Heading into another court battle over its censorship powers, Canada Customs has rewritten its obscenity guidelines.
Under the new rules, depictions of fisting – the sexual practice of inserting a hand into an anus or vagina – is no longer targeted, though the rules governing the depiction of sex and pain are much more sharply defined.
With a roll of their eyes at the new guidelines, called Memorandum D9-1-1, gay and lesbian bookstore owners say the system continues to permit Canada’s border police to discriminate against material aimed at sexual minorities.
“I have every expectation that they’ll continue to treat us differently than other booksellers,” says Mark Macdonald of Little Sister’s bookstore in Vancouver. “At the end of the day, we’ll see continued seizure of materials that are not obscene and continued mistakes from Canada Customs.”
The store is cited several times in the memo, partly because of its 2000 Supreme Court Of Canada case against Canada Customs and partly, Macdonald says, because Customs is trying to prepare itself for an upcoming court challenge from Little Sister’s. In September 2004, the Supreme Court Of British Columbia will hear Little Sister’s claims that the agency is not obeying the Supreme Court ruling. It seized gay sadomasochistic comic books bound for the store that are available at other Canadian stores and has refused to return them.
“It’s a totally cynical move on their part,” says Macdonald. “Taking fisting off [the list of restricted material] is an admission of error on their part and an admission that they can’t defend it before a judge.”
Colette Gentes-Hawn, media spokesperson for the Canada Customs And Revenue Agency, says the court case has nothing to do with it.
“We review things on a regular basis to ensure we reflect community standards,” says Gentes-Hawn.
The memo puts in writing that Customs has only 30 days to determine if something coming into the country is obscene or not. The onus of proof might officially be on Customs agents, says Glad Day Bookshop manager Toshiya Kuwabara, but it always ends up with the importer doing the proving. “There’s been no change in the process to reflect that the onus lies on them,” says Kuwabara.
After considering artistic merit, Customs officers are required to prohibit material containing 10 indicators of obscenity:
Sex with degradation or dehumanization (including urination, defecation or vomiting onto another person or the ingestion of said wastes); this also includes ridicule and humiliation
Sex with pain
Sexual assault
Sex with violence
The taking of a human life for the purpose of sexual arousal
Incest
Bestiality (sex with animals)
Necrophilia (sex with dead people)
Sexual acts involving children under 14
Sexual exploitation, which is defined as sexual acts involving juveniles aged 14 to 18.
Though fisting is gone from the list, April Grant, spokesperson at Victoria’s Bleeding Rose bookstore, says the new description of “sex with pain” could possibly include it – as well as spanking and other consensual sadomasochistic activities. Pain is defined as “clear discomfort expressed through visual, verbal or descriptive cues…. Pain may be inferred where a reasonable person would conclude that the activity would result in pain.”
“My gut reaction is that they’re not changing anything, they’re just moving words around,” says Grant.
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