Savage Customs

Canada is busting gay magazines at the border

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The staff at Little Sister’s Book and Art Emporium, Vancouver’s only gay and lesbian bookstore, have been fighting a paradoxical battle for nearly 10 years—a battle against Canadian censorship laws that are, oddly enough, partly inspired by feminism.

Canada Customs had been regularly seizing Little Sister’s-bound shipments of U.S. gay and lesbian publications since the store opened in 1983. When the agency confiscated two issues of the U.S. gay monthly The Advocate in 1987, the bookstore and the British Columbia Civil Liberties Association (BCCLA) joined forces for a court challenge to argue that the magazines were not obscene. A year later, just two weeks before the trial was to start, Canada Customs conceded that the issues were not obscene and the case was closed. But when Little Sister’s asked for the Advocates back, Customs couldn’t comply. The magazines had already been destroyed.

What were Canada’s guardians of public morality up to? The customs officers have a legal mandate to keep hate propaganda and obscenity out of the country, but enforcement seems to come down heavily, and selectively, on alternative venues. Customs has rarely seized mainstream books or magazines en route to any of Canada’s major booksellers. (One of the few exceptions was when Salman Rushdie’s Satanic Verses was detained in 1989. After international headlines ridiculed the seizure, it took Customs just 48 hours to determine that the book did not qualify as hate literature.)

In its 13 years in operation, Little Sister’s has never faced formal obscenity charges—though they have had hundreds of shipments of books and magazines stopped at the border. Although most of these publications have eventually been released, more than a thousand books have been destroyed. One of the most controversial aspects of the seizures is that they work on the principle of “reverse onus”: If Customs decides something is obscene, it’s up to the importer to prove it isn’t. Appealing seizures is time-consuming, complicated, and expensive.

Since the 1987 trial never took place, Little Sister’s and the BCCLA struggled for seven years for a day in court. In 1994 they finally got their chance. As Cindy Filipenko writes in the Vancouver gay and lesbian biweekly Xtra West (Feb. 8, 1996), “When all was said and done, the trial had extended to 40 days, [and] incorporated 270 exhibits and the testimony of 33 witnesses. Academics, booksellers, writers, and publishers all took the stand to prove the cultural validity of gay and lesbian erotic publications.”

Thirteen months later, on January 19, 1996, British Columbia Supreme Court Justice Kenneth Smith delivered a split decision. Smith ruled that the law that allows Customs to seize, detain, and destroy material does not violate the Charter of Rights and Freedoms, which protects “the freedom of thought, belief, opinion, and expression” in Canada. He declared, however, that Customs had enforced its powers in an “arbitrary and improper manner,” and he criticized the cumbersome appeal process. Based on the judgment, Little Sister’s returned to the court February 26 to demand an injunction that would keep Customs from seizing anything else until their case is heard by the Court of Appeal. Little Sister’s and the BCCLA are also applying for damages and court costs (which have already exceeded $350,000). The ruling has yet to come in.

Compounding the confusion on the Canadian censorship scene is the redefinition of obscenity, courtesy of a controversial 1992 Canadian Supreme Court decision. As Jeffrey Toobin reports in The New Yorker (Oct. 3, 1994), Canada used to ban obscene material for more or less the same reason that the United States does, on the grounds that obscenity harms public morality. Then, inspired by the arguments of feminist anti-pornography crusaders Catharine A. MacKinnon and Andrea Dworkin, the Supreme Court ruled “that there was now another, more compelling reason to regulate obscenity than mere public prudishness: Pornography harms women.”

Ironically, feminists were among the first to be stung by these supposedly pro-feminist definitions. A chronology of Canadian censorship compiled by Sandra Bernstein for the Periodical Writers Association of Canada and the Book and Periodical Council notes that “over the next year most of the feminist bookstores in Canada experienced detentions and seizures.”

Customs officers also continued to demonstrate a fetish for gay sexuality. Until recently the most frequent reason cited for stopping publications en route to Little Sister’s and Canada’s two other gay and lesbian bookstores was that the material included depictions or descriptions of anal penetration. Less than two weeks before the British Columbia Supreme Court trial began, however, Customs caved in, announcing that this would no longer be one of the criteria used to determine obscenity.

In their book about the court saga, Restricted Entry (Press Gang, 1995), Little Sister’s manager Janine Fuller and journalist Stuart Blackley caution that whatever the ultimate court verdict, “some form of harassment of alternative bookstores—feminist, leftist, lesbian and gay—is bound to continue. It is the nature of the state to try to silence dangerous voices. Fortunately, it is also the nature of uppity writers, booksellers, artists, publishers, civil libertarians, and gay and lesbian communities to ardently defend ‘the freedom of thought, belief, opinion, and expression’ in this country.”