## Facts

- A Vancouver gay and lesbian bookstore imported four books that customs officials detained as allegedly “obscene” under the Criminal Code.
- The bookstore appealed the detention decisions and filed a constitutional challenge to the obscenity definition and related customs practices.
- The bookstore sought procedural orders that would expand the appeal into a wide-ranging review of customs administration over many years, including extensive discovery and production.
- The Crown sought particulars and moved to strike the constitutional notice and related portions of the appeal.
- The bookstore also requested advance (interim) costs from the state to fund what it characterized as complex, systemic Charter litigation.
- A trial-level court refused to strike the constitutional materials and imposed case-management directions that effectively shifted to the Crown the burden to show that earlier “systemic problems” in customs administration had been remedied.

## Issues

1. Under what circumstances may a court order advance (interim) costs against the state to fund public-interest Charter litigation?
2. Did the bookstore satisfy the criteria for advance costs on the record, including inability to pay and the interests of justice?
3. Should the proceeding be structured as a broad systemic inquiry into customs practices, or confined to adjudication of the specific detention decisions within ordinary procedure?

## Decision

- The Supreme Court of Canada denied the bookstore’s application for advance costs.
- The Court reaffirmed that advance costs are exceptional and subject to a stringent test.
- The Court rejected the procedural approach that would transform an appeal about four detained books into an open-ended, quasi-inquisitorial systemic review of customs conduct.
- The Court indicated the matter should proceed on properly framed issues tied to the concrete detention decisions and ordinary procedural rules, rather than through expansive orders shifting the litigation’s burden and scope.

## Legal Principles

- Advance (interim) costs are an extraordinary discretionary remedy granted sparingly.
- A party seeking advance costs must generally show:
  - Genuine inability to fund the litigation after reasonable efforts to obtain resources;
  - A prima facie meritorious case (not frivolous);
  - Issues of sufficient public importance such that the interests of justice favor adjudication despite ordinary funding limits.
- An applicant with some resources is expected to make a meaningful contribution rather than shifting the full cost to the public.
- Public-interest importance and a history of prior successful constitutional litigation do not, by themselves, justify advance costs.
- Courts should avoid case-management structures that convert a focused adjudication into an open-ended institutional inquiry, particularly where the proceeding arises from discrete administrative decisions.

## Conclusion

The Court refused to compel state funding for the bookstore’s proposed Charter litigation, holding that the demanding advance-costs criteria were not met and that the case should not be procedurally reshaped into a broad systemic investigation untethered to the specific detention decisions at issue.


Little Sisters Book & Art Emporium v. Canada, [2007] 1 S.C.R. 38 (Can.)