The phone rang on schedule at 6:45 am and my heart leaped.
It seemed that all of our work through all these years came down to this one call. Our lawyer Joe Arvay had promised to phone the moment he heard any indication of the Supreme Court of Canada’s ruling.
Now the phone was ringing and the moment was at hand.
My hand shook as I reached for the phone, and something screamed within me: how in the name of god did we get to this one fateful, make-it-or-break-it phone call at 6:45 am on Jan 19, 2007?
The history of Little Sister’s litigation with Canada Customs unravels like a ball of string one has collected through the years. Joined with knots and double knots, thin in spots and strong in others, it tells not only of our struggles with Canada Customs, but the history of the store, our loves and our lives.
The first substantial piece of string dates back to 1985, when Customs stopped a major shipment of books on its way to the store. Many of the books were eventually returned but in so damaged a condition they were unsaleable as new merchandise.
The early years of Customs’ censorship regime were blatant, totally homophobic and left us close to having to close our doors on several occasions.
Eventually, with the help of BC’s Civil Liberties Association and the support and donations from so many in our community, we were able to begin challenging Customs’ decisions.
We decided to begin with the most blatant example of censorship and challenged Customs’ seizure of an issue of The Advocate magazine. After months of preparation, Customs conceded the case literally on the courthouse steps on the way to trial. We were awarded $148.13, the cost of the magazines that had been destroyed; a hollow victory indeed. The decision left the system of censorship unchallenged. Changes were not made and it was business as usual at Canada Customs.
The dilemma that haunts us to this day, some 15 years later, had become evident: How do we challenge Canada Customs’ decisions and gain more than just the return or reimbursement of the one or two books involved in the seizure?
How do we prove that the problem goes deeper than specific book seizures and lies rooted in a system that considers gay and lesbian material obscene?
That’s the task we set for ourselves in our first trial, a long and expensive exercise that took more than 40 days in court and exhausted us both financially and emotionally.
After an expensive two-level appeal process, the Supreme Court of Canada called on Canada Customs to change its censorship regime.
But this victory soon proved hollow as well. Though the court did rule that Customs made many mistakes in its seizure and classification of gay and lesbian materials as obscene and ordered the agency to stop discriminating against us, it offered no oversight or review process to ensure Customs made the necessary changes.
Within two months of the ruling, Customs came out with a new set of guidelines to help its agents identify pornography. Upon reading the new guidelines it became immediately apparent that not only had Customs not made the necessary changes, but its new guidelines would lead to more, not fewer, seizures.
Now, for the first time, both vaginal and anal fisting were deemed obscene, as was the licking of boots in a sexual context, and the list went on and on. It became readily apparent that gay and lesbian sexuality was again under attack by a government bureaucracy that simply did not get it, and had no plans to begin to understand our sexuality, our sexual fantasies and, indeed, our lives.
All too predictably, within three months of the Supreme Court’s decision, Customs attacked us with renewed vigour. Our shipments were delayed, our imports seized-it was business as usual at Canada Customs.
It soon became clear that what had seemed impossible to imagine was now a reality: the only way to stop the madness was to take them to court yet again.
I personally felt some responsibility for the new attack on our sexuality. It seemed that Customs had learned enough about our sexual practices during our previous court case to use the information against us in the new guidelines. The licking of boots in a sexual context refers to the impassioned defence of the work of Tom of Finland, and vaginal and anal fisting were not only discussed in our court case but defended by prominent scholars on the stand.
It seems Customs had learned enough from our court case to identify specific sexual acts but had not acquired the sophistication to understand that there was nothing degrading or dehumanizing about our sexuality.
When Customs seized two of our Meatmen comics, the old dilemma reemerged: not only was the decision to classify these two books as obscene wrong, but the entire system upon which the classification was based was seriously flawed.
Customs simply had not made the changes that the courts had directed them to make. It continued to systematically target and misclassify gay and lesbian material.
These systemic problems had to be challenged, and once again a large and comprehensive court case would be the only way to prove the entire system of censorship in Canada was seriously flawed.
In order to mount such a large and expensive court case all avenues of funding would have to be explored and actively pursued. No matter how much support flowed from our community and other people interested in a censorship-free Canada, the funding of such a large case simply could not be raised by passing a bucket at most gay events and pleading for individual donations.
Which brings me back to the cold, dark morning of Jan 19 and the insistent ring of the telephone.
Joe Arvay’s voice was sombre. “We lost,” he said.
The decision was clear: funding for our court case would not be forthcoming. An immediate feeling of abandonment overwhelmed me.
Without proper funding our court case was as good as dead. Customs would continue to misclassify gay and lesbian material, and all of the years of expensive court action would be for naught.
Some days one can plod through the shit in hopes of finding a pony, but that day there was no hope of a pony and most of the shit seemed bovine in origin.
I would like to say that by the following day the world seemed like a better place, but frankly it was not all that immediate.
Still, the phone did start ringing with people full of encouragement, e-mails of support rolled in, flowers appeared, new funding possibilities emerged and I did, once again, feel bathed in the support of our community–the community that has always managed to be there when we need them.
We may have lost our funding opportunity before the courts, but this does not in any way invalidate the importance of court action to force Canada Customs to examine its systemic problems. Perhaps we will have to fight Customs one or two books at a time and perhaps, eventually, a judge with courage will once again use the words “systemically flawed” to describe Customs’ treatment of sexually explicit gay and lesbian material.
We have lost a battle, but the war against Canada Customs will continue as long as Little Sister’s continues to import important material into our country–and as long as Customs continues to misapply the Criminal Code definition of obscenity to target our images.