Judgments

Decision Information

Decision Content

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.