, 2006

 
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 and ) Reasons for Judgment
James Eaton Deva and Guy Allen Bruce )
Smythe )
)
Plaintiffs ) of the Honorable
)
And: )
)
The Ministry of Justice and ) Mr. Justice Smith
Attorney General of Canada, and )
Minister of National Revenue, and )
Attorney General of British Columbia )
)
Defendants )


Counsel for the plaintiffs: J.J. Arvay, Q.C.

Counsel for the defendants
The Minister of Justice, J.A. Van Iperen, Q.C.
Attorney General of Canada, N. Sharma
and Minister of National Revenue D.L. Kiselbach

Counsel for the defendant F.A.V. Falzon
Attorney General of British Columbia A.R. Westmacott

Place and Dates of Trial: Vancouver, B.C.
October 11-14, 17-21, 24-28,
November 9, 10, 14-18, 21-25,
December 7-9, 12-16, 19, 20, 1994.


CONTENTS

I. Introduction
II. The parties and their positions
A. The plaintiffs
B. The federal Crown
C. The provincial Crown
III. The remedies claimed
IV. The legislative scheme
V. The Customs bureaucracy
VI. The Customs procedures
VII. The factual background
VIII. Analysis
A. Whether the legislation infringes a Charter right or freedom
1. Whether s. 2(b) is infringed
2. Whether s. 15(1) is infringed
a. Standing
b. Whether the law has drawn a distinction
c. Whether the effect of the legislation imposes a burden or disadvantage
d. Whether the distinction is discriminatory
3. Whether the legislation is saved by s. 1
a. Admissibility of evidence
b. Whether the limitation is prescribed by law
c. Whether the limitation is reasonable and demonstrably justified
(1) Importance of objective
(2) Means proportional to objective
(a) Rational connection
(b) Minimal impairment
(c) Deleterious effects/objective
(d) Deleterious/salutary effects
B. Whether the application of the legislation infringes a Charter right or freedom
(1) Whether s. 2(b) is infringed
(2) Whether s. 15(1) is infringed

IX. The Appropriate Remedy
X. Judgment


I. INTRODUCTION

[1] Over the two months taken up by this trial this Court heard from artists, writers, sociologists, anthropologists, psychologists, teachers, book distributors, magazine publishers, booksellers, librarians, customs officers, police officers, and ordinary citizens, many of whom testified most eloquently. The subject of their discourse is a matter at the core of our fundamental democratic values the right to
speak and read and write freely. Their testimony illuminated and explored the historic tension between that right and state censorship. The Court's function, though, is not to attempt to resolve that tension as a philosopher or political scientist might, not to decide whether censorship by the state is a good thing or bad. Rather, the Court must determine the legal and factual issues presented by the parties to this action, which questions the constitutional validity of the customs legislation by which Parliament prohibits the importation of obscene material into Canada.

[2] The plaintiffs challenge code 9956(a) of Schedule VII and s. 114 of the Customs Tariff, S.C. 1987, c. 41 (3rd Supplement), and ss. 58 and 71 of the Customs Act, S.C. 1986 c. 1 (2nd Supplement). They say these provisions infringe rights and freedoms guaranteed by ss. 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms, which provide:

2. Everyone has the following fundamental freedoms:
. . .

(b) freedom of thought, belief, opinion and expression . . . .
. . .

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race,
national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[3] The defendants concede that the challenged legislation infringes s. 2(b), deny that it infringes s. 15(1), and contend that, in any event, it is a reasonable limit on expression and equality and is saved by s. 1, which provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

II. THE PARTIES AND THEIR POSITIONS

A. The plaintiffs

[4] The plaintiff Little Sisters Book and Art Emporium (hereafter referred to as "Little Sisters") is described in the statement of claim as a provincial corporation whose principal business is the sale of books and magazines, most of which are written by and for homosexual men and women. It is also alleged that Little Sisters operates a mail order business for customers across Canada; that it imports most of the books and magazines it sells from publishers in the United States; that since about 1985 "hundreds" of books and magazines purchased by Little Sisters for importation into Canada have been
"seized, detained, prohibited and/or destroyed" by customs officials purporting to act pursuant to the impugned legislation; and that most of those books and some of the magazines are comprised solely of written text.

[5] No attempt was made to prove the legal existence of Little Sisters and, although all parties proceeded as if that were an undisputed fact, it is a material fact for want of proof of which the claim of Little Sisters must fail. Accordingly, pursuant to Rule 40(7) of the Rules of Court, I direct that Little Sisters may file the appropriate certification by the Registrar of Companies of its incorporation and good standing in accordance with the provisions of the Company Act, R.S.B.C. 1979, c. 59.

[6] The plaintiffs James Eaton Deva and Guy Allen Bruce Smythe are described in the statement of claim as homosexuals and as the directors and controlling shareholders of Little Sisters.

[7] The plaintiff British Columbia Civil Liberties Association is said to be a provincially incorporated society whose objects include "the promotion, defense, sustainment and extension of civil liberties and human rights." It is said that the Association "has demonstrated a long-standing, genuine and continuing concern for the rights of disadvantaged groups or individuals in Canada and has likewise opposed censorship of allegedly obscene books and magazines." No evidence was led
to establish these allegations but, although they are denied in the statement of defense, they were not mentioned, let alone disputed, during argument. As before, I will direct that the Association may file the relevant certification by the Registrar of Companies pursuant to the provisions of the Society Act, R.S.B.C. 1979, c. 390. I will take judicial notice of the allegations concerning the Association's "objects and concerns".

[8] The plaintiffs plead that the impugned legislation creates a "system of prior restraint" that has the purpose and the effect of "preventing, deterring, and/or unduly delaying the importation of, and/or of causing the destruction of, material which is not 'obscene'" and thereby infringes the freedom of thought, belief, opinion and expression guaranteed by s. 2(b) of the Charter. As well, they claim that the legislative provisions have been applied to Little Sisters' books and magazines in a manner that discriminates against the authors and readers of the material, including the plaintiffs Deva and Smythe, on the basis of their homosexuality. This discrimination is said to contravene s. 15 of the Charter.

[9] The plaintiffs have named the Minister of Justice and the Attorney General of Canada as defendants, purportedly in reliance on the provisions of the Department of Justice Act, R.S.C. 1985, c. J-2 that impose upon the Minister of Justice the duty to see that the administration of public affairs is in accordance with the law, and upon the Attorney General of Canada the duty to regulate and conduct all litigation for or against the Crown in respect of subjects within the federal jurisdiction. Counsel appeared for these parties and raised no objection to their joinder so I will consider them properly joined. In any event, it appears that the Attorney General of Canada is a proper party by reason of s. 8(7) of
the Constitutional Question Act, R.S.B.C. 1979, c. 63.

[10] The other defendant named, the Minister of National Revenue, is alleged to be responsible for the administration of the customs legislation. The statement of defence denies this allegation but no mention was made of this issue by any party at the trial. Section 2 of the Customs Act defines "Minister" as the Minister of National Revenue, so it is clear that Customs is within the jurisdiction of that office.

[11] I will refer to the three named defendants collectively as "the federal Crown" in these reasons.

B. The federal Crown

[12] The federal Crown's statement of defence traverses the statement of claim, as it states that it denies everything not specifically admitted but admits nothing. In the alternative, it pleads three defences:

1. That the plaintiffs are precluded from challenging the application of the customs
legislation to Little Sisters' importations because Little Sisters did not exhaust its remedies under
the legislation;

2. That the impugned legislation infringes neither s. 2(b) nor s. 15 of the Charter; and

3. That if the impugned legislation infringes either s. 2(b) or s. 15 of the Charter, it is
saved by s. 1.

As already noted, the federal Crown admitted at trial that the impugned legislation contravenes s. 2(b) of the Charter.

C. The provincial Crown

[13] The Attorney General of British Columbia (referred to hereafter as "the provincial Crown") received notice of the constitutional challenge as required by the Constitutional Question Act, R.S.B.C. 1979, c. 63 and is a party to the action by virtue of his appearance and the operation of that statute. The provincial Crown delivered no pleadings and did not lead any oral testimony, although it did tender written evidence of legislative facts. The provincial Crown supported the federal Crown on the basis that the plaintiffs' submissions have constitutional implications for the control, under provincial legislation, of extreme pornography in film and video, viz., the Motion Picture Act, S.B.C. 1986, c. 17.

III. THE REMEDIES CLAIMED

[14] The plaintiffs invoke s. 52(1) of the Constitution Act, 1982, which provides:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. and s. 24 of the Charter, which provides:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The Charter is part of the Constitution by virtue of s. 52(2)(b) of the Constitution Act, 1982.

[15] Specifically, the plaintiffs seek declarations pursuant to s. 52(1) of the Constitution Act, 1982, that code 9956(a) of Schedule VII and s. 114 of the Customs Tariff, S.C. 1987, c. 41 (3rd Supplement), and ss. 58 and 71 of the Customs Act, S.C. 1986, c. 1 (2nd Supplement):

1. are of no force or effect at all; or, alternatively

2. are of no force or effect to the extent that they are construed and applied to detain, seize, or prohibit the importation of books and printed paper into Canada on the ground that the written text is obscene within the meaning of s. 163(8) of the Criminal Code; and, in addition or
alternatively,

3. are of no force or effect to the extent that they are construed or applied to detain, seize, or prohibit the importation of books, printed paper, drawings, paintings, prints, photographs or representations of any kind produced for homosexual audiences that are alleged to be obscene.

[16] In addition, or alternatively, the plaintiffs seek a declaration pursuant to s. 24(1) of the Charter, that the impugned provisions "have at all material times been construed and applied in a manner that is contrary to s. 2(b) and/or s. 15 of the Charter and that is not justified pursuant to s. 1".

IV. THE LEGISLATIVE SCHEME

[17] The legislative scheme governing the movement of goods into Canada from outside its borders is found in the Customs Act and the Customs Tariff. The relevant provisions of the scheme can be summarized as follows.

[18] Section 12 of the Customs Act imposes an obligation to report imported goods to the nearest customs office. The mode of importation determines who is charged with the obligation. First, every person entering Canada has a duty to report goods in his or her actual possession. Second, goods imported by courier or by mail must be reported by the person who exported them to Canada. Third, any other goods arriving in Canada on a conveyance must be reported by the person in charge of the conveyance. Finally, goods arriving in any other manner must be reported by the person on whose behalf
they are imported.

[19] The person reporting the goods is obligated to accurately complete prescribed forms setting out the place and date of purchase, the name of the vendor, and a detailed description of the quantity and value of each kind of good imported. This is known as "accounting for" the goods. Goods accounted for are then "classified", by reference to the Customs Tariff, to determine their admissibility into Canada and the customs duty payable. Goods subject to customs duty are charged with that duty until it is paid, and the importer and the owner are jointly liable for payment.

[20] While the legislative scheme is essentially a regulatory one, by s. 160, the willful evasion of compliance or payment of duties and the possession of and dealing with goods imported in contravention of the Customs Act are made criminal offences, subjecting the offender to imprisonment for up to five years and a maximum fine of $25,000.

[21] The burden of proof of compliance in respect of any proceedings under the Customs Act, except for criminal proceedings, is placed on the importer by s. 152(3).

[22] This self-reporting system is policed by customs officers, who are defined by s. 2 of the Act as including "any person employed in the administration or enforcement" of the Customs Act and any member of the Royal Canadian Mounted Police.

[23] Section 114 of the Customs Tariff prohibits the importation of "any goods enumerated or referred to in Schedule VII" of that statute. Schedule VII lists classes of prohibited goods and assigns each class a code number. There are more than 14,000 such codes. Code 9956 deals with obscene, hateful, treasonable, and seditious goods. For present purposes, we are concerned only with goods referred to in code 9956(a) of the Schedule. It prohibits the importation of goods described as:

Books, printed paper, drawings, paintings, prints, photographs or representations of any kind that

(a) are deemed to be obscene under subsection
163(8) of the Criminal Code.

Subsection 163(8) of the Criminal Code, R.S.C. 1985, c. C-46
provides:

163.(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

[24] Section 99 of the Customs Act authorizes customs officers to examine imported goods and mail and to open packages that they reasonably suspect may contain goods referred to in the Customs Tariff. This provision is supplemented by s. 42 of the Canada Post Corporation Act, S.C. 1993, c. C-10, which requires that any mail arriving from outside Canada "that contains or is suspected to contain" anything prohibited under the Customs Act be submitted to a customs officer. There is an exception in s. 99(2) of the Customs Act for mail weighing thirty grams or less; such mail may not be opened without the consent of the person to whom it is addressed.

[25] Section 58 of the Customs Act, which authorizes customs officers to determine the tariff classification of imported goods, is subject to constitutional challenge in this case. It is pursuant to this section that customs officers determine whether goods are prohibited by s. 114 and code 9956(a) of the Customs Tariff. So far as it is relevant, section 58 reads as follows:

58.(1) An officer may determine the tariff classification . . . of imported goods at any time before or within thirty days after they are accounted for . . .

. . .

(5) Where an officer does not make a determination ... under subsection (1) in respect of goods, a determination of the tariff classification . . . of the goods shall, for the purposes of
sections 60, 61 and 63, be deemed to have been made thirty days after the time the goods were
accounted for . . . in accordance with any representations made at that time in respect of the
tariff classification . . . by the person accounting for the goods.

(6) A determination of tariff classification . . . is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner
provided by sections 60 to 65.

[26] Section 101 of the Customs Act permits customs officers to detain goods until they are satisfied that the goods have been dealt with in accordance with the customs legislation and other legislation administered by Canada Customs.

[27] Section 59 permits any officer designated by the Minister, or any officer within a class of officers so designated, to re-determine tariff classifications under, inter alia, s. 60. This delegation has been made to a class of officers known as Tariff and Values Administrators.

[28] Section 60 affords the importer the right to have the classification of prohibited goods re-determined as follows:

60.(1) The importer . . . may . . .
(a) within ninety days, or
(b) where the Minister deems it advisable, within two years
after the time the determination . . . was made in respect of the goods under section 58,
request a re-determination of the tariff classification . .

(2) A request under this section shall be made to a designated officer in the prescribed manner and in the prescribed form containing the prescribed information

(3) On receipt of a request under this section, a designated officer shall, with all due dispatch, re-determine the tariff classification . . . and give notice of his decision to the person who made the request.

[29] Section 63 grants a right to a further re-determination by the Deputy Minister of National Revenue for Customs and Excise:

63.(1) Any person may,
(a) within ninety days after the time he was given notice of a decision under
section 60 . . . , or
(b) where the Minister deems it advisable, within two years after the time a
determination . . . was made under section 58,

request a further re-determination of the tariff classification . . . re-determined . . . under section 60
. . . .
(2) A request under this section shall be made to the Deputy Minister in the prescribed
manner and in the prescribed form containing the prescribed information.

(3) On receipt of a request under this section, the Deputy Minister shall, with all due
dispatch, re-determine the tariff classification . . . and give notice of his decision to the person who made the request.

[30] The Deputy Minister is authorized by s. 64 to re-determine the tariff classification of goods on his own initiative in certain circumstances:

64. The Deputy Minister may re-determine the tariff classification . . . of imported goods

(a) within two years after the time a determination . . . was made under section 58, where the
Minister deems it advisable,
. . .
(c) at any time, where the person who accounted for the goods . . . has failed to comply with any
of the provisions of this Act or the regulations or has committed an offence under this Act in respect of the
goods,

(d) at any time, where the re-determination . . . would give effect to a decision of the Canadian
International Trade Tribunal the Federal Court or the Supreme Court of Canada made in respect of the
goods, and

(e) at any time, where the re-determination . . . would give effect in respect of the goods in this graph
referred to as the "subsequent goods", to a decision of the Canadian International Trade Tribunal, the Federal
Court or the Supreme Court of Canada . . . , made in respect of

(i) other like goods of the same importer or owner imported on or prior to the date
of importation of the subsequent goods, where the decision relates to the tariff classification of those
other goods,
. . .
and, where the Deputy Minister makes a re-determination . . . under this section, the Deputy
Minister shall forthwith give notice of that decision to the person who accounted for the goods . . . , the
importer of the goods or the person who was the owner of the goods at the time of release.

Section 2(3) authorizes the Deputy Minister to delegate his powers, duties and functions under the Act to any person. Those relating to re-determinations under s. 63 of tariff classifications have been delegated to the Director-General of Tariffs, Programs Branch, an official in the Ministry of National Revenue.

[31] Section 67 grants a right of appeal from the Deputy Minister's re-determination to the Canadian International Trade Tribunal, which must hold a hearing and may then make "such order, finding or declaration as the nature of the matter may require". Section 71, which also faces constitutional challenge in this case, substitutes the superior court of the relevant province or territory for the Canadian International Trade Tribunal where the goods in question have been prohibited
pursuant to, inter alia, code 9956. The section reads as follows:

71.(1) Where the release of goods has been refused on the ground that the goods have been
determined to be prohibited goods as described in code 9956 . . . of Schedule VII to the Customs
Tariff, re-determination may be requested under sections 60 and 63 or made under section 64 and
appeals may be taken under sections 67 and 68 in respect of the determination, subject to the
following modifications . . . .

It then goes on to prescribe the necessary amendments to ss. 64(d), 64(e), 67, and 68 to effect the substitution of
the appropriate court for the Canadian International Trade Tribunal.

[32] Section 67, as amended, grants a right of appeal in these terms:

67. (1) A person who deems himself aggrieved by a decision of the Deputy Minister made pursuant to section 63 or 64 may appeal from the decision to the [superior court of the province or territory]by filing a notice of appeal in writing with the Deputy Minister and the [clerk of the court]
within ninety days after the time notice of the decision was given.

(2) Before making a decision under this section, the [court] shall provide for a hearing and shall publish a notice thereof in the Canada Gazette at least twenty-one days prior to the day of the hearing, and any person who, on or before the day of the hearing, enters an appearance with the [clerk of the court] may be heard on the appeal.

(3) On an appeal under subsection (1), the [court] may make such order, finding or
declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.

Finally, a right of appeal from the superior court of the province or territory to the Federal Court is
granted by s. 68:

68. (1) Any of the parties to an appeal under section 67, namely,
(a) the person who appealed,
(b) the Deputy Minister, or
(c) any person who entered an appearance in accordance with
subsection 67(2),

may, with leave of a judge of the Federal Court, within ninety days after the date a decision is made under section 67, appeal therefrom to that Court on any question of law.

(2) The Federal Court may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the [court] for re-hearing.

[33] The rights of re-determination and appeal provided in the legislation are the sole remedies available to importers. Any recourse to the courts other than as provided is precluded by ss. 58(6), 62(3), and 65(3). As well, by virtue of s. 67(3) a decision of the court made after an appeal pursuant to s. 67 may not be assailed except by resort to s. 68.

[34] An importer whose goods are prohibited entry may arrange to export the goods or to abandon them to the Crown. In the latter case, s. 142 permits the Minister to export, dispose of, or sell the goods and s. 36 makes the importer liable for reasonable expenses incurred by the Crown, except if the goods are sold.

V. THE CUSTOMS BUREAUCRACY

[35] Sections 58, 60, 63, and 64 of the Customs Act provide bare delegations of discretionary decision-making powers. To determine by whom and how those powers are exercised, it is necessary to examine the customs bureaucracy and its administrative procedures.

[36] Canada Customs headquarters is located in Ottawa. The country is divided into customs regions in which are located regional customs offices and the various "ports of entry", that is, seaports, airports, customs warehouses, post offices, and border-crossing stations. The bureaucratic structure is like a pyramid, with the Deputy Minister of National Revenue for Customs and Excise at the apex. Below that officer are various levels or classes of officers.

[37] There are approximately 10,000 employees in the customs system, of which about 4,000 are uniformed Customs Inspectors stationed at the ports of entry. It is their duty to detect unreported, misdescribed, and prohibited goods. As well, they monitor compliance with seventy-eight federal statutes administered by Canada Customs, including the customs Act and the Customs Tariff, dealing with subjects as diverse as atomic energy, agricultural products, pests, narcotics, and food and drugs, to name a few.

[38] Applicants for the position of Customs Inspector must have post-secondary training or a technical school diploma in courses leading to police, security, or customs work. Until recently, high school graduation was the educational prerequisite for the position and many of the Customs Inspectors presently employed have no further formal education. All new inspectors undergo a sixteen-week training session at the Customs and Excise College in Rigaud, Quebec, during which they spend only a few hours on the interpretation and application of code 9956. They must successfully complete an examination at the end of this training and are then assigned to ports of entry where they receive informal, "on-the-job"
training from more-experienced officers.

[39] Employees one level above inspectors are known as Commodity Specialists. These officers, who are more specialized than Customs Inspectors and deal with particular goods or classes of goods, work in the regional offices and are chosen from applicants from the ranks of Customs Inspectors. All Commodity Specialists receive a three-week period of general, classroom training at the Customs and Excise College, and those assigned to deal with code 9956 also attend at Headquarters in Ottawa for approximately three days to two weeks of further instruction by members of what is known as
the Prohibited Importations Directorate. I will describe that group momentarily.

[40] The classification powers conferred by s. 58 of the Customs Act are exercised by Customs Inspectors and Commodity Specialists.

[41] The third level of officials, who also work in the regional offices, are known as Tariff and Values Administrators. Their functions include the exercise of the powers delegated to them to deal with re-determinations of tariff classifications pursuant to s. 60. Tariff and Values Administrators are chosen by competition. Most applicants are Commodity Specialists. Those chosen receive further training at the College and, if assigned to code 9956 duties, attend at the Prohibited Importations Directorate for up to two weeks for additional guidance and instruction in regard to its interpretation and application.

[42] The responsibilities of Commodity Specialists and Tariff and Values Administrators include providing assistance and advice on classification decisions to those officers ranking below them.

[43] In areas of very high volumes of importations, like the Toronto Region, individual Tariff and Values Administrators and Commodity Specialists are sometimes assigned full-time to code 9956 responsibilities. In Fort Erie, for example, the volume of goods potentially subject to classification under code 9956 is so high that a procedure has been implemented for handling them that includes the Customs Inspectors detaining goods suspected of violating code 9956 and forwarding them to particular Commodity Specialists for examination and classification. In less busy areas, these duties are carried out by officers as part of their routine.

[44] It is the responsibility of Regional Managers to assign Commodity Specialists and Tariff and Values Administrators to deal with code 9956 duties. As Customs employees generally consider this work to be undesirable, not all officers participate in it and those assigned to it are regularly moved from these duties into other areas, generally after three to six months.

[45] The Prohibited Importations Directorate is located at headquarters in Ottawa. It has responsibility for reviewing materials and making recommendations on requests for re-determination under s. 63, reviewing requests by importers and publishers for advance opinions with respect to contemplated importations, and providing guidance and advice to the officers in the regional offices and ports of entry with respect to the interpretation and application of code 9956. It also advises the Deputy Minister when requested on legal and policy matters.

[46] The Directorate presently consists of twelve persons, of whom seven are directly involved in the re-determination process. These officers are known as Tariff Administrators. On commencing their duties, they receive informal training for several days from more- senior officers in the Directorate.

[47] The Tariff Administrators are supervised by a Manager who, in turn, reports to the Director of the Directorate. The Directorate is one of ten directorates responsible to the Director-General of Tariffs, Programs Branch, to whom the re-determination responsibilities of the Deputy Minister have been delegated. The Director-General reports to the Assistant Deputy Minister of National Revenue, Programs Branch, who reports to the Deputy Minister of National Revenue for Customs and Excise.

VI. THE CUSTOMS PROCEDURES

[48] The examination of all goods and mail presented at ports of entry would be a practical impossibility. There are approximately 240 ports of entry in Canada, and in the fiscal year 1993-1994, for example, almost 230,000 shipments, made up of about 330,000,000 goods, were imported through them. Customs officials estimate that there are approximately 10.5 million entry transactions each year and that between 20,000 and 40,000 items of mail enter the Customs Mail Center daily in Vancouver alone.

[49] Customs tries to examine approximately 8% of the goods imported. As Customs is predominantly concerned with ensuring compliance with the law and with detecting contraband, goods that are unlikely to contravene applicable legislation are examined less frequently. An example of such goods is books, which are not subject to customs duty and which ordinarily do not fall within Schedule VII of the Customs Tariff.

[50] The procedures to be followed by customs officers in classifying goods pursuant to their statutorily delegated powers are set out in a departmental memorandum entitled "Procedures For the Administration of Tariff Code 9956", known as Memorandum R9-1-1. This is an internal directive for Customs employees and is not made publicly available.

[51] There is no systematic pattern of examination. Customs officers obtain guidance for identifying possibly-prohibited goods from s. 1 of Memorandum R9-1-1, which says:

1. Upon presentation of appropriate documentation, Customs Officers must determine whether or not the goods may be classified under tariff code 9956. As a guide, the following
information will be considered:

(a) invoice description of the goods and any documentation available which describes the importation;
(b) information obtained from the importer, especially concerning any previous
determination which the goods may have had;
(c) importers and exporters known to deal in pornographic goods;
(d) geographic origin and production company of the goods (i.e., known sources of
pornography);
(e) intelligence information and
(f) other information known about the goods, for example, information obtained through
the news media or any other source.

[52] Thus, officers often detain goods on suspicions aroused by the title of the material. Occasionally, as suggested in s. 1(c), particular importers or foreign exporters will be formally identified, either locally or nationally, for heightened inspection. Little Sisters has been so identified at the Vancouver Mail Center, where virtually all imported mail addressed to Little Sisters is examined. Similarly, all shipments by Inland Distributors Ltd., an American book-distributor, are routinely examined at the Fort Erie port of entry.

[53] An officer who suspects goods may be within code 9956 and who detains them for further inspection must complete Part A, entitled "Notice of Detention", of a customs form known as Form K27 and send or deliver it to the importer. The Form K27 has spaces for the date, identification of the Point of Entry, and two "Control" numbers, described respectively as "Regional Control No." and "Point of Entry Control No.". It then says:

The following goods have been detained for a determination of tariff classification. Once a determination has been made, you will be notified in writing. There follows a space in which the officer writes a description of the goods detained, identifying them by their titles.

[54] When the officer has classified the material, he or she must complete and send to the importer Part B of Form K27, entitled "Notice of Determination". The first part of the form lists the goods prohibited pursuant to s. 114 and code 9956 of Schedule VII of the Customs Tariff, advises that the examination was done pursuant to s. 58 of the Customs Act, and refers the importer to the back of the form for "Your rights respecting this determination". Below that reference are two areas entitled "Section 1" and "Section 2". Section 1 is a series of boxes to be checked by the officer to indicate the type of material involved, for example, "book", "magazine", "photograph", etc. Section 2 is another series of boxes to be
checked by the officer to specify the ground for prohibition. There are eight boxes, entitled "Sex With Violence", "Child Sex", "Incest", "Bestiality", "Necrophilia", "Hate Propaganda", "Anal Penetration", and "Other". The box marked "Anal Penetration" is no longer applicable, for reasons I will come to. The box "Other" is followed by a short line on which the officer may write one or two words to describe the ground for prohibition.

[55] The back of the form K27 advises the recipient of the right to dispute the determination pursuant to s. 60 of the Customs Act by filing a Form B2 (Request for Review, Redetermination or Re-appraisal) at a Customs office within ninety days of the date of the determination. It goes on to set out available options if the importer does not wish to dispute the determination, and describes the incidents of exporting the goods and abandoning them to the Crown. [56] Section 3 of Memorandum R9-1-1 instructs officers how to complete and what to do with Part A of the Form K27. It states that the
regional office is to "assign a sete running control number for each K27 form" in the box provided for that purpose, and that the port of entry is to assign its own "sete running control number" in the box provided. That is significant, because the Form B2 requires the dissatisfied importer to complete a box identified as "Classification No." but has no provision corresponding to the "Control" numbers on the Form K27. That would pose no problems for an experienced customs broker, but it caused much confusion with respect to Little Sisters' attempts at re-determinations. Indeed, even senior Customs officers called to testify were unable to explain how the Form B2 was to be completed. In fact, instructions for filling up
Form B2 are contained in another internal directive, Memorandum D11-6-1, but this memorandum is provided to importers only if they ask for it.

[57] Sometimes, the classifying officer will wish to consult with other customs officers. Section 9 of Memorandum R9-1-1 advises that customs officers may consult with Commodity Specialists and Tariff and Values Administrators who may, in difficult cases, seek assistance from the Prohibited Importations Directorate. However, the classification decision must be made by an officer designated to exercise the powers granted by s. 58.

[58] This consultation procedure gives rise to the possibility that an officer consulted by an officer of lower rank on a classification decision may be assigned to handle the re-determination of that very decision. While Customs has an unwritten policy that this should not occur, instances were identified where it did occur.

[59] The officer responsible for classification must refer certain goods to Headquarters for review. The procedure in this regard is laid down in s. 11:

11. The following goods must be referred to Headquarters:
(a) any goods which are being imported ostensibly for an educational, scientific, medical or artistic purpose but which may contain material classifiable under tariff code 9956;
. . .
(d) any goods to which the application of the departmental guidelines in Memorandum D9-1-1 is not clear.

[60] The reason for s. 11(a) is that Customs does not consider officers ranking below the Prohibited Importations Directorate to be expert in evaluating such purposes, an evaluation that must be undertaken in determining whether any work is obscene. Curiously, no guidance is offered to lower ranking officers as to how to recognize the material referred to in s. 11(a) so that they may cull it and refer it. [61] Section 12 directs what must be done when a re-determination is requested pursuant to s. 63. It provides for the secure delivery of the goods in question to the Prohibited Importations Directorate in sufficient time to enable a re-determination to be completed within four weeks of the initial importation. While there is no reference to it in Memorandum D9-1-1, when a request is made pursuant to s. 63, Tariff and Values
Administrators are asked to record their reasons for prohibition under s. 60 and to forward their reasons and a recommendation to the Prohibited Importations Directorate. The quality of these reports varies. Section 13 advises that the Prohibited Importations Directorate will endeavor to complete the re-determination within two weeks of receiving the goods.

[62] The review for re-determination purposes under s. 63 is actually done by Tariff Administrators in the Prohibited Importations Directorate. They prepare a written recommendation for the Manager, who reviews it and in turn sends it and his own recommendation to the Director. The Director reviews this material and sends it to the Director-General for his signature and formal decision. The Manager, Director, and Director-General do not often participate in or add anything to the process.

[63] If the importer chooses to submit extrinsic material on the re-determination, such as expert opinion, the Tariff Administrators will consider it. However, such evidence is not routinely invited and oral evidence is never permitted.

[64] There are special procedures set out in ss. 17 to 22 with respect to mail. If suspected mail weighs less than thirty grams a letter must be sent to the addressee requesting consent to open and examine it. Mail examined and found admissible is returned to Canada Post Corporation for delivery. If mail is classified as prohibited, a Form K27 with Parts A and B completed must be mailed to the consignee. Section 21 contains the following advice:

It is to be noted that an appreciable volume of
prohibited matter is being sent by mail by foreign
publishers and distributors of obscene material who
regularly send illustrated advertising matter of their
products by this means, and in many cases, unsolicited.

[65] Sections 24 to 28 prescribe procedures with respect to destruction of goods, s. 29 with respect to "media inquiries", and s. 30 with respect to importers' access to prohibited goods. With respect to the latter, s. 30 says:

30. Requests by importers and/or their lawyers to review prohibited goods which are the subject of an appeal, should be considered on a case-by-case basis. Such requests are to be considered
during both levels of the departmental appeal process, but only where operational equipment and
resources make it feasible. Customs Officers are instructed not to enter into discussions or debates on the merits of the case during the viewing. To minimize the requests for access to prohibited goods, importers should be provided with a reference to the specific section of the guidelines which has resulted in the goods being prohibited under this tariff item at the time of the notice of determination or redetermination. Thus, importers have no guarantee that they may see, and in fact are discouraged from seeing, the prohibited material for purposes of preparing a submission on a request for re-determination.

[66] In reaching classification decisions, customs officers are guided by Customs Memorandum D9-1-1, entitled "Interpretative Policy and Procedures for the Administration of Tariff Code 9956". This document was first published in 1985 and was prepared with the assistance of legal advice from the Department of Justice as to the meaning and application of the obscenity test. It is revised periodically to reflect changes in legislation and jurisprudence. Unlike Memorandum R9-1-1, a copy of Memorandum D9-1-1 will be given to any member of the public, but only on request.

[67] The present edition was published on September 29, 1994, a few days before this trial commenced, and differs from its predecessor. Prior to the revision, customs officers were directed by Memorandum D9-1-1 to prohibit, as obscene, material that depicted or described anal penetration. The preamble to the revised Memorandum states that material depicting or describing anal penetration is no longer to be considered obscene solely for that reason because "departmental policy" had been revised "as a result of evolving jurisprudence".

[68] Memorandum D9-1-1 begins by stating:

This memorandum outlines and explains the interpretation of tariff code 9956 of Schedule VII to the Customs Tariff and provides procedures to be followed in this regard.

The Memorandum goes on to reproduce code 9956 and then, under the title "Guidelines and General Information", sets out detailed procedures to be followed in the classification process.

[69] The Memorandum offers this guidance to custom officers with respect to code 9956(a):


5. Goods which are deemed to be obscene under the Criminal Code are those of [sic] , a dominant characteristic of which, is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence.

6. The following goods, in so far as they are deemed to be obscene . . . within the
meanings of the terms set forth above, are to be classified under tariff code 9956 and their
importation into Canada prohibited:

(a) goods which depict or describe sexual acts that appear to degrade or dehumanize any of the participants, including:
(1) depictions or descriptions of sex with violence, submission, coercion, ridicule, degradation, exploitation or humiliation of any human being, whether sexually explicit or not, and which appear to condone or otherwise endorse such behavior for the purposes of sexual stimulation or pleasure;
(2) depictions or descriptions of sexual assault (previously, rape). Any goods that depict or describe a sexual activity between male/female, male/male or female/female which appears to be without his/her consent and which appears to be achieved chiefly by force or deception;

(3) depictions or descriptions of bondage, involuntary servitude and the state of human beings subjected to external control, in a sexual context;

(4) depictions or descriptions which appear to be associating sexual pleasure of [sic] gratification with pain and suffering, and with the mutilation of or letting of blood from any part of the human body, involving violence, coercion and lack of basic dignity and respect for a human being;

(5) depictions or descriptions of sexual gratification gained through causing physical pain or humiliation, or the getting of sexual pleasure from dominating, mistreating or hurting a human being. This includes depictions and descriptions of physical force which appear to be used so as to injure, damage or destroy; of extreme roughness of action; of unjust or callous use of
force or power; of spanking, beating or violent shoving in a sexual context;

(6) depictions or descriptions of mutilation or removal of any part of the
human body or of the taking of human life, real or implied, for the purpose of
sexual arousal; and
(7) depictions or descriptions of menstrual blood, fecal matter, urine or the inducement of feces through enemas as part of sexual arousal.
. . .
8. It should be emphasized that a book, film, video cassette, etc., is to be assessed in its entirety. It is to be considered as a whole and its overall nature and dominant characteristic must be assessed. A section containing subjects outlined in this Memorandum must be assessed as an integral part of the entire work and in the context of its theme. However, goods which in their essence are made up of many individual elements are not to be treated as a whole and may be prohibited on the basis of any one of their elements which fall within the prohibitory provisions of tariff code 9956. Similarly, a magazine or newspaper is to be considered on a segment-by-segment basis.

9. Goods not classified under tariff code 9956 include the following:
. . .
(b) goods which communicate in a rational and unsensational manner information about a sexual activity that is not unlawful are not to be prohibited;

(c) sex aids and toys are not to be deemed obscene and, therefore, are not to be
classified under tariff code 9956; goods are not to be prohibited solely on the basis of advertisements which simply promote the sale of various sex toys or sex aids. However, explicit textual descriptions or visual depictions in the advertisements deemed to be obscene will be prohibited;

(d) in assessing goods under tariff code 9956, full recognition should be given to freedom of expression
. . . .
These sections incorporate a generally accurate and comprehensive summary of the present state of the law relating to obscenity as gleaned from the legislation and the jurisprudence interpreting it.

[70] The Memorandum goes on in s. 10 to outline procedures whereby importers may submit material in advance of commercial importation for an opinion on admissibility by the Prohibited Importations Directorate. It also advises that the Directorate will provide advice with respect to the administration of code 9956, and states that these services are offered to encourage voluntary compliance with the legislation.

[71] Section 11 provides that goods made in Canada and exported are to be considered to be importations for purposes of code 9956 on their return to Canada.

[72] Section 12 requires officers to deliver Form K27 to importers when their goods are detained and classified as prohibited. Sections 13 to 16 summarize the rights of re-determination and appeal set out in the Customs Act. They advise that requests for re-determination must be made on a Form B2 and set out the prescribed time limits.

[73] Finally, ss. 17 to 21 set out procedures for dealing with goods classified as prohibited and abandoned to the Crown.

[74] Customs officers have sources of classification assistance in addition to Memorandum D9-1-1. For example, the Prohibited Importations Directorate has a manual of examples of materials that are considered to be within and without code 9956(a). The manual is used for training purposes and is often consulted for comtive reference by members of the Prohibited Importations Directorate.

[75] As well, Customs maintains a computerized database of prohibitions under code 9956, known as TRS. However, although this database is presently accessible by all regional offices, it is not yet accessible by all ports of entry. Further, it is not entirely reliable. Since prohibited goods are listed by title, it has happened that admissible items have been prohibited entry because a previously prohibited item had the same title. Moreover, the TRS lists only prohibited titles and does not record items that have been examined and ruled admissible nor items that have been prohibited but re-determined as admissible. Such items may be unwittingly detained and prohibited again pursuant to s. 58. A striking example of this is the
collection of short stories entitled "Macho Sluts" (Boston: Alyson Publications, Inc., 1988), written by Pat Califia, a noted lesbian author. It has been prohibited pursuant to s. 58 on four sete occasions since October 23, 1989, when it was re-determined under s. 63 to be admissible.

[76] Videotapes and motion pictures imported for public showing are not examined by customs officers, but are forwarded to provincial film classification boards for classification pursuant to provincial legislation.

[77] The parties agreed upon some statistics that provide insight into the results of the administration of code 9956(a). For example, the number of prohibitions made pursuant to s. 58 in the period from 1988 to June, 1994, is set out in the following table:

Year Number of Prohibitions
1988 9859
1989 9708
1990 9919
1991 7996
1992 7325
1993 6558
To June 1994 2185

[78] The total number of items examined at the Prohibited Importations Directorate during the same period of time, that is, for examinations for purposes of s. 63 re-determinations, for advice to lower-ranking officers, and for advance opinions, is set out below:

Year Items Examined
1988-89 3116
1989-90 2912
1990-91 3708
1991-92 5464
1992-93 5801
1993-94 7844

[79] Most of the items dealt with under code 9956(a) are pictorial in nature, but a substantial number are textual. The following table identifies the number of textual and pictorial items examined at the Prohibited Importations Directorate for the purpose of re-determinations requested under s. 63 during the period 1992 to June, 1994:

1992-1993 1993-1994
Printed Matter 30 155
Non-Printed Matter 84 310

The table suggests that in the order of 35% to 50% of materials dealt with at the Prohibited Importations
Directorate are textual. The testimony of senior officials in the Prohibited Importations Directorate was consistent with those estimates. They opined that between 5 and 10% of these materials are books, 40 to 45% are magazines, and another 40 to 45% are videotapes. They also estimated that the re-determination process generally takes one to two days for each book, one or more days for each magazine, and as much as one-half day for each one-half-hour videotape.

[80] While arithmetical calculations may be misleading when based on such general estimates, they do provide some outline of the dimensions of the problem giving rise to the plaintiffs' complaints about the administration of the customs scheme. If the year 1993-1994 is used as an example, of the 7,844 items examined, between 390 and 780 were books, between 3,100 and 3,500 were magazines, and between 3,100 and 3,500 were videotapes. Applying the estimated re-determination times for each kind of material, we see that between 390 and 1,560 days are required to deal with books, between 3,100 and 3,500 with magazines, and between 1,550 and 1,750 with videotapes, a total of 5,040 to 6,810 days. As already noted, this work is done by only seven Tariff Administrators.

[81] Clearly, the estimates of actual time spent per item must be excessive. However, they are not unreasonable estimates, considering the necessity to consider each item as a whole and the complexity inherent in the obscenity decision. The inference to be drawn is that Tariff Administrators in the Prohibited Importations Directorate do not have sufficient time available to consistently do a proper job. The problem is even more significant at the regional levels where customs officers encounter much higher volumes of goods and have far more expansive duties.

[82] Few decisions to prohibit are challenged, and few challenges succeed. For example, much of the material affected by code 9956(a) enters the country through the post office. Of the approximately 20,000 to 40,000 items of mail that enter the Customs Mail Center in the Vancouver post office each day, a maximum of approximately 10% are actually examined by customs officers for possible prohibition pursuant to code 9956(a). During the period between February 1, 1994, and June 3, 1994, 352 "prohibited" classification decisions were made at the Customs Mail Center. However, during the slightly longer period from November, 1993, to June 2, 1994, only 75 requests for re-determinations pursuant to s. 60 were made in British Columbia arising out of all ports of entry, and only about 1% of those resulted in
reclassification of the goods.

[83] The Port of Fort Erie is one of the busiest in the country. Most commercial shipments of books and magazines enter through that port, so about 75% of what is inspected and examined is printed materials. Between September, 1992, and May, 1993, 442 titles were detained at Fort Erie for possible classification under code 9956(a), 264 were prohibited as obscene, and 10 of those were ultimately reclassified by Tariff and Values Administrators acting pursuant to s. 60.

[84] Of the 5,801 items examined at the Prohibited Importations Directorate in the period 1992-1993, 114 were examined for the purpose of re-determinations requested pursuant to s. 63. Eight of those items were reclassified as not obscene. Of the 7,844 items examined in the period 1993-1994, 465 related to re-determinations under s. 63. Fifty-five of the 465 items examined were reclassified as not obscene.

[85] Only three appeals from decisions of the Deputy Minister under s. 63 have been heard in the courts since 1985. Glad Day Bookshop Inc. v. The Deputy Minister of the Department of National Revenue (Customs and Excise), an unreported decision of the District Court of Ontario pronounced March 20, 1987, involved a book entitled "The Joy of Gay Sex". The Court concluded the book was not obscene and allowed the appeal. In Little Sisters Book and Art Emporium v. Deputy Minister, Revenue Canada, Customs and Excise, the federal Crown consented to judgment in the County Court of Vancouver on April 28, 1988, allowing an appeal with respect to "The Advocate", an American periodical published for
homosexuals. In Glad Day Bookshop Inc. v. Deputy M.N.R., Customs and Excise (1992), 90 D.L.R. (4th) 527 (O.C.J.), the Court dismissed the importer's appeal and held that the materials, which consisted of male homosexual magazines and collections of short stories, were obscene.

[86] Thus, the system of re-determinations and appeals is resorted to relatively infrequently. The statistics suggest that importers take a very small proportion of classification decisions to the s. 63 level, and of those that are taken, a small number result in reclassification of the initially prohibited material. An even smaller proportion of decisions are appealed to the courts.

[87] The consequences for Little Sisters and its proprietors of this Customs regime have led them to mount this constitutional challenge to the customs legislation.

VII. THE FACTUAL BACKGROUND

[88] As a young man, the plaintiff James Deva was very confused by his homosexual feelings. After leaving university, he traveled to Vancouver to investigate "the gay lifestyle". Although he is qualified as a teacher, he was unable to obtain work in that field. He subsisted on welfare and on his earnings as a sales clerk for about four years. Then he read "The Joy of Gay Sex" and, he said, the book vitalized him.

[89] He and his partner, the plaintiff Bruce Smythe, who did not testify, decided to open a bookstore specializing in homosexual literature. Mr. Deva felt it to be an important undertaking. He believed the confusion and loneliness felt by homosexuals could be ameliorated by enabling individual homosexuals to obtain literature dealing with homosexuality. In this way, he believed, they would gain insight into their own lives and would come to realize, as he had, that there are other homosexuals experiencing similar difficulties coping with life in our society.

[90] Mr. Deva and Mr. Smythe opened the Little Sisters bookstore in 1983 in an area of Vancouver populated by many homosexuals. One of only four stores in Canada specializing in materials for homosexuals, the store has become what Mr. Deva describes as a nerve center for the homosexual community. It serves not only as a retail source of homosexual literature but as a focus for social and political activities. Bulletin boards in the store carry advertisements of goods wanted and for sale, of available accommodation, and of events of interest to the store's patrons. The store acts as a ticket
distribution centre for many events attended by homosexuals. It is the site of book readings and of what are known as "book launches", events attended by authors to announce and promote their new publications.

[91] The Little Sisters store carries a wide variety of materials, mostly catering to homosexual tastes. It has a large selection of gay and lesbian fiction and a section on gay studies. It sells many periodical publications. Books and magazines re chosen to appeal to homosexual men and women on an approximately equal basis. The store has what Mr. Deva described as a "recovery section" containing health-related materials on such topics as alcoholism, human immunodeficiency virus (HIV), and acquired immune deficiency syndrome (AIDS). The selection of materials related to HIV and AIDS is perhaps
the largest in the country. The store also has a large assortment of greeting cards, mostly of a homosexual nature, and a small section containing videotapes, both mainstream and pornographic, for sale and rental. It also sells various sexual devices. As a matter of policy, the store does not sell materials exhibiting what the proprietors consider to be pedophilia, violence towards women, or misogyny.

[92] Mr. Deva and Mr. Smythe rely heavily on their manager, Janine Fuller, a lesbian, who has been with Little Sisters since February, 1990. Like Mr. Deva, Ms. Fuller told of her difficulties as a young homosexual in a society she perceived to be hostile to homosexuals. Also like Mr. Deva, she attributes the "validation" of her homosexuality to reading a book, "Saphistry", which she obtained from the Toronto Women's Book Store. She said the book encouraged her to understand the sexual feelings with which she was struggling and to realize, as well, that she was not alone in those feelings. She overcame her fear of being known as a lesbian and "came out" at age 21. She attributes her adjustment in large part to
the understanding and support of her parents. She too is dedicated to the notion that a source of material dealing with homosexuality is important for individual homosexuals.

[93] In addition to Mr. Deva, Mr. Smythe, and Ms. Fuller, the store has two full-time and six part-time employees. Mr. Deva and Ms. Fuller are responsible for the management of the store.

[94] Little Sisters imports a large proportion of its stock, mostly from the United States. There are very few publishers of exclusively homosexual material in Canada. Historically, the bulk of such material has been published in the United States by what are descriptively referred to as "small presses". Recently, large, well-known publishers, like Penguin, McLellan Stewart and Harper Collins have entered the field and Little Sisters now obtains a considerable quantity of material from them.

[95] Little Sisters has experienced difficulties with Canada Customs since its inception. Anticipating such difficulties, Mr. Deva and Mr. Smythe approached Canada Customs to seek a way to smooth the passage of their importations into Canada. They were told that they should submit, for advance review, one copy of each item they intended to import, a suggestion they understandably found to be unacceptable. The delays inherent in that procedure would have been costly to their business. As well, they found the suggestion offensive as they believed that books dealing with heterosexual topics
were not handled in that way when imported by traditional bookstores.

[96] As expected, Little Sisters began to experience delayed deliveries of imported material and prohibitions of some items. In the early years, Mr. Deva and Mr. Smythe accepted these difficulties passively. However, they believed that Customs was prohibiting important work that was not obscene, and when Customs prohibited two issues of "The Advocate", they decided to resort to the re-determination procedures provided by the legislation. They felt they were being singled out by Customs since the magazine was available in Vancouver by subscription and on various news-stands.

[97] Lawyers employed by Little Sisters unsuccessfully invoked ss. 60 and 63. Mr. Deva and Mr. Smythe considered the issue sufficiently important to justify the expense of an appeal under s. 67. On the day of the hearing of the appeal, counsel for Canada Customs consented to a judgment allowing the appeal. The federal Crown justified this result at this trial by stating that the Deputy Minister had changed his mind after the s. 63 re-determination was made but that there was no statutory procedure for him to formalize that decision except by a judgment granted pursuant to an appeal under s. 67. It seems the impending appeal caused those responsible to look more carefully at the publication. In any event, Little Sisters'
position was eventually vindicated some sixteen months after the initial prohibition. In the meantime, Little Sisters lost the ability to sell the two shipments prohibited and the intervening thirty issues of the periodical. To add insult to injury, the magazines seized at the time of the prohibition were never returned to Little Sisters, although some monetary compensation was ultimately paid.

[98] Little Sisters has sought re-determinations on several occasions since then, but they have often been frustrated by the obscurity of Customs' forms and procedures and by the cost of legal services. Janine Fuller was given responsibility for dealing with prohibited shipments after she became store manager. On occasion, she has resorted to advising the local press of detentions and has found that delayed shipments have been delivered following the ensuing publicity.

[99] The delays and disruptions caused by detained and prohibited shipments have affected Little Sisters financially and in other ways. Often, material is dated by the time it is received and has lost its sales value. Publications denied entry to Little Sisters are often successfully imported and sold by other stores. Planned events, like book launches, are sometimes jeopardized when Customs interrupts shipment of the publications involved. The proprietors often refer customers to local general-interest stores to obtain publications that Little Sisters is unable to import. More subtly, Mr. Deva and Ms. Fuller must be very circumspect in their ordering. They are uncomfortable with this self-censorship.

[100] The plaintiffs identified 261 titles detained from imported shipments destined for Little Sisters since 1984, seventy-seven of them on more than one occasion. Of those, sixty-two were released for delivery after examination pursuant to s. 58. Little Sisters sought re-determinations pursuant to s. 60 on 210 prohibitions and were successful on twenty-eight. Of 150 re-determinations sought pursuant to s. 63, they were successful on forty-six. As mentioned, they were successful on their one appeal pursuant to s. 67. Thus, roughly 20% of prohibitions at the s. 58 level were considered to be incorrect by Tariff and Values Administrators acting pursuant to s. 60, and roughly 30% of the decisions of lower-ranking officers were considered to be incorrect by Tariff Administrators reviewing the materials pursuant to s. 63. Such
high rates of error indicate more than mere differences of opinion and suggest systemic causes.

[101] Little Sisters is not alone in feeling the effects of the enforcement of code 9956(a). The store acquires most of its American material from Inland Distributors Limited, a wholesale distributor of the works of small American publishers. Inland is a large business. It deals with approximately 6,000 sete publishers and distributes their publications to more than 5,000 retail stores, about 350 of which are located in Canada. It exports American publications to more than 40 countries. Inland carries a wide variety of material, and about 15% of its stock is comprised of publications produced by and for homosexuals.

[102] Inland ships to its Canadian customers by truck through the Fort Erie port of entry. Because of difficulties encountered at Customs with shipments destined for Little Sisters and other Canadian bookstores dealing in similar material, Inland had to make significant changes to its procedures. Ultimately, Inland published and distributed to its Canadian customers a list of prohibited publications with a warning that customers should order them at their own risk.

[103] The Glad Day bookstore in Toronto also specializes in homosexual material. It has experienced problems similar to those of Little Sisters, although it has been more aggressive in its approach to Customs, pursuing more of its prohibitions, some as far as appeal under s. 67. Coincidentally, it successfully appealed the prohibition of "The Joy of Gay Sex" under s. 67, the book that so profoundly affected Mr. Deva. One small American publisher of lesbian materials has refused to ship to the Glad Day store because of the trouble and expense it experienced in dealing with Canada Customs.

[104] The Toronto Women's Book Store has been affected as well. That store, with the assistance of two professors from Osgoode Hall Law School, challenged some prohibitions based on anal penetration. Despite their comprehensive and reasoned submissions that anal penetration is not per se obscene, their requests for re-determination were unsuccessful. Moreover, they found that the reasons given for prohibition changed as they proceeded through the bureaucracy. That understandably frustrated them, as their submissions were focused on the reasons for prohibition given at the previous level. Expense deterred the store from appealing pursuant to s. 67.

[105] Customs' administration of code 9956(a) results in arbitrary consequences. Traditional bookstores do not have similar encounters with Canada Customs. Helen Hager, who operated a general-interest bookstore in Vancouver for many years, did not know that Customs inspected books for obscenity until she left that business and opened a store catering to women, in which she stocked some material for lesbians. She had two shipments from Inland interrupted at the border and has never received two of the books in the shipment, nor any documents from Customs in relation to them.

[106] Duthies, one of Vancouver's oldest and best-known bookstores, has had a section catering to homosexual tastes for many years. Duthies carries many titles that were prohibited when Little Sisters attempted to import them. The effect on Little Sisters of the special scrutiny of shipments destined for them was strikingly illustrated in the testimony of Celia Duthie, the proprietor of Duthies. She was asked shortly before the trial by the British Columbia Civil Liberties Association to import several titles that were prohibited when Little Sisters had attempted to import them. The shipment was examined by Customs but was delivered to her store.

[107] Publications denied to Little Sisters can often be found in other stores. As well, many prohibited titles are housed in the Vancouver Public Library.

[108] Little Sisters' choice of carrier affects their ability to import material. Because of the scrutiny their shipments receive at the Vancouver Mail Center, Little Sisters uses United Parcel Services as much as possible for cross-border deliveries. They have not had a book carried by that carrier prohibited in the last two years, while virtually every shipment to them through the mail is inspected and many items are prohibited. On one occasion, a package of domestic mail from Ontario was opened and inspected by Customs. This understandably contributed immensely to the perception of the principals of Little Sisters that they are being persecuted by Customs. Although I am satisfied that this incident was the
result of inadvertent human error by customs officers, it was caused by the systemic targeting of Little Sisters' importations in the Customs Mail Center.

[109] There are many examples of inconsistencies in Customs' treatment of publications. I have already mentioned "Macho Sluts", a book by the lesbian author Pat Califia that was prohibited after it had been re-determined under s. 63 to be admissible. The plaintiffs identified another thirty-five publications that were prohibited after they had been ruled admissible by Customs.

[110] The Customs regime affects artists and writers as well as commercial businesses. For example, Persimmon Blackridge, a local artist with impressive credentials and an international reputation, was embarrassed and upset by Customs' decision to prohibit re-entry into Canada of photographs produced by her and two colleagues as part of an internationally-recognized work dealing with lesbian sexuality. Jane Rule, a renowned author who received the prestigious award for best Canadian novel in 1978, spoke eloquently of her feelings as a lesbian and of the hurt and shame she felt when she learned that her award-winning novel had been suspected of contravening code 9956(a) and was detained for inspection by Customs.

[111] That detention illustrates how haphazardly Customs' procedures are sometimes applied. Ms. Rule's novel, "Contract With the World", was initially detained by a Commodity Specialist because the title aroused her suspicion that the book might contain hate propaganda. Later, she read the book jacket and, noticing that it referred to sexual matters, she decided to detain it until she could find time to investigate that aspect of the book. Her supervisor happened to see the book and recognized Jane Rule as a well-known author. He so advised the Commodity Specialist, who immediately released the book without any further investigation. Thus, the book was detained for examination but it was not examined and no
principled decision was made.

[112] Often, decisions are not made within the statutorily-prescribed time limits. The plaintiffs identified many instances where the thirty-day time limit between detention and determination under s. 58 was exceeded. As well, they identified many instances where the date of detention was incorrectly recorded on the Form K27, making it impossible to determine whether the thirty-day time limit was observed.

[113] Re-determinations requested by Little Sisters under s. 60 were completed in times ranging from ten days to three and one-half months. It was conceded by Customs' witnesses at trial that the reviewing officer could not have read the books in question in some instances within the time it took to give the decision. Some requests for re-determination under s. 63 have taken more than a year for decision.

[114] These unjustifiable results are caused in large part by the inability of customs officers to deal with such a large volume of materials in the short time they have available.

[115] Moreover, a great many of the classifications are qualitatively questionable. That is understandable at the s. 58 level, as decisions are made by such expedients as thumbing through books, choosing pages at random to read, and fast-forwarding videotapes to count the number of offending scenes. Again, officers faced with an overwhelming workload have little practical choice but to take shortcuts. More care is taken at the s. 60 and s. 63 levels, but even there it is doubtful that all books, for example, are read completely.

[116] Many publications, particularly books, are ruled obscene without adequate evidence. This highlights perhaps the most serious defect in the present administration of code 9956(a), that is, that classifying officers are neither adequately trained to make decisions on obscenity nor are they routinely provided with the time and the evidence necessary to make such decisions. There is no formal procedure for placing evidence of artistic or literary merit before the classifying officers. Consequently, many publications are prohibited entry into Canada that would likely not be found to be obscene if full evidence were considered by officers properly trained to weigh and evaluate that evidence.

[117] On the other hand, it appears that highly-publicized materials are sometimes given the benefit of the doubt. For example, a book of photographs entitled "Sex", produced by the popular entertainer known as "Madonna", was approved for admission on an advance review of the Prohibited Importations Directorate, despite the fact that it contains many depictions that, considered discretely, violate code 9956(a). As well, a book entitled "American Psycho" was similarly approved, although it contains passages of the grossest obscenity. It was, however, sponsored by a large publishing house and was
widely publicized at the time of its importation.

[118] It should also be mentioned that police forces concerned with enforcing s. 163(8) within our borders rely to a great extent on customs officers. Police officers from Ontario and British Columbia testified that the resources available to them do not permit them to seek out offenders. Their role is confined to reacting to complaints and information received from others. Many of their investigations are initiated by information received from customs officers concerning the attempted importation of obscenity.

[119] Against that background I will turn to consider whether the impugned legislation is constitutionally sound.

VIII. ANALYSIS

A. Whether the legislation infringes a Charter right or freedom

1. Whether s. 2(b) is infringed

[120] The defendants have conceded that the legislation infringes the freedom of expression guaranteed by s. 2(b) of the Charter. That is a proper concession as it is beyond doubt from the jurisprudence, of which R. v. Butler, [1992] 1 S.C.R. 452, particularly at pp. 486-90, is but one example, that obscenity is expression. Thus, a law prohibiting the importation of obscenity is an infringement of the right of freedom of expression.

2. Whether s.15(1) is infringed
a. Standing

[121] The first question raised here concerns the standing of the corporate plaintiffs to seek a declaration with respect to s. 15 (1) of the Charter. The federal Crown challenges the standing of the corporate plaintiffs on the ground that s.15(1) applies only to individual persons. It seems clear that only individuals may invoke this section: Milk Board v. Clearview Dairy Farm Inc. (1987), 12 B.C.L.R. (2d) 116 (C.A.) at p. 125; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at p. 1382.

[122] However, where a corporation has standing under one section of the Charter, it is not precluded from raising a challenge in the same proceeding to another section of the Charter under which it would not have standing if it made the second claim alone. That point is made by Lysyk J. in Canadian Bar Assn. v. British Columbia (Attorney General) (1993), 101 D.L.R. (4th) 410 (B.C.S.C.) at pp. 419-20, where he observed that once standing is established with respect to one ground of constitutional challenge, corporate status is irrelevant for purposes of other grounds of challenge. It is not disputed that the corporate plaintiffs have standing to challenge the impugned legislation on the ground that it infringes s. 2(b). It follows that they have standing to raise a challenge on the equality ground as well.

[123] In any case, the plaintiffs Deva and Smythe are individuals directly affected by the impugned legislation and have standing to seek the declaration requested.

[124] The analysis under s. 15(1) consists of three steps, described by Gonthier J. in Miron v. Trudel, [1995] 2 S.C.R. 418 at p. 435, s. 13-14 as follows:

The first step looks to whether the law has drawn a distinction between the claimant and others. The second step then questions whether the distinction results in disadvantage, and examines whether the impugned law imposes a burden, obligation or disadvantage on a group of persons to which the claimant belongs which is not imposed on others, or does not provide them with a benefit which it grants others (Andrews, supra). It is at this second step that the direct or indirect effect of the legislation is examined.

The third step assesses whether the distinction is based on an irrelevant personal characteristic which is either enumerated in s. 15(1) or one analogous thereto. As Mcintyre J. emphasized in Andrews, supra, at p. 165, s. 15(1) seeks to eliminate differences based on irrelevant personal
characteristics:

In other words, the admittedly unattainable ideal [of equality] should be that a law
expressed to bind all should not because of irrelevant personal differences have a more
burdensome or less beneficial impact on one than another.

This approach was approved in Egan v. Canada, [1995] 2 S.C.R. 513 per La Forest J., in the principal majority judgment, at pp. 530-31, .9.

b. Whether the law has drawn a distinction

[125] The impugned legislation prohibits the importation of material that is deemed to be obscene. It is neutral on its face and applies to all obscenity, whether tailored for heterosexual or homosexual audiences. It does not draw a distinction between others and the plaintiffs Deva and Smythe.

c. Whether the effect of the legislation imposes a burden or disadvantage

[126] Even though a law does not create a distinction on its face, it may still be discriminatory in its effect if it
imposes burdens or disadvantages based on the enumerated or analogous grounds. Thus, in Egan, supra, Cory J. said, at pp.
586-87, . 138:

Direct discrimination involves a law, rule or practice which on its face discriminates on a
prohibited ground. Adverse effect discrimination occurs when a law, rule or practice is facially
neutral but has a disproportionate impact on a group because of a particular characteristic of that
group.

[127] The plaintiffs Deva and Smythe must show that they have suffered disadvantage because of their homosexuality, and that the disadvantage is one suffered by them and other homosexuals as a group as opposed to other individuals and groups in society: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 per McIntyre J. at p. 174.

[128] The defining characteristic of homosexuals the element that distinguishes them from everyone else in society is their sexuality. Naturally, their art and literature are extensively concerned with this central characteristic of their humanity. As attested by several of the plaintiffs' witnesses, erotica produced for heterosexual audiences performs largely an entertainment function, but homosexual erotica is far more important to homosexuals. These witnesses established that sexual text and imagery produced for homosexuals serves as an affirmation of their sexuality and as a socializing force; that it normalizes the sexual practices that the larger society has historically considered to be deviant; and that it organizes
homosexuals as a group and enhances their political power. Because sexual practices are so integral to homosexual culture, any law proscribing representations of sexual practices will necessarily affect homosexuals to a greater extent than it will other groups in society, to whom representations of sexual practices are much less significant and for whom such representations play a relatively marginal role in art and literature.

[129] This unequal effect is compounded by the facts that such a large proportion of such materials is produced in the United States and that there are only four bookstores in Canada dealing extensively in homosexual erotica.

[130] The combination of these circumstances has adversely affected the ability of the plaintiffs Deva and Smythe, and other homosexuals, to obtain material that has value to them. They have been correspondingly disadvantaged and the disadvantage is directly related to their homosexuality.

[131] However, the distinctive treatment arises from the application of s. 163(8) of the Criminal Code, a provision that is incorporated only by reference in the impugned legislation and that is not challenged by the plaintiffs in this litigation. Accordingly, the disproportionate impact is not the responsibility of the impugned legislation and it cannot be said that this legislation imposes a burden on the plaintiffs that would amount to an infringement of their rights under s. 15(1): see Thibaudeau v. Canada, [1995] 2 S.C.R. 627, per Cory and Iacobucci JJ., at pp. 701-04, s. 157-164.

d. Whether the distinction is discriminatory

[132] If the disproportionate effect on homosexuals results from the customs legislation, not s. 163(8) of the Criminal Code, it is incumbent on the plaintiffs to demonstrate that the distinction is discriminatory. The first issue in this aspect of the analysis is whether the homosexuality of the plaintiffs Deva and Smythe is a ground analogous to the grounds enumerated in s. 15(1) of the Charter. The federal Crown has conceded that sexual orientation is an analogous ground. Similar concessions have been accepted in other Charter cases, for example, in this court in Knodel v. Medical Services Commission (1991), 58 B.C.L.R. (2d) 356 and in the Supreme Court of Canada in Egan, supra. I therefore take it as
established that the plaintiffs' homosexuality is capable of affording a ground of discrimination within s. 15(1) of the Charter.

[133] A distinction based on an analogous ground will be discriminatory only if the distinction is irrelevant to "the functional values of the legislation": Miron, supra, per Gonthier J. at p. 436, . 15, pp. 453-54, . 54; Egan, supra, per La Forest J. at pp. 532-33, s. 13-14. For example, sexual orientation would be irrelevant to a law respecting qualifications for employment.

[134] The unequal treatment here is said to arise from the fact that the prohibition of obscenity produced for homosexuals affects them disproportionately to the effect on heterosexuals of the prohibition of heterosexual obscenity. That is so.

[135] However, the inequality of treatment does not arise from "the stereotypical application of presumed group or personal characteristics": per McLachlin J. in Miron v. Trudel, supra, at . 128. Rather, the group characteristic is a real one and one that is relevant to the goal of the impugned legislation. Sexuality is relevant because obscenity is defined in terms of sexual practices. Since homosexuals are defined by their homosexuality and their art and literature is permeated with representations of their sexual practices, it is inevitable that they will be disproportionately affected by a law proscribing the proliferation of obscene sexual representations. Here, the comment of La Forest J. in Egan, supra, at p. 529 is apposite.
He said:

[N]ot all distinctions resulting in disadvantage to a
particular group will constitute discrimination. It
would bring the legitimate work of our legislative bodies
to a standstill if the courts were to question every
distinction that had a disadvantageous effect on an
enumerated or analogous group. This would open up a s. 1
inquiry in every case involving a protected group.

[136] The point is that homosexual obscenity is proscribed because it is obscene, not because it is homosexual. The disadvantageous effect on homosexuals is unavoidable and is within the ambit of the comment of La Forest J. quoted above. It follows that the unequal impact of the law on homosexuals has not been shown to be discriminatory within s. 15(1) of the
Charter.

3. Whether the legislation is saved by s. 1

[137] The prohibition of the importation of obscenity is an infringement of the freedom of expression guaranteed by s. 2(b) of the Charter; that is conceded by the defendants and follows from the decision in R. v. Butler, supra, where it was confirmed that the criminalization of obscenity by s. 163 of the Criminal Code is an infringement of freedom of expression. Thus, the delegation to customs officers of the power to prohibit the importation of obscene material is the delegation of a power to infringe a protected freedom, and the delegating legislation must therefore be subjected to analysis under s. 1 of the Charter: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at pp. 1079-80.

a. Admissibility of evidence

[138] Before turning to the s. 1 analysis of the constitutionality of the impugned laws it is necessary to rule on the admissibility of certain evidence offered as relevant to that analysis.

[139] Some of the evidence in question tends to establish what are described as "legislative facts". Such facts are unique to constitutional and Charter litigation. They are described in the following passage from the reasons for judgment of the Court in R. v. Danson, [1990] 2 S.C.R. 1086 at p. 1099:

Adjudicative facts are those that concern the immediate parties: . . . "who did what, where, when, how, and with what motive or intent . . . ." Such facts are specific, and must be proved by
admissible evidence. Legislative facts are those that establish the purpose and background of
legislation, including its social, economic and cultural context. Such facts are of a more general
nature, and are subject to less stringent admissibility requirements . . . ." [citations omitted]

[140] The distinction is a rational one. In a dispute between parties over private rights, such as the courts are usually concerned with, the court attempts to find the facts with respect to completed past events for the purpose of adjudicating the consequences between the parties. In the realm of legislative facts, however, the court is not concerned with assessing the legal consequences of past actions as between the immediate parties before the court, but with ascertaining economic and social facts that transcend the interests of the parties.

[141] The sources of evidence to establish such facts are many and varied. To require proof of such facts in accordance with the traditional rules of evidence would put an intolerable burden on trial courts. Moreover, such exactitude of proof is not necessary. As stated by the Divisional Court of the Ontario Court (General Division) in Canada Post Corp. v. Smith (1994), 118 D.L.R. (4th) 454 at p. 466:

Trial-type procedures are best employed to resolve controversies involving disputes over
adjudicative facts, facts pertaining to the parties. In contrast, such truth seeking procedures are
not usually required for the ascertainment of legislative facts. The exception is where specific or
concrete legislative facts are critical to a judicial determination. Legislative facts relating more
to policy than concrete fact are often not amenable to ascertainment by trial procedures. Cross-
examining a social scientist on a particular theory is unlikely to produce "truth" as understood in
the context of adjudicative facts.

[142] The plaintiffs objected to the admission of several published articles offered by the federal Crown as social-science evidence. The plaintiffs' position is that, since the plaintiffs called viva voce social-science testimony and subjected their witnesses to cross-examination, it would be improper to permit the defendants to simply file such evidence and deprive the plaintiffs of the opportunity to cross-examine. For the reasons in the passage I have just quoted from Canada Post Corp., supra, this objection cannot prevail.

[143] The plaintiffs do not object on the ground of relevancy. The federal Crown contends, correctly in my view, that the material is relevant to show that there is a body of scientific opinion that would provide a reasonable and rational basis for Parliament to conclude that homosexual obscenity causes harm to society. As the issue is not which social-science school of opinion should prevail, but only whether there is a rational basis for Parliament to act, the fact that the evidence was not offered viva voce and was not tested by cross-examination is not fatal to its admission. These articles have been published and have therefore added to the known body of social-science evidence relating to the links between pornography
and harm. They have passed the low threshold of admissibility for such evidence and, like the books and journal articles referred to in Butler, supra, may be considered by the Court.

[144] Two of the published papers to which the plaintiffs took objection were written by Professor Neil M. Malamuth, a psychologist from the University of California, Los Angeles, whose written opinion prepared for this litigation was earlier marked in evidence by consent of the parties. Professor Malamuth deals, in his opinion and in the published articles, with the relationship between obscenity and changes in attitudes and behaviours of those exposed to it. The plaintiff's contend that it is improper to permit the federal Crown to augment Professor Malamuth's opinion with these articles. That would be so if Professor Malamuth's opinion and the published articles were tendered to establish that there is such a causal link
between obscenity and harm. However, they are not tendered for that purpose, but for the purpose of demonstrating that there is a known body of social-science opinion that would support Parliament's reasonable apprehension that the link exists. They are admissible for that limited purpose.

[145] The plaintiffs objected as well to an article, offered by both defendants, written by Christopher N. Kendall entitled "Real Dominant, Real Fun!: Gay Male Pornography and the Pursuit of Masculinity", published in Volume 57 of the Saskatchewan Law Review at p. 22 (1993). Their position is that the article's theme is legal analysis and that it can be referred to, if at all, only as persuasive authority during argument. The defendants' position is that the article is in the nature of social-science evidence and is relevant to the issue of whether there is a reasonable basis for Parliament's conclusion that homosexual obscenity causes harm to society. The article contains elements of both legal and social-science
analysis and argument. The author, a homosexual, states his purpose at pp. 27-8 in these words:

At a minimum, it is my purpose in writing this paper to provide a necessary re-evaluation of arguments alleging that gay male pornography is so central to the expression and promotion of gay male identity that it must, of necessity, be defended and promoted. Contrary to those who
view gay male pornography as qualitatively different from heterosexual pornography, hence non-
harmful, I will argue that the effects of its production and distribution are no less damaging than
the harms resulting from other pornography.

The paper is an attempt to accomplish that purpose. It does not publish any social-science evidence but reviews existing evidence and the opinions of others to construct an argument supporting the author's thesis. It is argument, not evidence, and is ina