INFORMATION ON LITTLE SISTERS COURT CHALLENGE

Supreme Court rules against Little Sister's

Globe and Mail
January 19, 2021
By Kirk Makin

The Supreme Court of Canada has clamped down on a funding lifeline for would-be litigants who lack the resources to mount important legal challenges.

In a 7-2 ruling, the Court refused to order advance funding to a Vancouver gay and lesbian bookstore, saying the challenge to Canada Customs is too narrow and insignificant to the broad public interest to justify such an unusual move.

"Public interest advance costs orders must be granted with caution, as a last resort, in circumstances where their necessity is clearly established," said reasons supplied by five of the majority judges - Mr. Justice Michel Bastarache, Mr. Justice Louis LeBel, Madame Justice Marie Deschamps, Madame Justice Rosalie Abella and Mr. Justice Marshall Rothstein.

Chief Justice Beverley McLachlin and Madam Justice Louise Charron agreed with the majority, but supplied separate reasons.

"The standard is a high one," Mr. Justice Bastarache and Mr. Justice LeBel wrote for the five-judge group. They said that only "the rare and exceptional" case is special enough to warrant an advance costs award.

The immediate loser in today's decision was a struggling Vancouver gay and lesbian bookstore - Little Sister's Book and Art Emporium - that is engaged in a protracted battle with Customs over four books it was prohibited from selling on the basis of obscenity.

Little Sister's had asked the Supreme Court to restore a funding lifeline - granted by a trial judge and then severed by the British Columbia Court of Appeal - that would have let it proceed with its battle to call Customs to account for the way it operates.

In the broader picture, however, a wide spectrum of groups had seen the decision as potentially reaching far beyond the issue of censorship. They saw it as potentially offering a vital leg up to any litigant who was attempting to take an important issue to court yet lacked the financial backing.

"This case shows that the fundamental need for the program is to allow the vast majority of Canadians who can not afford to go to court to uphold their Charter rights to take on bureaucracies who may ignore their rights even when called upon to do so by the courts," University of Ottawa law professor Errol Mendes said in an interview. "The decision can also be said to illustrate how the most vulnerable minority groups in our society are now out in the cold, both on the access to justice front and now even the rule of law front"

Several intervenors, ranging from the Canadian Bar Association to the Sierra Legal Defence Fund, had weighed in on the case with their views on the funding issue.

Little Sister's specific allegation in the case was that Customs had been disobeying a order the Supreme Court issued several years ago that it not ban material in an arbitrary and discriminatory manner.

The ruling all but chokes any possibility of advance funding in future cases, University of Toronto Law Professor Brenda Cossman said. "In order to get advance costs, you have to show that your case is unbelievably, totally special," she said. "If this case wasn't exceptional, I don't know what is.

"This was an action involving an unrelenting censor with whom Little Sisters had been battling for 12 years - and they were operating in defiance of a Supreme Court order," Prof. Cossman said. "If Little Sisters doesn't challenge them, no one will."

In its 2000 decision, the Supreme Court had ruled that customs officials were harassing the bookstore by seizing its books and videos. It said Canada Customs has the right to censor material, but that it was doing so unfairly and needed to change its procedures.

Little Sisters maintains the department has not changed its practices. The four publications at the heart of the fight were two series of Meatmen comic books, and two books that depict bondage and sadomasochism.

In a vigorous dissent, Mr. Justice Ian Binnie and Mr. Justice Morris Fish disagreed with the majority today. They said that the ramifications of the first Little Sister's case actually "go to the heart and soul of Little Sister's present application."

"The present proceeding is not the beginning of a litigation journey," they said. "It is 12 years into it. ... Given that 70 per cent of Customs detentions are of gay and lesbian material, there is unfinished business of high public importance left over from Little Sister's No.1."

The majority, however, said that Little Sister's challenge to Customs "was extremely limited in scope." They said that the bookstore provided no evidence to show that the four books were "integral, let alone important, to its operations."

The prohibition of the four books was merely a minor exercise of Customs power, they said, and it did "not address the issue of whether Customs is, in general, correctly applying the legal test for obscenity.

"In this context, it is impossible to conclude that Little Sister's is in the extraordinary position that would justify an award of advance costs," Judge Bastarache and Judge LeBel wrote. "The battle Little Sister's seeks to fight through the systemic review is, strictly speaking, unnecessary. ... The issues raised do not transcend the litigant's individual interests."

They also poured cold water on Little Sister's claim that its treatment by Customs betrays a systemic attempt to thwart the Court's 2000 ruling.

"While Little Sister's constitutional rights should not be understated, it has not provided prima facie evidence that it remains the victim of unfair targeting," the said.

"The fact that Customs continues to detain large quantities of imported material, including high proportions of gay and lesbian material, is not, in itself, prima facie evidence that Customs officials are performing their task improperly, much less unconstitutionally."

In dissent, Judge Binnie and Judge Fish said that the current case points directly at "numerous Charter violations and systemic problems" that were identified in the first case. "In its application for advance costs in this case, Little Sister's contended that the systemic abuses established in the earlier litigation have continued, and that Customs has shown itself to be unwilling to administer the Customs legislation fairly and without discrimination," they said.

"The public has an interest in whether its government respects the law and operates in relation to its citizens in a nondiscriminatory fashion. That is where the interest of this litigation transcends Little Sister's private interest."

The dissenting judges said that, at the outset, it would be appropriate to cap the maximum potential public contribution to Little Sister's at $300,000. "To the extent that Little Sister's can make a contribution to the costs, it should also be required to do so."

They added that if Little Sister's were successful and won substantial damages, they would have been obligated to repay the entire amount of the advance costs plus interest.

The majority specified the formula that must be used in deciding whether to grant advance costs. They said that a trial judge must consider "whether the case is sufficiently special that it would be contrary to the interests of justice to deny the advance costs application."

Any injustice that might result from denying the order "must relate both to the individual applicant and to the public at large," they added.

"Since an advance costs award is an exceptional measure, the applicant must explore all other possible funding options, including costs immunities. If the applicant cannot afford the litigation as a whole, but is not completely impecunious, the applicant must commit to making a contribution to the litigation."

The majority said that judges should also look at whether other, similar litigation is pending and may be conducted for the same purpose, without requiring an interim order of costs.

Even where advance costs are granted, they said, judges should set limits on the rates and hours of legal work chargeable and it should cap any cost award it makes "at an appropriate global amount."

Little Sister's had estimated that its litigation bill could approach $2-million if the case were to go ahead.

However, Canada Customs argued that the bookstore owners could have used some of the funds it invested in expanding the business, and shifted them to finance its legal expenses. Or the bookstore could have borrowed money for the court fight, the agency said.

The key precedent underlying the case was a 2003 Supreme Court ruling that forced Ottawa to pay the costs of a B.C. Indian band in a forestry dispute, because the band did not have enough money and there were crucial constitutional issues to be examined.

Ottawa told to foot store's legal bills - Vancouver gay bookstore challenged customs' power to seize, censor material

Globe and Mail
July 2, 2021
By Kirk Makin

A B.C. judge has ordered the federal government to pay a small Vancouver gay bookstore hundreds of thousands of dollars to fund a constitutional challenge to the power of Canadian customs to seize and censor imported material.

The advance order for the payment to Little Sisters Book and Art Emporium is the first application of a recent landmark Supreme Court of Canada ruling, known as Okanagan Indian Band, beyond the context of aboriginal rights. It paves the way for a new era of litigation by individuals and groups that could not otherwise shoulder the massive costs of constitutional litigation.

"The test is not dire financial straits," Madam Justice Elizabeth Bennett of B.C. Supreme Court said in her recent decision. "Having reviewed the evidence, it is clear the Little Sisters cannot genuinely afford to pay for this litigation, or any reasonable aspect of it."

The challenge involves seizure by customs of two imported books and two "Meatman" comic books that feature gay sado-masochistic themes. They were among 19 publications customs has seized since 2000, when a Supreme Court ruling concluded a decade-long round of litigation by Little Sisters.

In that ruling, which disappointed the bookstore and its lawyers, the Supreme Court flayed customs for following arbitrary and inconsistent seizure policies. However, it stopped short of striking down the agency's power to seize and censor, instead ordering customs to clean up its act. All nine judges criticized customs for years of "excessive and unnecessary prejudice" toward the gay and lesbian community and for treating the minority as outcasts, but only three of them were willing to strike down customs regulations.

In her advance-costs decision, Judge Bennett said that if customs has not been correctly applying the legal test for obscenity as it was laid down by the Supreme Court of Canada, "the issue transcends the interests of Little Sisters and touches all book importers, both commercial and private. The issues involved are too important to forfeit this litigation because of lack of funds.

"There is evidence that customs is detaining hundreds, if not thousands of titles," Judge Bennett added. She said that because of a dearth of case law defining obscenity, customs officials have been given "little direction" in how to make seizure decisions.

"The statistics demonstrate that 70 per cent of detentions are gay and lesbian material," she said. "This is some evidence of continual targeting."

The Supreme Court's groundbreaking Okanagan Indian Band case forced the government to finance a poverty-stricken B.C. band in a forestry dispute. Little Sisters lawyer Joseph Arvay said yesterday that Judge Bennett's ruling "is the first sign that the courts are taking the Supreme Court's decision seriously, and that you don't have to live in hovels to qualify for funding."

Mr. Arvay said Little Sisters can embark on what will likely be a three- or four-month trial. He said the litigation will focus on whether customs has squandered its second chance to follow consistent seizure policies that do not discriminate against gays and lesbians.

While the funding order could cost the government as much as $1-million, Mr. Arvay said, the bookstore will still be reliant on donors to help defray what are sure to be much higher costs. He said that Little Sisters actually lost $57,000 last year, and was further victimized by an internal embezzlement.

"It can never be a level playing field when you are taking on the government," Mr. Arvay said. "Charter litigation is extremely expensive, and the government has limitless resources. If this tiny bookstore weren't fighting customs and nipping at their heels, nobody would be."

To make the advance funding order, Judge Bennett first had to satisfy herself that Little Sisters had prima facie merit, that the bookstore had no other realistic way of footing its bills and that having the case litigated is in the public interest.

She noted that the bookstore has had very modest success raising money to support the litigation, and that funding orders will be made only in "rare and exceptional circumstances."

Judge Bennett said the onus at trial will be on customs to show that it has complied with the 2000 Supreme Court ruling.

"If she finds that contrary to what they told the Supreme Court, they have not redressed these problems, we are going to ask for a remedy that involves shutting down customs in one way or another," Mr. Arvay said in the interview.

Mr. Arvay said that Little Sisters also hopes to litigate the very standards by which obscenity is measured -- partly because they discriminate against gays and lesbians. He said evidence will include the many ways in which sexual expression is manifested, and the impossibility of devising an obscenity law that does not capture consenting, adult behaviour in its legal net.

"We want to start with a debate about sexual practices themselves," Mr. Arvay said. "Even though some practices may not be familiar to everyone, they are engaged in by adults who are consenting. Why should their expression be a matter for the state?"

While Judge Bennett stopped short of granting funding for this particular, broad exercise of the Charter challenge, she nonetheless gave hope to the litigants with a statement: "Further, it is arguable much has changed in the past 10 years in terms of what is socially and morally acceptable in terms of individual sexuality, which may affect the definition of obscenity."

Gay bookstore denied funds in battle over censorship

Wednesday, February 23, 2021
Globe and Mail
By Kirk Makin

A struggling Vancouver gay bookstore that is attempting to challenge the censorship powers of Canada Customs has abruptly lost its funding lifeline.

In a ruling that plucked more than a million dollars from Little Sisters Book and Art Emporium, the B.C. Court of Appeal said a trial judge was wrong to order Customs to fund a challenge against itself.

In a 3-0 judgment, the appeal court expressed grave doubts about funnelling public money into a case that may be of far less significance to the public than the bookstore says it is.

"Little Sisters assumed the role of watchdog over Customs," Mr. Justice Allan Thackray wrote for the court. "The fact is that the public has not appointed Little Sisters to this role. Little Sisters not only wants to have Customs found to have incorrectly classified the books in question, but wants to be financed as the instrument to reform Customs."

The ruling is a serious blow to those unable to shoulder the massive costs of constitutional litigation, Little Sisters lawyer Joseph Arvay said yesterday.

"If nothing else, this case will test just how seriously the courts will treat access to justice for ordinary Canadians who seek to vindicate the broader public interest through constitutional litigation," he said.

John Dixon, head of the B.C. Civil Liberties Association, said the ruling was "spectacularly ill-informed" in accusing Little Sisters of seeking the limelight. "Customs fired the first, second, third, and umpteenth shots, and Little Sisters is playing defence. Underdogs for sure, but not watchdogs."

The bookstore is challenging a seizure of two imported books and two "Meatman" comic books that feature gay sadomasochistic themes.

The Supreme Court opened the door to advance funding in a groundbreaking 2003 ruling known as Okanagan Indian band. It ordered British Columbia to finance a poverty-stricken band in a forestry dispute. Similar orders could be made if a litigant cannot afford to pay, and has a solid case that raises issues of public importance, the court said.

Last year, Madam Justice Elizabeth Bennett of B.C. Supreme Court granted Little Sisters advance costs, making it the first such order outside the context of aboriginal rights.

Little Sisters' current challenge is actually the second time the bookstore has targeted Customs. The first case concluded in 2000, when the Supreme Court flayed Customs for following arbitrary and inconsistent seizure policies. However, instead of striking down the agency's power to seize and censor, the court ordered Customs to clean up its act.

Mr. Arvay said that since then, Customs has done "almost nothing" to address the shortcomings cited by the Supreme Court, and more than 5,000 titles of "expressive material" are seized each year.

"I don't have the proper term for it, but some linguist might aptly coin the phrase "bibliocide" to describe what is happening at Canada Customs -- given their propensity to ban and destroy literally thousands of titles of expressive material each year," Mr. Arvay said.