Process to review minister's Canada Post bans not timely or transparent, lawyer says
Documents obtained under Access to Information show process to review ban at least 6 months behind schedule
The process to review a federal cabinet minister's decision to ban two men from using Canada Post is more than six months behind schedule, according to the department's own draft timetable obtained by CBC News.
"There's no onus on government to do anything once they've stopped the expression from being published. They can sit back and take their sweet time about examining the legality of what they've done," said Frank Addario, the Toronto-based lawyer for James Sears and Laurence St. Germaine.
Sears and St. Germaine are subject to a rare prohibitory order made by Public Services and Procurement Minister Judy Foote that bans them from sending anything through the mail.
- Men banned from using Canada Post challenge minister's order
- Canada Post ordered to stop delivering Your Ward News
The pair produce the Toronto-area publication Your Ward News, a newspaper filled with offensive imagery and writing, discredited theories on topics such as immunization and personal attacks on high-profile Canadians.
Postal carriers who protested having to deliver the publication and Toronto residents opposed to receiving it in their mailboxes appealed to the federal government to ban Sears and St. Germaine from using Canada Post.
On June 3, 2016, Foote issued the interim prohibitory order under Section 43 of the Canada Post Act. The minister said she had reasonable grounds to believe the men were committing defamatory libel and/or breaking the law by spreading hate.
A statute that authorizes prior restraint is first and foremost not compliant with the Charter. That's constitutional law 101- Lawyer Frank Addario
Sears requested a board of review be convened to take a closer look at the minister's order.
Last July 29, assistant deputy minister Alfred MacLeod wrote to Foote's deputy minister with an update on how the department was setting up the process, according to documents obtained under Access to Information.
"In order to have a board in place to proceed with its first hearing as soon as possible, the department will start engaging with potential candidates the week of Aug. 8, 2016," wrote MacLeod.
"Ideally, once all materials are shared with the board of review, it would be expected that a first hearing occur the week of Sept. 27, 2016."
MacLeod also attached a schedule of draft timelines, which forecasted the review board submitting its final recommendation to the minister within two months.
Board of review hasn't held hearing
The minister appointed Fareen Jamal, Elizabeth Forster and Peter John Loewen to the board of review on Dec. 9. The panel will hold its first hearing April 11.
Frank Addario believes the minister's power to prohibit the use of Canada Post should be subject to the on-going review led by Justice Minister Jody Wilson-Raybould to determine if government statutes and legislation comply with the Charter of Rights and Freedoms. Wilson-Raybould has recently described herself as an "ambassador of the charter."
"You would expect an 'ambassador of the charter' would be conducting a review of statutes that are not compliant with the charter, and a statute that authorizes prior restraint is first and foremost not compliant with the charter. That's constitutional law 101," Addario told CBC News.
Prior restraint is a legal term that refers to attempts, usually by government, to censor material before it is actually published.
In an emailed response to questions, a spokesman for the department said there were no challenges in finding board members, but did not explain why it took so long to appoint the board of review.
Looking forward, the spokesman said, "there are no specified timelines for the board of review to hold hearings and submit its recommendations."
Prohibitory orders are rare. The last time a minister imposed one on someone accused of spreading hate was in 1981. In that case, which involved convicted Holocaust denier Ernst Zundel, a board of review was convened and made its final recommendation — to overturn the order — within three months.