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Vol. 142, No. 9 — March 1, 2008
Regulations Amending the Non-mailable Matter Regulations
Statutory authority
Canada Post Corporation Act
Sponsoring agency
Canada Post Corporation
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
These proposed amendments to the Non-mailable Matter Regulations would stipulate that sexually explicit material is unacceptable for mailing as addressed admail or unaddressed admail unless it is contained in an opaque envelope bearing a warning that it contains adult material. A Federal Court decision on January 14, 2008, gave Canada Post six months to prescribe these requirements, currently set out in policy documents, in law. The Regulations must therefore come into effect by July 14, 2008.
Description
The Non-mailable Matter Regulations, made under section 19 of the Canada Post Corporation Act, set out a list of items that Canada Post will not accept for mailing purposes and provide for the manner of disposing of such items. These Regulations do not refer to the mailing of sexually explicit material.
Currently, it is Canada Post practice not to accept sexually explicit material for mailing as admail unless it is in an envelope with an appropriate notice. The Canada Postal Guide and the customer guides indicate that Canada Post retains the right to refuse any item it deems unacceptable. This practice is designed to protect the public, and especially children, from receiving unsolicited advertising material that may shock or offend.
In 2006, Canada Post refused to accept, as unaddressed admail, a flyer containing sexually explicit material from the Sex Party, a political party registered in British Columbia. The client was given the option of enclosing the flyer in an envelope clearly marked as containing adult material. The Sex Party applied to the Federal Court for a judicial review of Canada Post’s decision, alleging that the decision was contrary to the Canada Post Corporation Act and violated their Charter right to freedom of expression.
The Court found, on January 14, 2008, that Canada Post’s decision to impose conditions on the distribution of sexually explicit material is justifiable in a free and democratic society, but that to be enforceable the decision needed to be set out in law rather than in policy documents. Canada Post was given six months to make a regulation prescribing sexually explicit material to be non-mailable.
The regulatory amendment provides a definition of sexually explicit material, as agreed to by the court (e.g. images of nudity that are suggestive of sexual activity), and specifies that such material is non-mailable as addressed or unaddressed admail unless it is contained in an opaque envelope that is marked as containing adult material. Sexually explicit material will also not be permitted on the outside of an envelope.
Because the regulatory amendment reflects current Canada Post policy, it is not expected to impose a financial burden on clients. The price to the sender of providing opaque envelopes for the admail is relatively low compared to the potential for harm or offence to consumers, especially children, from receiving sexually explicit material unexpectedly in the mail.
Clarifying in law that sexually explicit material is non-mailable as admail will protect the rights of both the sender and the receiver. The general public will be afforded protection against receiving unsolicited material that they may find offensive or unsuitable for viewing by children. The sender will know the conditions under which such material may be sent, i.e. in a specially marked envelope. Canada Post employees will also have clear direction on the mailing of such material without needing to make value judgments on what constitutes offensive material.
Consultation
No consultations were undertaken with respect to the proposal, as the proposed amendments are a result of a Federal Court decision. Canadians are being given an opportunity to comment on the proposal following pre-publication in the Canada Gazette. A 60-day comment period is required under the Canada Post Corporation Act.
Compliance and enforcement
The Non-mailable Matter Regulations are enforced by Canada Post under the Canada Post Corporation Act. No increase in the cost of enforcement is expected as a result of these amendments.
Michelle Gosselin
General Manager
Regulatory Affairs
Canada Post Corporation
2701 Riverside Drive
Ottawa, Ontario
K1A 0B1
Telephone: 613-734-8207
Fax: 613-734-7207
Email: michelle.gosselin@canadapost.ca
Notice is hereby given, pursuant to subsection 20(1) of the Canada Post Corporation Act (see footnote a), that the Canada Post Corporation, pursuant to subsection 19(1) (see footnote b) of that Act, proposes to make the annexed Regulations Amending the Non-mailable Matter Regulations.
Interested persons may make representations with respect to the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to the Minister of Transport, House of Commons, Ottawa, Ontario K1A 0A6.
CANADA POST CORPORATION
REGULATIONS AMENDING THE NON-MAILABLE
MATTER REGULATIONS
AMENDMENTS
1. Paragraph 4( e ) of the Non-mailable Matter Regulations (see footnote 1) is replaced by the following
(e) any non-mailable matter included in item 5 or 8 of the schedule shall, where its outside cover bears a return address, be returned to the sender or, where its outside cover does not bear a return address, be disposed of in accordance with the Undeliverable and Redirected Mail Regulations.
2. The Schedule to the Regulations is amended by adding the following after item 7:
|
Item |
Non-mailable Matter |
|---|---|
|
8. |
(1) For the purposes of subitems (2) and (3), sexually explicit material that is sent as addressed admail or unaddressed admail means (a) images or representations of nudity that are suggestive of sexual activity; (b) images or representations of sexual intercourse, with no suggestion of violence or degradation; or (c) written text that describes sexual acts in a way that is more than purely technical, with no suggestion of violence or degradation. |
|
(2) Sexually explicit material that is not in an opaque envelope with the words “adult material” or a similar warning. |
|
|
(3) Sexually explicit material that is on the outside of an envelope. |
COMING INTO FORCE
3. These Regulations come into force on the day on which they are registered.
[9-1-o]
Footnote a
R.S., c. C-10
Footnote b
S.C. 1992, c. 1, s. 34
Footnote 1
SOR/90-10
NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).
