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 Vancouver 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 Supreme Court of Canada, 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 British Columbia 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.