Customs gets away with it

Little Sister’s decades-long legal battle with Canada Customs has hit another wall — and it looks like this one may be insurmountable.

On Jan 19, the Supreme Court Of Canada rejected the gay bookstore’s bid for advance costs to help fund round two of its struggle against Canada’s border guards and their ongoing seizures of gay materials they deem obscene.

Though the BC Supreme Court had granted the store’s funding request in June 2004, the BC Court Of Appeal overturned the order in February 2005.

Last week, the nation’s top court sided with the Court Of Appeal, ruling that the Little Sister’s case is not special enough to warrant the rare advance costs order.

“The four books appeal, in which [Little Sister’s] alleges a discriminatory attitude on the part of Customs to some of its merchandise, is extremely limited in scope,” Justices Michel Bastarache and Louis LeBel wrote for the court’s majority.

“Public interest advance costs orders must be granted with caution, as a last resort, in circumstances where their necessity is clearly established. The standard is a high one: only the ‘rare and exceptional’ case is special enough to warrant an advance costs award,” they ruled. “In the present case, the issues raised do not transcend the litigant’s individual interests.”

Added Chief Justice Beverley McLauchlin, “If advanced costs are justified here, they will be justified in a host of other cases.”

The ruling leaves Little Sister’s without the financial means to attempt to hold Customs accountable in court. “We have to put our case to bed and declare defeat,” says Little Sister’s co-owner Jim Deva.

The case stems from a complaint Little Sister’s filed against Canada Customs in 2001, after border guards seized copies of several SM comics and books bound for its shelves, and labelled them obscene.

Little Sister’s challenged the obscenity designation, and claimed the new seizures show Customs is still discriminating against its shipments — despite the Supreme Court of Canada’s 2000 ruling ordering them to stop unfairly targeting queer imports.

The SM comics case was to be heard in BC Supreme Court, but as the parties began to outline the parameters of their cases and the experts they planned to bring in, it became clear to Little Sister’s that it couldn’t afford to counter the government’s extensive expert list without some financial help. So it asked for advance costs, based on a 2003 precedent called Okanagan that granted an aboriginal group funding to take the government to court.

Supreme Court Of Canada Justices Ian Binnie and Morris Fish would have granted it. Systemic discrimination by Customs officials “and unlawful interference with free expression” were clearly established in the first Little Sister’s case, they wrote in their minority dissent. “In its application for advance costs in this case, [Little Sister’s] contended that the systemic abuses established in the earlier litigation have continued, and that Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination.

“The question of public importance is this: was the Minister [in charge of Customs] as good as his word in 2000 when his counsel assured the Court that the appropriate reforms had been implemented?”

The fact that 70 percent of Customs detentions are of gay and lesbian material suggests there is “unfinished business of high public importance left over” from the first Little Sister’s case, wrote Binnie and Fish.

“The public has an interest in whether its government respects the law and operates in relation to its citizens in a non-discriminatory fashion,” they argued. “That is where the interest of this litigation transcends [the bookstore’s] private interest.”

The dissenting justices went on to say that, were it up to them, they would grant Little Sister’s $300,000 in advance costs.

“This is an exceptional case of special public importance that should not be defeated by [Little Sister’s] lack of funds,” they ruled.

Binnie was “absolutely brilliant,” says Deva. It would have been difficult to mount a case with just $300,000 in advance costs, he adds, “but it would have made the trial possible.”

Now, he says, that possibility is gone.

The majority decision shows that the little guy has little chance against the big money the government can throw at such cases, says Deva. “We can no longer pass the bucket around and think we can meet the costs of court cases.”

With the Court Challenges program now eliminated and the costs of mounting successful cases against the government escalating, the advance costs option offered one last “little window of hope, and that is clearly closed now,” Deva says.

“Perhaps it’s only justice for the privileged and the few,” he adds.

“Quite unfortunately, financial constraints put potentially meritorious claims at risk every day,” the court acknowledged in its decision. “Faced with this dilemma, legislatures have offered some responses, although these may not address every situation. Legal aid programs remain underfunded and overwhelmed. Self-representation in courts is a growing phenomenon.”

But, the justices ruled, advance costs were “not intended to resolve all these difficulties.”

That’s not good enough for Kaj Hasselriis. “This decision means the Charter of Rights and Freedom are only available to the rich and powerful in this country,” says the interim executive director of Egale.

“The only expression cases that will go to the court will be those fought by well-financed media outlets and other commercial interests, like tobacco companies,” Hasselriis says. “Is that what Canadians want?”

“The Supreme Court characterized this case as a dispute over only four books, but it failed to recognize that much larger issues are at stake, such as the equality rights and freedom of expression of LGBT writers, readers and importers,” adds Hilary Cook, chair of Egale’s legal issues committee.

With the SM comics case now denied the means to have its day in court, Deva expects the seizures to start again soon. If the pattern holds from previous decisions, border guards will likely begin seizing the bookstore’s imports within the next few weeks, he says.

But that doesn’t mean the battle is over, Little Sister’s manager Janine Fuller says. “It means that we will continue to fight as a community. We’ll just find different ways to do it.”

With files from Jeremy Hainsworth, Matt Mills and Marcus McCann.