T-298-90
Distribution Canada Inc. (Applicant)
v.
Minister of National Revenue (Respondent)
INDEXED AS: DISTRIBUTION CANADA INC. v. M.N.R. (T.D.)
Trial Division, Strayer J.—Vancouver, October
23; Ottawa, November 14, 1990.
Customs and excise — Customs tariff — Application for
mandamus compelling Minister to collect duty required to be
paid under Tariff s. 4 — Customs officers exercising discre
tion re: collection of small amounts of duty — Departmental
policy not to collect duty of $1 or less — Applicant (organiza-
tion of independent grocers concerned by American competi
tion) lacking standing and no judicially enforceable duty —
Minister not refusing to enforce Tariff, but exercising discre
tion as to how Tariff enforced using limited resources.
Judicial review — Prerogative writs — Mandamus —
Application for mandamus compelling Minister to strictly
enforce Customs Tariff s. 4 requiring payment of duties on
goods entering Canada — Departmental policy not to collect
duty of $1 or less — Method of enforcement left to Minister's
discretion — Minister not refusing to enforce Tariff as evi
denced by existence of collection system — Acquiescence in
some failures to pay duty not attracting judicial review unless
consideration of totally irrelevant matters, bad faith or
improper motives.
Practice — Parties — Standing — Application for man-
damus compelling Minister to strictly enforce Customs Tariff
s. 4 requiring payment of duty on certain goods upon entering
Canada — Applicant (organization of independent grocers)
lacking standing as no judicially enforceable duty — Although
standing extended as to seeking declarations in non-constitu
tional cases, no comparable extension as to mandamus.
This was an application for mandamus to compel the Minis
ter of National Revenue to strictly enforce Customs Tariff,
section 4 which provides that customs duties shall be collected
on certain goods when imported into Canada. Customs officers
have not been collecting duty on most groceries purchased by
Canadians visiting the United States for less than 24 hours, a
period for which there is no legal exemption from payment of
customs duties. The applicant, an organization of independent
grocers, says that many of its members are suffering significant
revenue losses because of unfair competition from American
stores where prices and taxes are lower than those in Canada.
The customs officers exercise a discretion as to whether to
collect small amounts of duty, and it is departmental policy not
to collect duty of $1 or less. Even higher amounts may be
waived when other priorities dictate, i.e. when the volume of
traffic is such that collection would result in unacceptable
delays for travellers and traffic congestion on the American
side of the border. The issues were whether the applicant had
standing and whether the respondent owed a judicially enforce
able duty to the applicant.
Held, the application should be dismissed.
The applicant lacked standing to seek mandamus. Although
standing to seek declarations in non-constitutional cases has
been extended, there has been no comparable extension of
standing in respect of mandamus. Even if a more generous view
of standing should be taken, there remains the core need for a
judicially enforceable duty.
Sometimes judicially enforceable and non-enforceable duties
are distinguished by the party to whom the duty is owed. If a
public officer is statutorily obligated to do a particular thing in
particular circumstances for the benefit of particular persons,
then such persons can seek judicial enforcement of that duty. If
the public officer has a discretion as to what he does, how he
does it, or to. or for whom he does it, then there is no judicially
enforeceable duty to do a particular thing at a particular time
or in favour of a particular person: the remedies for non-feas-
ance or misfeasance are political, not judicial. Even though
Customs Tariff, section 4 provides that duties shall be levied,
the respondent has a discretion as to the means of enforcing the
law. That section imposes obligations not only on customs
collectors, but also on those who bring dutiable goods into
Canada. The Minister mast establish some credible collection
system, but acquiescence in some failures to pay customs duties
does not entitle the Court to intervene.
Mandamus is available in appropriate cases to require
enforcement of the law, but case law has distinguished between
requiring public officers to enforce the law where there has
been a complete failure to do so and telling an officer how to
enforce the law. The former is possible; the latter is not. The
Minister has not totally refused or failed to carry out any
enforcement of the Customs Tariff. He is actively enforcing the
Tariff through collections to the extent it is feasible to do so
given the resources allocated by Parliament, and it is within the
Minister's discretion to do so. He has considered the impact of
different levels of enforcement on American tourist traffic and
the impact on American border areas in respect of lineups for
entry into Canada. If those considerations had been totally
irrelevant to the proper administration of the Act or involved
bad faith or improper motives on the part of the Minister or his
staff, judicial review might have been appropriate.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44],s. 6.
Customs Tariff, R.S.C., 1985, c. C-54, s. 4.
CASES JUDICIALLY CONSIDERED
APPLIED:
Rothmans of Pall Mall Canada Ltd. v. Minister of
National Revenue (No. 1), [ 1976] 2 F.C. 500; (1976), 67
D.L.R. (3d) 505; [1976] CTC 339; 10 N.R. 153 (C.A.);
Regina v. Comr. of Police of the Metropolis, Ex parte
Blackburn (No. 3), [1973] Q.B. 241 (C.A.).
DISTINGUISHED:
Re North Vancouver (District of) et al. and National
Harbours Board et al. (1978), 89 D.L.R. (3d) 704; 10
C.E.L.R. 31; 7 M.P.L.R. 151 (F.C.T.D.); Friends of the
Oldman River Society v. Canada (Minister of Trans
port), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375
(C.A.).
CONSIDERED:
R. v. Metropolitan Police Comr., Ex parte Blackburn,
[1968] 1 All E.R. 763 (C.A.).
REFERRED TO:
Minister of Justice of Canada et al. v. Borowski, [1981]
2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; [1982] 1
W.W.R. 97; 12 Sask. R. 420; 64 C.C.C. (2d) 97; 24
C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v.
Canada (Minister of Finance), [1986] 2 S.C.R. 607;
(1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23
Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338.
COUNSEL:
Jack N. Cram for applicant.
Gunnar O. Eggertson for respondent.
SOLICITORS:
Cram & Wicks, Vancouver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Relief Requested
This is an application for the following relief:
A Writ of Mandamus or other relief in the nature thereof to
compel the Respondent, MINISTER OF NATIONAL REVENUE, to
comply with the provisions of Section 4 of the Customs Tariff,
in respect to the collection of the duties prescribed in that act
on Canadians returning to Canada with purchases of goods
from the United States when they have been out of Canada for
a period of less than 24 hours, and to comply with the provi
sions of the Customs Act, Export Import Permits Act and the
Canada U.S. Free Trade Agreement.
Facts
The applicant, Distribution Canada Inc., is a
non-profit organization whose members are
independent grocers, involving some 1,300 stores
located in five provinces including British
Columbia. It bargains on behalf of its members
with grocery suppliers in order to make its mem
bers more competitive with the larger grocery
chains. It also lobbies governments on behalf of its
members and handles various legal problems for
them. This applicant replaced the original appli
cants who were the owners of grocery stores. Due
in part to the adverse reaction of customers of
those stores resulting from the commencement of
this proceeding, the individual grocers were
replaced by the present applicant. The Crown
agrees that if the original applicants had standing
to bring this proceeding then so does Distribution
Canada Inc.
The complaint of the applicant is that the Min
ister of National Revenue is not strictly enforcing
the customs tariff, as he is required in its view to
do by section 4 of the Customs Tariff' That
section provides:
4. (I) Subject to this Act and the Customs Act, chapter
C-40 of the Revised Statutes of Canada, 1970, there shall be
levied, collected and paid on all goods enumerated, or referred
to as not enumerated, in Schedule II, when imported into
Canada or taken out of warehouse for consumption therein, the
several rates of duties of customs, if any, set opposite each item
or charged on goods as not enumerated, in the column of the
tariff applicable to the goods, subject to the conditions specified
in this section and sections 5 to 16.
In particular, it is said that no duty is being
collected on the majority of grocery purchases
made in the United States by Canadians going to
that country for less than twenty-four hours, a
period for which there is no legal exemption from
payment on dutiable items. Much of the evidence
concerned five particularly busy border points in
British Columbia, four of which are the busiest in
Canada for "small collections" (collections of duty
and taxes on non-commercial imports). There was
also some evidence suggesting a laxity of enforce
ment at certain points on the Ontario-U.S. border
as well. The applicant claims that many of its
member grocers suffer a significant loss of busi
ness because of what they regard as unfair compe
tition from U.S. stores near the border where
commodity prices and taxes are lower than those
in Canada.
The respondent Minister admits that his officers
exercise a discretion as to whether they bother to
collect small amounts of duty, and that it is the
Department's policy not to make any collection
where the amount of duty owing is $1 or less. It is
common ground that the policy of the Department
is correctly set out in a letter of August 3, 1989
from the Minister of National Revenue, the Hon
ourable Otto Jelinek, to Mr. Gerry Prins, the
President of the applicant. The key paragraph
states as follows:
At the outset, I should explain that it is my department's
policy that Customs inspectors not refer travellers for duty
R.S.C., 1985, c. C-54.
payment on their goods when the amount owing is $1.00 or less.
In addition, higher amounts may be waived when other priori
ties dictate. In cases where the volume of traffic results in
unacceptable delays, for example, or when interdiction activi
ties are under way, it is recognized that Customs inspectors
might waive assessments of $2.00, $3.00 and $4.00 or more,
depending upon conditions at the time and their ability to
efficiently process traffic.
In reply to this Mr. Prins sent a letter to the
Minister on October 24, 1989 strongly requesting
the Minister to enforce the customs tariff uniform
ly. He said, inter alia,:
It is not your mandate which laws to uphold and which not. We
would therefore respectfully request that you move immediately
to rectify this worsening problem.
A similar request was sent on December 19, 1989.
Similarly, letters were sent to the Minister by the
solicitors for the applicant on December 27 and
December 28, 1989 making a formal demand that
the Minister "strictly enforce" the Customs Tariff
. with respect to duties and taxes chargeable to Canadians
for goods imported into Canada from the United States when
they have not been out of the country long enough to exempt
their purchases from such duty.
The other evidence adduced by the parties does
not appreciably assist me in dealing with the essen
tial legal questions here, apart from showing that
there are honest differences of opinion as to wheth
er the customs tariff can be strictly enforced and,
if so, how. Evidence presented by the applicant,
while to a considerable extent anecdotal, includes
statistics which it says demonstrates that at five
B.C. border points duty is collected from only
about twelve percent of vehicles bringing in goods
subject to duty. There was also some evidence to
suggest that the additional revenues that could be
gained from strict enforcement would far exceed
the cost of such enforcement. On the other hand,
the evidence of the respondent seriously questions
the validity of the applicant's statistical analysis. It
suggests that in many of the instances cited in the
evidence of the applicant of returning Canadians
supposedly not being required to pay duty, the
goods which they were importing were subject to
no duty or to a negligible amount of duty. Further,
the respondent's evidence suggests that strict
enforcement would be impossible or would be
achieved at the cost of unacceptable lineups, great
delays for travellers, and traffic congestion on the
American side of the border to which there would
soon be strong objection. Such obstructions at the
border, it is said, would dismay and discourage
U.S. tourists coming to Canada even though they
would not be subject to duty, and in extreme cases
could be seen to violate the right of every Canadi-
an to enter Canada as guaranteed by section 6 of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]]. With
respect to the cost of strict enforcement, it is
suggested in some evidence of the respondent that
the costs of such collections could exceed the
revenue to be gained. Further, the respondent says
that departmental resources, in terms of office and
parking facilities and staff, are now stretched to
the limit at busy border points. Even if strict
enforcement were to yield more revenue, such
revenue would not benefit the respondent's
Department unless Parliament voted additional
funds for customs administration: the Department
of National Revenue can only spend such funds as
are appropriated to it by Parliament, no matter
from where those funds are generated. There is
also conflicting evidence as to whether past experi
ments with strict enforcement have had the effect
of increasing or decreasing the lineups.
Issues
The respondent objects to the issue of man-
damus on several grounds. I will deal with only
two of these. It is contended that the applicant has
no standing to seek mandamus and that there is no
duty owed by the respondent to the applicant
which is enforceable by the Court.
Conclusions
I believe that the respondent is correct in his
submissions and that they are sufficient to defeat
the case of the applicant.
A leading authority in this Court is that of
Rothmans of Pall Mall Canada Ltd. v. Minister
of National Revenue (No. 1). 2 In that case the
applicants sought prohibition, mandamus, certio-
rari, and an injunction to set aside a policy of the
Department of National Revenue of not counting
the length of a filter tip in assessing excise tax or
customs duty on cigarettes on the basis of their
length. The applicants, while not making ciga
rettes with such tips themselves, were opposed to
their competitors having the advantage of this
favourable ruling with respect to the calculation of
tax or duty on their products. On behalf of the
Federal Court of Appeal, Le Dain J. held:
The decisions of the Supreme Court of Canada in Thorson v.
Attorney General of Canada [1975] 1 S.C.R. 138, and McNeil
v. Nova Scotia Board of Censors (1975) 5 N.R. 43, were urged
upon us as indicating a relaxation of the requirement of locus
standi. A careful reading of these decisions shows, in my
respectful opinion, that the principal consideration governing
them is the importance in a federal state of opportunity to
challenge the constitutional validity of statutes. No such con
sideration is applicable here. It was suggested that there is a
comparable consideration of public policy in broad access to
challenge the validity of administrative action, and this view
finds some support in the recognition of a judicial discretion to
permit a stranger to bring certiorari or prohibition in certain
cases. The present case is not one that raises any question of the
limits of statutory authority. The most that is raised is a
question of administrative interpretation that the authorities
are obliged to make in their application of the governing
statute. Indeed, the action in this case is not of the kind that is
subject to challenge by certiorari or prohibition. There is no
decision here determining rights or obligations in an individual
case, much less a determination of those of the appellants. See
Landreville v. The Queen, [1973] F.C. 1223. There is no duty
to act judicially or fairly in a procedural sense. In so far as
mandamus is concerned, there is no public duty of any kind
that the appellants have a right to enforce. The duty of the
respondent officials under section 202 of the Excise Act is one
owing to the Crown rather than the appellants. Cf. The Queen
v. Lord Commissioners of the Treasury (1871-72) 7 L.R.Q.B.
387. In so far as injunction is concerned, apart from the
question of whether it may lie in certain cases against servants
of the Crown, there is no interference with the rights of the
appellants such as would entitle them to bring it against public
2 [1976] 2 F.C. 500 (C.A.).
authorities. Cowan v. C.B.C. [1966] 2 O.R. 309. 3 [Emphasis
added.]
Although since that time there have been further
decisions of the Supreme Court of Canada extend
ing standing to seek declarations in non-constitu
tional cases where the issue was alleged conflict
between the statute in question and the Canadian
Bill of Rights [R.S.C. 1970, Appendix III]' or
alleged failure of a Minister to comply with a
federal statutes there has been no comparable
extension of standing in respect of mandamus.
There was a tendency in mandamus cases for
the issues of standing of the applicant, and the
existence of a judicially enforceable duty, to
become intermixed. But even if a more generous
view of standing should be taken in the light of the
widening of that concept in respect of other public
law remedies, there still remains the core need for
a judicially enforceable duty to be identified.
Sometimes the distinction between judicially
enforceable and non-enforceable duties is put in
terms of the party to whom the duty is owed. It is
said that if there is a "duty to the legislature" then
it may be judicially enforceable, whereas if there is
a "duty to the Crown" it is not enforceable. This is
perhaps another way of saying that if a public
officer is obliged by statute to do a particular thing
in particular circumstances for the benefit of par
ticular persons, then such persons can seek judicial
enforcement of that duty. If on the other hand the
public officer has been left a discretion as to what
he does, how he does it, or to or for whom he does
it, then there is no judicially enforceable duty to do
a particular thing at a particular time or in favour
of a particular person: if the officer is responsible
to anyone, he is responsible to the political
branches of government either directly or indirect
ly and the remedies for non-feasance or misfeas
ance are political, not judicial. Thus, in the quota
tion from the Rothmans case, supra, when it is
said that the duty of the respondents there was
"one owing to the Crown rather than the appel-
3 Ibid, at pp. 510-511.
° Minister of Justice of Canada et al. v. Borowski, [19811 2
S.C.R. 575.
5 Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R.
607.
lants" it is recognized that the Minister of Nation
al Revenue and his officials have a discretion as to
the interpretation they give to "cigarettes" which,
unless it can be somehow demonstrated to be
inconsistent with the statute, cannot be second-
guessed by the Court for the benefit of a manufac
turer which suffers competitively from that
interpretation.
Even though in the present case section 4 of the
Customs Tariff requires that "there shall be
levied, collected and paid on all goods enumerated
. the several rates of duties of customs" [Under-
lining added.] I believe that the respondent has a
discretion as to the means of enforcing the law. It
will be seen that the obligations imposed by that
section are imposed not only on the collectors of
customs but also on those who bring dutiable
goods into Canada on which, it is said, the appro
priate duties "shall be ... paid". No doubt to
respond to his obligation under section 4 the Min
ister must in good faith establish some credible
system of collection but if his system is not "leak-
proof" or even if he acquiesces in some failures to
pay customs duties, this does not entitle the Court
to assume control as to how duties are to be
collected.
It is true that mandamus is available in appro
priate cases to require enforcement of the law. It
appears to me, however, that a distinction has
generally been drawn in the jurisprudence between
a court requiring a public officer to enforce the
law in cases where he has failed completely to do
so, on the one hand, and a court telling a public
officer how to enforce the law on the other. The
former is possible but the latter is not. I believe the
most pertinent mandamus cases cited by the appli
cant can be distinguished on this basis. In Re
North Vancouver (District of) et al. and National
Harbours Board et al. 6 the applicants were one
hundred and forty-two residents of Deep Cove
(part of Vancouver Harbour) and the adjacent
municipality which is the Corporation of the Dis
trict of North Vancouver. They had asked the
National Harbours Board to enforce the National
Harbours Board Act [R.S.C. 1970, c. N-8] and
by-laws made thereunder against vessels and
houseboats illegally moored in the waters of Deep
Cove. In response to demands by the applicants for
enforcement, the Board said that it was taking no
action pending the recommendation of a commit
tee of the Greater Vancouver Regional District
which, it will be noted, had no direct jurisdiction
or responsibility in respect of the Harbour. In
granting mandamus, Collier J. of this Court said:
In my view, the Board has a public duty to administer,
manage and control Vancouver harbour in accordance with s. 7
of the Act and By-law A-1. It does not have a discretion as to
whether it will, or will not, perform that duty. It must perform
it, otherwise the legislation and its scheme become useless. The
Board has, for the most part, and within the limits of the
statute and by-laws, a discretion as to how it carries out its
duty. A Court can compel a body, such as the Board, to carry
out its duty. It cannot direct a body, where it has a discretion in
respect of mode, as to how it shall carry out the duty.?
Thus the distinction was clearly drawn between
requiring the Board to take some enforcement
action, which the Court could do, and telling it
how it should enforce the law, which the Court
could not do.
A rather similar situation existed in Friends of
the Oldman River Society v. Canda (Minister of
Transport) 8 where the Federal Court of Appeal
6 (1978), 89 D.L.R. (3d) 704 (F.C.T.D.).
7 Ibid, at p. 712.
8 [1990] 2 F.C. 18 (C.A.).
reversed the Trial Judge [ [ 1990] 1 F.C. 248
(T.D.)] and granted certiorari to the applicant
[appellant] to quash a decision of the federal
Minister of Transport granting permission under
the Navigable Waters Protection Act 9 to the prov
ince of Alberta to construct a dam on the Oldman
River. It also granted mandamus requiring the
Minister of Transport to comply with the Environ
mental Assessment and Review Process Guide
lines Order 10 in deciding whether to give such
permission. It may be noted that the Trial Judge
expressly assumed, without deciding, that the
applicant, an environmental group, had standing to
seek mandamus. The Court of Appeal did not
expressly address questions concerned with stand
ing or the availability of mandamus in such cir
cumstances. It is clear, however, that the Court
issued mandamus, not to tell the ministers how to
carry out an environmental review but to tell them
that they must conduct such a review as required
by the Guidelines Order which they had failed to
do up to that point.
Counsel for the applicant in the present case
relied in part on the decision in R. v. Metropolitan
Police Comr., Ex parte Blackburn." In this case
the applicant, Mr. Blackburn, a concerned citizen,
sought mandamus to require the Metropolitan
Police Commissioner to enforce the anti-gambling
laws. Because of great uncertainty as to the proper
interpretation of those laws, the Commissioner had
sent a confidential policy directive to senior offi
cers of the metropolitan police to the effect that
surveillance should not be carried out in gambling
clubs without special approval and that such sur
veillance was not justified unless there were com
plaints of cheating or reason to suppose that a
particular club was being frequented by criminals.
The result was that big gaming clubs were allowed
to carry on without interference by the police.
Although this directive was withdrawn before the
decision of the Court of Appeal, the Court indicat
ed that it would have interfered by appropriate
R.S.C., 1985, c. N-22.
10 SOR/84-467.
" [1968] 1 All E.R. 763 (C.A.).
proceedings had the directive not been withdrawn.
In particular, Lord Denning, M.R. suggested that
if a chief constable were to issue a directive that
there were to be no prosecutions for stealing any
goods of less than £100 in value, the Court could
countermand such a directive because the chief
constable would be failing in his duty to enforce
the law. It should be noted that what the Court of
Appeal said in this case was obiter dicta because
the gambling club surveillance directive had
already been withdrawn. Further, all of the judges
expressed doubts that the applicant had standing
to obtain mandamus and clearly refrained from
deciding that issue in his favour. Moreover, in a
later decision in the Court of Appeal where Lord
Denning, M.R. also presided, Regina v. Comr. of
Police of the Metropolis, Ex parte Blackburn (No.
3) 12 the Court of Appeal refused to issue man-
damus to the Metropolitan Police Commissioner
requiring him to enforce the law against the publi
cation and sale of pornographic material. In this
case there was also a policy directive that charges
should not be laid in respect of the publication and
sale of such material except by express direction of
the Director of Public Prosecutions. Certain
enforcement action was however being taken by
the police, in particular the seizure of material
thought to be offensive. The seized material was
submitted to the Director of Public Prosecutions
for review, then either returned to the owner if
thought inoffensive, or retained pursuant to a dis
claimer to it granted by the owner. Failing such
disclaimer, a forfeiture order might be sought in
the courts. In refusing in effect to order by man-
damus a general policy of prosecutions instead,
Lord Denning said:
In Reg. v. Commissioner of Police of the Metropolis, Ex
parte Blackburn [1968] 2 Q.B. 118, 136, 138, 148-149, we
made it clear that, in the carrying out of their duty of enforcing
the law, the police have a discretion with which the courts will
not interfere. There might, however, be extreme cases in which
he was not carrying out his duty. And then we would. I do not
12 [1973] Q.B. 241 (C.A.).
think this is a case for our interference. In the past the
commissioner has done what he could under the existing system
and with the available manpower. The new commissioner is
doing more. He is increasing the number of the Obscene
Publications Squad to 18 and he is reforming it and its adminis
tration. No more can reasonably be expected." [Emphasis
added.]
Consistently with these decisions, I believe the
present case is not one where the Minister of
National Revenue has totally refused or failed to
carry out any enforcement of the Customs Tariff
Instead, it is his policy and practice to enforce that
Act through collections to the extent that it is
feasible to do so, given the resources made avail
able to him by Parliament through the funding of
staff and facilities. He has also obviously taken
into account the impact of different levels of
enforcement on U.S. tourist traffic into Canada
and the impact on U.S. border areas in respect of
lineups for entry into Canada. The law is clear
that, if these considerations were completely irrele
vant to the proper administration of the Act or if
they involved bad faith or improper motives on the
part of the Minister and his Department, they
might invite some sort of judicial review. But I can
see nothing of the sort in the explanations given by
the Minister for his policy of not collecting every
possible dollar in duty from those visiting the
United States for less than twenty-four hours. The
point was well put by Lord Denning, M.R., in
somewhat Churchillian prose in the second Black-
burn case as follows:
If the people of this country want pornography to be stamped
out, the legislature must amend the Obscene Publications Act
1959 so as to make it strike unmistakeably at pornography: and
it must define the powers and duties of the police so as to
enable them to take effective measures for the purpose. The
police, may well say to Parliament: "Give us the tools and we
will finish the job." But, without efficient tools, they cannot be
expected to stamp it out. Mr. Blackburn has served a useful
purpose in drawing the matter to our attention: but I do not
think it is a case for mandamus. I would, therefore, dismiss the
appeal. ' 4
13 Ibid, at p. 254.
14 Ibid, at p. 254.
I therefore conclude that the Minister is actively
enforcing the Customs Tariff and that it is within
his discretion as to how this is done. There is
nothing to suggest that that discretion is being
exercised other than in good faith and for proper
motives. The Court cannot direct the Minister by
means of mandamus as to how he is to conduct
enforcement. In the exercise of his discretion the
Minister is responsible to the political branches of
government and is not answerable to the applicant
or the Court.
The application is therefore dismissed.
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.