Judith Bowers

The appellant, a permanent resident, was ordered removed from Canada for misrepresenting his marital status on his application.

He appealed to the Immigration Appeal Division (I.A.D.) under s. 70(1)(b) of the Immigration Act, arguing that the I.A.D. should consider the potential foreign hardship he would face if removed to Cambodia.

The I.A.D. and lower courts held that foreign hardship could not be considered because the Minister had not yet determined the country of removal.

The Supreme Court of Canada allowed the appeal, holding that the I.A.D. is entitled to consider potential foreign hardship under s. 70(1)(b) when deciding whether to quash or stay a removal order, provided that a likely country of removal has been established by the individual facing removal.

The appellant, a gay and lesbian bookstore, challenged the constitutionality of Customs legislation that authorized the interception and prohibition of obscene materials.

Customs officials had repeatedly delayed, confiscated, or prohibited materials imported by the bookstore, often misclassifying non-obscene gay and lesbian erotica as obscene.

The Supreme Court of Canada held that while the Customs legislation infringed freedom of expression under s. 2(b) of the Charter, it was largely justified under s. 1 as a reasonable limit to prevent the importation of harmful obscene materials.

However, the Court struck down the reverse onus provision in s. 152(3) of the Customs Act as it applied to obscenity determinations, ruling that the burden of proving obscenity must rest on the Crown.

The Court also found that while the legislation itself did not violate s. 15(1) equality rights, its systemic misapplication by Customs officials had discriminated against the gay and lesbian community.