IN THE SUPREME COURT OF CANADA

AFFIDAVIT OF JOHN FISHER

I, JOHN FISHER, of the City of Ottawa, in the Regional Municipality of Ottawa-Carleton, MAKE OATH AND SAY:

1. I am the Executive Director of EGALE Canada Inc. (hereafter referred to as "EGALE") and as such, I have personal knowledge of the matters to which I hereinafter depose.

The Structure and Objectives of EGALE

2. The acronym "EGALE" stands for Equality for Gays and Lesbians Everywhere. EGALE is a federally-incorporated not-for-profit organization that advances equality and justice for lesbians, gays and bisexuals across Canada.

3. EGALE was founded in 1986. It is Canada’s only national advocacy organization for lesbians, gays and bisexuals and has members in every province and territory of Canada.

4. The organizational structure of EGALE comprises a Board of Directors, the Executive Director, six Standing Committees, Regional Coordinators in each province and territory, and the general Membership. The Board of Directors consists of the President, Vice-President and Secretary and Treasurer, as well as eight Directors who are Members-at-Large.

5. The objectives of EGALE, as set out in the organization’s by-laws, include developing expertise in issues that affect equality and justice for lesbians, gays and bisexuals; making that expertise available to the general public; communicating and cooperating with others who are interested in advancing equality and justice for all disadvantaged groups; lobbying governments on issues that affect equality and justice for lesbians, gays and bisexuals; and educating the public on issues relating to sexual orientation in general, and to lesbians, gays and bisexuals in particular.

EGALE’s Interest in the Appeal

6. This appeal raises several important issues of concern to lesbians, gays and bisexuals, including:

(i) whether the obscenity provision of the Criminal Code, as it is incorporated into the impugned customs legislation, discriminates against lesbians, gays and bisexuals and infringes rights guaranteed by s.15 of the Canadian Charter of Rights and Freedoms (the "Charter");

(ii) whether the obscenity provision of the Criminal Code, as it is incorporated into the impugned customs legislation, violates the right to freedom of expression of lesbians, gays and bisexuals guaranteed by s.2 of the Charter; and

(iii) what the appropriate threshold should be under s.1 of the Charter for justifying the infringement of the rights to freedom of expression and equality in the particular circumstances of this case, where a system of prior restraint exists and is adversely affecting an historically disadvantaged community.

7. EGALE has a substantial interest in the outcome of this appeal. The decision of this Honourable Court will have a direct impact on EGALE members and on lesbians, gays and bisexuals generally. It will directly affect their rights to freedom of expression and freedom from discrimination.

8. In addition, EGALE regularly mounts information and education campaigns across Canada to inform the general public and members of lesbian, gay and bisexual communities about their legal rights and responsibilities. The arbitrariness and inconsistent application of the current customs regime leads to unpredictable outcomes and consequently inhibits EGALE’s ability to provide the public and our members with accurate and reliable information in furtherance of our educational mandate. EGALE therefore has a genuine interest in the issues before this Court relating to the constitutionality and enforceability of the impugned customs legislation.

EGALE’s Expertise in Addressing the Issues before the Court

9. Since its inception, EGALE has been committed to advancing both equality and justice for lesbians, gays and bisexuals in Canada. This includes a commitment to safeguarding the freedom of expression of lesbians, gays and bisexuals. These commitments are reflected in EGALE’s activities, which are summarized in the Fact Sheet attached hereto and marked Exhibit “A” to this my affidavit.

10. EGALE’s activities include: legal research and consultation on subjects that concern lesbians, gays and bisexuals; interventions in test case litigation challenging alleged violations of the rights of lesbians, gays and bisexuals; public education about the rights of lesbians, gays and bisexuals; and appearances before governmental committees dealing with important issues of concern to lesbians, gays and bisexuals.

11. EGALE intervened before the Supreme Court of Canada in the following Charter and human rights cases dealing with issues of discrimination against lesbians, gays and bisexuals:

1. Mossop v. Canada, [1993] 1 SCR 554;

2. Egan and Nesbit v. Canada, [1995] 2 SCR 513;

3. Vriend v. Alberta, [1998] 1 SCR 493, and

4. M v. H and Ontario (decision pending).

In each case, EGALE sought to provide this Honourable Court with a substantive equality analysis that takes into account the social, political and legal context of the lives of lesbians, gays and bisexuals in Canada. EGALE has brought to the Court’s attention relevant and important concerns of lesbians, gays and bisexuals with respect to the development of equality jurisprudence generally and the application of sections 15 and 1 of the Charter specifically.

12. EGALE also coordinated a coalition of 13 equality-seeking groups to intervene before the Ontario Court of Appeal in the case of Rosenberg & CUPE v. Canada (1998), 158 DLR (4th) 664 dealing with the issue of survivor pension benefits for same-sex spouses. In April 1998, the Ontario Court of Appeal unanimously ruled that the opposite-sex definition of “spouse” in the pension registration provisions of the Income Tax Act was discriminatory, constituted an unjustifiable violation of s.15 of the Charter, and must be extended to include same-sex partners.

13. As EGALE’s Executive Director, I was called to testify as a witness before the Canadian Human Rights Tribunal in Moore & Akerstrom v. Canada, (1996), 25 CHRR D/351. EGALE’s then Vice-President, Lawrence Aronovitch was also called as a witness to testify before the Canadian Human Rights Tribunal in the case of Laessoe v. Air Canada (1996), 27 CHRR D/1. Both of these cases involved complaints about alleged discrimination based on sexual orientation. In both cases, our evidence was based on knowledge, information and expertise developed through our involvement with EGALE and its activities.

14. Representatives of EGALE have also testified before a number of government Committees and Commissions, including:

(i) the Royal Commission on New Reproductive Technologies (addressing the needs, concerns and reproductive rights of lesbians, gays and bisexuals);

(ii) the Senate Constitutional and Legal Affairs Committee (supporting Senate Bills S-15 and S-2, which proposed adding "sexual orientation" as a prohibited ground of discrimination in the Canadian Human Rights Act);

(iii) the House of Commons Human Rights Committee (supporting proposed amendments to the Canadian Human Rights Act, as well as measures to recognize same-sex spousal relationships);

(iv) the House of Commons Committee on Justice and Legal Affairs (supporting Bill C-41, which provides for more severe penalties for crimes motivated by hatred on certain grounds, including sexual orientation);

(v) the House of Commons Committee on Human Resources Development (ensuring that the Social Security Review recognized the diversity of family relationships, including same-sex relationships, when allocating government benefits on the basis of relationship status); and

(vi) the Ministerial Legislative Review on Immigration issues (advocating for a recognition of same-sex partners as "spouses" for the purposes of immigration sponsorship).

15. EGALE has also been accredited to a number of International Conferences, including:

(i) the United Nations World Conference on Human Rights (Vienna, 1993);

(ii) the International Year of the Family Conference (Montreal, 1994); and

(iii) the United Nations World Conference on Women (Beijing, 1995).

16. In addition, EGALE distributes a newsletter across Canada; has prepared a number of Court Challenges Case Development Reports; has written a legal analysis of the impact of the decision of this Honourable Court in Egan v. Canada; has been commissioned to write a similar analysis of the impact of the decision of this Honourable Court in Vriend v. Alberta; has participated in seminars on lesbian and gay equality issues; has participated in a numerous public education programs; and has undertaken many individual human rights projects.

17. EGALE has a specific interest in censorship and freedom of expression issues:

(i) Before the 1993 and 1997 federal elections, EGALE distributed a questionnaire to all Members of Parliament, asking them to identify their position on a range of issues, including censorship issues. The results of this questionnaire were made available on our Website and to our membership across Canada.

(ii) EGALE has testified before the Canadian Radio-television and Telecommunications Commission (“CRTC”) to support diversity in Canadian broadcasting policy, and specifically to oppose censorship on the Internet, because we recognize that the Internet is an invaluable resource for younger gays and lesbians seeking access to accurate information about sexual orientation.

(iii) EGALE has been commissioned to write reports on issues affecting lesbian, gay and bisexual youth, and on such issues as HIV and sexual orientation discrimination, each of which contained substantial sections addressing the discriminatory censorship practices that restrict access to lesbian and gay materials in Canada.

(iv) In 1998, EGALE participated in presenting workshops at two Ontario Judge’s Conferences organized by the National Judicial Institute. The hypotheticals presented at the workshops and the discussions relating thereto included an analysis of censorship issues affecting lesbians, gays and bisexuals.

(v) EGALE has actively supported a challenge to two resolutions by the Surrey School Board to prohibit the use of lesbian and gay materials. EGALE has distributed educational information about the case across Canada. On December 16, 1998, the British Columbia Supreme Court overturned the resolutions of the Surrey School Board. The School Board has appealed the Court ruling to the British Columbia Court of Appeal, and EGALE is seeking leave to intervene in support of the Respondents.

18. In summary, EGALE has been at the forefront of the movement to ensure equality and justice for lesbians, gays and bisexuals in Canada; has frequently intervened in significant court cases; is thoroughly familiar with the factual and legal issues raised in the present appeal; and is in a unique position to provide this Honourable Court with a valuable perspective relevant to the points in issue. EGALE has developed a positive working relationship with other organizations across Canada and will be able to liaise with any other groups intervening in support of the appeal to ensure that there is no duplication of submissions or materials.

EGALE’s Proposed Submissions on the Appeal

19. If granted leave to intervene in this appeal, EGALE will submit that the impugned customs legislation violates the equality rights and freedom of expression of lesbians, gays and bisexuals, and does not constitute a reasonable and demonstrably justified limit on Charter rights and freedoms under s.1 of the Charter.

20. EGALE will submit that the majority judgment of the British Columbia Court of Appeal gave insufficient consideration to fundamental differences between heterosexual erotica and lesbian and gay sexual imagery and text. In particular:

(i) Whereas heterosexual erotica fulfils primarily an entertainment function, visual and textual depictions of lesbian and gay sexuality play an invaluable role in affirming lesbian and gay identity, and in normalizing same-sex sexual practices, which are condemned in our society as deviant and perverse.

(ii) Depictions of heterosexual sexuality are ubiquitous in Canadian culture, not only in the pornography industry, but also in mainstream media such as fashion magazines and television sitcoms. By contrast, lesbian and gay sexual expression is often rendered invisible or actively suppressed, contributing to the marginalization of an already disadvantaged community. Lesbian and gay sexual text and imagery consequently fulfil a vital role in countering this erasure of lesbian and gay sexuality. Heterosexual erotica does not serve such a purpose or function.

(iii) Lesbian and gay sexual imagery and text are not premised upon and do not contribute to gender inequality, one of the principal bases upon which harm has been presumed to exist in relation to heterosexual pornography. The same assumption cannot reasonably be made in relation to sexually explicit materials produced for and consumed by a lesbian or gay audience.

21. EGALE will submit that these differences between heterosexual erotica and lesbian/gay sexual imagery and text must be taken into consideration in analyzing the s.2(b) and s.15 claims in this case.

22. In particular, EGALE will submit that the uniqueness of lesbian and gay sexual imagery and text, and the particular audience for which these materials are produced, must be taken into consideration in applying the "community standards of tolerance" test, otherwise the equality rights of lesbians, gays and bisexuals are infringed by formally equal treatment that has an unequal and adverse effect.

23. Moreover, this Honourable Court has held that, in considering whether a violation of freedom of expression can be justified under s.1 of the Charter, consideration must be given to the extent to which the impugned limitation varies from the “core values” sought to be protected by s.2(b). EGALE will submit that this analysis requires an appreciation of the expressive content of lesbian and gay materials in affirming lesbian and gay identity. EGALE will also submit that the majority judgment of the Court of Appeal erred by suggesting that a lower threshold of justification under s.1 was warranted in this case on the basis that the expression in question fell far from the core values underlying s.2(b) of the Charter.

24. Furthermore, the record indicates that lesbian and gay sexual imagery and text have often been declared “obscene” solely because of their gay or lesbian content. EGALE will submit that the Criminal Code definition of "obscene", as it applies to the impugned customs legislation, has a disproportionate and adverse effect on lesbians, gays and bisexuals. The lack of precision of the definition of “obscene” in the current structure of the customs regime inevitably gives rise to systemic discrimination against lesbian and gay writers, artists, readers and consumers.

25. Under s.1 of the Charter, the onus rests on the government to provide an evidential foundation sufficient to justify the rights violations caused by the impugned provisions. In this case, EGALE will submit that the Respondents have not discharged their onus, but have instead simply assumed that the reasons used to justify restrictions on heterosexual erotica can justify restrictions on lesbian and gay sexual imagery and text, without any consideration of the essential differences between heterosexual and gay/lesbian materials, nor the differences between heterosexual and gay/lesbian audiences. The Respondents have not provided evidence of the harm ostensibly caused by sexually explicit lesbian and gay materials, nor even a basis for a reasonable apprehension of harm. The Respondents have therefore failed to establish the existence of a pressing and substantial legislative objective for prohibiting the importation of lesbian and gay sexual imagery and text.

26. Finally, EGALE will submit that the Respondents have not demonstrated that the means chosen to prohibit the importation of lesbian and gay sexual imagery and text are proportionate to the legislative objectives. Under the impugned customs legislation, customs officers are given broad-ranging discretionary powers to apply imprecise statutory concepts. It is inevitable that such a scheme will be applied against the lesbian, gay and bisexual communities in an overbroad manner that is disproportionate to the harm sought to be addressed.

27. As EGALE’s Executive Director, I have been in close communication with Counsel for the Appellants, who have expressed their support for EGALE’s proposed intervention in the within appeal. Attached hereto and marked Exhibit “B” to this my affidavit is a copy of a consent form which I have received from Counsel for the Appellants.

27. I make this affidavit in support of EGALE’s application to intervene on the hearing of the within appeal and for no other or improper purpose.

SWORN before me at the City of Ottawa
in the Regional Municipality of Ottawa-
Carleton on this 26th day of April, 1999

John W. Fisher

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.