Saturday, June 26, 2004

Why it's good that you're backing fight against gay porn ban

VICTORIA - You're going to be picking up the legal costs for a Vancouver book store's fight to bring banned gay porn into Canada.
And, on balance, you should be pleased.
The B.C. Supreme Court ruled this week that taxpayers should pay Little Sisters Book Emporium's legal costs for the latest round in its battle with Canada Customs. The store wants to challenge the seizure of two "Meatman" comic books and two books on male bondage by Canada Customs.
But the trial would take 12 weeks, and the store has no money. In the past that would have been the end of the matter. The book ban would stand, untested.
But the rules changed last year, That's when the Supreme Court of Canada upheld a ground-breaking B.C. Court of Appeal ruling that government should pick up the legal bills for four Interior native bands battling over forest issues.
The Supreme Court - in an six-three decision - said the First Nations couldn't afford the hugely expensive litigation; they had a reasonable chance of success; and the title rights' issue was of broad importance. Justice demanded that they have their day - or months - in court, and that couldn't happen without public funding.
It was a huge leap beyond any previous ruling on costs, opening the door for other similar funding bids.
And Joe Arvay, acting for Little Sisters, was the first to seize the opportunity.
Little Sisters has no money to pay for the long trial, he said. And the case raises broad issues of public importance that should be heard, Arvay added. Canada Customs' power to ban books has significant implications for Canadians' basic rights to information. When the state has the power to decide what citizens can and can't read, there has to be a right to external review to ensure decisions aren't arbitrary, unreasonable or unlawful.
The only recourse isa court challenge to the government's decision. And without funding, that right is an illusion.
Justice Elizabeth Bennett agreed. "There is a strong public interest at stake, and that is ensuring that government does not interfere with the rights of citizens." (Canada Customs have barred some 65,000 books and other items over the past five years.)
It's a decision that should be applauded.
The courts have always offered a way of addressing issues of public interest, with that role increasing since the introduction of the Charter of Rights and Freedoms.
But common law practise on costs hasn't reflected either the increasing importance of these cases or the rising costs of pursuing them.
University of Victoria law professor Chris Toleffson is co-author of a paper on the issue to be published in the Canadian Bar Review. He notes that the nature of public interest cases means that one side often has limited resources and no prospect of any material benefit even if they do win. And they face a huge risk if they lose, and are ordered to pay costs.
The result is that unless some provisions around costs are made by the courts, then cases involving the public interest - but not financial self-interest - will not be heard. The courts will be for those who can afford them.
Critics shouldn't fear a flood of cases. The test for public funding is still tough. Mrs. Justice Bennett said advance costs should only be awarded in "rare and exceptional circumstances."
And she said she wasn't providing a blank cheque, ordering another hearing on the level of costs. (Although they will likely be more than $150,000.)
There are still concerns. It's always risky when neither side in a legal dispute is spending their own money. And it's fair to worry about the constant trend to longer, more costly court cases - why, for example, a 12-week trial is necessary in this case.
But those concerns aside, this ruling is a step forward.
It's recognizes that the courts have an important role in protecting our rights. And it acknowledges that access to justice - especially on issues of broad public importance - shouldn't be reserved for governments and others with big bank accounts.
- From the Vancouver Sun

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