Charter Litigation
Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Little Sisters, a bookstore in Vancouver, B.C., caters to a lesbian and gay clientele. Books and magazines shipped to Little Sisters from suppliers in the United States are frequently detained for lengthy periods by Canada Customs and in some cases are prohibited on the grounds that they are obscene. However, the decisions made by Customs regarding detention and prohibition make little sense, and the evidence indicates that Little Sisters has long been targeted by Canada Customs for differential treatment.
For instance, some of the books detained or prohibited by Canada Customs had previously been ruled admissible when imported by Little Sisters on other occasions, or had been successfully imported by other bookstores. Customs apparently had no qualms about Madonna's book, "Sex", when it was imported by other bookstores throughout the province, but detained Little Sisters' shipment of the same book. Moreover, many of the books Canada Customs prohibited as obscene when Little Sisters attempted to import them could be found not only in other bookstores, but also in the Vancouver Public Library.
After years of this arbitrary and discriminatory treatment, Little Sisters and the B.C. Civil Liberties Association challenged the constitutionality of certain provisions of the Customs Act on the basis that it violated Little Sisters' freedom of expression and equality rights under the Charter of Rights and Freedoms. A trial judge agreed that the legislation was discriminatory but held that it was justified under section 1 of the Charter. The B.C. Court of Appeal upheld that decision.
On December 14, 2000, the Supreme Court of Canada allowed Little Sisters' appeal in part. It held that the reverse onus provisions of the Customs Act, which required book importers to prove that a publication was not obscene, was unconstitutional. It also recognized that Little Sisters had been singled out by Canada Customs for discriminatory treatment. However, it held that the discrimination did not result from the Customs Act itself, but from the people administering the Act. The Court confirmed that Customs agents have no right to seize material that does not come within the narrow definition of pornography that Parliament has criminalized as obscene. However, the basic scheme of the Act, with the exception of the reverse onus provisions, was a reasonable limit on the right to freedom of expression.
Egale Canada Inc. intervened in support of Little Sisters and was represented by Cynthia Petersen.
The Canadian Conference of the Arts which intervened in support of Little Sisters and was represented by Frank Addario and Ethan Poskanzer.
Click here to read the Supreme Court's decision
Update
Throughout the hearing before the Supreme Court of Canada, lawyers for the Crown admitted that Canada Customs officials had failed to exercise their discretion in accordance with the Charter but claimed that steps had been taken to correct this and repeatedly implored the Court to just "trust us" to act differently in the future.
In fact, in the years following the Supreme Court's decision, Customs continued to arbitrarily seize publications headed for Little Sisters. In 2002, Little Sisters once again commenced litigation challenging the seizure of certain publications. The case management judge ruled that the onus was on Customs to prove that the systemic problems identified in the original litigation had been corrected.
Facing another lengthy and expensive court battle, Little Sisters applied to the Court for "advance costs", a form of court ordered funding for litigation of public importance. The case management judge ruled in the bookstore's favour, but the B.C. Court of Appeal overturned the decision, holding that Little Sisters did not meet the criteria for advance costs. Unable to continue the litigation without funding, Little Sisters appealed that decision to the Supreme Court of Canada, but the Court dismissed the appeal.
Click here to read the Court’s decision on advance costs.
