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SM porn doesn’t deserve protection: Customs

Little Sister's awaits trial funding decision

The Supreme Court of Canada has reserved judgment on whether or not Little Sister’s bookstore will receive the advanced court costs it needs from the federal government to continue its battle against Canada Customs’ book seizures.

The court reserved its decision Apr 19, after hearing submissions from the store’s lawyer Joe Arvay, legal counsel for Customs and several interveners in the case. The case arrived in the top court after the BC Court of Appeal reversed an earlier decision by BC Supreme Court Justice Elizabeth Bennett granting the costs.

The advanced costs centre around a complaint Little Sister’s filed against Customs in 2001 after border guards seized copies of several SM comics and books bound for its shelves.

Little Sister’s alleges the seizures show Customs is still discriminating against its shipments-despite a Supreme Court of Canada ruling in 2000 ordering it to stop unfairly targeting queer imports.

That’s just one of the arguments Little Sister’s is hoping to make to a judge if its latest complaint ever gets its day in court. The trial is expected to last 12 weeks and cost more than $1 million.

“For over two years, Little Sister’s intended to finance the case on its own,” Arvay told the court. It “didn’t come to court with its hand out or to anybody else begging for money. It did go to its community and did its best through fundraisers and speaking engagements and having various events.”

But “there was nowhere enough money to do this case. It was only then that we applied for advanced costs,” he explained.

“There is no way that Little Sister’s is going to be able to do this on its own hook and nor should it be expected to do,” Arvay continued. “Without the advanced costs, this case will not go to trial.”

And that, he said, would be “a great tragedy.”

“It was one of the roughest days I’ve spent in court and I’ve spent a lot of days in court,” Deva later told Xtra West.

Little Sister’s has been fighting Canada Customs ever since border guards began seizing its shipments in 1986. The store’s first legal battle-challenging both the discriminatory nature of Customs’ seizures and its authority to seize any shipments at all-eventually went all the way to the Supreme Court of Canada. Though the high court didn’t accept the store’s argument that Customs’ right to seize books should be struck down entirely, it did order Customs to stop discriminating.

Last week, Arvay told the court that Customs never met that order.

“This trial should never have to happen,” he said. But “Customs misled the court when it said it had fixed everything.”

In June 2004, BC Supreme Court Justice Bennett ruled Little Sister’s latest legal complaint 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,” she continued. It “transcends the interests of Little Sister’s and touches all book importers, both commercial and private.”

The BC Court of Appeal rejected her finding in February 2005.

Calling Customs to account in the Little Sister’s case will be “the most important freedom of expression case in a long time,” Arvay told Canada’s Supreme Court.

“This will be a big obscenity trial,” he said. “There are thorny issues that have to be addressed about undue exploitation of sex and community standards.”

It will be one of the most important Charter of Rights cases in a decade, he reiterated.

Last week’s hearing attracted a number of interveners on either side of the issue.

Canadian Bar Association lawyer JJ Camp supported Little Sister’s application for advanced costs.

“This is of primary critical importance,” Camp said. “The case is deserving and should have advanced costs.”

Egale lawyer Cynthia Petersen said the case is of vital interest to the queer community.

She said the appeal court decision, if allowed to stand, would make it difficult to fight systemic discrimination cases.

In the five years since the first Little Sister’s case, Customs detained about 190,000 items-70 percent of which were queer materials, Petersen noted.

“This is essentially round two in the ongoing battle between Customs and the Little Sister’s bookstore,” she said, adding that Customs should be prohibited from seizing materials “until they effectively demonstrate they are not abusing the process.”

Customs lawyer Cheryl Tobias opposed the funding application.

Until “Little Sister’s has in its hand a decision that Customs did not classify the books correctly, its entitlement to a particular benefit or a Constitutional remedy simply does not arise,” Tobias said.

Added fellow Customs lawyer Brian McLaughlin, how much erotic literature comes into Canada is not of vital political importance.

“These are not life-affirming of consensual sex between persons of the same sex,” McLaughlin said of the four books in question. “These are pictorial and verbal descriptions of brutal rapes not covered by Constitutional protection. Porn of this kind is not at the core of values protected by freedom of expression.”

He urged the court to do a cost-benefit analysis of the case.

Deva says he was “shocked” by McLaughlin’s comments.

“It’s not about money and it’s not about cost-benefits. It’s about freedom of expression,” he says. “How inappropriate is that? It’s just another commodity like bananas and fruit. They just don’t get it yet.”

Representing the attorney general of British Columbia, George Copley also opposed advanced costs.

Such costs should be restricted to public interest issues, he said, adding that an order for costs would require the court to ensure costs do not get out of hand.