Series: Part 2 Of 4

'THIS CASE . . . IS OUT OF CONTROL'

After Spending $500,000 And 10 Years Fighting The Government, The Owners Of
A Gay Bookstore In B.C. Would Do It Again. 'Customs Was Taking So Much Of
Our Material That We Were Going Out Of Business,' Said Janine Fuller On Her
Battle To Stop Customs Seizing The Shop's Material. Did They Win? Sort Of.
Kirk Makin Reports

VANCOUVER -- Jim Deva and Janine Fuller reached the point of no return one
day when a Customs Canada official roughly threw a bag of their imported
books and magazines into their stairwell.

The material, bound for the lesbian and gay bookstore they operated, Little
Sisters Book and Art Emporium, had been missing for months while Customs
agents rifled through it in search of pornographic imagery. It arrived back
damaged.

"What outraged us so much was the total lack of respect," Mr. Deva said in
an interview. "It showed us how malicious they were. It was a horrible,
horrible feeling."

So began a Charter of Rights and Freedoms challenge now known simply as the
Little Sisters case. The case took 10 years to run a course through the
courts, ending a year ago with a ruling so perplexing that Mr. Deva and Ms.
Fuller still cannot agree on what it means.

The case was undoubtedly the sort of challenge former prime minister Pierre
Trudeau envisioned 20 years ago, when he changed Canadian society forever
with a Charter of Rights that individuals and groups could use to thwart
the power of the majority. At the same time, Little Sisters provides case
history -- not to mention, a cautionary tale -- of the triumphs and trauma
awaiting those who use the Charter to battle laws they believe are unfair
or discriminatory.

The proprietors of the 19-year-old bookstore describe dual motives in
taking on Customs Canada. On the one hand, they wanted to strike a blow for
a gay community that had long felt singled out for victimization by
Customs. Little Sisters was also going broke.

"Customs was taking so much of our material that we were going out of
business," Ms. Fuller said. "We were having to explain to people why half
of our bookshelves were empty."

Charter fights are notoriously expensive and psychologically draining, so
their first task was to find allies. Little Sisters quickly hooked up with
the B.C. Civil Liberties Association, which had been spoiling for a fight
with Customs over its arbitrary moral judgments.

"We saw it as an opportunity to attack the constitutionality of the
obscenity provisions themselves," recalled John Dixon, president of the
association. "Our view is free human beings spend 90 per cent of their sex
lives in their imagination."

The case looked strong. One of the items seized -- The Advocate
newsmagazine -- contained little sexual content, and had probably been
confiscated in error. It would provide an excellent example of the
arbitrary approach taken by Customs censors.

However, it was not to be.

"Customs Canada conceded the case going up the courthouse stairs," Mr. Deva
said. "We got about $350 damages because they had burned our issues of The
Advocate."

Little Sisters had learned a very costly lesson. Government agencies have
endless resources, and they are willing to use them to beat their opponents
into the ground. "You have to pick ground that they have to fight on,
otherwise the government will simply let you spend all your money and then
concede," Mr. Dixon said.

With imported material continuing to disappear into the maw of the Customs
inspection system, Little Sisters decided to challenge the Customs Act
head-on as a violation of the right to free expression and equality.

Ms. Fuller soon found herself spending most her time travelling around
Canada and the United States, raising support and money for a battle that
would ultimately consume close to $500,000. "It wasn't about huge sums of
money," she said. "It was about people giving $10 at a movie screening."

Ms. Fuller said the Crown's delaying tactics unexpectedly played into her
hands. "People got more and more offended at this small bookstore having to
take on a government with these endless purse strings."

Another stumbling block involved the complex world of feminist politics. In
1992, feminists had won a landmark battle in the Supreme Court of Canada's
Butler ruling, which defined obscenity as sexually explicit material
involving the use of violence or children, or which depicted sexual
activity through degrading and dehumanizing images.

The ruling closely mirrored legal arguments the court had heard from the
Women's Legal Education and Action Fund, a collective that arrives at
litigation strategies after extensive and sometimes-arduous consultation
with its members.

Customs quickly used the Butler ruling to go after sexual material
preferred by gays and lesbians. Many videos and books featuring the use of
bondage, nipple clamps and whippings -- which Customs saw as degrading and
dehumanizing violence -- were seized.

Some observers saw this is as precisely the type of exploitive, worthless
material the Butler net had been set to catch. But to a vocal portion of
the women's movement -- lesbians -- the Butler ruling had come back to haunt.

"What was terribly disappointing was that we didn't get Little Sisters to
the Supreme Court ahead of Butler in the first place," Mr. Dixon remarked.
"The court had been completely captivated by the LEAF arguments in Butler.

"It was a total disaster. One of the things we predicted about Butler was
that Customs would end up going after gay material. LEAF ended up being a
bit embarrassed."

The sensitive political situation was resolved when LEAF prepared a new
brief for the Little Sisters case. It deftly argued that lesbians were a
distinct minority whose self-identity was based partly in possessing their
own, unique brand of sexual material -- material that may include
portrayals of violence or degradation.

More trial delays ensued, taking a miserable toll. Some defence witnesses
who had flown long distances to Vancouver on non-refundable airline tickets
were foiled by adjournments requested by Customs. Several who were
HIV-positive died before they could testify.

"The Crown kept saying: 'This case has grown too huge, and should be thrown
out; it is out of control,' " Mr. Deva recalled.

But the trial finally began in 1994. It lasted 40 days, with a prominent
constitutional lawyer, Joe Arvay, arguing for Little Sisters.

"He involved us totally," Mr. Deva said. "We got to call the shots because
we were taking financial responsibility for the entire case. What made the
trial so interesting was seeing all the behind-the-scenes strategizing."

This strategizing included rounding up the most effective witnesses
possible, as well as embarking on frantic searches for material needed to
illustrate a particular point in court. "We wanted to tell our story," Mr.
Deva said. "Each of us has to make sure our freedoms are not violated. This
isn't Afghanistan."

In his judgment, the trial judge rejected the idea that the Customs Act was
inherently discriminatory. However, he did agree that its procedures had
been abused and used arbitrarily against Little Sisters.

On appeal, the B.C. Court of Appeal split 2-1 against Little Sisters. The
stage was set for a final showdown in the Supreme Court.

Mr. Deva, Ms. Fuller and several co-workers travelled to Ottawa for the
hearing, posing for pictures on the courthouse steps with their own lawyers
and a dozen more who represented legal intervenors supporting the Little
Sisters legal position.

"It was amazing to think we had gone from a little bag of books thrown on
the stairs to the Supreme Court of Canada," Mr. Deva said.

When the ruling was released on Dec. 14, 2000, the media were primed for
Charter history. What they got instead was a confusingly mixed bag.

The Supreme Court majority had refused to either tinker with the Butler
ruling or strike down the Customs Act provisions allowing inspectors to
seize material they felt was obscene.

At the same time, the Court flayed Customs for its arbitrary and
disrespectful methods and said it was unfair to expect a bookstore to bear
the burden of proving that its imports were not obscene. In future, the
onus would be on Customs to show that the material was obscene.

Leading critics of the Little Sisters challenge -- such as Osgoode Hall law
professor Janine Benedet -- were quick to applaud the court for refusing to
be bulldozed. "Those of us who understand that pornography is part of the
machinery of sex inequality should refuse to play a game where the rules
keep changing," she wrote later in a legal journal.

"At its root, the debate in Little Sisters boils down to the consistent
refusal of pornography's supporters to either accept or care that
pornography is harmful," she said. "Little Sisters lost its appeal before
the court because no amount of evidence of errors and sheer obstinance on
the part of Customs could erase this evidence of harm."

Mr. Dixon said he was surprised by the court's inflexibility. "We had hoped
to embarrass the court a bit about the inanity of Butler, but they didn't
budge," he said. "They insisted; they upheld; they re-emphasized the
greatness of Butler! That really surprised me."

He said that in response to LEAF's tacit admission that it "had led the
court a bit astray" in Butler, the judges effectively thundered back: "What
do you mean! You told us it was a great idea!"

Since the ruling, Mr. Dixon said he has grown more philosophical.

"I suppose it is silly to think that you bustle into court and change
society in a stroke," he said. "It is the work of generations. If you do it
right, you prepare the ground for future developments. You have to think
not just about winning, but about the case law you leave behind."

At Little Sisters, the day of the ruling created a surreal scene. Even as
legal analysts across the country pronounced the challenge a relative
failure, an exultant Ms. Fuller was telling a jostling media horde that
they had won a stirring victory.

Ms. Fuller says now that she was blinded to some of the negative aspects of
the judgment by her joy at seeing Customs publicly shamed for its arbitrary
tactics.

"On that day, at that moment, I felt the ruling had really vindicated our
community," she said. "But obviously, the court didn't go far enough."

Certainly not far enough for Mr. Deva. He recalls frantically scanning the
ruling that day on the Internet. "I kept looking for the pony, but I never
did find it. It was really tough at the celebration party that night. I
didn't want to bring people down. I ended up going through a three-month
depression."

Little Sisters is more stable financially now, and Customs cannot seize its
imports unless it it prepared to defend its actions in court. Mr. Deva said
he has found a measure of peace.

"The way I look at it, Customs Canada has to respect us now," he said.
"They will never again take our books and throw them on the stairs. Without
the Charter, that would never have happened."

But he added that a new set of guidelines Customs has devised is "really,
really repressive." On principle, he said wearily, they cannot be allowed
to stand. "We have been looking for a vehicle to challenge them." In the
series

Saturday: Winners and losers who have emerged after hundreds and hundreds
of challenged

Today: Anatomy of a Charter case. A small independent bookstore in B.C.
takes on the government.

Tomorrow: The Supreme Court judges and their so-called grab for power.

Wednesday: Is the Charter Pierre Trudeau's greatest gift to Canadians?