The Little Sisters Case, Administrative Censorship and Obscenity Law
Osgoode Hall Law Journal, Vol. 39, No. 1, p. 207, 2001
21 Pages Posted: 14 Jan 2011
Date Written: 2001
Abstract
This case comment is focused on the Supreme Court of Canada’s ruling in Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 112''''8 a challenge brought by a gay and lesbian bookstore to the statutory powers conferred on Customs officials to detain imported publications at the border. The authors argues that the Court’s ruling in Little Sisters glosses over serious problems with the definition of obscenity and with prior restraint of expression through administrative censorship. The majority of the Court failed to take seriously the strong tendencies to over-censorship resulting from administrative regimes tasked with imposing prior restraints on the dissemination of publications. Nevertheless, the scrutiny brought to bear on Customs since 1994 by the Little Sisters litigation, and the Court’s insistence that Customs’ practices and procedures need to be overhauled to better respect freedom of expression, may mean that high levels of Customs’ censorship will become less prevalent than they were in the past. However, as Justice Iacobucci noted in dissent, Customs has not yet earned our trust. A weakness of the majority judgment is that any improvement depends on voluntary compliance, or, failing that, continued pressure being brought to bear on Customs through litigation. It is unwise and unfair to cast the burden of achieving constitutional compliance and accountability on individuals and cultural institutions, many of whom will have limited time and resources to devote to the task. The majority unfortunately chose to absolve Parliament of any responsibility for designing a better law. The Court was confronted with a poorly designed and crafted law that cast the net too broadly in its zealous approach to censorship, and that had resulted in extreme incursions on civil libertarian values. It was easy to imagine more moderate, balanced means of pursuing Parliament’s legislative objective. However, the Court appeared to strain to let Parliament off the hook, in part by rewriting the law to correct some of its most egregious flaws. The Court’s ruling encourages Parliament to be cavalier about its constitutional duties, and discourages future democratic deliberation about the appropriate scope of freedom of expression in the context of border censorship, even though very little occurred in Parliament in the first place. The interpretive partnership between courts and legislatures that ought to animate the Charter has been stalled by the Court’s ruling at the outset.
Keywords: Constitutional Law, Freedom of Expression, Prior Restraint, Administrative Censorship
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