Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69
Natural Law Theory
Natural Law theory is based on the belief that ‘true’ law within the world is derived from a higher, non-human source of power that does not change overtime. These unchanging sources of law are the guiding principles by which humans live their lives, and are believed by Naturalists to shape the laws we construct. Natural Law looks to morality as an inherent source of the laws that govern human life where human laws must have parallel ‘morally right’ objectives in order to be ‘true’. Potential sources of Natural Law are God, Nature or Reason.
Saint Thomas Aquinas, a Dominican monk, wrote extensively on law, morality and politics. Aquinas’ Summa Theologica details his thoughts on ‘Natural Law’ and the concept of the ‘common good’ relating to law. Aquinas’ is held as a forefather of Natural Law theory who, given his profession and beliefs, logically held God as the source of this law. In a quote by Thomas Aquinas he defined law as “nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.’ In analyzing whether or not a law is truly valid, Aquinas set out four elements that are required.
1. Must be directed to the Common Good
Explanation: For a law to be considered valid under Natural Law theory it must be directed to the common good of the community rather than that of the individual. Aquinas believed that some ‘goods’ were essential to all humans (self-preservation, procreation and exercising spiritual or intellectual capacities) and that human happiness was truly dependent on the stability of a community.
Relation to Case: In Little Sisters Book and Art Emporium v. Canada (Minister of Justice) the courts look to whether the rights protected under the Canadian Charter of Rights and Freedoms have been infringed by Customs agents while carrying out actions under the Customs Act. The Charter is a document recognized by the Canadian community as protecting the rights and freedoms of all people within our society. These rights and freedoms follow moral values relating to ‘life, liberty and security of the person’ that we believe Aquinas would recognize as working towards the common good of our community.
The Customs Act was implemented with the legislative objective of, among others, preventing Canada from being inundated with obscene material from abroad. As stated in Little Sisters Book and Art Emporium v. Canada (Minister of Justice) Parliament provided customs authorities with the ability to intercept and exclude ‘obscene, hateful, treasonable and seditious goods’ from entering the county. However, the court does confirm the enforcement abilities under the Customs Act are limited to those items falling within the narrowly defined category of pornography that Parliament has criminalized as obscene. Although the court recognizes an abuse of the powers under the Customs Act by the agents in Little Sister’s, the intention of the Act, and the regulations pertaining to the implementation of that Act, remain focused on the common good of the community.
At trial it was determined that the Customs legislation, which allowed for material being imported into Canada to be deemed obscene and confiscated, infringed on Section 2(b) rights of the Canadian Charter of Rights and Freedoms. It was ruled that this infringement constituted a reasonable limit prescribed by law and was justifiable under Section 1 of the Charter. In the decision by the court, Binnie J stated that "the national community standard of tolerance relates to harm, not taste, and is restricted to conduct which society formally recognizes as incompatible with its proper functioning”. Although the infringement of the rights of a select group in society (Little Sisters in this case) the courts ruling is consistent with Natural Law theory’s belief that laws shall be directed to the common good.
2. Must follow Practical Reason
Explanation: Aquinas believed that the human constructed legislation and laws are meant to direct us in achieving the common good. Further, he believes that God has provided humans with the capacity to develop such laws in order to achieve the practical benefit of limiting negative interactions within society.
Relation to Case: The decision by the courts in determining whether the infringement is justifiable under Section 1 of the Charter provides practical reason. Modern courts use the Section 1 Oakes test, which allows limits on a right or freedom guaranteed by the Charter when reasonable and demonstrably justified in a free and democratic society. This test will allow for infringement when a) the objective is related to concerns that are pressing in a free and democratic society and b) the means chosen are reasonable and demonstrably justified.
When implementing the Customs Act, Parliaments intention was to create a system that allowed for the effective control of items travelling across our borders. This intention relates directly to the common good of the Canadian community. Little Sisters Book and Art Emporium v. Canada (Minister of Justice) deals with the issue of whether or not this Act infringes on the rights of Little Sisters Book and Art Emporium. In this case the trial judge found that s. 163 of the Criminal Code was aimed at protecting society from the harm caused by the dissemination of obscene materials and that this objective was sufficiently pressing and substantial to justify an interference with freedom of expression.
Parliament chose to create the Customs legislation and allow for the implementation of it to be dealt with by way of regulations. In Little Sisters Book and Art Emporium v. Canada (Minister of Justice) we see what the court refers to as ‘a failure at the implementation level’ that should be dealt with at that level. The court finds no inherent fault within the current legislative framework and believes the current system is reasonable and justified.
3. Must be made by a Valid Lawmaker
Explanation: Aquinas believed that the relationship between the Valid Lawmaker and those they govern is naturally ordered with some people being natural leaders. In Aquinas’ view the natural leaders will know what is in the common good and will work to achieve those goals through the means necessary.
Relation to Case: The Canadian Customs Act was implemented by Parliament. In Canada, Parliament holds a commanding leadership role that affords the opportunity to pass laws relating to what it believes is the common good for the community of Canada.
Parliament further delegated the power to make regulations pertaining to carrying out the purposes and provisions of the Act to the Governor in Council. If Aquinas felt the law was truly for the good of society, he may have felt the procedure for implementation was valid. However, in allowing the Customs agents to have such power under the Act, whereby they could use their own discretion in targeting those materials they found offensive, Aquinas would likely believe there is too great of a possibility for deviating from the common good.
4. Must be promulgated
Explanation: It was important in Aquinas’ theory that the laws were written and known to the people they governed. These laws were meant to compel obedience in order to achieve the common good.
Relation to Case: The Canadian Charter of Rights and Freedoms is readily available to the public The Customs Act, and the applicable sections of the Criminal Code relating to the classification of materials as ‘obscene’, were created by the Federal Government and are readily available to the public.
System of Rights
Liberty & Paternalism
Law as Efficiency
Liberty and Paternalism
The concept of Liberty questions the circumstances in which the laws within society should rightfully apply. The theory focuses on the importance of individual liberty and the necessity for justification of laws that impede or limit those rights. Concepts for justifying the law’s restriction on individual liberty are as follows: 1) The Harm Principle believes limits on liberty are only justified when the restriction prevents serious harm to others. John Stuart Mill believed this was the only acceptable reason to limit the liberty of individuals. 2) Paternalism provides that a restriction of individual liberty is justified when it protects that person from a harm that they would have suffered as a result of the exercise of that very liberty. 3) Legal Moralism holds that the restriction of an individual liberty is required in order to prevent their actions from undermining ‘social’ or ‘community’ morals and values 4) The Offence Principle believes that the restriction of an individual liberty is justified in order to ensure others are not unduly offended by the actions of a party.
Analysis of Case - Harm Principle & Paternalism:
John Stuart Mill believed that the individual was the person best suited to make decisions related to their own life. Although he did recognize that some laws were necessary in order to prevent violence and anarchy within a society, Mill believed it was important to restrict those laws that infringed on the liberty of individuals. In the case of Little Sisters the Customs Act prevents the owners of Little Sisters Book Store from importing materials they wish to sell in Canada. Mill would only find this limit of the liberty of the bookstore justifiable if it conformed to the Harm Principle and the limits were required in order to protect the majority within Canada.
With reference to Butler, the Court in Little Sisters notes that the restriction on importing materials does not discriminate against the gay and lesbian community, but rather, relates to harm formally recognized as incompatible with proper functioning of society. Mill believed it was important to uphold liberty of thought, feeling and expression of the individual with mature faculties. Little Sisters Bookstore argued that the targeting of their materials by Customs agents restricted these abilities. However, since the test provided in Butler dealt with harm to society, John Stuart Mill may have recognized the ability to restrict some rights in order to prevent harm to the majority.
One issue Mill’s would likely have with the Little Sisters case, is that much of the analysis on whether or not the liberty of a group would be restricted (i.e. refusing access to imported materials) was done by parties (Customs agents and individual judges) not controlled or accountable to the public at large. Mill’s believed that the delegation of powers within society provided an interest between those doing the governing and the group they governed. It was this relationship that he believed would serve to limit the infringement on individual’s rights and liberties. In the case at hand, Mill would likely agree that those deciding on whether or not a liberty would be restricted were too far removed from the individuals within society.
In contrast to the Harm Principle, Paternalism provides that restrictions to individual liberties can be justified when the restriction serves to protect the individual from a harm they would suffer due to exercising their liberty. The Customs Act along with the prohibitions under the Criminal Code, restricted the information accessible to the public. If this information was one that was deemed to be capable of harming them, it might have been justifiable under Paternalism. However, the court found that many of the materials denied by Customs agents were actually already accessible in Canada through various means including local libraries. The inconsistent nature of the Customs agents and clear targeting of the Little Sisters Bookstore makes it hard to justify a restriction of liberty under the lens of Paternalism.
In a 6 to 3 decision, the Supreme Court of Canada held that the law did violate the Section 2 Charter Rights of the Little Sisters Bookstore, but was saved under Section 1. In true Libertarian fashion, Mill would view the Charter as a constitutional check designed to limit governmental authority over the individual. Further, the role of judges is to uphold individual liberty against intrusions by the state. In the decision by the court, we do see a justification of the law in place. However, the court also recognizes the issues with the administration of the Customs Act and requires that the discriminatory abilities within the system be remedied. The court does provide that the onus provision, requiring the importer to prove that the materials are not obscene, is struck down. These actions thereby limit the ‘tyranny of the majority’ that can occur in an uncontrolled environment and assist in maintaining the liberty of those within Canada.
 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69  2 S.C.R. 1120 at 4.
 Ibid, at para 102.