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(Ottawa) The Supreme Court of Canada reserved judgment Wednesday in the case of a Vancouver gay and lesbian bookstore that wants Ottawa to pick up the legal tab for a lawsuit against Canada Customs.
The Little Sisters bookstore and art emporium won a partial victory six years ago over the way Customs handles imports of gay and lesbian books and magazines. But it says Customs is back to its same old ways and wants a court review of how the agency declares works to be obscene and bans their importation.
But the bookstore can't possibly finance the case itself, lawyer Joseph Avray told the justices.
The government says it might cost up to $2 million.
Avray said his law firm alone is on the hook for $200,000 for work already done.
``They are in no position to repay that.''
The suit says Customs discriminates against gay and lesbian material, holding up books at the border and banning some completely in arbitrary decisions.
The suit involves two comic books and two other books, but lawyers said thousands of other titles, as well as videos and DVDs, have been caught in the Customs net, with a single, mid-level bureaucrat as the final arbiter of obscenity.
A judge in the British Columbia Supreme Court ruled that the government should pay costs up front for the suit, saying the case fit the requirements for such aid laid out in an earlier land-claims case from an impoverished native band.
She said Little Sisters addresses a matter of great public interest.
The British Columbia Court of Appeal disagreed, saying there was no major public interest at stake.
Brian McLaughlin, a lawyer for Customs, said the case is a minor one, even to the bookstore, with four books representing only a tiny fraction of its business.
He said there is no great risk to the national good if the case isn't heard.
``There must be a public benefit commensurate with the public expense,'' he said.
Avray, however, said this could be one of the biggest Charter cases of the decade.
``If Customs bans one book improperly, that should alarm all Canadians,'' he said. ``If they are banning thousands and thousands of books or video tapes or DVDs improperly and therefore trouncing on the constitutional rights of Canadians that is something that should alarm Canadians.
``That's something that should cause this court to consider this case to be of exceptional importance.''
A lawyer for Egale, which is an intervenor in the case, argued that the issue is central to the gay and lesbian community.
Government lawyers countered that by saying if it was so important, then why hasn't that community banded together to pay the bill?
Jim Deva, co-owner of Little Sisters, said outside the court that fundraisers have produced $30,000 to $40,000 for this case and $200,000 for anti-censorship campaigns in general.
``That's a lot of money,'' he said. ``We're a beleaguered community, we're under attack.
``We're back defending marriage again, for God's sake. We have to take our money and use it very carefully.''
The arguments drew pointed questions from the justices for both sides, which Avray saw as a good thing.
``I think they're thinking,'' he said after the hearing. ``I think they understand that this is a complex question.
``As they are wont to do, they like to explore it from all sides. They like to have their questions answered, they like to be helped with what's troubling them.
``They posed tough questions to all counsel.''
He said the suit would never have been filed if Customs had followed the last ruling and improved the way it makes obscenity decisions.
``The court's order last time around simply didn't have enough teeth and we're here to get a court order with plenty of teeth.''
by John Ward, Canadian Press
The Little Sisters bookstore and art emporium won a partial victory six years ago over the way Customs handles imports of gay and lesbian books and magazines. But it says Customs is back to its same old ways and wants a court review of how the agency declares works to be obscene and bans their importation.
But the bookstore can't possibly finance the case itself, lawyer Joseph Avray told the justices.
The government says it might cost up to $2 million.
Avray said his law firm alone is on the hook for $200,000 for work already done.
``They are in no position to repay that.''
The suit says Customs discriminates against gay and lesbian material, holding up books at the border and banning some completely in arbitrary decisions.
The suit involves two comic books and two other books, but lawyers said thousands of other titles, as well as videos and DVDs, have been caught in the Customs net, with a single, mid-level bureaucrat as the final arbiter of obscenity.
A judge in the British Columbia Supreme Court ruled that the government should pay costs up front for the suit, saying the case fit the requirements for such aid laid out in an earlier land-claims case from an impoverished native band.
She said Little Sisters addresses a matter of great public interest.
The British Columbia Court of Appeal disagreed, saying there was no major public interest at stake.
Brian McLaughlin, a lawyer for Customs, said the case is a minor one, even to the bookstore, with four books representing only a tiny fraction of its business.
He said there is no great risk to the national good if the case isn't heard.
``There must be a public benefit commensurate with the public expense,'' he said.
Avray, however, said this could be one of the biggest Charter cases of the decade.
``If Customs bans one book improperly, that should alarm all Canadians,'' he said. ``If they are banning thousands and thousands of books or video tapes or DVDs improperly and therefore trouncing on the constitutional rights of Canadians that is something that should alarm Canadians.
``That's something that should cause this court to consider this case to be of exceptional importance.''
A lawyer for Egale, which is an intervenor in the case, argued that the issue is central to the gay and lesbian community.
Government lawyers countered that by saying if it was so important, then why hasn't that community banded together to pay the bill?
Jim Deva, co-owner of Little Sisters, said outside the court that fundraisers have produced $30,000 to $40,000 for this case and $200,000 for anti-censorship campaigns in general.
``That's a lot of money,'' he said. ``We're a beleaguered community, we're under attack.
``We're back defending marriage again, for God's sake. We have to take our money and use it very carefully.''
The arguments drew pointed questions from the justices for both sides, which Avray saw as a good thing.
``I think they're thinking,'' he said after the hearing. ``I think they understand that this is a complex question.
``As they are wont to do, they like to explore it from all sides. They like to have their questions answered, they like to be helped with what's troubling them.
``They posed tough questions to all counsel.''
He said the suit would never have been filed if Customs had followed the last ruling and improved the way it makes obscenity decisions.
``The court's order last time around simply didn't have enough teeth and we're here to get a court order with plenty of teeth.''
by John Ward, Canadian Press
