Table of Contents

THE SUPREME COURT RULES ON CENSORSHIP Introduction ...... 31 A Multi-factored Legal Case ...... 32 A Legal Perspective...... 33 A Closer Look at the Ruling ...... 35 A Balancing Act...... 37 What Constitutes Censorship?...... 40 Discussion, Research, and Essay Questions ...... 42 THE SUPREME COURT RULES ON CENSORSHIP Introduction

Initially, the case of Little Sister’s Book and December 15, 2000, the Court released its Art Emporium v. Canada seems to be prima- ruling, which criticized Canada Customs for rily a lawsuit between a bookstore and unfairly targeting the Little Sister’s book- Canada Customs. Canada Customs had been store. It also reversed the burden of proof stopping a number of shipments of books provision as it relates to charges of obscenity; destined for the bookstore from coming into but the Court did uphold the obscenity law the country, costing the store considerable itself as outlined in the Criminal Code. This money in lost revenue and legal costs. A ruling means that from now on if Canada closer look, however, reveals a more com- Customs prohibits any material from cross- plex legal case. Little Sister’s is a bookstore ing the border into Canada, the Crown (or that caters to a largely gay and lesbian clien- prosecution) has the burden of proving the tele. The shipments that had been confiscated material obscene. By upholding the obscen- by Canada Customs had been stopped be- ity provision of the Criminal Code, however, cause the Customs agents had deemed the the Supreme Court also reaffirmed Canada materials obscene. Yet many of the materials Customs’ role in continuing to try to regulate stopped by Customs were already on the the flow of obscene material into Canada. shelves in a number of libraries The ruling was hailed by many as a victory and bookstores. for Little Sister’s and for freedom of expres- The managers of Little Sister’s claimed sion in Canada. Free speech advocates they had been unfairly targeted for years by argued that the obscenity law cannot be fairly Canada Customs because they were operat- applied by Canada Customs and has actually ing a gay bookstore. Although they carried been rendered useless by Internet technology, materials about AIDS, homophobia, adop- which makes previously restricted material tion, and positive parenting skills, other readily available. material of a more sexual nature was judged The universal issue, however, is that of by Canada Customs to be obscene. Legally, censorship itself in society. It is certainly at the time, once the material was stopped at difficult for citizens to agree on a definition the border the onus was on the bookstore to of obscenity; personal and contemporary prove that the material had literary or artistic social values are determined by many fac- value and was not obscene; whereas in all tors. On the other hand, many Canadians do other criminal matters the burden of proof not want the government to stop attempting falls to the prosecution (or state) to prove that to restrict the flow of obscene materials, a criminal offence has been committed. especially child pornography or extremely After 16 years of legal battles the Little violent pornography. The Little Sister’s case Sister’s case eventually ended up in the has redefined the legal procedures, but the , the highest court larger debate surrounding pornography and in the land and the court of last appeal. On censorship will no doubt continue.

News in Review — 31 — February 2001 THE SUPREME COURT RULES ON CENSORSHIP A Multi-factored Legal Case

The Little Sister’s case involves legal, ethical, economic, and social justice issues. The Su- preme Court decision further defined the obscenity provisions as stipulated in the Criminal Code of Canada and was a landmark case that encourages Canadians to reflect on their own values in the matters of alleged pornography, censorship, and social tolerance regarding any material of a sexual nature. The case also dealt with the rights of business people to run their businesses free from government interference. And it was a case involving social justice because it addressed the unfair treatment of a business catering to gay and lesbian people and consequently the unfair treatment of that business’s clients. As in any legal case, the issues are complex and require a clear understanding of the facts.

Factual Viewing While viewing this News in Review report, jot down answers to the following questions. Then, compare your answers with those of other classmates. Did you record the same infor- mation? Were your perceptions of the facts of the case the same? 1. What proof does Janine Fuller, manager of Little Sister’s Book and Art Empo- rium, have to demonstrate that her bookstore was being singled out by Canada Customs agents?

2. One of the supporters of this case was the Civil Liberties Asso- ciation. Why did it become involved in the case?

3. What was the main issue in this case?

4. Why did Duffy Books join the case in support of Little Sister’s?

5. Why did Laurie Geskay, president of the British Columbia chapter of REAL Women, oppose the Little Sister’s case?

6. How did John Anderson, the federal minister who oversaw Canada Customs, defend the work of this government agency?

7. How long did Little Sister’s’ fight against Canada Customs last?

8. In its judgment, what did the Supreme Court say about: (a) Canada Customs’ handling of material destined for the Little Sister’s book- store? (b) the power of Canada Customs to detain obscene material at the border? (c) the onus (or burden) of proof in future obscenity cases?

Follow-up Discussion Watch the video again. After viewing, discuss as a class why this news story involves social and personal values as well as legal issues.

February 2001 — 32 — News in Review THE SUPREME COURT RULES ON CENSORSHIP A Legal Perspective

Part of what may make this case difficult to understand is the number of legal terms and issues involved. Copy the following legal words and terms into your notebook and, as you watch the video again, try to formulate definitions for each of them: prior restraint, process, excessive and prejudicial treatment, onus, obscenity, hate literature, burden of proof.

Working in small groups, discuss and refine your definitions and then report your findings to the class.

Then, working with a partner, discuss how the Little Sister’s case might have affected the understanding or application of each of these terms. If you require further information to complete this task you can access the complete transcript of the Supreme Court’s ruling at www.lexum.umontreal.ca/csc-scc/en/rec/html/sisters.en.html

Previous Landmark Cases When the Supreme Court of Canada rules on an individual case it weighs the facts of the case before it, but it also reviews the rulings of previous cases that dealt with similar legal issues. In this case, the Supreme Court Justices reviewed the decisions of what many people also con- sidered freedom of expression cases.

Below you will find summaries of other legal decisions that had implications for this case. Review each of the cases and their decisions and suggest how each might have had an impact on the ruling in the Little Sister’s case.

Irwin Toy Ltd. v. Quebec (Attorney General), 1989 The Issue: In this case, the appellant was a children’s toy manufacturer accused of directing its advertising directly to children, which was illegal. The Ruling: The court held that the general legal presumption in favour of free speech should not be suspended merely because the speaker in question happens to be a corporation. How- ever, it did rule that advertising directed at children could be restricted.

R. v. Butler, 1992 The Issue: Donald Butler, the owner of a Winnipeg video store that sold mostly heterosexual pornography was convicted by a trial court of selling obscene goods. He challenged his conviction on the grounds that it denied his freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms. The Ruling: The court held that for a thing to be found obscene, as defined under the Crimi- nal Code, it was not sufficient that it be morally objectionable. Rather, it must have caused, or be likely to cause, some harm to someone. The court went on to say that it could be assumed that pornography is harmful to women and children.

RJR MacDonald Inc. V. Canada (Attorney General), 1995 The Issue: In this case, the appellant was a tobacco company arguing that the government did not have the right to ban all tobacco advertising.

News in Review — 33 — February 2001 The Ruling: The court held that “purely informational advertising” was acceptable, but that more seductive “lifestyle” advertising could be banned “to prevent Canadians from being persuaded” to start smoking.

Follow-up Discussion Why are cases such as these important in terms of civil rights and in terms of understanding contemporary social values in Canada? Suggest how each ruling helps define what we, as Canadians, collectively believe?

Further Research For additional information on this case and the Supreme Court Decision, you may wish to review the positions of one of the organizations involved in this case or contact them directly.

The relevant Web sites are: • Little Sister’s Book and Art Emporium (www.lsisters.com) • Canada Customs and Revenue Agency (www.ccra-adrc.gc.ca/menu-e.html) • The British Columbia Civil Liberties Association (www.bccla.org) • REAL Women (www.getset.com/realwomen/)

February 2001 — 34 — News in Review THE SUPREME COURT RULES ON CENSORSHIP A Closer Look at the Ruling

The Supreme Court of Canada is the highest court in the land. It has the power to uphold or overturn decisions made by any lower court and it has the power to make new law—for example by interpreting key legislation such as the Charter of Rights and Freedoms and thus assuring that governments comply with it fully. Only the most important cases make it to the Supreme Court of Canada.

There is no jury of “average” Canadian men and women to listen to and rule on the cases that come before the Supreme Court. All cases are heard only by the Justices. In the case of Little Sister’s Book and Art Emporium v. Canada, all nine Justices presided over the case. Six Justices agreed on a number of points and submitted their written decision. This is called the majority decision. The three other Justices agreed with the majority ruling on the fundamental issues of the case but also felt that there were additional issues that needed to be addressed by the court. As a result, they wrote a dissenting judgment, also known as a minority ruling.

The following excerpts review the main points of the ruling in this case and provide the Court’s actual proof or reasons for each point. As you read this primary source material, consider why this case is considered a legal landmark or turning point in Canadian social history.

The Majority Decision by Madame Chief Justice Beverley McLachlin and Justices Ian Binnie, Claire L’Heureux-Dubé, Charles Gonthier, Jack Major, and Michel Bastarache. • The Justices ruled that Canada Customs officials acted with “excessive and unneces- sary prejudice” in routinely seizing erotic literature imported by Little Sister’s. “Many items that have been prohibited when Little Sister’s attempted to import them are found in the Vancouver Public Library, including Gay Ideas, Tom of Finland, The Men with the Pink Triangle . . . Gay Spirit and The Sexual Politics of Meat. . . . Whereas Canada Customs aims to examine approximately eight per cent of goods coming across the border, the trial judge in the Little Sister’s case found that virtually all imported mail addressed to Little Sister’s is examined.” • The Court attempted to prevent future abuse by reversing the burden of proof in the customs law. In other words, when material is seized in the future by Canada Customs, the Canada Customs agents will have to demonstrate that the imported material is criminally obscene rather than the importers having to prove that the material contains valid literary or artistic expression. “An importer has a Charter right to receive expressive material unless the state can justify its denial.” • Canada Customs agents targeted importers of gay and lesbian erotica despite the absence of any evidence to suggest that gay and lesbian erotica is more likely to be obscene than heterosexual erotica.

“When Customs officials prohibit and thereby censor lawful gay and lesbian erotica, they are making a statement about gay and lesbian culture, and the statement was reasonably interpreted by the appellants as demeaning gay and lesbian values.”

News in Review — 35 — February 2001 • Despite past problems with Canada Customs agents acting in an excessive manner, the Canada Customs Act was deemed valid and should therefore not be struck down. “The present Customs Act is quite capable of being administered in a manner that respects Charter rights.” The Dissenting Judgment by Justices Frank Iacobucci, Louise Arbour and Louis LeBel • The dissenting Justices felt that the Canada Customs Act should be struck down entirely. “The problems with the Customs regime are not simply the product of isolated mistakes by individual Customs officers; instead, they reflect systemic problems that can only be adequately addressed by rewriting the legislation.” • The current Canada Customs Act does not do enough to protect freedom of expression as outlined by the Canadian Charter of Rights and Freedoms. “The Customs Act makes no reasonable effort to protect literature or entertainment material under the Charter of Rights and Freedoms. Given the extensive record of Charter violations, there must be sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights.”

The three dissenting Justices offered the federal government three options to remedy the problems with the current Canada Customs Act. The options included enacting new legisla- tion in Parliament, establishing a new tribunal to review obscenity cases—rather than allow- ing Canada Customs to rule on these cases—or leaving all such cases to the criminal justice system. The government is not bound to act on the recommendations made by the dissenting judges but in all likelihood will review the three options in the hopes of avoiding other costly court cases like this in the future.

Further Analysis and Discussion 1. Visit www.scc-csc.gc.ca/index-e.htm, the Web site of the Supreme Court of Canada and review the procedures of the Court and the biographies of the current Justices. In your opinion how might a constitutionally guaranteed Supreme Court advance the cause of justice in Canada? 2. The Little Sister’s case took 16 years to reach the Supreme Court of Canada and be fully resolved. In your opinion, was this too long? What would the advantages and disadvantages be to speeding up the process? Why might a slow process actually lead to better decisions? 3. In your opinion, whose interests have best been served by this Supreme Court decision? 4. Supporters of Little Sister’s suggest that this landmark case is a prime example of systemic prejudice and discrimination against gays and lesbians. Research the meaning of the term systemic and in particular its meaning in questions relating to discrimination. Then suggest whether, in your opinion, this was a case of systemic discrimination.

February 2001 — 36 — News in Review THE SUPREME COURT RULES ON CENSORSHIP A Balancing Act

Many supporters of the Supreme Court’s decision view the Little Sister’s case as an example of democracy in action despite the time and money it took to resolve the case. Generally speaking, in a true and effective democratic system, individual citizens feel free to exer- cise their rights without fear of persecution or prosecution. At the same time the demo- cratically elected government fulfills its mandate from the people by protecting the collective rights of all members of society.

In the Little Sister’s case, the individual rights in question are freedom of expression and the right to fair and equal treatment. However, the collective right of Canadian society to be protected from hateful or obscene material is also relevant to the case. Representing all citizens, the Canadian government must strive through its laws and procedures to strike a balance between these two rights. But rights can sometimes collide, especially rights that involve conflicting interests or points of view. Examine the following information and, as you do so, think about why this Supreme Court decision relates to fundamental issues at the heart of Canadian society.

Defining Obscenity According to the Criminal Code of Canada, a publication is considered obscene if the dominant characteristic of the publication is the “undue exploitation” of sex, or of sex and violence. This definition was further clarified by the Supreme Court of Canada in the 1992 case of R. v. Butler. In this case, the court ruled that depictions of explicit sex with violence are almost always obscene. As well, depictions of degrading or dehumanizing sex that are likely to cause harm, or increase the likelihood that harm will be caused, are almost always deemed obscene. Depictions of explicit sex without violence among consenting adults that is neither degrading nor dehumanizing, however, was ruled to be acceptable. If the police and the Crown believe that a publication is obscene they can take the publisher to court. If the publication is imported, however, Canada Customs agents can detain any materials they think might be obscene. Now, however, because of the Supreme Court ruling, if challenged, Canda Customs must prove the charge of obscenity.

In some ways the definition of obscenity and the procedures that should be followed to restrict the free flow of such materials may seem very straightforward. But when human beings interpret and implement such laws, the fine line between what is or is not obscene can become blurred, depending on perceptions, interpretations, and legal arguments. What might be considered obscene to one person might be acceptable to another.

A wide range of factors such as age, gender, ethnicity, religion, experience, and family background can influence an individual’s personal values and hence one’s perception of a definition of obscene, legal or otherwise. Furthermore—and this is particularly relevant to this case—an individual’s sexual orientation can also influence that person’s percep- tion and feelings toward sexually explicit material. For example, a heterosexual indi-

News in Review — 37 — February 2001 vidual might find images of sexual activity between two consenting adults of the same sex obscene but might not perceive images of sexual activity between members of oppo- site sexes obscene.

The Right to Freedom of Expression In Canada, the right to freedom of expression is protected by the Charter of Rights and Freedoms. The relevant section of the Charter states that: “ . . . in Canada, this is not an absolute right. Speech, no matter in what form, that is libelous or that incites violence or hatred against an identifiable group is almost always considered to be unacceptable, and therefore criminal.”

In his book When Freedoms Collide, Alan Borovoy comments on the inevitable risks of freedom of expression. “In culture and the arts, the right to dissent, with its accompany- ing freedom of expression, provides the basis for enrichment. To the extent that all per- sons have the right to produce and consume as they choose in literature, films, art, music, and dance, they have the opportunity to enrich their own lives and those of others. . . . Inevitably such vast freedom carries with it enormous risks. Freedom of expression can be used to propagate lies as well as truths, wrongs as well as rights, injustices as well as justice, and junk as well as art. The central question is: where are we prepared to put our trust?” Borovoy then goes on to caution that this can be a slippery slope because “The assumption is that those in power are sufficiently wise and benevolent to make such decisions on behalf of everybody.”

The conflicting principles that result from our desire to preserve freedom of expression can occur frequently and are exemplified by the following situation. In the mid-1960s, George Lincoln Rockwell, a member of the American Nazi Party appeared on the CBC television program This Hour Has Seven Days. The program was subsequently criticized for giving Rockwell public air time. Along with others, Knowlton Nash, a CBC journalist at the time, explained why Rockwell was given air time by saying, “You have to provide freedom of expression, even if it’s wearing dirty clothes. After all, how are you going to oppose people like Rockwell unless you know their motivations and their thoughts?”

Activity: Attempting to Achieve a Balance Striking a balance between individual and collective rights is never easy. In small groups examine the situation below and discuss the nature of the case and the decision or actions that occurred. Do you agree with the outcome? Try to reach a consensus in your group on at least some aspect of the situation and, if possible, present a unanimous opinion. Report your findings to the rest of the class. If your group’s decision is not unanimous, then make sure a dissenting judgement is also presented.

An Activist Tries to Stop an Eminem Concert On October 4, 2000, activist and writer Valerie Smith wrote to the police hate crimes unit calling for the use of hate-propaganda laws to prevent controversial rapper Eminem from performing at a Toronto concert. Smith argued that Eminem’s songs promote hatred and violence against women. It is true that his songs are offensive to many, routinely referring to women as “bitches,” singing about slipping date-rape drugs

February 2001 — 38 — News in Review into women’s drinks, and mutilating his wife in front of their child. It is also true that Canada’s hate crime laws protect religious and ethnic minorities against material aimed at inciting hatred against these groups.

Eminem was allowed to perform in Toronto on October 27, 2000. Detective Rob Cooper of the Toronto Police force’s hate crime unit said, “Although [the lyrics] can be viewed as offensive, certainly to women, they don’t constitute hate propaganda under the Crimi- nal Code.” Eminem went on stage carrying a chain saw that night and yelled into the microphone, “I don’t know if you know what’s going on in the news, but I dedicate this song to that bitch Valerie Smith.”

Should Eminem have been prevented from performing? Should he be allowed to perform in Canada in the future? Should any restrictions be placed on his performances?

News in Review — 39 — February 2001 THE SUPREME COURT RULES ON CENSORSHIP What Constitutes Censorship?

The Little Sister’s case involved a legal definition of obscene and the officially authorized restriction or censorship of material by a government agency. In society, we restrict access to information in many ways that may or may not be forms of censorship, depending on your point of view. Restriction may occur in a number of ways, including: official governmental censorship, the application of “community standards” through social institutions, parental control, self-regulation by individuals or organizations, or the non-official restriction of material through public pressure. Examine each of the situations below and then discuss the following: 1. How and for what reasons is or was the material restricted? 2. Is or was this an official, authorized restriction? Is or was it censorship? 3. Is or was this restriction of material justified? Nudity in Art • In England a few years ago, a cathedral in Durham commissioned a piece of artwork from U.S. video artist Bill Viola. The six-metre-high piece, called The Messenger, showed a naked man emerging from a bath. The clergy, on behalf of the congregation, asked the artist to put an “electronic fig leaf” over the bather’s “parts.” The artist refused, and the issue was eventually resolved when white screens were placed around the piece allowing those who expressly wanted to see the work to do so. Censorship of Movies • Today, all movies shown in Canada are subject to a complex rating system con- trolled by the provinces. Movies are usually classified on the basis of language, use of violence, presence of nudity or sexual activity, and graphic horror that may have a psychological impact. Based on the content of the film, movies are then classified according to the categories, such as: Family (F), Parental Guidance (PG), Adult Accompaniment (AA) and Restricted (R). Regulating Television • In 1961, U.S. Federal Communication Commission chairman Newton Minow proclaimed television to be a “vast wasteland.” The fact is that the average North American child spends more time watching television each week than he or she spends in school. Most children watch television with little or no supervision, and a 1999 study by the Kaiser Family Foundation found that half the children in a survey of 3155 did not have any parental rules limiting their time in front of the television or the kinds of programs they watched.

• In 1996, the V-chip was developed by Tim Collings, an engineering professor at British Columbia’s Simon Fraser University. The V-chip is a computerized device that, along with a rating system, allows parents to restrict certain television shows from being broadcast on their home televisions. The V-chip was hailed by parents

February 2001 — 40 — News in Review and others concerned with the content of television as a solution to the unwanted negative effects of television viewing. Critics, however, maintained the V-chip would be ineffective and was unnecessary. Rating Home Videos and Video Games • In the summer of 2000 the British Columbia government announced it would draft legislation to protect children against what it views as growing graphic violence in videos and video games. It plans to protect children by developing a rating system for video games and movies available on video that are unrated because they never appeared in theatres. This move closely followed on the heels of the government’s decision to make it illegal for video retailers to rent the popular interactive computer game Soldier of Fortune to children. The govern- ment took this step “because [the game’s] depictions of violence against persons and animals are brutal and portrayed realistically and explicitly.” BC Attorney- General Andrew Petter said that he does not believe the new rating system is about censorship, it is about giving the public information. Containing the Internet • The two main Internet browsers, Microsoft’s Internet Explorer and Netscape Navigator, both provide opportunities for clients to block access to Internet sites containing sex and/or violence. Follow-up Discussion Personal computers and the Internet can be the most direct way for an individual accessing what might be considered offensive or even dangerous material. Who, if anyone, should have the power to decide what any individual should be able to access via a personal computer? What are the implications of this question?

News in Review — 41 — February 2001 THE SUPREME COURT RULES ON CENSORSHIP Discussion, Research, and Essay Questions

1. Make a T-chart containing a list of arguments for and against Canada Customs having the legal power to judge material being imported, obscene or not.

2. Think carefully about the long-term social and cultural implications of the Su- preme Court’s decision. Will the ruling make it virtually impossible for Canada Customs agents to restrict the flow of pornography across the border? Will it result in more equitable treatment of gay and lesbian Canadians? Write an opinion piece of approximately one page that either argues in support of, or criticizes, the Supreme Court’s ruling.

3. In Canada, are we more concerned with sex in movies than violence? In your opinion, which of the two types of graphic material has more of a psychological impact on youths and adults? With reference to this issue, organize an informal debate. To assist you in preparing your arguments it may be helpful to visit the Web site of Media Watch (www.mediawatch.org), a non-profit organization that aims to challenge abusive stereotypes and other biased images commonly found in the media; the Web site of the Film Review Board (www.ccr.gov.on.ca/ofrb); or the Web site of Media Awareness Network (www.media-awareness.ca), a non-profit organization established in 1996 to act as an information source for parents, librarians, and teachers.

4. Alan Borovoy is a well-known Canadian advocate for freedom of expression. Since 1968 he has been the head of the Canadian Civil Liberties Association and has fought for “greater justice for all people.” Research Borovoy’s life and the many cases he has been involved in. Prepare a summary report for your class. You may also wish to locate and read his book When Freedoms Collide.

5. Kathleen Mahoney, professor of Law at the University of Calgary, has consis- tently fought degrading pornographic material and child pornography and has been fighting for greater restrictions on pornography ever since her two-year-old son was exposed to explicit magazines at eye level on a newsstand. Research Mahoney’s campaign and prepare a summary of her key arguments for restricting such material.

6. Janine Fuller, the manager of Little Sister’s Book and Art Emporium, argues that her store is a community centre for gay and lesbians. She points out that many gays and lesbians are victims of homophobia and are beaten up or physically threatened because of their sexual orientation. Does your school have an anti- homophobia policy? If you require more information about homosexual rights and discrimination against gays and lesbians visit the Web site of EGALE (Equality for Gays and Lesbians Everywhere) at www.egale.ca.

February 2001 — 42 — News in Review