Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69

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, 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.

16. (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.

Constitution Act, 1982

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.

68. (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....

69. . . .

(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, 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, [1985] 1 F.C. 85 (C.A.), 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(