Court decision ‘partial victory’ for Sex Party

A Vancouver Federal Court judge ruled Jan 15 that Canada Post does not have the legal authority to refuse delivery of the Sex Party’s sex-positive pamphlet, ordering the agency to rewrite its regulations.

“It’s a partial victory,” says Sex Party leader John Ince, adding, “we anticipated that would be one of the results of our success — that they’re going to have to draft new regulations.” The question remains what exactly are they going to say, he wonders.

“We’re happy that an argument that we’ve been making for years — that the policy Canada Post is relying on is not lawful — has been accepted finally,” Ince continues. He further notes that the Sex Party “offered Canada Post years ago to sit down and do exactly what the judge has ordered them to do. We had to go through an entire court case at great, great expense because senior bureaucrats in Canada Post couldn’t get their act together.”

The Sex Party, a registered political party in BC, filed a complaint against Canada Post last year, after it refused to deliver the party’s campaign pamphlet during the 2006 federal election through its unaddressed ad mail program.

The pamphlet outlined the party’s ‘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 ad mail policy, it “will not knowingly deliver offensive articles that contain sexually explicit material.”

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.

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, Steinman explained.

“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 contended.

“The issue that we’re trying to make clear is sexual communication is entirely healthy, and non-pornographic and non-violent communication — there is no rational basis to limit it,” Ince told Xtra West following the ruling. “We hope that the regulations that are issued reflect that.”

When contacted for its reaction to the judgment, Canada Post’s media relations manager Lillian Au would only provide a prepared statement that says in part:

“Despite the fact that the court set aside our decision to refuse to mail the Sex Party’s brochure, Canada Post feels vindicated by the judgment.

“In short, the court was sympathetic with Canada Post’s concerns about exposing children to sexually explicit material, and found the restrictions proposed by Canada Post to be a reasonable and justifiable limit on the Sex Party’s freedom of expression.”

The statement goes on to say “Canada Post’s decision was not upheld strictly on technical grounds relating to the manner in which its restrictions on sexually explicit material were adopted.

“The court’s order does not take effect for six months,” the statement concludes. “In the meantime, Canada Post plans to address the legal issues raised by the court.”

Asked about the judge’s order that Canada Post rewrite its regulations, Au would only say that the agency has been asked to “review the decision at this time” and declined to elaborate further.

“We await with interest the new regulations Canada Post must enact,” Ince says in his own statement carried in the Sex Party’s newsletter. “If they do not ensure our legal rights, we will be back in court.”

— with files from Tamara Letkeman

For more on this story, check out:
Canada Post censored us: Sex Party — Oct 24, 2007