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Youth
 
Supreme Court of Canada Told Porn Part of Gay Identity
10-year-old Customs seizure case hits high court
ONLINE:  THURSDAY MARCH 16, 4:39 PM EST (GMT-5).

courtroom Photo:   P Couvrette, L Munn, Y Lefebvre
 
THE Supreme Court of Canada began hearings this morning into the case of Little Sister's Book and Art Emporium in Vancouver having some of their imported books and magazines confiscated by Canada Customs upon entering the country.  The case has been going on for some 10 years.

Central to the case is whether the Canadian government has the right to seize published material, gay or otherwise, that it deems 'obscene' under the law.  But counsel for Little Sister's is presenting a new argument:  that such material is part of the gay identity and should actually be protected, according to a Reuters report.

"In a community that has suffered tremendous losses around AIDS, pornography has served as an important tool for people to produce safe sex," Little Sister's manager, Janine Fuller, told Reuters in an interview.  "I think it's been extremely important to our community as well as affirming who and what we are," she added.

No specific expertise in art or literature is required of Customs officers and all that is required to become a commodity specialist - whether the commodity is 'books' or 'widgets' - is completion of secondary school or equivalency.
-Joseph Arvay
 
Not surprisingly, this unexpected variable injected into the legal argument is causing an even larger uproar than usual from pornography opponents.

"On the one hand they're arguing for equality for lesbians," Gwen Landolt, vice-president of REAL Women of Canada was quoted as saying.  "On the other hand they're arguing that sexuality is so essential to their identity that they should get special treatment."

In addition to the above and arguing that seizure by Canada Customs violates freedom of expression, the Little Sister's team is arguing further that officers of that agency have neither the training or job discretion to make determinations of freedom of expression on the spot.

"No specific expertise in art or literature is required of Customs officers and all that is required to become a commodity specialist - whether the commodity is 'books' or 'widgets' - is completion of secondary school or equivalency," Little Sister's counsel Joseph Arvay told the Supreme Court.  He explained that such discretion granted to Customs Officers results in their excluding too much from entering the country.

When asked for clarification by one of the Justices, Mr. Arvay replied:  "It's not overreach by the act.  It's overreach by the agent who doesn't identify the proper material.

"The remedy that we seek is nothing short of striking down the customs legislation in so far as it empowers customs officers to detain and prohibit obscene material," he stated.

The government is arguing that although the seizures may reduce freedom of expression they are constitutionally justified.  In other words, likely asking the court to rule that they are within 'reasonable limits' (in a free and democratic society), a rationale which the constitution's Charter of Rights allows.

If this case is lost, then every Canadian loses some of their freedom to walk the streets in safety.
-Peter Stock
 
"This case is not about banning books," the government asserted in its brief.  "This case is not about censorship of sexually explicit homosexual materials.  This case is about the constitutionality of a legislative process which prohibits the importation of obscene materials into Canada."

In the meantime, opponents are claiming that pornography contributes to crime, human demeaning, and harm to children.

"The argument of the appellants that lesbian and gay male sadomasochism is not harmful because it is consensual simply replicates the myth in heterosexual pornography that women and children enjoy being raped and sexually tortured," New York -based (Sex) Equality Now wrote in a submission.  They referenced some of the material seized from orders made by Little Sister's, including one entitled "An Enema From His Father" as well as various SM samplings depicting both gay and lesbian scenes with hot wax, tit clamps, and chains.

"In this case the appellants are seeking to create sexual anarchy.  If this case is lost, then every Canadian loses some of their freedom to walk the streets in safety," Peter Stock of the Canadian Family Action Coalition told reporters.

On the Little Sisters team are the British Columbia Civil Liberties Association, Equality for Gays and Lesbians Everywhere (EGALE), the writers group Pen Canada, and the feminist organization LEAF.

The federal and provincial governments are uniformly lined up in support of the existing law and practices.  The group Equality Now stands with them.

The hearings are expected to last all day.  The Supreme Court will likely not rule on the case for a couple of months.