Men banned from using Canada Post over controversial publication challenge minister's order

Two Toronto men accused of sending hate propaganda through the mail are challenging the constitutionality of a federal cabinet minister's decision to prevent them from using Canada Post.

Toronto editor and publisher subject to a rare prohibitory order from the minister responsible for Canada Post

James Sears, above, and Laurence St. Germaine have been prohibited by a ministerial order from sending anything through the mail, including their publication Your Ward News, which has been called hate propaganda. (Submitted)

James Sears won't be sending Easter cards this year for fear of facing a criminal charge. 

"I cannot even ask my wife to mail on my behalf because I am prohibited from having people mail on my behalf," he told CBC News.

Sears and another man are subject to a rare prohibitory order from the minister responsible for Canada Post, banning them from sending anything through the mail. 

Sears is editor and Laurence St. Germaine is publisher of Toronto-based newspaper Your Ward News. For years, mail carriers have protested having to deliver it and many have complained about it being distributed in their neighbourhoods.

'Racist ... hate rag'

The paper is filled with offensive imagery and writing aimed at just about every identifiable group, discredited theories on topics such as immunizations as well as personal attacks on high-profile Canadians. 

"We no longer wanted this racist, misogynistic, anti-Jewish, anti-Muslim, anti-gay hate rag in our neighbourhood," said Lisa Kinsella, who represents a broad coalition of people opposed to the publication.

Lisa Kinsella says although the paper is no longer being distributed by Canada Post, it's still published online and worries their readership is growing. (CBC)

"It's not free speech. I know that this is the argument, but hate propaganda is not free speech," she said.

Since making her feelings public, Kinsella and her husband, lawyer and consultant Warren Kinsella, have both become regular targets in the newspaper.

It is not a crime in Canada to publish or distribute defiant or even odious ideas in writing— Frank Addario, defence lawyer

The interim order was made more than nine months ago under Section 43 of the Canada Post Act. Sears and St. Germaine have yet to get a hearing. 

Public Services Minister Judy Foote​'s  office said the minister appointed an independent board of review on Dec. 9, 2016. The members are three renowned people from legal and academic circles: Fareen Jamal, Elizabeth Forster and Peter John Loewen.

Sears and St. Germaine have hired prominent defence lawyer Frank Addario to represent them.

Constitutional question

"There's a lot of crap in the mail and it is not a crime in Canada to publish or distribute defiant or even odious ideas in writing. It is a crime to distribute hate propaganda or defamatory libel," Addario said, adding his clients have never been charged with any hate-related offence.

"The state has not put any corresponding obligation on itself to act swiftly after it takes away the citizen's right to use the postal service for purposes of free expression."

Lawyer Frank Addario, who represents James Sears and Lawrence St. Germaine, says neither has been charged with a hate-related crime. (CBC)

Addario intends to challenge the constitutionality of the minister's powers. As it is unlikely the board could entertain a constitutional question, Addario said the next stop would be Federal Court.

"Right now, the minister's power is too broad, too discretionary for something so important as expressive freedom. So the minister's power needs to be reined in, if she's going to be running a monopoly that delivers expressive publications," Addario said. 

​But Kinsella applauds the minister for choosing to exercise her authority.

"She saw the content, it was brought to her attention. She didn't like what she saw and she decided the government would not be using a Crown asset to deliver it any more," Kinsella said.

Rarely used powers

Not surprisingly, Sears disagrees.

James Sears and Laurence St. Germaine have been prohibited from using Canada Post over complaints about their publication Your Ward News.

"The Liberal government did it because the Liberal government doesn't like what we say. And maybe in future a far right-wing government won't like what left-wing people say," he warned.

The minister responsible for Canada Post has only twice before issued a prohibitionary order and only one of them was aimed at preventing the spread of hate speech.

In 1981, the then-minister issued an interim order against Samisdat Publishers, which was owned by convicted Holocaust denier Ernst Zundel.

In that case, the order lasted just a few months before it was overturned by the board of review.