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Little Sisters Book and Art Emporium

The Supreme Court: "Little Sisters Book and Art Emporium" case


The detainment of homosexual erotic material belonging to Little Sisters Book and Art Emporium resulted in the eventual landmark obscenity ruling in the Canadian Supreme Court. This brief paper outlines the main issues of the case, the effect of the ruling on the power of Canada Customs, its influence on the legal definition of obscenity, and what the ruling reveals about Canadian values, group conflict and social control.

There were four main issues in the case of Little Sisters Book and Art Emporium v. Canada (Maple Leaf Web 2005). The first issue was whether the Customs Act violated section 2(b) of the Charter of Rights and Freedoms, which guarantees freedom of expression. Another issue was whether the violation of section 2(b), if it was indeed violated, was justifiable under section 1 of the Charter, which states that freedom of expression may be subject to reasonable limitations in a free and democratic society. The third issue was whether the Customs Act violated section 15 of the Charter, which guarantees equality before and under the law. The final issue was whether the violation of section 15, if it was indeed violated, was justifiable under section 1 of the Charter.

The Supreme Court said that Canada Customs has the power to detain expressive material at the border if the material is believed to be obscene according to section 163(8) of the Canadian Criminal Code (Ryder 2001:208). While the Court acknowledged that Canada Customs discriminated against Little Sisters Book and Art Emporium by targeting homosexual erotic material, the Court largely upheld the Customs legislation (Maple Leaf Web 2005). In an attempt to limit excessive censorship by Canada Customs, the Supreme Court ruled that the onus should be on the Crown to prove obscenity rather than on the importer of the material, as section 152(3) of the Customs Act states (Ryder 2001:224). In addition, the Court ruled that the Crown now has a thirty day time limit to prove that imported materials are obscene (Evans 2005; Ryder 2001:226).

This case did not have any influence on the legal definition of obscenity. The Supreme Court dismissed the claim made by the defense that the interpretation of obscenity in the Canadian Criminal Code discriminated against gay and lesbian sexual expression (Evans 2005). The defense had argued that a separate community standard should be applied to homosexual erotic material, as certain types of homosexual sexual practices (e.g. sadomasochism) are typically misinterpreted outside of the gay and lesbian community (Evans 2005; Supreme Court of Canada 2000). However, the Supreme Court ruled that the Butler test, which defines obscenity as material that inflicts substantial social harm according to a community standard of tolerance (Evans 2005; Ryder 2001), can be applied equally to both heterosexual and homosexual erotic material.

In my opinion, the Court's decision seems to contradict Canadian values. I believe that Canadians value their fundamental freedoms, particularly their freedom of expression, very much and find it extremely upsetting when these freedoms are restricted. It seems to me that many Canadians would share Ryder's (2001) disappointment with the Supreme Court's decision to uphold the Customs legislation when it is clear that Canada Customs is excessively censoring imported material (208). While shifting the onus from the importer to the Crown to prove obscenity is a step toward curbing excessive censorship, many Canadians would probably agree that there needs to be change in Customs legislation in order to prevent the unjust targeting of certain material (e.g. homosexual erotica) by Canada Customs.

This case is an example of group conflict and social control, as it deals with erotic material belonging to a minority group being censored by the government. Gays and lesbians share a social identity, values, and interests that set them apart from the dominant Canadian society. The disproportionate detainment of homosexual erotic material by Canada Customs illustrates the social conflict between the homosexual minority and the heterosexual majority. By detaining "obscene" imported material, the expression of attitudes and behaviours that are perceived as indecent, immoral, and harmful by the majority (e.g. sadomasochism, anal sex) can be censored. The Supreme Court's failure to amend the Customs legislation or to acknowledge substantive differences between the community standards of the heterosexual and homosexual communities further demonstrates how the dominant social class can control the sexual expression of the minority class through the law.

In sum, the Supreme Court ruled that while the detainment of homosexual erotic material in the case of Little Sisters Book and Art Emporium v. Canada violated the freedom of expression guaranteed in section 2(b) of the Charter, the violation was justifiable under section 1. The ruling was still a small victory for the homosexuals and heterosexuals alike, as the onus is now on the Crown to prove that imported material is obscene. Overall, the Supreme Court's ruling in this case reflects the group conflicts in Canadian society and the attempt by the dominant class to suppress the sexual expression of gays and lesbians through censorship.



References

Evans, Sarah R. 2005. "Under Attack: An Update on Censorship and Freedom of Expression in Canada". Writer's Block: The Web Resource for Communication Professionals, Retrieved February 5, 2006
Maple Leaf Web. 2005. "Case Summary: Little Sisters Book and Art Emporium v. Canada (Minister of Justice)". Mapleleafweb.ca, Retrieved February 5, 2006

Ryder, Bruce. 2001. "The Little Sisters Case, Administrative Censorship, and Obscenity Law" Osgoode Hall Law Journal, 39:1. Retrieved February 5, 2006 Available: Hein Online, Law Journal Library.
Supreme Court of Canada, The. 2000. "Little Sisters Book and Art Emporium v. Canada (Minister of Justice)" LexUM, Retrieved February 5, 2006

Posted by: Steve M.

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