EGALE’s Factum to the Supreme Court of Canada in the Little Sisters Appeal

FACTUM OF THE INTERVENER EGALE CANADA INC.

TABLE OF CONTENTS

• PART I—THE FACTS
• PART II—THE ISSUES
• PART III—THE ARGUMENT
1. The Larger Social and Political Context Must be Considered
2. The Customs Legislation has a Differential Impact on Lesbian Gay and Bisexual Communities
1. Censorship has More Deleterious Effects for Members of Lesbian Gay and Bisexual Communities
2. A Disproportionately Large Quantity of Homo-Erotic Material is Systematically Seized
1. Procedural Deficiencies in the Legislation
2. Substantive Deficiencies in the Legislation
3. Summary
3. There is a Greater “Chill” Effect on Freedom of Expression in Our Communities
3. The Customs Legislation Stigmatizes Lesbians Gays and Bisexuals
4. The ss.2(b) and 15 Rights Violations Intersect
5. Stare Decisis and Section 1 of the Charter; The Butler Decision is Not Binding
6. The Government Should be Held to a Rigorous Standard of Review Under Section 1
7. The Legislative Objective and Rational Connection; There is No Reasoned Apprehension of “Harm” in this Case
8. Minimal Impairment; The Government Did Not Consider Less Intrusive Means
9. The Deleterious Effects of the Customs Legislation Outweigh its Salutary Effects
• PART IV—THE REMEDY
1. The Customs Legislation Should be Declared Inoperative

PART I—THE FACTS

1.   The acronym EGALE stands for “Equality for Gays and Lesbians Everywhere.” EGALE Canada Inc. (“EGALE”) is a national advocacy organization committed to the advancement of equality for lesbians, gays, and bisexuals. EGALE accepts the facts as stated in the Appellants’ factum.

PART II—THE ISSUES

2.   This appeal concerns the constitutionality of ss.58 and 71 of the Customs Act, R.S.C. 1985, c.1 (2^nd Supp.), and of s.114 and Code 9956(a) of Schedule VII of the Customs Tariff, R.S.C. 1985, c.41 (3^rd Supp.), as amended (the “Customs Legislation”). EGALE takes the position that the Customs Legislation infringes rights guaranteed by ss.2(b) and 15 of the Canadian Charter of Rights and Freedoms (the “Charter”). The legislation itself, not simply its faulty administration, violates the equality rights and freedom of expression of lesbians, gays, and bisexuals. These violations are not demonstrably justifiable pursuant to s.1 of the Charter. Thus the appropriate remedy is to declare, pursuant to s.52 of the Charter, that the impugned legislation is of no force or effect.

PART III—THE ARGUMENT

A. The Larger Social and Political Context Must be Considered

3.   Charter claims must be analyzed in the larger social and political context in which they arise. The issues in this case must therefore be examined in the context of Canadian society, in which cultural representations of heterosexuality are ubiquitous, and our lesbian, gay, and bisexual sexualities are largely invisible.

Edmonton Journal v. Alberta , [1989] 2 S.C.R. 1326 at 1355-56; Thomson Newspapers v. Canada, [1998] 1 S.C.R. 877 at 939; R. v. Turpin [1989] 1 S.C.R. 1296 at 1331-32; UFCW Local 1518 v. K Mart Canada (9 September, 1999), Doc. 26209 at para.24

4.   To the extent that our sexualities are acknowledged in mainstream advertising, literature, visual art, or other media, the representations are usually inaccurate and/or pejorative. The dominant cultural discourse on sexuality privileges certain (heterocentric) conceptions, descriptions, and depictions of sexual identity and reality, while marginalizing others. The unequivocal message conveyed by mainstream cultural representations is that heterosexuality is the (almost universal) norm, and our lesbian, gay, and bisexual sexualities are unnatural, deviant, and perverse.

“As a young person, I experienced an intense emotional turmoil—largely due to a lack of understanding of, or approval for, my sexual orientation from the world around me—over the fact that I was sexually attracted to other women. Images of women’s sexuality were as pervasive in this culture then as they are now but this apparently ‘official’ view of female sexual potential excluded my feelings and experiences.”

Statement of Opinion of C.Bearchell, Exhibit 386, AR vol.III, tab 4, p.386

“The gay community is a stigmatized and abused community. We grow up learning what it’s like to be hated, we grow up learning shame about our bodies and our sexuality, and we grow up feeling isolated as if we are freaks and all alone in the world.”

Testimony of T.Waugh, AR vol.III, tab 4, p.327

5.   Sexually explicit lesbian, gay, and bisexual materials challenge the dominant cultural discourse. They resist the enforced invisibility of our marginalized communities and thereby reassure us that we are not alone in the world, despite the apparent hegemony of heterosexuality. They reduce our sense of isolation. They provide affirmation and validation of our sexual identities by normalizing and celebrating homo- and bi-sexual practices, which mainstream culture either ignores or condemns. In short, they help us to feel good about ourselves in an otherwise hostile society.

“Young gay people who are growing up and who encounter [gay] erotica of some kind by accident or intentionally very often learn from this erotica for the first time that they are not alone, that the...shame and stigma they have been feeling are unwarranted. They learn to discover that there are other people out there like them. They learn to acquire feelings of self-worth and dignity and belonging to a larger community.”

Testimony of T.Waugh, AR vol.III, tab 4, p.326

“[L]esbian made sexual materials validate lesbian sexuality as healthy, as meaningful, and as empowering. They contribute to the positive formation of lesbians’ consciousness, community, and culture; they combat the historical legacy of invisibility and provide lesbian readers or viewers with an avenue for self-affirmation.”

Testimony of B.Ross, AR vol.III, tab 4, p.349

“When I encountered images of women involved with each other sexually, it was a revelation and a relief. This pornography provided affirmation for m[y] desires at a time when I badly needed such positive reinforcement. It helped me to discover that sex between women could be enjoyable as well as possible and to put to rest my fears about my prospects for future happiness and fulfilment. This, in turn, allowed me to reach out to others with similar experiences and to find a place to belong and a way to contribute to my world.”

Statement of Opinion of C.Bearchell, Exhibit 386, AR vol III, tab 4, p.386

6.   Sexually explicit lesbian, gay, and bisexual materials not only render homo- and bi-sexual desire visible (in a society in which heterosexual desire is omnipresent and overwhelming), they also enable us to claim and exercise agency over how our sexualities get constructed, defined, depicted, described, and represented. This is particularly important for lesbians and bisexual women, whose sexualities are often appropriated, distorted, and packaged for heterosexual male consumption in mainstream pornography.

“This is...what might be referred to as the lesbian spread...in Hustler.... The women are typically...constructed as to be primed or ready for heterosexual intercourse initiated and controlled by the male reader. So even though it would appear that it’s lesbian sex that is going on or sex between two women, this is embedded in a publishing environment which is intended for heterosexual male readers.”

Testimony of B.Ross, AR vol.IV, tab 14, p.660 (see also B.Ross, “‘It’s Merely Designed for Sexual Arousal’: Interrogating the Indefensibility of Lesbian Smut” in Bad Attitude/s on Trial at 167)

“[A]ccess to producing and consuming our own sexual images is crucial to [the] interruption [of] both the stubborn invisibility of lesbians in the culture at large and also the negative problematic stereotyping of lesbians as either on the one hand asexual, pinched spinsters, or as sex crazed, man-hating monsters.”

Testimony of B.Ross, AR vol.III, tab 4, p.349

7.   Sexually explicit lesbian, gay, and bisexual materials also empower us in other ways. For example, they make a valuable contribution to the historical and contemporary documentation of lesbian, gay, and bisexual existence and experience. In that respect, they are critical to the formation, evolution, and continued vitality of our communities.

“These memoirs in these volumes go back, in some cases, to the ‘30s and ‘40s, and they’re the only accounts we often have of [gay] people’s sexual lives going back that far”

Testimony of T.Waugh, AR vol.III, Tab 1, p.310

“Anyone who comes out [as lesbian, gay, or bisexual] knows the need usually to read literature and find out one’s history or identity....”

Testimony of K.Mitstysyn, AR vol.III, tab 4, p.384

8.   Sexually explicit lesbian, gay, and bisexual materials also serve as an important source of information used to promote healthy and safe sexual practices within our communities. In that respect, they perform a crucial educative function that is not fulfilled by mainstream pornographic materials, which are directed at heterosexual audiences and are therefore largely irrelevant to us.

“[T]he health of individual lesbians and gay men and of our community itself—and the success of the overall battle against AIDS—are seriously threatened by efforts to restrict or eliminate those aspects of lesbian and gay culture and community which foster sexual knowledge, discussion, representation and safe sexual behaviour.”

Statement of Opinion of C.Bearchell, Exhibit 386, AR vol.III, tab 4, p.386a

9.   All forms of sexual representation are part of an inherently political discourse about such fundamental issues as identity, humanity, passion, power, control, vulnerability, trust, respect, intimacy, and, of course, sexuality. Lesbian, gay, and bisexual materials make an important contribution to that discourse. They thereby operate as a socializing force, provoking informed discussion among lesbians, gays, and bisexuals, through which we create networks, forge social and political ties, and develop vibrant communities.

“Erotic materials in the gay community have not only functioned as erotica in the ordinary sense of the word, but as vehicles of education, of initiation, of community formation, of communication. In other words, they’ve played a lot of social roles in addition to their role as sexual arousal.”

Testimony of T.Waugh, AR vol.III, tab 4, p.326

“[F]or gay people, literature is a very important bond, a kind of glue within our, our community.... [T]he way that we connect with our community is often through our literature, through our newspapers, and through our books.”

Testimony of J.Moldenhauer, AR vol. III, tab 4, p.380

10.   Since all forms of lesbian, gay, and bisexual literature are essential to the health and vibrancy of our communities, and since much of that literature is not readily available in mainstream bookstores and libraries, the bookstores that specialize in publications produced by and for lesbians, gays, and bisexuals effectively operate as indispensable community resource centres and gathering places. In addition to selling periodicals and books, they display and circulate free literature, post notices and disseminate information about community organizations and meetings, and host and distribute tickets for social and cultural events. Unfortunately, there are only a handful of such bookstores in Canada. They are all small independent businesses with limited financial resources.

Testimony of T.Waugh, AR vol.III, tab 1, p.311; Reasons for judgment, BCSC, AR vol.I, tab B, p.115

B. The Customs Legislation has a Differential Impact on Our Communities

11.   The lower courts concluded that the Customs Legislation does not violate s.15 of the Charter because it does not result in differential treatment of lesbians, gays, and bisexuals on the basis of sexual orientation. EGALE submits that this finding is incorrect. According to this Court’s recent rulings in Law v. Canada and M. v. H., if a statute fails to take into account the claimants’ already disadvantaged position within Canadian society, resulting in substantively differential treatment of the claimants in comparison with others on the basis of one or more of the enumerated or analogous grounds, then there is differential treatment for the purpose of s.15 of the Charter. In this case, the Customs Legislation fails to take account of our disadvantaged position as lesbians, gays, and bisexuals in a heterosexist society. It consequently has the following disparate and adverse effects on our communities: (i) its deleterious effects are more severe for us than for the majority heterosexual population; (ii) it results in the detention and seizure of a disproportionately large quantity of homo-erotic imagery and text; and (iii) it has a greater “chill” effect on freedom of expression in our communities than in society at large.

Law v. Canada (March 25, 1999), Doc. 25374 (S.C.C.) at paras.69-71; M. v. H. (May 20, 1999), Doc. 25838 (S.C.C.) at para.48

(i) Censorship has More Deleterious Effects for Members of Our Communities

12.   Censorship of sexually explicit material has a distinct and more detrimental effect on us than on the majority heterosexual population because the material serves a unique role in our communities. As Judge Smith concluded, lesbian, gay, and bisexual imagery and text normalize sexual practices that society considers to be deviant, provide affirmation of our sexualities, and serve as a socializing and politicizing force within our communities. Mass-market heterosexual pornography does not function in the same way for members of the heterosexual population, whose sexuality is widely and positively represented in other aspects of Canadian culture (eg. in mainstream film and theatre, on billboards, and in fashion magazines). As Professor Green has written:

[r]epresentations of minority sexualities are not a staple of public discourse, advertising campaigns, schoolbooks, television, etc.... So gay people largely make their own way, their existence and needs acknowledged only in the margins of popular and high culture... When books, magazines, art, theatre, films and videos fall under the ban of the censor or the chill of lawsuits, it is almost certain that the burden will fall more heavily on sexual minorities than on the majority. Heterosexuality does not become invisible when the censor cuts.

Reasons for judgment, BCSC, AR vol.I , tab B, p.131; L.Green, “Pornographies” at 8.5

(ii) A Disproportionately Large Quantity of Homo-Erotic Material is Systematically Seized

13.   The Customs Legislation has another adverse effect on lesbians, gays, and bisexuals, namely that it results in the detention and seizure of a disproportionately large quantity of homo-erotic imagery and text. This result is attributable to procedural and substantive flaws inherent in the legislation—not, as the trial judge suggested, to the (presumed) fact that our communities produce a disproportionately greater amount of erotic/pornographic material than the heterosexual population. There is no evidence to support the trial judge’s presumption that “homosexual” literary and artistic expression contains a greater share of sexually explicit material than mainstream art and literature. His unfounded assumption (that “homosexual” expression is permeated by sexual themes to a greater extent than heterosexual expression) is based on the stereotypical view that lesbians, gays, and bisexuals are one-dimensional hyper-sexual beings. This is precisely the kind of stereotype that s.15 of the Charter is designed to eliminate. As author Jane Rule eloquently stated during the trial:

Of course we [lesbians, gays, and bisexuals] have writers who are writing erotica, and so we should. I celebrate that. But we are not a community churning out sex tracts. We are a community speaking with our passion, our humanity, in a world that is so homophobic that it sees us as nothing but sexual creatures instead of good Canadian citizens, fine artists, and brave people trying to make Canada a better place for everybody to speak freely and honestly about who they are.

Reasons for judgment, BCSC, AR vol.I, tab B, p.131; Testimony of J.Rule, AR vol.X, tab 35, p.1727; B.Cossman and B.Ryder, “Customs Censorship and the Charter” at 105; C.Nowlin, “The Relevance of Stereotypes to s.15 Analysis” at 38

14.   The detention and seizure of a disproportionately large quantity of homo-erotic imagery and text results, not from an excessively high rate of pornography production in our communities, but rather from procedural and substantive deficiencies in the Customs Legislation.

(a) Procedural Deficiencies in the Legislation

15.   The impugned legislation creates a system of “prior restraint,” wherein customs officers are granted broad discretionary power to prohibit entry of artistic and literary materials into Canada, without affording importers the benefit of even a perfunctory hearing on whether or not the materials are “obscene.” The statutory procedures for reviewing these classification decisions require importers to persuade the government that the prohibited materials should be released, without affording them any due process protections to enable them to do so effectively. The review procedures foster extensive delays and rarely result in anything more than a pro forma ratification of initial classification decisions. Under the impugned legislation:

• there is no requirement that importers be advised of their rights and of the appeal procedures available to them;

• importers who object to the detention or seizure of allegedly “obscene” materials cannot appeal to a court until after they have exhausted two internal requests for redetermination within the customs bureaucracy;

• a customs officer who is consulted with respect to an initial classification decision may be assigned responsibility for making a redetermination decision regarding the very same publication;

• there are no specific time constraints for rendering redetermination decisions;

• there is no requirement that importers be advised of which aspects of prohibited materials are alleged to be “obscene”;

• there is no requirement that importers be permitted to examine prohibited materials to enable them to make informed and reasoned submissions on a redetermination request;

• there is no requirement that even a rudimentary hearing be afforded to importers at any stage in the classification (determination and/or redetermination) process;

• there is no requirement that decision-makers receive or consider evidence at any stage in the classification process;

• there is no requirement that a record be compiled with respect to prohibited materials; and

• there is no requirement that reasons be provided for classification decisions at any level.

Reasons for judgment, BCSC, AR vol.1, tab B, pp. 96-114; Testimony of B.Ryder, AR vol.IV, tab 12 , p.650 and tab 12, p.618; Exhibit 100—Explanation for Request for Redetermination, AR vol. IV, tab 12, p.632

16.   The impugned legislation inevitably leads to capricious and arbitrary decision-making because it grants customs officers a virtually unfettered discretion to detain materials, without any due process, for an indeterminate period of time, without even providing reasons for their decision. The statutory redetermination procedures are similarly devoid of natural justice and due process. At all levels of the customs bureaucracy, the decision-making procedure is closed to public scrutiny and criticism. There are no mechanisms to curtail the potential excesses and abuses of state censorship. Under such a regime, discriminatory and prejudicial decision-making is bound to occur.

17.   In that respect, the customs regime is like the former criminal jury selection process, which permitted Crown Attorneys to “stand aside” up to 48 prospective jurors, without providing reasons for the exercise of their discretion. In R. v. Bain, this Court held that the “stand-aside” provision in the Criminal Code violated s.11(d) of the Charter because it subjected the protection of an accused persons’ constitutional rights to the whim of Crown Attorneys. As Justice Cory stated,

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....

The protection of our equality rights and freedom of expression must not be dependent upon a reliance on the continuous exemplary conduct of customs officers.

R. v. Bain (1992), 69 C.C.C. (3d) 481 at 512-13

18.   The Respondents argued, in the courts below, that the discretion of customs officers is fettered by a statutory requirement that only “obscene” materials be prohibited. This argument ignores the fact that the Customs Legislation provides no administrative or procedural safeguards to ensure that the discretion is exercised in an appropriate manner. On the contrary, the administrative and procedural deficiencies in the legislation invite discrimination in the application of the Customs Tariff and result in the seizure of a disturbing amount of lesbian, gay, and bisexual material that is not “obscene” within the statutory meaning of that term.

Reasons for judgment, BCSC, AR vol.I , tab B, pp.191-92

(b) Substantive Deficiencies in the Legislation

19.   Moreover, the purported substantive restriction on the exercise of customs officers’ discretion consists of the incorporation into the Customs Legislation of the Criminal Code definition of the word “obscene,” which does not protect the equality rights of lesbians, gays, and bisexuals. By referencing the criminal obscenity provision, the impugned legislation actually fuels discrimination based on sexual orientation because it effectively authorizes customs officers to apply the judicially formulated “community standard of tolerance” and “degradation and dehumanization” tests to lesbian, gay, and bisexual materials. In the larger social and political context in which the customs bureaucracy operates, the application of these subjective tests to homo-erotic material inevitably results in determinations that a disproportionate amount of lesbian, gay, and bisexual material is “obscene.”

20.   The “community standard of tolerance” test involves a determination of what the “national community” would not tolerate others being exposed to. According to the jurisprudence, the demographics and sensibilities of the target audience for whom materials are produced cannot be taken into consideration in applying the test, even when that audience is a marginalized and disadvantaged community. This Court ruled in R. v. Butler that the test is not meant to assess whether sexually explicit materials “offend against morals,” but rather whether they are “perceived by public opinion to be harmful to society.” The reality is, however, that the very notion of a “national community standard of tolerance” only makes sense in relation to a prevailing understanding of sexual morality, which in our society consists of a morality based on conventional heterosexual norms. As Professor Cossman has written, the standard can only be understood “in the context of dominant discourses of sexuality that remain informed by a profoundly conservative sexuality morality, in which heterosexuality, and only certain forms of heterosexuality, remain privileged.” In our (heterosexist) society, the “national community” will invariably be less tolerant of exposing images and narratives that represent lesbian, gay, and bisexual sexualities, and more tolerant of exposing those that conform to majoritarian (hetero)sexual norms.

R. v. Butler, [1992] 1 S.C.R. 452 at 476 and 479; B.Cossman, “Feminist Fashion or Morality in Drag? The Sexual Subtext of the Butler Decision” in Bad Attitude/s on Trial at 141; L.Green, “Pornographies” at 8.3–8.4 and 8.24

21.   Even if notions of moral disapprobation can be discarded in favour of a harm-based analysis (as articulated by this Court in Butler), the application of the “community standard of tolerance” test will still capture, and deem to be “obscene,” a disproportionate amount of lesbian, gay, and bisexual materials. The “national community” will invariably perceive homo-erotic materials to be more “harmful” than mainstream heterosexual pornography. “Harmful,” in this context, has been defined by this Court as predisposing viewers/readers to act in an “anti-social manner,” namely in a manner that “society formally recognizes as incompatible with its proper functioning.” In a culture that often labels lesbian, gay, and bisexual sexualities as amoral, unnatural, deviant, diseased, and/or depraved, it is inevitable that majoritarian public opinion will tend to perceive sexually explicit lesbian, gay, and bisexual materials as “harmful” and/or as “degrading and dehumanizing” precisely because they depict or describe homo- and bi-sexual practices and desires.

R. v. Butler, at 485; B.Cossman and B.Ryder, “Customs Censorship and the Charter” at 106; C.Stychin, “Of Representation and Reality” in Law’s Desire

(c) Summary

22.   Due to the procedural and substantive deficiencies in the Customs Legislation (outlined in paragraphs 15-21 above), the protection of our freedom of expression and equality rights is effectively left to the whim of customs officers, who are not impervious to the heterosexist ideology that permeates our culture, and who are no less prone to homophobic tendencies than the rest of society. The impugned legislation requires customs officers to make highly subjective determinations about the classification of sexually explicit homo-erotic materials, based on inherently discriminatory “tests,” without providing any effective safeguards to guide or monitor the exercise of their discretion. Their decisions are influenced by their own prejudices, as well as their personal sense of morality, hence heterosexism often taints the exercise of their discretion, whether consciously or not, intentionally or not. The uncontroverted evidence in this case establishes that customs officers have systematically detained and seized a disproportionately large quantity of sexually explicit lesbian, gay, and bisexual material.

Testimony of W.Marshall, AR vol.X, tab 45, p.1846; Testimony of J.Shearer, AR vol.X, tab 35, p.1680; Testimony of C. Vance, AR vol X, tab 35, p.1641

(iii) There is a Greater “Chill” Effect on Freedom of Expression in Our Communities

23.   The third way in which the Customs Legislation has a disparate and adverse effect on lesbians, gays, and bisexuals is by creating a “chill” effect on freedom of expression that is more likely to be felt in our communities, and is more damaging to us than to the mainstream heterosexual population. The impugned legislation establishes a system of “prior restraint” that places legal and economic burdens on importers to challenge the seizure of materials. As a result, some importers cease ordering sexually explicit publications that may be deemed to run afoul of the Customs Legislation. This self-censorship is most often practiced by importers who cannot afford the financial losses that result from the detention of materials, and the costs and hassles associated with trying to secure the release of seized materials.

24.   There are only a handful of bookstores in Canada that cater to lesbian, gay, and bisexual readers, and they are all small independent businesses, which are not equipped to take on the customs bureaucracy. The impugned legislation threatens their economic survival because it results in the systematic detention and seizure of their imported shipments. They are therefore forced to exercise self-censorship in their selection of foreign publications. They also suffer the consequences of self-censorship exercised by foreign distributors, some of whom refuse to continue shipping materials to them (or impose cost-prohibitive pre-payment conditions on shipments to them) because of the systematic problems encountered at the Canadian border. The Customs Legislation consequently has a disproportionately “chilling” effect on freedom of expression in our communities, which amounts to differential treatment for the purpose of s.15 of the Charter.

Exhibit 55—Letter from Golden-Lee Book Distributors, AR vol.X, tab 41, p.1704; Testimony of S. Haar, AR vol.X, tab 41, p.1705; Testimony of J. Fuller, AR vol X, tab 41, p.1725; Testimony of K. Mistysyn, AR vol.X, tab 43, p.1759

25.   The impugned legislation’s “chill” effect is particularly harmful to us, not only because our community bookstores are vulnerable to succumb to it, but also because most sexually explicit lesbian, gay, and bisexual publications are not readily available in mainstream bookstores and libraries. When self-censorship causes lesbian and gay bookstores to forego ordering certain publications, we often have no other means of accessing the materials in question. This problem is especially acute for minority sub-cultures within our communities, such as transgendered people and immigrants who seek publications written in languages other than English or French, since materials aimed at such doubly-marginalized audiences are least likely to be available outside of our specialized community bookstores.

C. The Customs Legislation Stigmatizes Lesbians, Gays, and Bisexuals

26.   The impugned legislation’s differential treatment of lesbians, gays, and bisexuals has a discriminatory impact on our communities. The systematic detention and seizure of homo-erotic imagery and text stigmatizes our sexualities as “obscene” per se. This constitutes an affront to our dignity. It perpetuates and promotes the unfair societal characterization of lesbians, gays, and bisexuals as oversexed individuals, whose sexual practices are degrading and dehumanizing. Thus the Customs Legislation discriminates against us in a substantive sense, contrary to the purposes of s.15 of the Charter (which include promoting respect for human dignity and eliminating such social ills as stereotyping and prejudice).

Law v. Canada at para. 51; M. v. H. at para. 47

D. The ss.2(b) and 15 Rights Violations Intersect

27.   The Respondents concede that the Customs Legislation violates s.2(b) of the Charter by infringing upon freedom of expression. That concession does not, however, eliminate the need for this Court to examine closely the effects of the impugned legislation and, in particular, its disparate effects on different communities. More specifically, it is important for this Court to recognize that, in the context of censorship of sexually explicit materials, the way in which we experience the violation of our freedom of expression is not identical to the way in which the mainstream heterosexual population experiences that violation. The different experiences result from the fact that censorship of homo-erotic imagery and text, unlike censorship of mass-market heterosexual pornography, suppresses the expression of marginalized minority voices.

28.   Customs censorship of sexually explicit lesbian, gay, and bisexual materials perpetuates the oppressive invisibility of our communities. It reinforces the dominant (heterosexist) discourse on sexuality, thereby contributing to the distortion and stigmatization of our sexualities. It therefore results in violations of not only our freedom of expression, but also our right to be recognized at law as human beings who are equally deserving of concern, respect, and consideration. These two rights violations are fundamentally interconnected and their effects cannot be adequately understood by independently analyzing the denial of our equality rights and the encroachment on our freedom of expression. In order to appreciate the full extent of the infringement in this case, it is crucial to recognize that the two rights violations intersect to create a unique form of disadvantage for members of our communities.

B.Cossman and B.Ryder, “Customs Censorship and the Charter” at 107-108

29.   It is imperative that this intersection be recognized because a proper analysis of the s.1 issues depends on an appreciation of the nature of the rights violations. The balancing exercise that is central to the s.1 inquiry will invariably be skewed in favour of the constitutionality of the impugned legislation if the full scope and severity of the rights infringements are not understood. In this case, the s.1 analysis was compromised in the courts below because the judges failed to recognize the impact of the Customs Legislation on the equality rights of lesbians, gays, and bisexuals. They approached the s.1 issues within the exclusive framework of s.2(b) jurisprudence, without taking into consideration the equality dimension of the freedom of expression violation.

UFCW Local 1518 v. K Mart Canada Ltd.,. at para.24

E. Stare Decisis and Section 1 of the Charter; The Butler Decision is Not Binding

30.   The decision of this Court in Butler does not serve as a useful precedent for determining the s.1 issues in this appeal because the two cases involve such radically different legislative schemes. Although the Customs Legislation incorporates the Criminal Code definition of the word “obscene” that was at issue in Butler, the definition is applied in the context of an entirely different statutory framework. The criminal proscription against distributing “obscene” materials operates within a system of “subsequent punishment” that affords considerable procedural protections to accused persons to maximize the likelihood that their constitutional rights will be respected. The customs regime, on the other hand, is one of “prior restraint” and is replete with administrative and procedural deficiencies that subject the protection of constitutional rights to the whim of government functionaries. As Justice Iacobucci stated, in ruling that this Court’s decision in Egan v. Canada did not govern the outcome of the s.1 analysis in M. v. H. (notwithstanding that both cases involved a challenge to the constitutional validity of an opposite-sex definition of “spouse” in a benefit-conferring statute): “The instant case is based on entirely different legislation with its own unique objectives and legislative context. As a result, it must be evaluated on its own merits” under s.1 of the Charter.

M. v. H., at para.75

F. The Government Should be Held to a Rigorous Standard of Review Under Section 1

31.   Whenever a Charter right or freedom is infringed, the government bears the onus of demonstrating that the infringement is justifiable pursuant to the s.1 jurisprudence developed by this Court in R. v. Oakes and subsequent cases. In the context of a s.2(b) infringement, the degree of constitutional protection afforded under s.1 varies depending on whether the expression at issue enhances the purposes of the freedom of expression guarantee. This Court has summarized the principles and values underlying the vigilant protection of free expression as follows:

(1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment....

R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy v. Quebec, [1989] 1 S.C.R. 927 at 976; Thomson Newspapers v. Canada, at 943

32.   The expression at issue in this case engages not only these core values, but also the values underlying s.15 of the Charter. In the context of our heterosexist society, explicit representations of lesbian, gay, and bisexual sexualities contribute to the development of a tolerant environment in which we can cultivate our “individual self-fulfillment” and diverse forms of “human flourishing.” They affirm and validate our marginalized and frequently vilified sexual identities, thereby enhancing our sense of dignity and self-worth. Finally, they help us to learn the truth(s) about who we are as human beings, including our manifold sexual urges, needs, cravings, appetites, passions, fixations, aversions, and desires. The materials at issue in this case constitute a fundamental form of expression, which is entitled to a high degree of constitutional protection. The Respondents must not be permitted to justify the suppression of this expression without satisfying a rigorous standard of review under s.1.

33.   In Butler, this Court adopted a relaxed standard of review in its s.1 analysis on the basis that the expression at issue in that case did not engage the core values of the freedom of expression guarantee. EGALE respectfully disagrees with that finding, but nevertheless submits that there are sound reasons to distinguish this Court’s characterization of the nature of the expression at issue in Butler from the nature of the expression at issue in this case. Moreover, the fact that the Customs Legislation infringes not only s.2(b), but also s.15 of the Charter, distinguishes the s.1 analysis in this case from that which was conducted in Butler, where only a s.2(b) violation was found.

34.   The specific materials at issue in Butler consisted of mainstream pornographic videos produced for a heterosexual, predominantly male audience. In contrast, this case involves the systematic detention and seizure of sexually explicit homo-erotic imagery and text, produced by and for lesbians, gays, and bisexuals. The expressions conveyed by the Butler videos echoed the dominant refrain on sexuality, while the expressions conveyed in the materials at issue in this case are those of dissenting minority voices. The evidence establishes that the Customs Legislation silences a form of expression that challenges conventional notions of sexuality, undermines the cultural hegemony of heterosexuality, and thereby contributes significantly to the social and political vitality of our marginalized communities. In that respect, the expression at issue in this case enhances not only the values that underlie s.2(b) of the Charter, but also those that underlie s.15 (including respect for the equal worth and dignity of all human beings, and the elimination of prejudice and stereotyping based on sexual orientation). These factors must be taken into consideration in this Court’s s.1 inquiry.

B.Cossman and B.Ryder, “Customs Censorship and the Charter” at 107-108

35.   In considering the nature of the expression at issue in this case, this Court must also take into account the trial judge’s finding that a disturbing amount of non-“obscene” homo-erotic imagery and text is systematically detained and seized by customs officers. Thus even if this Court finds that “obscene” lesbian, gay, and bisexual materials constitute a “base” form of expression, it cannot be said that the impugned legislation only suppresses forms of expression that are peripheral to the core values underlying s.2(b) of the Charter.

36.   Finally, in Butler, this Court adopted a lower standard of review under s.1 of the Charter because the targeted materials consisted of “expression which is motivated, in the overwhelming majority of cases, by economic profit” (and which therefore does not engage the core values of the s.2(b) guarantee). There is no evidence to support a similar conclusion in this case. On the contrary, the evidence at trial reveals that, unlike the mass-market heterosexual pornography industry, the publication of sexually explicit lesbian, gay, and bisexual imagery and text is not a lucrative industry, and economic profit is not the primary motivation for the production of this work.

R. v. Butler, at 501 and 509; Testimony of P.Califia, AR vol.III, tab 7, p.439; B.L. Ross, “It’s Merely Designed for Sexual Arousal” at 169-73

G. The Legislative Objective and Rational Connection; There is No Reasoned Apprehension of “Harm” in this Case

37.   The objective of the Customs Legislation is to protect society from the harm that the government believes may be occasioned by the dissemination of “obscene” materials. The same objective was articulated with respect to the criminal obscenity provision in Butler and it was held to be a pressing and substantial objective in that case. The “harm” engendered by the pornographic videos in Butler consisted of their perceived potential to predispose male viewers to commit or tolerate sexual violence against women. This Court described the types of videos at issue in Butler as “materials portraying women as a class as objects for sexual exploitation and abuse,” and stated that such materials posed a “threat to [women’s] equality.”

R. v. Butler, at 497

38.   This Court acknowledged in Butler that the social science evidence regarding the alleged causal link between mainstream heterosexual pornography and harm to society (and in particular, to women’s equality) is inconclusive and subject to controversy. The Court nevertheless ruled that Parliament had a “reasoned apprehension of harm” based on the existing data and literature. EGALE respectfully submits that s.1 of the Charter requires this Court to hold governments to a more stringent evidentiary onus than was imposed in Butler. However, accepting arguendo this Court’s ruling in Butler, the evidence in this case is so inadequate that it does not support a reasoned apprehension of harm in respect of the sexually explicit lesbian, gay, and bisexual materials that are systematically detained and seized under the Customs Legislation. There is therefore no rational connection between the government’s stated objective (i.e., to prevent “harm” to society) and the means used to achieve that objective, namely the enactment of a draconian legislative regime, which suppresses a disproportionately large amount of homo-erotic publications, including an alarming quantity of materials that do not satisfy the statutory definition of “obscene.”

R. v. Butler, at 501-502; R.J.R. MacDonald v. Canada, [1995] 3 S.C.R. 199 at 332-33

39.   Many scholars have questioned the applicability of the Butler decision and its conception of “harm” to lesbian, gay, and bisexual sexual representations. As Professor Cossman has written,

[it] is an understanding of harm set in a heterosexual framework. The pornography is male heterosexual pornography, and its harm is that heterosexual men are likely to mistreat women. The feminist literature on which this understanding of harm is based has similarly operated within this heterosexual discursive framework.

B.Cossman, “Feminist Fashion or Morality in Drag?” at 128; L.Green, “Pornographies”; C.Stychin, “Of Representation and Reality”

40.   The Butler analysis of the harmful effects of mainstream pornography is so embedded in a heterosexual context that it does nothing to elucidate the effects of lesbian, gay, and bisexual pornography. There is no sound basis to assume that the harm perceived to be caused by mainstream pornography is also caused by lesbian, gay, and bisexual pornography. Not only is the substance of the imagery and text significantly different insofar as homo-erotism, by definition, does not involve hetero-sexual representation and thus cannot eroticize a gendered power imbalance of male domination over women, but the entire framework of production and consumption is also different. Hence it does not even make sense to infer that analogous harms might be caused by lesbian, gay, and bisexual pornography. As Professor Green has written:

[w]hatever role straight pornography plays in the complex causal network that keeps women in their place, gay pornography obviously plays a much different role [if any] in keeping gay people in their place, for that is by and large the work of straight people. Here, the oppressor class, if there is one, is in the wrong socio-erotic location.... [I]f we begin with the new paradigm’s view of the harm that pornography causes women, we will find that the analogous harms suffered by gay men are not in the main caused by gay men. They are caused by heterosexual women and men whose attitudes are not significantly influenced by gay male pornography. Thus, while in the gender-dominance theory of pornography the oppressor class and the class of consumers of pornography strongly overlap, in the reality of lesbian and gay life, the oppressor class and the class of consumers of gay pornography are disjoint.

L.Green, “Pornographies” at 8.16

“Gay male materials are produced by gay men for gay men and show performances by gay men that have this centrality within the gay male community. There are no divisions between who is depicted and who consumes. I think the argument that feminists always make about heterosexual material about women being silenced in heterosexual pornography is very true and this silencing of the woman as object has no equivalent in gay male pornography systems, this community based production system, ensures that the gay men have a voice, are active participants in this cultural material.”

Testimony of T.Waugh, AR vol.IV, tab 15, p.686

“Lesbian published stories and images that are explicitly sexual in content are nested in what I would call a publishing environment whereby lesbian and feminist issues are addressed... [W]e’ll have discussions often in editorials or in articles of safe sex practices and prevention, a discussion of the threat of gay bashing, for example, the need for pay equity.... The context of these lesbian sexual images differs dramatically from the context or environment that frames lesbian spreads...in mainstream commercial heterosexual pornography such as Huster, Penthouse, or Forum magazine.”

Testimony of B.Ross, AR vol.IV, tab 14, p.689

“The terms ‘degrading’ and ‘dehumanizing’ have been generated from an analysis of some of the problems that are presented within heterosexual pornography made for men and if we look at gay sexuality and gay sexual representations it’s organized in quite a different way. So that those relationships of gender inequality, gender power relations, are not a central defining feature of gay male pornography.”

Testimony of G.Kinsman, AR vol IV, tab 15, p.695 (see also p.696 and vol. V, tab 20, pp.819 and 822)

41.   In Thomson Newspapers v. Canada, where the impugned legislation prohibited the publication of poll results during the three days prior to an election, the government argued that, despite a paucity of evidence, it was reasonable to presume a causal link between the expression at issue and the harm sought to be avoided (namely, that the publication of an inaccurate poll could influence voter choice). This Court ruled that the Butler principle of “reasoned apprehension of harm” was not applicable because the government’s presumption (that voters would be manipulated by an inaccurate poll) was refuted by “contrary logical reasoning.” Similarly, in this case, the presumption that homo-erotic materials cause the type of social harm identified in Butler is contrary to logical reasoning. Indeed, the academic literature suggests that sexually explicit homo-erotic materials have liberating effects that benefit women in general, as well as lesbians, gays, and bisexuals. By subverting dominant constructs of masculinity and femininity, homo-erotic imagery and text challenge the sexism that is believed to be endorsed and reinforced by mainstream heterosexual pornography.

C.Stychin, “Of Representation and Reality”; B.Cossman, “Feminist Fashion or Morality in Drag?”; L.Green, “Pornographies”; Thomson Newspapers v. Canada, at 957

42.   As this Court noted in Thomson Newspapers, the “reasoned apprehension of harm” test has been applied in s.2(b) cases where it is suggested that “the very nature of the expression in question undermines the position of groups or individuals as equal participants in society.” In contrast, the expression at issue in this appeal enhances the equality of marginalized groups and individuals, and its suppression violates both ss.2(b) and 15 of the Charter. Thus, not only does the evidence fail to demonstrate that censorship of “obscene” homo-erotic materials prevents social harms of the sort identified in Butler, but the evidence actually establishes that said censorship causes social harms by stigmatizing lesbians, gays, and bisexuals. The Respondents have not satisfied the rational connection requirement of the Oakes test; there is no reason to believe that the suppression of homo-erotic imagery and text attains, or even advances, the stated legislative objective. Indeed, it may defeat the objective.

Thomson Newspapers v. Canada, at 958; UFCW Local 1518 v. K Mart Canada, at para.68

H. Minimal Impairment; The Government Did Not Consider Less Intrusive Means

43.   The Customs Legislation is not tailored to achieve its objective with a minimal intrusion on constitutional rights. It not only establishes a system of “prior restraint” that constitutes a draconian encroachment on freedom of expression, but it also has severe discriminatory effects on lesbians, gays, and bisexuals. The Respondents have not led any evidence to demonstrate that Parliament even considered adopting less intrusive means to achieve its stated objective.

44.   It is obvious that the Customs Legislation was enacted without any attempt to minimize its intrusion upon freedom of expression, because the same statutory procedures apply to the redetermination of all classification decisions, regardless of whether a particular decision has the effect of suppressing expression. Classification decisions that result in the prohibition of publications under Tariff Code 9956(a) are reviewed in exactly the same manner—and with the same lack of procedural due process—as classification decisions regarding the application of other tariff codes to such goods as “live species of the mongoose family..., oleomargarine..., and second hand mattresses.” As Professors Ryder and Cossman have stated,

The legislative policy of the Canadian government appears to be that [determinations regarding the classification of publications] ... 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. The conclusion is inescapable, in our view, that the enforcement of Tariff Code 9956(a) through the procedures set out in the Customs Act cannot reasonably be characterized as a legislative scheme that minimally impairs Charter rights.

Schedule VII of the Customs Tariff, S.C. 1985 c.41 (3^rd supp.); B.Cossman and B.Ryder, “Customs Censorship and the Charter” at 109

I. The Deleterious Effects of the Customs Legislation Outweigh its Salutary Effects

45.   At the third stage of the proportionality analysis under s.1 of the Charter, the focus is no longer on the relationship between the ends of the impugned legislation and the means employed, but rather on the legislation’s salutary and adverse effects. As this Court noted in Thomson Newspapers, the analysis involves an assessment of whether the benefits that accrue from the legislation are proportional to its deleterious effects. The Customs Legislation has extensive injurious effects on members of our communities. It not only suppresses a form of expression that enhances the core values underlying both ss.2(b) and 15 of the Charter, but it also has stigmatizing discriminatory effects on lesbians, gays, and bisexuals, contrary to the equality rights guaranteed by the Charter. The deleterious effects of the legislation are manifold and severe. Its salutary effects, on the other hand, are speculative at best. On balance, the damaging effects of the legislation outweigh its potential beneficial effects. Thus the third element of the proportionality analysis under s.1 of the Charter has not been satisfied by the Respondents.

Thomson Newspapers v. Canada, at 968-972

PART IV—REMEDY

A. The Customs Legislation Should be Declared Inoperative

46.   The appropriate remedy in this case is to declare the Customs Legislation to be inoperative pursuant to s.52 of the Charter. It is not sufficient merely to issue a remedy under s.24 of the Charter because the ss.2(b) and 15 violations are not attributable to the faulty administration of otherwise valid legislation, but rather to the constitutional deficiencies in the legislation itself. It is therefore necessary to strike down the legislation in order to safeguard and preserve the Charter guarantees of equality and free expression.

47.   In the aforementioned case of R. v. Bain, this Court declared the juror “stand aside” provision to be inoperative pursuant to s.52 of the Charter. Justice Cory stated that “[t]he protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown.... Rather the offending statutory provision should be removed.” Similarly, in this case, the equality rights and freedom of expression of lesbians, gays, and bisexuals must not be left to the whim of customs officers, but rather the Customs Legislation should be declared inoperative.

R. v. Bain, at 512-13

48.   In R. v. Morgentaler, this Court struck down the Criminal Code provision on therapeutic abortions because the procedures and administrative structures established by the impugned legislation infringed women’s right to security of the person and violated s.7 of the Charter. In assessing the constitutionality of the statutory provision in that case, Chief Justice Dickson noted that it was not appropriate to isolate the purposes of the legislation from the administrative procedures enacted to carry those purposes into effect. He stated that

[a]lthough the mandate given to the courts under the Charter does not, generally speaking, enable the judiciary to provide remedies for administrative inefficiencies, when denial of a [Charter] right...is infringed by the procedure and administrative structures created by the law itself, the courts are empowered to act.

He further ruled that, if the administrative procedures created by statute to bring a valid legislative purpose into operation produce unconstitutional effects, then the legislation should be struck down.

R. v. Morgentaler, [1988] 1 S.C.R.30 at 62

49.   In this case, the Customs Legislation creates administrative structures and procedures that have unconstitutional effects. Moreover, the legislation’s substantive provisions violate ss.2(b) and 15 of the Charter and are not justifiable pursuant to s.1. Consequently, the appropriate remedy is to declare the legislation to be of no force or effect. A legislative vacuum would not be occasioned by striking down the Customs legislation, since the relevant provisions of the Criminal Code would continued to apply.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Cynthia Petersen SACK GOLDBLATT MITCHELL 20 Dundas Street West Suite 1130 Toronto, ON M5G 2G8
(Fax) 416-591-7333 (Tel) 416-979-6440
Solicitors for the Intervener EGALE

Egale Canada ©2011

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