Pubdate: Mon, 08 Apr 2002
Source: Globe and Mail (Canada)
Page: A6
Copyright: 2002, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin
Note: Part 1: http://www.mapinc.org/drugnews/v02/n669/a09.html?10714

Series: Part 2 Of 4

'THIS CASE . . . IS OUT OF CONTROL'

After Spending $500,000 And 10 Years Fighting The Government, The Owners Of 
A Gay Bookstore In B.C. Would Do It Again. 'Customs Was Taking So Much Of 
Our Material That We Were Going Out Of Business,' Said Janine Fuller On Her 
Battle To Stop Customs Seizing The Shop's Material. Did They Win? Sort Of. 
Kirk Makin Reports

VANCOUVER -- Jim Deva and Janine Fuller reached the point of no return one 
day when a Customs Canada official roughly threw a bag of their imported 
books and magazines into their stairwell.

The material, bound for the lesbian and gay bookstore they operated, Little 
Sisters Book and Art Emporium, had been missing for months while Customs 
agents rifled through it in search of pornographic imagery. It arrived back 
damaged.

"What outraged us so much was the total lack of respect," Mr. Deva said in 
an interview. "It showed us how malicious they were. It was a horrible, 
horrible feeling."

So began a Charter of Rights and Freedoms challenge now known simply as the 
Little Sisters case. The case took 10 years to run a course through the 
courts, ending a year ago with a ruling so perplexing that Mr. Deva and Ms. 
Fuller still cannot agree on what it means.

The case was undoubtedly the sort of challenge former prime minister Pierre 
Trudeau envisioned 20 years ago, when he changed Canadian society forever 
with a Charter of Rights that individuals and groups could use to thwart 
the power of the majority. At the same time, Little Sisters provides case 
history -- not to mention, a cautionary tale -- of the triumphs and trauma 
awaiting those who use the Charter to battle laws they believe are unfair 
or discriminatory.

The proprietors of the 19-year-old bookstore describe dual motives in 
taking on Customs Canada. On the one hand, they wanted to strike a blow for 
a gay community that had long felt singled out for victimization by 
Customs. Little Sisters was also going broke.

"Customs was taking so much of our material that we were going out of 
business," Ms. Fuller said. "We were having to explain to people why half 
of our bookshelves were empty."

Charter fights are notoriously expensive and psychologically draining, so 
their first task was to find allies. Little Sisters quickly hooked up with 
the B.C. Civil Liberties Association, which had been spoiling for a fight 
with Customs over its arbitrary moral judgments.

"We saw it as an opportunity to attack the constitutionality of the 
obscenity provisions themselves," recalled John Dixon, president of the 
association. "Our view is free human beings spend 90 per cent of their sex 
lives in their imagination."

The case looked strong. One of the items seized -- The Advocate 
newsmagazine -- contained little sexual content, and had probably been 
confiscated in error. It would provide an excellent example of the 
arbitrary approach taken by Customs censors.

However, it was not to be.

"Customs Canada conceded the case going up the courthouse stairs," Mr. Deva 
said. "We got about $350 damages because they had burned our issues of The 
Advocate."

Little Sisters had learned a very costly lesson. Government agencies have 
endless resources, and they are willing to use them to beat their opponents 
into the ground. "You have to pick ground that they have to fight on, 
otherwise the government will simply let you spend all your money and then 
concede," Mr. Dixon said.

With imported material continuing to disappear into the maw of the Customs 
inspection system, Little Sisters decided to challenge the Customs Act 
head-on as a violation of the right to free expression and equality.

Ms. Fuller soon found herself spending most her time travelling around 
Canada and the United States, raising support and money for a battle that 
would ultimately consume close to $500,000. "It wasn't about huge sums of 
money," she said. "It was about people giving $10 at a movie screening."

Ms. Fuller said the Crown's delaying tactics unexpectedly played into her 
hands. "People got more and more offended at this small bookstore having to 
take on a government with these endless purse strings."

Another stumbling block involved the complex world of feminist politics. In 
1992, feminists had won a landmark battle in the Supreme Court of Canada's 
Butler ruling, which defined obscenity as sexually explicit material 
involving the use of violence or children, or which depicted sexual 
activity through degrading and dehumanizing images.

The ruling closely mirrored legal arguments the court had heard from the 
Women's Legal Education and Action Fund, a collective that arrives at 
litigation strategies after extensive and sometimes-arduous consultation 
with its members.

Customs quickly used the Butler ruling to go after sexual material 
preferred by gays and lesbians. Many videos and books featuring the use of 
bondage, nipple clamps and whippings -- which Customs saw as degrading and 
dehumanizing violence -- were seized.

Some observers saw this is as precisely the type of exploitive, worthless 
material the Butler net had been set to catch. But to a vocal portion of 
the women's movement -- lesbians -- the Butler ruling had come back to haunt.

"What was terribly disappointing was that we didn't get Little Sisters to 
the Supreme Court ahead of Butler in the first place," Mr. Dixon remarked. 
"The court had been completely captivated by the LEAF arguments in Butler.

"It was a total disaster. One of the things we predicted about Butler was 
that Customs would end up going after gay material. LEAF ended up being a 
bit embarrassed."

The sensitive political situation was resolved when LEAF prepared a new 
brief for the Little Sisters case. It deftly argued that lesbians were a 
distinct minority whose self-identity was based partly in possessing their 
own, unique brand of sexual material -- material that may include 
portrayals of violence or degradation.

More trial delays ensued, taking a miserable toll. Some defence witnesses 
who had flown long distances to Vancouver on non-refundable airline tickets 
were foiled by adjournments requested by Customs. Several who were 
HIV-positive died before they could testify.

"The Crown kept saying: 'This case has grown too huge, and should be thrown 
out; it is out of control,' " Mr. Deva recalled.

But the trial finally began in 1994. It lasted 40 days, with a prominent 
constitutional lawyer, Joe Arvay, arguing for Little Sisters.

"He involved us totally," Mr. Deva said. "We got to call the shots because 
we were taking financial responsibility for the entire case. What made the 
trial so interesting was seeing all the behind-the-scenes strategizing."

This strategizing included rounding up the most effective witnesses 
possible, as well as embarking on frantic searches for material needed to 
illustrate a particular point in court. "We wanted to tell our story," Mr. 
Deva said. "Each of us has to make sure our freedoms are not violated. This 
isn't Afghanistan."

In his judgment, the trial judge rejected the idea that the Customs Act was 
inherently discriminatory. However, he did agree that its procedures had 
been abused and used arbitrarily against Little Sisters.

On appeal, the B.C. Court of Appeal split 2-1 against Little Sisters. The 
stage was set for a final showdown in the Supreme Court.

Mr. Deva, Ms. Fuller and several co-workers travelled to Ottawa for the 
hearing, posing for pictures on the courthouse steps with their own lawyers 
and a dozen more who represented legal intervenors supporting the Little 
Sisters legal position.

"It was amazing to think we had gone from a little bag of books thrown on 
the stairs to the Supreme Court of Canada," Mr. Deva said.

When the ruling was released on Dec. 14, 2000, the media were primed for 
Charter history. What they got instead was a confusingly mixed bag.

The Supreme Court majority had refused to either tinker with the Butler 
ruling or strike down the Customs Act provisions allowing inspectors to 
seize material they felt was obscene.

At the same time, the Court flayed Customs for its arbitrary and 
disrespectful methods and said it was unfair to expect a bookstore to bear 
the burden of proving that its imports were not obscene. In future, the 
onus would be on Customs to show that the material was obscene.

Leading critics of the Little Sisters challenge -- such as Osgoode Hall law 
professor Janine Benedet -- were quick to applaud the court for refusing to 
be bulldozed. "Those of us who understand that pornography is part of the 
machinery of sex inequality should refuse to play a game where the rules 
keep changing," she wrote later in a legal journal.

"At its root, the debate in Little Sisters boils down to the consistent 
refusal of pornography's supporters to either accept or care that 
pornography is harmful," she said. "Little Sisters lost its appeal before 
the court because no amount of evidence of errors and sheer obstinance on 
the part of Customs could erase this evidence of harm."

Mr. Dixon said he was surprised by the court's inflexibility. "We had hoped 
to embarrass the court a bit about the inanity of Butler, but they didn't 
budge," he said. "They insisted; they upheld; they re-emphasized the 
greatness of Butler! That really surprised me."

He said that in response to LEAF's tacit admission that it "had led the 
court a bit astray" in Butler, the judges effectively thundered back: "What 
do you mean! You told us it was a great idea!"

Since the ruling, Mr. Dixon said he has grown more philosophical.

"I suppose it is silly to think that you bustle into court and change 
society in a stroke," he said. "It is the work of generations. If you do it 
right, you prepare the ground for future developments. You have to think 
not just about winning, but about the case law you leave behind."

At Little Sisters, the day of the ruling created a surreal scene. Even as 
legal analysts across the country pronounced the challenge a relative 
failure, an exultant Ms. Fuller was telling a jostling media horde that 
they had won a stirring victory.

Ms. Fuller says now that she was blinded to some of the negative aspects of 
the judgment by her joy at seeing Customs publicly shamed for its arbitrary 
tactics.

"On that day, at that moment, I felt the ruling had really vindicated our 
community," she said. "But obviously, the court didn't go far enough."

Certainly not far enough for Mr. Deva. He recalls frantically scanning the 
ruling that day on the Internet. "I kept looking for the pony, but I never 
did find it. It was really tough at the celebration party that night. I 
didn't want to bring people down. I ended up going through a three-month 
depression."

Little Sisters is more stable financially now, and Customs cannot seize its 
imports unless it it prepared to defend its actions in court. Mr. Deva said 
he has found a measure of peace.

"The way I look at it, Customs Canada has to respect us now," he said. 
"They will never again take our books and throw them on the stairs. Without 
the Charter, that would never have happened."

But he added that a new set of guidelines Customs has devised is "really, 
really repressive." On principle, he said wearily, they cannot be allowed 
to stand. "We have been looking for a vehicle to challenge them." In the 
series

Saturday: Winners and losers who have emerged after hundreds and hundreds 
of challenged

Today: Anatomy of a Charter case. A small independent bookstore in B.C. 
takes on the government.

Tomorrow: The Supreme Court judges and their so-called grab for power.

Wednesday: Is the Charter Pierre Trudeau's greatest gift to Canadians?
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MAP posted-by: Beth