Little Sisters v. Canada Customs involved a gay and lesbian bookstore in Vancouver which for over ten years had had most of its shipments stopped by Customs agents at the Canada-U.S. border. The bookstore launched a constitutional challenge to its treatment at the hands of Canada Customs on the basis of freedom of expression and the right to equality without discrimination. The trial judge held that shipments of materials to Little Sisters, some of which were sexually explicit, were systematically targeted by Customs agents as “obscene”. Shipments of identical books and magazines cleared Customs without delay when ordered by other bookstores. Canada Customs detained the books on the grounds that they were “obscene” within the meaning of s.163(8) of the Criminal Code.
LEAF intervened in the case when it was heard in March, 2000. This case was important to LEAF because it involved discrimination against lesbians and required analysis of the meaning of obscenity law. LEAF had also intervened in R. v. Butler (1992) in which the Supreme Court held that criminal laws prohibiting obscenity were constitutional provided that “obscene materials” were understood as materials which cause harm to women and other vulnerable groups.
The Supreme Court unanimously agreed that the actions of Canada Customs officials were discriminatory against Little Sisters. “[The] adverse treatment meted out by Canada Customs to the appellants and through them to Vancouver’s gay and lesbian community violated the appellants’ legitimate sense of self-worth and human dignity,” wrote Justice Ian Binnie. “When Customs officials prohibit and thereby censor lawful gay and lesbian erotica, they are making a statement about gay and lesbian culture, and the statement was reasonably interpreted by the appellants as demeaning gay and lesbian values. The message was that their concerns were less worthy of attention and respect than those of their heterosexual counterparts.”
The court also upheld most of the Customs Regime that had been challenged as discriminatory against importers of gay and lesbian materials. The Court did strike down one significant provision that imposed a “reverse onus” on importers that required them to prove that seized materials were not “obscene”.
The Supreme Court was extremely critical of Canada Customs’ behaviour, noting: the targeting of Little Sisters; the failure by customs officials to review materials in a timely way; inadequate training of officials; and failure to develop workable procedures to evaluate books and other written texts.