The future of one of Canada’s highest profile freedom of expression cases may be in jeopardy due to a fraud committed by a former bookkeeper at Little Sister’s bookstore.
Justin French pleaded guilty and was convicted on Sep 12 of theft over $5,000 and sentenced to 18 months in jail.
“It was absolute disbelief,” Little Sister’s co-owner Jim Deva says of discovering the fraud.
French has also been ordered to pay restitution in the amount of $85,952.
According to information filed with BC’s Provincial Court, French committed the offence between May 2003 and February 2004.
He was initially charged in August 2004 with two counts of theft over $5,000.
French’s months-long fraud was the first of two major financial blows recently dealt to Little Sister’s in its ongoing fight against Canada Customs’ book seizures.
The second blow came Feb 18, when the BC Court of Appeal overturned a decision ordering Customs to pay the bookstore advanced costs in the latest round of their legal battle.
That round began in 2001, when the bookstore took Canada Customs back to court for seizing several copies of SM comics and books bound for its shelves.
The first round began 14 years earlier when Little Sister’s first took Canada Customs to court for unfairly targeting its gay and lesbian imports. That round ended with a semi-victory for the bookstore in 2000, when the Supreme Court of Canada ordered Customs to stop discriminating against Little Sister’s.
One year later, Little Sister’s was back in court, its Meatmen comics seized at the border.
The Meatmen case has been grinding slowly through the court system ever since. The trial is expected to take three months and cost more than $1.1 million dollars-if the bookstore can afford to bring it to court.
Deva says French’s fraud was the reason they applied for advanced costs from the government in the first place-funding they were originally awarded by the BC Supreme Court in June 2004.
The store has now applied to the Supreme Court of Canada for leave to challenge the Court of Appeal’s decision rescinding that funding.
If the highest court of the land refuses to re-instate funding for the Meatmen case, the gay bookstore’s two-decade-long battle against Canada Customs will be over.
“It is so economically onerous to maintain a case against the federal government,” Deva says. “A single entity just can’t do it.”
The store, however, is not in danger, he says. And the money French stole did not come out of the bookstore’s legal defence fund contributed by the community, he adds.
But, says Deva, “it’s been difficult to absorb that for a small business.”
And, he says, it has hurt the trust he puts in his store’s staff.
“Our staff is very much our family,” Deva says. “When that level of trust is damaged, it’s problematic. We carry on as usual. We continue to trust our staff.”
Last June, BC Supreme Court Justice Elizabeth Bennett ruled the Meatmen case was important enough to the public interest to warrant advanced costs.
“The issues raised are too important to forfeit this litigation because of lack of funds,” she found, noting that courts can grant advanced costs in “rare and exceptional circumstances.”
This is “a case of public importance and has not been decided by other cases,” she ruled. “That issue transcends the interests of Little Sister’s and touches all book importers, both commercial and private.”
The Court of Appeal rejected her finding in February.
If the case only involves deciding if four books are obscene, then it is not an issue of major public importance, it ruled.
“The evidence does not indicate that the public in general, to say nothing of the gay and lesbian communities or the writers, publishers, distributors or retailers of erotic literature, view this case as of such importance that they will undertake financing,” Justice Allan Thackray wrote for the three-judge panel.
He said he found no evidence that the case was “special, even extreme.”
As part of their presentation to the panel, Little Sister’s lawyers argued the bookstore had “assumed the role of watchdog over Customs.”
Lawyer Joe Arvay said the store was the only entity which had the “will, the fortitude and the energy to challenge Customs’ discriminatory and censorial practices and does so on behalf of all Canadians.”
The appeals court was not swayed.
“The fact is that the public has not appointed Little Sister’s to this role. Little Sister’s not only wants to have Customs found to have incorrectly classified the books in question but wants to be financed as the instrument to reform Customs,” wrote Thackray with the support of Justices Wally Oppal (now BC’s Attorney General) and Mary Saunders.
Concluded Thackray: “I am not satisfied that it is necessary for Little Sister’s to be the instrument of reform of Customs.”
The appeals court was not swayed by the bookstore’s financial difficulties, either.
In her earlier ruling, Bennett noted there had been an internal fraud costing the store $80,000. She also pointed out that the trial would likely cost about $1.1 million.
And, she added, the store’s attempts at fundraising “had not been particularly fruitful.”
Now it’s up to the Supreme Court of Canada to decide whether the latest Little Sister’s case deserves its day in court-and the advanced costs to make it possible.