Constitutional Law

Remedy:
•    Read in to the law an exclusion of the peripheral problematic applications
o    To Strike Out entire law would nullify a law that is valid in most of its applications
•    Schachter – decide appropriate remedy on basis of “twin guiding principle”: respect for the role of Parliament and respect for the purposes of Charter
•    Consideration of legislative intent
Dissent:
Increased deference to Parliament is warranted

P&S Objective: Yes
•    Children are the most vulnerable members of our society
•    Provision protects both children and society by attempting to eradicate the sexual exploitation of children

Minimal Impairment: Yes
•    No evidence to support notion that sexually explicit videos of teenagers “reinforce healthy sexual relationships and self-actualization” (as per McLachlin)
•    Parliament doesn’t have to show provision is perfectly tailored to its objective
•    Firmly disagree with McLachlin’s  “read in” areas that should be exempted from prohibition of possession
•    Parliament was justified in restricting teenagers from creating a permanent record of their sexual activity

Proportionality of Effects: Yes
•    Benefits of legislation far outweigh any harms of FOE and interests of privacy
•    Legislation hinders self-fulfillment of a few, but this form of self-fulfillment is base level
•    Legislation fosters and supports the dignity of children and sends the message that they are to be accorded equal respect with other members of the community.

Little Sisters Books v. Canada (2000)    Right of importers versus state interest in preventing importation of harmful materials
Treatment of Prior Restraint Regimes under s.2b and s.1
Facts:    LS is bookstore that sells literature written by and for homosexual men and women.  Most of its products were imported from U.S.  LS claimed destruction and undue delay of importation of material infringed s.2b and that Customs legislation was applied in discriminatory manner on basis of homosexuality.  Defendants conceded legislation infringed s.2b b/c obscenity is expression.
Issues:    1.  Is Customs Tariff unconstitutional or is it just being applied unconstitutionally?
•    Treatment of “prior restraint” regimes under s.2b and s.1

2.  What is proper application of Butler definition of depictions of homosexual sex?
•    Is gay/lesbian erotica covered by Butler/s.163 CC, and therefore by customs legislation? No
•    Butler and harm prevention are not restricted to heterosexual acts
•    Butler Community Standards Test includes concern for minority expression
o    Looks for harm incompatible with proper functioning of society
Ratio:    1.  Customs legislation constitutes violation of s.2b; s.1 analysis considers law properly operated without the maladministration
•    Unjustifiable infringements resulted form the administrative procedures and not from the law itself; therefore s.1 is not applicable
•    Failures at implementation level can be dealt with at that level
•    Parliament can confer powers to deal with out-of-court Charter sensitivities w/o being req’d to legislate special procedures

2.   Butler analysis does not discriminate against the gay and lesbian community
•    Butler is directed to the prevention of harm and is indifferent to whether such harm arises in context on heterosexuality or homosexuality
•    Gay and Lesbian community is not being discriminated against in Customs legislation;
•    Leg does not draw distinction on basis of sexual pref; neutral on its face/applied to all obscenity
•    Gov’t is entitled to impose broader inspections of expressive material
Section 1
Justification:    Prescribed by Law:
•    Rejects argument that Butler standard is so vague as not to be a limitation “prescribed by law”
•    Customs Tariff prohibition is not void for vagueness or uncertainty and is validly “PbyL”
P&SO:
•    Objective of legislation (to protect moral fibre/well-being of the state and prevent Canada from being inundated with imported obscene materials) is sufficiently important to justify interfering with protected freedom
RC:
•    Customs procedure is RC  to legislative objective of preventing obscenity
MI:
•    Customs officials have no authority to deny entry to sexually explicit material unless it comes w/in the narrow category of porn that Parliament has validly criminalized as obscene
•    Unlike Butler, not dealing with the denial of expressive right but with temporary dealy in obtaining possession of lawful materials while importation is being processed
Deleterious Effects versus Salutary Benefits:
•    Test is whether the deleterious effects of the Customs legislation, properly administered, exceed the salutary effect of the Customs legislation
•    Leg is designed to prevent entry of obscene material that is likely to cause harm in excess of the community’s standard of tolerance
•    If administered properly, deleterious effects would be outweighed by its salutary benefit

Equality:
•    Since there was a disproportionate effect on LS (in that literature was very important for their community), LS had been disadvantaged in a way that was directly related to their homosexuality
•    Distinctive treatment was not due Customs legislation and ∴ did not infringe s.15
•    If the disproportionate effect on homosexuals did result from the legislation, the distinction was not discriminatory
Remedy:
Majority    s.52:
Declaratory Remedy denied; no unconstitutional law
s.24(1):
Remedy denied; too long since trial

Analysis:
Dissent
Customs legislation not saved by s.1
•    Border procedures “grossly inadequate”
•    Legislation lacks “meaningful accommodation” for expressive freedoms
Remedy:
Dissent    •    Strike down Customs Tariff
•    “Invite parliament to remedy the constitutional infirmities”

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