Canada Post’s refusal to deliver a sex-positive pamphlet violated the Sex Party’s freedom of expression, Vancouver’s Federal Court heard, Oct 15-17.
The Sex Party filed a complaint against Canada Post last year, after it refused to deliver the party’s campaign pamphlet through its unaddressed admail program.
The Sex Party is a registered political party in BC; the pamphlet outlined its Politics for a Sex-Positive Future and contained a sexual IQ test and several sex-positive images.
Canada Post rejected the pamphlet because, according to its admail policy, it “will not knowingly deliver offensive articles that contain sexually explicit material.”
Sex Party leader John Ince told judge Michel Beaudry that Canada Post used vague guidelines to censor his party’s legitimate freedom of expression.
The terms “offensive” and “sexually explicit” are too vague to justify such a refusal of service, Ince argued.
“That ‘sexually explicit’ is all that is required to prohibit it is Draconian and infringes on freedom of expression,” he charged.
Canada Post lawyer Neal Steinman countered that “sexually explicit” is not a vague term and offered the following definition: representations of nudity suggestive of sexual activity, representations of sexual intercourse, and written text describing sexual acts in a way that is more than technical all fall under the umbrella of sexually explicit, he said.
The Sex Party’s brochure is sexually explicit because it shows an image of an erect penis and a picture of two people engaging in what could be interpreted as sexual intercourse, he explained.
“This is not the type of dry, everyday photos that might be accepted for general delivery. We say the graphic images on the applicant’s pamphlet cross the line.”
Ince told the court it’s not an option for the Sex Party to put its flyers into envelopes marked “adult material,” as suggested by Canada Post.
“Nothing in the material purports to be aimed specifically at adults. We want young people to have access to our content if they are interested,” he said, adding that concealing the flyer only perpetuates a negative attitude towards sex and sexuality.
“The idea that there is something wrong with sexually explicit material and sex —it’s exactly the opposite of what we want to express.”
Ince conceded that parents have the right to monitor their children’s exposure to sexually explicit material. He suggested homeowners could join Canada Post’s Consumers’ Choice program, which allows people to put a note on their mailboxes saying they do not wish to receive flyers; or that Canada Post implement a system similar to that of the US Postal Service that allows homeowners to choose what types of flyers to receive.
The Sex Party can’t force households to join Canada Post’s Consumers’ Choice program, Steinman countered. And implementing a system where homeowners could choose what type of admail to receive would be cost-prohibitive for Canada Post, he added.
The bottom line is the Sex Party’s freedom of expression rights have only been “minimally impaired,” Steinman told the court.
“There are other interests at play,” he argued. “These rights need to be balanced against parents’ and children’s rights.”
Parents have the right to choose when a family discourse on sex begins, and children have the right to not be exposed to sexually explicit material, he told the court.
“In the era we live in, privacy is highly prized. Parental discretion in raising children is respected. These things are in the background as Canada Post delivers the mail.”
The real issue, Steinman concluded, is whether the pamphlet could be harmful to children. “All we need to show is a reasoned apprehension of harm.”
Ince objected to a child psychologist’s report commissioned by Canada Post to support its position. The psychologist determined the pamphlet could make some children in the 8-12 years age range “embarrassed, ashamed or anxious.”
“How many is some?” Ince asked. “It is far too imprecise a quantity to say this poses substantial harm,” he argued, adding that embarrassment, anxiety and guilt are all normal parts of growing up.
If Canada Post were genuinely concerned about the welfare of children, Ince argued, it would not have allowed the delivery of last year’s religious flyer that referred to the “sin of homosexuality.”
“What sort of impact is that going to have on a teen who may be a homosexual, when he gets literature saying homosexuality is a plague?” Ince asked.
Ince also argued that Canada Post is inconsistent in enforcing its policies on sexually explicit material.
In 2002, Canada Post refused to deliver a leaflet for his company, The Art of Loving, but later accepted it when he appealed, he told the judge.
That pamphlet, which advertised books, videos, sex toys, lubricants and lingerie, was eventually accepted because it “did not contain profanity, nothing lewd… it was tastefully done,” said Ince, quoting from Canada Post’s response to his appeal.
Two years later, Canada Post again refused to deliver another Art of Loving flyer, this one entitled, “Make a Good Sex Life Even Better.” Ince had to arrange for private delivery of that one.
“I received no complaints as a result of the 25,000 deliveries,” he pointed out. “What grounds are there to start prohibiting something if no one is offended by it?”
Canada Post has the authority to set its own policies around sexually explicit admail, Steinman told the court. “The corporation is allowed to make decisions about its business, including how to handle sexually explicit admail. The corporation has the right to define what is non-mailable matter.”
The Sex Party’s pamphlet does not merit freedom of expression protection because the Charter of Rights does not confer the right to use private property —in this case homes and mailboxes —as a forum for that expression, he added.
Beaudry is expected to release his decision within the next few weeks.