Little Sisters Book and Art Emporium v. Canada (Minister of Justice) (No. 1)

December 14, 2000

Little Sisters, a bookstore in Vancouver, caters to a lesbian and gay clientele. Books and magazines shipped to Little Sisters from suppliers in the United States were frequently detained for lengthy periods by Canada Customs and in some cases were prohibited on the grounds that they were obscene. However, the decisions made by Customs regarding detention and prohibition made little sense. Evidence indicated that Little Sisters was long been targeted by Canada Customs for differential treatment.

For instance, some of the books detained or prohibited by Canada Customs had previously been ruled admissible when imported by Little Sisters on other occasions, or had been successfully imported by other bookstores. Canada Customs apparently had no qualms about Madonna’s book, “Sex”, when it was imported by other bookstores throughout the province, but detained Little Sisters’ shipment of the same book. Moreover, many of the books Canada Customs prohibited as obscene when Little Sisters attempted to import them could be found not only in other bookstores, but also in the Vancouver Public Library.

After years of this arbitrary and discriminatory treatment, Little Sisters and the B.C. Civil Liberties Association challenged the constitutionality of certain provisions of the Customs Act on the basis that they violated Little Sisters’ freedom of expression and equality rights under the Canadian Charter of Rights and Freedoms. A trial judge agreed that the legislation was discriminatory but held that it was justified under s. 1 of the Charter. The B.C. Court of Appeal upheld that decision. Little Sisters appealed to the Supreme Court of Canada. Egale Canada and the Canadian Conference of the Arts intervened in support of Little Sisters.

On December 14, 2000, the Supreme Court of Canada allowed Little Sisters’ appeal, in part. It held that the reverse onus provisions of the Customs Act, which required book importers to prove that a publication was not obscene, was unconstitutional. It also recognized that Little Sisters had been singled out by Canada Customs for discriminatory treatment.

However, the Court held that the discrimination against Little Sisters did not result from the Customs Act itself, but from the people administering the Act. The Court confirmed that Customs agents have no right to seize material that does not come within the narrow definition of pornography that Parliament has criminalized as obscene, but held that the basic scheme of the Act, with the exception of the reverse onus provisions, was a reasonable limit on the right to freedom of expression.

Click here to read the Supreme Court’s decision.

Egale Canada and the Canadian Conference of the Arts intervened in support of Little Sisters.

Lawyers

Cynthia Petersen, Ethan Poskanzer

Practice Areas

Appeals & Judicial Review, Constitutional Law