Some postal workers want Canada Post to stop delivering an anti-China newspaper. Can they do that?

Some postal workers want Canada Post to stop delivering an anti-China newspaper. Can they do that?

Some postal workers are pressuring the government to order Canada Post to stop delivering a piece of mail because they don’t like its message. Epoch Times, a newspaper run by Chinese expatriates, has been mailing Canadians a special edition called: “How the Chinese Communist Party Endangered the World.” The newspaper makes the case that China’s authoritarian government covered up the true scale of its Covid-19 problem, resulting in a much more deadly global pandemic. They argue that Covid-19 should be called the “CCP virus.”

One Toronto postal worker told the CBC that the paper’s message is putting Asian Canadians “at risk of xenophobia.” A spokesperson for the postal union called the paper “inflammatory.”

Epoch Times publisher Cindy Gu fought back by suggesting that the critics may be conflating criticism of the Chinese government with criticism of the Chinese people.

A spokesperson for the minister in charge of Canada Post told CBC that “an initial assessment of this material does not appear to meet the required criteria of the offence of willful promotion of hatred… However, further assessment is ongoing.”

This is not the first time that postal workers have objected to delivering mail that contains messages with which they disagree. In the past, workers have protested the delivery of graphic anti-abortion leaflets and anti-gay religious pamphlets.

But can the government force Canada Post to stop delivering mail based on its editorial content without violating the sender’s constitutional right to free speech? The answer appears to be yes, but perhaps only if that content rises to the level of criminal hate speech.

There would be nothing unconstitutional about a private company refusing to delivery a newspaper but Canada Post is a Crown corporation and it is therefore bound by the Charter of Rights and Freedoms, which exists to protect individuals from having their rights trampled on by governments. The Charter guarantees that any limit imposed on “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication,” must be “reasonable” and “demonstrably justified in a free and democratic society.”

The Federal Court of Canada said in the 2008 case Sex Party v. Canada Post that “when Canada Post, acting as a federal board, makes the decision that material is not suitable for distribution, there clearly exists a state-imposed limit on speech.” The only question is therefore whether the government’s limit on speech is a “reasonable” one that can be “demonstrably justified in a free and democratic society.”

In Sex Party, Canada Post had refused to allow a fringe B.C. political party to ship sexually explicit material—including a doorknocker in the shape of an erect penis with wings—unless the party put their materials inside envelopes. Canada Post said the envelopes were needed to prevent children from seeing sexually explicit material. The Sex Party argued that “concealment in an envelope suggests that the content is objectionable, which is a message diametrically opposed to that espoused by the Party’s platform.” The court sided with Canada Post, finding that the envelope requirement was a minimally impairing limit on the Sex Party’s Charter right to free speech and that the constraint was “outweighed by the benefits of protecting children from unfiltered access to the information.”

A decision that’s more on point but which doesn’t carry the weight of the Federal Court is the recommendation from a Board of Review appointed to decide whether Canada Post should stop delivering the Toronto rag Your Ward News, which contained Holocaust denial, anti-Semitism and misogynistic hate speech. The Canada Post Corporation Act allows the minister in charge of Canada Post to stop delivery of mail where she believes “on reasonable grounds” that the mailer is trying to use the mail system to commit crimes. The minister had ordered a temporary stop on Your Ward News’ use of the mail after complaints about hate speech, and the board was convened to help her decide whether Your Ward News should be permanently banned from the mail.

Your Ward News and its supporters argued that a ban on delivery of the paper was an unconstitutional infringement on the right to free expression. They said the ban was not a minimal impairment of their rights because it amounted to a prior restraint on speech (muzzling them before the government even knows what they’re going to say) and was an absolute ban, rather than a ban on just the objectionable content. The government argued that a total ban on delivering the paper was necessary to prevent Canada Post from facilitating future hate speech and the review board agreed.

The Supreme Court has established a high standard for determining criminal hate speech. In Saskatchewan (Human Rights Commission) v. Whatcott, Justice Marshall Rothstein said the test was “whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred.” Hatred was said to include “representations that … tend to inspire enmity and extreme ill-will … which goes beyond mere disdain or dislike.” The board found that this standard was clearly met in the case of Your Ward News and that a total ban was a reasonable limit on free expression. Minister of Public Services and Procurement and Accessibility Carla Qualtrough accepted the recommendation and ordered Canada Post to stop delivering the publication through unaddressed bulk mail. The publisher and editor of Your Ward News were later convicted of criminal hate speech.

So, Sex Party suggests that the government can require content that might be offensive to some people to be put inside envelopes but it can’t stop it from being mailed, while the Your Ward News case suggests the government can stop the delivery of content altogether when that content rises to the level of criminal hate speech. It’s extremely unlikely that Epoch Times’ critique could be considered criminal hate speech since the Chinese Communist Party is not a protected group and the paper’s criticism would not “inspire enmity or extreme ill-will … which goes beyond mere disdain or dislike.” In other words, postal workers might not like Epoch Times’ message, but the right to free expression means they need to either deliver the paper or find a new job.

Image by Michel Temer and used under CC 2.0.