Canada Post Communications
View the brochure that Canada Post arbitrarily prohibited.
The record of our correspondence with them is below:(in chronological order)
1) Wright Initiates Contact
-----Original Message-----
From: Jessie Wright
Sent: April 7, 2005 12:10 AM
To: SWETTENHAM, John H.
Subject: Admail for Review
Dear Mr. Swettenham,
I am writing as Secretary of The Sex Party, a registered political party in political party in BC which is fielding candidates in the May 17, 2005 election. Attached is a pdf of a brochure we would like to submit under the Canada Post unaddressed admail program (a single 8.5"x11" double sided page, folded to make a brochure). I understand from the media that Canada Post has rejected material with sexual content in the past, and I also understand that you are the senior decision maker with respect to matters of content for the admail program. As we have limited time before the election, we are submitting this directly to you to expedite the decision making process. We would like to distribute this as soon as possible, and request your immediate attention to the matter.
Sincerely,
Jessie Wright
Secretary of The Sex Party
Politics for a Sex Positive Future
Email: jessie@thesexparty.ca
Black and White copy of colour brochure attached
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2) Canada Post Manager Josee Bergeron Replies to Wright
-----Original Message-----
From: BERGERON, Josee [mailto:josee.bergeron@canadapost.postescanada.ca]
Sent: April 12, 2005 10:54 AM
To: jessie@thesexparty.ca
Cc: SWETTENHAM, John H.
Subject: Admail for Review
Dear Jessie:
Thank you for the opportunity to review the attached item for delivery within our Unaddressed Admail service.
Canada Post introduced a policy not to accept for delivery any unaddressed sexually explicit advertising that Canadians may find offensive. This policy was introduced in response to concerns expressed by Canadians on the delivery of such materials. The Unaddressed Admail Customer Guide, dated January 17, 2005, clearly indicates that "Canada Post will not knowingly deliver offensive articles that contain sexually explicit material...". Based on this policy, we have decided not to accept for delivery the attached material within our Unaddressed Admail service.
While Canada Post does not censor the mail, it is sensitive to the concerns raised by the general public with respect to receiving unsolicited, unaddressed advertising of a sexually explicit nature or content.
Regards,
Josee Bergeron
Director, Product Management
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3) Wright replies to Bergeron
----- Original Message -----
From: Jessie Wright
To: BERGERON, Josee
Sent: Tuesday, April 12, 2005 12:08 PM
Subject: Re: Admail for Review
Dear Ms.Bergeron,
Thank you for your prompt attention to this matter.
I require some clarification. What portions of the Admail are considered to be offensive and sexually explicit? What do we need to remove to make it acceptable? Who is charged with the authority to determine what is offensive and what is not?
Again, time is of the essence for us, and I appreciate your prompt reply.
Sincerely,
Jessie Wright
Secretary, The Sex Party
Politics for a Sex Positive Future
www.thesexparty.ca
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4) Bergeron replies to Wright
-----Original Message-----
From: BERGERON, Josee [mailto:josee.bergeron@canadapost.postescanada.ca]
Sent: April 13, 2005 1:19 PM
To: jessie@thesexparty.ca
Subject: Admail for Review
Dear Ms. Wright:
As requested, I am writing to clarify my message below regarding our Unaddressed Admail service.
If you would like to choose our Unaddressed Admail service to deliver your items (noting there are other distribution alternatives available), I would like to suggest that you remove any reference of sexually explicit nature, including graphics. For example, I would remove the section on "Test Your Sexual IQ" and the graphic pictures on the mail item. To reiterate, Canada Post will not knowingly deliver an item that contains sexually explicit content or graphics. For example, an advertising message promoting your Party's platform (as provided in the attachment below) with an invitation to attend your upcoming event would be appropriate.
Also, I would like to suggest that you consult with the British Columbia election legislation for specific requirements relating to advertising materials pertaining to elections.
Trust this answers your questions.
Regards,
Josee Bergeron
Director, Product Management
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5) The BC Civil Liberties Association protests to Canada Post
John Swettenham
General Manager, Small Business and Consumer Marketing
Canada Post
2701 Riverside Drive, Suite N210G
Ottawa, ON
K1A 0B1
May 6, 2005
Dear Mr. Swettenham:
We have received information from John Ince, the proprietor of The Art of Loving in Vancouver and the president of The Sex Party, that Canada Post has refused to distribute flyers from these organizations (copies are attached). We understand that Canada Post refused to deliver them because of their sexual content.
We would be grateful if you could forward to us the guidelines you follow for making these decisions and also a description of appeal mechanisms for reviewing decisions not to distribute materials.
Media reports about The Art of Loving flyer/newsletter stated that Canada Post refused to distribute this material because of its use of anatomically correct terms like “penis” and “vagina”. Can you confirm this and what, if any, other grounds were used to refuse its distribution? We are aware that Mr. Ince had distributed this flyer inside a local community newspaper (The Courier) and had paid private carriers to distribute it as well. In both instances, there were no apparent complaints about the distribution of this material. We wonder in light of this evidence, why it was felt that the material was thought to be so offensive to your customers that it could not be distributed.
We also have very serious concerns about the decision not to distribute The Sex Party campaign flyer. The flyer sets out a serious-minded political platform. The purpose of the flyer is to be provocative as befits a political campaign, particularly one with the agenda of this party. However, the flyer is not provocative in a titillating or smutty way, but clearly aims to provoke political debate and discussion about attitudes towards sex and public policies surrounding sex. One of the photographs has been published as a piece of serious art in newspapers across the country. Another is an abstract rendering of a penis. Neither picture could be regarded as illegal or even pornographic on their own and, especially, when viewed in context. More importantly, however, given the purposes and context of this flyer, we doubt that the normal standards used to prevent patently offensive material from reaching your customers apply, since the message is clearly a political one addressed to issues of public policy.
We would be grateful if you would respond to our queries as soon as possible.
Yours truly,
Jason Gratl,
President
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6) Canada Post responds to the BCCLA (not yet in digital format - will be forthcoming)
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7) Sex Party (Ince) responds to Canada Post
16 August 2005
Cal Hart
Senior Vice-President
Marketing and Product Management
Canada Post
2701 Riverside Dr. Suite N1200
Ottawa ON
K1A 0B1
Dear Mr. Hart:
The BC Civil Liberties Association forwarded to me your letter re unaddressed admail dated July 27, 2005.
This letter is to advise that we will initiate court proceedings against Canada Post if by October 15, 2005 you have not taken the action described below. We very much hope that we can negotiate the matter without going to court.
Our Party’s mandate is to promote a sex-positive society and to change institutional policies conducive to unhealthy attitudes toward sex. We believe that the existing unaddressed admail policies of Canada Post cause such social harm and violate the Charter of Rights.
Unaddressed admail is an important medium of communication in Canada. Canada Post has a monopoly on the delivery of printed material to homes outside single family dwellings. Canada Post is a Crown corporation. We believe that these facts bring Canada Post’s admail policies under the scrutiny of the Charter.
An important principle of Charter law is that government policies limiting free expression cannot be vague. See Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 FC 85 (CA), a case in which I acted as counsel. Lack of clarity unduly inhibits valid social communication; vagueness also gives rise to arbitrary and capricious decision-making on the part of the enforcers of the regulation.
In our view, the Canada Post admail prohibition against “offensive articles that contain sexually explicit material” is impermissibly vague. Its lack of any objective meaning provides decision makers with no clear guidelines as to the material that is allowed and prohibited. This file is littered with examples of Canada Post officials making arbitrary decisions on the fly.
The meaning of “offensive” in your regulations is a big part of the problem. Who must be offended? Officials? One person? Ten people? Canada Post’s policy does not specify the critical threshold. In your letter you arbitrarily set the threshold very low: you say that only “some recipients” need be offended for the material to be prohibited. Is the “some recipients” test your personal opinion? Was it the subject of executive analysis and discussion? Or did you simply invent it in your letter?
No other media organization of which I am aware uses the “some recipients” test of offensiveness. A free nation cannot allow a few easily offended individuals to prevent communication that thousands of others either value or have no reaction to. Canada Post rejects the “some recipients” test outside the sexual area. For example, many vegetarians are offended by admail for hamburgers. Yet you do not prohibit such material.
Even if an offense threshold was clearly defined, what evidence would be used to show it was met in any particular case? I believe you have no evidence showing that any significant number of people would be offended by either of the flyers Canada Post prohibited. I have repeatedly requested such evidence, and will be seeking discovery of same in any future court action. So far, none has been provided.
But your officials have had evidence that the prohibited 2004 flyer of The Art of Loving was delivered to 25,000 detached homes without a single complaint. You have evidence that a local community newspaper included it in their delivery, without a complaint. I believe that is overwhelming evidence that the material is not offensive.
Further, your officials have received dozens of complaints regarding your prohibition of the flyer in question. Clearly many people are offended by your decision. How are such complaints factored into the “offensive” test?
The inappropriateness of the “offensive” test is powerfully exposed in the fact that your officials ignore it. For instance, with regard to The Sex Party flyer your official says, “I would like to suggest that you remove any reference of sexually explicit nature (sic)...To reiterate, Canada Post will not knowingly deliver an item that contains sexually explicit content or graphics.” The official applies only an explicitness test; the admail guide clearly requires the additional element of offensiveness. Admail policies are so bad that some of your officials do not even pay lip service to them!
The explicitness test is also most unclear. The Art of Loving case is a good example. John Swettenham Director, Strategy and Retail Product Development rejected the 2004 flyer because: “Words such as "penis", "clitoris" and "ejaculate" do not accord with such standards.” (Email, Nov 24, 2004). Now you state that the prohibition involved material that “went beyond the use of ‘anatomically’ correct terms.” Are words alone prohibited or must words be combined with other material? Are you again inventing policy on the fly?
Whatever new test is created needs to have much more detail than the current minimalist policy description. Prohibitions need to be framed in terms of specific types of sexual words, images and messages, and need to be tailored to the contexts in which they appear. Sexual words or images of sexual body parts that are acceptable in a political flyer or Planned Parenthood pamphlet may not be acceptable in a titillating ad for pornographic videos.
Media policies which make no distinction on context and simply impose blanket prohibitions against all sexual explicitness in words and images, express unhealthy messages about sex. When your officials decide that the Sex Party’s campaign flyer is prohibited yet a flyer for unhealthy junk food is allowed, you help stigmatize sexual discourse and sexuality itself.
An analogous situation existed fifty years ago in the then new television industry. Broadcasters excluded black journalists. Television executives justified the exclusion on the ground that the sight of black newscasters would offend the mass of viewers. That policy, of course, merely perpetuated the racist system. In time, and through the activism of black people, television networks changed their policy and began to include black broadcasters, and such inclusiveness expressed a positive message about black people and helped heal racial divisions.
The blanket prohibitions on sexual communication are like the blanket policy against black broadcasters and have a similar anti-social effect. Regulations that normalize the distribution of intelligent and respectful sexual material will have benefits similar to the policy change that brought blacks broadcasters to television.
I fail to understand why Canada Post has done nothing to clearly define the type of sexual material it will allow and disallow. Your senior officials have been aware of the importance of this issue for over a year. Mr. Sweetenham recognizes the need for a new policy: “As I said, we need to develop a policy and using it as a reference will certainly help.” (Email November 5, 2004.) The admail regulations have been amended several times since this matter has been raised; yet the sexual prohibition remains unchanged.
You quoted, out of context, some tests I proposed to Allan Bisback, to start a discussion as to new policy in this area. My proposal was never meant to be final, and was invited by Allan to start the policy revision process. My email to Allan clearly stated: “I have provided you with a base from which to work in my proposed regulations.” I waited and waited for the dialogue to follow and despite many requests for such dialogue I have not heard a word on the issue. And now you have the gall to treat it as my final word on the subject!
My original proposal is still a good starting point for further discussion. The various contexts of sexual material (educational, artistic, pornographic, political) need to be added. If you show a serious interest in changing the existing rules then I would be willing to engage in a detailed examination of the issue.
In our opinion Canada Post has had plenty of time to initiate change in this area. Your own officials recognize the need for it. We are not prepared to wait interminably for the executive action that good business and Charter obligations require.
Please be advised that if by October 15, 2005 we have not received confirmation in writing that: a) you are proposing to change the policy in issue, and b) you have created a timetable for discussing the matter, leading to the revision on a date certain, we will initiate an action against Canada Post in a court of competent jurisdiction.
Yours sincerely,
John Ince
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8) Canada Post responds to Ince (not yet in digital format - will be forthcoming)
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9) Sex Party (Ince) responds to Canada Post
21 September 2005
Cal Hart
Senior Vice-President
Marketing and Product Management
Canada Post
2701 Riverside Dr. Suite N1200
Ottawa ON
K1A 0B1
Dear Mr. Hart:
Thank you for your letter of September 16. You answered none of the very specific issues I raised regarding the inappropriateness of Canada Post admail policies regarding sexual material.
Your comment re latches would seem to indicate that you would feel better about The Sex Party filing the writ sooner than later. Courts tend not to like lawsuits filed before litigants have done everything they can to settle the matter. My letters to you are an attempt to do that.
You state "we are prepared to review Canada Post's policy with regard to the appropriateness of certain content, including material of a sexually explicit nature." You gave no details about the review: who is conducting it; what type of information would be considered, the timetable of the review and so on. I have heard similar general statements about a "policy review" by senior Canada Post officials before (such as in November 2004 Mr. Sweetenham). Yet the inappropriate policies remain.
The Sex Party needs more than such vague statements regarding policy reviews to avoid filing its Charter case. This is our final offer to avoid litigation. Unless I hear from you that the inappropriate policy is on its way to substantial change, The Sex Party will file a Charter case against Canada Post in a court of competent jurisdiction on or after October 15, 2005.
Yours sincerely,
John Ince
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