## Facts

- A Vancouver bookstore specializing in gay and lesbian literature and erotica imported most of its inventory from the United States.
- Canadian customs officials repeatedly delayed, detained, or prohibited the store’s shipments on the ground that the materials were “obscene.”
- Evidence showed disproportionate scrutiny of the store’s imports compared with other importers and a pattern of treating homosexual content as synonymous with obscenity.
- The statutory scheme barred importation of goods deemed obscene under the Criminal Code definition and set out an administrative decision and review process for detention and prohibition.
- A provision placed the burden on importers to establish that detained goods were not prohibited.

## Issues

1. Whether the customs regime restricting importation of obscene expressive materials infringed freedom of expression and, if so, whether the infringement was justified as a reasonable limit.
2. Whether the regime, on its face or as administered, discriminated against gay and lesbian expression contrary to equality rights.
3. Whether the statutory burden placing proof on importers (reverse onus) was constitutionally permissible in obscenity determinations.
4. What remedy was appropriate for any constitutional breach: invalidation of the statutory scheme or relief directed to unlawful administration.

## Decision

- The Supreme Court of Canada allowed the appeal in part (6–3) and otherwise dismissed it.
- The regime restricted expression but was upheld as a justified limit directed at preventing harm from obscenity at the border.
- The reverse-onus provision could not be applied to require importers to disprove obscenity; the legislation was read to place the onus of proving obscenity on the state.
- The statutory scheme was not invalidated on its face under equality rights, but the discriminatory pattern of enforcement violated constitutional guarantees.
- The Court granted remedies directed at the discriminatory administration, including changes to training, guidelines, and oversight to ensure lawful, non-discriminatory application consistent with the proper burden of proof.

## Legal Principles

- Sexually explicit materials, including gay and lesbian erotica, are protected expression; obscenity restrictions can nevertheless be justified where aimed at preventing harm and implemented proportionately.
- A border-control scheme regulating obscene imports may be constitutionally valid, but its administration must be neutral and consistent with constitutional rights.
- A facially neutral law may still violate equality guarantees through discriminatory enforcement practices producing differential treatment of protected groups or their expression.
- Where a literal reading would produce unconstitutional results, courts may adopt a constitutionally compliant interpretation; in obscenity determinations, the state bears the burden to prove obscenity.
- Remedies may be targeted to unlawful administration (including institutional corrective measures) rather than striking down an entire regulatory scheme where the defect lies in implementation.

## Conclusion

The Court upheld Canada’s customs obscenity framework as a justified limit on expression while finding that customs officials’ discriminatory targeting of a gay and lesbian bookstore was unconstitutional; it preserved the scheme by reading it to require the state to prove obscenity and ordered corrective remedies focused on non-discriminatory, rights-compliant administration.


Little Sisters Book & Art Emporium v. Canada (Minister of Just.), [2000] 2 S.C.R. 1120 (Can. 2000)