant to decide of the
matter, as shown by the evidence of the then
Postmaster in Campbellton, by the evidence of the
plaintiff and the agreed statement of facts and by
the written evidence filed are:
a) the article desired to be mailed was a flyer;
b) the flyer met all physical requirements of the
Regulations in order to be sent by the post;
c) the purport of the flyers for which post was
required was not to the liking of the authorities of
the Post Office Department as it pertained to the
operation of a Post Office;
d) the flyers were the object of a discretionary
decision of a duly authorized officer of the Post
Office to exercise discretion, made by invoking the
power of paragraph 5(1)(p) and subsection 5(4) of
the Act granting delegation as follows:
5. (1) Subject to this Act, the Postmaster General shall
administer, superintend and manage the Canada Post Office,
and, without restricting the generality of the foregoing, may
(p) decide in any particular case what is a letter, mailable
matter or non-mailable matter;
and
5....
(4) The Postmaster General may delegate any or all of the
powers, duties and functions set out in paragraphs (1)(p) and
(q) to assistant deputy postmasters general and to directors
of the Post Office Department.
e) the reasons given for deciding discretionarily
that the flyers were non-mailable matter are: the
nature of the text; the circumstances being a cam
paign against the management of the local office;
responsibility to the general public, the postal
system not being a vehicle for conveying labour
disputes.
The flyers read as follows:
10 REASONS WHY WE WANT THE POSTMASTER'S RESIGNA
TION
l. Four suspensions in 4 months without justification; 2. Bla
tant disregard for contractual rights; 3. Destroying morale and
productivity by constantly harassing and intimidating local
workers; 4. Completely destroying labour/management rela
tions by attacking the union and its representatives; 5. Union
representatives denied the right to defend fellow workers who
are unjustly disciplined; 6. Retaliating against local workers
who defend their rights, by changing their hours of work and
days off; 7. Human rights violated by orders concerning the
type of clothes which must be worn to work, and how hair and
beards must be cut; 8. Reducing the number off on vacation at
one time from 3 to 2 although this practice has been in effect
for at least the last 4 years; 9. Refusing to hire a sufficient
number of full-time employees to provide proper service; 10.
Delaying the sortation of pension checks and welfare checks by
refusing to offer overtime.
And the other item:
Whereas Postmaster Marc Savoie has undertaken a continuous
harassment and intimidation campaign against CUPW mem
bers in the Campbellton Post Office. Whereas in the past 4
months, three executive members of the Union Local have been
suspended for attempting to uphold their negotiated rights; and
Whereas Mr. Savoie has issued a number of dictatorial orders
violating both contractual and civil rights of Postal Workers in
Campbellton; and Whereas Mr. Savoie has denied members
both Local and Regional Union representation while unjustly
reprimanding these suspended employees; and Whereas Mr.
Savoie has destroyed all communications and Union/Manage-
ment relations in the Campbellton Post Office; and Whereas
this action has affected the morale to the extent that it is
affecting the service to the public; and Whereas the members of
the Campbellton Local have called for the resignation or the
release of Mr. Savoie without success in their efforts to resolve
this matter; and Whereas it may be necessary for the Camp-
bellton Local to resort to strike action in their efforts to find a
solution to this problem; Be it resolved that this Regional
Conference supports the Campbellton Local in all actions
necessary, up to and including a strike to have Mr. Savoie
removed from his position as Postmaster.
(N.B.: text of both flyers copied integrally, except for printing
disposition).
The Court does not have to decide if these flyers
amount to a defamation, and though it takes note
that the evidence discloses that no action was
taken following the distribution of these docu
ments hand to hand to the public, the comments
therein, over the radio and in the newspapers,
nevertheless for the purpose of the case, the con
tents of the texts are irrelevant to decide the issue
as indeed the provisions of section 7 of the Act,
dealing with the unlawful use of the mails have no
application there having been no action taken in
that sense.
Could the flyers, on account of their text, be
legally the object of the exercise of discretion
under the provisions of paragraph 5(1)(p) of the
Act or was such an exercise of discretion unreason
able or in fact a breach of the duty to act fairly?
As said previously, nowhere can there be found
in the Act or the Regulations, except in section 7,
not applicable here, dealing with the use of the
mails for unlawful purposes, anything that renders
an article non-mailable on account of its text or
contents.
The decision shows clearly that the contents
were the only subject that mattered for the exer
cise of the discretion.
At a question put by the Court, the Postmaster,
as he then was, answered that he would have
extracted the mailing for advice from the regional
and the national headquarters had the operation of
another post office been involved or even had he
known, if the same had been desired to be sent by
first class mail.
In the case Re Fisheries Act, 1914,' the Privy
Council (Lord Tomlin), on appeal from the
Supreme Court of Canada, at page 201, stated
with respect to the issuance of fishing licences:
Do the regulations rightly interpreted, give to the Minister any
discretion in granting or refusing a licence where it is applied
for by a qualified person.
The regulations in question affect both public and private
rights of fishing. There is no express provision for withholding a
licence where a qualified applicant submits a proper application
and pays the small prescribed fee, and in their Lordships'
judgment, there is nothing in the language of the regulations
giving rise to a necessary implication that the Minister has a
discretion to grant or withhold the licence.
Therefore, unless there is a specific regulation
permitting the Postmaster General to refuse to
permit the mail to go through, it is not to be
inferred from the language that it is permitted to
refuse the use of the mails. To the same effect
' [1930] 1 D.L.R. 194 (P.C.).
there is the case of The Labour Relations Board
of Saskatchewan v. The Queen, 2 where the Court
was considering an application of reconsideration
before the Labour Relations Board where, in a
unanimous judgment, Kerwin C.J.C., Kellock and
Estey JJ., concurring, Locke J. said at pages
86-87:
While this language is permissive in form, it imposed, in my
opinion, a duty upon the Board to exercise this power when
called upon to do so by a party interested and having the right
to make the application (Drysdale v. Dominion Coal Company
((1904) 34 Can. S.C.R. 328 at 336): Killam J.). Enabling
words are always compulsory where they are words to effectu
ate a legal right (Julius v. Lord Bishop of Oxford ((1880) 5
A.C. 214 at 243): Lord Blackburn).
In the case at bar, there are enabling words
which permit the plaintiff to mail the flyer in
question and, as a result, those words must be read
as being compulsory. It would take the strongest
language to permit the Postmaster General to
refuse to accept mail because he did not approve of
the contents.
It is my opinion that the Act and the Regula
tions establish a scheme wherein the public may
send mail through the post as third class, provided
that it meets certain specific regulations. The flyer
in question met all of the necessary physical and
technical regulations but because the defendant
did not approve of the contents of the mailing he
did not permit the mail to be processed. There is
no authority for the Postmaster General to refuse
to accept mail because he does not approve of the
contents. Paragraph 5 (1) (p) of the Act is not
broad enough to grant such an authority. Para
graph 5(1)(p) must be read in conjunction with
the provisions of section 6 that provide the instru
ment for deciding what is a letter, mailable or
non-mailable matter, which instrument if so decid
ed to use, is to issue a regulation, and also in
conjunction with the Prohibited Mail Regulations
and the Third Class Mail Regulations.
It is necessary to be cognizant of the Regula
tions which have been enacted to assist in the
2 [1956] S.C.R. 82.
proper implementation of the Act and there one
finds that the Regulations in no way provide au
thority for the Postmaster General to refuse to
accept third class mail because of the contents. All
of the foregoing is premised on the fact that the
materials did not in any way violate the provisions
of section 7 of the Post Office Act.
It is my considered opinion that the power to
decide what is a letter given the Postmaster Gener
al at paragraph 5(1)(p) is only one of making a
regulation as to what is the very same subject-
matter as in paragraph 6(a), to wit: what is a
letter, a mailable matter and a non-mailable
matter, and cannot be exercised unless through the
medium of regulations, not by a decision without
regard to regulations. Further, in my opinion,
there is no discretion that the Postmaster General
could exercise in the case at bar because if there
had been a discretion, it would have to be by way
of a regulation covering the purport or nature of
the text of the flyers. There is nowhere in the Act
nor in the Regulations any authority for refusing
mail on account of its contents except if it falls
within the ambit of section 7 dealing with the use
of the mails for unlawful purposes. There was
nothing shown to be unlawful in the flyers as no
action was ever taken and decided upon by the
Courts that could make the tenor of the flyers an
offence falling under section 7 of the Act.
If the Postmaster General and his employees
have divergent opinions about certain matters and
the latter cannot use the mail for purposes of
criticism because the employer refuses its use at
the whim of the moment, the same method of
proceeding could be applied by the Postmaster
General for any other divergent thinking or dis
pute between any other Department or Crown
Corporation and the employees, still in every
instance, be the medium the press, the radio or the
television networks, the media are very prone to
comment and to transmit the opinion of both
parties to the dispute. The Postmaster General has
no right to be immune from that risk because of
the fact that he is in control of the operation of the
mails whereas the other Departments or Crown
Corporations do not have at their disposal such an
effective way as the denial of the use of the post,
but still they could use such a refusal if the
defendants were to be right in their interpretation.
That method of proceeding, be it for the benefit
of the Postmaster General only, or for any other
Department or Crown Corporation, would amount
to a breach of duty to act fairly by the Postmaster
General in the operation of his Department and
maybe as well by other Departments or Crown
Corporations by resorting to such a drastic way of
proceeding.
That way of thinking, the breach of duty to act
fairly, by refusing mail that otherwise qualifies for
using the facilities of the Canada Post Office,
could, if it is found to be misconduct, be the object
of resorting to the provisions of paragraph 5(1)(e):
5. (1) Subject to this Act, the Postmaster General shall
administer, superintend and manage the Canada Post Office,
and, without restricting the generality of the foregoing, may
(e) remove or suspend or impose lesser penalties on any
postal employee for misconduct in office;
and could use that power to remove, suspend or
impose a lesser penalty.
It is amazing to find out that a decision of a
Postmaster General as to a letter, mailable or
non-mailable matter, requires that the Postmaster
be first enabled by a regulation, but that for the
removal, suspension or penalty imposed upon an
employee, no regulation is needed.
If there is the requirement of a regulation to be
enabled to be competent to decide what is a letter,
a mailable or non-mailable matter, except in the
case of unlawful purposes foreseen at section 7 of
the Act, surely there would have been much more
so a need for a regulation to decide what is a
mailable or non-mailable matter, on account of the
text or purport of the letter or the matter.
A perusal of the Third Class Mail Regulations
and of the Prohibited Mail Regulations convinces
me that these were issued to rule the physical
aspects or the physical nature of the matter
desired to be mailed but in no way their tenor
unless the tenor be falling under the provisions of
section 7 of the Act as being for an unlawful
purpose.
The contents, the purport of a matter desired to
be mailed, cannot be refused the use of the mails
unless it be for an unlawful purpose. To put
another interpretation on the Act is to permit a
censorship contravening the right granted to the
people of our country to exercise free speech.
I cannot not give great weight to the remarks of
the learned counsel for the plaintiff in connection
with the infringement of the right of free speech if
the application of the Act as was done in this case
were to be condoned by the interpretation the
Court might give to the provisions of the Act and
the Regulations.
It is not assistance that one can seek in the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III], for the interpretation of the
Post Office Act; it is in my view a duty to resort to
the Canadian Bill of Rights for the interpretation
of the Post Office Act and its Regulations as the
Canadian Bill of Rights recognizes rights that
existed.
Section 1 of the Canadian Bill of Rights states:
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist without discrimination
by reason of race, national origin, colour, religion or sex, the
following human rights and fundamental freedoms, namely,
(d) freedom of speech;
Section 2 states:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein- recognized and declared.....
I do not believe, and I do not wish to believe,
that the interpretation to be placed upon the Act
and Regulations should restrict the freedom of
speech as protected by the Canadian Bill of
Rights. An interpretation of the Post Office Act
which infringes upon the Canadian Bill of Rights
is to be avoided.
In the case of Re Pacific Press and The Queen, 3
at page 494 Nemetz C.J. said:
Where, then, does the matter stand in Canada? Counsel for
the petitioner submits that Parliament has accorded the free
press a special place under the Canadian Bill of Rights.
Accordingly, he argues, ss. 1(f) and 2, must be taken into
consideration and weighed by the Justice of the Peace before he
exercises his judicial discretion to grant the issuance of a search
warrant against an organ of the free press of this country. A
fortiori, he says, this fact is to be weighed in cases where the
premises of the newspaper are not the premises of those persons
accused of the crime. I agree with this submission.
So do I, and in my opinion a matter desired to
be mailed, meeting all the requirements of the Act
and its Regulations cannot be refused the use of
the post on account of the whim of the Postmaster
General without infringing the freedom of speech
that should be protected in the interpretation of
the Post Office Act unless specific provisions to the
contrary are enacted.
One of the leading cases on the Canadian Bill of
Rights, The Queen v. Drybones, 4 ought to be
consulted. Even the dissenting judgment of Pigeon
J. in this case indicated that the Canadian Bill of
Rights was to be used as a means of interpretation
in considering other federal statutes. Mr. Justice
Pigeon, at page 307, stated:
On the whole, I cannot find in the Canadian Bill of Rights
anything clearly showing that Parliament intended to establish
concerning human rights and fundamental freedoms some over
riding general principles to be enforced by the courts against
the clearly expressed will of Parliament in statutes existing at
the time. In my opinion, Parliament did nothing more than
instruct the courts to construe and apply those laws in accord
ance with the principles enunciated in the Bill on the basis that
the recognized rights and freedoms did exist, not that they were
to be brought into existence by the courts.
It is my opinion that the refusal to accept the
mail was an infringement of the right to free
speech and that the provisions of the Post Office
Act and its Regulations should be construed so as
to protect that right to its full extent unless the use
of that right is resorted to for an unlawful purpose.
Finally, there are strong policy considerations
which dictate that the Post Office ought not to
3 (1977) 37 C.C.C. (2d) 487 (B.C.S.C.).
4 [1970] S.C.R. 282.
have the authority to review mail to determine
whether or not its contents are acceptable. What
are the norms of acceptability? Strong exception
has to be taken to a comment by Mr. Savoie in his
testimony in answer to a question from the Court
at page 154 where it states:
Q. Let us say that a flyer has a very controversial issue on its
face. It is up to you to accept it or not as third class, is it?
Like abortion, for instance?
A. Yes.
If this interpretation of the authority of a post
master is correct, then there is a frightening
amount of power which exists in the Post Office.
If the interpretation of the defendant is correct,
then what would happen if a newspaper wrote an
editorial condemning the actions of the Post
Office? Would the Post Office then interfere and
remove that editorial from any newspaper which
the newspaper mailed through the Post Office?
Surely, this cannot be permitted to occur.
What would happen if the Jehovah's Witnesses
in mailing their Watch Tower magazine tried to
mail it in a Post Office where there was a postmas
ter who had strong views to the contrary? Could
he then arrange to have the material extracted
from the post subject to confirmation by the Post
master General or his designate? This is reminis
cent of the case Roncarelli v. Duplessis 5 .
What would happen if the Conservative Party
condemned the Liberals in a flyer to be distributed
to householders for the poor operation of the Post
Office? Would the Postmaster General want these
materials extracted from the mail because it might
present the Post Office in a poor light?
The answer to the foregoing questions must be
surely a resounding "no". The Post Office Act was
never intended to ensure that there were censor
ship rights vested in the Postmaster General. The
Act is defined and described sufficiently well to
limit non-mailable mail which falls in a certain
category. If Parliament had intended that the
Postmaster General would have powers in this
area, then there would have been specific reference
to it in the Act and Regulations. Broad, sweeping
statements which run counter to the intent of the
legislation ought not to be interpreted against a
5 [1959] S.C.R. 121.
person attempting to use the Act for its proper
purposes.
The Post Office is available to all Canadians to
use provided such use meets the conditions set out
in the Act and Regulations. The flyer of the
plaintiff met the conditions set out in the Act and
Regulations, and there is no discretion upon any
person in the Post Office Department to refuse to
accept the mailing.
In the present circumstances the remedy sought
by the plaintiff is a proper one. We read in
Mullan, Administrative Law, 2nd ed., at page
3-220:
There are difficulties in defining the precise scope of the
declaratory judgment as a public law remedy. However, the
situations in which it may be available can be divided into two
categories: (a) where it is sought as an original remedy to
declare a person's legal status or entitlement under a statute or
constitutive document; (b) where it is sought as a supervisory
remedy to declare that administrative decisions have been
wrongly taken.
The issue is significant and a declaration decides
the rights of the plaintiff with respect to the
interpretation of the Post Office Act.
Both counsel have put their case in a very able
manner, have delved into the matter thoroughly
and should be congratulated for their conduct of
their case and the witnesses on their part have
shown a true objective view of the facts in the way
they answered the questions and I have come to
the conclusion that the declaration sought ought to
go forth as prayed for.
Therefore, for all these reasons, the Court
declares that the defendants have a public duty to
accept for delivery all mail which complies with
the Post Office Act and Regulations.
The Court further declares that the defendant,
the Queen, and her servants have a duty to accept
for delivery the particular item which the plaintiff
submitted to the defendants for mailing.
The costs of this action to be paid by
defendants.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.