Canada Customs Saddled with Obscenity Burden

On December 12, 2000, the Supreme Court of Canada ruling came down in the widely anticipated case of Little Sisters Book and Art Emporium et al v. Minister of Justice (Canada) et al., which concerned a gay and lesbian bookstore in British Columbia whose imported shipments of books and videos had frequently been seized and detained by Canada Customs officials on obscenity grounds. The bookstore had fought a 10-year battle to have the applicable customs legislation overturned on various grounds, including that it constitutes an unacceptable prior restraint on freedom of expression and that, in its effect, it discriminates against gays and lesbians.

The Canadian Civil Liberties Association (CCLA), represented by Patricia Jackson and Tycho Manson of Torys, urged the Court last March to reconsider the standards with respect to the law of obscenity that were set out in R. v. Butler (1993). In that decision, the existing “community tolerance” standard was confirmed—establishing that material is declared obscene if it’s believed the community will feel it could potentially cause harm.

Although the majority of the Court, in a 6-3 split, upheld Canada Customs’ legislative regime and failed to revisit the current legal standard for obscenity, the Court held that the burden of proving obscenity is now on the person alleging it. This was accomplished by striking down a legislative provision that put the onus on importers to prove seized material is not obscene, and instead requiring Customs agents to prove within 30 days that a seized item is obscene.

Representation for the parties at the Supreme Court of Canada was as follows: Solicitors for the appellants: Arvay Finlay, Victoria; Solicitors for the respondents, Minister of Justice and AG of Canada, and Minister of National Revenue: The Department of Justice, Vancouver; Solicitors for the AG of British Columbia: The Ministry of the AG, Victoria; Solicitors for the intervenor, AG for Ontario: The Ministry of the AG, Toronto; Solicitors for the intervenor, The Canadian AIDS Society: Elliott & Kim LLP, Toronto; Solicitors for the intervenor, Canadian Civil Liberties Association: Torys; Solicitors for the intervenor, Canadian Conference of the Arts and EGALE Canada Inc.: Sack Goldblatt Mitchell, Toronto; Solicitors for the intervenor, Equality Now: Janine Benedet, Toronto; Solicitors for the intervenor, PEN Canada: Ruby & Edwardh, Toronto; Solicitors for the intervenor, LEAF: Karen Busby and Claire Klassen, Winnipeg.