The federal government has been ordered to pay most of the costs of a court case that Vancouver’s Little Sister’s bookstore is bringing against it this fall.
In an unusual ruling that builds upon a recent native land claims case, BC Supreme Court Justice Elizabeth Bennett last month decided that the Little Sister’s quarrel with border censors has “rare and exceptional circumstances.”
Bennett wrote that the public importance of the bookstore’s key argument-that Canada’s border cops continue to discriminate against lesbian and gay material, despite being ordered to stop by the Supreme Court of Canada – merits the feds footing the bill. The government must cough up the funds, likely into the hundreds of thousands of dollars, in advance.
“Little Sister’s is a small profit organization. It suffered a loss of $57,000 in 2003, plus were the victims of an $80,000 internal fraud,” wrote Bennett. “It is making efforts to raise funds to support this litigation, but so far has raised only a small amount of money…. [T]he test is not dire financial straits. The test is whether the litigant ‘genuinely cannot afford to pay for the litigation.'”
The case centres around two comicbooks, Meatmen Volumes 18 and 24, and two books edited by Larry Townsend – Of Slaves and Ropes and Lovers; and Of Men, Ropes and Remembrance. They were seized at the border and deemed obscene by Canada Customs (now called Canada Border Services Agency). The seizures came after a Supreme Court ruling in 2000, which found that Canada Customs discriminated against lesbian and gay material. In that landmark ruling, the court told Customs to stop but did not strike down any legislation.
“The statistics demonstrate that 70 percent of detentions are gay and lesbian material,” Bennett wrote. “This is some evidence of continual targeting.”
This time Little Sister’s is going after the feds with three arguments. First, they’re appealing the decision by head censor Anne Kline that the material is obscene. They’re also demanding an administrative review, complaining that systemic problems lead to discrimination against queer material. And thirdly, they’re arguing against the definition of obscenity in the Criminal Code of Canada.
Bennett, who will also hear the main case when it starts in September, approved the funding for appeal and the administrative review, but Little Sister’s will have to pay its own costs for the portions of the case where its lawyers will argue against the definition of obscenity.
“Little Sister’s submission that the definition of ‘obscenity’ is unworkable as evidenced by Customs continuing to detain and prohibit titles is an argument more relevant to the administrative review issue,” wrote Bennett. “I am not foreclosing raising the obscenity definition argument as it relates to the constitutional challenge but it is not persuasive in the context of an advanced costs application.”
Little Sister’s is planning to call an array of expert witnesses for the hearing, which is likely to go on for more than three months. There is a federal program that provides funding for court challenges on important social issues, but the amount of money available comes nowhere near the cost of arguing a large-scale case like Little Sister’s.
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