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PORNOGRAPHY ADVOCATES EXPERIENCE A SETBACK

Once in a while, the Supreme Court of Canada does something right. It did so in its decision, handed down on January 19, 2007, in which it refused the application by a Vancouver homosexual/lesbian bookstore, called Little Sisters, for advance funding from the government to cover the costs of its court challenge against Canada Customs.

The Little Sisters bookstore case against Canada Customs began in 2001 after border guards seized books and comics destined for the bookstore in which sexual sadism, masochism and bondage were depicted. The bookstore claimed the seizure was discrimination against them since these activities were part of their culture and sexuality. They argued that a previous Supreme Court of Canada ruling in 2000 had ordered Customs to refrain from targeting this homosexual bookstore and that customs had ignored this ruling. In fact, however, after the court ruling, Customs had prepared a new set of guidelines to help its agents to properly identify pornography. These guidelines provided that anal and vaginal fisting was obscene, as well as sexual activities such as sadism, masochism and bondage that were depicted in the seized material.

Little Sisters realized it could not afford to counter the government's deep pockets to continue this fight against Customs. It therefore applied to the British Columbia Supreme Court for financial help in the form of advance costs to pay for its case. Their application for funding was based on a 2003 legal precedent in which an aboriginal group located in Okanagan, British Columbia, was given funding to cover the costs of taking the government to court over its land claims. The British Columbia Supreme Court did initially grant the Little Sisters Bookstore advance costs in this case (see Reality Sept/Oct, 2004, p.11 "Our Courts Mocking Justice"), based on the aboriginal precedent. The British Columbia Court of Appeal, however, overturned this decision and its judgement was supported by the Supreme Court of Canada in January. The Supreme Court of Canada reached this conclusion, despite the fact that the homosexual lobby group EGALE had intervened in the case on behalf of the homosexual community. EGALE's intervention was funded by the now defunct Court Challenges Programme.

The Supreme Court of Canada decided that the bookstore's allegations were too limited in scope to extend government funding to support its legal challenge. Mr. Justice Michel Bastarache and Mr. Justice Louis LeBel wrote the majority decision in this case in which they stated:

Public interest advance costs orders must be granted with caution, as a last resort, in circumstances where their necessity is clearly established. The standard is a high one: only the 'rare and exceptional' case is special enough to warrant an advance costs award, they ruled. In the present case, the issues raised do not transcend the litigant's individual interests.

Madam Justice Beverley McLachlin stated:

If advanced costs are justified here, they will be justified in a host of other cases.

That, in a nutshell, is probably why the court refused the advance funding. If the court had not done so, it would have been besieged from all sides by other hopeful litigants for funding for their cases. Thus, even if the court were sympathetic to the homosexual bookstore's allegations of discrimination by Canada Customs, it could not support its request for funding for very real practical considerations. This Supreme Court of Canada ruling, coupled with the cancellation by the Conservatives of the Court Challenges Programme, the customary source of left wing legal challenges, means that Little Sisters Bookstore can no longer access taxpayers' money to pursue its claims.

"We have to declare defeat," said one of the co-owners, Jim Deva. Perhaps it did not occur to them to raise the money themselves, as REAL Women and all the other pro-family people have done in their court challenges over the years. Maybe, too, there is little support for the pornographic culture that the homosexuals/lesbians promote.

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