Little Sister’s decades-long battle with Canada Customs has hit another wall–and it looks like this one may be insurmountable.
On Jan 19, the Supreme Court of Canada rejected the gay bookstore’s bid for advance costs, ruling the Little Sister’s case is not special enough to warrant the taxpayers’ support.
“Public interest advance costs orders must be granted with caution, as a last resort, in circumstances where their necessity is clearly established,” Justices Michel Bastarache and Louis LeBel wrote for the court’s majority. “The standard is a high one: only the ‘rare and exceptional’ case is special enough to warrant an advance costs award.
“In the present case, the issues raised do not transcend the litigant’s individual interests,” they ruled. “The four books appeal, in which [Little Sister’s] alleges a discriminatory attitude on the part of Customs to some of its merchandise, is extremely limited in scope.”
The case stems from a complaint Little Sister’s filed against Canada Customs (now Canada Border Services Agency) in 2001, after border guards seized copies of several SM comics and books bound for its shelves and labelled them obscene.
Little Sister’s challenged the obscenity designation, and claimed the seizures show Customs is still discriminating against its shipments–despite the Supreme Court of Canada’s ruling ordering them to stop unfairly targeting queer imports in 2000.
The latest case was to be heard in BC Supreme Court, but it soon became clear to Little Sister’s that it couldn’t afford to counter the government’s extensive expert list without some financial help. So it asked for advance costs, based on a 2003 Supreme Court of Canada ruling called Okanagan that granted an aboriginal group funding to take the government to court.
“The situation in Okanagan was clearly out of the ordinary,” Bastarache and LeBel explained Jan 19. “The bands had been thrust into complex litigation against the government that they could not pay for, and the case raised issues vital both to their survival and to the government’s approach to aboriginal rights. The issue before the Court in that case was whether the bands’ inability to pay should have the effect of leaving constitutional rights unenforceable and public interest issues unresolved.”
The interests raised by the Little Sister’s case, on the other hand, are insufficient to justify the government footing the bill, the court ruled.
“If advanced costs are justified here, they will be justified in a host of other cases,” ruled Chief Justice Beverley McLachlin.
Justices Ian Binnie and Morris Fish vehemently disagreed.
Systemic discrimination by Customs officials “and unlawful interference with free expression” were clearly established in the first Little Sister’s case, they wrote in their dissent. “In its application for advance costs in this case, [Little Sister’s] contended that the systemic abuses established in the earlier litigation have continued, and that Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination.
“The question of public importance is this: was the Minister [in charge of Customs] as good as his word in 2000 when his counsel assured the Court that the appropriate reforms had been implemented?”
The fact that 70 percent of Customs detentions are of gay and lesbian material suggests there is “unfinished business of high public importance left over” from the first Little Sister’s case, wrote Binnie and Fish.
“The public has an interest in whether its government respects the law and operates in relation to its citizens in a non-discriminatory fashion,” they argued. “That is where the interest of this litigation transcends [the bookstore’s] private interest.”
The dissenting justices went on to say that, were it up to them, they would grant Little Sister’s $300,000 in advance costs.
“This is an exceptional case of special public importance that should not be defeated by [Little Sister’s] lack of funds,” they ruled.
Binnie was “absolutely brilliant,” says Little Sister’s co-owner Jim Deva. It would have been difficult to mount such a case with just $300,000 “but it would have made the trial possible.”
Now, he says, that possibility is gone. Without advance costs, Little Sister’s can’t afford to take Customs to court.
“We have to put our case to bed and declare defeat,” says Deva, adding the decision shows that the little guy has little chance against the big money government can throw at such cases.
With the elimination of the Court Challenges program and the mounting costs of legal battles, the advance costs option offered one last “little window of hope, and that is clearly closed now,” Deva says.
“Perhaps it’s only justice for the privileged and the few,” he adds.
“Quite unfortunately, financial constraints put potentially meritorious claims at risk every day,” the court acknowledged in its decision. “Faced with this dilemma, legislatures have offered some responses, although these may not address every situation. Legal aid programs remain underfunded and overwhelmed. Self-representation in courts is a growing phenomenon.”
But, the justices ruled, advance costs were “not intended to resolve all these difficulties.”
“This decision means the Charter of Rights and Freedoms are only available to the rich and powerful in this country,” says Kaj Hasselriis, interim executive director of Egale.
“The only expression cases that will go to the court will be those fought by well financed media outlets and other commercial interests, like tobacco companies,” Hasselriis continues. “Is that what Canadians want?”
“The Supreme Court characterized this case as a dispute over only four books, but it failed to recognize that much larger issues are at stake, such as the equality rights and freedom of expression of LGBT writers, readers and importers,” adds Hilary Cook, chair of Egale’s legal issues committee.
“My hope is that enough people actually smell the fact that justice is being denied and it becomes a political issue,” says Deva.
In the wake of Jan 19’s ruling, Deva expects border guards to begin seizing the bookstore’s imports again within the next few weeks.
“By admitting defeat, we have told them they have unlimited power,” he says. “God help us.”
“There’s no back door to justice and the front door just got slammed,” adds Little Sister’s manager Janine Fuller.
But that doesn’t mean the battle is over, she says. “It means that we will continue to fight as a community. We’ll just find different ways to do it.”