, 2006

 

Little Sisters Book and Art Emporium | Censorship | Supreme Court of Canada

Since 1986, Little Sister's has fought against Canada Customs' (Canada Customs and Revenue Agency) right to censor books and magazines at the Canadian border. With ample obscenity legislation in place within Canada, the delicate decision making process of what material is allowed and what is banned in this country should not be left to whims of Customs officers.

In March, 2000, Little Sister's took their case to the Supreme Court of Canada. The links below offer a chronological view into this historic censorship battle, from the launch of the suit, through the BC Supreme Court, the BC Court of Appeals, and beyond. It is our hope to offer insight into some of the complicated and sensitive issues in our court case, as well as reflect the investment in time, energy, and money required for this case to be heard.

For further references, resources, and media contacts, please feel free to get in touch with the store by phone, fax, or email. Your support is greatly appreciated: Little Sister's Defence Fund

Winter 2006 / Xtra West article written by co-owner Jim Deva

The phone rang on schedule at 6:45 am and my heart leaped. It seemed that all of our work through all these years came down to this one call. Our lawyer Joe Arvay had promised to phone the moment he heard any indication of the Supreme Court of Canada’s ruling. Now the phone was ringing and the moment was at hand. My hand shakes and I’m not too sure if my voice will be there to answer the phone, and something screams within me: how in the name of god did we get to this one fateful, make it or break it phone call at 6:45 am on Jan 19, 2007?

The history of Little Sister’s litigation with Canada Customs unravels like a ball of string one has collected through the years. Joined with knots and double knots, thin in spots and strong in others, it tells not only of our struggles with Canada Customs, but the history of the store, our loves and our lives.

The first substantial piece of string dates back to 1985, when Customs stopped a major shipment of books on its way to the store. Many of the books were eventually returned but in so damaged a condition they were unsaleable as new merchandise. The early years of Customs’ censorship regime were blatant, totally homophobic and left us close to having to close our doors on several occasions. Eventually, with the help of BC’s Civil Liberties Association and the support and donations from so many in our community, we were able to begin challenging Customs’ decisions.

We decided to begin with the most blatant example of censorship and challenged Customs’ seizure of an issue of The Advocate magazine. After months of preparation, Customs conceded the case literally on the courthouse steps on the way to trial. We were awarded $148.13, the cost of the magazines that had been destroyed. A hollow victory indeed, the decision left the system of censorship unchallenged. Changes were not made and it was business as usual at Canada Customs.

The dilemma that haunts us to this day, some fifteen years later, had become evident: How do we challenge Canada Customs’ decisions and gain more than just the return or reimbursement of the one or two books involved in the seizure? How do we prove that the problem goes deeper than specific book seizures and lies rooted in a system that considers gay and lesbian material obscene? That’s the task we set for ourselves in our first trial, a long and expensive exercise that took more than forty days in court and exhausted us both financially and emotionally. After an expensive two-level appeal process, the Supreme Court of Canada called on Canada Customs to change its censorship regime.

But this victory soon proved hollow as well. Though the court did rule that Customs had made many mistakes in its seizure and classification of gay and lesbian materials as obscene and ordered the agency to stop discriminating against us, it offered no oversight or review process to ensure Customs made the necessary changes. Within two months of the ruling, Customs came out with a new set of guidelines to help its agents identify pornography. Upon reading the new guidelines it became immediately apparent that not only had Customs not made the necessary changes, but its new guidelines would lead to more, not fewer, seizures.

Now, for the first time, both vaginal and anal fisting were deemed obscene, as was the licking of boots in a sexual context, and the list went on and on. It became readily apparent that gay and lesbian sexuality was again under attack by a government bureaucracy that simply did not get it and had no plans to begin to understand our sexuality, our sexual fantasies and, indeed, our lives. All too predictably, within three months of the Supreme Court’s decision, Customs attacked us with renewed vigour. Our shipments were delayed, our imports seized—it was business as usual at Canada Customs. It soon became clear that what had seemed impossible to imagine was now a reality: the only way to stop the madness was to take them to court yet again.

I personally felt some responsibility for the new attack on our sexuality. It seemed that Customs had learned enough about our sexual practises during our previous court case to use the information against us in the new guidelines. The licking of boots in a sexual context refers to the impassioned defence of the work of Tom of Finland, and vaginal and anal fisting were not only discussed in our court case but defended by prominent scholars on the stand. It seems Customs had learned enough from our court case to identify specific sexual acts but had not acquired the sophistication to understand that there was nothing degrading or dehumanizing about our sexuality. When Customs seized two of our Meatmen comics, the old dilemma re-emerged: not only was the decision to classify these two books as obscene wrong, but the entire system upon which the classification was based was seriously flawed. Customs simply had not made the changes that the courts had directed them to make. It continued to systematically target and misclassify gay and lesbian material.

These systemic problems had to be challenged, and once again a large and comprehensive court case would be the only way to prove the entire system of censorship in Canada was seriously flawed.

In order to mount such a large and expensive court case all avenues of funding would have to be explored and actively pursued. No matter how much support flowed from our community and other people interested in a censorship-free Canada, the funding of such a large case simply could not be raised by passing a bucket at most gay events and pleading for individual donations. Which brings me back to the cold, dark morning of Jan 19 and the insistent ring of the telephone.
Joe Arvay’s voice was sombre as he said good morning, then said, “We lost.”

The 74-page decision made it clear: funding for our court case was not to be forthcoming. An immediate feeling of abandonment overwhelmed me. Without proper funding our court case was as good as dead, Customs would continue to misclassify gay and lesbian material, and all of the years of expensive court action was for nought.
Some days one can plod through the shit in hopes of finding a pony, but that day there was no hope of a pony and most of the shit seemed bovine in origin.
I would like to say that by the following day the world seemed like a better place, but frankly it was not all that immediate. Still, the phone did start ringing with people full of encouragement, e-mails of support rolled in, flowers appeared, new funding possibilities were suggested and I did, once again, feel bathed in the support of our community—the community that has always managed to be there when we need them.

We may have lost our funding opportunity before the courts, but this does not in any way invalidate the importance of court action to force Canada Customs to examine its systemic problems. Perhaps we will have to fight Customs one or two books at a time, and perhaps, eventually, a judge with courage will once again use the words “systemically flawed” to describe Customs’ treatment of sexual explicit gay and lesbian material.

We have lost a battle, but the war against Canada Customs will continue as long as Little Sister’s continues to import important material into our country, and Customs continues to misapply the Criminal Code definition of obscenity.

Our big old ball of string cannot be forgotten or devalued; its story is still unfolding.

Spring, 2005

In 2002 Little Sister’s filed an appeal in the Supreme Court of British Columbia against Canada Customs’ seizure of two collections of gay adult comics. The case has been assigned to Madame Justice Elizabeth Bennett as the case management judge. While Little Sisters was preparing for this trial, Customs seized two more titles, both gay erotic fiction collections edited by author Larry Townsend, and these were added to the appeal.

Little Sister’s lawyer, Joe Arvay asked the judge to rule that not only was the onus on Canada Customs to prove that the books were obscene, but also that the onus was on Customs to prove that the “grave, systemic problems” which had been identified by the original trial judge and by the Supreme Court of Canada, had been corrected. It was Arvay’s assertion that debating the merits of a given book would be pointless unless these problems had been resolved.

Despite Customs’ insistence that the appeal be restricted to the question of whether or not their determination of obscenity was correct, Justice Bennett ruled that Customs did indeed bear the onus of proving that these operational problems had been solved. If Customs was to argue that this was the case, Little Sister’s had the opportunity to show that it was not, and the scope of the trial began to grow. The bookstore found itself facing a trial of some weeks, reminiscent of their epic court battle of 1994, and the question of funding such an expensive trial became a central issue.

Arvay asked the judge to grant an order for “Advance Costs.” This is a rarely used kind of court ordered funding for which the recipients must meet certain criteria. First, they must be arguing a case that is of importance to all Canadians. Secondly, they must be in dire financial straits – so that without special funding their case could not proceed. The precedent that Arvay was relying on stemmed from an Aboriginal rights dispute in which a Native band had been given advance costs so that they could take the government to court.

Justice Bennett again ruled in favour of the bookstore and, although no specific amount was determined at the time, she ordered that some of Little Sister’s already large legal fees be paid by the government. Lawyers for Canada Customs began a vigorous appeal process.

In September, 2004, the British Columbia Court of Appeal ruled that the bookstore did not meet the criteria needed for granting advance costs and that Justice Bennett had erred in awarding such costs. This meant that the bookstore faced a substantial legal bill and the prospects of having to raise perhaps half a million dollars if it wanted to continue with its litigation.

At the time of writing, lawyers for the bookstore have filed for leave to appeal at the Supreme Court of Canada, in order to seek to have the advance costs order reinstated. It is the bookstore’s contention that they never asked to be in the position of reviewing practices at Canada Customs. This decision at the Court of Appeal also sends an ugly message to Canadians – that only the wealthy can expect to seek justice if it means taking the government to court.

Canada Customs remains free from judicial review, parliamentary review, or any forum in which to show Canadians that these “grave, systemic problems” with their bureaucracy have been amended. Supposedly the onus is on Customs to reveal how and what they changed to solve the problems, yet they remain accountable to no one..

(update posted: 05/02/05)

article by Mark Macdonald: What The Little Sister's Trial Is Really About

Historical Information

December 16, 2000, press coverage of court decision

The following material is provided here for those interested in reading additional articles or commentary related to the case. (originally published prior to 2000)

The following are provided for those interested in reading additional published articles related to the case. Copyright is retained by the respective author or publisher. (< 2000)
 

The following are provided for those interested in reading additional published articles related to the case. Copyright is retained by the respective author or publisher. (2000 >)
 

This is the complete transcript of the judgment handed down January 19, 1996. by the Honorable Justice Smith.

No. A901450
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

Between:
Little Sisters Book and Art
Emporium and the British Columbia
Civil Liberties Association
James Eaton Deva and Guy Allen Bruce Smythe

And:

The Ministry of Justice and
Attorney General of Canada, and
Minister of National Revenue, and
Attorney General of British Columbia

Pages : 49
Words : 29,296
Lines : 2598

complete document | text file: lssccd.txt
complete document | html file: lssccd.html

(To download the text format document "right click" and "save as" to your computer.)

We sincerely thank all the people who have for so many years supported us and the fight against discrimination and censorship in Canada.

Your support is greatly appreciated: Little Sister's Defense Fund

 
 
 
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