Little Sisters Book and Art Emporium v. Canada (Minister of Justice)

Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Collection
Supreme Court Judgments
Date
2000-12-15
Neutral citation
2000 SCC 69
Report
[2000] 2 SCR 1120
Case number
26858
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Constitutional law
Customs and excise
Notes
SCC Case Information: 26858
Decision Content
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120
Little Sisters Book and Art Emporium,
B.C. Civil Liberties Association,
James Eaton Deva and Guy Allen Bruce Smythe Appellants
v.
The Minister of Justice and Attorney General of Canada,
the Minister of National Revenue and
the Attorney General of British Columbia Respondents
and
The Attorney General for Ontario,
the Canadian AIDS Society,
the Canadian Civil Liberties Association,
the Canadian Conference of the Arts,
EGALE Canada Inc.,
Equality Now, PEN Canada and
the Women’s Legal Education and Action Fund (LEAF) Interveners
Indexed as: Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Neutral citation: 2000 SCC 69.
File No.: 26858.
2000: March 16; 2000: December 15.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Constitutional law – Charter of Rights – Freedom of expression – Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Legislation placing onus on importer to establish that goods are not obscene ‑‑ Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes freedom of expression ‑‑ If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), ss. 58 , 71 , 152(3) ‑‑ Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), Schedule VII, Code 9956(a).
Constitutional law – Charter of Rights – Equality rights – Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15 .
Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes freedom of expression or equality rights – Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), ss. 58 , 71 ‑‑ Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), Schedule VII, Code 9956(a).
The appellant bookstore, of which the individual appellants are the directors and controlling shareholders, carried a specialized inventory catering to the gay and lesbian community which consisted largely of books that included gay and lesbian literature, travel information, general interest periodicals, academic studies related to homosexuality, AIDS/HIV safe‑sex advisory material and gay and lesbian erotica. Since its establishment in 1983, the store has imported 80 to 90 percent of its erotica from the United States. Code 9956(a) of Schedule VII of the Customs Tariff prohibits the importation of “[b]ooks, printed paper, drawings, paintings, prints, photographs or representations of any kind that . . . are deemed to be obscene under subsection 163(8) of the Criminal Code ”. At the entry level, Customs inspectors determine the appropriate tariff classification, pursuant to s. 58 of the Customs Act . The classification exercise under Code 9956 largely consists of the Customs inspector making a comparison of the imported materials with the illustrated manual accompanying Memorandum D9‑1‑1, which describes the type of materials deemed obscene by Customs. At the relevant time, an item considered “obscene” and thus prohibited was subject (under s. 60 of the Act) to a re‑determination upon request, by a specialized Customs unit, and upon a further appeal subject to a further re‑determination by the Deputy Minister or designate. Once these administrative measures have been exhausted, an importer may appeal the prohibition under s. 67 of the Act to a judge of the superior court of the province where the material was seized, with a further appeal on a question of law to the Federal Court of Canada, and then with leave to the Supreme Court of Canada. Section 152(3) provides that in any proceeding under the Act the burden of proof in any question in relation to the compliance with the Act or the regulations in respect of any goods lies on the importer.
After a lengthy trial the trial judge found not only that the Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant bookstore on numerous occasions, but that these errors were caused by the “systemic targeting” of the store’s importations. He concluded that the Customs legislation infringed s. 2 (b) of the Canadian Charter of Rights and Freedoms , but was justified under s. 1 . Although he denied a remedy under s. 52(1) of the Constitution Act, 1982 , the trial judge issued a declaration under s. 24(1) of the Charter that the Customs legislation had at times been construed and applied in a manner contrary to ss. 2 (b) and 15(1) of the Charter . The Court of Appeal, in a majority judgment, dismissed the appellants’ appeal.
Held (Iacobucci, Arbour and LeBel JJ. dissenting in part): The appeal should be allowed in part. The “reverse onus” provision under s. 152(3) of the Customs Act cannot constitutionally apply to put on the importer the onus of disproving obscenity. An importer has a Charter right to receive expressive material unless the state can justify its denial.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Bastarache and Binnie JJ.: The interpretation given to s. 163(8) of the Criminal Code in Butler does not discriminate against the gay and lesbian community. The national community standard of tolerance relates to harm, not taste, and is restricted to conduct which society formally recognizes as incompatible with its proper functioning. While it is true that under s. 163(8) the “community standard” is identified by a jury or a judge sitting alone, a concern for minority expression is one of the principal factors that led to adoption of the national community test in Butler in the first place. The Canadian community specifically recognized in the Charter that equality (and with it, the protection of sexual minorities) is one of the fundamental values of Canadian society. The standard of tolerance of this same Canadian community for obscenity cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian community in a discriminatory way. Butler validates a broad range of sexually explicit expression as non‑harmful.
The Constitution does not prohibit border inspections. Any border inspection may involve detention and, because Customs officials are only human, erroneous determinations. If Parliament can prohibit obscenity, and Butler held that it had validly done so, the prohibitions can be imposed at the border as well as within the country. The only expressive material that Parliament has authorized Customs to prohibit as obscene is material that is, by definition, the subject of criminal penalties for those who are engaged in its production or trafficking (or have possession of it for those purposes). The concern with prior restraint operates in such circumstances, if at all, with much reduced importance. It was open to Parliament in creating this type of government machinery to lay out the broad outline in the legislation and to leave its implementation to regulation by the Governor in Council or departmental procedures established under the authority of the Minister. A failure at the implementation level, which clearly existed here, can be addressed at the implementation level. There is no constitutional rule that requires Parliament to deal with Customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation or even by ministerial directive or departmental practice. Parliament is entitled to proceed on the basis that its enactments will be applied constitutionally by the public service.
If Customs does not make a tariff classification within 30 days the importer’s classification applies. The 30‑day decision period was an important protection inserted in the Customs Act for the benefit of importers. The evidence demonstrated that Customs, because of scarce resources or otherwise, failed to carry out the classification exercise sometimes for many months. These deficiencies could clearly have been addressed by regulatory provisions made under s. 164(1) (j) of the Customs Act or ministerial directions to Customs officials.
The requirement in s. 60(3) of the Act that a re‑determination of a tariff classification be made with “all due dispatch” must be given content. The original determination must be made within 30 days and there is no evidence that the re‑determination should take longer. The trial judge found that some requests for re‑determination under s. 63 took more than a year for decision. Such a delay is not in accordance with the Act.
A court is the proper forum for resolution of an allegation of obscenity. The department at that stage has had the opportunity to determine whether it can establish on a balance of probabilities that the expressive material is obscene. The court is equipped to hear evidence, including evidence of artistic merit, and to apply the law. The absence of procedures for taking evidence at the departmental level requires the appeal to the court in obscenity matters to be interpreted as an appeal by way of a trial de novo.
It was clearly open to the trial judge to find, as he did, that the appellants suffered differential treatment when compared to importers of heterosexually explicit material, let alone more general bookstores that carried at least some of the same titles as the appellant bookstore. Moreover, while sexual orientation is not mentioned explicitly in s. 15 of the Charter , it is clearly an analogous ground to the listed personal characteristics. The appellants were entitled to the equal benefit of a fair and open customs procedure, and because they imported gay and lesbian erotica, which was and is perfectly lawful, they were adversely affected in comparison to other individuals importing comparable publications of a heterosexual nature. On a more general level, there was no evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual erotica. It therefore cannot be said that there was any legitimate correspondence between the ground of alleged discrimination (sexual orientation) and the reality of the appellants’ circumstances (importers of books and other publications including, but by no means limited to, gay and lesbian erotica). There was ample evidence to support the trial judge's conclusion that the adverse treatment meted out by Canada Customs to the appellants violated their legitimate sense of self‑worth and human dignity. The Customs treatment was high‑handed and dismissive of the appellants' right to receive lawful expressive material which they had every right to import.
While here it is the interests of the gay and lesbian community that were targeted, other vulnerable groups may similarly be at risk from overzealous censorship. The appellant bookstore was targeted because it was considered “different”. On a more general level, it is fundamentally unacceptable that expression which is free within the country can become stigmatized and harassed by government officials simply because it crosses an international boundary, and is thereby brought within the bailiwick of the Customs department. The appellants’ constitutional right to receive perfectly lawful gay and lesbian erotica should not be diminished by the fact their suppliers are, for the most part, located in the United States. Their freedom of expression does not stop at the border.
The source of the s. 15(1) Charter violation is not the Customs legislation itself. There is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation. The definition of obscenity operates without distinction between homosexual and heterosexual erotica. The differentiation was made here at the administrative level in the implementation of the legislation. A large measure of discretion is granted in the administration of the Act, from the level of the Customs official up to the Minister, but it is well established that such discretion must be exercised in accordance with the Charter . Many of the systemic problems identified by the trial judge in the department’s treatment of potentially obscene imports might have been dealt with by institutional arrangements implemented by regulation, but this was not done. However, the fact that a regulatory power lies unexercised provides no basis in attacking the validity of the statute that conferred it.
As conceded by the Crown, the Customs legislation infringes s. 2 (b) of the Charter . With the exception of the reverse onus provision in s. 152(3) of the Customs Act , however, the legislation constitutes a reasonable limit prescribed by law which the Crown has justified under s. 1 of the Charter . The Customs Tariff prohibition is not void for vagueness or uncertainty, and is therefore validly “prescribed by law”. Parliament’s legislative objective, which is to prevent Canada from being inundated with obscene material from abroad, is pressing and substantial, and Customs procedures are rationally connected to that objective. Moreover, the basic statutory scheme set forth in the Customs legislation, properly implemented by the government within the powers granted by Parliament, was capable of being administered with minimal impairment of the s. 2 (b) rights of importers, apart from the reverse onus provision. Customs officials have no authority to deny entry to sexually explicit material unless it comes within the narrow category of pornography that Parliament has validly criminalized as obscene. With respect to lawful publications, the interference sanctioned by Parliament was limited to the delay, cost and aggravation inherent in inspection, classification and release procedures.
Per Iacobucci, Arbour and LeBel JJ. (dissenting in part): The majority’s conclusion that the Butler test does not distinguish between materials based on the sexual orientation of the individuals involved or characters depicted is agreed with. The Butler test applies equally to heterosexual, homosexual and bisexual materials. The use of national community standards as the arbiter of what materials are harmful, and therefore obscene, remains the proper approach. There is also agreement with the majority’s conclusions that the harm‑based approach is not merely morality in disguise and that the Butler test does apply to written materials, although it will be very difficult to make the case of obscenity against a book.
The application of the Customs legislation has discriminated against gays and lesbians in a manner that violated s. 15 of the Charter . The Customs legislation does not itself violate s. 15(1) , however, for the reasons given by the majority. While it is arguable that pornographic materials play a more important role in the gay and lesbian communities, gays and lesbians remain able to access pornographic materials that do not create a substantial risk of harm. Therefore legislation banning obscenity alone has no adverse effects, and it is unnecessary to proceed with the rest of the analysis prescribed under Law.
As properly conceded by the respondents, the Customs legislation, as applied to books, magazines, and other expressive materials, violates the appellants’ rights under s. 2 (b) of the Charter . The legislation has been administered in an unconstitutional manner, but it is the legislation itself, and not only its application, that is responsible for the constitutional violations. Given the extensive record of Charter violations, there must be sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights. The issue is not solely whether the Customs legislation is capable of being applied constitutionally. Instead, the crucial consideration is that the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive materials. The government has provided little reason to believe that reforms at the implementation level will adequately protect the expressive rights involved or that any such reforms will not be dependent on exemplary conduct by Customs officials to avoid future violations of constitutional rights. Furthermore, it is not just the rough and ready border screening procedure that has been responsible for these constitutional infirmities, but the entire system by which these screening decisions are reviewed.
The government’s burden under s. 1 of the Charter is to justify the actual infringement on rights occasioned by the impugned legislation, not simply that occasioned by some hypothetical ideal of the legislation. Examining such a hypothetical ideal runs the risk of allowing even egregious violations of Charter rights to go unaddressed. Obviously any substantive standard for obscenity will have difficulties in application, regardless of the institutional setting in which it is applied. This will not necessarily be cause for concern. Where, however, the challenge is to the procedures by which the law is enforced, the fact that far more materials are prohibited than intended is extremely relevant. Many of the items seized in this case were eventually determined not to be obscene. These wrongfully detained items clearly engaged the values underlying the guarantee of free expression in s. 2 (b). While a more deferential approach is appropriate where, as here, the government is mediating between competing groups as a social policy maker, the Court cannot abdicate its duty to demand that the government justify legislation limiting Charter rights.
The substantive standard for obscenity set out in s. 163(8) of the Criminal Code , as applied by Customs, is an intelligible standard, and the limit on Charter rights is thus prescribed by law. The objective of the Customs legislation, which is to limit the importation of obscene materials into the country, is pressing and substantial. Preventing obscene materials from ever entering the country is a rational means of protecting society from harm. In light of the Customs legislation’s failure to acknowledge effectively the unique Charter concerns raised by expressive materials, however, it is not minimally intrusive. The only accommodation made for expressive materials is that their review under s. 67 is done by a superior court rather than by the Canadian International Trade Tribunal. This is insufficient to safeguard the fundamental Charter rights at stake. The sheer number of contested prohibitions, and the cost of challenging them through the various levels of administrative review, makes it completely impracticable for the appellants to contest each one of them up to the s. 67 level.
The protection of expressive freedom is central to the social and political discourse in our country. If such a fundamental right is to be restricted, it must be done with care. This is particularly the case when the nature of the interference is one of prior restraint, not subsequent silencing through criminal sanction. The flaws in the Customs regime are not the product of simple bad faith or maladministration, but rather flow from the very nature of prior restraint itself. Given the inherent dangers in a scheme of prior restraint at the border it is obviously important to have procedural protections in the legislation itself that can minimize these dangers. The Customs legislation fails the s. 1 analysis primarily because it lacks any such protections.
A minimally intrusive scheme would ensure that those enforcing the law actually obey its dictates. To determine whether something is obscene, it must be seen in its entirety, with close attention to context, tone, and purpose. Customs officers have consistently failed to apply Butler’s command to consider the context and artistic merit of items under consideration. While procedural safeguards might alleviate many of these problems, their complete absence from the Customs legislation simply confirms the inadequacy of the current scheme. Absolute discretion rests in a bureaucratic decision‑maker, who is charged with making a decision without any evidence or submissions, without any requirement to render reasons for decision, and without any guarantee that the decision‑maker is aware of or understands the legal test he or she is applying. Such a system cannot be minimally intrusive.
Moreover, the deleterious effects of the existing Customs regime outweigh its benefits. The first obvious deleterious effect of the current system is the extraordinarily high rate of error. The detentions have had a dramatic, tangible effect on the lives of countless Canadians. Alternative bookstores have had their viability threatened by the constant delays and outright prohibitions. Authors and artists have suffered the indignity of having their works condemned as obscene, and not fit to enter the country. Perhaps most important of all, ordinary Canadians have been denied important pieces of literature. Weighed against these costs are the benefits of a Customs regime that makes almost no special accommodations for the free expression rights at stake. The benefits of the present legislation are primarily monetary, as the reforms sought by the appellants will require public expenditures. However, it is important not to overestimate those costs. In the absence of any evidence that a scheme with more procedural safeguards would be impossible, it should not be assumed that Parliament is completely incapable of devising a cost‑effective legislative scheme that better protects the constitutional rights in question.
The appropriate remedy for this violation of the appellants’ constitutional rights is to strike down Code 9956(a) of the Customs Tariff. Given the fact that there were grave systemic problems in the administration of the law, the primarily declaratory remedy relied on by the majority is simply inadequate. Systemic problems call for systemic solutions. Customs’ history of improper censorship, coupled with its inadequate response to the declarations of the courts below, confirms that only striking down the legislation will guarantee vindication of the appellants’ constitutional rights. There are a number of options available to Parliament to remedy the current flaws in the Customs legislation. First, it could enact new legislation which properly safeguards the expressive rights at stake. Second, it could establish a specialized administrative tribunal to expeditiously review obscenity determinations made by front-line Customs officers. Finally, it could rely on the criminal law to deal with the importation of obscene materials into the country in lieu of a prior restraint regime.
Cases Cited
By Binnie J.
Applied: R. v. Butler, [1992] 1 S.C.R. 452; disapproved in part: Glad Day Bookshop Inc. v. Canada (Deputy Minister of National Revenue, Customs and Excise), [1992] O.J. No. 1466 (QL); distinguished: R. v. Morgentaler, [1988] 1 S.C.R. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Bain, [1992] 1 S.C.R. 91; referred to: Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; Miron v. Trudel, [1995] 2 S.C.R. 418; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Hawkins (1993), 15 O.R. (3d) 549; R. v. Jacob (1996), 112 C.C.C. (3d) 1; R. v. Erotica Video Exchange Ltd. (1994), 163 A.R. 181; Brodie v. The Queen, [1962] S.C.R. 681; R. v. Simmons, [1988] 2 S.C.R. 495; United States v. Thirty‑Seven Photographs, 402 U.S. 363 (1971); R. v. Oakes, [1986] 1 S.C.R. 103; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154; Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Beare, [1988] 2 S.C.R. 387; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
By Iacobucci J. (dissenting in part)
R. v. Butler, [1992] 1 S.C.R. 452; Brodie v. The Queen, [1962] S.C.R. 681; R. v. C. Coles Co., [1965] 1 O.R. 557; A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Bain, [1992] 1 S.C.R. 91; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Egan v. Canada, [1995] 2 S.C.R. 513; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Oakes, [1986] 1 S.C.R. 103; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Entick v. Carrington (1765), 2 Wils. K.B. 275, 95 E.R. 807; Near v. Minnesota, 283 U.S. 697 (1931); Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961); R. v. Lucas, [1998] 1 S.C.R. 439; Freedman v. Maryland, 380 U.S. 51 (1965); United States v. Thirty‑Seven Photographs, 402 U.S. 363 (1971); M. v. H., [1999] 2 S.C.R. 3; Vriend v. Alberta, [1998] 1 S.C.R. 493; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Schachter v. Canada, [1992] 2 S.C.R. 679; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Mills, [1999] 3 S.C.R. 668; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); R. v. Lippé, [1991] 2 S.C.R. 114; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dell Publishing Co. v. Deputy Minister of National Revenue for Customs and Excise (1958), 2 T.B.R. 154.
Statutes and Regulations Cited
Canada Post Corporation Act, R.S.C., 1985, c. C‑10, s. 42 [rep. & sub. c. 1 (2nd Supp.), s. 171 ].
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 15(1) , 24(1) .
Constitution Act, 1982, s. 52(1) .
Criminal Code, R.S.C., 1985, c. C‑46, s. 163(8) .
Customs Act, R.S.C., 1985, c. 1 (2nd Supp .), ss. 2 , 58 , 60 , 63 , 64 [am. c. 47 (4th Supp.), s. 52 (Sch., item 2(1)); am. 1992, c. 28, s. 15], 67 [rep. & sub. c. 47 (4th Supp.), s. 52 (Sch., item 2(2))], 68, 71 [am. c. 41 (3rd Supp.), s. 120], 99, 152(3), 164.
Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), s. 114.
Customs Tariff, S.C. 1987, c. 49, Sch. VII, Code 9956(a).
Customs Tariff, S.C. 1997, c. 36, s. 166, Sch., Tariff item 9899.00.00.
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APPEAL from a judgment of the British Columbia Court of Appeal (1998), 54 B.C.L.R. (3d) 306, 160 D.L.R. (4th) 385, [1999] 12 W.W.R. 445, 109 B.C.A.C. 49, 177 W.A.C. 49, 125 C.C.C. (3d) 484, 54 C.R.R. (2d) 1, [1998] B.C.J. No. 1507 (QL), dismissing the appellants’ appeal from a decision of the British Columbia Supreme Court (1996), 18 B.C.L.R. (3d) 241, 131 D.L.R. (4th) 486, [1996] B.C.J. No. 71 (QL), dismissing the appellants’ application for a declaration pursuant to s. 52(1) of the Constitution Act, 1982 . Appeal allowed in part, Iacobucci, Arbour and LeBel JJ. dissenting in part.
Joseph J. Arvay, Q.C., and Irene C. Faulkner, for the appellants.
Judith Bowers, Q.C., Brian J. Saunders and Daniel Kiselbach, for the respondents the Minister of Justice and Attorney General of Canada and the Minister of National Revenue.
George H. Copley, Q.C., and Jeffrey M. Loenen, for the respondent the Attorney General of British Columbia.
Christine Bartlett‑Hughes and Robert E. Houston, Q.C., for the intervener the Attorney General for Ontario.
R. Douglas Elliott and Patricia A. LeFebour, for the intervener the Canadian AIDS Society.
Patricia D. S. Jackson and Tycho M. J. Manson, for the intervener the Canadian Civil Liberties Association.
Frank Addario and Ethan Poskanzer, for the intervener the Canadian Conference of the Arts.
Cynthia Petersen, for the intervener EGALE Canada Inc.
Janine Benedet, for the intervener Equality Now.
Jill Copeland, for the intervener PEN Canada.
Karen Busby and Claire Klassen, for the intervener the Women’s Legal Education and Action Fund (LEAF).
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major, Bastarache and Binnie JJ. was delivered by
1 Binnie J. – After a trial of considerable complexity lasting two months, the trial judge in this case concluded not only that Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant on numerous occasions, but that these errors were caused “by the systemic targeting of Little Sisters' importations in the [Vancouver] Customs Mail Center”. Little Sisters is a lesbian and gay bookshop owned by the appellants James Eaton Deva and Guy Bruce Smythe, who say their equality rights as gay men have been violated by the government’s action. The store carried a specialized inventory catering to the gay and lesbian community which consisted largely of books that included, but was not limited to, gay and lesbian literature, travel information, general interest periodicals, academic studies related to homosexuality, AIDS/HIV safe sex advisory material and gay and lesbian erotica. It was not in the nature of a “XXX Adult” store. It was and is a boutique carrying a fairly broad range of inventory of interest to a special clientele. It was considered something of a “community centre” for Vancouver’s gay and lesbian population.
2 The appellants concede that much of the material imported by Little Sisters consisted of erotica but have denied throughout that anything it has imported is obscene. If the erotica had been manufactured in Canada, the government would have had no legal basis to suppress it short of a successful prosecution under s. 163 of the Criminal Code, R.S.C., 1985, c. C-46 , in which the state would have the onus of establishing obscenity.
3 We are told that Canada produces very little gay and lesbian erotica, obscene or otherwise, and Little Sisters therefore depends on foreign suppliers, mainly in the United States. The appeal therefore requires us to consider what limitations may constitutionally be placed on freedom of expression when “expression” crosses international boundaries, and to what extent the rights of importers must be balanced against the state’s interest in preventing the importation of materials that the state considers to be harmful to society.
I. Facts
4 The appellant, Little Sisters Book and Art Emporium, is a corporation incorporated under the laws of British Columbia. The individual appellants are the directors and controlling shareholders of Little Sisters. The corporate appellant has a business interest and the individuals combine both business and personal interests. As all of the interests necessary to constitute this appeal are represented, there is no need to disentangle their specific corporate and individual interests, and I will generally refer to them collectively as “the appellants”.
5 Since its establishment in 1983, Little Sisters has imported 80 to 90 percent of its erotica from the United States. For the last 15 years it has been a reluctant participant in a running battle with Canada Customs. Its foreign suppliers typically insisted on payment within 30 days, yet administrative delays at Customs frequently held up shipments until months after they were paid for, and then, not infrequently, materials were seized or ordered returned to sender. In the usual course the appellants were given no reason for the seizure or return. Some of the suppliers refused to make further shipments.
6 In very detailed and comprehensive reasons, the trial judge made a number of key findings of fact in the appellants' favour. He identified very high error rates in determinations respecting Little Sisters’ imports at all levels of the Customs review procedure. He held that “[s]uch high rates of error indicate more than mere differences of opinion and suggest systemic causes” ((1996), 18 B.C.L.R. (3d) 241, at para. 100). He identified several reasons for these high error rates, including the minimal resources given to Customs officials combined with inadequate training in obscenity law ranging from a few hours in the case of inspectors to a few days for higher ranks. Specifically, he found (at para. 116) that:
Many publications, particularly books, are ruled obscene without adequate evidence. This highlights perhaps the most serious defect in the present administration of code 9956(a), that is, that classifying officers are neither adequately trained to make decisions on obscenity nor are they routinely provided with the time and the evidence necessary to make such decisions. There is no formal procedure for placing evidence of artistic or literary merit before the classifying officers. Consequently, many publications are prohibited entry into Canada that would likely not be found to be obscene if full evidence were considered by officers properly trained to weigh and evaluate that evidence.
7 The lack of available resources was of particular concern to the trial judge, who found that: “The inference to be drawn is that Tariff Administrators in the Prohibited Importations Directorate do not have sufficient time available to consistently do a proper job. The problem is even more significant at the regional levels where customs officers encounter much higher volumes of goods and have far more expansive duties” (para. 81).
8 The trial judge found that the administration of the Customs scheme has a significantly differential impact on small or specialty publishers, importers and bookstores. He specifically found (at para. 105) that:
Customs' administration of code 9956(a) results in arbitrary consequences. Traditional bookstores do not have similar encounters with Canada Customs. Helen Hager, who operated a general‑interest bookstore in Vancouver for many years, did not know that Customs inspected books for obscenity until she left that business and opened a store catering to women, in which she stocked some material for lesbians. She had two shipments from Inland [a book distributor] interrupted at t