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Customs, Censorship and the Charter: the Little Sisters Case

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Customs, Censorship and the Charter: the Little Sisters Case TSpace Research Repository tspace.library.utoronto.ca Customs, Censorship and the Charter: The Little Sisters Case Brenda Cossman and Bruce Ryder Version Published PDF Citation Brenda Cossman & Bruce Ryder, "Customs, Censorship and the (published version) Charter: The Little Sisters Case" (1996) 7:4 Constitutional Forum 103. Publisher’s Statement Brenda Cossman & Bruce Ryder, "Customs, Censorship and the Charter: The Little Sisters Case" (1996) 7:4 Constitutional Forum 103. © [1996]. The final version of this article can be found at https://doi.org/10.21991/c9k37x How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. CUST'OMS CENSORSHIP AND THE CHARTER: THE LITtLE SISTERS CASE Brenda·.Cossman and Bruce Ryder INTRODUCTION Little Sisters Book and Art Emporium is Sisters and Customs by affirming the importance to Vancouver's only bookstore specializing in gay and the life of the nation of both homosexual literature lesbian literature; it also has served as a focus of and the existing legislative regime of border censor­ social and political activities of the local gay and ship. lesbian communities since its inception in 1983. Canada Customs is the arm ofthe federal government It took Justice Smith a full thirteen months to empowered to prohibit the entry of obscene imported ponder the evidence presented at trial and to prepare publications into the country, a power originally his decision. The care he took is evident in the enacted in 1847.1 It is hard to think of two better thorough and meticulous presentation ofthe evidence institutional representatives of the urban diversity of and legal argument, and in the respect he accorded to contemporary Canada and the country's fusty Victor­ all participants in the proceedings. He noted the ian roots, respectively. For the past decade, they cultural and political significance of Little Sisters as have been embroiled in dramatic and escalating legal "a nerve-centre for the homosexual community."6 A battles - appropriately dubbed "Little Sister v. Big refreshing sensitivity to the importance oflesbian and Brother" by the Globe andMail. 2 It appeared at times gay sexual expression is similarly evident in his that only one party might survive. Little Sisters has affirmation of testimony by Little Sisters' witnesses been at risk of financial collapse in the face of that;7 persistent detentions and seizures of its imported material. Customs censorship practices, in turn, sexual text and imagery produced for appeared to be treading on constitutional thin ice. In homosexuals serves as an affirmation of its court challenge, Little Sisters argued that the their sexuality and as a socializing force; provisions ofthe Customs Act and Customs Tariffthat that it normalizes the sexual practices that together empower officials to stop obscene represen­ the larger society has historically considered tations at the bordeil constitute unreasonable restric­ to be deviant; and that it organizes homosex­ tions on freedom of expression and equality rights uals as a group and enhances their political protected by section 2(b) and section 15 of the power. Charter. Customs censorship practices, [mally lifted from over a century of administrative darkness and Moreover, Little Sisters' long-standing com­ exposed to the glare of a two month court proceeding plaints regarding the vagaries of Customs censorship in thefall of 1994,4 appeared vulnerable to constitu­ were vindicated by many of Smith J.'s factual find­ tional invalidation. ings. In particular, he found that since its inception in 1983, Little Sisters has suffered at the hands of However, in a long-awaited judgment released in Customs; 8 that gay and lesbian bookstores and January 1996,5 Justice Kenneth Smith of the British publications are particularly vulnerable to the "arbit­ Columbia Supreme Court crafted a ruling that, in true rary consequences" of Customs censorship far out of Canadian fashion, found a middle ground. He man­ proportion to their relative share of imported aged to vindicate,and sought to preserve, both Little material;9 that "there are many examples ofinconsist- FORUM CONSTITUTIONNELElectronic(1996) copy7:4 available at: http://ssrn.com/abstract=1276389 103 encies in Customs' treatment of publications";10 that period covered by the evidence at trial some customs choice of a standard of review under section 1 of the noted that a distinction based on an analogous ground delays of months or even years in making determina­ officers have acted arbitrarily and have thereby Charter that was highly deferential to th~ government will only be discriminatory if it is irrelevant "to the tionsare not uncommon; 11 that a great many "quali­ infringed sections 2(b) and 15(1)" .20 on the question of whether the Customs legislation functional values of the legislation." In his view the tatively questionable" determinations are made, constitutes the least restrictive means of regulating unequal treatment which gays and lesbians experience including the detention of a "disturbing amount of A month after Smith J.'s initial ruling, Little imported obscenity. In our view, a rigourous standard as a result of the prohibition on obscenity does not homosexual art and literature that is arguably not Sisters returned to court seeking an injunction to of review under section 1 .is appropriate where arise from "the stereotypical application of presumed obscene"; 12 that Customs continued to ban any restrain Customs from detaining imported material legislation in its effects has a disproportionate impact group or personal characteristics." According to the depiction of anal penetration until the eve of the trial destined for the bookstore until the systemic problems on expression central to the cultural identity and Court, the "characteristic is a real one" that is in 1994 despite the lack of legal authority to do so identified in the judgment had been remedied. Justice political vitality ofa disadvantaged minority. Finally, relevant to the legislative values: "Sexuality is and despite the advice tendered by Department of Smith declined to issue such an injunction, finding we want to challenge what we see as a crucial flaw in relevant because obscenity is defined in terms of Justice lawyers in 1992 that Customs was acting that Customs had already revised its procedures "to Smith J.'s reasoning, mimely, his view that the sexual practices." Justice Smith reiterated his view illegally;13 that there is no mechanism in Customs' require more careful consideration by qualified violation of the plaintiffs' rights cannot be linked to that the disproportionate effect of obscenity law on procedures for receiving evidence of a book's merits officers of possibly-obscene books."21 In his view, the procedural deficiencies in the Customs Act itself. gays and lesbians is inevitable because of the extent and thus many books are ruled obscene without these were "reasonable first steps and should achieve to which their very identities are constructed in and adequate evidence; 14 that Customs officers are inad­ the objective until a more comprehensive administra­ EQUALITY RIGHTS through sexual practices. He concluded that "homo­ equately trained, many receiving only· a few hours of tive scheme can be put in place."22 However, he did sexual obscenity is proscribed because it is obscene, instruction on obscenity law; 15 that highly publicized issue a more limited injunction restraining Customs To establish a section 15 violation, a claimant not because it is homosexual. The disadvantageous works like Madonna's Sex and Bret Easton Ellis' officials from subjecting Little Sisters to a policy of effect on homosexuals is unavoidable.... "29 In his American Psycho are given the benefit ofthe doubt; 16 heightened scrutiny at the Vancouver Mail Centre must first show that the purpose or effect of the impugned legislation is to impose a burden on the view, the distinction thus could not be seen to be that Customs officers "do not have sufficient time "until the federal Crown satisfies this Court that the discriminatory within the meaning of section 15. available to consistently do a proper job" and thus discretion of customs officers in that office is guided basis of an enumerated or analogous ground of take "short cuts" by "such expedients as thumbing by appropriate standards."23 discrimination. Then the claimant must demonstrate that the unequal treatment is discriminatory, meaning In our view, there are a number of problems through books";I? and that few initial determinations with Smith J.'s section 15 reasoning. Even if we of obscenity.are appealed, and of the few that are, We have no quarrel with the declaration and the that it is the result of the stereotypical application of 18 presumed group or personal characteristics.25 While accept his premise that artistic expression produced few succeed. In conclusion, Justice Smith wrote injunction issued by Smith J. - these remedies were for homosexual audiences is permeated to a greater with some understatement, there are "grave systemic amply justified on the evidence presented. With all the prohibition on imported obscene representations does not have as its purpose the imposition ofdispro­ degree than heterosexual expression is by sexual problems in the customs administration." 19 due respect, however, it is our view that the judge themes, his conclusion regarding the disproportionate erred in absolving the Customs Act and Customs portionate burdens on gay men and lesbians, this is one of its effects. Justice Smith reached this con­ impact of obscenity law does not necessarily follow.
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