Customs Censorship and the Charter: The Little Sisters Case

Little Sisters Book and Art Emporium is Vancouver's only bookstore specializing in gay and lesbian literature. Little Sisters argued that the provisions of the Customs Act and Customs Tariff that together empower officials to stop obscene representations at the border constitute unreasonable restrictions on freedom of expression and equality rights protected by section 2(b) and section 15 of the Charter. In our view, Justice Smith's findings on the importance of sexual expression to the gay and lesbian community, and on the disproportionate impact of Customs censorship on gay and lesbian materials, ought to have led to the conclusion that the legislation in its effects violates section 15. On the question of whether the violation of section 2(b) was a reasonable limit, we believe that Smith J. ought to have exercised greater caution in assuming that the reasoning in Butler could be extended, without hesitation or problematization, to gay and lesbian, sexual imagery. Many of the publications suppressed by Customs are integral to the cultural and political identity of a disadvantaged and stigmatized sexual minority. Thus their distribution fosters goals that lie at the heart of the Charter's protection of expression and equality interests in sections 2(b) and 15, respectively. For this reason, we believe that Smith J. erred in not holding the government to a rigourous standard of justification at the section 1 stage of the analysis. We have also taken issue with Smith J.'s failure to implicate the procedural deficiencies of the Customs Act in the Charter violations identified by the evidence. In our view, at the very least, a system of administrative censorship cannot constitute a minimal impairment of Charter rights if it makes little or no attempt to ensure that decisions will be made expeditiously by expert decision-makers who have the ability to receive evidence of a publication's merits.

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