Globe and Mail
July 2, 2004
Vancouver gay bookstore challenged customs' power to seize, censor material
A B.C. judge has ordered the federal government to pay a small Vancouver gay bookstore hundreds of thousands of dollars to fund a constitutional challenge to the power of Canadian customs to seize and censor imported material.
The advance order for the payment to Little Sisters Book and Art Emporium is the first application of a recent landmark Supreme Court of Canada ruling, known as Okanagan Indian Band, beyond the context of aboriginal rights. It paves the way for a new era of litigation by individuals and groups that could not otherwise shoulder the massive costs of constitutional litigation.
"The test is not dire financial straits," Madam Justice Elizabeth Bennett of B.C. Supreme Court said in her recent decision. "Having reviewed the evidence, it is clear the Little Sisters cannot genuinely afford to pay for this litigation, or any reasonable aspect of it."
The challenge involves seizure by customs of two imported books and two "Meatman" comic books that feature gay sado-masochistic themes. They were among 19 publications customs has seized since 2000, when a Supreme Court ruling concluded a decade-long round of litigation by Little Sisters.
In that ruling, which disappointed the bookstore and its lawyers, the Supreme Court flayed customs for following arbitrary and inconsistent seizure policies. However, it stopped short of striking down the agency's power to seize and censor, instead ordering customs to clean up its act. All nine judges criticized customs for years of "excessive and unnecessary prejudice" toward the gay and lesbian community and for treating the minority as outcasts, but only three of them were willing to strike down customs regulations.
In her advance-costs decision, Judge Bennett said that if customs has not been correctly applying the legal test for obscenity as it was laid down by the Supreme Court of Canada, "the issue transcends the interests of Little Sisters and touches all book importers, both commercial and private. The issues involved are too important to forfeit this litigation because of lack of funds.
"There is evidence that customs is detaining hundreds, if not thousands of titles," Judge Bennett added. She said that because of a dearth of case law defining obscenity, customs officials have been given "little direction" in how to make seizure decisions.
"The statistics demonstrate that 70 per cent of detentions are gay and lesbian material," she said. "This is some evidence of continual targeting."
The Supreme Court's groundbreaking Okanagan Indian Band case forced the government to finance a poverty-stricken B.C. band in a forestry dispute. Little Sisters lawyer Joseph Arvay said yesterday that Judge Bennett's ruling "is the first sign that the courts are taking the Supreme Court's decision seriously, and that you don't have to live in hovels to qualify for funding."
Mr. Arvay said Little Sisters can embark on what will likely be a three- or four-month trial. He said the litigation will focus on whether customs has squandered its second chance to follow consistent seizure policies that do not discriminate against gays and lesbians.
While the funding order could cost the government as much as $1-million, Mr. Arvay said, the bookstore will still be reliant on donors to help defray what are sure to be much higher costs. He said that Little Sisters actually lost $57,000 last year, and was further victimized by an internal embezzlement.
"It can never be a level playing field when you are taking on the government," Mr. Arvay said. "Charter litigation is extremely expensive, and the government has limitless resources. If this tiny bookstore weren't fighting customs and nipping at their heels, nobody would be."
To make the advance funding order, Judge Bennett first had to satisfy herself that Little Sisters had prima facie merit, that the bookstore had no other realistic way of footing its bills and that having the case litigated is in the public interest.
She noted that the bookstore has had very modest success raising money to support the litigation, and that funding orders will be made only in "rare and exceptional circumstances."
Judge Bennett said the onus at trial will be on customs to show that it has complied with the 2000 Supreme Court ruling.
"If she finds that contrary to what they told the Supreme Court, they have not redressed these problems, we are going to ask for a remedy that involves shutting down customs in one way or another," Mr. Arvay said in the interview.
Mr. Arvay said that Little Sisters also hopes to litigate the very standards by which obscenity is measured -- partly because they discriminate against gays and lesbians. He said evidence will include the many ways in which sexual expression is manifested, and the impossibility of devising an obscenity law that does not capture consenting, adult behaviour in its legal net.
"We want to start with a debate about sexual practices themselves," Mr. Arvay said. "Even though some practices may not be familiar to everyone, they are engaged in by adults who are consenting. Why should their expression be a matter for the state?"
While Judge Bennett stopped short of granting funding for this particular, broad exercise of the Charter challenge, she nonetheless gave hope to the litigants with a statement: "Further, it is arguable much has changed in the past 10 years in terms of what is socially and morally acceptable in terms of individual sexuality, which may affect the definition of obscenity."
