The national queer lobby group is wading into the ongoing saga of the little bookstore that could.
Egale Canada filed legal documents with the Supreme Court Of Canada on Feb 22 in the hopes of intervening in a court case stemming from the long-running legal battle between Canada’s border police and Vancouver’s Little Sister’s bookstore.
At the core of this latest salvo is the issue of advanced costs — that is, whether or not the government should be required to cover the bookstore’s legal bills regardless of the outcome of the case.
“Although the bookstore is a small business enterprise with a specialized clientele that likely would not generate large profits in any event, the fact that it has suffered such extensive business losses as a result of Customs’ unconstitutional conduct certainly contributes to its inability to finance the… litigation,” states the submission to the high court. “In these circumstances, Egale submits that the interests of justice are best served by ordering advanced costs.”
Egale, which wants the opportunity to argue in support of Little Sister’s, filed its request to intervene after its application for funding was approved by the government-funded but independently-run Court Challenges Program. The program provides financial assistance in court cases dealing with equality rights.
Egale’s success at getting funding will help Little Sister’s in its plea for advanced costs — without which the bookstore’s owners have said they can’t afford to go on with the case.
Some may have thought the issue of censorship at the border had been settled in 2000, when the Supreme Court Of Canada ruled that Canada Customs — now called Canada Border Services Agency — had been unfairly seizing books and magazines headed for Little Sister’s. Materials seized since 1986 for alleged obscenity included such publications as the US-based queer newsmagazine The Advocate and other gay-themed materials, some not even sexually explicit. Customs had argued that the burden rests on the bookstore to prove that allegedly obscene material is not obscene, but the nation’s highest court ruled that the onus is on the Crown to prove the materials are obscene.
“The court basically said that Canada Customs had to shape up or be brought back to court,” says Laurie Arron, Egale’s Toronto-based director of advocacy. “Canada Customs did not change its ways.”
Within seven months of the landmark ruling, Customs seized two volumes of gay adult comics destined for the bookstore. That led to a second lawsuit brought by Little Sister’s with a wider scope, challenging not only the seizures but also the entire way in which Canada Customs operates, says Arron.
With the case expected to cost as much as $1 million, Little Sister’s has built its approach around the expectation that it would get advanced costs. The high court has previously ruled that advanced costs can be awarded if a case meets three criteria:
l The applicant, in this case Little Sisters, cannot realistically afford the litigation
l The issue at hand has face merit, or “prima facie,” in legalese
l The issues raised by the case benefit the public at large and not just the individual parties involved.
Little Sister’s won advanced costs at the BC Supreme Court in 2004, but the BC Court Of Appeal reversed the decision in 2005. In part, the Court Of Appeal cited the fact that Little Sister’s had only raised $41,000 from the community and, therefore, it ruled that the case was not of great enough importance.
That ruling was then appealed to the Supreme Court Of Canada, at which point Egale sought to intervene. “Funding is always an issue for us,” says Arron. But once the Court Challenges Program approved funding, Egale was able to ask for intervener status.
In its filing, Egale argues that Little Sister’s is unable to afford litigation in part because of the illegal seizures and their impact on the bookstore’s business.
The hearing on advanced costs is set for April. Before then, however, a single judge will rule on whether Egale will be allowed to intervene. Arron expects that decision to be handed down in a few weeks.
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