This case concerned the censorship of gay and lesbian materials by Canadian Customs inspectors.
LEAF, with the involvement of West Coast LEAF, intervened before the Supreme Court of Canada.
Facts
A gay and lesbian bookstore in Vancouver continually had most of its shipments stopped at the Canada-US border. Customs inspectors refused to allow the materials to enter Canada, finding it was “obscene” under the Criminal Code and therefore not allowed to be imported into Canada under the Customs Act. Under the legislation, the burden was on the importer to prove that the material was not obscene.
The bookstore challenged the constitutionality of the Customs legislation. The trial judge found that Customs officials had systematically targeted the store’s shipments, and wrongly prohibited their entry into Canada. He found, however, that while the Customs legislation violated the right to freedom of expression under s. 2(b) of the Charter, it was saved under s. 1. As a result, the judge did not strike down the Customs legislation. He instead issued a declaration that the legislation had been applied in a manner that violated ss. 2(b) and 15 of the Charter. The British Columbia Court of Appeal dismissed the bookstore’s appeal. The bookstore appealed to the Supreme Court of Canada.
Arguments
LEAF argued that the Customs legislation violated both ss. 2(b) and 15 of the Charter, and could not be saved under s. 1. Substantive equality required that lesbians have the freedom to explore personal and community identities through writings, photography, drawing, and other media. The Customs legislation discriminated against lesbians by silencing already marginalized voices.
Given the history of subjectivity, lesbophobia, and homophobia associated with obscenity laws, the process for assessing obscenity needed to address complex questions, have safeguards, and allow for a full and open hearing. In addition, categorizing materials as obscene should require specific and compelling arguments to prove that the materials had substantial risk of harm and lacked merit. Instead, the Customs framework was unclear, unsuited to making the necessary legal and factual determinations, and lacking mechanisms to prevent misuse.
Outcome
A majority of the Supreme Court held that the actions of Canada Customs violated the bookstore’sfreedom of expression and s. 15 equality rights, harming their legitimate sense of self-worth and human dignity. They found, however, that while the legislation violated s. 2(b), it was justified under s. 1 and so did not strike down all of the Customs legislation and regulations. The majority did strike down the provision requiring importers to prove that their materials were not obscene, shifting the burden of proof to the Crown or other person claiming the materials were obscene.
LEAF is grateful to Karen Busby and Claire Klassen, counsel in this case, as well as Carole Brown, Ottawa agent for LEAF.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].
