Gay-book sellers win Supreme Court case
Customs agents blasted for harassment

Kirk Makin and Caroline Alphonso

Saturday, December 16, 2000

TORONTO, VANCOUVER -- Canada Customs carried out a campaign of harassment against a Vancouver gay and lesbian bookstore by repeatedly seizing books and videos its agents deemed obscene, the Supreme Court of Canada said yesterday.

A 6-3 majority nonetheless concluded the problem lay in unsophisticated or reckless agents, not with legislation that permits them to seize material bound for Little Sister's Book and Art Emporium.

The court majority rapped Canada Customs sharply on the knuckles for its 15-year "running battle" with the bookstore, but it struck down just a solitary legislative provision, one that put the onus on importers to prove seized material is not obscene.

The judgment, widely anticipated as among the year's most important, met with a mixed reception. Some believe it will securely tie the hands of customs agents.

"My message to Canada Customs today is that it's not business as usual any more," Janine Fuller, manager of Little Sister's, told a Vancouver press conference. "The Supreme Court has told you definitively to clean up your act."

John Dixon, president of the B.C. Civil Liberties Association, a moving force behind the case, called the judgment a "landslide victory" that will force agents to prove within 30 days that a seized item is obscene.

However, many civil libertarians expressed bitter disappointment. They said the court did a lot of huffing and puffing, but couldn't bring itself to blow the Customs-seizure practice out of existence.

"It is a profoundly disappointing decision," said University of Toronto law professor Brenda Cossman. "The majority still has its feet firmly rooted in the 19th century. They obviously think the sexual impression is not a particularly important form of expression."

Patricia Jackson, a lawyer for the Canadian Civil Liberties Association, said the court missed a golden opportunity to create a new legal standard for obscenity that is much less fuzzy and much more enforceable than the current one. Under the existing "community tolerance" standard -- confirmed a decade ago in the landmark Butler case -- material is declared obscene if it's believed the community will feel it could potentially cause harm.

Mr. Dixon joined in condemning this aspect of the ruling. "We remain saddled with a very regressive definition of obscenity," he told reporters. "That, it seems to me, is a national disgrace."

The Supreme Court majority left no doubt that it believed the seizure powers held by Canada Customs violate free expression, but it said this can be amply justified in a free and democratic country.

"Any border inspection may involve detention and -- because Customs are only human -- erroneous determinations," Mr. Justice Ian Binnie said for the majority.
"The constitution does not prohibit border inspections."

In contrast, the three-judge Supreme Court minority bristled with indignation at a Customs' practice marked by dangerously unbridled power.

The dissenters -- Mr. Justice Frank Iacobucci, Madam Justice Louise Arbour and Mr. Justice Louis LeBel -- said the problem goes much deeper than insensitive customs agents. They pointed straight at the law that allows secretive seizures of a wide range of material that may or may not turn out to be obscene.

"These are not the kinds of problems that can be solved by simply directing Customs to behave themselves," they said. "In all the circumstances, further indulgence misses the mark. What is needed is the firm guidance that only new legislation from Parliament can provide."

They said a law that's truly unintrusive would ensure customs agents obeyed its dictates.

"Every book wrongfully prohibited from entering Canada inflicts a wound on our literary and cultural freedoms," they said. "Every unjustified interference with intellectual freedom to some extent embarrasses our country on the world stage."

The court was united on one point. It lavished sympathy on Little Sister's and agreed its imports were singled out for seizure simply because customs agents viewed gays and lesbians as different from mainstream Canadians.

"There is no evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual erotica," Judge Binnie wrote on behalf of Chief Justice Beverley McLachlin and Madam Justice Claire L'Heureux-Dube, Mr. Justice Charles Gonthier, Mr. Justice Jack Major and and Mr. Justice Michel Bastarache.

He said customs agents do not have the right to stigmatize and harass an otherwise acceptable form of expression just because it's crossing a border. "The Customs treatment was high-handed and dismissive of the appellant's right to receive lawful expressive material which they had every right to import," Judge Binnie said.

"Their freedom of expression does not stop at the border."

Prof. Cossman said the majority ruling boils down to a naive confidence in an agency that has consistently failed to live up to its obligations. "The government said, 'Just trust us,' and the court said, 'Yes,' " she said.

"Ultimately, after 15 years of legal wrangling, the court has told Little Sister's to go back to the courts to [defend its imported material]."

Staff at Little Sister's and their supporters were in a far more celebratory mood yesterday.

"We won," said a jubilant Mr. Dixon. "From now on, it will be almost impossible for Canada to establish in a court of law that a book, the text, is obscene. That is an enormous ratchet forward for expression rights in Canada.

"They can stop a book or magazine or video from coming into this country, but at the end of 30 days they have to put up or shut up," he said. The government will have to select its targets carefully -- "and think long and hard about whether or not it can win," he said.

Ms. Fuller said the value of books lost over the years has mounted to thousands of dollars. As recently as last Monday, she said, Customs seized material that was headed to the bookstore.

In a separate defeat for the bookstore yesterday, the court rejected arguments that the Customs legislation discriminates unconstitutionally against gays and lesbians because pornography plays a more important role in their community than in the rest of society.

All nine judges said that neither the obscenity legislation nor the Butler guidelines produce inequality.

"Portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less [and no more] harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable," Judge Binnie said.

The ruling

From the Supreme Court majority judgment:

"Sexuality is a source of profound vulnerability, and the appellants reasonably concluded that they were in many ways being treated by customs officials as sexual outcasts."

"The burden of proving obscenity rests on the Crown or other person who alleges it."

"In my view, a court is the proper forum for the resolution of an allegation of obscenity. The department at that stage has had the opportunity to determine whether it can establish on a balance of probabilities that the expressive material is obscene. The court is equipped to hear evidence, including evidence of artistic merit, and to apply the law."

From the dissenting judges:
"The deleterious effects of the existing Customs' regime outweigh its benefits. The first obvious deleterious effect is the extraordinarily high rate of error. The detentions have had dramatic, tangible effect on the lives of countless Canadians. Alternative bookstores have had their viability threatened by the constant delays and outright prohibitions. Authors and artists have suffered the indignity of having their works condemned as obscene and not fit to enter the country. Perhaps most of all, ordinary Canadians have been denied important pieces of literature."

"The protection of expressive freedom is central to the social and political discourse in our country. If such a fundamental right is to be restricted, it must be done so with care."

"The flaws in the Customs regime are not the product of simple bad faith or maladministration, but rather flow from the very nature of prior restraint itself."

The reaction

"This win for all Canadians is due in great measure to the wonderful shamelessness of the clients of the Civil Liberties Association who have refused to be ashamed of who they are, have refused to be ashamed of how they live and act and imagine and communicate with one another about their sexuality." John Dixon, spokesman for the B.C. Civil Liberties Association

"The problem is that the court pulled its punch. It wasn't prepared to say there was anything wrong with the legislation itself." University of Toronto law professor Brenda Cossman

"We are incredibly happy, as a community, to celebrate a long struggle, a struggle that has taken well over a decade for this bookstore and for our community and the community of people who care about the intellectual freedom of this country.
"We celebrate the fact that books will come into this country without the kind of inability and unscrutinized tyranny that has happened at the border through Canada Customs." Janine Fuller, Little Sister's bookstore manager

"If we had an intelligent standard to judge obscenity, much of this fight for Little Sister's would just go away. The major question remains with us." Canadian Civil Liberties Association lawyer Patricia Jackson

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