Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120
Little Sisters Book and Art Emporium,
B.C. Civil Liberties Association,
James Eaton Deva and Guy Allen Bruce Smythe Appellants
v.
The Minister of Justice and Attorney General of Canada,
the Minister of National Revenue and
the Attorney General of British Columbia Respondents
and
The Attorney General for Ontario,
the Canadian AIDS Society,
the Canadian Civil Liberties Association,
the Canadian Conference of the Arts,
EGALE Canada Inc.,
Equality Now, PEN Canada and
the Women’s Legal Education and Action Fund (LEAF) Interveners
Indexed as: Little Sisters Book and Art Emporium v. Canada (Minister of Justice)
Neutral citation: 2000 SCC 69.
File No.: 26858.
2000: March 16; 2000: December 15.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Constitutional law – Charter of Rights – Freedom of expression – Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Legislation placing onus on importer to establish that goods are not obscene ‑‑ Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes freedom of expression ‑‑ If so, whether infringement justifiable – Canadian Charter of Rights and Freedoms, ss. 1, 2(b) ‑‑ Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), ss. 58, 71, 152(3) ‑‑ Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), Schedule VII, Code 9956(a).
Constitutional law – Charter of Rights – Equality rights – Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15.
Customs and excise – Importation of obscene goods – Customs legislation providing for interception and exclusion of obscene goods and setting out administrative review process – Gay and lesbian bookstore importing erotica from United States – Customs officials wrongly delaying, confiscating or prohibiting materials imported by bookstore on numerous occasions – Whether Customs legislation infringes freedom of expression or equality rights – Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), ss. 58, 71 ‑‑ Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), Schedule VII, Code 9956(a).
The appellant bookstore, of which the individual appellants are the directors and controlling shareholders, carried a specialized inventory catering to the gay and lesbian community which consisted largely of books that included gay and lesbian literature, travel information, general interest periodicals, academic studies related to homosexuality, AIDS/HIV safe‑sex advisory material and gay and lesbian erotica. Since its establishment in 1983, the store has imported 80 to 90 percent of its erotica from the United States. Code 9956(a) of Schedule VII of the Customs Tariff prohibits the importation of “[b]ooks, printed paper, drawings, paintings, prints, photographs or representations of any kind that . . . are deemed to be obscene under subsection 163(8) of the Criminal Code”. At the entry level, Customs inspectors determine the appropriate tariff classification, pursuant to s. 58 of the Customs Act. The classification exercise under Code 9956 largely consists of the Customs inspector making a comparison of the imported materials with the illustrated manual accompanying Memorandum D9‑1‑1, which describes the type of materials deemed obscene by Customs. At the relevant time, an item considered “obscene” and thus prohibited was subject (under s. 60 of the Act) to a re‑determination upon request, by a specialized Customs unit, and upon a further appeal subject to a further re‑determination by the Deputy Minister or designate. Once these administrative measures have been exhausted, an importer may appeal the prohibition under s. 67 of the Act to a judge of the superior court of the province where the material was seized, with a further appeal on a question of law to the Federal Court of Canada, and then with leave to the Supreme Court of Canada. Section 152(3) provides that in any proceeding under the Act the burden of proof in any question in relation to the compliance with the Act or the regulations in respect of any goods lies on the importer.
After a lengthy trial the trial judge found not only that the Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant bookstore on numerous occasions, but that these errors were caused by the “systemic targeting” of the store’s importations. He concluded that the Customs legislation infringed s. 2(b) of the Canadian Charter of Rights and Freedoms, but was justified under s. 1. Although he denied a remedy under s. 52(1) of the Constitution Act, 1982, the trial judge issued a declaration under s. 24(1) of the Charter that the Customs legislation had at times been construed and applied in a manner contrary to ss. 2(b) and 15(1) of the Charter. The Court of Appeal, in a majority judgment, dismissed the appellants’ appeal.
Held (Iacobucci, Arbour and LeBel JJ. dissenting in part): The appeal should be allowed in part. The “reverse onus” provision under s. 152(3) of the Customs Act cannot constitutionally apply to put on the importer the onus of disproving obscenity. An importer has a Charter right to receive expressive material unless the state can justify its denial.
Per McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Major, Bastarache and Binnie JJ.: The interpretation given to s. 163(8) of the Criminal Code in Butler does not discriminate against the gay and lesbian community. The national community standard of tolerance relates to harm, not taste, and is restricted to conduct which society formally recognizes as incompatible with its proper functioning. While it is true that under s. 163(8) the “community standard” is identified by a jury or a judge sitting alone, a concern for minority expression is one of the principal factors that led to adoption of the national community test in Butler in the first place. The Canadian community specifically recognized in the Charter that equality (and with it, the protection of sexual minorities) is one of the fundamental values of Canadian society. The standard of tolerance of this same Canadian community for obscenity cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian community in a discriminatory way. Butler validates a broad range of sexually explicit expression as non‑harmful.
The Constitution does not prohibit border inspections. Any border inspection may involve detention and, because Customs officials are only human, erroneous determinations. If Parliament can prohibit obscenity, and Butler held that it had validly done so, the prohibitions can be imposed at the border as well as within the country. The only expressive material that Parliament has authorized Customs to prohibit as obscene is material that is, by definition, the subject of criminal penalties for those who are engaged in its production or trafficking (or have possession of it for those purposes). The concern with prior restraint operates in such circumstances, if at all, with much reduced importance. It was open to Parliament in creating this type of government machinery to lay out the broad outline in the legislation and to leave its implementation to regulation by the Governor in Council or departmental procedures established under the authority of the Minister. A failure at the implementation level, which clearly existed here, can be addressed at the implementation level. There is no constitutional rule that requires Parliament to deal with Customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation or even by ministerial directive or departmental practice. Parliament is entitled to proceed on the basis that its enactments will be applied constitutionally by the public service.
If Customs does not make a tariff classification within 30 days the importer’s classification applies. The 30‑day decision period was an important protection inserted in the Customs Act for the benefit of importers. The evidence demonstrated that Customs, because of scarce resources or otherwise, failed to carry out the classification exercise sometimes for many months. These deficiencies could clearly have been addressed by regulatory provisions made under s. 164(1)(j) of the Customs Act or ministerial directions to Customs officials.
The requirement in s. 60(3) of the Act that a re‑determination of a tariff classification be made with “all due dispatch” must be given content. The original determination must be made within 30 days and there is no evidence that the re‑determination should take longer. The trial judge found that some requests for re‑determination under s. 63 took more than a year for decision. Such a delay is not in accordance with the Act.
A court is the proper forum for resolution of an allegation of obscenity. The department at that stage has had the opportunity to determine whether it can establish on a balance of probabilities that the expressive material is obscene. The court is equipped to hear evidence, including evidence of artistic merit, and to apply the law. The absence of procedures for taking evidence at the departmental level requires the appeal to the court in obscenity matters to be interpreted as an appeal by way of a trial de novo.
It was clearly open to the trial judge to find, as he did, that the appellants suffered differential treatment when compared to importers of heterosexually explicit material, let alone more general bookstores that carried at least some of the same titles as the appellant bookstore. Moreover, while sexual orientation is not mentioned explicitly in s. 15 of the Charter, it is clearly an analogous ground to the listed personal characteristics. The appellants were entitled to the equal benefit of a fair and open customs procedure, and because they imported gay and lesbian erotica, which was and is perfectly lawful, they were adversely affected in comparison to other individuals importing comparable publications of a heterosexual nature. On a more general level, there was no evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual erotica. It therefore cannot be said that there was any legitimate correspondence between the ground of alleged discrimination (sexual orientation) and the reality of the appellants’ circumstances (importers of books and other publications including, but by no means limited to, gay and lesbian erotica). There was ample evidence to support the trial judge's conclusion that the adverse treatment meted out by Canada Customs to the appellants violated their legitimate sense of self‑worth and human dignity. The Customs treatment was high‑handed and dismissive of the appellants' right to receive lawful expressive material which they had every right to import.
While here it is the interests of the gay and lesbian community that were targeted, other vulnerable groups may similarly be at risk from overzealous censorship. The appellant bookstore was targeted because it was considered “different”. On a more general level, it is fundamentally unacceptable that expression which is free within the country can become stigmatized and harassed by government officials simply because it crosses an international boundary, and is thereby brought within the bailiwick of the Customs department. The appellants’ constitutional right to receive perfectly lawful gay and lesbian erotica should not be diminished by the fact their suppliers are, for the most part, located in the United States. Their freedom of expression does not stop at the border.
The source of the s. 15(1) Charter violation is not the Customs legislation itself. There is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation. The definition of obscenity operates without distinction between homosexual and heterosexual erotica. The differentiation was made here at the administrative level in the implementation of the legislation. A large measure of discretion is granted in the administration of the Act, from the level of the Customs official up to the Minister, but it is well established that such discretion must be exercised in accordance with the Charter. Many of the systemic problems identified by the trial judge in the department’s treatment of potentially obscene imports might have been dealt with by institutional arrangements implemented by regulation, but this was not done. However, the fact that a regulatory power lies unexercised provides no basis in attacking the validity of the statute that conferred it.
As conceded by the Crown, the Customs legislation infringes s. 2(b) of the Charter. With the exception of the reverse onus provision in s. 152(3) of the Customs Act, however, the legislation constitutes a reasonable limit prescribed by law which the Crown has justified under s. 1 of the Charter. The Customs Tariff prohibition is not void for vagueness or uncertainty, and is therefore validly “prescribed by law”. Parliament’s legislative objective, which is to prevent Canada from being inundated with obscene material from abroad, is pressing and substantial, and Customs procedures are rationally connected to that objective. Moreover, the basic statutory scheme set forth in the Customs legislation, properly implemented by the government within the powers granted by Parliament, was capable of being administered with minimal impairment of the s. 2(b) rights of importers, apart from the reverse onus provision. Customs officials have no authority to deny entry to sexually explicit material unless it comes within the narrow category of pornography that Parliament has validly criminalized as obscene. With respect to lawful publications, the interference sanctioned by Parliament was limited to the delay, cost and aggravation inherent in inspection, classification and release procedures.
Per Iacobucci, Arbour and LeBel JJ. (dissenting in part): The majority’s conclusion that the Butler test does not distinguish between materials based on the sexual orientation of the individuals involved or characters depicted is agreed with. The Butler test applies equally to heterosexual, homosexual and bisexual materials. The use of national community standards as the arbiter of what materials are harmful, and therefore obscene, remains the proper approach. There is also agreement with the majority’s conclusions that the harm‑based approach is not merely morality in disguise and that the Butler test does apply to written materials, although it will be very difficult to make the case of obscenity against a book.
The application of the Customs legislation has discriminated against gays and lesbians in a manner that violated s. 15 of the Charter. The Customs legislation does not itself violate s. 15(1), however, for the reasons given by the majority. While it is arguable that pornographic materials play a more important role in the gay and lesbian communities, gays and lesbians remain able to access pornographic materials that do not create a substantial risk of harm. Therefore legislation banning obscenity alone has no adverse effects, and it is unnecessary to proceed with the rest of the analysis prescribed under Law.
As properly conceded by the respondents, the Customs legislation, as applied to books, magazines, and other expressive materials, violates the appellants’ rights under s. 2(b) of the Charter. The legislation has been administered in an unconstitutional manner, but it is the legislation itself, and not only its application, that is responsible for the constitutional violations. Given the extensive record of Charter violations, there must be sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights. The issue is not solely whether the Customs legislation is capable of being applied constitutionally. Instead, the crucial consideration is that the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive materials. The government has provided little reason to believe that reforms at the implementation level will adequately protect the expressive rights involved or that any such reforms will not be dependent on exemplary conduct by Customs officials to avoid future violations of constitutional rights. Furthermore, it is not just the rough and ready border screening procedure that has been responsible for these constitutional infirmities, but the entire system by which these screening decisions are reviewed.
The government’s burden under s. 1 of the Charter is to justify the actual infringement on rights occasioned by the impugned legislation, not simply that occasioned by some hypothetical ideal of the legislation. Examining such a hypothetical ideal runs the risk of allowing even egregious violations of Charter rights to go unaddressed. Obviously any substantive standard for obscenity will have difficulties in application, regardless of the institutional setting in which it is applied. This will not necessarily be cause for concern. Where, however, the challenge is to the procedures by which the law is enforced, the fact that far more materials are prohibited than intended is extremely relevant. Many of the items seized in this case were eventually determined not to be obscene. These wrongfully detained items clearly engaged the values underlying the guarantee of free expression in s. 2(b). While a more deferential approach is appropriate where, as here, the government is mediating between competing groups as a social policy maker, the Court cannot abdicate its duty to demand that the government justify legislation limiting Charter rights.
The substantive standard for obscenity set out in s. 163(8) of the Criminal Code, as applied by Customs, is an intelligible standard, and the limit on Charter rights is thus prescribed by law. The objective of the Customs legislation, which is to limit the importation of obscene materials into the country, is pressing and substantial. Preventing obscene materials from ever entering the country is a rational means of protecting society from harm. In light of the Customs legislation’s failure to acknowledge effectively the unique Charter concerns raised by expressive materials, however, it is not minimally intrusive. The only accommodation made for expressive materials is that their review under s. 67 is done by a superior court rather than by the Canadian International Trade Tribunal. This is insufficient to safeguard the fundamental Charter rights at stake. The sheer number of contested prohibitions, and the cost of challenging them through the various levels of administrative review, makes it completely impracticable for the appellants to contest each one of them up to the s. 67 level.
The protection of expressive freedom is central to the social and political discourse in our country. If such a fundamental right is to be restricted, it must be done with care. This is particularly the case when the nature of the interference is one of prior restraint, not subsequent silencing through criminal sanction. The flaws in the Customs regime are not the product of simple bad faith or maladministration, but rather flow from the very nature of prior restraint itself. Given the inherent dangers in a scheme of prior restraint at the border it is obviously important to have procedural protections in the legislation itself that can minimize these dangers. The Customs legislation fails the s. 1 analysis primarily because it lacks any such protections.
A minimally intrusive scheme would ensure that those enforcing the law actually obey its dictates. To determine whether something is obscene, it must be seen in its entirety, with close attention to context, tone, and purpose. Customs officers have consistently failed to apply Butler’s command to consider the context and artistic merit of items under consideration. While procedural safeguards might alleviate many of these problems, their complete absence from the Customs legislation simply confirms the inadequacy of the current scheme. Absolute discretion rests in a bureaucratic decision‑maker, who is charged with making a decision without any evidence or submissions, without any requirement to render reasons for decision, and without any guarantee that the decision‑maker is aware of or understands the legal test he or she is applying. Such a system cannot be minimally intrusive.
Moreover, the deleterious effects of the existing Customs regime outweigh its benefits. The first obvious deleterious effect of the current system is the extraordinarily high rate of error. The detentions have had a dramatic, tangible effect on the lives of countless Canadians. Alternative bookstores have had their viability threatened by the constant delays and outright prohibitions. Authors and artists have suffered the indignity of having their works condemned as obscene, and not fit to enter the country. Perhaps most important of all, ordinary Canadians have been denied important pieces of literature. Weighed against these costs are the benefits of a Customs regime that makes almost no special accommodations for the free expression rights at stake. The benefits of the present legislation are primarily monetary, as the reforms sought by the appellants will require public expenditures. However, it is important not to overestimate those costs. In the absence of any evidence that a scheme with more procedural safeguards would be impossible, it should not be assumed that Parliament is completely incapable of devising a cost‑effective legislative scheme that better protects the constitutional rights in question.
The appropriate remedy for this violation of the appellants’ constitutional rights is to strike down Code 9956(a) of the Customs Tariff. Given the fact that there were grave systemic problems in the administration of the law, the primarily declaratory remedy relied on by the majority is simply inadequate. Systemic problems call for systemic solutions. Customs’ history of improper censorship, coupled with its inadequate response to the declarations of the courts below, confirms that only striking down the legislation will guarantee vindication of the appellants’ constitutional rights. There are a number of options available to Parliament to remedy the current flaws in the Customs legislation. First, it could enact new legislation which properly safeguards the expressive rights at stake. Second, it could establish a specialized administrative tribunal to expeditiously review obscenity determinations made by front-line Customs officers. Finally, it could rely on the criminal law to deal with the importation of obscene materials into the country in lieu of a prior restraint regime.
Cases Cited
By Binnie J.
Applied: R. v. Butler, [1992] 1 S.C.R. 452; disapproved in part: Glad Day Bookshop Inc. v. Canada (Deputy Minister of National Revenue, Customs and Excise), [1992] O.J. No. 1466 (QL); distinguished: R. v. Morgentaler, [1988] 1 S.C.R. 30; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Bain, [1992] 1 S.C.R. 91; referred to: Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; Miron v. Trudel, [1995] 2 S.C.R. 418; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494; R. v. Hawkins (1993), 15 O.R. (3d) 549; R. v. Jacob (1996), 112 C.C.C. (3d) 1; R. v. Erotica Video Exchange Ltd. (1994), 163 A.R. 181; Brodie v. The Queen, [1962] S.C.R. 681; R. v. Simmons, [1988] 2 S.C.R. 495; United States v. Thirty‑Seven Photographs, 402 U.S. 363 (1971); R. v. Oakes, [1986] 1 S.C.R. 103; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37; R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154; Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Beare, [1988] 2 S.C.R. 387; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
By Iacobucci J. (dissenting in part)
R. v. Butler, [1992] 1 S.C.R. 452; Brodie v. The Queen, [1962] S.C.R. 681; R. v. C. Coles Co., [1965] 1 O.R. 557; A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966); Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Bain, [1992] 1 S.C.R. 91; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Egan v. Canada, [1995] 2 S.C.R. 513; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Oakes, [1986] 1 S.C.R. 103; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Entick v. Carrington (1765), 2 Wils. K.B. 275, 95 E.R. 807; Near v. Minnesota, 283 U.S. 697 (1931); Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961); R. v. Lucas, [1998] 1 S.C.R. 439; Freedman v. Maryland, 380 U.S. 51 (1965); United States v. Thirty‑Seven Photographs, 402 U.S. 363 (1971); M. v. H., [1999] 2 S.C.R. 3; Vriend v. Alberta, [1998] 1 S.C.R. 493; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Schachter v. Canada, [1992] 2 S.C.R. 679; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Mahe v. Alberta, [1990] 1 S.C.R. 342; R. v. Mills, [1999] 3 S.C.R. 668; Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); R. v. Lippé, [1991] 2 S.C.R. 114; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Dell Publishing Co. v. Deputy Minister of National Revenue for Customs and Excise (1958), 2 T.B.R. 154.
Statutes and Regulations Cited
Canada Post Corporation Act, R.S.C., 1985, c. C‑10, s. 42 [rep. & sub. c. 1 (2nd Supp.), s. 171].
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 15(1), 24(1).
Constitution Act, 1982, s. 52(1).
Criminal Code, R.S.C., 1985, c. C‑46, s. 163(8).
Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), ss. 2, 58, 60, 63, 64 [am. c. 47 (4th Supp.), s. 52 (Sch., item 2(1)); am. 1992, c. 28, s. 15], 67 [rep. & sub. c. 47 (4th Supp.), s. 52 (Sch., item 2(2))], 68, 71 [am. c. 41 (3rd Supp.), s. 120], 99, 152(3), 164.
Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), s. 114.
Customs Tariff, S.C. 1987, c. 49, Sch. VII, Code 9956(a).
Customs Tariff, S.C. 1997, c. 36, s. 166, Sch., Tariff item 9899.00.00.
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APPEAL from a judgment of the British Columbia Court of Appeal (1998), 54 B.C.L.R. (3d) 306, 160 D.L.R. (4th) 385, [1999] 12 W.W.R. 445, 109 B.C.A.C. 49, 177 W.A.C. 49, 125 C.C.C. (3d) 484, 54 C.R.R. (2d) 1, [1998] B.C.J. No. 1507 (QL), dismissing the appellants’ appeal from a decision of the British Columbia Supreme Court (1996), 18 B.C.L.R. (3d) 241, 131 D.L.R. (4th) 486, [1996] B.C.J. No. 71 (QL), dismissing the appellants’ application for a declaration pursuant to s. 52(1) of the Constitution Act, 1982. Appeal allowed in part, Iacobucci, Arbour and LeBel JJ. dissenting in part.
Joseph J. Arvay, Q.C., and Irene C. Faulkner, for the appellants.
Judith Bowers, Q.C., Brian J. Saunders and Daniel Kiselbach, for the respondents the Minister of Justice and Attorney General of Canada and the Minister of National Revenue.
George H. Copley, Q.C., and Jeffrey M. Loenen, for the respondent the Attorney General of British Columbia.
Christine Bartlett‑Hughes and Robert E. Houston, Q.C., for the intervener the Attorney General for Ontario.
R. Douglas Elliott and Patricia A. LeFebour, for the intervener the Canadian AIDS Society.
Patricia D. S. Jackson and Tycho M. J. Manson, for the intervener the Canadian Civil Liberties Association.
Frank Addario and Ethan Poskanzer, for the intervener the Canadian Conference of the Arts.
Cynthia Petersen, for the intervener EGALE Canada Inc.
Janine Benedet, for the intervener Equality Now.
Jill Copeland, for the intervener PEN Canada.
Karen Busby and Claire Klassen, for the intervener the Women’s Legal Education and Action Fund (LEAF).
The judgment of McLachlin C.J. and L’Heureux-Dubé, Gonthier, Major, Bastarache and Binnie JJ. was delivered by
1 Binnie J. – After a trial of considerable complexity lasting two months, the trial judge in this case concluded not only that Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant on numerous occasions, but that these errors were caused “by the systemic targeting of Little Sisters' importations in the [Vancouver] Customs Mail Center”. Little Sisters is a lesbian and gay bookshop owned by the appellants James Eaton Deva and Guy Bruce Smythe, who say their equality rights as gay men have been violated by the government’s action. The store carried a specialized inventory catering to the gay and lesbian community which consisted largely of books that included, but was not limited to, gay and lesbian literature, travel information, general interest periodicals, academic studies related to homosexuality, AIDS/HIV safe sex advisory material and gay and lesbian erotica. It was not in the nature of a “XXX Adult” store. It was and is a boutique carrying a fairly broad range of inventory of interest to a special clientele. It was considered something of a “community centre” for Vancouver’s gay and lesbian population.
2 The appellants concede that much of the material imported by Little Sisters consisted of erotica but have denied throughout that anything it has imported is obscene. If the erotica had been manufactured in Canada, the government would have had no legal basis to suppress it short of a successful prosecution under s. 163 of the Criminal Code, R.S.C., 1985, c. C-46, in which the state would have the onus of establishing obscenity.
3 We are told that Canada produces very little gay and lesbian erotica, obscene or otherwise, and Little Sisters therefore depends on foreign suppliers, mainly in the United States. The appeal therefore requires us to consider what limitations may constitutionally be placed on freedom of expression when “expression” crosses international boundaries, and to what extent the rights of importers must be balanced against the state’s interest in preventing the importation of materials that the state considers to be harmful to society.
I. Facts
4 The appellant, Little Sisters Book and Art Emporium, is a corporation incorporated under the laws of British Columbia. The individual appellants are the directors and controlling shareholders of Little Sisters. The corporate appellant has a business interest and the individuals combine both business and personal interests. As all of the interests necessary to constitute this appeal are represented, there is no need to disentangle their specific corporate and individual interests, and I will generally refer to them collectively as “the appellants”.
5 Since its establishment in 1983, Little Sisters has imported 80 to 90 percent of its erotica from the United States. For the last 15 years it has been a reluctant participant in a running battle with Canada Customs. Its foreign suppliers typically insisted on payment within 30 days, yet administrative delays at Customs frequently held up shipments until months after they were paid for, and then, not infrequently, materials were seized or ordered returned to sender. In the usual course the appellants were given no reason for the seizure or return. Some of the suppliers refused to make further shipments.
6 In very detailed and comprehensive reasons, the trial judge made a number of key findings of fact in the appellants' favour. He identified very high error rates in determinations respecting Little Sisters’ imports at all levels of the Customs review procedure. He held that “[s]uch high rates of error indicate more than mere differences of opinion and suggest systemic causes” ((1996), 18 B.C.L.R. (3d) 241, at para. 100). He identified several reasons for these high error rates, including the minimal resources given to Customs officials combined with inadequate training in obscenity law ranging from a few hours in the case of inspectors to a few days for higher ranks. Specifically, he found (at para. 116) that:
Many publications, particularly books, are ruled obscene without adequate evidence. This highlights perhaps the most serious defect in the present administration of code 9956(a), that is, that classifying officers are neither adequately trained to make decisions on obscenity nor are they routinely provided with the time and the evidence necessary to make such decisions. There is no formal procedure for placing evidence of artistic or literary merit before the classifying officers. Consequently, many publications are prohibited entry into Canada that would likely not be found to be obscene if full evidence were considered by officers properly trained to weigh and evaluate that evidence.
7 The lack of available resources was of particular concern to the trial judge, who found that: “The inference to be drawn is that Tariff Administrators in the Prohibited Importations Directorate do not have sufficient time available to consistently do a proper job. The problem is even more significant at the regional levels where customs officers encounter much higher volumes of goods and have far more expansive duties” (para. 81).
8 The trial judge found that the administration of the Customs scheme has a significantly differential impact on small or specialty publishers, importers and bookstores. He specifically found (at para. 105) that:
Customs' administration of code 9956(a) results in arbitrary consequences. Traditional bookstores do not have similar encounters with Canada Customs. Helen Hager, who operated a general‑interest bookstore in Vancouver for many years, did not know that Customs inspected books for obscenity until she left that business and opened a store catering to women, in which she stocked some material for lesbians. She had two shipments from Inland [a book distributor] interrupted at the border and has never received two of the books in the shipment, nor any documents from Customs in relation to them.
9 The trial judge noted that the task of reviewing allegedly obscene materials was generally unpopular with Customs officers, who opted to rotate out of Code 9956 obscenity duties after three to six months. I should note, parenthetically, that there was no evidence that they suffered harmful attitudinal changes as a result of their prolonged exposure to the sexually explicit material sought to be imported by the appellants, albeit the exposure was job-related.
10 Seizure included not only magazines, videos and photographic essays, but books consisting entirely of text, including works by internationally acclaimed authors such as The Man Sitting in the Corridor by Marguerite Duras and Querelle by Jean Genet. Also seized were the award-winning novels Trash by Dorothy Allison and The Young in One Another’s Arms by Jane Rule. Frequently AIDS/HIV safe-sex education literature was classified as prohibited. The Court record includes testimony from mainstream booksellers to the effect that no such problems were encountered in their importation of the same books. In fact, the President of Duthie’s, a general bookstore chain in Vancouver, testified that an order she placed on behalf of the British Columbia Civil Liberties Association consisting of titles prohibited when sought to be imported by Little Sisters was inspected by Customs but released to Duthie’s without difficulty. Duthie’s Customs broker testified that its book shipments are examined solely for the purpose of determining GST payments. He thought that in the case of Duthie’s there was generally no examination of titles for obscenity.
11 On the other hand the evidence showed that other small bookstores with specialized inventory or clientele comparable to Little Sisters' had encountered similar targeting. These included a scholarly bookstore “Pages” in Toronto carrying gay studies and HIV/AIDS literature as well as “The Toronto Women’s Bookstore”, a feminist bookstore. “Crosstown Traffic”, a bookstore in Ottawa, was similarly affected. It appears that there was no such blanket surveillance of heterosexual erotica even in the case of so-called “adult” bookstores that sold nothing else.
12 Little Sisters complains that the frequent delay of shipments destined for its store, and the subsequent prohibition of some of the delayed items, have negatively impacted its business by, inter alia, disrupting planned book launches, causing loss of business to competitors stocking the same delayed or prohibited items, and items such as magazines, which depend for their shelf value on their timeliness. The case, however, is not about business losses. It is about the loss by a minority of the freedom to read and experience a broad range of writings and depictions, some of it claimed to be of high artistic value, by reason, they say, of bureaucratic refusal to release perfectly lawful material into the country.
13 Little Sisters identified 261 items that have been detained between 1984 and 1994, 77 of them on more than one occasion. Items sought to be imported by Little Sisters and subsequently delayed or prohibited included items that were previously ruled admissible when imported by Little Sisters. The trial judge noted (at para. 75) that a “striking example of this” is the collection of short stories entitled Macho Sluts, written by Pat Califia, a well-established author. It has been prohibited pursuant to s. 58 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.) on four separate occasions since October 23, 1989, when it was re‑determined under s. 63 to be admissible. The satire Hothead Paisan was prohibited when ordered by Little Sisters and, on one occasion, by The Women’s Bookstore in Toronto, but was released to the latter bookstore without difficulties on subsequent orders. The trial judge noted another 35 publications that were prohibited after they had earlier been ruled admissible by Customs. Many items that have been prohibited when Little Sisters attempted to import them are found in the Vancouver Public Library including Gay Ideas, Tom of Finland, The Men With the Pink Triangle, Dzeleron: Myths of the Northwest Coast, Gay Spirit and The Sexual Politics of Meat. Customs officials were intrigued by the titles, apparently.
II. Scope of the Customs Mandate
14 Customs officials testified that there are approximately 10.5 million entry transactions each year and that each day between 20,000 and 40,000 items of mail enter the Customs Mail Center in Vancouver. Much of this mail is of commercial value, and must be sorted and classified for tariff purposes. As part of this classification procedure, Parliament has charged the Customs authorities to intercept and exclude from this country obscene, hateful, treasonable or seditious goods.
15 Prior to the 1959 amendments, appeals even in matters of alleged obscenity were taken not to the courts but to the Tariff Board. Speaking in the House of Commons on August 27, 1958, the Minister of National Revenue, Mr. George Nowlan, described the difficulties experienced by Customs officials in discharging their mandate in respect of “obscene” goods:
Last year I had submitted to me six lithographs for inclusion in this year’s calendars. They were six nudes. They had been passed on by all these officers. Three of the nudes were absolutely nude and three had some sort of diaphanous wrapping around their bodies. One of the senior officers said the three which had the diaphanous clothing could be admitted because they were semi-clothed. Another officer said their posture was indecent and they should not be admitted, but the nudes could be admitted because their posture was not indecent.
That is an example of the judgment that has to be exercised and the kind of artistic skill that has to be passed upon by customs officers. I really think that we are much better qualified to deal with increasing the seasonal tariff on cabbages and cucumbers than to pass moral judgment on literature coming into the country. [Emphasis added.]
(House of Commons Debates, vol. IV, 1st Sess., 24th Parl., August 27, 1958, at p. 4177)
16 The 1959 amendments redirected appeals in such matters to the courts. In the wake of the decision in Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85 (C.A.), obscenity was defined by reference to s. 163 of the Criminal Code. As Parliament has prohibited only material that it has criminalized, Parliament apparently intended there to be a free flow of other materials across the border including sexually expressive material that appeals to minority tastes. The Criminal Code does not characterize “obscenity” based on sexual orientation and neither, it must be inferred, did Parliament intend Customs officials to do so.
17 The administrative burden of identifying prohibited goods in such a vast inflow of material is enormous. In an era of increased volumes of cross-border material, and reduced government resources, the difficulty of performing the Parliamentary mandate cannot be underestimated. The task of properly reviewing a single CD-Rom, featuring the usual array of photographs, film and text, would require far more time than Customs officials are realistically able to devote to the task. Moreover, with the exponential growth of pornographic sites on the Internet, the barrier to the passage across the border of hard copy material may some day be seen as of marginal importance to the enforcement of anti-obscenity laws. Nevertheless, if the Parliamentary mandate is to be carried out with regard not only to the larger public interest served by the Criminal Code but also to the rights of individuals who claim to be engaged in entirely lawful activities, adequate procedures and resources must be put in place to operate the border scheme in a manner that respects Charter rights.
18 Nobody has a Charter right to import materials that are obscene within the meaning of s. 163 of the Criminal Code. The concern expressed by the trial judge was that much of the delayed or prohibited material did not qualify as obscene. The courts in British Columbia found that the appellants had established Charter violations. The real arguments are about the sources of the violations -- whether they are located in the statutes themselves or only in their implementation -- and what to do about them. This involves a consideration of how certain materials come to be classified as “obscene”, and thus prohibited, and whether the appellants when contesting such a classification were fairly dealt with.
III. The Statutory Framework
19 Section 99 of the Customs Act authorizes Customs officers to examine imported goods and mail and to open packages that they reasonably suspect may contain goods referred to in the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.). Mail is referred to Customs on a similar basis (Canada Post Corporation Act, R.S.C., 1985, c. C-10, s. 42) except that mail weighing 30 grams or less may not be opened without the consent of the person to whom it is addressed (Customs Act, s. 99(2)).
20 At the entry level, Customs inspectors determine the appropriate tariff classification (s. 58). At the relevant time, an item considered “obscene” and thus prohibited was subject to a re-determination upon request, by a specialized Customs unit and upon a further appeal subject to a further re-determination by the Deputy Minister or designate. The appellants contend that the double step internal review procedure was bureaucratic overkill, particularly because few front line decisions were changed on further internal review. (The trial judge agreed with this objection, and the government apparently heeded the trial judge’s concern because the Customs Act was amended after the trial to eliminate the intermediate determination (S.C. 1997, c. 36, s. 166).)
21 The Act contemplates that once these administrative measures have been exhausted, an importer may appeal the prohibition pursuant to s. 67 of the Act to a judge of the superior court of the province where the material was seized, with a further appeal on a question of law to the Federal Court of Canada, and then with leave to the Supreme Court of Canada. The appellants complain about the high cost of this lengthy procedure, and about the inevitable delay. They argue that a remedy which a small-scale importer cannot reasonably be expected to exercise because of cost and delay disproportionate to the value of the thing seized is really no remedy at all. Yet such incidents, of relatively small importance on a case-by-case basis, cumulatively came to constitute a significant barrier to freedom of expression for the gay and lesbian community in Vancouver. The dimension of that problem led the appellants to challenge the constitutionality of the administrative review process in the Customs Act, and in the Customs Tariff, as violating their rights under ss. 2(b) and 15(1) of the Charter.
IV. Relevant Enactments
22 Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.)
114. The importation into Canada of any goods enumerated or referred to in Schedule VII is prohibited.
Customs Tariff, S.C. 1987, c. 49, Schedule VII
9956 Books, printed paper, drawings, paintings, prints, photographs or representations of any kind that
(a) are deemed to be obscene under subsection 163(8) of the Criminal Code;
Customs Act, R.S.C., 1985, c. 1 (2nd Supp.)
58. (1) An officer may determine the tariff classification . . . of imported goods at any time before or within thirty days after they are accounted for . . . .
. . .
(5) Where an officer does not make a determination . . . under subsection (1) in respect of goods, a determination of the tariff classification . . . of the goods shall, for the purposes of sections 60, 61 and 63, be deemed to have been made thirty days after the time the goods were accounted for . . . in accordance with any representations made at that time in respect of the tariff classification . . . by the person accounting for the goods.
(6) A determination of tariff classification . . . is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 60 to 65.
60. (1) The importer or any person who is liable to pay duties owing on imported goods may, after any duties thereon have been paid or security satisfactory to the Minister has been given in respect of the duties owing,
(a) within ninety days, or
(b) where the Minister deems it advisable, within two years
after the time the determination or appraisal was made in respect of the goods under section 58, request a re-determination of the tariff classification or a re-appraisal of the value for duty.
(2) A request under this section shall be made to a designated officer in the prescribed manner and in the prescribed form containing the prescribed information.
(3) On receipt of a request under this section, a designated officer shall, with all due dispatch, re-determine the tariff classification or re-appraise the value for duty, as the case may be, and give notice of his decision to the person who made the request.
63. (1) Any person may,
(a) within ninety days after the time he was given notice of a decision under section 60 or 61, or
(b) where the Minister deems it advisable, within two years after the time a determination or appraisal was made under section 58,
request a further re-determination of the tariff classification or a further re-appraisal of the value for duty re-determined or re-appraised under section 60 or 61.
(2) A request under this section shall be made to the Deputy Minister in the prescribed manner and in the prescribed form containing the prescribed information.
(3) On receipt of a request under this section, the Deputy Minister shall, with all due dispatch, re-determine the tariff classification or re-appraise the value for duty, as the case may be, and give notice of his decision to the person who made the request.
67. (1) A person who deems himself aggrieved by a decision of the Deputy Minister made pursuant to section 63 or 64 may appeal from the decision to [the court] ... within ninety days after the time notice of the decision was given.
71. (1) Where the release of goods has been refused on the ground that the goods have been determined to be prohibited goods as described in code 9956 or 9957 of Schedule VII to the Customs Tariff, re-determination may be requested under sections 60 and 63 or made under section 64 and appeals may be taken under sections 67 and 68 in respect of the determination....
152. . . .
(3) Subject to subsection (4), in any proceeding under this Act, the burden of proof in any question relating to
. . .
(d) the compliance with any of the provisions of this Act or the regulations in respect of any goods
lies on the person, other than Her Majesty, who is a party to the proceeding or the person who is accused of an offence, and not on Her Majesty.
164. (1) The Governor in Council may make regulations
. . .
(j) generally, to carry out the purposes and provisions of this Act.
Criminal Code, R.S.C., 1985, c. C‑46
163. . . .
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
V. Judicial History
A. Supreme Court of British Columbia (1996), 18 B.C.L.R. (3d) 241
23 At trial, the appellants sought a declaration under s. 52(1) of the Constitution Act, 1982, that the relevant Customs provisions are of no force and effect because they violate ss. 2(b) and 15(1) of the Charter. In addition, or in the alternative, the appellants sought a declaration under s. 24(1) of the Charter that these provisions “have at all material times been construed and applied in a manner that is contrary to s. 2(b) and/or s. 15(1) of the Charter and that is not justified pursuant to s. 1”.
24 Smith J. concluded that the Customs legislation infringed s. 2(b) of the Charter, but was justified under s. 1. He found that the Customs legislation did not infringe s. 15(1) of the Charter. In this respect, he concluded that the law, although facially neutral, did have a disproportionately negative effect on homosexuals, because materials related to sexuality are much more central to homosexual culture and identity than to heterosexuals. The prohibition of those materials thus imposes a disproportionate burden on homosexuals. However, at para. 135 of his reasons, Smith J. explained that in his view there was no violation of the appellants’ equality rights “because obscenity is defined in terms of sexual practices” as is homosexuality, and that differential treatment is therefore “relevan[t] . . . to the functional values underlying the legislation” (Miron v. Trudel, [1995] 2 S.C.R. 418, at para. 15, per Gonthier J.). “The point is”, he concluded at para. 136, “that homosexual obscenity is proscribed because it is obscene, not because it is homosexual”.
25 In finding that the s. 2(b) infringement was justified under s. 1, Smith J. relied heavily on this Court’s reasons in R. v. Butler, [1992] 1 S.C.R. 452. As it was held in Butler that the standard provided by the word “obscene” in s. 163(8) of the Criminal Code was intelligible and “prescribed by law”, and as that provision is incorporated into the Customs legislation by Code 9956(a), he held that the Customs legislation’s imposition of a limitation on s. 2(b) was also “prescribed by law”. The Customs officers’ ability to apply the obscenity standard was further assisted by an internal Customs manual identified as Memorandum D9-1-1, together with a companion illustrative guide.
26 Turning to the objective of the impugned Customs legislation, the trial judge found it was directed to the same purpose as s. 163 of the Criminal Code, being the protection of society from the harm caused by the dissemination of obscene materials. He found that the objective was sufficiently pressing and substantial to justify an interference with freedom of expression.
27 Smith J. concluded that in the absence of an obviously superior alternative, the courts should defer to Parliament’s chosen means of border control. He dismissed as impractical the possibility of conducting a trial as a precondition to barring the entry of any publication as obscene.
28 Having denied a remedy under s. 52(1) of the Constitution Act, 1982 Smith J. did conclude that a s. 24(1) declaration was appropriate due to serious systemic problems in the administration of the Customs regime. In his view these problems had resulted in the inconsistent and unwarranted prohibition of many items of homosexual art and literature. In the result he issued a declaration that provided in its operative entirety that:
THIS COURT DECLARES that Tariff Code 9956(a) of Schedule VII and s. 114 of the Customs Tariff, S.C. 1987, c. 41 (3rd Supplement) and ss. 58 and 71 of the Customs Act, S.C. 1986, c. 1 (2nd Supplement) have at times been construed and applied in a manner contrary to s. 2(b) and s. 15(1) of the Canadian Charter of Rights and Freedoms.
B. Court of Appeal for British Columbia (1998), 54 B.C.L.R. (3d) 306
29 In the Court of Appeal for British Columbia, Macfarlane J.A., for the majority, held that Memorandum D9-1-1, the internal manual used by Customs officers, was not “law” for the purposes of s. 1, and was therefore not of assistance in determining whether the Customs legislation evidences an intelligible standard that can be applied without arbitrariness. Nevertheless, applying Butler, supra, he concluded that the Customs legislation was not impermissibly vague, and was “prescribed by law”.
30 Macfarlane J.A. substantially agreed with the trial judge’s reasons on s. 1, emphasizing that the scope and content of “obscene” is to be determined not by the homosexual community, but by the application of a general community standard. He rejected the appellants’ demand for an exemption, or differential treatment as to what materials the homosexual community should be permitted access. Relying on Butler, he rejected the appellants’ submissions that it was incumbent on Parliament to demonstrate a specific and conclusive causal link between homosexual obscenity and harm to the community.
31 Macfarlane J.A. also denied relief under s. 15(1). In his view, the Customs legislation is discriminatory neither on its face, nor in its effect because, if applied correctly, it only prohibits material because it is obscene not because it is homosexual. Hall J.A., concurring, expressed his substantial agreement with Macfarlane J.A.’s reasons for dismissing the appeal.
32 Finch J.A., dissenting, distinguished the case before him from Butler, stressing that in Butler the Court was not dealing with books, nor was it dealing with materials “directed at a homosexual market” (para. 191). In Butler, the context was a criminal trial, and s. 163(8) of the Criminal Code was directed to “subsequent punishment” for dissemination of obscene materials, as opposed to the “prior restraint” imposed by the Customs legislation. Finally, in Butler there were no s. 15(1) discrimination considerations.
33 On the threshold question as to whether the Customs legislation imposes a limitation that is “prescribed by law”, Finch J.A. found the trial judge to be in error. He held that Memorandum D9-1-1 was not “law”, and he noted the trial judge’s conclusion that the prohibition on obscenity was difficult to administer, requiring “appropriate and consistent training” and the aid of the interpretive memo. With these facts established, he held that such a legislative scheme could not be said to “meet the constitutionally-mandated standard of precision” (para. 217). In the context of a criminal trial, matters are only deemed to be obscene after acceptance by the trier of fact of proof beyond a reasonable doubt. In the context of the Customs regime, the same standard is not sufficiently intelligible.
34 Finch J.A. would have allowed the appeal and declared the Customs legislation to be of no force and effect to the extent that it applies to “the importation of homosexual books, printed paper, drawings, paintings, prints, photographs or representations of any kind that are alleged to be obscene” (para. 257).
VI. Constitutional Questions
35 The following constitutional questions were stated by the Chief Justice:
1. Do ss. 58 and 71 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and s. 114 and Code 9956(a) of Schedule VII of the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.) (now s. 136(1) and tariff item 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36) [the “Customs legislation”] in whole or in part, insofar as they authorize customs officials to detain and prohibit material deemed to be obscene, or in their application to either textual or gay and lesbian material or to both, infringe s. 2(b) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is yes, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
3. Do ss. 58 and 71 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and s. 114 and Code 9956(a) of Schedule VII of the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.) (now s. 136(1) and tariff item 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36), in whole or in part, in their application to gay and lesbian material, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?
4. If the answer to question 3 is yes, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
VII. Analysis
36 Government interference with freedom of expression in any form calls for vigilance. Where, as here, a trial judge finds that such interference is accompanied “by the systemic targeting” of a particular group in society (in this case individuals who were seen as standard bearers for the gay and lesbian community), the issue takes on a further and even more serious dimension. Sexuality is a source of profound vulnerability, and the appellants reasonably concluded that they were in many ways being treated by Customs officials as sexual outcasts.
37 The appellants were put in the position of supplicants to the government in a 15-year crusade to obtain the entry into Canada of expressive material. Whereas Customs aims to examine approximately eight per cent of goods coming across the border, the trial judge found that “virtually all imported mail addressed to Little Sisters is examined” (para. 52) and that “the federal Crown led no evidence of any principled basis upon which such [look-out] procedures are instituted” (para. 271). His conclusion, supported by numerous examples, was that untrained Customs officials were too quick to equate homosexuality with obscenity.
38 In this Court the Crown acknowledged that errors were made in the classification of the appellants' imported materials, but says that such errors were only to be expected given the huge volume of cross-border mail handled at the Vancouver Customs Mail Centre each day. The Crown went on to say that the problems encountered by the appellants and dealt with in the trial evidence have been addressed by amendments to the Customs Act and changes in procedure. This is partly true, but I do not myself think it is open to the Crown to contest the two-month trial that resulted in the judgment of January 19, 1996, which was very critical of the Customs department and then to turn around and explain that “that was then, and this is now”. The appellants are entitled to a determination of their rights on the basis of the evidence called before the trial judge, and to relief that goes beyond registering an act of faith in the continuance of the department’s expressed good intentions.
39 I propose first to deal with the relationship between the Customs legislation and the obscenity provisions of the Criminal Code as interpreted in Butler. My conclusion is that the Customs legislation violates the appellants’ freedom of expression, as the Crown is prepared to concede, but with the exception of the reverse onus provision in s. 152(3) of the Customs Act, it constitutes a reasonable limit prescribed by law which the Crown has justified under s. 1 of the Charter.
40 The administration of the Act, however, was characterized by conduct of Customs officials that was oppressive and dismissive of the appellants’ freedom of expression. Its effect – whether intended or not – was to isolate and disparage the appellants on the basis of their sexual orientation. The declaratory relief granted by the courts in British Columbia fell short of giving specific guidance to Customs in respect of future action. The appellants, however, did not pursue more structured relief under s. 24(1) of the Charter in their appeal to the British Columbia Court of Appeal or to this Court. Their primary objective was and is to have the Customs legislation declared unconstitutional under s. 52(1) of the Constitution Act, 1982, either generally or in relation to importations by the gay and lesbian community. In my view, the appellants' attack on the legislation is correct only in part, that is to say in relation to the application of the reverse onus provision, but as to that part the appeal must be allowed.
A. The Appellants’ Attack on the Customs Tariff Act and the Customs Act
41 The appellants allege, and the Crown agrees, that the Customs legislation constitutes a prima facie limitation on their s. 2(b) freedom of expression which must be justified under s. 1 of the Charter. The Constitution protects the right to receive expressive material as much as it does the right to create it: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1339-40. Section 2(b) “protects listeners as well as speakers”: Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at p. 767.
42 Beyond this common ground, however, the appellants attack the constitutionality of the Customs legislation on two more specific grounds. First the appellants argue that the “harm-based” interpretation given to s. 163 of the Criminal Code in Butler, supra, does not apply to gay and lesbian erotica in the same way as it does to heterosexual erotica, or perhaps at all. Because the prohibition against importation of obscene goods contained in the Customs legislation is rooted explicitly in s. 163 of the Criminal Code, acceptance of this argument would mean that gay and lesbian publications would not be subject to the ordinary border regime applicable to other forms of expression.
43 Secondly, the appellants say that the procedure laid down in the Customs legislation is so cumbersome and procedurally defective that it is incapable of being administered consistently with the protection of their Charter rights. They analogize the multi-tier internal review process and its attendant complexities and delays to the procedural requirements struck down in R. v. Morgentaler, [1988] 1 S.C.R. 30, where Dickson C.J. held that the source of the unconstitutional delay in access to therapeutic abortions was the impugned Criminal Code provision itself. He said, at p. 60:
One must conclude, and perhaps underline, that the delay experienced by many women seeking a therapeutic abortion, be it of one, two, four, or six weeks' duration, is caused in large measure by the requirements of s. 251 itself. [Emphasis added.]
44 My conclusion on the first branch of the appellants’ attack is that the Butler analysis does not discriminate against the gay and lesbian community. Butler is directed to the prevention of harm, and is indifferent to whether such harm arises in the context of heterosexuality or homosexuality. Nor in my view is the gay and lesbian community discriminated against in the Customs legislation, which is quite capable of being administered in a manner that respects Charter rights. The government is entitled to impose border inspections of expressive material. The obstacles experienced by the appellants and detailed at length by the trial judge were not inherent in the statutory scheme. The obstacles were, however, very real and in the end quite unjustified.
B. The Tariff Definition of Obscenity
45 The classification of imported “expressive material” is referred to in Code 9956(a) of Schedule VII of the Customs Tariff, which prohibits the importation of goods described as:
Books, printed paper, drawings, paintings, prints, photographs or representations of any kind that
(a) are deemed to be obscene under subsection 163(8) of the Criminal Code. [Emphasis added.]
46 The incorporation by reference of s. 163(8) in the Customs Tariff requires Customs officials to apply that definition of obscenity, which provides as follows:
163. . . .
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. [Emphasis added.]
C. The Butler Definition
47 Section 163(8) of the Criminal Code was authoritatively interpreted by this Court in Butler, supra. Parliament, it was held, had distanced itself from the old common law Hicklin test which defined obscenity in terms of whether the material in question would result in the “corruption of morals”. See R. v. Hicklin (1868), L.R. 3 Q.B. 360. “The prevention of ‘dirt for dirt’s sake’”, Sopinka J. for the majority, said at pp. 492-93, “is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter”. For ease of analysis, Sopinka J. divided potentially obscene material into three categories at p. 484:
(1) explicit sex with violence,
(2) explicit sex without violence, but which subjects participants to treatment that is degrading or dehumanizing if the material creates a substantial risk of harm,
(3) explicit sex without violence among adults that is neither degrading nor dehumanizing.
48 In applying the community standard of tolerance to each of these categories, Butler concluded (at p. 485) that the first category – the depiction of explicit sex coupled with violence – will “almost always” constitute the undue exploitation of sex. The second category – explicit sex that is “degrading or dehumanizing” – may be undue “if the risk of harm is substantial”. The third category – explicit sex that is not violent and is neither degrading nor dehumanizing – is “generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production”.
49 The key word in the statutory definition – “undue” – was interpreted to incorporate an assessment of the broader community’s tolerance of harm. As Sopinka J. states at p. 479:
This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women.
50 Again, at p. 481, after citing Wilson J. in Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494, Sopinka J. emphasizes that “[t]he community is the arbiter as to what is harmful to it”. And, at p. 485, he says:
The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. [Emphasis added.]
51 This approach was accepted by Gonthier J., concurring, who said at p. 520:
In this context, tolerance must be related to the harm. It must mean not only tolerance of the materials, but also tolerance of the harm which they may bring about. [Emphasis added.]
52 In the result, Butler affirmed constitutional protection for sexually explicit expression and drew the boundary only where harm exceeded the community’s level of tolerance. Section 163(8) of the Criminal Code was upheld on the basis that (i) the definition, as interpreted, was sufficiently certain to be “prescribed by law” and (ii) being defined as a harm-based obscenity provision, it addressed a substantial and pressing social objective in a rational and proportionate way.
D. Analysis of the Appellants’ Criticism of the Butler Test
53 The appellants question the correctness of Butler and say, in any event, that its approach cannot be freely transferred from heterosexual erotica to gay and lesbian erotica. No constitutional question was stated regarding the validity or constitutional limits of s. 163 of the Criminal Code. The absence of notice of such a constitutional question precludes the wide-ranging reconsideration of Butler sought by the appellants and some of the interveners (even if the Court were to conclude that such a reconsideration is either necessary or desirable). On the more specific issues, the appellants, and the interveners in their support, argue that in the context of the Customs legislation a “harm-based” approach which utilizes a single community standard across all regions and groups within society is insufficiently “contextual” or sensitive to specific circumstances to give effect to the equality rights of gays and lesbians. The appellants, supported by the interveners LEAF and EGALE, contend that homosexual erotica plays an important role in providing a positive self-image to gays and lesbians, who may feel isolated and rejected in the heterosexual mainstream. Erotica provides a positive celebration of what it means to be gay or lesbian. As such, it is argued that sexual speech in the context of gay and lesbian culture is a core value and Butler cannot legitimately be applied to locate it at the fringes of s. 2(b) expression. Erotica, they contend, plays a different role in a gay and lesbian community than it does in a heterosexual community, and the Butler approach based, they say, on heterosexual norms, is oblivious to this fact. Gays and lesbians are defined by their sexuality and are therefore disproportionately vulnerable to sexual censorship.
54 The appellants’ criticisms of Butler can, for present purposes, be grouped under the following headings.
(a) The Community Standard of Tolerance Is Majoritarian and Suppresses Minority Speech, Including Homosexual Expression
55 The appellants contend that importing a majoritarian analysis into the definition of obscenity (e.g. what the broader Canadian community will tolerate), inevitably creates prejudice against non-mainstream, minority representations of sex and sexuality. They argue that the "national" community is by definition majoritarian and is more likely than the homosexual community itself to view gay and lesbian imagery as degrading and dehumanizing. The whole idea of a community standards test, they say, is incompatible with Charter values that were enacted to protect minority rights. The fact that no particular evidence to define the community standard is required to support a successful prosecution heightens the vulnerability of minorities (B. Cossman et al., Bad Attitude/s on Trial: Pornography, Feminism, and the Butler Decision (1997), at pp. 107-8). What makes this standard even more problematic in the context of gay and lesbian erotica is that where expression is suppressed on the basis of sexual orientation, so goes the argument, it silences voices that are already suppressed and subject to discrimination. Professor Richard Moon says that in Butler “[j]udicial subjectivity (value judgment) is simply dressed up in the objective garb of community standards” (“R. v. Butler: The Limits of the Supreme Court’s Feminist Re-Interpretation of Section 163” (1993), 25 Ottawa L. Rev. 361, at p. 370).
56 This line of criticism underestimates Butler. While it is of course true that under s. 163 of the Criminal Code the “community standard” is identified by a jury or a judge sitting alone, and to that extent involves an attribution rather than an opinion poll, the test was adopted to underscore the unacceptability of the trier of fact indulging personal biases, as was held to have happened in Towne Cinema, supra. A concern for minority expression is one of the principal factors that led to adoption of the national community test in Butler in the first place, per Sopinka J., at p. 484:
Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre. Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading or dehumanizing. See Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (1985) (the Fraser Report), vol. 1, at p. 51. Because this is not a matter that is susceptible of proof in the traditional way and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex. That arbiter is the community as a whole.
57 The protective character of the national standard requirement is readily apparent from the summation of the test in Butler (at p. 485):
If material is not obscene under this framework, it does not become so by reason of the person to whom it is or may be shown or exposed nor by reason of the place or manner in which it is shown.
In other words, a person's constitutionally protected space does not shrink by virtue of his or her geographical location or participation in a certain context or community, or indeed by the taste of a particular judge or jury. It is not necessarily in the interest of the minority to disaggregate community standards. The appellants have in mind a special standard related to their lesbian and gay target audience. The fact is, however, that they operate a bookstore in a very public place open to anyone who happens by, including potentially outraged individuals of the local community who might wish to have the bookstore closed down altogether. If “special standards” are to apply, whose “special standard” is it to be? There is some safety in numbers, and a national constituency that is made up of many different minorities is a guarantee of tolerance for minority expression.
58 Butler affirmed that Parliament had successfully criminalized harmful sexual expression, that is to say sexual expression that is shown to be incompatible with society’s proper functioning, but Canadian society also recognizes as fundamental to its proper functioning the Charter rights to freedom of expression and equality. The standard of tolerance of this same Canadian society cannot reasonably be interpreted as seeking to suppress sexual expression in the gay and lesbian community in a discriminatory way.
59 It may serve repeating that the national community standard relates to harm not taste, and is restricted, per Sopinka J., at p. 485, to “conduct which society formally recognizes as incompatible with its proper functioning”. The test is therefore not only concerned with harm, but harm that rises to the level of being incompatible with the proper functioning of Canadian society. The Canadian Civil Liberties Association (CCLA) argues that “for gays and lesbians erotica and other material with sexual content is not harmful and is in fact a key element of the quest for self-fulfilment” (factum, at para. 14). So described, the CCLA has defined the material safely outside the Butler paradigm. Butler placed harmful expression – not sexual expression – at the margin of s. 2(b).
(b) The Degrading or Dehumanizing Test Is Open to Homophobic Prejudice
60 The appellants argue that the “degrading or dehumanizing” language in Butler is highly subjective and encouraged Customs, for example, to prohibit depictions of anal intercourse long after the Department of Justice advised Customs to the contrary. This argument seems to ignore that the phrase “degrading or dehumanizing” in Butler is qualified immediately by the words “if the risk of harm is substantial” (p. 485 (emphasis added)). This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene. The material must also create a substantial risk of harm which exceeds the community’s tolerance. The potential of harm and a same-sex depiction are not necessarily mutually exclusive. Portrayal of a dominatrix engaged in the non-violent degradation of an ostensibly willing sex slave is no less dehumanizing if the victim happens to be of the same sex, and no less (and no more) harmful in its reassurance to the viewer that the victim finds such conduct both normal and pleasurable. Parliament’s concern was with behavioural changes in the voyeur that are potentially harmful in ways or to an extent that the community is not prepared to tolerate. There is no reason to restrict that concern to the heterosexual community.
(c) The Harm-Based Approach Is Merely Morality in Disguise
61 The appellants argue that while the Court in Butler purported to move away from the morality-based approach, a harm-based test effectively rests on the same discredited moral foundation.
62 This line of argument simply rejects the idea that Butler means what it says, i.e., that the community standard of tolerance is based on the reasonable apprehension of harm, not on morality. The arguments assume that any appeal to a national community standard cannot be targeted on harm and will inevitably be overwhelmed by majoritarian taste. This approach presupposes that the arbiter (the broader community) is incapable of being focussed on the task that it is required to address (harm). We have no evidence that the courts are not able to apply the Butler test, and the reported decisions seem to confirm that the identification of harm is a well understood requirement: R. v. Hawkins (1993), 15 O.R. (3d) 549 (C.A.), at p. 566; R. v. Jacob (1996), 112 C.C.C. (3d) 1 (Ont. C.A.), a case of alleged indecent exposure; and R. v. Erotica Video Exchange Ltd. (1994), 163 A.R. 181 (Prov. Ct.).
63 The intervener LEAF took the position that sado-masochism performs an emancipatory role in gay and lesbian culture and should therefore be judged by a different standard from that applicable to heterosexual culture. In support of this position LEAF points out that, by definition, gender discrimination is not an issue in “same-sex erotica”. On the other hand, the intervener Equality Now took the view that gay and lesbian individuals have as much right as their heterosexual counterparts to be protected from depictions of sex with violence or sexual conduct that is dehumanizing or degrading in a way that can cause harm that exceeds community standards of tolerance.
64 LEAF’s argument seems to presuppose that the Butler test is exclusively gender-based. Violence against women was only one of several concerns, albeit an important one, that led to the formulation of the Butler harm-based test, which itself is gender neutral. While it would be quite open to the appellants to argue that a particular publication does not exceed the general community’s tolerance of harm for various reasons, gay and lesbian culture as such does not constitute a general exemption from the Butler test.
(d) The Butler Test Is Oriented to Sexually Explicit Videos and Is Inappropriate for a Written Text
65 A judicial decision is always to be read in the context of its particular facts. The Butler case largely involved videos. Nevertheless, there is nothing in the judgments of Sopinka and Gonthier JJ. to suggest that the Butler test was not intended to apply to written texts. I do not underestimate the importance of the medium, but ultimately Butler's concern was not with the medium but with the message. It may be very difficult to make the case of obscenity against a book, which is a medium perhaps less likely to be conducive to harm and more likely to be protected by the artistic merit or “inherent necessities” defence. The history of unsuccessful prosecutions of literary works in this country since Brodie v. The Queen, [1962] S.C.R. 681 (Lady Chatterley's Lover) seems to bear out this difficulty. In the Customs context, the time involved to review properly a written text of considerable length for obscenity may be out of all proportion to the supposed benefits. At some point Customs authorities may decide that book banning should in most cases be left to those responsible for enforcing the Criminal Code. However, the sheer difficulty of making a successful obscenity case against a book should be seen by the appellants, I would have thought, as one of the merits of the Butler test.
(e) The Butler Record Did Not Include Erotica Targeted at a Gay and Lesbian Clientele
66 The appellants argue that the lesbian depictions in the Butler record were aimed at a heterosexual male audience, and that the Court did not have occasion to address the differences between heterosexual and homosexual erotica. The trial judge certainly noted such differences, albeit recognizing that the “target audience” concept had been rejected in Towne Cinema, supra. He also accepted as a sufficient basis for parliamentary intervention a “reasoned apprehension of harm” (Butler, at p. 504), and in this respect he relied on the conclusion of Professor Neil M. Malamuth that “homosexual pornography may have harmful effects even if it is distinct in certain ways from heterosexual pornography”. Professor Malamuth further observed that:
In recent years, [there] has been increasing scientific research indicating that some of the behaviors that might be related to exposure to some types of pornography are a serious problem within the gay community as well as within the heterosexual one. . . . [T]here are studies suggesting that within homosexual interactions the frequency of sexually coercive acts as well as non-sexual aggression between intimates occurs at a frequency quite comparable to heterosexual interactions.
67 The trial judge concluded that while erotica plays a more central role in gay and lesbian culture than in heterosexual culture, the “harm-based” Butler approach is applicable to both. In the application of the test, a court is able to sift out erotica that in fact falls within the community’s tolerance of harm. While the social science evidence is thin, it must be remembered that in Butler itself the Court accepted that the Crown could not be required to adduce a higher level of proof than the subject matter admits of. As Sopinka J. stated at p. 502:
While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs.
and at p. 504:
I am in agreement with Twaddle J.A. who expressed the view that Parliament was entitled to have a “reasoned apprehension of harm” resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations.
68 I agree with the trial judge and with the majority of the British Columbia Court of Appeal that the attempt to carve out of Butler a special exception for gay and lesbian erotica should be rejected.
E. Conclusion on Butler Issues
69 Accordingly, the legislative core of the Customs Tariff prohibition, i.e., imported material that meets the obscenity provisions of s. 163 of the Criminal Code as interpreted in Butler, survives Charter scrutiny in the context of gay and lesbian culture. The appellants argue that Butler applied by a Customs officer raises a different free speech issue than Butler applied by a court. In my view, however, Customs review should be seen in the context of proceedings leading to court (if Customs pursues the prohibitions) as discussed below.
F. Attack on the Constitutionality of the Decision-Making Structure Created by the Customs Act
70 On this branch of the argument the appellants claim that the statutory Customs border review procedures achieve a level of unworkability comparable to the abortion provisions of the Criminal Code which the Court held to be unconstitutional in Morgentaler, supra. Similar arguments were considered in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and R. v. Bain, [1992] 1 S.C.R. 91. In those cases, the Court found that the source of unconstitutionality resided in the legislation itself. I therefore turn in the first instance to an examination of the Customs Tariff and the Customs Act in light of the appellants' complaints. I will then take a more detailed look at the relevant authorities.
71 The appellants say a regulatory structure that is open to the level of maladministration described in the trial judgment is unconstitutionally underprotective of their constitutional rights and should be struck down in its entirety. In effect they argue that Parliament was required to proceed by way of legislation rather than the creation of a delegated power of regulation in s. 164(1)(j), which authorizes the Governor in Council to “make regulations . . . generally, to carry out the purposes and provisions of this Act”, or by ministerial directive. My colleague Iacobucci J. accepts the propositions that “[t]his Court's precedents demand sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights” (para. 204) and because “the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive materials” (para. 211), Code 9956 should be struck from the Customs Tariff. I do not think there is any constitutional rule that requires Parliament to deal with Customs' treatment of constitutionally protected expressive material by legislation (as the appellants contend) rather than by way of regulation (as Parliament contemplated in s. 164(1)(j)) or even by ministerial directive or departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service.
72 The authorities relied on by my colleague all deal with legislation that itself contained problematic provisions. In this case, the complaint is about the absence of affirmative provisions, per Iacobucci J., at para. 166: “The Customs legislation lacks the most basic procedures necessary for a fair and accurate determination of whether something is obscene.” To put it another way, the appellants' complaint is about what Parliament did not enact rather than what it did enact. The imposition on Parliament of a constitutional obligation to deal itself with Charter-sensitive matters rather than by permitting Parliament the option of enacting a delegated regulation-making power has serious ramifications for the machinery of government. I do not agree that Parliament’s options are so limited.
73 The initial question, however, is whether the Customs legislation itself contains procedures that infringe Charter rights, as in Morgentaler, or whether the problem here is implementation, aggravated by administrative constraints such as limited budgets and lack of qualified personnel, as found by the trial judge.
74 The appellants’ argument can be organized under the following headings.
(a) The Crudity of the Decision-making Process
75 The trial judge described the process thus (at para. 256):
. . . while memorandum D9-1-1 requires classifying officers to read books from cover to cover, some officers simply thumb through them or read pages at random. Many officers review videotapes with the assistance of a fast-forward device, stopping only to examine scenes of explicit sex; they do not listen to the soundtrack. Some who testified acknowledged that they are not capable of determining artistic merit and that they do not attempt to do so. Others claim to consider each item carefully and completely and to determine whether the work has a valid purpose.
76 The appellants complain that there is no provision in the Customs legislation for a hearing (written or oral) and no opportunity for the importer to adduce evidence to inform the Customs officer. No reasons are typically given by Customs for a prohibition beyond a tick in one of eight boxes entitled “Sex With Violence”, “Child Sex”, “Incest”, “Bestiality”, “Necrophilia”, “Hate Propaganda”, “Anal Penetration”, and “Other”. The box “Other” is followed by a short line on which the inspector could write one or two words to describe the ground for prohibition, but rarely did so in sufficient detail to be informative.
77 While these complaints have some substance, they address the statutory scheme as operated by officials rather than the statutory scheme itself. The Constitution does not prohibit border inspections: R. v. Simmons, [1988] 2 S.C.R. 495. Any border inspection may involve detention and, because Customs officials are only human, erroneous determinations. Thus the trial judge found at para. 234 that:
The deleterious effects of the legislation as opposed to the effects of its administration and application, are that admissible material is sometimes detained to be examined for compliance and that wrong decisions are sometimes made in the classification of materials. [Emphasis added.]
I regard such potential as inherent in any border surveillance scheme. Of themselves, they afford no reason to declare the legislation unconstitutional.
78 If Parliament can validly prohibit obscenity, and Butler held that it had validly done so, the prohibition can be imposed at the border as well as within the country. The only expressive material that Parliament has authorized Customs to prohibit as obscene is material that is, by definition, the subject of criminal penalties for those who are engaged in its production or trafficking (or have possession of it for those purposes). The concern with prior restraint, discussed by my colleague Iacobucci J. at paras. 232 to 236, operates in such circumstances, if at all, with much reduced importance.
79 In the Customs context, procedures are inevitably different than in a prosecution for a criminal offence, but I do not read Butler's linkage between constitutionality and a reasoned apprehension of harm as being contingent on the availability of a full trial in a criminal court. Criminal offences require criminal procedures. The role and function of border inspections are quite different.
80 The classification exercise under Code 9956 largely consists of the Customs inspector making a comparison of the imported materials with the illustrated manual that accompanied Customs Memorandum D9-1-1. If a picture in an imported magazine, for example, looks to the Customs inspector like a “sample” of obscenity described in D9-1-1, or depicted in its companion document of illustrations, it is deemed by Customs to be obscene. There is not much scope in the process to evaluate artistic merit or indeed for any of the subtleties of the jurisprudence under s. 163. The trial judge found that “importers have no guarantee that they may see, and in fact are discouraged from seeing, the prohibited material for purposes of preparing a submission on a request for re-determination” (para. 65). The process is no more than it purports to be, a rough and ready border screening procedure that may lead Customs (with or without a re-determination at a more senior departmental level) to refuse entry to the goods. Parliament was entitled to assume that refusal would not be given without reasonable cause. Such a refusal, it is important to emphasize, is subject to appeal to the courts.
81 The evidence is that at the second stage re-determination, the material is reviewed by a small number of Customs officials who work for approximately three to six months in the Prohibited Importations Directorate. The assignment is unpopular. The officials are given little training except “on-the-job” experience. The legislation mandates neither the level of resources nor the requisite training. The department sets its own priorities within the resources put at its disposal.
82 Iacobucci J. argues that Parliament was constitutionally required to spell out a more rights-protective regime in the Act itself, but in my view, for the reasons given below, it was open to Parliament in creating this type of government machinery to lay out the broad outline in the legislation and leave its implementation to regulation by the Governor in Council or departmental procedures established under the authority of the Minister. A failure at the implementation level, which clearly existed here, can be addressed at the implementation level.
(b) The Inadequacies of Memorandum D9-1-1
83 Memorandum D9-1-1 is acknowledged by Customs as their key working tool but it is of uncertain origins and level of approval. The Memorandum was divided into various sections, and was accompanied by an illustrated manual showing depictions of various sexual activities thought by Customs to be “degrading or dehumanizing”. There was no recognition in the version of Memorandum D9-1-1 in use at the time of the events described at trial that the community standard related to tolerance of harm rather than taste.
84 The evidence established that for all practical purposes Memorandum D9-1-1, and especially the companion illustrated manual, governed Customs’ view of obscenity. The Customs' view was occasionally intransigent. Reference has already been made to the opinion from the Department of Justice that depiction of anal intercourse was not as such obscene. That opinion was ignored for at least two years while imported materials depicting anal intercourse continued to be prohibited on the basis of the outdated Memorandum D9-1-1.
85 The trial judge concluded that Customs’ failure to make Memorandum D9-1-1 conform to the Justice Department opinion on the definition of obscenity violated the appellants’ Charter rights. However, I agree with the British Columbia Court of Appeal that the trial judge put too much weight on the Memorandum, which was nothing more than an internal administrative aid to Customs inspectors. It was not law. It could never have been relied upon by Customs in court to defend a challenged prohibition. The failure of Customs to keep the document updated is deplorable public administration, because use of the defective guide led to erroneous decisions that imposed an unnecessary administrative burden and cost on importers and Customs officers alike. Where an importer could not have afforded to carry the fight to the courts a defective Memorandum D9-1-1 may have directly contributed to a denial of constitutional rights. It is the statutory decision, however, not the manual, that constituted the denial. It is simply not feasible for the courts to review for Charter compliance the vast array of manuals and guides prepared by the public service for the internal guidance of officials. The courts are concerned with the legality of the decisions, not the quality of the guidebooks, although of course the fate of the two are not unrelated.
(c) Non-Observance of Time Limits
86 The initial inspection is carried out under s. 58 of the Customs Act, which authorizes Customs officers to determine the tariff classification of imported goods. In the case of goods that are not “prohibited”, the Customs Act requires the Customs officer to determine the classification of imported goods within 30 days after being “accounted for” by the importer. Unless the Customs officer makes a contrary classification within the 30-day period, the classification proposed by the importer is accepted.
87 In this Court the appellants stated, and the Crown agreed, that the 30-day time limit did not apply in the case of “prohibited goods”. The appellants' motive, I infer, was to show how unworkable the statute is, but there is nothing in the Act to support such an interpretation. It makes no administrative sense because goods only become “prohibited” as a result of the classification process. If no classification is made the goods cannot have “prohibited” status, and the trigger for the supposed exception does not exist.
88 Accordingly, if Customs does not make a classification within 30 days the importer’s classification applies. If the department, while failing to act in a timely way, nevertheless regards the materials as obscene, the matter may be referred to the provincial authorities who may decide to commence a prosecution under the Criminal Code. The 30-day decision period was an important protection inserted in the Customs Act for the benefit of importers.
89 The evidence demonstrated that Customs, because of scarce resources or otherwise, failed to carry out the classification exercise sometimes for many months. As the trial judge found at para. 112 of his judgment:
Often, decisions are not made within the statutorily‑prescribed time limits. The plaintiffs identified many instances where the thirty‑day time limit between detention and determination under s. 58 was exceeded. As well, they identified many instances where the date of detention was incorrectly recorded on the Form K27, making it impossible to determine whether the thirty‑day time limit was observed.
90 These deficiencies could clearly have been addressed by regulatory provisions made under s. 164(1)(j) or ministerial directions to Customs officials. In the absence of such public service initiatives, an action against the Crown in respect of an unlawfully detained shipment of material accompanied by a substantial award of costs would likely have a salutary effect in keeping Customs focussed on the deadlines imposed by Parliament.
(d) Delays in the Internal Review and Reconsideration Process
91 Once a classification has been made, an importer who disagrees with the classification has 90 days to appeal the “determination” to a designated officer “in the prescribed manner and in the prescribed form”. Section 60(3) requires the designated official to “re-determine” the tariff classification “with all due dispatch”. The evidence is that “all due dispatch” was loosely interpreted in the case of the appellants' shipments. On this point the trial judge found (at para. 113):
Re‑determinations requested by Little Sisters under s. 60 were completed in times ranging from ten days to three and one‑half months. It was conceded by Customs' witnesses at trial that the reviewing officer could not have read the books in question in some instances within the time it took to give the decision.
92 Parliament’s direction that the re-determination be made with “all due dispatch” must be given content. The original determination must be made within 30 days and there is no evidence that the re-determination should take longer. (Under the terms of the subsequent Customs Act amendments, the determination must be made by or at the time of accounting, which equally contemplates a speedy procedure.) If Customs fails to make a re-determination within the allotted time, an importer may apply for an order of mandamus, with costs, to require that Customs reach a decision one way or the other.
93 Following the re-determination, a disappointed importer can make a further appeal to the Deputy Minister or his designate under s. 63 of the Act. This level of review allows the department at a senior level the opportunity to reverse the earlier determination of the imported material as obscene unless the Deputy Minister or his designate is prepared to go to court to defend the prohibition. Once again, the decision is to be made “with all due dispatch”. Parliament’s intention seems clearly to be to hurry the process along, and there is no reason to expect “all due dispatch” at this second stage of re-determination will exceed 30 days either. The fact Parliament eliminated the middle stage of the process after the trial seems to confirm its desire for a streamlined decision-making process within the department.
94 The trial judge found (at para. 113) that some requests for re-determination under s. 63 took more than a year for decision. Such a delay is not in accordance with the Act. It must be remembered that these stages of administrative re-determination are internal procedures with no opportunity given to the importer to be heard or to adduce evidence. They were put in place, as Minister George Nowlan told the House of Commons, to deal with “cabbages and cucumbers” (see para. 15, supra). They are not in any sense “hearings” on the merits. Their purpose is to afford the departmental hierarchy the opportunity to reverse a first stage determination if it is not prepared to defend it. “[A]ll due dispatch” means that now, after the recent amendment, an importer should have a final departmental decision within 30 days after it seeks a review of the initial determination that Customs “deems” the imported publication to be obscene. This compares favourably with the 60-day limit stipulated in United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971), referred to by Iacobucci J. at para. 241.
(e) The Desirability of a Specialized Tribunal
95 The appellants argue that controversies involving freedom of expression and equality rights ought not to be left in the hands of the usual bureaucratic decision-making machinery. They point to the establishment in South Africa of the Indecent Publications Tribunal, now replaced by the Office of Film and Literature Classification and the Publications Appeal Board, and the Office of Film and Literature Classification in Australia. The creation of such bodies reflects the importance properly attached to expressive material and seems to allow for a speedier and more specialized process to deal with subject matter which our Customs department has found it very difficult to deal with. However, while such a body may find favour with Parliament at some stage, the present policy is to utilize the ordinary public service and the courts and there is nothing unconstitutional about the absence of a specialized tribunal from the statutory scheme.
(f) The Attack on Book Banning
96 The evidence is that Customs officials failed in general to deal properly with books. Few, if any, were read in their entirety. The usual procedure was for a Customs official to thumb through the pages of a book and as soon as three passages replicating material considered to be obscene under Memorandum D9-1-1 were identified in the text the book was deemed obscene and prohibited. The procedure would be clearly inadequate in all but the most egregious cases. No attempt was made to gain an impression of the book as a whole on which “artistic merit” could be assessed.
(g) Onus of Proof of Obscenity
97 The constitutional question challenges the validity of s. 71 of the Customs Act, on which the redetermination and court proceedings are based. In part, the challenge relies on the “reverse onus” provision applied in such proceedings by virtue of s. 152(3) of the Customs Act, as explained in oral argument by counsel for the appellants:
We challenge the entire scheme, not just the power of the Customs officer at the front line to do that detention and prohibition, but the scheme insofar as it puts the onus on the importer, whether the importer is a bookstore or a regular individual to seek a redetermination, or review, or appeal, would have you through a byzantine bureaucratic process and ultimately to the Courts in order to prove that the material is not obscene. [Emphasis added.]
98 Section 152(3) is not specific to obscenity or even to prohibited goods generally, but applies to “any proceeding under this Act”, including the appeals process authorized by s. 71. Section 152(3) directs the decision-maker to assume that Customs officials are right unless and until the importer proves them to be wrong. It provides:
152. . . .
(3) Subject to subsection (4), in any proceeding under this Act, the burden of proof in any question relating to
. . .
(d) the compliance with any of the provisions of this Act or the regulations in respect of any goods
lies on the person, other than Her Majesty, who is a party to the proceeding or the person who is accused of an offence, and not on Her Majesty.
99 The appellants did not directly impugn the constitutionality of the reverse onus provision in their application to state the constitutional questions, presumably because they intended to rely on its continued validity as a lever to overturn the rest of the Customs legislation in relation to expressive materials. In my view, however, the appellants' attack on s. 71 and the procedures it authorizes is inextricably bound up with the reverse onus provision, and the Court is not bound to accept the application of the latter as valid when considering the constitutionality of the former. The constitutional question in relation to s. 71 encompasses both aspects of the appellants' argument.
100 The first step is to identify which of the various remedies afforded by s. 71 attract the s. 152(3) onus. Where applicable, it would put on the importer the burden of establishing a negative, i.e., that the expressive material is more likely than not to be non-obscene.
101 The word “proceeding” is of course apt to apply to any court action that may follow an in-house Customs determination. In my view, however, the provision cannot constitutionally apply to put on the importer the onus of disproving obscenity. Otherwise entry of expressive materials could be denied by reason of the onus even where the standard of obscenity is not met, as for example, where an importer lacks the resources or the stamina to contest an initial determination. An importer has a Charter right to receive expressive material unless the state can justify its denial. It is not open to the state to put the onus on an individual to show why he or she should be allowed to exercise a Charter right. It is for the state to establish that a limitation on the Charter right is justified: R. v. Oakes, [1986] 1 S.C.R. 103, per Dickson C.J., at pp. 136-37: “The onus of proving that a limit on a right or freedom guaranteed by the Charter is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation.”
102 As to the obscenity determination at the departmental level, I do not think s. 152(3) applies at all. The Crown does not contend that all expressive material entering Canada is presumptively obscene until shown to be otherwise. The earliest the reverse onus could apply with any logic is in the re-determination, but at that stage the importer is given neither sufficient notice nor a sufficient opportunity to be heard to discharge the onus. The reality is that once the front-line officer has made the initial determination that he or she considers the publication to be obscene, the question for the Deputy Minister or designate on the re-determination is whether the Department is ready, willing and able, if required, to establish in court that the detained material is obscene.
103 The Crown received notice in Glad Day Bookshop Inc. v. Canada (Deputy Minister of National Revenue, Customs and Excise), [1992] O.J. No. 1466 (QL) (Gen. Div.) (“Glad Day (No. 2)”) that s. 152(3) could not reverse the onus of proof on the obscenity issue onto the importer, and in this Court the Crown tried neither to defend the application of s. 152(3) to obscenity nor to advance any s. 1 justification. These concessions were, I believe, quite correct.
104 In Glad Day (No. 2), Hayes J. went on to rule that not only did the Crown carry the burden of proof but it must establish obscenity to the criminal standard. This goes too far. Although the Customs Tariff incorporates by reference the Criminal Code definition of obscenity, it does so into a civil proceeding which generally requires proof only on a balance of probabilities. The incorporation was made in response to Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, supra, which held that the prohibition of "immoral" and "indecent" materials in earlier Customs legislation was so vague as to be an unreasonable limit on s. 2(b) and to that extent was of no force or effect. We are dealing with the imposition in civil proceedings of a limitation on freedom of expression, and the imposition on the Crown of a civil standard of proof is consistent with the usual Charter requirement that the Crown need only justify an infringement to the civil standard.
105 As mentioned, s. 152(3) is not restricted to obscenity but has a broad application across the whole Customs process. It may be appropriate when dealing with imports of materials that ordinarily would not have much constitutional sensitivity (such as Minister Nowlan's “cabbages and cucumbers”) to put the onus on the importer at the court level to show that the Customs official has made an erroneous tariff classification. What may work as a general rule in circumstances where Customs procedures are not limited by constitutional rights does not, however, work in relation to constitutionally protected expressive materials. In these circumstances, however, the proper order should be limited to the matters pertinent to the disposition of this appeal. I would therefore declare that s. 152(3) is not to be construed and applied so as to place on an importer the onus to establish that goods are not obscene within the meaning of s. 163(8) of the Criminal Code. The burden of proving obscenity rests on the Crown or other person who alleges it.
(h) Appeal to the Courts
106 The initial appeal is to the superior court of the province in which the seizure occurred (ss. 67, 71) together with an appeal on a question of law to the Federal Court of Canada (s. 68).
107 In my view a court is the proper forum for resolution of an allegation of obscenity. The department at that stage has had the opportunity to determine whether it can establish on a balance of probabilities that the expressive material is obscene. The court is equipped to hear evidence, including evidence of artistic merit, and to apply the law. The absence of procedures for taking evidence at the departmental level requires the appeal to the court in obscenity matters to be interpreted as an appeal by way of a trial de novo. It is true that the importer is put to the trouble and expense of a defence to the obscenity issue, and that the Minister need only meet the civil burden of proof. These disadvantages are inherent in any civil litigation to vindicate rights. If the Crown loses the obscenity issue a civil court will normally – whereas the criminal court will normally not – award costs. If the court is of the view that in a particular case Customs officials have acted oppressively, costs can be awarded on a more generous scale.
G. The Appellants’ Claim that the Legislation Is Unconstitutionally Discriminatory Against the Gay and Lesbian Community
108 In addition to their free speech attack on the machinery of the Customs legislation, the individual appellants invoked their equality rights under s. 15(1) of the Charter. Their position is that the Customs legislation itself is the source of violations of s. 15(1) as well as s. 2(b) of the Charter, and they claim that they are entitled to a s. 52 nullification remedy based as much on infringement of their equality rights as on a denial of their right of free expression. It is therefore convenient, before addressing the Morgentaler issue, to determine whether their equality rights have been infringed and if so whether the source of the problem is the Customs legislation itself, as the appellants contend, or whether the problem described by the trial judge resulted from the unconstitutional conduct of Customs officials exercising powers under constitutional legislation.
109 The appellants argue that the legislative scheme operates with disproportionate and discriminatory effects on the gay and lesbian community and therefore contravenes s. 15(1) and is to that extent null and void.
110 A number of recent decisions in this Court have emphasized a “purposive” interpretation of s. 15(1) equality rights: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28; and Lovelace v. Ontario, [2000] 1 S.C.R. 950, 2000 SCC 37. These decisions were not available at the time this case was dealt with by the courts of British Columbia. It is now clearly established that the analysis proceeds in three stages with close regard to context. At the first stage the claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality. The second stage requires the claimant to demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds. The third stage requires the claimant to establish that the differentiation amounts to a form of discrimination that has the effect of demeaning the claimant’s human dignity. The “dignity” aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision. In Law, supra, the Court stated, at para. 51:
It may be said that the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.
111 The trial judge made strong findings of fact in support of the appellants’ position, even though in the end he refused substantial relief on this ground.
(a) Stage One: Differential Treatment
112 The trial judge found that shipments to gay and lesbian bookstores were subjected to delays and seizures that were not only unjustified but were disproportional to their share of imported material (paras. 105 and 251); that the appellants had imported publications seized notwithstanding the identical publications were freely available at other bookstores and in the Vancouver Public Library; and that these problems of differential treatment were systemic (para. 250). The trial judge found that “much homosexual erotica that has been prohibited as obscene is not, in fact, obscene” (para. 223 (emphasis added)). I will not repeat the findings in these respects set out earlier in these reasons. Contrary to the conclusion of the trial judge, however, the appellants contend that the source of this adverse treatment lies in the Customs legislation itself.
113 The appellants were seen as key players in the lesbian and gay community in Vancouver, and were targeted because homosexuality was too often equated with obscenity. While homosexuals are said to form less than 10 per cent of the Canadian population, up to 75 per cent of the material from time to time detained and examined for obscenity was directed to homosexual audiences. (The percentage varied of course.) The proportion of erotica produced for homosexual audiences detained and examined by Customs was, the trial judge found, “a proportion far in excess of the relative size of the group” (para. 251). There was evidence on which these findings could be made.
114 The trial judge identified Customs’ relentless pursuit of depictions of anal sex in gay erotica as symptomatic of the Department's misplaced zeal. It appears that the Department of Justice accepted as correct the view of Borins J. (as he then was) in R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154 (Ont. Co. Ct.), quoted in 1985 by Wilson J. in Towne Cinema, supra, at p. 523, that the courts have taken the view that “[c]ontemporary community standards would also tolerate the distribution of films which consist of scenes of group sex, lesbianism, fellatio, cunnilingus, and anal sex” (p. 173 (emphasis added)). Despite this opinion of the Department of Justice, Customs officials continued to prohibit depictions of anal sex until Memorandum D9-1-1 was revised in September 1994 just prior to trial. The trial judge found (at para. 272) that Customs' refusal to abide by the Justice opinion deprived the gay community
of representations of practices central to the values and culture of the minority group to which they belong. As well, as Professor Waugh pointed out, it constituted an embargo of “safe sex” guidelines within Canadian homosexual communities at a time, in the context of the AIDS epidemic, when such guidelines have been particularly important.
115 Significantly, the trial judge found that the failure of Customs to amend their manuals in this regard was no accident. He states (at para. 268):
The decision not to amend was one deliberately taken, and no satisfactory explanation was offered by the federal Crown for the fact that Customs continued to prohibit depictions of anal penetration in the face of the jurisprudence I have referred to and the opinions received from the Department of Justice.
116 Taking the evidence as a whole, it was clearly open to the trial judge to find, as he did, that the appellants suffered differential treatment when compared to importers of heterosexually explicit material, let alone more general bookstores that carried at least some of the same titles as Little Sisters.
(b) Stage Two: Enumerated and Analogous Grounds
117 The trial judge rejected the second stage of the appellants’ analysis despite his view that the appellants had suffered adverse treatment because they were part of, and suppliers to, the lesbian and gay community. He concluded the differentiation was based on “real” characteristics and not the “stereotypical application of presumed group or personal characteristics”. He thought it significant that both homosexuality and obscenity are defined in terms of sexual practices. He agreed that the differentiation was based on sexual orientation (second stage). He nevertheless found (at para. 135) no infringement because:
Since homosexuals are defined by their homosexuality and their art and literature is permeated with representations of their sexual practices, it is inevitable that they will be disproportionately affected by a law proscribing the proliferation of obscene sexual representations.
There was no evidence to support the linkage thus made between the frequency and scale of sexual representations and the quite different issue of obscenity. A flourishing of sexual expression may have no connection whatsoever with harm-based obscenity. The trial judge himself protested against the detention of a “disturbing amount of homosexual art and literature that is arguably not obscene” (para. 252). Nevertheless he concluded that much of the imported material could be seen as degrading and dehumanizing and therefore prohibited “because it is obscene, not because it is homosexual” (para. 136).
118 In my view, the issue of discrimination arises with regard to material that was not obscene but was nevertheless detained, damaged, misclassified or without justification turned back at the border because it was destined for the gay and lesbian community. While sexual orientation is not mentioned explicitly in s. 15 of the Charter, it is clearly an analogous ground to the listed personal characteristics, as was held in Egan v. Canada, [1995] 2 S.C.R. 513; Vriend v. Alberta, [1998] 1 S.C.R. 493, and M. v. H., [1999] 2 S.C.R. 3.
(c) Stage Three: Discrimination
119 There is no need here to review at length the “[contextual] factors which may be referred to by a s. 15(1) claimant in order to demonstrate that legislation has the effect of demeaning his or her dignity, as dignity is understood for the purpose of the Charter equality guarantee” (Law, supra, at para. 62). The Court held in Vriend, supra, that the gay and lesbian community has historically been the victim of disadvantage, stereotyping, prejudice and vulnerability. As discussed earlier, the community standard of tolerance of harm is a broad church that embraces respect for minority expression. It is antithetical to the remedial reasons underlying adoption of the community standard to single out a particular minority as being less worthy than others of protection and respect.
120 The appellants claim that only 14 charges of obscenity were laid in four years in British Columbia while approximately 35,000 prohibitions were imposed by Customs in the same period. We do not know how many of these charges relate to material imported by, amongst others, the appellants, or how many of the 14 charges (if any) resulted in convictions. Targeting is not necessarily unconstitutional. The Customs Department is obliged to use its limited resources in the most cost-effective way. This might include targeting shipments that, on the basis of experience or other information, are more likely than others to contain prohibited goods. The evidence here, however, did not justify the targeting of Little Sisters and the three other lesbian and gay bookstores. The Crown did not suggest that so-called XXX sex shops that specialize in hard core heterosexual material were subject to such blanket surveillance, even though, unlike in the case of Little Sisters, little if any of their stock is found routinely on display in the Vancouver Public Library. The appellants were entitled to the equal benefit of a fair and open Customs procedure, and because they imported gay and lesbian erotica, which was and is perfectly lawful, they were adversely affected in comparison to other individuals importing comparable publications of a heterosexual nature.
121 On a more general level, there was no evidence that homosexual erotica is proportionately more likely to be obscene than heterosexual erotica. It therefore cannot be said that there was any legitimate correspondence between the ground of alleged discrimination (sexual orientation) and the reality of the appellants’ circumstances (importers of books and other publications including, but by no means limited to, gay and lesbian erotica).
122 As to the nature and importance of the interest affected, the trial judge himself concluded that access to homosexual erotica was central to gay and lesbian culture at para. 128:
Because sexual practices are so integral to homosexual culture, any law proscribing representations of sexual practices will necessarily affect homosexuals to a greater extent than it will other groups in society, to whom representations of sexual practices are much less significant and for whom such representations play a relatively marginal role in art and literature.
123 There was ample evidence to support the trial judge's conclusion that 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. The Customs treatment was high-handed and dismissive of the appellants' right to receive lawful expressive material which they had every right to import. 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.
124 While here it is the interests of the gay and lesbian community that were targeted, other vulnerable groups may similarly be at risk from overzealous censorship. Little Sisters was targeted because it was considered “different”. On a more general level, it seems to me fundamentally unacceptable that expression which is free within the country can become stigmatized and harassed by government officials simply because it crosses an international boundary, and is thereby brought within the bailiwick of the Customs department. The appellants’ constitutional right to receive perfectly lawful gay and lesbian erotica should not be diminished by the fact their suppliers are, for the most part, located in the United States. Their freedom of expression does not stop at the border.
125 That having been said, there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation. The definition of obscenity, as already discussed, operates without distinction between homosexual and heterosexual erotica. The differentiation was made here at the administrative level in the implementation of the Customs legislation.
H. The Morgentaler Issue
126 My colleague Iacobucci J. concludes that even if the existence of some type of border inspection or surveillance could be justified under s. 1 of the Charter, this particular scheme fails the minimal impairment test because what Parliament has enacted is inherently and inevitably violative of rights of free expression.
127 In reaching this conclusion, Iacobucci J. relies on some of the things that Parliament could have said but does not say, and on this basis cites certain pronouncements in Morgentaler, Hunter v. Southam and Bain to find the Customs legislation unconstitutional. I do not disagree with what is said in those cases but, with respect, I do not find the legislation in this case to be comparable to the legislation at issue in those cases.
128 In Morgentaler, the unconstitutionally cumbersome procedures governing therapeutic abortion committees were spelled out in s. 251 of the Criminal Code. The legislative scheme itself was held to be unworkable. The problem resided in what was laid down by Parliament itself in the Criminal Code, not with what was not laid down. The procedures enacted by Parliament itself were the root cause of the Charter violations, per Dickson C.J., at p. 62:
It is not possible to say that delay results only from administrative constraints, such as limited budgets or a lack of qualified persons to sit on therapeutic abortion committees. Delay results from the cumbersome operating requirements of s. 251 itself.
. . .
Even if the purpose of legislation is unobjectionable, the administrative procedures created by law to bring that purpose into operation may produce unconstitutional effects, and the legislation should then be struck down. [Emphasis in original.]
The problem was located in s. 251 of the Code. It therefore had to be addressed at the legislative level. There is no equivalent in this case to the cumbersome statutory procedures imposed on therapeutic abortion committees by s. 251. It is true that at p. 68 Dickson C.J. also referred to the “further flaw” that Parliament had failed to provide in s. 251 “an adequate standard for therapeutic abortion committees which must determine when a therapeutic abortion should, as a matter of law, be granted”. In this case, the appropriate legal standard is supplied by the incorporation by reference of s. 163(8) of the Criminal Code, as Iacobucci J. concedes in para. 225.
129 In Hunter v. Southam, s. 10(3) of the Combines Investigation Act purported to permit a member of the Restrictive Trade Practices Commission to authorize a search and seizure. The Court held (at p. 164) that a condition precedent to a valid search was the requirement of an authorization – in advance where feasible – by an impartial arbiter. Parliament had vested members of the Restrictive Trade Practices Commission with investigatory functions. They were therefore not impartial in the matter of searches. The Act thus purported to confer on the members a power that could not constitutionally be granted to them, and nothing that they could do under the Act was capable of curing the statute’s wrongful attribution.
130 Dickson J. went on to consider the government's alternative argument, at p. 168:
. . . that even if subss. 10(1) and 10(3) do not specify a standard consistent with s. 8 for authorizing entry, search and seizure, they should not be struck down as inconsistent with the Charter, but rather that the appropriate standard should be read into these provisions. [Emphasis added.]
It was in this context that Dickson J. observed at p. 169:
It should not fall to the courts to fill in the details that will render legislative lacunae constitutional.
In the case of Customs prohibitions, as stated, the “standard” or legal threshold to lawful state intervention is found in the definition of obscenity in s. 163(8) of the Criminal Code. Section 163(8) is clearly specified in Customs Tariff Code 9956 (which my colleague would declare unconstitutional). Dickson J. did not go on to suggest, as does my colleague, that not only the standard but also the procedures attending its exercise must be spelled out in the legislation. If this is correct, there is a great deal of legislation governing Charter-sensitive conduct – by the police, for example – that is constitutionally deficient.
131 In Bain, supra, the accused challenged the lack of even-handedness in the selection process for a criminal jury. Parliament gave the Crown the ability to stand aside 48 prospective jurors and to challenge 4 jurors peremptorily. The accused in such case had but 12 peremptory challenges, a legislated advantage to the Crown of over 4 to 1. The Crown assured the court that its power would be exercised responsibly but the court considered that the discriminatory law could not be thus salvaged. Bain is the opposite of this case. There it was unsuccessfully argued that a discriminatory law was capable of implementation in a neutral fashion. Here the neutral law was found to have been implemented in a discriminatory fashion. The issues are different and the remedy is therefore not the same.
132 The Customs Act, as is the case with most departmental legislation, is rather short on the detail of how the department is actually to be run. This is for good reason. Departmental priorities change and resources rise and fall in response to a moving government agenda. The Minister requires flexibility to determine how the departmental mandate is to be met.
133 A large measure of discretion is granted in the administration of the Act, from the level of the Customs official up to the Minister, but it is well established that such discretion must be exercised in accordance with the Charter for the reasons articulated by Professor Peter Hogg in Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 34-11:
Action taken under statutory authority is valid only if it is within the scope of that authority. Since neither Parliament nor a Legislature can itself pass a law in breach of the Charter, neither body can authorize action which would be in breach of the Charter. Thus, the limitations on statutory authority which are imposed by the Charter will flow down the chain of statutory authority and apply to regulations, by-laws, orders, decisions and all other action (whether legislative, administrative or judicial) which depends for its validity on statutory authority.
Where legislation cannot be so construed, as in Hunter v. Southam, Morgentaler and Bain, the infringing statutory measure of course must be justified. In this case, however, I think the Customs legislation is quite capable of being applied in a manner consistent with respect for Charter rights. I do not agree with my colleague's conclusion (at para. 204) that:
This Court's precedents demand sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights. In the face of an extensive record of unconstitutional application, it is not enough merely to provide a structure that could be applied in a constitutional manner. This is particularly the case where fundamental Charter rights, such as the right to free expression, are at stake. [Emphasis in original.]
134 Free expression was at stake in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, yet the Court did not require Parliament to amend the Canada Labour Code. The Court ruled only that an adjudicator appointed under the Code must exercise his or her discretion in accordance with the Charter. As Lamer J. (as he then was) stated at p. 1078: “Legislation conferring an imprecise discretion must therefore be interpreted as not allowing Charter rights to be infringed”. See also Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. Cases dealing with Charter rights other than freedom of expression have been similarly disposed of. In R. v. Beare, [1988] 2 S.C.R. 387, the Court reversed the Saskatchewan Court of Appeal and upheld as valid the broad discretion given to police officers under a power to fingerprint suspects, despite objections about potential abuse. The Criminal Code provides enormous discretion to government officials and the police in matters that directly affect Charter rights, yet as La Forest J. pointed out at p. 411:
The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.
This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; see R. v. Lyons, [[1987] 2 S.C.R. 309], at p. 348; see also R. v. Jones, [1986] 2 S.C.R. 284, at pp. 303-4. The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie, but no allegation of this kind has been made in the present case.
If Parliament is constitutionally able to confer broad powers on the police and Justice Department officials under the Criminal Code without establishing a specific institutional framework to deal with out-of-court Charter-sensitive activities, I fail to see how Parliament is nevertheless required to legislate special procedures to govern Customs officials.
135 In the case of the Customs legislation, Parliament contemplated that more detailed regulations may be necessary for the guidance of officials and others. It provided in s. 164(1)(j) of the Customs Act, to repeat, that the Governor in Council “may make regulations . . . generally to carry out the purposes and provisions of this Act”. Many of the systemic problems identified by the trial judge in the department’s treatment of potentially obscene imports might have been dealt with by institutional arrangements implemented by regulation, but this was not done. However, the fact that a regulatory power lies unexercised provides no basis for attacking the validity of the statute that conferred it.
136 The specific provisions of the Customs Act relevant to the appellants are the tariff classification provision (s. 58) and the various rights to a redetermination (ss. 60, 63 and 71) and appeals to the courts (ss. 67 and 152). Parliament was entitled, I think, to expect that the Minister, with or without regulations under s. 164, would put in place the necessary detailed procedures, including procedures appropriate for processing constitutionally sensitive material.
137 The fact this issue arises in connection with the administration of a government department prompts two further comments. The first is that it is in the nature of government work that the power of the state is exercised and the Charter rights of the citizen may therefore be engaged. While there is evidence of actual abuse here, there is the potential for abuse in many areas, and a rule requiring Parliament to enact in each case special procedures for the protection of Charter rights would be unnecessarily rigid.
138 Secondly, the government needs neither a special statute nor special regulations to deal with its own employees. Customs officials are responsible to the Minister by virtue of their jobs. I have already held that Customs Tariff Code 9956 creates a constitutionally valid standard. In the administration of the department the Minister may supplement by directive the provisions of the Customs Act for its implementation. The public service responds to ministerial direction with no less alacrity than it responds to statute or regulation. In short, an importer's rights may be protected in fact by statute, regulation, ministerial direction or even departmental practice. What is crucial, at the end of the day, is that Charter rights are in fact respected. The modalities for achieving that objective will vary with the context. There is nothing unconstitutional about the option selected by Parliament in this case.
139 All of this is to say that there are various methods to ensure respect by the public service for the Charter rights of importers. Each method has its advantages and
disadvantages. The fact Parliament opted for the more flexible routes of delegated regulation and ministerial directive is not, I think, a reason to invalidate the legislation itself.
I. Section 1 Justification
140 As stated, the Crown fairly acknowledged from the outset that the Customs Act and Customs Tariff infringe the freedom of expression of individuals by imposing a barrier to the communication of expressive material. No matter how many (or how few) safeguards are built into the Customs legislation, this barrier will remain. It is inherent in any Customs scheme and the government must demonstrate that such a barrier is a reasonable limit.
141 It should be noted at the outset that the s. 15(1) infringements identified by the trial judge are incapable of s. 1 justification. Violative conduct by government officials that is not authorized by statute is not “prescribed by law” and cannot therefore be justified under s. 1. The equality rights issues therefore proceed directly to the remedy phase of the analysis. Limitations on free expression were, however, authorized by Parliament in the Customs legislation, and on that branch of the appeal consideration must be given to whether a border inspection regime in which the government assumes the burden of proving obscenity on a balance of probabilities is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society.
142 As already noted, the Crown did not attempt to justify the application of the s. 152(3) reverse onus provision to require an importer to establish non-obscenity.
143 In general terms, s. 1 of the Charter requires the government to establish that the limitation imposed on the exercise by the appellants of their Charter rights was undertaken pursuant to objectives that were pressing and substantial. Moreover, the measures sought to be justified must be shown to be proportionate to this objective, which is to say that they are rationally connected to the objective, minimally impair the Charter rights in question, and that a proper balance has been struck between the effects of the limiting measure and the legislative measure. Finally it must be shown that the deleterious effects of the limitations are outweighed by its salutary benefits: Oakes, supra; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Dagenais v. Canadian Broadcasting Corp., supra, at p. 878.
144 Freedom of expression is central to our identity as individuals and to our collective well-being as a society. Doubt about justification should be resolved in its favour.
(a) Prescribed by Law
145 I have already rejected, for the reasons given, the appellants’ position that the Butler standard is so vague as not to be a limitation “prescribed by law” within the meaning of s. 1 of the Charter when applied to gay and lesbian erotica.
146 Section 163 having been upheld in Butler, and the Customs Tariff having incorporated s. 163 and the related jurisprudence, it follows that the Customs Tariff prohibition is not void for vagueness or uncertainty, and is therefore validly “prescribed by law”. The appellants argued that a legal standard which may be intelligible to a judge in a criminal trial surrounded with all the appropriate procedural protections is not necessarily intelligible to a Customs official left to his or her own devices supplemented by Memorandum D9-1-1. I do not think “intelligibility” varies with the level of procedural sophistication. The standard set out in s. 163(8) of the Criminal Code either affords a reasonable guide to well-intentioned individuals seeking to keep themselves within the law or it does not. Butler held that it did. The standard is related to the community’s tolerance of harm. It is the severity of the potential consequences that requires a judge to preside over a criminal trial, not the intelligibility of the “community tolerance” standard.
(b) Pressing and Substantial Objective
147 Parliament’s legislative objective is to prevent Canada from being inundated with obscene material from abroad. As in Butler, the ultimate objective was the avoidance of harm that Parliament had a reasonable apprehension would be caused by exposure to obscene material (Butler, supra, at p. 491). This is a valid objective.
(c) Proportionality
(i) Rational Connection
148 Canadian sovereignty includes the right to inspect and if considered appropriate to prohibit the entry of goods which Parliament, in the valid exercise of its criminal law power, has prohibited (Simmons, supra). Customs procedures are rationally connected to that objective.
(ii) Minimal Impairment
149 Customs officials have no authority to deny entry to sexually explicit material unless it comes within the narrow category of pornography that Parliament has validly criminalized as obscene. With respect to lawful publications, the interference sanctioned by Parliament was limited to the delay, cost and aggravation inherent in inspection, classification and release procedures. Unlike Butler, we are not dealing here with the denial of the expressive right but with a temporary delay in obtaining possession of lawful materials while the importation is being processed.
150 As stated, the Customs legislation outlines a skeletal scheme consisting of a border inspection, a classification procedure for tariff purposes, and a system of both internal and judicial appeals from a prohibition based on a finding of obscenity. The inspection and classification provisions are inherent in any border control, and are valid unless the appellants can establish a constitutional right to open borders, which they have not done. The re-determination and appeal provisions are inserted for the importer’s benefit. It is difficult to envisage how the Crown could achieve its legitimate objective at the border, or be fair to the public interest expressed through the obscenity provisions of the Criminal Code as well as the interests of the importers of expressive material, without such a system. It is clear that the statutory scheme required supplementary measures by regulation or ministerial direction beyond the skeletal provisions that were made. The operation of the statutory scheme, as found by the trial judge, created a barrier to free expression that exceeded the government’s legitimate objectives, but that is a matter for regulatory or administrative not necessarily legislative action. In my view the basic statutory scheme set forth in the Customs legislation, properly implemented by the government within the powers granted by Parliament, was capable of being administered with minimal impairment of the s. 2(b) rights of importers, apart from the reverse onus provision which should be declared inapplicable to the obscenity issue for the reasons previously mentioned.
151 Parliament created a broad regulation-making power in s. 164(1)(j) of the Customs Act for the better implementation of the Act. Parliament has given the executive the authority to put in place by regulation an administrative or institutional structure that would protect the expressive rights of the appellants and others. The problem here is not with the legislators but with the failure of those responsible to exercise the powers that they possess, including, according to the trial judge, the failure of Customs to make available adequate resources to do the job effectively.
(d) Overall Proportionality
152 In my view Parliament has struck an appropriate balance between the limiting effects of the Customs legislation and the legislative objective of prohibiting the entry of socially harmful material. As held in Butler, at p. 509, the benefits sought by the criminalization of obscenity are the avoidance of harm and the enhancement of respect for all members of society, and the promotion of non-violence and equality in their relations with each other. If I am correct that the source of the appellants' problem lies at the administrative level rather than the legislative level, the restriction imposed by Parliament to catch expressive materials that violate s. 163 of the Criminal Code at the international border does not outweigh the importance of the legislative objective.
(e) Deleterious Effects Versus Salutary Benefits
153 The deleterious effects on the appellants found by the trial judge went way beyond any salutary benefits for Canadian society in this case, but that is not the test. The test is whether the deleterious effects of the Customs legislation, properly administered, exceed the salutary effect of the Customs legislation. The Customs legislation, properly administered, is designed to prevent entry into Canada of material that in all probability is obscene, i.e., likely to cause harm in excess of the community’s standard of tolerance. That is a salutary benefit, although there is little evidence in the record on this point, apart from identification of some adult heterosexual pornographic magazines which are regularly and apparently effectively monitored. Against this, the deleterious effect on importers of lawful material is expected by Parliament to be no more than temporary detention and the various costs in time and money reasonably occasioned by the processing of the goods. If the Customs legislation operated as intended, as it apparently does across a broad range of commercial and other goods, the deleterious effects would be outweighed by its salutary benefit. The problem, to repeat, is in the implementation and it is to the remedy for the deficient administration of the Customs legislation that I now turn.
J. Remedy
154 In my view, the appellants have established that:
1. Section 152(3) of the Customs Act should not be construed and applied so as to place the onus on an importer to establish that goods are not obscene within the meaning of s. 163(8) of the Criminal Code. The burden of proving obscenity rests on the Crown or other person who alleges it.
2. The rights of the appellants under s. 2(b) and s. 15(1) of the Charter have been infringed in the following respects:
(a) They have been targeted as importers of obscene materials despite the absence of any evidence to suggest that gay and lesbian erotica is more likely to be obscene than heterosexual erotica, or that the appellants are likely offenders in this regard;
(b) In consequence of the targeting, the appellants have suffered excessive and unnecessary prejudice in terms of delays, cost and other losses in having their goods cleared (if at all) through Canada Customs;
(c) The reasons for this excessive and unnecessary prejudice include:
(i) failure by Customs to devote a sufficient number of officials to carry out the review of the appellants’ publications in a timely way;
(ii) the inadequate training of the officials assigned to the task;
(iii) the failure to place at the disposal of these officials proper guides and manuals, failure to update Memorandum D9-1-1 and its accompanying illustrative manual in a timely way, and the failure to develop workable procedures to deal with books consisting mostly or wholly of written text;
(iv) failure to establish internal deadlines and related criteria for the expeditious review of expressive materials;
(v) failure to incorporate into departmental guides and manuals relevant advice received from time to time from the Department of Justice;
(vi) failure to provide the appellants in a timely way with notice of the basis for detention of publications, the opportunity to make meaningful submissions on a re-determination, and reasonable access to the disputed materials for that purpose; and
(vii) failure to extend to the appellants the equal benefit of fair and expeditious treatment of their imported goods without discrimination based on sexual orientation.
155 It is apparent that this catalogue particularizes in greater detail the declaration issued by the trial judge, namely:
THIS COURT DECLARES that Tariff Code 9956(a) of Schedule VII and s. 114 of the Customs Tariff, S.C. 1987, c. 41 (3rd Supplement) and ss. 58 and 71 of the Customs Act, S.C. 1986, c. 1 (2nd Supplement) have at times been construed and applied in a manner contrary to s. 2(b) and s. 15(1) of the Canadian Charter of Rights and Freedoms.
156 The Crown did not cross-appeal the grant of the declaration and neither in this Court nor in the British Columbia Court of Appeal did the appellants make submissions on whether or how a declaration under s. 24(1) of the Charter could be better framed to grant substantial relief. Their objective there as here was to get rid of the legislation altogether.
157 Having rejected that s. 52 argument, except as to the reverse onus provision, the remaining question is whether the Court should attempt to fashion a more structured s. 24(1) remedy. I conclude, with some hesitation, that it is not practicable to do so. The trial concluded on December 20, 1994. We are told that in the past six years, Customs has addressed the institutional and administrative problems encountered by the appellants. In the absence of more detailed information as to what precisely has been done, and the extent to which (if at all) it has remedied the situation, I am not prepared to endorse my colleague's conclusion that these measures are “not sufficient” (para. 262) and have offered “little comfort” (para. 265). Equally, however, we have not been informed by the appellants of the specific measures (short of declaring the legislation invalid or inoperative) that in the appellants' view would remedy any continuing problems.
158 The most detailed suggestion the appellants have made in the way of a s. 24(1) remedy is the following request:
. . . in the final alternative an injunction restraining Customs from applying and administering the Customs Tariff, S.C. 1987, c. 41 (3rd Supplement) s. 114, Schedule VII, Code 9956(a) and the Customs Act, S.C. 1986 (2nd Supp.), s. 58 and s. 71, as amended, permanently or until such time as there is no risk that the unconstitutional administration will continue.
The first branch of the proposed injunction (“permanently”) amounts to a s. 52 declaration of inoperability, which I do not consider justified. The second branch (“until such time”) sets an unrealistic standard (“no risk”). If diluted to a call for constitutional behaviour, the result would add little to the general duty that falls on any government official to act in accordance with the Constitution, injunction or no injunction, and would scarcely advance the objectives of either clarity or enforceability. A more structured s. 24(1) remedy might well be helpful but it would serve the interests of none of the parties for this Court to issue a formal declaratory order based on six-year-old evidence supplemented by conflicting oral submissions and speculation on the current state of affairs. The views of the Court on the merits of the appellants' complaints as the situation stood at the end of 1994 are recorded in these reasons and those of my colleague Iacobucci J. These findings should provide the appellants with a solid platform from which to launch any further action in the Supreme Court of British Columbia should they consider that further action is necessary.
VIII. Disposition
159 The appeal is therefore allowed in part, and a declaration will issue under s. 52 of the Constitution Act, 1982 that s. 152(3) of the Customs Act is not to be construed and applied so as to place on an importer the onus to establish that goods are not obscene within the meaning of s. 163(8) of the Criminal Code. The burden of proving obscenity rests on the Crown or other person who alleges it.
160 The constitutional questions stated by the Chief Justice on July 8, 1999 should be answered as follows:
1. Do ss. 58 and 71 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and s. 114 and Code 9956(a) of Schedule VII of the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.) (now s. 136(1) and tariff item 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36) in whole or in part, insofar as they authorize customs officials to detain and prohibit material deemed to be obscene, or in their application to either textual or gay and lesbian material or to both, infringe s. 2(b) of the Canadian Charter of Rights and Freedoms?
The answer is yes.
2. If the answer to question 1 is yes, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
The answer is yes, except with respect to the reverse onus provision as presently construed and applied by Canada Customs.
3. Do ss. 58 and 71 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.), and s. 114 and Code 9956(a) of Schedule VII of the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.) (now s. 136(1) and tariff item 9899.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36), in whole or in part, in their application to gay and lesbian material, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?
The answer is no. The appellants' equality rights are not infringed by the Customs legislation itself.
4. If the answer to question 3 is yes, is the infringement demonstrably justified in a free and democratic society pursuant to s. 1 of the Canadian Charter of Rights and Freedoms?
The question need not be answered.
161 The appellants have been compelled to come to this Court to achieve even the limited relief they have obtained, and they are therefore entitled to their costs in this Court and in the British Columbia Court of Appeal on a party and party basis. The award of costs at trial in favour of the appellants dated March 29, 1996 is affirmed.
The reasons of Iacobucci, Arbour and LeBel JJ. were delivered by
IACOBUCCI J. (dissenting in part) --
I. Introduction and Summary
162 The individual appellants in this appeal operate a bookstore in Vancouver, the Little Sisters Book and Art Emporium (“Little Sisters”). The store is also an appellant. As described in their amended statement of claim:
6. The principal business of Little Sisters is the sale of books and magazines most of which are written by and for homosexual men and women. Little Sisters also operates a mail order business selling books to customers all across Canada.
7. Most of the books and magazines sold by Little Sisters are published in the United States and imported into Canada by Little Sisters.
163 All commercial goods imported into Canada, including books, magazines, and other expressive materials, are subject to the Customs Tariff, R.S.C., 1985, c. 41 (3rd Supp.), and the Customs Act, R.S.C., 1985, c. 1 (2nd Supp.) (together, the “Customs legislation”). The appellants argue that applying these procedures to the books and magazines imported by Little Sisters violates their rights to freedom of speech, and to equality, which are guaranteed under ss. 2(b) and 15, respectively, of the Canadian Charter of Rights and Freedoms.
164 I have had the benefit of reading the reasons of my colleague Binnie J. in this case. While I agree with his conclusion that the Customs legislation, as applied to books, magazines, and other expressive materials, violates the appellants’ rights under s. 2(b) of the Charter, it is my opinion that the legislation itself violates s. 2(b) and is not demonstrably justified in a free and democratic society. In particular, the Customs legislation does not minimally impair the appellants’ rights, nor do the benefits of the legislation outweigh its detrimental effects on the right of free expression.
165 With regard to the appellants’ claim that the Customs legislation also violates the equality guarantee contained in s. 15(1) of the Charter, I agree with my colleague Binnie J. that it is only the application of the legislation, not the legislation itself, that has resulted in violations of the appellants’ equality rights. The harm-based obscenity test set out by this Court in R. v. Butler, [1992] 1 S.C.R. 452, is not in need of modification and applies equally to all materials regardless of the sexual orientation of the individuals involved or the characters depicted. The Customs legislation, which imports the obscenity provision in s. 163(8) of the Criminal Code, R.S.C., 1985, c. C-46, and thus the test outlined in Butler, therefore does not in and of itself infringe s. 15(1) of the Charter.
166 However, the current procedures by which Customs enforces s. 163(8) at the border are grossly inadequate. With a few minor exceptions, expressive materials are classified when entering Canada in the same manner as mundane commercial goods. The Customs legislation lacks the most basic procedures necessary for a fair and accurate determination of whether something is obscene. Compounding these legislative deficiencies is the fact that Customs officers, while no doubt well-intentioned and conscientious civil servants, lack the training, time or resources to accomplish the task set for them. In my respectful opinion, the Customs legislation makes no meaningful accommodation for the expressive freedoms raised by this appeal. Such a regime cannot be demonstrably justified in a free and democratic society.
167 The appropriate remedy for this violation of the appellants’ constitutional rights is to strike down Tariff Code 9956(a) (now Tariff Item 9899.00.00) of the Customs Tariff. Particularly in a case like the one before us, where there is an extensive record of the improper detention of non-obscene works, the only choice to ensure full protection of the constitutional rights at stake is to invalidate the legislation and invite Parliament to remedy the constitutional infirmities.
II. Factual and Legal Background
168 While both the courts below and my colleague Binnie J. have done an excellent job of summarizing the voluminous record in this appeal, I wish to provide my own synopsis in order to emphasize several points that are particularly relevant to my reasoning. I will first outline the Customs legislation challenged in this appeal and then describe the history of Customs’ enforcement of this legislation. This examination will demonstrate that the problems with the Customs regime are not simply the product of isolated mistakes by individual Customs officers; instead, they reflect systemic problems that can only be adequately addressed by rewriting the applicable legislation.
A. The Relevant Constitutional and Statutory Provisions
169 The Canadian Charter of Rights and Freedoms provides the following:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
170 Section 163 of the Criminal Code prohibits the production or dissemination of obscene materials. The definition of obscenity is found in s. 163(8):
163. . . .
(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
171 The Customs Act, ss. 58, 60, 63, 64 and 71 (as in force at the time of the trial), sets out the procedures whereby Customs determines the tariff classification of imported goods:
58. (1) An officer may determine the tariff classification . . . of imported goods at any time before or within thirty days after they are accounted for . . . .
. . .
(5) Where an officer does not make a determination . . . under subsection (1) in respect of goods, a determination of the tariff classification . . . of the goods shall, for the purposes of sections 60, 61 and 63, be deemed to have been made thirty days after the time the goods were accounted for . . . in accordance with any representations made at that time in respect of the tariff classification . . . by the person accounting for the goods.
(6) A determination of tariff classification . . . is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 60 to 65.
60. (1) The importer . . . may . . .
(a) within ninety days, or
(b) where the Minister deems it advisable, within two years
after the time the determination . . . was made in respect of the goods under section 58, request a re‑determination of the tariff classification . . . .
(2) A request under this section shall be made to a designated officer in the prescribed manner and in the prescribed form containing the prescribed information.
(3) On receipt of a request under this section, a designated officer shall, with all due dispatch, re‑determine the tariff classification . . . and give notice of his decision to the person who made the request.
63. (1) Any person may,
(a) within ninety days after the time he was given notice of a decision under section 60 . . . or
(b) where the Minister deems it advisable, within two years after the time a determination . . . was made under section 58,
request a further re‑determination of the tariff classification . . . re‑determined . . . under section 60 . . . .
(2) A request under this section shall be made to the Deputy Minister in the prescribed manner and in the prescribed form containing the prescribed information.
(3) On receipt of a request under this section, the Deputy Minister shall, with all due dispatch, re‑determine the tariff classification . . . and give notice of his decision to the person who made the request.
64. The Deputy Minister may re‑determine the tariff classification . . . of imported goods
(a) within two years after the time a determination . . . was made under section 58, where the Minister deems it advisable,
. . .
(c) at any time, where the person who accounted for the goods . . . has failed to comply with any of the provisions of this Act or the regulations or has committed an offence under this Act in respect of the goods,
(d) at any time, where the re‑determination . . . would give effect to a decision of the Canadian International Trade Tribunal, the Federal Court or the Supreme Court of Canada made in respect of the goods, and
(e) at any time, where the re‑determination . . . would give effect in respect of the goods, in this paragraph referred to as the "subsequent goods", to a decision of the Canadian International Trade Tribunal, the Federal Court or the Supreme Court of Canada . . . made in respect of
(i) other like goods of the same importer or owner imported on or prior to the date of importation of the subsequent goods, where the decision relates to the tariff classification of those other goods,
. . .
and, where the Deputy Minister makes a re‑determination . . . under this section, the Deputy Minister shall forthwith give notice of that decision to the person who accounted for the goods . . . the importer of the goods or the person who was the owner of the goods at the time of release.
71. (1) Where the release of goods has been refused on the ground that the goods have been determined to be prohibited goods as described in code 9956 or 9957 of Schedule VII to the Customs Tariff, re-determination may be requested under sections 60 and 63 or made under section 64 and appeals may be taken under sections 67 and 68 in respect of the determination . . . .
172 The Customs Tariff, s. 114, states that “[t]he importation into Canada of any goods enumerated or referred to in Schedule VII is prohibited”. Schedule VII, Code 9956(a), prohibits importation of:
Books, printed paper, drawings, paintings, prints, photographs or representations of any kind that
(a) are deemed to be obscene under subsection 163(8) of the Criminal Code;
173 Several aspects of this regulatory scheme warrant comment. The first is that the initial classification decision, according to s. 58 of the Customs Act, is to be made by “[a]n officer”. Section 2 of the Act states that a Customs officer includes any “person employed in the administration or enforcement” of the Customs Act, and any member of the Royal Canadian Mounted Police. In practice, these decisions are made by Customs Inspectors and Commodity Specialists, the front-line Customs officers. The statute does not designate any specialized officers to make obscenity determinations. Instead, any one of the approximately 4,000 Customs officers working at the border can prohibit a book from entering the country. The officers receive minimal training with regard to obscenity determinations and are not required to have any specialized knowledge of art or literature.
174 At high-volume border crossings, such as the Toronto region, certain Commodity Specialists are given special responsibilities over obscenity determinations. Goods suspected of being obscene are detained and forwarded to a Commodity Specialist for classification. However, John Shearer, the Director General of the Tariff Programs Division, testified that working on obscenity classifications is perceived to be more stressful and limiting career-wise. As a result, as Smith J. recognized, “Customs employees generally consider this work to be undesirable, not all officers participate in it and those assigned to it are regularly moved from these duties into other areas, generally after three to six months” ((1996), 18 B.C.L.R. (3d) 241, at para. 44).
175 Section 58 is also notable for its failure to offer any guidance as to how the tariff classification is to be made. It does not provide for even the simplest of hearings. It does not allow the importer to present evidence, call witnesses, or submit written arguments. It does not require the officer to provide reasons for the decision to prohibit. It does not even require the officer to read or view the material in question. In fact, the only guidance offered by s. 58 is that the tariff classification of imported goods “may” be determined within 30 days of its arrival.
176 At the time this case was heard by the Supreme Court of British Columbia, s. 60 established the first level of review for a s. 58 determination (the Customs Act has since been amended to remove this level of review: S.C. 1997, c. 36, s. 166). Section 60 sets out little more than the right to appeal “to a designated officer in the prescribed manner and in the prescribed form”; there is no right to even the most rudimentary hearing. In practice, s. 60 re-determinations are made by a Tariff and Values Administrator (TVA). TVAs also serve as advisors to lower level Customs officers. While TVAs have more training than Customs Inspectors or Commodity Specialists, they can hardly be called experts. As Frank Lorito, a former TVA, testified, his obscenity training consisted of five to ten hours with his predecessor going over materials, and one day spent at the Prohibited Importations Directorate (PID). Moreover, reviewing allegedly obscene material accounts for only a small percentage of a TVA’s workload.
177 The final level of administrative review is established by s. 63, which provides for an appeal to the Deputy Minister of National Revenue for Customs and Excise. Under s. 2(3), the Deputy Minister is authorized to delegate his powers under the Act to any person. In practice, these powers are delegated to a handful of TVAs working at the PID. The TVAs at the PID are generally people with advanced degrees (though not necessarily in literature), and they receive several days of informal training from more senior officers upon being appointed. While the importer is allowed to put forward any information for consideration, s. 63 does not require that the Deputy Minister (or his or her delegate) consider that information, nor is there a right to a hearing of any kind.
178 Having exhausted three levels of administrative review, an importer is entitled under s. 67 to appeal the Deputy Minister’s determination. While reviews of the determinations for all other goods are made by the Canadian International Trade Tribunal, materials prohibited under Tariff Code 9956(a) are reviewed by the superior court of a province or territory. This is the scheme’s only special accommodation for the expressive rights at stake in the appeal. Section 68 grants the right to seek leave to appeal from the superior court to the Federal Court.
B. Enforcement of the Customs Legislation
179 The central documents for enforcing Tariff Code 9956(a) are: (1) Memorandum D9-1-1, “Interpretative Policy and Procedures for the Administration of Tariff Code 9956” -- an internal directive for Customs staff not generally available to the public; and (2) a large binder entitled “Prohibited Importations Directorate Material to Assist in the Interpretation of Tariff Code 9956, Memorandum D9-1-1 With Respect to Obscenity” -- which is also an internal Customs document not available to the public. Both documents describe what types of materials are deemed obscene by Customs (examples include depictions of bondage, pregnant or lactating women, postures of submission or humiliation, child abuse and necrophilia), while the latter binder contains reproductions of previously seized materials.
180 Until September 29, 1994 – mere days before the commencement of the trial in this case – Memorandum D9-1-1 prohibited depictions of anal penetration. This prohibition persisted to that date in spite of the fact that on March 18, 1992 – a full 30 months earlier – the Department of Justice had sent an analysis of the Butler decision to senior counsel at Customs, reaching the following conclusion:
. . . as we have advised in previous opinions, there is no jurisprudence supporting the proposition that all depictions or descriptions of anal penetration are obscene in and of themselves on the basis that anal penetration is inherently degrading or dehumanizing. [Emphasis in original.]
As this episode makes clear, Memorandum D9-1-1 is only Customs’ interpretation of s. 163(8); there is no guarantee that it conforms with what this Court said in Butler. In fact, for over two years Memorandum D9-1-1 was directly at odds with our jurisprudence.
181 Initial determinations by Customs officers are often not completed within the 30-day period prescribed by s. 58. Section 60 re-determinations took up to three and one-half months, and s. 63 re-determinations have taken over a year. Smith J. concluded that these problems were a result of “the inability of customs officers to deal with such a large volume of materials in the short time they have available” (para. 114).
182 Customs officers’ review of imported materials is frequently superficial and context-insensitive. A typical example is provided by the testimony of Scenery Slater, a Customs Inspector at the Vancouver Mail Center, describing how she would review a videotape:
[W]e would view it on fast forward. And if there was -- there was a scene or scenes we deemed might be potentially prohibited, we rewind and slow it down to verify, and do this through the entirety of the tape.
When asked whether she would typically read a book in its entirety, she responded as follows:
That was rarely necessary. It’s -- what you -- what you would initially do is you would try to determine the gist of the book . . . . If you started reading it and the general nature was sort of sensationalistic in a sexual manner, and you might flip through to make sure the entirety is like that, go to various sections throughout. . . . You would find -- try to find at least two to three instances of having something prohibited and then once you hit three in the -- it was deemed that the rest of the book was of the same nature you would prohibit it there without reading the rest of it.
183 Several Customs officers testified that they did not even attempt to judge the political, artistic, or literary merit of a particular work. Mr. Shearer freely admitted that Customs officers do not hold themselves out to be experts on artistic or literary merit. Moreover, Customs officers often do not understand the context in which a book was written. For example, Linda Murphy, the Director of the PID, admitted her lack of understanding of “the S and M practices engaged in by some people in our society”. Another Customs officer admitted that she had not recognized Marguerite Duras as a major French novelist of the twentieth century, and that she generally did not have enough time to investigate the literary credentials of the authors whose books appear before her for review. As Smith J. noted (at para. 116), “[t]here is no formal procedure for placing evidence of artistic or literary merit before the classifying officers”.
184 Incorrect determinations are the inevitable result of these factors. If Customs officers have no literary training; if they receive no arguments or submissions from importers; if they do not take artistic merit into account; if they do not attempt to investigate the literary reputation of the author; if they know nothing about the culture for which various books are written; one perhaps should not be surprised that mistakes will often be made. And indeed, the record is full of mistaken determinations by Customs. Smith J. provided the following statistical summary (at para. 100):
The plaintiffs identified 261 titles detained from imported shipments destined for Little Sisters since 1984, seventy-seven of them on more than one occasion. Of those, sixty-two were released for delivery after examination pursuant to s. 58. Little Sisters sought re-determinations pursuant to s. 60 on 210 prohibitions and were successful on twenty-eight. Of 150 re-determinations sought pursuant to s. 63, they were successful on forty-six. As mentioned, they were successful on their one appeal pursuant to s. 67. Thus, roughly 20% of prohibitions at the s. 58 level were considered to be incorrect by Tariff and Values Administrators acting pursuant to s. 60, and roughly 30% of the decisions of lower-ranking officers were considered to be incorrect by Tariff Administrators reviewing the materials pursuant to s. 63. Such high rates of error indicate more than mere differences of opinion and suggest systemic causes.
185 Behind the statistics are countless anecdotes of incorrect seizures. Customs have prohibited entry of photographs taken by three Vancouver artists, which had been taken abroad as part of an internationally recognized work on lesbian sexuality. Jane Rule, the winner of a prize for best Canadian novel of 1978, had her award-winning book Contract With the World detained for inspection by Customs. The book was released only because the supervisor of the officer reviewing the book happened to recognize Jane Rule’s name. In the 1980s, Customs seized a film on male masturbation destined for the University of Manitoba’s Medical School: see A. A. Borovoy, When Freedoms Collide: The Case for Our Civil Liberties (1988), at p. 62.
186 An importer or exporter with a history of dealing in pornography is also susceptible to increased scrutiny. During the time period relevant to this appeal, Customs officers in British Columbia inspected virtually every shipment of books and magazines headed to Little Sisters. The frequent detention and prohibition of imported goods caused substantial hardship to Little Sisters and its suppliers. Janine Fuller, an employee of Little Sisters, testified as follows:
I think there’s many different ramifications for the store. One is accountability to the customers who come into the store having to explain over and over and over again why specific titles might not be available. We do a tremendous amount of special orders for people, having to indicate to them when we make those special orders that we can’t in good conscience assure them that this book is going to arrive undetained by Canada Customs.
I don’t know of many book stores that have to go through that tedious and expensive process. I think there’s also a sense of self-censorship that occurs around ordering books in that you start to try and read into what you think a customs agent would be assessing a book at and you order accordingly. . . . So it certainly cuts down on what your book orders are.
187 Little Sisters’ suppliers were also affected by Customs’ policies. One of Little Sisters’ main suppliers, Inland Distributors Ltd., routinely had its shipments inspected. Golden-Lee Book Distributors, Inc. actually ceased shipping to Little Sisters as of September 1, 1994, for the following reason:
As I am sure you are aware every shipment we send to you, whether containing questionable material or not, is detained for months at a time. When shipments are returned to us they are always missing books. Further, the books returned to us are so damaged that we have to write them off as unsalable.
188 While Little Sisters and its suppliers are routinely targeted, mainstream bookstores receive more favourable treatment. For example, the operator of Duthie Books, a general interest bookstore in British Columbia, testified that at the request of Little Sisters they ordered a number of books that had been prohibited when destined for Little Sisters. The shipping instructions were intentionally made identical to those given by Little Sisters. In spite of the fact that Customs inspected the books, they arrived without incident. Similarly, books that were prohibited when destined for Little Sisters were widely available at other general interest bookstores in Vancouver, and even at the Vancouver Public Library. Moreover, Little Sisters was not the only victim. As Nadine Strossen has noted in Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (1995), at p. 231, within two and one-half years after Butler was decided, over half of all Canadian feminist bookstores had had materials confiscated or detained by Customs.
189 There is also evidence that high-profile books receive favourable treatment. The appellants noted two instances where such books -- specifically, Madonna’s Sex, and Bret Easton Ellis’s American Psycho -- were permitted entry in spite of containing depictions that are indistinguishable from items routinely prohibited by Customs. Sex contains an account of a sexual encounter with a pubescent boy. American Psycho contains explicit accounts of sex and violence. The protagonist describes in detail how he seduces, tortures, rapes, and kills his victims.
190 After an earlier public relations problem caused by the detention of Salman Rushdie’s book Satanic Verses, Customs approached American Psycho’s publisher, Random House, about pre-screening the book. The review was conducted by senior officials rather than front-line Customs Inspectors, who ultimately concluded that the book did not depict the undue exploitation of sex. I do not question the merits of that decision. However, I would note that had such attention been paid to items destined for Little Sisters, many of the mistakes detailed above might have been avoided.
191 In spite of all these problems, John Shearer, the Director General of Tariff Programs Division, saw no problems with the targeting of Little Sisters:
[T]here was no evidence that there was any harassment. Our understanding of the way the system works is that, indeed, this was a normal enforcement practice that met the practices and procedures we follow in the Department.
That Mr. Shearer could say this in light of the compelling evidence to the contrary presented in the course of this appeal emphasizes the depth of the problem.
192 The net effect of Customs’ enforcement of Code 9956(a) against Little Sisters is well-summarized by Smith J. as follows (at para. 99):
The delays and disruptions caused by detained and prohibited shipments have affected Little Sisters financially and in other ways. Often, material is dated by the time it is received and has lost its sales value. Publications denied entry to Little Sisters are often successfully imported and sold by other stores. Planned events, like book launches, are sometimes jeopardized when Customs interrupts shipment of the publications involved. The proprietors often refer customers to local general-interest stores to obtain publications that Little Sisters is unable to import. More subtly, Mr. Deva and Ms. Fuller must be very circumspect in their ordering. They are uncomfortable with this self-censorship.
193 A discussion of the facts as brief as this cannot capture adequately the complexities of the record compiled in this appeal. Nevertheless, I hope to have conveyed a basic portrayal of the Customs legislation and its enforcement.
III. Analysis
A. Applicability of Butler
194 I agree with my colleague Binnie J.’s defence of the harm-based approach to obscenity set out by this Court in Butler, supra. In particular, I agree with his conclusions that the Butler test does not distinguish between materials based on the sexual orientation of the individuals involved or characters depicted. It seems to me that the Butler test applies equally to heterosexual, homosexual and bisexual materials. The use of national community standards as the arbiter of what materials are harmful, and therefore obscene, remains the proper approach. I agree with Binnie J.’s conclusions that the harm-based approach is not merely morality in disguise and that the Butler test does apply to written materials.
195 On this latter point, however, I wish to emphasize Binnie J.’s holding that it will be “very difficult to make the case of obscenity against a book, which is a medium perhaps less likely to be conducive to harm and more likely to be protected by the artistic merit or ‘inherent necessities’ defence” (para. 65). This is borne out by the fact that relatively few books have been held to be obscene in Canada: see, e.g., Brodie v. The Queen, [1962] S.C.R. 681 (Lady Chatterley’s Lover by D. H. Lawrence not obscene), and R. v. C. Coles Co., [1965] 1 O.R. 557 (C.A.) (Fanny Hill -- Memoirs of a Woman of Pleasure by John Cleland not obscene – a similar result was reached by the U.S. Supreme Court in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 383 U.S. 413 (1966)). As Porter C.J.O. stated for the majority in C. Coles Co., at p. 563:
The freedom to write books, and thus to disseminate ideas, opinions, and concepts of the imagination ‑‑ the freedom to treat with complete candour of an aspect of human life and the activities, aspirations and failings of human beings ‑‑ these are fundamental to progress in a free society. In my view of the law, such freedom should not, except in extreme circumstances, be curtailed.
196 I also wish to make it absolutely clear that a book must be read in its entirety when determining whether or not it is obscene. As Judson J. stated in the majority opinion in Brodie, at p. 702:
[A determination of obscenity] necessarily involves a reading of the whole book with the passages and words to which objection is taken read in the context of the whole book. Of that now there can be no doubt. No reader can find a dominant characteristic on a consideration of isolated passages and isolated words. Under this definition the book now must be taken as a whole. It is not the particular passages and words in a certain context that are before the Court for judgment but the book as a complete work. The question is whether the book as a whole is obscene not whether certain passages and certain words, part of a larger work, are obscene.
See also the concurring opinion of Ritchie J. at p. 709. Customs must keep these points in mind when dealing with written works in the future.
197 I further agree with Binnie J. that the Butler test does not mean that concerns for minority expression cannot be taken into account. This is because, as my colleague points out, the national community standard relates only to harm not to taste. While Butler must be applied in a contextual manner, I am not convinced that homosexual pornography is so distinct from heterosexual pornography that a different standard must apply. As this Court recognized in Butler, at p. 502, “a direct link between obscenity and harm to society may be difficult, if not impossible, to establish”. Nonetheless, we concluded that “it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs”. See also Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 994; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 776.
198 Given the near impossibility of demonstrating conclusive proof in these kinds of cases, this Court has wisely held on many occasions that the legislature is owed a certain amount of deference in fashioning solutions. The respondent Canada relied primarily on the evidence of Dr. Neil Malamuth. In his report, he concluded that “homosexual pornography may have harmful effects even if it is distinct in certain ways from heterosexual pornography”. In his opinion, even allowing for differences in content, the messages conveyed in homosexual pornography were sufficiently similar to those in heterosexual pornography to raise an apprehension of harm.
199 The types of harms that Butler concluded might be exacerbated by obscenity are capable of being present in all human relationships, regardless of the sexual orientation of the individuals involved. There is no evidence that the homosexual community is immune from the kinds of problems that s. 163’s obscenity provisions are designed to address. On the contrary, the evidence is, sadly, that gay and lesbian relationships suffer from physical, sexual, and mental abuse in much the same way that heterosexual relationships do: see F. C. I. Hickson et al., “Gay Men as Victims of Nonconsensual Sex” (1994), 23 Archives of Sexual Behavior 281, at p. 281; D. Island and P. Letellier, Men Who Beat the Men Who Love Them: Battered Gay Men and Domestic Violence (1991), at p. 1; C. M. Renzetti, Violent Betrayal: Partner Abuse in Lesbian Relationships (1992), at p. 115; and S. Jeffreys, The Lesbian Heresy: A Feminist Perspective on the Lesbian Sexual Revolution (1993), at pp. 187-88. As a result, I conclude that there is a reasoned apprehension of harm from homosexual obscenity, and that Butler should apply to all obscenity, regardless of the sexual orientation of its audience.
B. Does the Customs Legislation Violate Section 2(b) of the Charter?
200 The respondents properly conceded that the Customs legislation violates s. 2(b). As this Court made clear in Butler, supra, at p. 489, depictions of purely physical sexual activity can be expression. This Court has ruled many times that even speech without any “redeeming” qualities deserves the protection of s. 2(b): see, e.g., Keegstra, supra, at p. 732; Reference re. ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123, at p. 1206 (the “Prostitution Reference”) (per Wilson J., in dissent but not on this point). Especially given the high value of the non-obscene materials affected by the Customs legislation, the violation of s. 2(b) is clear.
C. Does the Customs Legislation Violate Section 15(1) of the Charter?
201 For the reasons given by my colleague Binnie J., I agree that the Customs legislation does not itself violate s. 15(1) of the Charter. The Customs legislation incorporates the obscenity definition in s. 163(8) of the Criminal Code. As I have already made clear, the harm-based test for obscenity set out in Butler is the same for all materials, regardless of the sexual orientation of the individuals involved or characters depicted. While it is arguable that pornographic materials play a more important role in the gay and lesbian communities (because these communities are defined by their sexuality and because they are minority communities), gays and lesbians remain able to access pornographic materials that do not create a substantial risk of harm. Any heightened need for pornography in these communities, if such a need indeed exists, must be met through the use of non-harmful pornography. Therefore legislation banning obscenity alone has no adverse effects, and it is unnecessary to proceed with the rest of the analysis prescribed under Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497.
202 This said, it is crucial to keep in mind that, as Smith J. found at para. 282 of his reasons for judgment and as my colleague Binnie J. concludes at para. 123, the application of the Customs legislation has discriminated against gays and lesbians in a manner that violated s. 15. This is an important factor in determining the appropriate remedy in this appeal.
D. Legislation Versus Application
203 To this point, I have largely agreed with the conclusions of my colleague Binnie J. We differ, however, over the crucial issue of whether the Customs legislation itself is responsible for the constitutional violations documented in this case, or whether it is only the legislation’s application that was at fault. We also differ over whether the infringements of the appellants’ free expression rights have been justified by the government. Before turning to the s. 1 analysis, I wish to establish why I have reached the conclusion that it is the Customs legislation itself that is also responsible for the s. 2(b) violations in this case.
204 As noted, both my colleague Binnie J. and the courts below agreed that the legislation had been administered in an unconstitutional manner. In their opinion, the Customs legislation is capable of constitutional application and therefore a declaratory remedy is sufficient to safeguard the Charter rights involved. With the greatest respect, I cannot agree that this is the proper approach. This Court’s precedents demand sufficient safeguards in the legislative scheme itself to ensure that government action will not infringe constitutional rights. In the face of an extensive record of unconstitutional application, it is not enough merely to provide a structure that could be applied in a constitutional manner. This is particularly the case where fundamental Charter rights, such as the right to free expression, are at stake. The legislation itself must provide an adequate process to ensure that Charter rights are respected when the legislation is applied at the administrative level.
205 Consequently, I disagree with my colleague Binnie J.’s interpretation of this Court’s decisions in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, R. v. Morgentaler, [1988] 1 S.C.R. 30, and R. v. Bain, [1992] 1 S.C.R. 91. In my opinion, these cases illustrate the vigilance of this Court in protecting Charter rights when the legislative scheme in question is being applied in an unconstitutional fashion. Regardless of whether the legislation is under- or over-inclusive, if it lends itself to the repeated violations of Charter rights, as does the legislative scheme here, the legislation itself is partially responsible and must be remedied.
206 In Hunter v. Southam, this Court considered a law that was, like the one at bar, capable of being applied in a constitutional manner. The law in question set out the procedures by which the Restrictive Trade Practices Commission (RTPC) authorized searches by the Combines Investigation Branch (CIB) to gather evidence of violations of the Combines Investigation Act, R.S.C. 1970, c. C-23, s. 10. The law allowed the CIB to enter any premises “on which the Director [of the CIB] believes there may be evidence relevant to the matters being inquired into”, so long as a member of the RTPC granted an authorizing certificate available on ex parte application by the CIB: Combines Investigation Act. The government submitted that “the constitutionality of s. 10 ought to be considered on the basis of whether its provisions could be applied consistently with the Charter” (p. 153 (emphasis in original)). If such an approach had been adopted, the law probably would have been upheld. Nothing stopped RTPC members from issuing certificates only if there were reasonable and probable grounds that a search would uncover evidence.
207 However, Dickson J. (as he then was), writing for a unanimous Court, roundly rejected that argument. He stated, at p. 166, that to read the legislation “as simply allowing the authorizing party to satisfy himself on [the legality of the search], without requiring him to do so, would in my view be clearly inadequate” (emphasis in original). Permissive legislation was not enough. The statute had to require prior authorization of the search by a “neutral and impartial” arbiter (at pp. 160-62). In that case, it was not thought sufficient to leave it to those applying the statute to deal with the matter; similarly here, it hardly seems appropriate to entrust the Customs bureaucracy, in its administration of the Customs legislation, to deal with the matter through proper recognition of the constitutional values in play.
208 Other decisions by this Court have confirmed Hunter v. Southam’s early promise not to entrust the vindication of constitutional rights to the executive branch. The most important case upholding this principle is Morgentaler, supra. In that case a majority of this Court (with Dickson C.J. and Beetz J. writing separately) struck down Canada’s abortion law for unduly restricting access to abortions. While in Morgentaler the problem was a surfeit of “procedure” rather than an absence, the basic problem was the same as in this appeal: the legislation created unacceptable delays and limitations on the right to an abortion, just as the Customs legislation creates unacceptable delays and limitations on the right to import non-obscene expressive materials. As Dickson C.J. wrote in Morgentaler, at p. 75, “many women whom Parliament professes not to wish to subject to criminal liability will nevertheless be forced by the practical unavailability of the supposed defence to risk liability or to suffer other harm such as a traumatic late abortion caused by the delay inherent in the s. 251 system”. Similarly in this appeal, a great number of non-obscene works that Parliament did not intend to prohibit have been barred from entering the country as a result of the flaws inherent in the current regime.
209 Morgentaler also rejected the argument that any problems were a product of maladministration, not the legislation itself. As Beetz J. noted at pp. 92-93, three main factors contributed to the impugned delays in the system: “(1) the absence of hospitals with therapeutic abortion committees in many parts of Canada; (2) the quotas which some hospitals with committees impose on the number of therapeutic abortions which they perform and (3) the committee requirement itself”. Only the third of these was directly imposed by the legislation. Under the legislation it was entirely open to the Canadian Council on Hospital Accreditation and the provincial Ministers of Health to approve more hospitals to perform abortions. The legislation did not prevent hospitals from appointing more therapeutic abortion committees. The legislation did not force hospitals to set insufficient abortion quotas. Nonetheless, the majority of the Court recognized that these problems were attributable to the legislation’s own shortcomings: see ibid., at p. 62, per Dickson C.J.; at p. 98, per Beetz J.
210 A final example is Bain, supra, where this Court struck down Crown Attorneys’ power to “stand aside” up to 48 prospective jurors without cause. Writing for a plurality, Cory J. decided at pp. 103-4, that this was unacceptable:
Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed. [Emphasis added.]
In concurring reasons, Stevenson J. similarly held, at p. 155, that while “the stand by may be used beneficially, I do not think we can rely on professed good intentions to uphold such a disparity”.
211 The issue is therefore not solely whether the Customs legislation is capable of being applied constitutionally, as Binnie J. suggests. Instead, the crucial consideration is that the legislation makes no reasonable effort to ensure that it will be applied constitutionally to expressive materials. It lacks an adequate process to ensure that s. 2(b) rights are fully considered and respected. The Customs legislation’s failure in this regard practically invites violations of the right to free expression, which is exactly what has happened. It is the inevitable result of leaving the protection of fundamental Charter rights solely to the good faith discretion of delegated power.
212 In this case, Binnie J. argues that a failure at the implementation level can be addressed at that level. As will be discussed below, however, the government has provided little reason to believe that reforms at the implementation level will adequately protect the expressive rights involved or that any such reforms will not be dependent on exemplary conduct by Customs officials to avoid future violations of constitutional rights. Furthermore, it is not just the “rough and ready border screening procedure”, as referred to by Binnie J. (at para. 80), that has been responsible for these constitutional infirmities, but the entire system by which these screening decisions are reviewed. Violations of expressive rights stemming from the review procedures are caused by the legislation itself and cannot be remedied at the implementation level. They require Parliament to turn its attention to the entire scheme under which expressive materials are prevented from entering Canada and to craft a response which at least makes a significant effort to take the expressive rights which are interfered with by such a regime into account.
213 In fact, the trial judge himself found that some of the violations of expressive rights in this case stemmed from the Customs legislation itself. He stated (at para. 234):
The deleterious effects of the legislation, as opposed to the effects of its administration and application, are that admissible material is sometimes detained to be examined for compliance and that wrong decisions are sometimes made in the classification of materials.
When the problems at the review stages are also taken into consideration, it is clear that the legislative scheme must take significant responsibility for the violations of expressive rights that have been documented in this case. This is not surprising when one considers that the Customs legislation was designed to deal with mechanical, objective determinations under a taxing regime and not nuanced judgments on literary and expressive values that are inherently subjective. I therefore conclude that it is the Customs legislation itself which is largely responsible for the infringement of s. 2(b) Charter rights in this case.
E. Is the Violation of Section 2(b) Justified Under Section 1?
(i) Introduction
214 Having reached this conclusion, I will now turn my attention to whether the government has successfully justified the violations of expressive rights in this case. As the analysis below will establish, I do not agree with the view that the Customs legislation minimally impairs the appellants’ s. 2(b) rights or that the benefits of the legislation outweigh its detrimental effects. While Binnie J. concludes that it is only s. 152 of the Customs Act which cannot be justified under s. 1, and therefore must be read down, I believe the whole regime must fall.
215 The appropriate test under s. 1 is well-known. There are three essential requirements: (1) the limit on Charter freedoms must be “prescribed by law”; (2) the law in question must be directed at a “pressing and substantial objective”; and (3) the means chosen must be a rational, proportionate response to the legislative objective. There are three elements of the third requirement: the law must show a rational connection to the government’s objective, it must minimally impair the rights in question, and the legislation’s benefits must outweigh its deleterious effects on Charter rights. See, e.g., Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at paras. 21 and 97; Egan v. Canada, [1995] 2 S.C.R. 513, at para. 182; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 887; R. v. Oakes, [1986] 1 S.C.R. 103.
216 Both Smith J. and Macfarlane J.A. suggested that Butler controlled the s. 1 analysis in this appeal: see Smith J.’s reasons for judgment, at para. 206; Macfarlane J.A.’s reasons for judgment ((1998), 54 B.C.L.R. (3d) 306), at para. 75. With respect, I cannot agree. The appellants put the point well at para. 87 of their factum:
Butler concerned Parliament’s constitutional competence to proscribe the distribution of obscene material. Butler had nothing to do with the process by which material is judged to be obscene except to the extent that it is judged to be obscene after a criminal trial process. [Emphasis in original.]
While the reasoning of Butler is obviously instructive for many aspects of this appeal, I cannot accept that it is dispositive of the s. 1 analysis.
(ii) The Importance of Context
217 As this Court has frequently pointed out, context is indispensable to the s. 1 analysis of freedom of expression cases:
In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.
(Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 87)
See also Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 63; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199. at paras. 129-34; Butler, supra, at p. 500. A vitally important contextual factor is the nature of the expressive activity the state is seeking to restrict: see Keegstra, supra, at p. 760. In Thomson Newspapers, at para. 91, Bastarache J. explained that the nature of the expression in question matters “not because a lower standard is applied, but because the low value of the expression may be more easily outweighed by the government objective”. Similarly, in RJR-MacDonald, supra, McLachlin J. (as she then was) noted at para. 134 that “nothing in the jurisprudence suggests that the contextual approach reduces the obligation on the state to meet the burden of demonstrating that the limitation on rights imposed by the law is reasonable and justified”. In short, neither the value of the expressive material, nor any other contextual factor, will ever be determinative.
218 As Sopinka J. stated in Butler, supra, at p. 499, the core values of freedom of expression include “the search for truth, participation in the political process, and individual self-fulfilment”. Obscenity “does not stand on an equal footing with other kinds of expression which directly engage the ‘core’ of the freedom of expression values”: Butler, supra, at p. 500; cf. Keegstra, supra, at pp. 762-63. However, the very nature of a contextual approach demands attention to how the Customs legislation is actually applied. As Smith J. found, at para. 223, “much homosexual erotica that has been prohibited as obscene is not, in fact, obscene”. Moreover, these were not isolated errors like those dismissed as constitutionally insignificant by Dickson C.J. in Keegstra, supra, at p. 783. To the contrary, Smith J. found “grave systemic problems in the Customs administration” (para. 250), not isolated instances of “illegal police harassment”. Smith J.’s conclusion is confirmed by a record that is replete with detentions and seizures of award-winning novels, safe-sex manuals, celebrations of gay and lesbian identity, and other extremely meritorious items.
219 The government’s burden under s. 1 is to justify the actual infringement on rights occasioned by the impugned legislation, not simply that occasioned by some hypothetical ideal of the legislation. In my view, my colleague Binnie J. incorrectly analyzes the s. 1 justification with regard only to the Customs legislation when properly administered. Examining such a hypothetical ideal runs the risk of allowing even egregious violations of Charter rights to go unaddressed. Obviously any substantive standard for obscenity will have difficulties in application, regardless of the institutional setting in which it is applied. As we recognized in Butler and Keegstra, this will not necessarily be cause for concern. Where, however, the challenge is to the procedures by which the law is enforced, the fact that far more materials are prohibited than intended is extremely relevant.
220 Many of the seized items were eventually determined not to be obscene. These wrongfully detained items clearly engaged the values underlying the guarantee of free expression in s. 2(b). A number of commentators have stated that it is important that all Canadians have the freedom to criticize and challenge the dominant culture: As Wendy McElroy has noted in XXX: A Woman’s Right to Pornography (1995), at p. 141: “Freedom of speech is the ally of those who seek change; it is the enemy of those who seek to maintain control. Pornography is nothing more or less than freedom of speech applied to the sexual realm”. Similarly, C. Paglia has described pornographic images as “shock devices to break down bourgeois norms of decorum, reserve, and tidiness”: Vamps & Tramps (1994), at p. 66; see also L. Duggan, N. Hunter and C. S. Vance, “False Promises: Feminist Antipornography Legislation in the U.S.”, in V. Burstyn, ed., Women Against Censorship (1985), 130, at p. 145; M. D. Lepofsky, “Towards a Purposive Approach to Freedom of Expression and its Limitation”, in F. E. McArdle, ed., The Cambridge Lectures 1989 (1990), 1, at p. 11; S. Tisdale, Talk Dirty to Me: An Intimate Philosophy of Sex (1994), at p. 157; and L. Nead, “From the Female Nude: Art, Obscenity and Sexuality”, in N. Mirzoeff, ed., The Visual Culture Reader (1998), 485, at p. 489.
221 Another contextual factor, identified in Irwin Toy, supra, at pp. 993-94, is whether the government is mediating between competing groups as a social policy maker. In such cases, a more deferential approach is appropriate than when the government acts as a “singular antagonist of the individual whose right has been infringed”; see also R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 772. In this appeal, the Customs legislation attempts to balance the right to free expression and the government interest in protecting society from obscene materials. Clearly some latitude to Parliament is appropriate. That said, I agree with McLachlin J.’s warning at para. 136 of RJR-MacDonald, supra:
Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. . . . To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.
While deference is appropriate, our Court cannot abdicate its duty to demand that the government justify legislation limiting Charter rights.
(iii) A Limit Prescribed by Law
222 Section 1 of the Charter allows only those limits on rights that are “prescribed by law”. Citing R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at pp. 635 and 639, Smith J. described the test as follows (at para. 153):
What is required is that the law in question be sufficiently intelligible to provide fair notice to citizens, that is, “an understanding that certain conduct is the subject of legal restrictions” (p. 635). In addition, the law must be precise enough that it sufficiently describes the boundaries of unlawful conduct and delineates “an area of risk to allow for substantive notice to citizens” (p. 639).
See also Butler, supra, at p. 490; P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at pp. 35-11 and 35-12.
223 There can be no doubt that the Customs legislation itself is relatively clear; the challenges made by the appellants and Finch J.A. focused on whether the substantive standard for obscenity set out in s. 163(8) of the Criminal Code, as applied by Customs, is an intelligible standard.
224 In his dissent Finch J.A. found, at para. 218, that Memorandum D9-1-1 was not “law”; that Customs officers could not apply the legislation without the memo; and that therefore the standard being applied was not one prescribed by law. I agree with Finch J.A. that Memorandum D9-1-1 is not “law”; indeed, this was conceded on appeal. However, and with great respect, I cannot agree that Customs officers are entirely without an intelligible standard. First of all, the fact that a law requires administrative interpretation is not necessarily fatal. For example, in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, the Court considered a law restricting political participation by public servants. The plaintiffs in that appeal claimed that the limit on their rights was not prescribed by law because it “require[d] extensive guidelines in the form of non-authoritative views” (p. 94), just as Memorandum D9-1-1 does in the present appeal. The Court rejected that claim. Even though the legislation presented “considerable difficulty in application to a specific situation”, “difficulty of interpretation cannot be equated with the absence of any intelligible standard” (pp. 96-97).
225 Second, and more importantly, I believe the Customs legislation (through s. 163(8)) provides an intelligible standard for the simple reason that the Butler test is an intelligible standard. In Nova Scotia Pharmaceutical Society, supra, at p. 639, we held that legislation must define “an area of risk to allow for substantive notice to citizens”. Subsection 163(8) provides “substantive notice to citizens” in the criminal context. It is equally capable of providing such notice in the Customs context. Whether the procedures in place for applying that standard are sufficient to protect the expressive rights at stake – the question to which I will soon turn – is an entirely different matter.
(iv) Pressing and Substantial Objective
226 In Butler, supra, at p. 496, this Court recognized that “the harm caused by the proliferation of materials which seriously offend the values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression”. The Customs legislation is similarly intended to limit the importation of obscene materials into the country, and I conclude that this objective is pressing and substantial.
227 That said, I would note that in Butler, supra, at p. 498, Sopinka J. also warned that “the objective of the impugned section is valid only in so far as it relates to the harm to society associated with obscene materials”. What is challenged primarily in this appeal is not the exclusion of obscenity from this country; instead, it is the legislation which establishes the procedural mechanism for doing so, by which a great number of non-obscene works are detained or prohibited. The narrow ambit of the government’s legitimate purpose will be important to remember when determining whether the Customs legislation is a proportional response to the danger posed by the entry of obscene materials to Canada.
(v) Proportionality
(a) Rational Connection
228 This test is not particularly onerous. As McLachlin J. stated in RJR-MacDonald, supra, at para. 154, a rational connection may be found “on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective”: see also ibid., at para. 184, per Iacobucci J., concurring; Keegstra, supra, at p. 776. Applying this standard in Butler, supra, at p. 504, Sopinka J. held that scientific proof of obscenity laws’ efficacy was unnecessary:
. . . I am of the view that there is a sufficiently rational link between the criminal sanction, which demonstrates our community’s disapproval of the dissemination of materials which potentially victimize women and which restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective.
229 In my opinion, preventing obscene materials from ever entering the country is also a rational a means of protecting society from harm. While, as noted above, the Customs legislation in practice prohibits many works that are not obscene, I believe this argument is better addressed to minimal impairment than rational connection.
(b) Minimal Impairment
(1) Introduction
230 In light of the Customs legislation’s failure to acknowledge effectively the unique Charter concerns raised by expressive materials, I conclude that it is not minimally intrusive. As noted above, the only accommodation made for expressive materials is that their review under s. 67 is done by a superior court rather than by the Canadian International Trade Tribunal. In my view, this is insufficient to safeguard the fundamental Charter rights at stake. The sheer number of contested prohibitions, and the cost of challenging them through the various levels of administrative review, make it completely impracticable for the appellants to contest each one of them up to the s. 67 level. Thus the one accommodation provided is not even triggered for the vast majority of prohibitions.
231 Context must be kept in mind at this stage of the analysis. While the Customs legislation does not engage the appellants’ personal liberty interests, as is the case with an obscenity-related charge under s. 163 of the Criminal Code, it does engage one of the rights most central to the well-being of a free and democratic society -- that of free expression. The protection of expressive freedom is central to the social and political discourse in our country. If such a fundamental right is to be restricted, it must be done with care. This is particularly the case when the nature of the interference is one of prior restraint, not subsequent silencing through criminal sanction.
(2) The Nature of Prior Restraint
232 The Customs legislation enacts a prior restraint on speech. A prior restraint is “a requirement that the censor, acting to enforce standards announced by statute, must approve before one may publish or exhibit”: A. M. Bickel, The Least Dangerous Branch (2nd ed. 1986), at p. 135. By contrast, subsequent prohibitions depend “not on prior censorship, but on subsequent criminal prosecutions and on their in terrorem effect”: ibid., at p. 136. Prior restraints are particularly severe restrictions on speech.
233 The common law has a long tradition disfavouring prior restraint. For example, in the famous English case of Entick v. Carrington (1765), 2 Wils. K.B. 275, 95 E.R. 807, the plaintiff sued several of the King’s messengers in trespass for entering into his home, searching through his private papers, and seizing certain items. The defence relied on a King’s warrant authorizing them to search for seditious writings. The court rejected their defence, holding that the State could not invade a person’s privacy without any evidence that he was guilty of libel (at p. 817):
The warrant in our case was an execution in the first instance, without any previous summons, examination, hearing the plaintiff, or proof that he was the author of the supposed libels; . . . it was left to the discretion of these defendants to execute the warrant in the absence or presence of the plaintiff, when he might have no witness present to see what they did . . . .
234 Similarly, in his Commentaries on the Laws of England (4th ed. 1770), Book IV, at pp. 151-52, Blackstone equates prior restraints with the death of free speech:
The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. [Italics in original; underlining added.]
Interpreting this common law history as incorporated into the First Amendment to the United States Constitution, former United States Chief Justice Hughes wrote in Near v. Minnesota, 283 U.S. 697 (1931), at p. 713, that the “chief purpose” of the right to free speech is “to prevent previous restraints upon publication”.
235 I would stop short of asserting, like Blackstone, that any prior restraint is necessarily destructive of freedom of the press. As the respondent Attorney General of British Columbia points out, this Court has not universally adhered to a rule against prior restraints: see, e.g., Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. (The same is true of the United States Supreme Court: see Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961).) However, we have demanded that prior restraint only be used where necessary to vindicate the societal interests at stake. For example, in Dagenais, supra, the Court put constitutional limits on the use of publication bans. The Court placed the burden of proof on the party seeking the ban; required the trial judge to consider all reasonable alternatives to a ban; directed the trial judge to limit the scope of the ban as much as possible; and permitted a ban only where the privacy rights at stake outweighed the right to free speech (at pp. 881 and 890-91). In short, a prior restraint was permitted only when it was necessary, and when it was as narrowly tailored as possible. Similarly, in Taylor, supra, the prior restraint was only imposed after the appellants had been held in contempt of a prior order to cease and desist disseminating hate speech. Moreover, neither of these cases involved a pure prior restraint on speech. In both cases, the bans were enforced by subsequent punishment, not by a requirement, like the one in the Customs legislation, to submit materials for approval.
236 There are very good reasons for the traditional reticence of English, American, and Canadian courts to impose prior restraints on speech. As Thomas Emerson argued in “The Doctrine of Prior Restraint” (1955), 20 L. & Contemp. Probs. 648, at pp. 656-59, all systems of prior restraint have certain inherent flaws. These include the breadth of potential censorship, delays in publication of time-sensitive material, a lack of transparency, and a propensity to favour censorship over speech. This last flaw is perhaps the most important, as Emerson’s prediction is a chillingly accurate prediction of how the Customs legislation at issue has been applied (at p. 659):
The function of the censor is to censor. He has a professional interest in finding things to suppress. His career depends upon the record he makes. He is often acutely responsive to interests which demand suppression -- interests which he himself represents -- and not so well attuned to the more scattered and less aggressive forces which support free expression . . . . The long history of prior restraint reveals over and over again that the personal and institutional forces inherent in the system nearly always end in a stupid, unnecessary, and extreme suppression.
See also Bickel, supra, at p. 141. Moreover, Emerson argued, at p. 670, that the “worst evils of the system are likely to accumulate” where the system “entrusts the prevention of communication to an executive official”. This is not to criticize the character of those charged with enforcing the Customs legislation. I have no doubt that they are generally honest, well-intentioned, hard-working civil servants. Emerson’s point, to the contrary, is that the institutional dynamics of prior restraint commonly produce the kinds of “grave systemic problems” found in this case by Smith J. A constitutional scheme of prior restraint at the border must, at the very least, recognize and make accommodations for the inherent dangers in such a system.
(3) The Customs Regime Is Not Minimally Intrusive
237 The facts of this appeal are consistent with Emerson’s critique. The flaws in the Customs regime are not the product of simple bad faith or maladministration, but rather flow from the very nature of prior restraint itself. Given these inherent dangers it is obviously important to have procedural protections in the legislation itself that can minimize the dangers posed by prior restraint. The Customs legislation fails the s. 1 analysis primarily because it lacks any such protections.
238 In my respectful opinion, a minimally intrusive scheme would ensure that those enforcing the law actually obey its dictates. To determine whether something is obscene, it must be seen in its entirety, with close attention to context, tone, and purpose. A work that may appear to be obscene may in fact be a biting political satire or critique. Customs officers have consistently failed to apply Butler’s command to consider the context and artistic merit of items under consideration.
239 In short, the Customs legislation displays all the hallmarks of prior restraint criticized by Entick v. Carrington, Blackstone, and Emerson. While procedural safeguards might alleviate many of these problems, their complete absence from the Customs legislation simply confirms the inadequacy of the current scheme. Absolute discretion rests in a bureaucratic decision-maker, who is charged with making a decision without any evidence or submissions, without any requirement to render reasons for decision, and without any guarantee that the decision-maker is aware of or understands the legal test he or she is applying. Such a system cannot be minimally intrusive.
240 And indeed, the Customs legislation is readily distinguishable from all previous cases in which this Court has upheld a restriction on freedom of speech. In Keegstra, supra, R. v. Lucas, [1998] 1 S.C.R. 439, and Butler, supra, the person whose speech was restricted had the benefit of a criminal trial and all its concomitant procedural safeguards. Irwin Toy, supra, involved a similar scheme of subsequent punishment. In Dagenais, supra, a prior restraint was only justified after a careful judicial balancing process that took into account the free speech interests at stake. In Taylor, supra, the restriction on free speech was imposed by an independent, specialized tribunal that had many of the trappings of a judicial body. A prior restraint was imposed only after a determination, in an adversarial setting, that Mr. Taylor had violated Canada’s provisions regarding hate speech. The Customs legislation, by contrast, offers none of the protections of a criminal trial; it is enforced by relatively untrained bureaucrats rather than a judge or specialized adjudicator; and it targets expressive material, often of high literary value, aimed at adults.
241 I disagree with the suggestion that a less intrusive system is difficult to envision. A less intrusive scheme is clearly possible. One obvious option is that of expeditious judicial determination, which is favoured in the United States. The United States Supreme Court held, in Freedman v. Maryland, 380 U.S. 51 (1965), at p. 58, that: “[B]ecause only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint”. The court went even further in United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971), where it considered a Customs regime that provided for immediate referral to a federal district court of any material suspected of being obscene. The court held that such proceedings must be instituted within 14 days, and completed within 60 days of commencement. Such expeditious review was essential to ensure that “administrative delay does not in itself become a form of censorship” (p. 367).
242 While I do not believe that expeditious judicial determination is necessary for the Customs regime to be minimally impairing, I would like to point out several means of accommodating the expressive rights at stake that are not currently required by the Customs legislation:
● Allowing importers to examine the prohibited goods.
● Establishing a time limit within which importers are entitled to a final determination.
● Placing the burden of proof on the government to prove that something is obscene.
● Requiring Customs officers to consider evidence or arguments submitted in support of detained goods.
● Requiring Customs officers making determinations under ss. 58, 60, and 63 to compile a record and give reasons for their decisions.
● Entitling importers to at least a rudimentary hearing, which could be done by written submissions.
● Ensuring that Customs officers enjoy a large degree of independence, so that the role of “prosecutor” and “judge” is not merged into a single Customs officer position.
● Setting up a specialized tribunal at high-volume entry points, such as Vancouver and Fort Erie, to review front-line decisions regarding obscenity determinations.
● Compiling a database of items that have been reviewed and determined to be non-obscene.
Some of these suggestions are outlined by Professors B. Cossman and B. Ryder, “Customs Censorship and the Charter: The Little Sisters Case” (1996), 7 Constitutional Forum 103, at p. 109.
243 I do not believe that all of these safeguards are constitutionally necessary. However, the absence of all of them is, in my opinion, strong evidence that Parliament has not made any significant attempt to accommodate the free speech rights at stake in this appeal. Such a law cannot be minimally intrusive.
244 In short, the legislation does almost nothing to accommodate the free speech rights at stake in this appeal:
Apart from the right to appeal the deputy minister’s redetermination to court (sections 67 and 71), no special procedures are established by the act for determining whether publications should be classed as prohibited. The legislative policy of the Canadian government appears to be that such determinations are to be treated as raising legal issues no different in difficulty or importance than those raised by the determination of the correct tariff on other goods. The elementary point that other tariff classifications have nothing to do with freedom of expression appears to have been overlooked in the drafting of the legislation.
(B. Ryder, “Undercover Censorship: Exploring the History of the Regulation of Publications in Canada”, in K. Petersen and A. C. Hutchinson, eds., Interpreting Censorship in Canada (1999), 129, at p. 133)
245 The respondent Canada replies that “since Canada imports much of its pornography, the appellants’ suggested alternative to the impugned legislation would bring the legitimate work of Customs to a standstill” (factum, at para. 68). In essence, the respondent asserts that the costs of a minimally intrusive scheme would outweigh its benefits. Since this issue is more appropriately addressed under the third prong of the proportionality test, I will now turn to that question.
(c) Proportionality of Effects
246 I have concluded that the deleterious effects of the existing Customs regime outweigh its benefits. The first obvious deleterious effect of the current system is the extraordinarily high rate of error. As discussed, 75 of 210 prohibitions challenged by Little Sisters were overturned. Added to the 62 out of 261 detained items that were eventually released, this is a disturbing rate of error. This rate would likely have been higher had the appellants possessed the resources to challenge all prohibitions to the level of s. 71 review by the superior court. As it is, they only challenged one prohibition to that level, where they were successful. Such a high rate of error results in a substantial number of non-obscene materials being wrongfully detained or prohibited. This is a significant deleterious effect. Every book wrongfully prohibited from entering Canada inflicts a wound on our literary and cultural freedoms; every unjustified interference with intellectual freedom to some extent embarrasses our country on the world stage.
247 Aside from such abstract harms, these detentions have had a dramatic, tangible effect on the lives of countless Canadians. Alternative bookstores like Little Sisters have had their viability threatened by the constant delays and outright prohibitions. Authors and artists have suffered the indignity of having their works condemned as obscene, and not fit to enter the country. Perhaps most important of all, ordinary Canadians have been denied important pieces of literature. This effect is particularly significant for homosexuals. That homosexuals are a disadvantaged group in Canadian society cannot be disputed: see M. v. H., [1999] 2 S.C.R. 3; Vriend v. Alberta, [1998] 1 S.C.R. 493, Egan, supra. Homosexual literature is an important means of self-discovery and affirmation for gay, lesbian and bisexual individuals. In a society which marginalizes sexual difference, literature has the potential to show individuals that they are not alone and that others share their experience. To ban books carrying these messages can only reinforce the existing perceptions gay, lesbian and bisexual individuals have of their marginalization by society.
248 Weighed against these costs are the benefits of a Customs regime that makes almost no special accommodations for the free expression rights at stake. We are not concerned in this appeal with the benefits of keeping obscenity out of Canada, as the appellants do not challenge the government’s right to exclude genuinely obscene materials. What the appellants challenge, and what the respondents must justify, are the lack of safeguards in the Customs legislation for expressive rights protected by s. 2(b) of the Charter.
249 The benefits of the present legislation are primarily monetary, as the reforms sought by the appellants will require public expenditures. However, it is important not to overestimate those costs. Our jurisprudence has never said that the Constitution mandates luxurious responses. But having no adequate response is not constitutionally acceptable. In my opinion, the benefits of the current system cannot outweigh the costs imposed by the Customs legislation.
250 All this said, it is unlikely that complying with the Constitution’s mandates will be costless. However, this Court has rarely allowed that fact alone to be determinative. Going back to Hunter v. Southam, supra, this Court has not hesitated to impose potentially costly requirements on government in the interest of vindicating Charter freedoms: see also Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Schachter v. Canada, [1992] 2 S.C.R. 679; Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; see also A. Lajoie, “De l’interventionnisme judiciaire comme apport à l’émergence des droits sociaux” (1991), 36 McGill L.J. 1338. Moreover, the government has not presented any evidence that a scheme with more procedural safeguards would be impossible: see RJR-MacDonald, supra, at para. 163, per McLachlin J.; ibid., at para. 188, per Iacobucci J. In the absence of any such evidence I am loathe to assume that Parliament is completely incapable of devising a cost-effective legislative scheme that better protects the constitutional rights in question.
251 On the other hand, I recognize the context in which any new legislative scheme must operate. As Smith J. pointed out at trial (at para. 48):
There are approximately 240 ports of entry in Canada, and in the fiscal year 1993-1994, for example, almost 230,000 shipments, made up of about 330,000,000 goods, were imported through them. Customs officials estimate that there are approximately 10.5 million entry transactions each year and that between 20,000 and 40,000 items of mail enter the Customs Mail Center daily in Vancouver alone.
Canada is a huge importer of expressive materials. A large reason why this case arose is that Little Sisters, and other bookstores catering to the gay and lesbian community, need to import many of the books and magazines they stock from the United States. Given the tremendous volume of materials that must be processed at our borders, leeway must be accorded to Parliament in striking an appropriate balance between administrative efficiency and the protection of expressive rights. I realize that a front-line screening process is a necessity under a prior restraint approach, that government resources are limited, that the border cannot be policed perfectly, and that mistakes in obscenity determinations will occur. For these reasons, I agree with my colleague Binnie J. that Parliament must be accorded some flexibility in establishing an appropriate Customs regime. However, I cannot agree that the Customs legislation presently in force, which makes almost no effort to accommodate constitutionally protected expressive rights, has struck the appropriate balance.
(vi) Conclusions
252 My colleague Binnie J. concludes that part of the Customs legislation violates s. 2(b) and that this violation was not justified under s. 1. As a result, he holds that the reverse onus requirement in s. 152 of the Customs Act is unconstitutional and must be read down (para. 105). I am not convinced that it is only part of the Customs legislation that is unconstitutional. As the Customs legislation makes only the most meagre of efforts to accommodate expressive rights and as it has created deleterious effects that far outweigh the primarily monetary benefits which result from the chosen legislative approach, I believe the Customs legislation as a whole cannot survive s. 1 scrutiny. The fact is that this legislation has resulted in an appalling level of over-censorship. The government has simply not established that the serious violation of the appellants’ s. 2(b) rights caused by this legislation is demonstrably justified in our free and democratic society. The remaining question is the appropriate remedy.
F. What Is the Appropriate Remedy?
253 Given Smith J.’s finding that there were “grave systemic problems” in the administration of the law -- a conclusion with which I whole-heartedly agree -- the primarily declaratory remedy relied on by Binnie J. is simply inadequate. Systemic problems call for systemic solutions. I believe that Customs’ history of improper censorship, coupled with its inadequate response to the declarations of the courts below, confirms that only striking down the legislation in question will guarantee vindication of the appellants’ constitutional rights. Having concluded that the law must fall, I will offer some broad guidelines for future reform.
(i) Legislation Must Ensure Constitutional Application
254 As was already illustrated in reviewing this Court’s decisions in Morgentaler, Hunter v. Southam, and Bain, it is legislation itself, not merely its application, that must make an effort to ensure that constitutionally protected rights are not infringed. In this case, it is true that nothing in the Customs legislation itself forces Customs to ignore evidence of literary and artistic merit; to make decisions without even allowing written submissions from the parties affected; and to discriminate against gay and lesbian materials. However, the legislation does call for prior restraint by an investigatory rather than adjudicatory body, and does not provide for any meaningful safeguards aimed at preventing the inevitable flaws that result from such a system.
255 Effectively, the respondents call on this Court to trust them. Indeed, when questioned at oral arguments about what guarantee we have that the mistakes of the past will not continue, counsel for the respondent Canada replied “what may have occurred then, I trust will not occur now”. Our jurisprudence, most explicitly in Bain has consistently rejected such flimsy constitutional protections. In Morgentaler, Hunter v. Southam and Bain, this Court rejected the government’s invitation to trust them. Instead, we demanded that the legislature enact laws that affirmatively safeguarded constitutional rights, rather than leaving them to the mercy of administrators.
256 In fact, the respondents’ approach would mean that every unconstitutional law requires no more than a declaratory remedy; after all, Parliament is fully capable of amending a law to bring it into compliance with the Constitution at any time. I therefore disagree with Binnie J.’s conclusion that, with the exception of s. 152(3) of the Customs Act, a declaratory remedy is sufficient in this case. While the government is free to delegate powers, it must do so in a way that ensures -- or at the very least attempts to ensure -- that Charter rights will be respected.
257 The respondents’ request for trust is particularly inappropriate in this appeal, where there is a voluminous record of discriminatory enforcement. Counsel for the intervener the Canadian AIDS Society summed up the point well in his oral submissions:
What the Customs is saying to us in effect is, having [been] in your henhouse for almost twenty years, this fox has now become vegetarian, and should remain in charge with no further restrictions. Well, speaking for the chickens, we are not very reassured. . . .
As a matter of logic, reason, and constitutional precedent, the appellants are entitled to more. Even leaving aside the precedents of Hunter v. Southam, Morgentaler, and Bain, Customs have proven themselves unworthy of trust. In such a situation, in my respectful opinion, the only proper solution is to give Parliament the opportunity to re-write the legislation.
(ii) Declaratory Relief Is Insufficient
258 The need to strike down the Customs legislation as it applies to expressive materials is reinforced by comparison with the alternate remedy adopted by both the courts below, and by Binnie J. in this Court. Declarations are, in many cases, an appropriate constitutional remedy. As Kent Roach has summarized in his Constitutional Remedies in Canada (loose-leaf ed.), at para. 12.30, declarations are often preferable to injunctive relief because they are more flexible, require less supervision, and are more deferential to the other branches of government. However, declarations can suffer from vagueness, insufficient remedial specificity, an inability to monitor compliance, and an ensuing need for subsequent litigation to ensure compliance: see ibid., at para. 12.320.
259 Mahe v. Alberta, [1990] 1 S.C.R. 342, illustrates the appropriate role of declaratory relief. In that case the Court held that Edmonton’s school system violated s. 23 of the Charter because it did not grant sufficient “management and control” over French-language education to the linguistic minority. In determining the appropriate remedy, Dickson C.J. recognized, at pp. 391-92, that the impugned provisions of the School Act were “‘permissive’ provisions, that is, they do not prevent authorities from acting in accordance with the Charter, but neither do they guarantee that such compliance will occur”. The Chief Justice declined to strike down the legislation, instead choosing to issue a declaration. He feared that “the result of a declaration of invalidity would be to create a legislative vacuum” (p. 392), which would potentially leave the appellants worse off. The Court therefore simply issued “a declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s. 23” (p. 392). Similarly in Eldridge, supra, the Court simply declared that services must be provided to the deaf instead of striking down the entire legislative scheme.
260 The rationale behind the remedial choice in those cases does not apply to the present appeal. Striking down the applicability of the Customs legislation to expressive materials will not make the appellants worse off; it will fully vindicate their rights. While the appellants are admittedly not entitled to any particular legislative scheme, they are entitled to a remedy that will prevent further systematic and consistent violations of their constitutional rights. Only invalidating the impugned Customs legislation will achieve that goal.
261 A final reason that declaratory relief is inappropriate in this case is the difficulties the appellants face in enforcing it. This case has been a massive undertaking for the appellants. Proving the constitutional violations recognized by Smith J. required the production of an enormous record. Unfortunately, if the appellants are unsatisfied with the government’s compliance with the declaration affirmed by this Court, they have little choice but to try to assemble a similar record documenting the enforcement of the Customs regime since the declaration was made. This is obviously a heavy burden, and indeed unfair. A stronger remedy is necessary to vindicate the appellants’ rights.
(iii) Reforms Undertaken Since Smith J.’s Declaration Are Insufficient
262 In my respectful opinion, declaratory relief has already proven ineffective. As Roach, supra, at para. 13.884 has noted, “declaratory relief does not facilitate continued judicial supervision and may not be effective where governments do not take prompt and good faith steps to comply with the declaration”. While obviously we lack evidence of the enforcement of the Customs regime since Smith J.’s declaration, I believe that the reforms thus far are not sufficient.
263 The first remedial measure, effected almost immediately, was to put in place “interim procedures . . . designed to prevent the detention of books with literary, artistic, scholarly or instructional merit which would override Schedule VII, Tariff Code 9956(a) consideration” (respondent Canada’s factum, at p. 8). Specifically, before detaining any book Customs Inspectors were instructed to consult designated officers, who in turn would consult the Prohibited Importations Directorate. Any detained book would be read by one of the designated officers, and the determination would be reviewed by another officer. Any prohibition would be reviewed by a Tariff and Values Administrator.
264 Subsequently, over two years after Smith J.’s reasons for judgment were released, Customs effected seven specific reforms which are described in the respondent Canada’s factum (at pp. 8-9):
(a) Memorandum D9-1-1 was re-written with particular attention being given to s. 2(b) Charter rights, artistic merit and importers [sic] rights.
(b) A series of Information Bulletins were issued by the Prohibited Importations Unit of Customs, with the purpose of clarifying issues relating to the administration of Tariff Item 9899.00.00. These Bulletins are available to the public through the Prohibited Importations Unit.
(c) The somewhat complicated B2 form by which an importer appealed a determination was replaced by a simple written request for re-determination or review.
(d) Importers may submit with their re-determination request any evidence which they view as relevant.
(e) When goods are detained and suspected of being obscene, the importer receives a written notice containing the following information: a brief description of the goods; port of entry; date of detention; statement of reasons for the detention, and a contact name and telephone number. The importer is also invited to view the materials and submit evidence in writing attesting to their admissibility.
(f) If the goods are determined to be obscene according to the legislation, the importer receives a written notice of determination containing the following information: a brief description of the goods; the reasons for prohibition; a contact name and telephone number; a list of options available, including instructions for appeal. If the goods are not obscene, they are forwarded immediately to the importer after any duties and taxes, if applicable, are paid.
(g) Customs officers are instructed to resolve all doubts in favour of freedom of expression.
265 With respect, I am not satisfied that these measures will remedy the “grave systemic problems” found by Smith J. They are largely hortatory or permissive. The new provisions also seem to rely heavily on the expertise of the Prohibited Importations Directorate. This is not reassuring. Linda Murphy, the Director of that group, testified that she was completely unaware of the cultural practices of various sexual minorities, and that she did not consider it her job to consider a book’s purpose and effect. Given the absence of any legislative provisions to ensure that importers’ arguments and evidence will be considered and that decisions will be rendered in a timely fashion, these reforms offer little comfort.
266 By the foregoing, I do not mean to suggest that the reforms effected thus far are without merit. Many of them may prove extremely valuable. However, both constitutional precedent and common sense suggest that when a government agency has systematically violated constitutional rights, structural reforms are necessary. In Morgentaler, supra, the Court could also have simply issued a declaration. The various federal and provincial ministries could have approved more hospitals, eliminated quotas, and otherwise solved the problems identified by this Court. However, the Court recognized that such a solution was inappropriate. Where the problems are a direct result of flaws in the legislation itself, as I believe is the case here, patchwork measures aimed at various symptoms will not cure the underlying ailment. As Smith J. found, and as I have endeavoured to demonstrate in these reasons, the flaws in the Customs regime are systemic. They flow from the very nature of prior restraint, and require careful consideration by Parliament. Declaratory relief, in my opinion, is not appropriate.
267 The need for structural reform is reinforced by Customs’ long history of excessive, inappropriate censorship. Before the appellants launched this case, Customs illegally prohibited depictions of anal penetration; it systematically targeted Little Sisters and other alternative bookstores; it favoured books by mainstream authors like Bret Easton Ellis and Madonna, in comparison to gay and lesbian authors; and it failed to consider artistic merit in spite of Butler’s clear instruction to always err on the side of protecting expressive freedom. Customs has entirely fulfilled Emerson’s dire predictions of how a system of prior restraint will work in practice.
268 These are not the kinds of problems that can be solved by simply directing Customs to behave themselves. In all the circumstances, further indulgence misses the mark; what is needed is the firm guidance that only new legislation from Parliament can provide. Striking down the applicability of the Customs legislation to expressive materials is consistent with the “Charter Dialogue Between Courts and Legislatures”, as it was described by Peter Hogg and Allison Bushell: (1997), 35 Osgoode Hall L.J. 75. This Court has frequently recognized the importance of fostering a dialogue between courts and legislatures: see R. v. Mills, [1999] 3 S.C.R. 668, at para. 57; Vriend, supra, at para. 139. Particularly where, as here, it appears that Parliament has not turned its mind to the issue at hand, striking down the legislation may encourage much needed changes.
269 This would not be the first time a court has struck down the Customs provisions for obscenity. In 1985, the Federal Court held that the existing Customs legislation was an unjustifiable infringement of the right to free expression: see Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 F.C. 85 (C.A.). The law had prohibited “immoral and indecent” works, a standard the Federal Court correctly held to be unduly vague. The government almost immediately introduced new legislation tying the standard to the Criminal Code definition of obscenity, and in the House of Commons debates various Members applauded the Court’s ruling: see House of Commons Debates, vol. III, 1st Sess., 33rd Parl., April 2, 1985, at pp. 3605-6, 3608 and 3611.
270 It required a court ruling to force Parliament to rethink the substantive standard Customs is to apply at the border. It seems to me that the same should be done for the procedural mechanisms used to apply that standard. Broad, structural reforms are necessary to remedy the manifold problems identified through the course of this appeal, and I fear those remedies will only come if this Court acts decisively, as the Federal Court did in 1985, to invalidate the existing legislation.
(iv) Remedial Options
271 Given the remedy adopted by Binnie J., Parliament will not, strictly speaking, have to amend the current legislation. However, Parliament is not restricted to acting only when this Court tells it to. Even accepting my colleague’s conclusion in this appeal, I would quote the wise words of Frankfurter J., dissenting, in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), at p. 670:
Our constant preoccupation with the constitutionality of legislation rather than with its wisdom tends to preoccupation of the . . . mind with a false value. The tendency of focussing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism.
The constitutional is not always synonymous with the optimal: R. v. Lippé, [1991] 2 S.C.R. 114, at p. 142, per Lamer C.J. Sometimes “constitutionality” means only that an unimpressive, minimal threshold has been met. I hope that Parliament, recognizing this truth, will address the problems identified in this appeal even without an order from this Court.
272 Books are different from other goods crossing the border. As Voltaire noted, “Liberty of thought is the life of the soul”: Essay on Epic Poetry (1727). While he was writing in the context of political speech, I believe the words of Cory J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336, are apt here:
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. . . . The vital importance of the concept cannot be over‑emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.
Cory J. went on to cite (at p. 1337) the following passage from John Stuart Mill, "On Liberty" in On Liberty and Considerations on Representative Government (1946), at p. 14:
If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
273 Books with no political context must not be undervalued. John Milton recognized the universal value of literature in his Areopagitica; A Speech for the Liberty of Unlicenc’d Printing, to the Parliament of England (1644):
[A]s good almost kill a Man as kill a good Book; who kills a Man kills a reasonable creature, God’s Image; but he who destroys a good Book, kills reason itself, kills the Image of God, as it were in the eye. Many a man lives a burden to the Earth; but a good Book is the precious life-blood of a master spirit, embalmed and treasured upon purpose to a life beyond life.
Obviously this Court has previously recognized that some expressive materials merit suppression. But we must do so only with sombre recognition that we are choosing the lesser of two very great evils.
274 Freedom of speech means not just the right to question the dominant political structure, but to question the dominant society and culture. Unfortunately, the Customs legislation has systematically stifled that right. I sincerely hope that Parliament will recognize this grave injustice. In that hope, I will offer several suggestions as to how the current legislative scheme could be constitutionally improved. I have already set out a list, at para. 242, of several means of accommodating the expressive rights at stake that are not currently mandated by the Customs legislation. While not all of these protections are constitutionally required, some are worthy of special emphasis. I should also emphasize the point made above that, because of the volume and complexity of materials imported into Canada, Parliament must be accorded flexibility in fashioning its response.
275 First, I believe that new legislation must provide for a number of basic standards to properly safeguard the fundamental expressive rights at stake. At a minimum, there should be a procedure to allow citizens to be promptly informed of the fact that expressive materials which they are attempting to import have been detained, along with the preliminary reasons for this detention. The importer should then have a right to examine the detained materials and to make effective representations as to why the detained materials are not obscene. A right to make “effective representations” would include, among other things, the right to make at least written submissions, to present evidence, and a statutory guarantee that these submissions and evidence will be considered by the decision-maker. As pointed out by Binnie J., the onus must be on the state to establish, on a balance of probabilities, that the detained materials are in fact obscene under s. 163(8) of the Criminal Code. Determinations should be made in a prompt fashion, and brief reasons must be given when materials are determined to be obscene. A time limit to exhaust the administrative decision and internal appeal mechanisms should be provided, with any materials not released or prohibited within the prescribed time being automatically released. Of course, a further right of appeal must continue to exist to the superior court of a province. The goal would be to create an open, expeditious process that allows for greater interaction between the individuals affected and the state.
276 Second, I believe that Parliament should give consideration to the establishment of a specialized administrative tribunal to expeditiously review obscenity determinations made by front-line Customs officers. The animating principles in establishing such a tribunal should be independence and effectiveness. A model could be the boards that currently review and classify all films that are publicly displayed in each province. While front-line Customs Inspectors would still make the initial determination as to whether something should be detained, the questionable materials should then immediately be passed on to the tribunal for a prompt decision. The procedures of such a tribunal should provide for similar rights to those just discussed in relation to the drafting of new Customs legislation.
277 As the great majority of commercial shipments of books enter Canada at a handful of high-volume ports of entry, it would be efficient for a tribunal of this nature to operate in these places. In my opinion, such a system would not necessarily be much more onerous on the government than the existing one. It would free ordinary Customs officers to fulfil the many other functions that they are far better equipped to perform. Moreover, by separating the function of screening the material from actually determining its status, it would avoid the problem identified in Hunter v. Southam, supra, of merging the investigatory and adjudicatory functions. As Dickson J. noted in that case at p. 164: “A member of the R.T.P.C. passing on the appropriateness of a proposed search under the Combines Investigation Act is caught by the maxim nemo judex in sua causa. He simply cannot be the impartial arbiter necessary to grant an effective authorization.”
278 Implicit in such a regime is that the tribunal will be properly staffed and have access to adequate resources. For any administrative agency to be independent and efficacious, its members must be at arm’s length from government, its procedures must be sufficiently developed, its resources must be proportionate to its workload (perhaps with some sort of case management system), it must be properly managed, and its staff and members must receive adequate training and legal advice.
279 Finally, and as a further alternative, I believe that Parliament may wish to consider relying on the criminal law to deal with the importation of obscene materials into the country in lieu of a prior restraint regime. In 1958, the Tariff Board was asked to re-determine the admissibility of the novel Peyton Place, which had been banned in 1956. The majority of the Board, by a 2-1 margin, found it to be non-obscene: see Dell Publishing Co. v. Deputy Minister of National Revenue for Customs and Excise (1958), 2 T.B.R. 154. The decision itself is unremarkable; what is remarkable is what the majority said in a postscript not found in the reported version cited above:
The Board, with great respect, wishes to draw to the attention of the Government an opinion which it has formed as a consequence of performing this rather distasteful responsibility. We cannot bring ourselves to believe that either the officers of the Department of National Revenue, Customs and Excise, or ourselves are qualified to make the kind of decision involved in classifying books under tariff item 1201. Essentially, this is a decision that a book would constitute an offence under the Criminal Code if publicly sold or publicly offered for sale in Canada. Such decisions, we believe, should be made by courts with appropriate jurisdiction in criminal matters.
Therefore, unless there are compelling reasons to the contrary, we suggest that tariff item 1201 be amended so as to apply only to books which have been adjudged to constitute an offence under the Criminal Code. [Emphasis added.]
(National Archives of Canada, RG 79, vol. 276, file 471)
280 As a matter of public policy, I agree with the Tariff Board majority’s suggestion. However, as a matter of law, I am quite rightly restricted to determining what is constitutional; and, as already noted, that does not necessarily overlap perfectly with what is optimally right or just. A system of prior restraint which sufficiently respects the expressive rights of Canadians may well be constitutional. But in the digital and information age in which we now find ourselves, I question whether such an approach continues to be either fair or effective. In my respectful opinion, a better approach would be to have Customs officers alert the proper authorities when questionable materials come to their attention, and leave the obscenity determination to prosecutorial discretion and the courts. This accords with Blackstone’s view, outlined above (at para. 234), that every individual should have the right to put their views forward, but if these views happen to be illegal they must “take the consequence of [their] own temerity”. Under this approach, every Canadian would be able to import any expressive material they desire into the country, but if those materials are obscene they must be ready to accept the consequences of their action, which may include seizure of the materials and, possibly, the laying of criminal charges.
281 No doubt there are many other steps that could be taken to improve the current system. I put these suggestions forward to show that there is a variety of approaches available to Parliament to underscore the importance of ensuring Canadians have access to as many expressive materials as possible while realizing the practical constraints that are involved. Because the present regime essentially treats books like any other commodity, I hope that Parliament will review and revise the current Customs legislation to reflect the seminal importance of freedom of expression in our Canadian democracy.
IV. Conclusion
282 In conclusion, I respectfully cannot agree with my colleague Binnie J. that the only amendment needed to the existing legislation is to shift the onus from the importer to the government. Without the opportunity for importers to make effective representations and a statutory guarantee that decisions will be made in a timely fashion, I question the significance of a shift in onus. In my opinion, the record in this appeal amply bears out Smith J.’s conclusion that there are “grave systemic” flaws in the enforcement of the Customs legislation. But I cannot agree that the remedy is simply to issue a declaration and take it on faith that Canada Customs – an agency which, it bears repeating, has a long and ignominious record of excessive censorship throughout this century – will reform its ways.
283 I would therefore allow the appeal, set aside the judgment of the British Columbia Court of Appeal and declare, pursuant to s. 52 of the Constitution Act, 1982, that Schedule VII, Tariff Code 9956(a) (now Tariff Item 9989.00.00) is of no force and effect. I would suspend this declaration of invalidity for a period of 18 months to allow the government time to choose the preferred remedial option described in these reasons, and to take the related steps necessary to make the implementation of the chosen option effective.
Appeal allowed in part with costs, Iacobucci, Arbour and LeBel JJ. dissenting in part.
Solicitors for the appellants: Arvay Finlay, Victoria.
Solicitor for the respondents the Minister of Justice and Attorney General of Canada and the Minister of National Revenue: The Department of Justice, Vancouver.
Solicitor for the respondent the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitors for the intervener the Canadian AIDS Society: Elliott & Kim, Toronto.
Solicitors for the intervener the Canadian Civil Liberties Association: Tory Tory DesLauriers & Binnington, Toronto.
Solicitors for the intervener the Canadian Conference of the Arts: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener EGALE Canada Inc.: Sack Goldblatt Mitchell, Toronto.
Solicitor for the intervener Equality Now: Janine Benedet, Toronto.
Solicitors for the intervener PEN Canada: Ruby & Edwardh, Toronto.
Solicitor for the intervener the Women’s Legal Education and Action Fund (LEAF): Karen Busby and Claire Klassen, Winnipeg.