It's the freedom to ban versus the freedom to read
If it was your impression that the practice of
censorship by Canada Customs agents had changed
since the Little Sister's bookstore began their legal
battle 10 years ago, think again. In fact, the
number of seizures at the border is on the rise.
Thursday, February 18, 1999
Toronto -- If Toshiya Kuwabara wondered whether Canada Customs agents might be distracted from their usual vigilance by the national celebration of Freedom to Read Week, he got his answer on Tuesday, when two boxes of books bound for the store he manages were seized at the U.S. border.
Kuwabara, co-manager of the Glad Day Bookshop in Toronto, now awaits a ruling from the Prohibited Importations Directorate in Ottawa on whether the books (which, he says, are all-text gay fiction, with no photos and little sexual content) are obscene. If they are ruled obscene, he stands to lose $1,553, when the books are burned. "Did they even bother to look at the books?" asks Kuwabara. "Or did they just look at the cover, and say 'no, no, no, no'?"
It is 10 years since the issue of censorship by Canada Customs was first thrown into the national spotlight with the Little Sister's bookstore case, the first time many Canadians realized that Customs agents are the nation's de facto censors. With the protracted court battles that have marked the case, and various directives to Customs to update its practices, many people were left with the impression that the process had changed. Indeed, Freedom to Read Week (it ends Sunday) might seem a somewhat melodramatic sort of occasion in a country that prides itself on its liberties.
But ask small booksellers and distributors. "Stuff is still stopped, still seized, still banned," says Janine Fuller, owner of Little Sister's in Vancouver. "A handful of people are still deciding what Canadians do or don't read . . . Over the past year there have been more stoppages [than in any of the previous three years]."
Little Sister's first went to court in 1990, arguing that Customs had unconstitutionally broad powers at the border. Finally, in 1994, the store lost on appeal. But the decision was split, and Little Sister's (and its partner in the case, the B.C. Civil Liberties Association) asked the Supreme Court to consider an appeal. A decision on whether to hear an appeal will be announced today. Legal experts expect the Court will hear the case, because of the national importance of the issue.
Now, the censorship process works like this. When imported material arrives at the border, a Customs agent looks at a description of the goods, and the name of the importer, and decides whether to examine it. If, upon inspection, the agent feels the materials may be obscene (or treasonous, or hate propaganda), the books are detained, and the importer receives a form indicating the problem area. The importer can then appeal and the material is sent to Ottawa. If the directorate deems it permissible, the importer gets the material -- possibly months after it was ordered. But if the material is ruled obscene, the importer must fight the ruling in court, or else the books are incinerated. (Theoretically, the importer can arrange to export it back, but no bonded courier will transport material deemed obscene, effectively eliminating the export option).
National Revenue refused repeated requests by The Globe and Mail to allow a reporter to meet employees who do the job or to watch them at work. "This material is prohibited because we don't want you to see it," explained Colette Gentes-Hawn, spokesperson for the Prohibited Imports Directorate. She also cited the issue of confidentiality, in that the government could not reveal who was attempting to import what, and said customs' offices are "secure areas" where no one but government employees is permitted.
Anti-censorship activists are particularly alarmed by the broad powers given to Customs agents, whose other duties include inspecting broccoli and mattresses.
"It is somewhat anachronistic, to put it mildly, to give censorship powers to individuals in the department of National Revenue," says Bruce Ryder, professor of Constitutional Law at Osgoode Hall. "Most Canadians say you have to have some Customs censorship -- for the worst hate propaganda and child pornography. But Canadians also say you have to exercise it with great restraint and respect for the competing value of freedom of expression."
People trained to determine tariffs should not be deciding if literature falls within the obscenity law, he says. "We empower customs officials to decide on their own initiative if visual and written material is prohibited. A procedure which asks Customs officials to make those determinations without a hearing is ridiculous and unacceptable in a free and democratic society. There are no safeguards, no hearings and no explanations."
Books which are widely available across the country may be stopped -- as with Best of Gay Erotica 1999, 48 copies of which were on their way to Publishers Group West last week. Meanwhile, Hitler: Born At Versailles, a critically recognized biography, is listed as banned on last September's ruling sheet, along with the May 1999 issue of something called White Arian Resistance. The Story of O appears on the most recent list.
Esther Vincent, co-owner of Marginal Distribution, a book distributor based in Peterborough, Ont., got a bald lesson in just how the system works recently. Vincent notified a Customs warehouse in St. Laurent, Que. to say that, after weeks of effort, she had managed to arrange export for magazines that Customs had deemed obscene. Rather than have them incinerated, she planned to send them to a distributor in the United States, who would sell them, recouping some of her financial loss.
"But the woman who answered the phone said, 'Most people find out it's too hard to re-export and they give up and I assumed you'd do the same so I burned them,' " recalls Vincent, her voice still incredulous. "You think this is a free country and then you find out it's not."
Gentes-Hawn is quick to point out that the arbitrary incineration of Vincent's box was counter to policy.
Vincent says she finds the "obscenity" ruling absurd. While she had never seen the magazines that were burned, she has sold other issues of the same periodical. Other World Kingdom News is a Czech newsletter about a spa where European men pay pots of money to be humiliated by women. "This is not kiddie porn, or bestiality, or people being physically traumatized," sighs Vincent. "It's just goofy."
Fuller says stories like these are proof that although Customs has made some revisions in administrative practice since the start of their court battle, there has been no change in the impunity which characterizes agents' behaviour. And there likely won't be, Ryder says, until a Supreme Court decision forces the government to take action.
TOO HOT TO HANDLE
A total of 3,500 shipments contained material that was prohibited in the last fiscal year. The "overwhelming majority" of that was visual (CD-Roms, videos and comics), according to reports by the Prohibited Importations Directorate.
Material is seized for four reasons: hate propaganda, treason, sedition (these three make up less than 1 per cent of seizures) and obscenity.
The obscenity category breaks downs as follows: sex with violence, bestiality, child sex, necrophilia, incest and other.
"Other" can include: bondage, sex with degradation, sex with pain, sex with domination, sex with submission, sex with humiliation, sex with mutilation and sexual assault. -- Staff
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