Toronto
5 min

Little Sister’s still needs a babysitter

Court ruling will help crack down on gay SM

VICTORY. SORT OF. Little Sister's owners Bruce Smythe (left) and Jim Deva celebrate with manager Janine Fuller . Credit: Xtra files

Janine Benedet How can this be? In the aftermath of the Supreme Court Of Canada’s censorship ruling, Vancouver’s Little Sister’s Book And Art Emporium is claiming victory. Yet Canada Customs is claiming that everything’s business as usual.



The nine justices of the Supreme Court all agreed (in a decision released Dec 15) that Canada Customs’ agents had unfairly targeted the gay bookstore, and concluded that Little Sister’s had “suffered excessive and unnecessary prejudice.”



For years, books and magazines – from The Advocate to the novels of Marguerite Duras and Jean Genet – have been stopped at the border routinely when addressed to the homo bookshop, but allowed free transit to mainstream het stores.



The decision reads: “The Customs treatment was high-handed and dismissive of [the shop’s] right to receive lawful expressive material which they had every right to import…. Little Sister’s was targeted because it was considered ‘different.'”



“For our community it’s an incredible indictment against Canada

Customs across the board,” says Little Sister’s manager Janine Fuller.



“Throughout… their judgment, they are consistent in decrying that Canada Customs has unfairly, and without any real legal argument, seized books and magazines coming into this bookstore that would not meet the obscenity standards of the court.”



But after harshly condemning the practices of Canada Customs, the majority of the justices then went on to say that the problem does not lie with the law itself. There’s nothing wrong with the legislation that allows border guards to ban books.



With one exception.



The judges (the six whose opinion won out) singled out the “reverse onus” that forces the importer to prove that the material is not obscene. Now, it’s the state – the federal government – that will have to prove that the seized material is obscene.



It’s not clear how this will change much on the ground. Canada Customs agents can still seize books. The importer will still have to appeal the detentions – first internally, then up to the deputy minister, then to the courts. And it’s really only at that stage – an expensive one – that the government will have to prove obscenity.



So Customs employees can continue to detain books, deny appeals and drag their feet. And hope that Canada’s gay and lesbian bookstores grow weary of appeals and trials.



Sometimes, a tenacious little bookstore will go to court. The Little Sister’s staff have spent years on this case. And Ottawa’s After Stonewall Books and Toronto’s Glad Day Bookshop have also fought non-stop seizures. Customs will surely lose such appeals. But small bookstores can’t afford to appeal every detention. Nor should they have to.



At the end of the day, the Supreme Court Of Canada told Customs that it had behaved very badly. And Customs was told to stop it. But there’s nothing that’s forcing Customs to stop. After its seething indictment of the practices of Canada Customs, the Supreme Court pulled its punches. The justices did not take away any of Customs’s power.



In its arguments to the court – the one-day hearing was held in Ottawa way back in March – Ottawa essentially said, “Trust us. We’ve already made a lot of changes to the procedures and we’ll make more.” And the court said, “Okay.”



After more than 15 years of reprehensible behaviour by Canada Customs, it’s hard to imagine why anyone would.



Here’s Ottawa’s take on the ruling. “The Supreme Court has reaffirmed our obligation to detain obscene material at the border,” says Canada Customs And Revenue Agency spokeswoman, Colette Gentes-Hawn. “That has not changed. It has been reaffirmed in this decision.”



What if Canada Customs doesn’t change? The judges said that, if there are future problems, Little Sister’s can always launch another court case. Another legal action? Little Sister’s has been at this for over a decade, isn’t that enough?



And there’s more bad news.



The court also refused to reconsider its controversial test for obscenity.



According to its eight-year-old ruling in the Butler case, pornography is obscene if it involves sex with violence, or sex that is degrading and dehumanizing.



As Little Sister’s argues, this is a vague and subjective test, that allows decision makers to impose their own sexual morality. (One of their first rulings out of Ontario following Butler was that of a judge announcing that pictures of vanilla sex in a gay men’s porn magazine were obscene because the men clearly did not know each other – and anonymous sex is “dehumanizing”).



But the court said the test is just fine, thank you.



And the justices added that their test in Butler had been misunderstood. It wasn’t against sexual expression. It was against harmful sexual expression. (Gosh, I’m glad that’s been cleared up….)



Nor, in the court’s view, was there any reason to restrict the test to heterosexual materials, even though that was the context in which the test was devised.



“The potential of harm and a same-sex depiction are not necessarily mutually exclusive. Portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable. Parliament’s concern was with behavioural changes in the voyeur that are potentially harmful in ways or to an extent that the community is not prepared to tolerate.”



The majority has conveniently rejected the idea that Butler’s test for obscenity was all about the (alleged) harm to women’s equality that comes from men looking at porn. It comes from the radical feminist assertion that pornography violates women’s equality and dignity.



But no matter, since the court has now told us that this applies to straight and gay porn alike.



In fact, this pretty much sums up what the court thinks about sex. Some sex is just bad sex. In this indictment of SM, the judges tell us that portrayals of dominatrixes are harmful, that sex slaves cannot consent, and that such conduct is neither normal nor pleasurable.



This does not paint a pretty picture for the immediate future of sexual expression in Canada.



In the aftermath, staff at Little Sister’s are holding their heads up high, claiming victory and vowing to continue the struggle against Canada Customs. And so they should.



They’ve fought a valiant struggle. The court has vindicated their claims of discrimination.



But the court has done next to nothing to stop the discrimination from continuing. Little Sister’s deserved more than this.



Books are not like other commodities. The three dissenting judges recognized it and do not trust Customs to clean up its own house, but rather called for the law to be struck down and sent back to Parliament; the three understood that freedom of expression was at stake and said the discrimination flowed “from the very nature of prior restraint itself”). But the majority did not.



And so, Customs officials who inspect mattresses and oranges and firearms are going to continue to inspect books. And seize them and censor them.



Don’t be surprised when we all end up back in court.



THE NITTY GRITTY



Little Sister’s was awarded costs, which means the federal government might have to pony up more than $100,000 to cover the bookstore’s legal fees.



Little Sister’s appealed the case to the Supreme Court Of Canada in 1996, when the British Columbia Supreme Court and BC Court Of Appeal found Canada Customs was unfairly targeting material destined for the bookstore, but upheld the powers of Canada Customs.



Intervenors included the bookstore’s James Eaton Deva and Guy Allen Bruce Smythe, the British Columbia Civil Liberties Association, the Canadian AIDS Society, the Canadian Civil Liberties Association, the Canadian Conference Of The Arts, EGALE Canada Inc and PEN Canada. Also supporting Little Sister’s was the Women’s Legal Education And Action Fund (LEAF).



On the other side were the minister of justice and attorney general of Canada, the minister of national revenue, and the attorney general of British Columbia, the attorney general for Ontario, and the US-based group Equality Now (represented by a York University law professor, Janine Benedet).