Medi-Data Inc. and Book Bargains Inc.
(Applicants)
v.
Attorney General of Canada (Respondent)
Court of Appeal, Jackett C.J., Thurlow and
Walsh JJ.—Ottawa, April 12 and 14, 1972.
Post Office—Prohibition of mail services to person com
mitting offence through mails—Order by Postmaster Gener-
al—Review by Board of Review—Form of order—Powers of
Board—Post Office Act, R.S.C. 1970, c. P-14, section 7.
Judicial review—Court of Appeal—Jurisdiction—Prohibi-
tion of mail services by Postmaster General—Review by
Board of Review—Right to challenge—Federal Court Act,
section 28.
On March 4, 1971, the Postmaster General made interim
prohibitory orders under section 7 of the Post Office Act
prohibiting mail service to two United States firms on the
ground that they were committing offences by transmitting
obscene material through the mails. Fourteen days later, in
purported compliance with section 7(2) of the Act, he
informed the applicants of the orders. Applicants' attorney
requested "without prejudice to any and all rights of client"
that the orders be inquired into. Inquiries were held by
Boards of Review set up by the Postmaster General under
section 7(3), and on the Boards' recommendations the
interim prohibitory orders were made final in August 1971.
Applicants applied to this Court under section 28 of the
Federal Court Act to review and set aside the interim
prohibitory orders, the recommendations of the Boards of
Review and the final prohibitory orders.
Held, their applications should be dismissed.
1. The Court has no jurisdiction to set aside the interim
prohibitory orders, which were made before the Federal
Court Act came into operation on June 1, 1971.
2. The interim prohibitory orders were not invalidated
because they did not recite in the words of section 7(1) that
the Postmaster General "believes on reasonable grounds"
that the applicants were committing offences.
3. Having regard to the wide powers given to the Board
of Review on an inquiry under section 7, it was open to the
Board to take into consideration the transmission by an
applicant of material not referred to in the interim prohibito
ry orders.
4. The failure of the Postmaster General to notify the
applicants in the interim prohibitory orders within five days
of making them, as required by section 7(2), did not nullify
those orders but merely gave applicants the right to chal
lenge them, and applicants had not done so. Their attorney's
letter requesting the inquiry "without prejudice" to his
clients' rights operated at most to preserve their right to
challenge the orders.
APPLICATION for judicial review.
J. C. Hanson, Q.C. for applicants.
W. J. Trainor for respondent.
JACKETT C.J. (orally)—This is an application
to review and set aside the decisions and
recommendations of certain Boards of Review
nominated by the Postmaster General pursuant
to section 7 of the Post Office Act, which deci
sions and recommendations were contained in
reports made on August 6, 1971, and to review
and set aside final prohibitory orders of the
Postmaster General made on August 17, 1971,
under section 7 of the Post Office Act'.
Section 7 of the Post Office Act reads as
follows:
7. (1) Whenever the Postmaster General believes on rea
sonable grounds that any person
(a) is, by means of the mails,
(i) committing or attempting to commit an offence, or
(ii) aiding, counselling or procuring any person to
commit an offence, or
(b) with intent to commit an offence, is using the mails for
the purpose of accomplishing his object,
the Postmaster General may make an interim order (in this
section called an "interim prohibitory order") prohibiting
the delivery of all mail directed to that person (in this
section called the "person affected") or deposited by that
person in a post office.
(2) Within five days after the making of an interim
prohibitory order the Postmaster General shall send to the
person affected a registered letter at his latest known
address informing him of the order and the reasons therefor
and notifying him that he may within ten days of the date
the registered letter was sent, or such longer period as the
Postmaster General may specify in the letter, request that
the order be inquired into, and upon receipt within the said
ten days or longer period of a written request by the person
affected that the order be inquired into, the Postmaster
General shall refer the matter, together with the material
and evidence considered by him in making the order, to a
Board of Review consisting of three persons nominated by
the Postmaster General one of whom shall be a member of
the legal profession.
(3) The Board of Review shall inquire into the facts and
circumstances surrounding the interim prohibitory order
and shall give the person affected a reasonable opportunity
of appearing before the Board of Review, making represen
tation to the Board and presenting evidence.
(4) The Board of Review has all the powers of a commis
sioner under Part I of the Inquiries Act, and, in addition to
the material and evidence referred to the Board by the
Postmaster General, may consider such further evidence,
oral or written, as it deems advisable.
(5) Any mail detained by the Postmaster General pursu
ant to subsection (8) may be delivered to the Board of
Review, and, with the consent of the person affected, may
be opened and examined by the Board.
(6) The Board of Review shall, after considering the
matter referred to it, submit a report with its recommenda
tion to the Postmaster General, together with all evidence
and other material that was before the Board, and upon
receipt of the report of the Board, the Postmaster General
shall reconsider the interim prohibitory order and he may
revoke it or declare it to be a final prohibitory order, as he
sees fit.
(7) The Postmaster General may revoke an interim or
final prohibitory order when he is satisfied that the person
affected will not use the mails for any of the purposes
described in subsection (1), and the Postmaster General
may require an undertaking to that effect from the person
affected before revoking the order.
(8) Upon the making of an interim or final prohibitory
order and until it is revoked by the Postmaster General,
(a) no postal employee shall without the permission of
the Postmaster General
(i) deliver any mail directed to the person affected, or
(ii) accept any mailable matter offered by the person
affected for transmission by post,
(b) the Postmaster General may detain or return to the
sender any mail directed to the person affected and
anything deposited at a post office by the person affect
ed, and
(c) the Postmaster General may declare any mail detained
pursuant to paragraph (b) to be undeliverable mail, and
any mail so declared to be undeliverable mail shall be
dealt with under the regulations relating thereto.
In July, 1970, there was brought to the atten
tion of the Post Office Department a brochure
entitled "WOMAN: Her Sexual Variations and
Functions" which had been received through
the mail by a Canadian resident from the appli
cant Book Bargains Inc. In December, 1970,
there was brought to the attention of the Post
master General a brochure entitled "Sex Educa
tion Without Censorship" which had been
received through the mail by Canadian residents
from the applicant Medi-Data Inc.
On March 4, 1971, the Deputy Postmaster
Generale made an order, which, as far as rele
vant, read as follows:
PURSUANT TO the provisions of section 7 of the Post
Office Act the undersigned hereby makes an Interim
Prohibitory Order against:
(c) Medi-Data Inc. whose postal addresses are: P.O. Box
388, Van Brundt Station, Brooklyn, N.Y. 11215 and P.O.
Box 4399, Grand Central Station, New York, N.Y. 10017
on the ground that Medi-Data Inc. is, by means of the mails,
committing an offence TO WIT transmitting an obscene or
indecent advertising brochure entitled "Sex Education with
out Censorship" contrary to section 153 of the Criminal
Code of Canada;
PURSUANT TO this Order the delivery of all mail directed
to or deposited in a Post Office by any of the persons or
corporations mentioned in paragraphs (a) to (j) inclusive is
prohibited.
On the same day, he made another order read
ing, in part, as follows:
PURSUANT TO the provisions of section 7 of the Post
Office Act the undersigned hereby makes an Interim
Prohibitory Order against:
(y) Book Bargains Inc. whose postal address is: P.O. Box
4040 Grand Central Station, New York, N.Y. 10017 on the
ground that Book Bargains Inc. is, by means of the mails,
committing an offence TO WIT transmitting obscene or
indecent advertising brochures entitled "Woman her sexual
variations and functions" contrary to section 153 of the
Criminal Code of Canada;
PURSUANT TO this Order the delivery of all mail directed
to or deposited in a Post Office by any of the persons or
corporations mentioned in paragraphs (a) to (y) inclusive is
prohibited.
On March 18, 1971, the Postmaster General
wrote to the applicant Medi-Data Inc. as
follows:
TAKE NOTICE THAT on the 4th day of March 1971 an
Interim Prohibitory Order was made by the Deputy Post
master General pursuant to the provisions of section 7 of
the Post Office Act against Medi-Data Inc. whose postal
addresses are: P.O. Box 388, Van Brundt Station, Brooklyn,
N.Y. 11215 and P.O. Box 4399, Grand Central Station,
New York, N.Y. 10017 on the ground that Medi-Data Inc.
is, by means of the mails, committing an offence TO WIT
transmitting an obscene or indecent advertising brochure
entitled "Sex Education Without Censorship" contrary to
section 153 of the Criminal Code of Canada.
AND TAKE FURTHER NOTICE that pursuant to that
Order the delivery of all mail directed to you or deposited in
a Post Office by you is prohibited.
AND TAKE FURTHER NOTICE that within 15 days of
the date of this notice you may request that the Interim
Prohibitory Order be inquired into, and upon receipt within
the said 15 days of a written request by you that the Order
be inquired into, the Deputy Postmaster General will refer
the matter, together with the material and evidence consid
ered by him in making the Order, to a Board of Review
consisting of three persons nominated by the Postmaster
General, one of whom shall be a member of the legal
profession.
AND TAKE FURTHER NOTICE that attached hereto, for
your information, is a copy of section 7 of the Post Office
Act of Canada.
A letter to the same effect was written on the
same day to the applicant Book Bargains Inc.
with necessary changes to refer to the fact that
the order relating to the applicant was based on
the brochure "Woman: Her Sexual Variations
and Functions".
On March 25, 1971, a letter was written to
the Deputy Postmaster General by a New York
lawyer named Herbert Monte Levy. That letter
reads as follows:
We represent Book Bargains, Inc., which has received a
notice from you dated March 18, 1971, advising client that
14 days previous to the date of your notice, an Interim
Prohibitory Order was issued.
On behalf of said client, we hereby request that the
Interim Prohibitory Order be inquired into.
I should also appreciate it if you could advise me whether
it would be proper or appropriate for me to represent the
client in Canada, either with or without legal counsel.
This request, of course, is without prejudice to any and
all rights of client.
It may be that we can amicably dispose of this matter
without litigation. If the Canadian Post Office were willing
to enter into an agreement under which advertisements for
the book mentioned in your letter would no longer be sent
into Canada by mail, and permitting all other mailings
(except for advertisements for the aforementioned book),
client would be willing to settle the matter on such basis,
providing, of course, that it is agreed that such a stipulation
would not constitute an admission by client that the book in
question was obscene, nor, of course, would it constitute an
admission by Post Office Department that it was not
obscene.
I should perhaps add that a Statute similar to the one you
rely on was unanimously ruled Unconstitutional by the
United States Supreme Court a few weeks ago in a case
known as Blount v. Rizzi. Of course, if we have to proceed
with any hearings, we intend to have the matter go to the
highest Court it could go. We have already been in touch
with a distinguished Canadian attorney, but we should
appreciate adequate advanced notice of any hearing date to
permit us to make arrangements for Canadian counsel, since
the attorney we spoke to is so situated geographically that
he cannot be of assistance to us.
On the same day, the same New York lawyer
wrote a further letter to the Deputy Postmaster
General reading as follows:
We represent Medi-Data, Inc., which has received your
notice dated March 18, 1971.
Within this envelope, we have enclosed a letter written to
you on behalf of client Book Bargains, Inc. We hereby
incorporate by reference and make a part hereof as if fully
set forth at length herein each and every request, objection,
consent, and offer to stipulate that is made in said letter
written on behalf of Book Bargains, Inc., except, of course,
that it is made or stated on behalf of Medi-Data, Inc., and in
reference to the advertising brochure referred to in your
letter to Medi-Data, Inc.
Of course, this includes the request that the Interim
Prohibitory Order be inquired into.
On April 22, 1971, the Deputy Postmaster
General referred the Medi-Data Inc. matter to a
Board of Review by a document reading as
follows:
An interim prohibitory order having been made by me on
the 4 March 1971, prohibiting the delivery of all mail
directed to or deposited in a Post Office by Medi-Data Inc.,
P.O. Box 388, Van Brundt Station, Brooklyn, N.Y. 11215
and P.O. Box 4399, Grand Central Station, New York, N.Y.
10017, U.S.A.
And the said Medi-Data Inc. having requested that the
interim prohibitory order be enquired into;
Now, therefore, pursuant to Section 7 of the Post Office
Act, I do hereby refer this matter, together with the material
and evidence considered in making the said interim prohibi
tory order, to a Board of Review, consisting of the follow
ing three persons hereby nominated by me:
Mr. L. A. Couture, Q.C.—Chairman
Mr. E. C. Savage
Mr. A. S. Whiteley
and on April 23, 1971, he referred the Book
Bargains Inc. matter to a Board of Review
consisting of the same persons by a similar
document.
The Boards of Review conducted inquiries
accordingly. On August 6, 1971, the Board in
the Medi-Data matter made a report that con
cluded as follows:
In the circumstances, and for the above reasons, the
Board of Review finds that the use of the mails for the
purpose of transmitting the advertisement "SEX EDUCA
TION WITHOUT CENSORSHIP!" constitutes the offence
described in section 153 of the Criminal Code. The Board
of Review recommends that the interim prohibitory order
be made a final prohibitory order.
and on the same day the Board in the Book
Bargains Inc. matter made a report that con
cluded as follows:
The Board of Review finds that the use of the mails for
the purpose of transmitting the advertisement of "WOM-
AN: Her Sexual Variations and Functions" (and the adver
tisement of "More Blazing Sex-Films ...") constitutes the
offence described in section 153 of the Criminal Code. The
Board of Review recommends that the interim prohibitory
order be made a final prohibitory order.
These reports having been duly transmitted to
the Deputy Postmaster General, on August 17,
1971, he wrote letters to Mr. Levy reading, in
part, as follows:
I am pleased to inform you that the Board of Review that
was nominated by me to inquire into the facts and circum
stances surrounding the interim prohibitory order respecting
mail service to your client, Medi-Data, Inc., has now sub
mitted a report with its recommendation to the Postmaster
General.
The Board of Review came to the conclusion that the use
of the mails for the purpose of transmitting the advertise
ment "SEX EDUCATION WITHOUT CENSORSHIP!"
constitutes the offence described in section 153 of the
Criminal Code. The Board of Review has recommended
that the interim prohibitory order be made a final prohibito
ry order.
I have reconsidered the interim prohibitory order and I
wish to inform you that I have accepted the recommenda
tion made by the Board of Review. The interim prohibitory
order that was made against Medi-Data, Inc., on March 4,
1971, shall therefore be deemed, as from today, a final
prohibitory order.
and
I am pleased to inform you that the Board of Review that
was nominated by me to inquire into the facts and circum
stances surrounding the interim prohibitory order respecting
mail service to your client, Book Bargains, Inc., has now
submitted a report with its recommendation to the Postmas
ter General.
The Board of Review came to the conclusion that the use
of the mails for the purpose of transmitting the advertise
ment of "WOMAN: Her Sexual Variations and Functions"
(and the advertisement of "More Blazing Sex-Films ... ")
constitutes the offence described in section 153 of the
Criminal Code. The Board of Review has recommended
that the interim prohibitory order be made a final prohibito
ry order.
I have reconsidered the interim prohibitory order and I
wish to inform you that I have accepted the recommenda
tion made by the Board of Review. The interim prohibitory
order that was made against Book Bargains, Inc., on March
4, 1971, shall therefore be deemed, as from today, a final
prohibitory order.
Part II of the applicants' Memorandum of
Points of Argument contains a long list of
attacks on the validity of the proceedings in
these matters. During the course of argument,
however, counsel for the applicants made it
clear that he was not relying on any of the
attacks outlined therein except those that he put
forward in the course of argument. In particu
lar, he made it clear that he was not questioning
the conclusions of the Boards that the use of
the mails for the purpose of transmitting the
brochures in question constituted the specified
offences under the Criminal Code.
Three matters that were raised by counsel for
the applicants and that must be considered are:
(a) the lack of any recital by the Deputy
Postmaster General in either of the interim
prohibitory orders that he "believed on rea
sonable grounds" that the applicant was, by
means of the mails, committing the specified
offence,
(b) the inclusion in the Board's report in the
Book Bargains Inc. matter of a finding based
on the transmitting of the advertisement of
"More Blazing Sex-Films ..." which was not
referred to in the interim prohibitory order,
and
(c) the failure of the Postmaster General to
send the section 7(2) registered letters within
the statutory period of 5 days 3 .
I shall discuss the three points in the order in
which I have set them out.
First, I shall consider the lack of a recital in
the interim prohibitory order.
The only legal basis that I am aware of for
regarding the lack of a recital as something that
invalidates the order is that, in the absence of
appropriate recitals, one might have to conclude
that the order made did not fall within the
authority conferred by the statute on the Post
master General to make such orders 4 . I know of
no requirement that there be such a recital. In
certain circumstances at least such a recital
would be prima facie evidence of what is recit
ed and so might be sufficient evidence of the
essential jurisdictional facts. The only question
to be decided in this connection, however, is
whether the essential jurisdictional facts did
exist when the order was made. "The incom
pleteness of the recital is ... of no moment. It
is the substance of the matter that has to be
considered'''. It was not seriously contended on
behalf of the applicants that the Deputy Post
master General, who had taken legal advice on
the matter, did not believe on reasonable
grounds that the offences in question were
being committed "by means of the mails". I
have no doubt that he did believe it before he
signed the orders in question. Furthermore, I
am of opinion, after examining it, that the
material that he had before him was "reason-
able grounds" for such belief.
I turn to the second ground of attack that has
to be considered, namely, the fact that the
Board in the Book Bargains Inc. matter based
their report on the transmission of a brochure
"More Blazing Sex-Films . ..", which was not
referred to in the interim prohibitory order, as
well as on the brochure "WOMAN: Her Sexual
Variations and Functions", on the transmission
of which the interim prohibitory order was
based. This raises a problem of some difficulty.
On one view of the matter, the position is that
an interim prohibitory order was made against
the applicant based on the belief of the Deputy
Postmaster General that it was committing a
particular offence (s. 7(1)), that it requested, as
it was entitled to do (s. 7(2)), that that "order"
be inquired into, that the Deputy Postmaster
General was bound to reconsider that order in
the light of the results of the inquiry and either
revoke it or make it a final prohibitory order (s.
7(6)), and that, in those circumstances, it would
be unjust to face the person against whom the
interim order was made with additional grounds
at the inquiry stage. I have come to the conclu
sion, however, that that is an unduly narrow
view of the matter.
The view that, in my opinion, is more in
accord with the overall scheme of section 7 is
that, when, having reasonable grounds to
believe that a person is, by means of the mails,
committing an offence, the Postmaster General
makes an interim prohibitory order and the
person affected requests that the order be
inquired into, the statute contemplates an inqui
ry into the whole question as to whether the
relevant activities of that person are such as to
call for a permanent prohibitory order or not. In
the ordinary course of events, the Postmaster
General will have evidence, when he makes his
interim order, of only a few incidents. An inqui
ry may show that such incidents are capable of
an innocent explanation, or, on the other hand,
it may show that they are only a minor part of a
large scale criminal operation. That is the sort
of thing that the inquiry, in my view, is designed
to find out. This is apparent from the fact that
the Board is required to inquire into "the facts
and circumstances surrounding the interim
prohibitory order" and not merely the facts on
which the order was based and from the fact
that not only may the person affected present
evidence (s. 7(3)) but the Board "may consider
such further evidence, oral or written, as it
deems advisable" (s. 7(4)). There is no doubt in
my mind that the Board should inquire into the
volume of the distribution of the specified liter
ature being carried on by the person affected by
the interim order and should also inquire into
any criminal distribution of other literature in
the course of the same overall operation. I am
not saying that the Board has a mandate to
explore unrelated activities. Furthermore, the
person affected by the order is entitled to a fair
opportunity to answer anything alleged against
him. Here, in my view, the secondary piece of
literature on which the Board relied was clearly
distributed in the course of the same overall
business operation as that in which the piece of
literature specified in the order was distributed
and there has been no suggestion that there was
any lack of fairness in the hearing.
I now come to the question as to the effect of
the failure of the Postmaster General to send to
the persons affected by the interim prohibitory
orders the communications informing them of
the orders and the reasons therefor within the
period of five days established by section 7(2)
of the Post Office Act.
In the circumstances of this case, the only
possible effect of this failure is that it created a
right to have the final prohibitory orders set
aside. The applicants cannot, having regard to
their conduct, raise it as an objection to the
proceedings of the Boards of Inquiry and the
interim prohibitory orders are not before the
Court. Furthermore, as it appears to me, the
only basis on which this failure to comply with
the statute may be regarded as creating a right
to set aside the final orders is if, by virtue of it,
there were no interim orders to be declared
final in August, 1971. This could be so if the
failure to comply with section 7(2) automatical
ly nullified the interim orders or was subse
quently used as a basis to invalidate them
before they were declared final on August 17,
1971. I propose therefore to consider now what
was the legal effect of the delay in sending out
the section 7(2) letters on the initial prohibitory
orders that had been made before that delay
occurred.
In the first place, I am of the view that the
requirement in section 7(2) is an essential part
of the statutory scheme 6 and is not a mere
directory provision'. While it is nowhere
expressly stated in section 7, a complete failure
to comply with the requirements of section 7(2)
must, in my view, provide some basis for reliev
ing the person affected by an interim prohibito
ry order of the operation of that order. Whether
a mere delay in sending the registered letter
beyond the five-day period would be sufficient
for that purpose is something that, on the view
that I take of the matter, I do not have to
decide. For the purpose of this discussion, I am
going to assume that a mere delay in sending
the letter would be sufficient for the purpose.
The second aspect of the matter that must be
considered is precisely how a failure to comply
with section 7(2) operates in relation to the
interim prohibitory order. In my view, it does
not operate automatically to create a nullity out
of the perfectly valid order that, in the circum
stances of this particular statutory scheme,
must have been operative at the time that the
failure to comply with the statute occurred. A
failure to take the steps designed to afford the
person affected a hearing is, from this point of
view, of the same character as the failure, in the
ordinary case, to grant a fair hearing before
exercising a statutory power to make an order.
In such a case, even where the failure to grant a
hearing takes place before the order was made,
the failure to grant a hearing does not have the
effect of making the order a nullity. What it
does is to make the order voidable at the
instance of the party affected. That is, it
enables the person who was deprived of a hear
ing to challenge the order and have it declared
void ab initio as against him. No other person is
entitled to challenge it and the person who was
deprived of a hearing may refrain from chal
lenging it, in which event, it continues in full
force and effect. Compare Durayappah v. Fer-
nando [1967] 2 A.C. 337, per Lord Upjohn at
pp. 352-5.
In my view, therefore, the position is that,
assuming that the failure to send out the regis
tered letters within the five-day period was the
sort of breach of the statute that would give rise
to invalidating effect, it did not make the
interim prohibitory orders nullities but merely
gave the applicants a right to challenge them so
that they would be invalidated'. In my view,
unless and until such action was taken, the
orders continued in full effect.
The applicants did not, however, take any
action to have the orders invalidated. On the
contrary, they requested that the orders be
inquired into under section 7(2), which could
only be done if the orders continued in effect.
It is true that, by the letters requesting that
the interim prohibitory orders be inquired into,
the applicants stated that "This request, of
course, is without prejudice to any and all rights
of client". Assuming that this language would
operate to preserve rights inconsistent with the
holding of the inquiries concerning the orders,
the most that can be said for it is that the right
to challenge the orders and have them invalidat
ed was thereby preserved. It is also true that,
during the course of the proceedings before the
Boards, there was some discussion of the ques
tion of waiver as a result of which it is at least
arguable that there was an agreement that the
applicants should not be taken as waiving any
rights arising out of the failure to send the
letters within the five-day period. That also, as I
read the transcript of the hearing, can have
done no more than preserve the right to chal
lenge the orders at some subsequent time.
No such action to challenge the orders and
have them invalidated was taken while the
Boards were functioning or at any time before
the Deputy Postmaster General, after receipt of
the Boards' reports, declared the orders to be
final prohibitory orders.
In my view, therefore, the interim prohibitory
orders were still in effect when the Deputy
Postmaster General made his declarations under
section 7(6) as a result of which they became
final prohibitory orders. There is, therefore, in
this aspect of the matter, no basis for setting
aside those final prohibitory orders.
I have not overlooked the fact that, in the
Application to Review and Set Aside by which
these proceedings were instituted, which was,
of course, deposited after the final prohibitory
orders were made, there is a request that the
interim prohibitory orders be set aside. This
Court has not, however, jurisdiction to set aside
such orders and I therefore refrain from saying
anything concerning the question whether it is
still open to the applicants to take such pro
ceedings in the appropriate Court.
My conclusion is that the applications should
be dismissed.
* * *
THURLOW J. (orally)—By this application
under section 28 of the Federal Court Act the
applicants seek an order setting aside the deci
sions and recommendations contained in the
reports, dated August 6, 1971, of a Board of
Review under section 7 of the Post Office Act
and the final prohibitory orders of the Postmas
ter General made on August 17, 1971 as a result
of his acceptance of the decisions and recom
mendations of the said Board. In the case of
each of the applicants there had also been an
interim prohibitory order made by the Postmas
ter General on March 4, 1971, but, while the
notice of the application to this Court also
asked that these interim prohibitory orders be
set aside, the fact that they were made prior to
the coming into force of the Federal Court Act
appears to preclude any such relief and to make
points taken in respect of their validity relevant
only in so far as they may tend to establish the
absolute nullity of such interim orders and thus
affect the validity of the decisions made after
that time by the Board of Review and the
Postmaster General.
It would seem to follow from this that if the
decisions of the Postmaster General of August
17, 1971 to declare the interim prohibitory
orders to be final prohibitory orders were set
aside the consequence would be that the interim
prohibitory orders would remain, with such
effect, if any, as they had immediately before
the declaration of August 17, 1971 was made,
and further that the effect of setting aside the
decisions and recommendations of the Board of
Review as well would simply be to relegate the
matter one step further back, that is to say, to
the situation as it existed immediately prior to
the making of the Board's report.
Section 7 of the Post Office Act and the
applicable portions of the interim prohibitory
orders made thereunder against each of the
applicants have already been read and I shall
not re-read them. Nor do I propose to review
any more of the facts than appear to me to be
necessary to raise and deal with the matters put
forward in argument.
In the case of each of the applicants it was
admitted in the course of the proceedings
before the Board of Review that the applicant
had in fact made use of the mails to distribute
advertising brochures, as stated in the order
made against it, to recipients in Canada. Before
us, no submission was made by counsel that the
brochures in question were not in fact obscene
within the meaning of the Criminal Code of
Canada and it would in any case be difficult, if
not impossible, to seriously contend, either that
they were not obscene or indecent within the
meaning of section 153 of the Criminal Code, or
that the Board of Review could not properly
conclude that they were obscene or indecent
within the meaning of that section. Moreover,
the evidence put before the Board indicated
that in each case before making the interim
prohibitory order the Postmaster General had
before him an opinion of counsel that the bro
chures were obscene and that in each case these
brochures had been forwarded to Canadian
addressees in envelopes bearing the return
address of the applicant. In each case as Well
the material in the envelopes offered for sale
the books advertised in the brochures and invit
ed the recipient to reply to the applicant.
The first submission with which I propose to
deal was that under section 7(1) the authority of
the Postmaster General to make an interim
prohibitory order must be based on a belief on
reasonable grounds that a person is, by means
of the mails, committing or attempting to
commit an offence, etc., and that the interim
prohibitory orders made against the applicants
were defective in not reciting such a belief. The
answer to this, in my opinion, is that no form of
order is prescribed by the statute and nowhere
does the statute itself require that such a recital
be set out in the order. What is required by the
statute is that the Postmaster General have a
belief and that it be based on reasonable
grounds. Here it is, in my view, apparent that
such reasonable grounds existed in the case of
each of the applicants and were known to the
Postmaster General and his belief in them is to
be presumed from the fact that he exercised a
power that was conditional on his having such a
belief.
The applicants' next point was equally techni
cal and arose on the form of the notices of the
interim prohibitory orders that were sent to the
applicants. It was that the reasons for the
making of the orders were not stated in the
notices as required by section 7(2). It will be
observed that section 7(2) does not call for a
statement of the Postmaster General's beliefs or
of the evidence upon which he holds them but
of the reasons for the order. Here the notice in
the Medi-Data case stated:
TAKE NOTICE THAT on the 4th day of March 1971 an
Interim Prohibitory Order was made by the Deputy Post
master General pursuant to the provisions of section 7 of
the Post Office Act against Medi-Data Inc. whose postal
addresses are: P.O. Box 388, Van Brundt Station, Brooklyn,
N.Y. 11215 and P.O. Box 4399, Grand Central Station,
New York, N.Y. 10017 on the ground that Medi-Data Inc.
is, by means of the mails, committing an offence TO WIT
transmitting an obscene or indecent advertising brochure
entitled "Sex Education Without Censorship" contrary to
section 153 of the Criminal Code of Canada.
In the Book Bargains case the notice stated:
TAKE NOTICE THAT on the 4th day of March 1971 an
Interim Prohibitory Order was made by the Deputy Post
master General pursuant to the provisions of Section 7 of
the Post Office Act against Book Bargains Inc., whose
postal address is: P.O. Box 4040, Grand Central Station,
New York, N.Y. 10017 on the ground that Book Bargains
Inc. is, by means of the mails, committing an offence TO
WIT transmitting an obscene or indecent advertising bro
chure entitled "Woman her sexual variations and functions"
contrary to section 153 of the Criminal Code of Canada.
In each case the ground for the order appears
to me to be stated explicitly and I fail to see in
what respect the statement is insufficient to
satisfy the statutory requirement that the
person affected by the order be informed of the
reasons therefor.
The next point with which I shall deal is the
submission that the Board of Review exceeded
its jurisdiction in the Book Bargains Inc. case in
finding and reporting to the Postmaster General
that the advertisement of "More Blazing Sex-
Films" was obscene and that the use of the
mails for the purpose of transmitting it con
stituted the offence described in section 153 of
the Criminal Code when the transmission of this
advertisement was not the subject-matter of the
inquiry. It may be noted that the Board immedi
ately after finding that the transmission of the
advertisement of "Women" and "More Blazing
Sex-Films" constituted the offence in question,
proceeded to recommend that the interim
prohibitory order be made final but it did not
expressly find that Book Bargains Inc. had used
the mails to transmit the latter advertisement.
The only evidence of transmission by mail by
Book Bargains Inc. consisted of two envelopes
postmarked May 5, 1971 and May 7, 1971
respectively and bearing the name and an
address of Book Bargains Inc. as the return
address, together with the advertisements them
selves which invited replies to Book Bargains
Inc. In this case no admission was made that
the envelopes or advertisements emanated from
the applicant, but in the absence of evidence to
the contrary and having regard to the evidence
that was before the Board as to the nature of
the business of Book Bargains Inc. and the
manner in which it was conducted it was, in my
opinion, open to the Board to find, as I think it
should be regarded as having impliedly done,
that Book Bargains Inc. was responsible for the
transmission of these envelopes by means of
the Canadian mails.
The submission put forward by counsel on
this question, as I understood it, was that the
Board's finding that the advertisement for
"More Blazing Sex-Films" was obscene and the
transmission of it by mail an offence under
section 153 of the Criminal Code was prejudi
cial in that it tended to persuade the Postmaster
General to make the interim order final in a
general way, as he did, whereas if these findings
had not been made he might have considered
putting some limitation on the prohibition.
Under section 7(2) what the Postmaster Gen
eral is to refer to the Board is "the matter,
together with the material and evidence consid
ered by him in making the order." I take the
word "matter" to refer to the use by the person
affected of the mails to commit an offence
described in section 7(1) and the expression
"material and evidence" to refer to the informa
tion and evidence tending to establish the use
by that person of the mails for that purpose
which have come to the attention of the Post
master General and have given rise to his belief.
If, therefore, this were all that the Board were
empowered to consider there might well be
force in the applicants' contention. However,
subsections (3), (4) and (5) of section 7 provide
for other materials being put before the Board
and subsection (3) directs the Board to inquire
not merely into the facts of which the Minister
may have had knowledge but "into the facts
and circumstances surrounding the interim
prohibitory order." By subsection (4) the Board
is, moreover, expressly authorized to consider,
in addition to the material and evidence referred
to it by the Postmaster General "such further
evidence, oral or written, as it deems
advisable".
It seems to me that the statutory direction to
the Board of Review to inquire into the facts
and circumstances surrounding the interim
prohibitory order is broad enough to embrace
not merely an inquiry into the specific facts of
such particular mailings as may have come to
the attention of the Postmaster General but to
include as well an inquiry into the nature of the
business in which the person affected was
engaged, the sort of materials which he dealt in,
and his conduct in the use of the mails both
before and after the making of the interim
prohibitory order. It also seems to me that the
authority to consider such further evidence as it
deems advisable empowers the Board to consid
er in relation to the material referred to it the
conduct of the party affected in the use of the
mails in connection with other matters of which
the Board has evidence and, because it has
considered them, as it has authority to do, to
refer to such other evidence in its report. What
effect the Postmaster General thereafter gives
to it is for him to decide. It is, of course, not
inconceivable that such further evidence might
be highly favourable to the party affected by
the interim prohibitory order and might be a
cause of the Postmaster General deciding to
terminate it. On the other hand its effect may be
adverse, as it was in the present case. But so
long as the party affected is afforded a fair
hearing as required by subsection (3) in regard
to such additional evidence, including a fair
opportunity to rebut it, no legal objection can
be taken to the Board's receiving and consider
ing it and if the Board is entitled to consider it I
can see no sound objection to their reporting on
it. Here no complaint is made of any lack of a
fair hearing and in my opinion the objection is
not sustainable.
The remaining point that calls for considera
tion is the submission that the Board and the
Postmaster General acted without jurisdiction
because the notices of the making of the interim
prohibitory order were not given within the five
day period prescribed by section 7(2). In the
course of argument there was a discussion of
whether the requirement of this subsection was
directory or mandatory but to my mind no
purpose is served by endeavouring to character
ize the requirement in this way. I incline to
think it is mandatory but, even if it is not, it
would be open to question whether the giving of
notice as late as fourteen days after the making
of the order could be regarded as substantial
compliance with a direction to give the notice
within five days. But, whether directory or
mandatory, the requirement, as I read it, is one
for the benefit of the person affected and strict
compliance with it is capable of being waived.
The failure to comply with the mandatory
requirement, however, in my opinion, has no
ipso facto effect on the validity of the interim
prohibitory order. That order is regularly made
ex parte. It is valid when made and continues to
be valid and unassailable during the five day
period. As I see it it also stands after the expiry
of the five day period until it is voided by a
competent authority and in the meantime it is
always open to the person affected to waive the
failure of which he might have taken advantage.
Such a waiver is in my opinion to be implied
whenever the person affected, with knowledge
of the facts, takes a course which is not consis
tent with his exercise of his right to have the
order voided by competent authority on the
ground of failure to comply with the statutory
requirement and in my view the requests of the
applicants for reference of the matter to a
Board of Review in the present case were,
subject to what I shall add with respect to the
purported reservation of rights, effective waiv
ers of the applicants' rights to object to the
timeliness of the notices.
The reservation to which I have referred was
expressed in the letter by which Book Bargains
Inc., through its New York attorneys, requested
an inquiry by a Board of Review and it was
incorporated by reference in the request of
Medi-Data Inc. as well. In the Book Bargains
case the letter, after acknowledging receipt of
the notice of the order, read:
On behalf of said client, we hereby request that the
Interim Prohibitory Order be inquired into.
I should also appreciate it if you could advise me whether
it would be proper or appropriate for me to represent the
client in Canada, either with or without legal counsel.
This request, of course, is without prejudice to any and
all rights of client.
At that moment the rights of the applicants
were to take proceedings to have the order
quashed or to waive that right and insist on a
hearing before a Board of Review.
Thereafter, the Board of Review was appoint
ed and convened and proceeded to make its
inquiries and reports.. At the start of the first
inquiry, however, counsel for the applicants
objected that because of the failure to give the
notices in time the Postmaster General had no
jurisdiction to continue the orders in effect and
the inquiries proceeded on the understanding
that participation therein by the applicants and
their counsel would not be treated as waiving
their rights.
Notwithstanding these reservations, however,
it appears to me that, so far as the proceedings
of the Board of Review are concerned, includ
ing its report and recommendations and the
action of the Postmaster General thereon,
which are the subject-matters of this applica
tion, the objection as to the timeliness of the
notice must be treated either as having been
waived or as being irrelevant. The inquiries
were requested by the applicants. They were set
up and conducted pursuant to that request.
They could have no basis for existence save as
inquiries under section 7 requested by persons
affected by interim prohibitory orders. And
having requested and participated in them the
applicants, in my view, should not now be heard
to challenge that they were in fact and in law
inquiries under section 7 or that the Board did
not have jurisdiction, when convened, to pro
ceed to conduct the inquiries and make its
reports and recommendations. Nor do I think
the applicants are in a position to challenge the
authority of the Postmaster General to make a
declaration under section 7 after reviewing the
reports and recommendations of the Board.
What may yet be reserved to each of the
applicants under the reservation of its letter and
its preliminary objection at the hearing, though
no concluded view on the question is required
and I, therefore, express none, is any right it
may have had to attack the interim prohibitory
order itself for the purpose of having it
quashed. Such an attack, however, as already
indicated, is not open to it on this application
and any ground it may have for such an attack,
cannot, in my view, while the order itself
stands, afford a basis for attacking a proceeding
which is based on the existence of the order and
the request of the applicant itself for such
proceeding.
I would dismiss the application.
* * *
WALSH J. (orally)—This is an application to
review and set aside the decisions and recom
mendations made on August 6, 1971 by the
Board of Review appointed by the Postmaster
General pursuant to the provisions of section 7
of the Post Office Act, and to review and set
aside the final prohibitory orders of the Post
master General made on August 17, 1971 as a
result of his acceptance of the decisions and
recommendations of the said Board, as well as
the interim prohibitory order.
These various decisions are based on section
7 of the Post Office Act, R.S.C. 1970, c. P-14
which I shall not quote in extenso as it is quoted
in the Reasons for Judgment of the Chief
Justice.
Following complaints received (although
admittedly relatively few in number in relation
to the total mailings of the material in question)
the Postmaster General caused an investigation
to be made as a result of which he issued two
interim prohibitory orders against the two appli
cants, among others, both dated March 4, 1971.
The order against Medi-Data reads:
PURSUANT TO the provisions of section 7 of the Post
Office Act the undersigned hereby makes an Interim
Prohibitory Order against:
(c) Medi-Data Inc. whose postal addresses are: P.O. Box
388, Van Brundt Station, Brooklyn, N.Y. 11215 and P.O.
Box 4399, Grand Central Station, New York, N.Y. 10017
on the ground that Medi-Data Inc. is, by means of the
mails, committing an offence TO WIT transmitting an
obscene or indecent advertising brochure entitled "Sex
Education without Censorship" contrary to section 153
of the Criminal Code of Canada;
PURSUANT TO this Order the delivery of all mail directed
to or deposited in a Post Office by any of the persons or
corporations mentioned in paragraphs (a) to (j) inclusive is
prohibited.
An identical order was made against applicant
Book Bargains Inc. with relation to an advertis
ing brochure entitled "Woman: Her Sexual
Variations and Functions".
Notice of the making of these orders was
only given to applicants pursuant to section 7(2)
on March 18, 1971, that is to say, fourteen days
after the order instead of five days as required
by the said section. The notice complies with
the requirements of subsection (2) of the Act
with the exception of the delay within which it
was given and a copy of section 7 of the Act
was attached to the notice.
As a result of this, Mr. Levy, the New York
attorney for applicants, wrote the Deputy Post
master General on March 25, 1971 on behalf of
Book Bargains Inc. together with a further
letter on behalf of Medi-Data Inc., incorporat
ing by reference and making part thereof the
contents of the letter written on behalf of Book
Bargains Inc. The first two paragraphs of the
former letter read as follows:
We represent Book Bargains Inc., which has received a
notice from you dated March 18, 1971, advising client that
14 days previous to the date of your notice, an Interim
Prohibitory Order was issued.
On behalf of said client, we hereby request that the
Interim Prohibitory Order be inquired into.
and the fourth and fifth paragraphs read:
This request, of course, is without prejudice to any and
all rights of client.
It may be that we can amicably dispose of this matter
without litigation. If the Canadian Post Office were willing
to enter into an agreement under which advertisements for
the book mentioned in your letter would no longer be sent
into Canada by mail, and permitting all other mailings
(except for advertisements for the aforementioned book),
client would be willing to settle the matter on such basis,
providing, of course, that it is agreed that such a stipulation
would not constitute an admission by client that the book in
question was obscene, nor, of course, would it constitute an
admission by Post Office Department that it was not
obscene.
In due course a Board of Review was set up
and heard evidence and full representations on
behalf of applicants and the Postmaster General
including the introduction of an additional
advertising folder for "More Blazing Sex-
Films" as well as the introduction by applicants,
although these exhibits were filed subsequently,
of the books referred to in the advertising bro
chures with respect to which the interim
prohibitory orders had been made. The conclu
sion of the report of the Board of Review dated
August 6, 1971, in connection with applicant
Medi-Data Inc. reads as follows:
In the circumstances, and for the above reasons, the
Board of Review finds that the use of the mails for the
purpose of transmitting the advertisement "SEX EDUCA
TION WITHOUT CENSORSHIP!" constitutes the offence
described in section 153 of the Criminal Code. The Board
of Review recommends that the interim prohibitory order
be made a final prohibitory order.
In the case of applicant Book Bargains Inc. it
reads:
The Board of Review finds that the use of the mails for
the purpose of transmitting the advertisement of "WOM-
AN: Her Sexual Variations and Functions" (and the adver
tisement of "More Blazing Sex-Films ...") constitutes the
offence described in section 153 of the Criminal Code. The
Board of Review recommends that the interim prohibitory
order be made a final prohibitory order.
Section 153 of the Criminal Code referred to in
the interim prohibitory order and the report of
the Board of Review, reads as follows:
153. Every one commits an offence who makes use of
the mails for the purpose of transmitting or delivering
anything that is obscene, indecent, immoral or scurrilous,
but this section does not apply to a person who makes use
of the mails for the purpose of transmitting or delivering
anything mentioned in subsection (4) of section 151.
(This section is now section 164 of the Criminal
Code R.S.C. 1970, c. 34.)
Pursuant to section 7(6) of the Post Office
Act the Deputy Postmaster General then
reviewed the interim prohibitory orders and
wrote letters to the New York attorney of appli
cants on August 17, 1971, reading in part:
I have reconsidered the interim prohibitory order and I wish
to inform you that I have accepted the recommendation
made by the Board of Review. The interim prohibitory
order that was made against ... on March 4, 1971, shall
therefore be deemed, as from today, a final prohibitory
order.
Even the most cursory examination of the
pamphlets in question indicates that they are
obscene within the definition of section 150(8)
of the Criminal Code (now section 159(8))
which reads as follows:
(8) For the purposes of this Act, any publication a domi
nant characteristic of which is the undue exploitation of
sex, or of sex and any one or more of the following
subjects, namely, crime, horror, cruelty and violence, shall
be deemed to be obscene.
and hence the Postmaster General and Board of
Review were correct in finding that applicants
were making use of the mails "for the purpose
of transmitting or delivering anything that is
obscene, indecent, immoral or scurrilous"
within the meaning of the then section 153. The
fact that the material was unsolicited and
enclosed in an inner envelope reading:
NOTICE—READ BEFORE OPENING
This envelope contains unsolicited sexually oriented, illus
trated literature and brochures. The enclosed brochures
may photographically or pictorially illustrate pictures of
nude women and/or nude men together or separately in
erotic situations, sexual embrace or intercourse and may
include pertinent text.
IF YOU ARE NOT OVER THE AGE OF 21 AND/OR
NOT INTERESTED IN SEEING OUR BROCHURES
AND PURCHASING THIS MATERIAL, THEN:
PLEASE DISPOSE OF THIS ENVELOPE WITHOUT
OPENING!!
It is not our intention to disturb, annoy or offend any
person not interested in our literature. If you wish your
name removed from our mailing list, please return to us the
coded mailing label that bears your name and address. If
you receive another mailing from us; after requesting the
removal of your name, this would be only because your
name appears on a list we rented from another firm and we
were unable to delete your name from this list.
does not, in my view, help applicants. It was
conceded before the Board of Review that the
pamphlets in question could be mailed to
addressees under the age of 18, and in such an
event a warning as to the nature of the contents
would be more likely to titillate the curiosity of
the recipient, as it would also in the case of
many adults, than cause them to reject the
contents unopened.
Applicants contended that in the case of the
findings of the Board of Review with respect to
Book Bargains Inc., these were invalidated by
the consideration of the advertisement for
"More Blazing Sex-Films" which was not con
sidered by the Postmaster General in making his
interim prohibitory order. The answer to this
argument is found in section 7(4) of the Post
Office Act giving the Board of Review the right
to consider, in addition to the material and
evidence referred to it by the Postmaster Gen
eral, "such further evidence, oral or written, as
it deems advisable". I am satisfied that the
scheme of the legislation requires the Postmas
ter General to make a summary finding in order
to issue an interim prohibitory order on the
basis of such evidence as is before him at the
time, but that, when after due notice has been
given to the party against whom the order has
been made, a Board of Review is set up at his
request, the Board of Review must then, in
accordance with section 7(3) "inquire into the
facts and circumstances surrounding the interim
prohibitory order". The order is not made with
respect to a certain piece or pieces of material
but against a person who has mailed such
material, and in deciding whether an offence
appears to have been committed against what
was then section 153 of the Criminal Code, a
full investigation should be made by the Board
of Review with a view to determining the
volume of the material sent and the nature, not
only of the material with respect to which the
initial complaint has been laid but of any other
material being mailed by the same person. The
fact that not all of this material may be obscene
is of no aid to the mailer since if he has mailed
some obscene material, the order will, in effect,
cancel his mailing privileges. It was, therefore, I
believe proper for the Board of Review to go
beyond the scope of the material which was
before the Postmaster General when he made
the interim prohibitory order and examine such
further and additional material as might be sub
mitted by either the applicants or the Postmas
ter General.
Applicants further invoke section 7(7) of the
Post Office Act which reads as follows:
7. (7) The Postmaster General may revoke an interim or
final prohibitory order when he is satisfied that the person
affected will not use the mails for any of the purposes
described in subsection (1), and the Postmaster General
may require an undertaking to that effect from the person
affected before revoking the order.
and direct attention to the letter of Mr. Levy of
March 25, 1971 requesting an inquiry into the
interim prohibitory order in which he suggests
in the 5th paragraph (supra) that an agreement
might be entered into under which advertise
ments for the book in question would no longer
be sent into Canada by mail, permitting all other
mailing, the whole without any admission that
the book in question was obscene. I do not find
that this was a formal request by applicants to
invoke section 7(7) of the Act nor that there is
any obligation on the Postmaster General to
apply section 7(7), the said section being per
missive, and I might add that, in my opinion, the
Postmaster General very properly failed to
accept applicants' proposed settlement which
would have had the effect of banning only the
pornographic material specifically complained
of and under consideration at the time, leaving
applicants free to continue to use the mails for
other similar material had they so desired,
including any books for which orders might
have been received as a result of the said por
nographic advertising pamphlets. As already
stated, the order is against an individual mailer
who is mailing pornographic material and
affects any material which he may mail, and is
not directed against one specific piece of porno
graphic material which is under investigation at
the time.
Applicants argue that the form of the interim
prohibitory order is defective in that it does not
follow the wording of section 7(1) of the Act by
stating therein that the Postmaster General
believes "on reasonable grounds" that appli
cants are by means of the mails committing an
offence contrary to section 153 of the Criminal
Code. I do not find much substance to this
objection. While it might have been preferable
if this statement had been made in the order, it
is nevertheless clear from the evidence relating
to the material before the Postmaster General
that he acted on legal opinion of departmental
counsel and therefore "on reasonable grounds"
and not impetuously or without due considera
tion of the material before him, and the nature
of the material before him is spelled out in the
orders which specifically name the offending
brochures. Furthermore, in the notices sent to
applicants advising them of these orders it is
stated that they were made "pursuant to the
provisions of section 7 of the Post Office Act"
and, hence, by implication "on reasonable
grounds" even though these words are not
specifically used in the orders or letters giving
notice of them.
The most serious argument raised by appli
cants deals with the effect of the delay in giving
notice to applicants of the issue of the interim
prohibitory order, which notices were given
nine days later than they should have been
under the provisions of section 7(2) of the Act.
Applicants claim that they suffered grave preju
dice as a result of this as otherwise they might
have immediately desisted from mailing further
such material and therefore avoided the addi
tional mailing costs and the seizure of this
material. It is of some interest to note, however,
that the force of this contention is considerably
weakened by the fact that some of the exhibits
in the file bear post marks long after March 18,
1971 and hence it can be inferred that the
mailings were continued even after notice of the
interim prohibitory order had been received.
The real issue is whether the requirement of
giving notice within five days after the order is
issued is a mandatory requirement such as to
nullify the effect of the order if such notice is
not given within the required time. While the
Postmaster General should undoubtedly comply
meticulously with the requirements of the law
and the giving of the notice is an essential
requirement, as otherwise applicants would
have no means of knowing that their mailing
privileges had been cancelled and the material
they were continuing to mail was being seized,
it is clear that the order takes effect from the
date when it is made and that its effect is not
suspended until this notice has been given. The
notice is a supplementary step which should be
taken and which the Postmaster General could
no doubt be obliged to take by appropriate legal
proceedings in the event of his failure to do so
of his own volition to the prejudice of the
person against whom the order is made, but the
failure to take it within the five day period does
not of itself make the order radically null ab
initio. In my view, it merely gives the person
against whom it has been made the opportunity
of asking that it be set aside by appropriate
proceedings before a court having jurisdiction
to do so by way of certiorari. Since this Court
does not have jurisdiction over such proceed
ings with respect to an order made prior to June
1, 1971, I express no views on whether such
proceedings would have succeeded, on whether
they are still open to applicants, nor on the
related question as to whether a notice given
nine days late nevertheless constitutes "sub-
stantial compliance" with the requirements of
the Act.
In the present case applicants' New York
attorney was evidently well aware that the
notice had not been given to his clients within
the time required by the Act. His clients had
been sent copies of section 7 of the Act with
the letters giving them notice and in the first
paragraph of his letter o•f March 25, 1971, he
makes a point of the date of the notice being
fourteen days after the issue of the interim
prohibitory order. Despite this, a request is
made to inquire into it although "without preju
dice to any and all rights of client". At the
opening of the hearing before the Board of
Review, he raised this question and states:
... Therefore, the only way this could be remedied, I would
believe, would be by the Board of Review really declaring
not that the Board of Review has no jurisdiction in a sense,
but that the Postmaster General has no jurisdiction to
continue the order in effect—that is, the order that has been
made in this case, and in the other case—since due and
proper notice was not given thereof.
After considerable discussion between counsel,
the Chairman of the Board of Review ruled as
follows: (Proceedings before Board, p. 35)
The Board of Review feels that either the defect can be
cured, or the defect would render the interim prohibitory
order invalid. Should the order become invalid in that
fashion, which the Board does not believe, then undoubted
ly the Board would have no jurisdiction to entertain the
review, and the Board would not be the proper forum in
which to raise this objection, because the Board could not
rule upon this objection. On the assumption, however, that
the defect is curable then the Board can review the case,
and make a recommendation which is not a decision and
which is not binding upon the Postmaster General, and the
party affected in any event can avail itself of the present
review without renouncing any rights it might contend to
possess as to attacking either the jurisdiction of the Board
or the validity of the order.
Can we proceed on that basis and ruling, Mr. Levy?
and Mr. Levy replied:
On the understanding that this continuation would be
without prejudice and without waiver, we would consent to
that, sir.
I do not think it would be reasonable to say,
therefore, that Mr. Levy waived his clients'
rights to object to the delay in giving notice of
the interim prohibitory order but I do find that
the Board was not the proper forum in which to
make this objection. The Board of Review is
required merely to "inquire into the facts and
circumstances surrounding the interim prohibi
tory order" after giving "the person affected a
reasonable opportunity of appearing before the
Board of Review, making representations to the
Board and presenting evidence". It is not a
court and its function is limited to dealing with
the facts with the view of determining whether
the order was justified, in its view, and recom
mending whether it should be made final. I
therefore agree with the Board's findings on
this matter as set out on page 2 of its report
(page 65, Appeal Book) where it states:
... The Board is of the opinion that the interim prohibitory
order is not invalidated in the circumstances and that should
a "grave prejudice" have been suffered by the persons
affected, their remedy lies elsewhere than before a Board of
Review that has to inquire into whether the Postmaster
General had "reasonable grounds" to believe that a person
is by means of the mails committing or attempting to
commit an offence, and following the inquiry, to make
"recommendations". Furthermore, the Board does not con
sider that, in the circumstances, the fact of informing the
applicants within fourteen days in lieu of five days consti
tutes a jurisdictional fact in relation to the Board of Review;
thus, having regard to its duty to inquire pursuant to the
request of the persons affected and pursuant to the refer
ence to the Board by the Postmaster General, and having
regard also to the fact that the Postmaster General could
issue or could have issued another interim prohibitory
order, the Board of Review feels that it must submit a
report in each case herein.
The question of whether the interim prohibi
tory order should be set aside because notice of
same was not given to applicants within five
days of the issue thereof is not before this
Court in these proceedings and on the basis that
such order has not been set aside by a court of
competent jurisdiction in appropriate proceed
ings, it must be considered as remaining in
effect. On this basis the application to review
the recommendations in the report of the Board
of Review as well as the decision of the Post
master General accepting these recommenda
tions that the orders be made final prohibitory
orders should be dismissed. It is true that the
final prohibitory order is not a decision de novo
and cannot stand by itself but is merely a reaf-
firmation, after investigation and report by the
Board of Review and a reconsideration of their
recommendation, of the interim prohibitory
order and that therefore, in the event that the
interim prohibitory order should be found inval
id, subsequent proceedings would also fail, but
no such finding having been made in the present
matter nor in fact being capable of being made
on the proceedings brought to date, the interim
prohibitory order is capable of being so reaf
firmed by the final prohibitory order.
Applicants' application to review and set
aside the orders in question must therefore fail
and be dismissed.
' The Application to Review and Set Aside also refers to
"the interim prohibitory orders" but as these were made on
March 4, 1971, this Court has no jurisdiction to set them
aside. See section 61 of the Federal Court Act, which came
into force on June 1, 1971, and the decision of this Court in
In re Copyright Appeal Board and Canadian Association of
Broadcasters [1971] F.C. 170.
2 Section 7 of the Post Office Act should be read with
section 23(2) of the Interpretation Act, c. 7 of the Statutes
of 1967 (R.S.C. 1970, c. I-23), which reads as follows:
23. (2) Words directing or empowering a Minister of the
Crown to do an act or thing, or otherwise applying to him
by his name of office, include a Minister acting for him, or,
if the office is vacant, a Minister designated to act in the
office by or under the authority of an order in council, and
also his successors in the office, and his or their deputy, but
nothing in this subsection shall be construed to authorize a
deputy to exercise any authority conferred upon a Minister
to make a regulation as defined in the Regulations Act.
3 A fourth matter concerning the form of the notices of
the interim prohibitory orders was also raised and on that
point I adopt the views to be expressed by Thurlow J.
4 In which event, it would be a nullity and, that being so,
there would have been no foundation for the final prohibito
ry orders that are before the Court in this proceeding.
5 Cf. Cooperative Committee on Japanese Canadians v.
Attorney General for Canada [1947] A.C. 87 per Lord
Wright at p. 107.
e Compare The Queen v. Randolph [1966] S.C.R. 260 per
Cartwright J. (as he then was) delivering the judgment of the
Court, at p. 266: "The main object of s. 7 is to enable the
Postmaster General to take prompt action to prevent the use
of the mails for the purpose of defrauding the public or
other criminal activity ... Sub-section (1) enables him to act
swiftly in performing the duty of protecting the public while
subs. (2) gives protection to the person affected by confer
ring the right to a hearing before any order made against
him becomes final."
SI For a discussion of imperative and directory enact
ments, see Maxwell on Interpretation of Statutes, 12th ed.,
pp. 314 ff.
e A further question would arise in a case under section 7
of the Post Office Act as to whether such invalidation would
be retroactive and, if so, to what extent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.