2 min

Small victory for Little Sister’s

Onus on Canada Customs to justify seizures

WHAT'S OBSCENE. Canada Customs says Meatmen's portrayals of fisting is obscene. Little Sister's says they're empowering and liberating. The courts will decide. Credit: Xtra West files

The mood is “fairly buoyant” these days at Little Sister’s, says Mark Macdonald, the Davie St bookstore’s buyer.

That’s because Little Sister’s recently took one step closer to winning its new court case against Canada Customs.

The latest round in the Little Sister’s vs Canada Customs legal saga began in July 2001 when border guards seized two volumes of Meatmen, a popular gay comic that sometimes features SM imagery, and called them obscene. Little Sister’s promptly appealed the seizure and the case slowly made its way back to BC Supreme Court.

Last October, the bookstore and the border guards each told a BC Supreme Court judge what they thought the upcoming court case should focus on, and debated who should have to prove what. The bookstore won.

Now, it will be up to Canada Customs to prove that Meatmen really is obscene when the case is heard this summer. (In the past, the burden has fallen to importers such as Little Sister’s to prove that their material is not obscene.)

And that’s just the beginning. Justice Elizabeth Bennett also ruled that Canada Customs will have to show the court exactly what steps it has taken to “redress the systemic problems” that the Supreme Court of Canada identified more than two years ago.

In December 2000, the Supreme Court of Canada ruled that Canada Customs had been unfairly targeting Little Sister’s for years.

Border guards routinely ripped open the gay bookstore’s shipments because they were gay and seized their contents, the court found.

The court ordered Canada Customs to stop discriminating against gays and lesbians-though it allowed them to keep seizing any material it deemed obscene.

Macdonald says Canada Customs will be hard-pressed to demonstrate that it has cleaned up its discriminatory behaviour.

Nothing has changed at the border, he says. “It’s business as usual at Canada Customs.”

Not only is Canada Customs still targeting Little Sister’s shipments, it’s applying its own flawed interpretations of what’s obscene, Macdonald explains.

Section 163 of the Criminal Code defines obscenity as anything depicting, as its dominant characteristic, the undue exploitation of sex. That definition was further refined by the Butler decision in 1992, which equated obscenity with degrading and dehumanizing sex. But neither gives specific examples of what kinds of sex count as degrading and dehumanizing.

So Canada Customs took it upon themselves, without any community consultation, to decide what is degrading and dehumanizing, Macdonald says. And they came up with fisting and golden showers.

Border guards are now handed a copy of Memorandum D-9-1-1 to determine what gets into Canada and what doesn’t. The memo cites, among other things, the “insertion of a fist or foot into an anal or vaginal orifice” in its list of degrading sexual activities.

That means Canada Customs arbitrarily decided that SM imagery is dehumanizing rather than, say, empowering and liberating, Macdonald notes.

That’s just one of the arguments that Little Sister’s plans to raise in this summer’s trial. Justice Bennett has also promised to listen to any arguments the bookstore wants to make about the definition of obscenity more generally in the Criminal Code.

Macdonald says he’s looking forward to getting a new day in court. “We’re very angry, we’re very stubborn and we’re not ashamed to do what we do,” he says.

“We’re not importers of obscenity. For 20 years Canada Customs has been saying that we are. We are a healthy bookstore in a healthy community.”

The trial is expected to start this June and may run for as long as six weeks. Little Sister’s has already started a new defence fund but Macdonald estimates that it will cost another $150,000 to fight this next round in court. Donations are “extremely welcome,” he says.