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Pornography and Gay Bookstores

For fifteen years, the Little Sisters Bookstore in Vancouver has been waging a war against Canada Customs, claiming that the store has been targeted by the agency which has repeatedly seized many of their books at the border, even though the books are not pornographic.

The Little Sisters Bookstore carries an inventory catering to the large homosexual and lesbian community in Vancouver. Since the bookstore began operations in 1983, between 80% to 90% of its erotic material has been imported from the U.S. since so little is produced in Canada. As a result, Canada Customs has been kept busy monitoring the import activities of the Little Sisters Bookstore.

Under Canada's administrative scheme, which was set up to prevent Canada from being inundated with pornographic material from abroad, Customs officials are authorized, under the Customs Act, to seize any questionable material and keep it for up to 30 days before rendering a decision as to whether it is obscene (pornographic) material, prohibited under Section 163 of the Criminal Code. Evidence indicated, however, that because of scarce personnel and financial resources, Customs failed to make its decisions within the 30-day period and sometimes reserved the decision for up to one year, whether the material was pornographic or not.

In its court case, the Little Sisters Bookstore argued that pornographic material plays an essential role in homosexual and lesbian communities and that the erotic material specific to their community should be exempt from the obscenity section of the Criminal Code. It was supported in this argument by the legal arm of the feminist movement, LEAF (Women's Legal Education and Action Fund) which acted as an intervener in the case. LEAF, put forward that sado-masochism has performed an emancipatory role in gay and lesbian culture and should, therefore, be judged by different standards than those applied to the heterosexual culture.

It is interesting, however, that a New York based feminist organisation called Equality Now also intervened in this case and took the opposite position. It argued that gay and lesbian individuals have as much right as their heterosexual counterparts to be protected from obscenity - a clear difference of opinion within the feminist movement. The B.C. Civil Liberties Association also intervened in the case arguing that Canada Customs was denying Canadians' freedom of expression by stopping books at the border and that it should be stripped of its censorship role. The Supreme Court of Canada ruled in 6 to 3 decision as follows:

- The Canadian Criminal Code provision prohibiting pornographic material (S.163) was constitutional.
- The scheme established by Parliament, whereby Customs would regulate material at the border was valid. However, the Court found that Canadian Customs was guilty of overzealous censorship in regard to material designated for Little Sisters Bookstore, which actions the court characterized as "oppressive and dismissive."
- The definition of obscenity in the Criminal Code operates without distinction between homosexual and heterosexual erotica and the homosexual/lesbian community cannot be awarded special treatment or rights to import pornography which is denied to the heterosexual community.
- Canada Customs is prohibited from holding material longer than 30 days for review to determine whether it is pornographic. Further, the onus or burden of proof to show that the material is pornographic (obscene) lies with the Crown, not the importer of the material. Prior to this case, importers such as Little Sisters Bookstore had to prove that the material was not pornographic. It is established procedure, however, that the Crown must prove, beyond a reasonable doubt, that a crime has been committed. In the case of pornography, however, the onus was reversed and placed on the accused (the importer of the material) which had to prove innocence, i.e. that the seized material was not pornographic. The Supreme Court ruled that this was wrong and unfair to the importers (Little Sister Bookstore).
- The Court awarded the Little Sister Bookstore its total legal costs because it was "targeted" by Customs Canada and treated harshly and unfairly. This translates to hundreds of thousands of dollars to be paid by the Crown (e.g. the taxpayer).

Conclusion
Biased newspaper reports, as usual, put a "spin" on the Court decision, declaring it was a great victory for the homosexual community. In fact, it was not.

1. The homosexual community did not succeed in having the pornography law struck down.

2. The Court did not regard the erotic material of homosexuals and lesbians as being so essential to their sexuality that it was exempt from the prohibitions of the pornography in the Criminal Code.

3. The Court upheld Canada Customs regulation of material crossing the border. If the Court had decided otherwise, Canada would be flooded with pornographic material of all sorts, which would be almost impossible to control.

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