3 min

Goliath wins again and we lose

Courts miss the point in Little Sister's case

The David and Goliath story continues; Goliath is still winning. Little Sister’s Bookstore’s protracted struggle with Canada Border Services Agency (CBSA) — called Canada Customs back when it all began — just keeps hitting the wall, thanks in large part to the Supreme Court Of Canada.

In its latest decision, the Supreme Court last month refused to award Little Sister’s with advanced costs. They’re necessary to fund the bookstore’s on-going lawsuit over repeated seizures of its books by border cops.

It’s not like the Supreme Court hasn’t acknowledged that CBSA discriminates against Little Sister’s. The seizures go back 20 years. In 2000 the Supreme Court told the agency in no uncertain terms to stop violating Little Sister’s Charter rights by targeting lesbian and gay material. But the court upheld the border cops’ censorship regime.

In 2002, Little Sister’s filed an appeal against the seizure of two collections of gay adult comics, some with SM themes. Border cops then seized a few more titles, this time gay erotic fiction collections. Preparing once again to go into battle against an opponent with very deep pockets (funded by we taxpayers), Little Sister’s lawyer Joe Arvay asked the judge to make a rarely used order for advanced costs, as the bookstore argued it could not afford to proceed without the money.

In 2003, a trial judge awarded Little Sister’s $300,000 in advanced costs from the government. That decision was overruled by the British Columbia Court Of Appeal, which said the case didn’t merit advance costs. On Jan 19, the Supreme Court agreed that the case was “simply not important enough” to justify making the government foot the bill.

In order to get advanced costs, a case has to be very exceptional, of significant public importance to Canadians. Those applying must be in dire financial straights. The majority of the Supreme Court decided that Little Sister’s just wasn’t exceptional enough. In their view, the issues raised were too narrow and just too insignificant to the public at large.

Too narrow and insignificant?

The majority of the Court said the appeal was really just about whether the bookstore could import these four books. And really, who cares about these four books?

But the case is not just about these four books. It is about the continued targeting of gay and lesbian materials at Canada’s borders by unaccountable government officials. It is about the flaunting of a Supreme Court order to stop harassing gay and lesbian bookstores. It is about the legitimacy and constitutionality of community standards and the obscenity legislation that allows this censorship to continue.

Unaccountable government censors flaunting Court orders doesn’t sound particularly narrow to me. It sounds like a pretty important public issue.

It is certainly legitimate to make it hard to get advanced costs. It makes sense that it is a rare award, only available in exceptional circumstances. But if this case isn’t unbelievably, totally, exceptional, I don’t know what is.

Little Sister’s has been battling the border cops for two decades. They have even won legal victories against them. But those victories have been entirely pyrrhic since CBSA just seems to ignore them. As the dissenting opinion by Justice W Ian Binnie noted, the issue at stake “is whether the rights established in the [first Little Sister’s case] in principle have become rights in reality.”

Without the money, Little Sister’s is declaring defeat. And if Little Sister’s doesn’t continue its challenge, who will?

The answer is quite likely no one. It takes a huge amount of time and money — and just raw tenacity — to continue this kind of battle against a government department that apparently knows no limit. It certainly doesn’t make sense from a business point of view. Defending these books costs more money than they could ever dream of making by selling them. And because of Prime Minister Stephen Harper there is no more Court Challenges Program, so there is nowhere else to turn for a level the playing field.

So Goliath, the unrelenting censor, is winning, thanks in no small part to the timidity of the Supreme Court, and to Canadian taxpayers who fund the deep pockets of CBSA.

This battle is important. But Little Sister’s can’t do it alone. We all now need to step up and help them.