Border lines

The entire Canada Customs censorship scheme must be found unconstitutional because, even if the regulations are not explicitly bigoted, the fact that gay books and pictures are obsessively targeted proves that the system itself is riddled with homophobia.

And Little Sister’s lawyer Joe Arvay went on to tell the assembled nine members of the Supreme Court Of Canada at the Mar 16 hearing in Ottawa that the only way out is to start over again from the very beginning.

“This case is first and foremost about process,” Arvay said. “It is a challenge to the process that Parliament has created to allow Customs officers to detain and prohibit [materials] at the border.

“The remedy is nothing less than striking down the Customs legislation in toto as it empowers [the officers]. The legislation catches within its net much more than is obscene.”

Pages of documents clearly show that books deemed perfectly acceptable when sent to mainstream bookstores are automatically stopped when addressed to Vancouver’s Little Sister’s gay shop. Arvay, in a 90-minute presentation, reminded the court that its recent adoption of what’s called equality analysis forces the court to take his side. They must, he argued, look at how the process cannot help but discriminate against gay and lesbian Canadians.

So the systemic problems show that everything’s gotta go. Madonna’s sex book gets in; identical lesbian pictures in the magazine Deneuve are banned at the border. Satire like Boiled Angel (about the evils of child abuse) is banned because the cartoons are considered obscene. Yet the book American Psycho gets in. “It’s an abuse of power that we say was inevitable.

“The expression right is too important to leave to people who are on the front-line dealing with Oleo margarine and secondhand mattresses.”

One judge interjected that it could also mean that Canada Customs officers aren’t doing the job well enough, and should be stopping more at the border.

Either way, the system is entirely based on prior restraint, where a single Customs officer is judge and jury. Arvay called it “unchecked discretion.”

They’re badly trained and don’t have the time to do everything that needs to be done. And that’s Parliament’s fault, Arvay said.

“When we’re dealing with expression and not widgets, the margin of error has to be much smaller.”

And the case – launched a decade ago – has taught Ottawa nothing, he argued. “Ten years later, what has changed? Nothing.”

Individuals Customs officers can do whatever they want. It’s up to the importers to decide whether to spend the time, money and frustration of multiple appeals (each appeal is made to yet another bureaucrat) until they get to the courts – which costs even more money.

A justice dryly noted that a judge could not be stationed at every entry point into the country to cut down on the red tape. Arvay wants a tribunal, with trained members, to review seizures.

The lawyer for Canadian Centre Of International PEN, the international writers group, quoted from a past Supreme Court ruling: “‘Administrative inconvenience should not be the bar to charter values and rights.’

“It’s always impractical to hold hearings to fully protect constitutional rights,” said Jill Copeland. “We do it anyway.”

Arvay had another point: “The success of our appeal does not depend on you changing one word of Butler.”

But that isn’t stopping interested parties from trying to get Butler modified. That infamous 1992 Supreme Court ruling that redefined porn and rejigged “community standards.”

The community (as represented by police, Crown attorneys and judges) decides what’s obscene, based on what it will tolerate others seeing. But Butler added that anything dehumanizing or degrading is obscene if they cause harm – that is, make people act in an anti-social manner. And while a lot of raunchy gay male porn was used to influence the judges in that decision, the ruling itself it doesn’t specify homo materials. It’s focussed on protecting women.

Arvay said there’s no evidence that gay and lesbian porn causes harm. “A proper understanding of that material, the same images, same text, in a heterosexual context which may cause harm, doesn’t in the homosexual context.”

The response from the bench was that gay men and lesbians should be entitled to the same protection from “degrading” and “dehumanizing” porn as are heterosexuals. Taking the argument to the extreme, this would require a different “standard of community tolerance” than for the rest of the Canadians.

In essence, that’s what some are requesting. Karen Busby, a Winnipeg law professor, asked that Butler be “nuanced.”

“There are sexual depictions that are harmful,” she said. “Sexual representations however also have liberatory possibilities. An obscenity law… will recognize that because of discrimination faced by lesbians in Canadian society, access to lesbian material is essential. It is much more likely to be suppressed if the process is unfair and the law is unclear. This court needs to reconsider Butler to integrate an equality-based analysis.”

Butler, said Busby, is too much based in the language of “morality” to allow for even the commonplace gay and lesbian sexuality that society already considers deviant.

That’s why it’s been misused by lower court judges, Busby suggested. One of the first invocations of Butler was to ban as obscene an issue of the lesbian porn mag On Our Backs; it’s been used against vanilla gay male porn, too.

“A decision-maker also must be aware of their own biases.”

Equality For Gays And Lesbians Everywhere followed up on that theme. Lawyer Cynthia Petersen pointed out that a common national standards test “does not permit consideration of the sensibilities of the target audience.”

Community standards are by definition discriminatory because Canadian society is discriminatory.

The federal government responded that the whole issue is moot. The regulations have been changed, and Little Sister’s is asking the court to rule on something that no longer exists.

“Of course there were shortcomings,” said Judith Bowers, lawyer for the attorney-general of Canada. “But it was almost eight, nine years ago that these decisions were made. Our attitudes have changed rapidly. What may have occurred then, I trust may not happen now.”

Bowers argued there is some small evidence that the two minor changes in the regulations have changed the entire manner in which Canada Customs deals with gay and lesbian materials.

On the other hand, she also said that banning books at the border is done to protect Canadians from harm, and that this is a good and proper goal. Any negative effects are justified – and trump concerns about prior restraint.

Bowers argued that Butler should stand as is, and that it fits in with Canada’s international commitments – signed treaties commit the government to reducing the flow of obscenity (and “immoral articles,” according to the government’s written brief) to the world, including materials which contravene the obscenity laws of other countries, even if legal here.

Finally, York University’s Janine Benedet dealt with the political nature of the argument. “There should be one standard of review,” she said, adding that much gay and lesbian porn simply replays harmful straight ideas. “Sexual violence, degradation, racism and inequality. They are not ambiguous and their content is largely indistinguishable from hetero porn.”

Benedet represents Equality Now, a US-based group with no formal Canadian presence or affiliation. She read a few sentences from a book called Juice which featured a gay rape scene, in which the narrator called the sex great. “This is positive-outcome rape porn involving two men. It is identical to rape porn involving a woman. We could clearly identify what the harm is to women.

“What is significant here is not the biological sex of the participants, but the roles being adopted.”

The justices reserved their decision.

Those presenting on behalf of the Customs regime included the governments of British Columbia and Ontario. Those on the Little Sister’s side also included the Canadian Conference On The Arts, the Canadian Civil Liberties Association and the Canadian AIDS Society.