Senseless and grotesque

Your Ward News (YWN) is a publication of unremitting offensiveness – in truth it is little more than a senseless and grotesque cartoon. Yet that is largely beside the point under the Charter. Though it took time and a concerted campaign by those offended by YWN’s existence, the law’s force was eventually brought to bear on its publishers. On May 26, 2016, the Minister of Public Works issued an Interim Prohibitory Order (IPO) under s.43(1) of the Canada Post Corporation Act (CPCA). This order banned YWN’s publishers, James Sears and Laurence Ste. Germaine, from using Canada’s postal service for all purposes, including the likes of letters to an MP, bill paying, and holiday cards. On January 24, 2019 – some 2½ years later – Sears and Ste. Germaine were convicted under the Criminal Codeon two counts of promoting hatred, respectively, against women and Jews.

The criminal prosecution and IPO directly engaged the constitutional rights of YWN’s publishers under s.2(b) of the Charter of Rights and Freedoms. While procedural protections are embedded in the criminal process, the CPCA provides little more than gossamer fairness to anyone who challenges an IPO. Quite apart from the ban itself, the s.2(b) rights of Sears and Ste. Germaine were severely compromised by the CPCA process of review.

Intolerating freedom

In principle, s.2(b) protects all expressive activity, no matter how offensive or repulsive, as the very concept of freedom would be meaningless under any other view. Yet s.2(b) is too often a guarantee in name only: in practice, Canada’s democratic community shows scant tolerance for those who hold objectionable views and spread objectionable messages. Ironically, the community’s intolerance of such views fundamentally reflects an intolerance of freedom itself.

Instead, freedom demands and rests on an ethic of democratic humility, which can be thought of as a form of resistance to righteousness and a willingness to let unpopular others think, speak, and challenge, even and especially in radical ways or tones of voice. Regrettably, this virtue – both historically and at present – is in short supply.  Rather, those who are feared or disliked are marginalized and their freedom placed in jeopardy.

In all this a vital point in discourse on expressive freedom can sometimes be missed – that freedom is as profoundly threatened by a defective process as by a prior restraint or criminal conviction. The point is well illustrated by the CPCA process.

A chronology of delay

In authorizing the Minister to issue prohibitory orders banning access to Canada Post, the CPCA pays minimal attention to process values. In this instance, neither the Minister nor the YWN Review Board was under any statutory imperative to comply with standards for a fair and timely process. As the Board put it somewhat backwardly, stating that “[t]here is nothing” in the legislation “which would compel the Minister to disregard Charter values when issuing an IPO”.[1]

A person who is subject to an IPO (“affected person”) can request a review of the Minister’s order. Under s. 44 the Minister has a duty to appoint a review board, though not to do so in any fair, timely, or expeditious manner. Here the Minister did not fulfill this duty until December 9, 2016, did not inform Sears and Ste. Germaine of the appointments, and did not announce the Board until January 9, 2017.  The Minister never explained to the Board or the affected persons why it took more than 6 months simply to appoint a panel.

The YWN Review Board held its first hearing on April 25, 2017, about 5 months after being appointed and almost one year after the IPO was issued. The Review Board did not make a decision on preliminary issues until November 2017, did not hear submissions on the IPO until January 2018, and did not submit its Report to the Minister until August 29, 2018. All told, the Board’s review of the Minister’s IPO took almost 21 months to complete.

During this period, YWN’s publishers were under an interim ban not to use Canada’s national public service for any purpose, including those that were indisputably innocent. In addition, Sears and Ste. Germaine were put to the expense of appearing at and defending their constitutional rights in an extended process that granted YWN’s opponents full rights of participation.

Almost 30 months passed from the time the IPO was issued, on May 26, 2016, to November 15, 2018, when the Minister released the Review Board’s Report and issued a Final Prohibitory Order (FPO) banning the publishers from distributing YWN through Canada Post.[2]The key signposts in this chronology of delay are:

May 26, 2016                                Minister’s IPO

June 6 & 9, 2016                           Sears and Ste. Germaine request a review of the IPO

December 9, 2016                        Minister appoints a Review Board

December 16, 2016                       Sears and Ste. Germaine contact the Minister

January 9, 2017                             Minister announces the Review Board

April 25, 2017                               Review Board’s first hearing

August 9 & 10, 2017                    Review Board’s hearing on preliminary issues

November 2, 2017                        Review Board’s decision on preliminary issues

Jan 3, 22-26; Feb 26 2018            Review Board hearings

August 29, 2018                           Review Board Report to Minister

November 15, 2018                      Minister releases Report and issues FPO

Process matters

The YWN Review Board was handicapped from the start. Section 44(1) of the CPCA sets no criteria for panel membership, except to specify that one of three of its members must be a lawyer. Given the gravity of the issues at stake and level of public interest, the panel required expertise or experience in one or more of regulatory decision-making, the criminal law, and Charter of Rights and Freedoms. At the very least, the panel should have been assisted by counsel; had counsel been retained, the YWN Board might have avoided a protracted process and conducted a review that stood on firmer legal and constitutional ground.[3]

The Minister delayed the process by not appointing a Review Board in a timely way and was responsible for other delays and deficiencies. Though required to do so under s.43(1) of the CPCA, at no time did the Minister provide reasons for the IPO. The May 26, 2016 order simply stated that the Minister had reasonable grounds to believe that Sears and Ste. Germaine were using Canada Post to commit criminal offences (i.e. hate propaganda and defamatory libel). The Minister never provided the particulars of YWN issues or content that provided grounds for the IPO.[4]

The Board’s Ruling on Preliminary Issues found that the Minister violated her statutory duty to provide reasons and held that the breach of duty was not cured. At that point, the panel should have terminated the hearing, advised the Minister that her IPO was in breach of the CPCA, and informed her that the order could not legally be sustained.[5]The Board chose instead to deflect the problem, citing fairness to the interested parties – “participants would be denied a voice on topics about which many feel strongly”[6]– and faulting counsel for Sears and Ste. Germaine for changing her position.[7]The Ruling stated that the IPO is a serious matter, noted that the affected persons “are not given any opportunity to address the complaint except under this review process”, and acknowledged that that for the process to be meaningful they should be informed of the particulars of the Minister’s reasonable grounds. Having made those findings, the Board stated that the process would continue nonetheless, because the failure to provide reasons could be dealt with in the final report and recommendations.[8]

From that point on, Sears and Ste, Germaine could not receive a fair hearing. In the absence of reasons, there was no evidence of the grounds the Minister relied on in issuing the postal ban.[9]This made it impossible for the Board to reviewher decision and divine what grounds she could or might have had for ordering the IPO. Parenthetically, the Minister’s failure to provide reasons strongly suggests that she gave no consideration to the constitutional rights of Sears and Ste. Germaine, as she was required to do.[10]

In the absence of reasons or evidence from the Minister, the Review Board allowed interested parties to fill the gap. The Minister’s case for the IPO was made by others who were granted standing to support the IPO, and provided extensive written and oral evidence and submissions throughout. The Report plainly and explicitly relied on that work in concluding that the Ministerhad reasonable grounds to order the IPO.[11]

This unusual turn of events followed from the Review Board’s decision to recognize and grant standing to 16 individuals, 15 interested persons, and 10 community organizations and public interest groups. In this way, a review of the Minister’s decision was transformed into an open forum for YWN’s opponents to dominate the proceedings.

This “big tent” approach to CPCA review contributed to an unwieldy and protracted process. In practice, it imposed a burden on Sears and Ste. Germaine to respond to multiple parties and their interpretation of the criminal law – a burden that would never be imposed on them in a criminal setting. More fundamentally, the Board turned the process on its head, transforming a review of the Minister’s IPO for the benefit of the affected persons into an opportunity for YWN’s opponents to advance their interpretation of the Code’s hate propaganda and defamatory libel provisions.

Absolute ban and prior restraint

Throughout, the scope and gravity of the postal ban was minimized by the Attorney General and third party organizations who maintained that the IPO was not a prior restraint. Their logic was that because YWN could be distributed by other means the Minister’s IPO was not a restraint and did not violate the Charter. Such a claim misunderstands the nature and seriousness of a prior restraint.

Prior restraint is an egregious form of censorship that occurs when the state halts expressive activity, in advance, and to prevent it being communicated. In other words, the exercise of a right is pre-empted or blocked before it can be known whether or not the material – when published or distributed – will be constitutionally innocent or transgressive. The gravamen of prior restraint is an act of censorship by the state, which is exactly what the Minister’s IPO did by prohibiting Sears and Ste. Germaine from all use of the postal service. As a matter of law it was therefore irrelevant that YWN might be distributed elsewhere, like on Malta, the internet, or Mars.

The definition of a prior restraint is well established in law and the issue should not have been contentious.  In the absence of expertise, the Board struggled with it and ultimately hedged, finding that s.43(1) “might” authorize a prior restraint and providing a muffled conclusion that, in the “narrow” context of the postal service, the standard was rigorous to ensure that IPOs are not issued “capriciously”.[12]Note, however, that the legislation presupposes the Minister’s compliance to give reasons.

The Board also found that IPOs are meant to be temporary – though that is not the way s.46’s statutory presumption works – and are subject to comprehensive review – but only when review is requested within 10 days and the Minister sees fit to appoint a panel. Despite those problems, the Board readily concluded that an absolute ban is not unconstitutional as an interim measure, adding that in any case the affected persons could have asked the Minister to consent to exceptions.[13]This, it bears noting, is the same Minister who did not provide reasons, delayed appointment of the review board, and failed to advise the affected persons when a panel was appointed.

Also minimized during the hearing was the severity of the interference with constitutional rights. The Minister’s IPO gratuitously banned Sears and Ste. Germaine from using Canada Post for personal and business purposes unrelated to YWN. Curiously, this issue was deflected to a side discussion of whether the CPCA granted the Minister discretion to narrow the order.[14]Actually, the point does not matter so much. If she had discretion, the IPO gratuitously violated the rights of Sears and Ste. Germaine by denying them all access to Canada Post for almost 30 months. And if not, the IPO was just as damning because the Minister issued an absolute ban without reasons and without apparent regard for the constitutional rights at stake.  Either way the Minister’s IPO was seriously in breach of s.2(b) of the Charter.[15]

More important than a ban on the use of Canada Post was the shabby process that began on May 26, 2016 and did not end until November 15, 2018. This chronology of delay and irregularity is compelling demonstration that, without procedural fairness, the Charter’s guarantee of expressive freedom is little more than a façade or shell. Quite apart from the ban itself, the process surrounding the IPO was a travesty of fairness.

To the Review Board’s credit

The Review Board called attention to the Minister’s unexplained delay in appointing a panel but defended its own process as being beyond reproach.[16]As discussed, the Board made choices and decisions that extended and distorted the review process to the disadvantage of Sears and Ste. Germaine.

To the Board’s credit, the Report recommended that the CPCA be amended or regulations enacted to address some of the statute’s deficiencies. The Review Board’s action items include the time limit for the appointment of a review board, standards of proof (i.e., who has the onus at such hearings), and the remedial powers of the Minister under s.43(1) and 45(3).

A mandate for change

While helpful, the Board’s recommendations reveal a limited grasp of what went wrong in this process.

A primary concern arises from the framework for IPO and FPOs. By statutory presumption, the Minister’s order becomes final ten days after notice of an IPO is sent, without any further steps or process (s.46). In other words, the Minister can conclusively ban – or censor – a person from Canada Post simply by giving notice of the order. There is no right of appeal 10 days after a FPO is issued. Meanwhile, where an “affected person” requests a review of the IPO, the Minister is not required to appoint a review board in a timely manner or within any time frame whatsoever. At a minimum, the statute should require appointment of a review board within a specified time period, and should provide a means of appeal from a FPO.

Problematically, the CPCA provides little or no framework for the review process, leaving it largely to the discretion of an ad hoc panel that might not have adjudicative or subject matter expertise. In appropriate circumstances, it may be necessary and justifiable for the Minister of Public Works to issue an IPO or FPO. Yet the exercise of this rare and draconian power must comply with the rule of law, including standards of procedural fairness. For the Review Board to excuse the Minister’s failure to provide reasons and proceed anyway, granting multiple parties standing to address the core issues, and then decide those issues without evidence from the decision-maker, was manifestly unfair to Sears and Ste. Germaine. Though interim and final prohibitory orders are relatively infrequent under the CPCA, the YWN hearing showed how a process can go awry when an inexperienced panel is required to manage a complex process in the absence of procedural framework or direction.

The CPCA’s provisions on prohibitory orders have not been amended since the Charter was enactedin 1982. These provisions are grossly deficient to manage the administrative and constitutional elements of a review process that in many cases will affect constitutional rights. Tinkering and modest reforms will not be sufficient; what is called for, instead, is an overhaul of the CPCA’s provisions for making prohibitory orders.