The Supreme Court Of Canada has reserved judgment on whether Vancouver’s Little Sister’s bookstore will receive the advanced court costs it needs to continue its battle against book seizures by Canada’s border cops.
At an Apr 19 hearing the court heard submissions from the store’s lawyer Joe Arvay, legal counsel for Canada Border Services Agency (CBSA, formerly Canada Customs) and several interveners.
At issue is whether this Little Sister’s case is about a handful of book seizures or about systemic discrimination that concerns the greater Canadian public. If the Supreme Court decides the former, Little Sister’s says it won’t have the money to proceed. If it decides the latter — a decision only made in exceptional circumstances — the case goes back to British Columbia courts to wind its way through the system. It’s expected to cost Little Sister’s more than $1 million.
The case stems from a complaint the bookstore filed in 2001 after border guards seized copies of several SM comics and books bound for its shelves. Little Sister’s alleges the seizures show CBSA is still discriminating against its shipments — despite a 2000 Supreme Court Of Canada ruling ordering it to stop unfairly targeting queer imports.
CBSA argues that the case is merely about four seized books — books that shouldn’t be protected by the Canadian Charter Of Rights And Freedoms, anyway.
“These are not life-affirming of consensual sex between persons of the same sex,” lawyer Brian McLaughlin told the court. “These are pictorial and verbal descriptions of brutal rapes not covered by constitutional protection. Porn of this kind is not at the core of values protected by freedom of expression.”
Arvay told the court that this case centres on CBSA’s failure to comply with the 2000 ruling.
“This trial should never have to happen,” said Arvay. “Customs misled the court when it said it had fixed everything.”
Arvay told the court that should the case go ahead, it will be one of the most important Charter cases in a decade. “There are thorny issues that have to be addressed about undue exploitation of sex and community standards.”
He said Little Sister’s has tried to pay for costs on its own.
“It did go to its community and did its best through fundraisers and speaking engagements and having various events,” Arvay said. “There is no way that Little Sister’s is going to be able to do this on its own hook and nor should it be expected to do.”
In his questioning Justice William Binnie asked CBSA lawyers how the question of the particular seized books could possibly be separated from Little Sister’s long and troubled history with the border police.
“I think the amount of money that Little Sister’s can raise in order to vindicate rights that the court has already determined were violated by Customs puts you in a very different position,” Binnie said. “I mean, you’ve got concurrent findings that the system applied by Customs in the earlier trial was simply unacceptable.”
Cynthia Petersen, a lawyer for lobby group Egale Canada, which appeared as an intervener in the case, told the court that in the five years following the Supreme Court ruling on Little Sister’s, 190,000 items had been detained at the border, 70 percent of which were lesbian, gay, bisexual, trans (LGBT) materials.
“While it may be that only a handful, or a couple of handfuls, of books destined for this bookstore have been prohibited since the decision of this court in the first Little Sister’s case, there is evidence of systemic targeting of LGBT materials generally,” Petersen told the court.
Store coowner Jim Deva, who went to Ottawa for the hearing, says it’s been stressful.
“It was one of the roughest days I’ve spent in court and I’ve spent a lot of days in court,” says Deva.
Little Sister’s has been fighting Canada Customs ever since border guards began seizing its shipments in 1986. The store’s first legal battle — challenging both the discriminatory nature of Customs’ seizures and its authority to seize any shipments at all — eventually went all the way to the Supreme Court Of Canada. Though the high court didn’t accept the store’s argument that Customs’ right to seize books should be struck down entirely, it did order Customs to stop discriminating.
This new case began in 2001 when the SM comics were seized. In June 2004 BC Supreme Court Justice Elizabeth Bennett ruled that the comics case was important enough to the public interest to warrant advanced costs. The BC Court Of Appeal rejected her finding, cancelling the advance costs.
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