- 1 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69
- 2 Natural Law Theory
- 3 Positivism
- 3.1 Empirical Provable and Proscriptive Nature
- 3.2 Recognized Sovereign Authority to Obedient Subordinates
- 3.3 Sanctions
- 3.4 Appropriate Legal Avenues
- 4 Separation Thesis
- 5 System of Rights
- 6 Liberty & Paternalism
- 7 Law as Efficiency
- 8 Feminist Jurisprudence
Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69
Facts of the Case
Little Sisters Bookstore is a Vancouver based store that imports a variety of materials mostly related to gay and lesbian literature for sale in their store. The majority of the information is imported from the United States. Under the Customs Act "[b]ooks, printed paper, drawings, paintings, prints, photographs or representations of any kind that ... are deemed to be obscene under subsection 163(8) of the Criminal Code" can be denied entry into Canada. On several occasions the materials the bookstore was attempting to import were deemed obscene by Customs officials and denied entry to Canada. The appellants allege discrimination and argue that their Section 2(b) Charter rights, being freedom of speech, were breached by the enforcement of the Customs Act.
Issue of the Case
Does the Customs legislation allowing for the exclusion of materials deemed offensive infringe the Section 2(b) (Everyone has the fundamental freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication) of the Canadian Charter of Rights and Freedoms?
The trial judge found that:
- Customs officials had wrongly delayed, confiscated, destroyed, damaged, prohibited or misclassified materials imported by the appellant bookstore on numerous occasions
- Errors were caused by the "systemic targeting" of the store's importations
- Customs legislation infringed s. 2(b) of the Canadian Charter of Rights and Freedoms but was justified under Section 1.
Court of Appeal
In a majority judgment the appellants' appeal was dismissed.
Supreme Court of Canada
Writing on behalf of the Supreme Court of Canada, Chief Justice McLachlin confirmed that the Customs legislation infringed Section 2(b) of the Charter but was saved under Section 1 due to being a reasonable limit based on Parliament's legislative objective to prevent Canada from being inundated with obscene material from abroad. Further comments made by the court:
- Parliament is entitled to prohibit obscenity and the test established in R v Butler shall be used in order to establish the national community standard.
- The issue of wrongful delays and targeting of Little Sisters Book Store was a failure of the implementation stage and should be remedied at that level.
- The reverse onus provisions under Section 152(3) of the Customs Act which required the importer to establish that the goods being imported were not obscene could not apply. This is due to the importer having a Charter right to receive the materials unless the state can justify the reason for it being refused.
Note: All information for Section 1 has been found in the Supreme Court of Canada Decision
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.
Four Elements of a Valid Law
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 traveling 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.
Legal Positivism is the theory in reaction to earlier theories of natural law. It states generally that a moral basis is not a requirement for a law to be valid. Instead, for a law to be valid, it must be an empirically provable command from the recognized sovereign authority to a habitually obedient subordinate population, backed by sanctions, and created within the legal avenues for lawmaking. The test is fourfold, using those elements. The leading theorists in this theory are John Austin, HLA Hart, Jeremy Bentham and Joseph Raz.
Empirical Provable and Proscriptive Nature
The first requirement of “empirically provable” can be satisfied by confirming the laws existence. In essence, the law is written down. This can be conflated with the next element as it is equally obvious to point out. By proscriptive nature, all that is required is that it be a command of some sort. The source and recipient of that command will be addressed in a separate section. HLA Hart expanded the scope of what could be considered a command in his legal positivist works. He considered secondary rules that govern behaviour that aren’t simple commands. These included social pressures, the ability to change existing rules, and the adjudicative rules to be used when a rule has been violated.
Relation to Case
The Customs Act, the Customs Tariff, the Criminal Code, and the Canadian Charter of Rights and Freedoms are all written laws and can be found as cited. These pieces of legislation are commandments as to what type of behaviour is acceptable in certain circumstances. The Code is a list of behaviours that are carry criminal charges if violated. Indeed, one of the purposes of criminal law is to indicate to society what behaviours are considered morally evil. The Charter fits more on this side, as it dictates the fundamental limits of the state’s behaviour to its citizens. The prohibitive sections of the Customs Act are commands limiting the behaviour of people entering the country. Section 9956(a) of the Customs Tariff gives the relevant scope of confiscable materials. Under the expanded scope of Hart’s theory, the adjudication measures of the Customs Act for retrieval of confiscated material fall squarely within the adjudicative allowances outlined above; these sections allow for the importer to appeal a confiscation by a Customs agent.
Recognized Sovereign Authority to Obedient Subordinates
For Austin, the recognized sovereign authority would be the monarch. Currently, the lawmaking authority is Parliament. Parliamentary sovereignty dictates that all legal power emanates from Parliament. It can be delegated to regulatory bodies and still maintain the full authority of Parliament. The obedient subordinates are always the subjects of the laws. The existence of this part of the test points to the invalidity of one nation’s laws to another’s subjects. For example, the English monarch might make a law, but that law would be of no force or effect in France, unless similarly enacted by the French monarch.
Relation to Case
In the Customs Act the Governor in Council is given the authority to make laws within the legislative scheme to achieve the goals of the Act. In this way, the Governor in Council acts with the authority of Parliament to create laws in order to carry out the specified purpose of the act. Furthermore, a Customs agent is given authority by the Governor in Council by the legislative scheme to determine what is considered obscene. Therefore, the Customs agent is acting with the full authority of the law as delegated by Parliament and is an arm of the recognized sovereign authority. In a parliamentary democracy, it is understood that the elected representatives will be creating laws that are to be enforceable on the electorate. In democracies, all power ultimately derives from the voting public. Without the tacit consent given by an election, a government in a democracy has no authority to create laws. An elected government, as the Mulroney government was in both 1985 and 1987, as well as the Trudeau government in 1982 when the Charter was enacted, has the tacit consent of the electorate to enact laws during its tenure.
Sanctions are the threats that support the command. These could be anything from fines to imprisonment.
Relation to Case
The Code outlines the punishments for importing obscene materials. Section 169 outlines the summary conviction of dealing in obscene materials. The punishment cannot exceed two years in prison.
Appropriate Legal Avenues
As enacted legislation in the Charter era, the legislation must not violate any guaranteed rights. Legislation can still violate those rights and be saved by a under Section 1 of the Charter. This aligns with Raz’s service conception. Authority is justified when the authority performs a service to its subjects. These two ideas can be combined, as Section 1 justifies invalid laws as being for the good of society.
Relation to Case
In the words of the judgment by Binnie J, “In my view Parliament has struck an appropriate balance between the limiting effects of the Customs legislation and the legislative objective of prohibiting the entry of socially harmful material. As held in Butler, at p. 509, the benefits sought by the criminalization of obscenity are the avoidance of harm and the enhancement of respect for all members of society, and the promotion of non-violence and equality in their relations with each other.” The laws have been enacted by the proper legal authority, being Parliament, and the laws have passed through the legal avenues to ensure their validity.
The Separation Thesis developed by H.L.A. Hart is an extension of the Legal Positivism theory. Hart builds upon the work of earlier legal positivists, such as John Austin, to further elaborate how law and morality are separate systems. Like other positivists Hart believes that morality is not a requirement for a law to be valid. However, Hart goes further to discuss how morality and law do in fact often run parallel even though they are not the same thing. To Hart, if a clash between morality and the law does occur, the competing obligations must be weighed to determine which should be followed. For instance, if a law is seen as being evil, Hart believes that it must not be obeyed. However, he insists that this is not combining law and morality. Lon Fuller, one of Hart’s main critics, says this separation of law and morality is artificial and law and morality go together. Furthermore, that Hart’s theory for determining if a law should be followed actually involves morality.
Relation to Little Sisters Case
In this case, it appears that the law against obscenity and morality do not run parallel. In modern times it would likely be found that gay and lesbian imagery that the plaintiffs in Little Sisters Book and Art Emporium v Canada, were attempting to import into Canada is in line with current morality. However, the law as it stood, both section 163 of the Criminal Code and the Customs Act that allows for discretion to find this material obscene has led to this imagery and its importation being seen as unlawful. Hart would argue that if this law preventing gay imagery from being imported into Canada is seen by the public has being evil, then it need not be obeyed. Lon fuller would argue that this process of deciding if this law needs to be followed is an analysis of morality.
The Legal Rule System: Law as a rule governed practice
Legal Positivists like Austin believe that the legal rule system is very formal in nature. Particularly, if a law meets formality requirements it is good law. Hart on the other hand, believes law possesses three qualities. Firstly, he says that law needs to have something more than just formality. Hart believes that law must also contain an inner quality that distinguishes law from other rules, known as the law as a “rule governed practice”. Secondly, he believes that laws have “ought claims” on us in the same way that morally neutral rules do. For example, the rules of baseball or etiquette are rules that we “ought to follow”. Lastly, like other positivists, Hart believes that legal rules must be rooted in the rule of recognition. The rule of recognition is that for a law to be valid there must be recognition by the majority of society, if not, the law will lose its validity. Furthermore, that the individuals in charge (i.e. judges and legislators) must believe that they must follow and apply these laws in a consistent manner.
Relation to "Little Sisters" Case
To Hart the rule of recognition is a required for a law to be valid. The plaintiffs in this case argued that importing a majoritarian analysis of s. 163 for obscenity (e.g. what the broader Canadian community will tolerate) creates prejudice against the minority as the majority may view gay and lesbian imagery negatively . The result is that the whole idea of a test based on the majority standard is incompatible with The Canadian Charter of Rights and Freedoms values that were enacted to protect minorities. However, as the trial judge found and the majority of the SCC agreed, that the treatment by Canada Customs was adverse and violation of human dignity. To the court, the laws themselves are not in violation because they are capable of being applied consistently to both homosexual and heterosexual materials. However, it was the way in which Customs agents targeted and applied the law differently to homosexual materials that gives rise to the violation of section 15 of the Charter.
Hart would claim that this supports his theory as to the separation of law and morality because the law is capable and should have been applied consistently, but the players in the legal system, here the Customs agents, failed to do so. Fuller would argue that the decision to find that Customs agents had acted in violation of Charter rights involved considering equal treatment of sexual orientation, a moral analysis.
The Role of Judges for H.L.A. Hart vs. Lon Fuller
For Hart, judges have a special role in the legal system. He believes that our legal rules tend to have a “settled core of meaning”. It is when factual situations presented in a case fall outside of this settled meaning and into and area known as the “penumbra”, that judges come in to make tough decisions. Hart believes that judges in deciding these cases draw on terms of the “rule governed practice”, which are principles that run through the entire body of law and legal system. To Hart, the result is that this application of the “rule governed practice” leads to consistency in judgments, an element required by the rule of recognition. The terms of the rule-governed practice include principles of justice as well as impartiality and objectivity. Additionally, there are terms that overlap completely with moral principles, however, to Hart judges do not apply morality.
Lon Fuller was one of the main critics of Hart’s Separation Thesis. Fuller believed that law and morality were not separate as Hart claims. In Contrast, Fuller responds to Hart’s theory with an argument built on four main flanks. First, that social acceptance of legal rules, a characteristic of the rule of recognition, is grounded in external morality. Specifically, the majority accepts law on the belief that it will produce good order. Secondly, Fuller says that law itself has an inner morality because the purpose of law is to produce order, and to be effective it must conform to this morality. Thirdly, he claims that immoral laws cannot be explained by Hart’s separation thesis because it does not provide an adequate explanation for a general obligation to obey the law. Lastly, Fuller criticizes the idea of “settled core” and “penumbra” theory of judicial interpretation. He says that instead of applying the rule governed practice judges carry out their fidelity to the law by interpreting cases in a way that is consistent with its purpose. This interpretation involves referring to both external and internal morality.
Relation to "Little Sisters" Case
The case of Little Sisters Emporium v Canada, would fall under the category of a “hard case” and one that falls within the “penumbra” This is due to the fact that the circumstances involved result in judges having to make a decision on uncertain matters. Hart believes that the terms of the “rule governed practice” guide judges and other players in the legal system to consistently apply the law correctly. However, the plaintiffs in this case instead argued that the Customs Act allows Customs agents to have discretion as to what material is obscene and this removes the consistency required. With discretion they will instead apply it using morality and their own views.
The Crown during the Supreme Court of Canada hearing acknowledged that classification mistakes were made with imported materials . The Supreme Court of Canada also found that the way in which the law, although valid, was applied by Customs was where the violation of Charter rights occurred. The plaintiff’s argument is more in line with Lon Fuller’s criticism of Hart’s thesis. It was argued by Little Sisters that the interpretation given to s. 163 by Customs agents is not consistently applied to heterosexual erotica the same way it applies to gay and lesbian erotica . The Court agreed with this in their decision, finding the importing gay and lesbian imagery is legal conduct and wrongful detaining and prohibiting by Customs agents was an unjustified interference with freedom . Fuller would say that this decision to find a violation by judges was a consideration of morality, while Hart would say judges were guided by the terms of the “rule governed practice” to make the decision in this case
 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69  2 S.C.R. 1120 at 55.
 "Ibid" at para 38.
 "Ibid" at para 42.
 "Ibid" at para 246.
System of Rights
Ronald Dworkin was a distinguished legal scholar and philosopher and is considered by many to be the most influential figure in contemporary Anglo-American legal theory. He was the successor of H.L.A Hart as a professor of Jurisprudence at Oxford and a strong critique of legal positivism.
System of Rights
“The “rights” conception of the rule of law assumes that citizens have moral rights and duties with respect to one another, and political rights against the state as a whole. It insists that these moral and political rights be recognized in positive law, so that they may be enforced upon the demand of individual citizen through courts or other judicial institutions of the familiar type, so far as this is practicable. The rule of law on this conception is the ideal of rule by an accurate public conception of individual rights. It does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.” Ronald Dworkin, 
According to Dworkin, judges should “apply the law that other institutions have made; they should not make new law”. Dworkin argues that individual moral principles can often be wrong, and that the judge’s decision must be drawn from an interpretation that both fits and justifies what has gone on before, so far as that is possible. Dworkin draws an analogy to a judge being like a novelist in a chain novel, where each novelist aims to “make a single novel of the material he has been given, what he adds to it, and what his successors will want to add to it.
Dworkin’s Critique of Positivism
"Dworkin’s basic strategy throughout the course of the disagreement with Positivism has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. In other words, the existence and content of positive law is governed by the existence and content of the moral law. This contention, therefore, directly challenges and threatens to undermine the positivist picture about the nature of law, in which legality is never determined by morality but rather by social practice." 
Legal Positivist three thesis named by Dworkin
Dworkin names three thesis's which he believes Legal Positivists abide by:
- Law is a set of rules identified as such with reference to a master rule (The Pedigree Thesis)
- Where no legal rule applies, judges exercise discretion (The Discretion Thesis)
- Legal rights and obligations are the products of legal rules. (The Obligation Thesis)
Dworkin rejects the Pedigree Thesis for two reasons "First, legal principles are sometimes binding on judges simply because of their intrinsic moral properties and not because of their pedigree. Second, even when these principles are binding in virtue of their pedigree, it is not possible to formulate a stable rule that picks out a principle based on its degree of institutional support." 
The Discretion Thesis sets out that law is solely made of legal rules and no principles, Likewise, the Obligation Thesis points to legal obligations could only be generated by legal rules, therefor where legal rules are irrelevant, legal obligations wouldn't exist; hence, judges will have to look beyond the law for judgement.
Dworkin in analyzing the above three points rejects their objectives based on a belief that law contains not only rules, but also principles. He relies on the existence of principles in rejecting the positivists views as he claims the role of principles in the law undermines the positivist position.
Principles, Policies, and Rules
Dworkin argues for the recognition of law as incorporating standards that are not rules, further claims that law includes principles and policies in addition to rules. He defines them as:
Policies: Social goals pursued on behalf of some segment of population, decisions about which policy objectives have priority best left to legislators.
Principles: Based on the fundamental ideas of justice and fairness that support certain rights and duties; judges must take this into account when deciding hard cases. in other words, judges discover rights and duties based on principles, they do not create them.
Application to Little Sisters Book and Art Emporium v Canada
The Supreme Court of Canada decision held that the Customs Act violated Section 2 right of the Canadian Charter of Right and Freedoms , which gave broad powers to customs inspectors to exclude “obscene” material, but it was found justified under section 1 right.
The fact that the both laws collide is one of the points that Dworkin makes; that if one rule goes against the rule of another, one must not be a rule and therefore need not be followed.
Resolving the issue in this case goes beyond rules, as they are defined by Ronald Dworkin, the court was required to rely on principles to resolve the issue. In the judgment the Supreme Court removed the provision creating the reverse onus on the importer. This was resolved not with a specific rule of law, but rather it was a principle of fundamental justice that allowed the Supreme court to overturn this provision.
In this case it was further analyzed that the Customs Act in itself was justified, yet it was those who administered the legislation had discriminated against the bookstore, and it was the underlying principles that the judges relied upon in resolving the case. Furthermore, this is in keeping with Ronald Dworkin's characterization of policies, and that they are within the purview of the legislature rather than the judiciary. If Parliament creates a legislative scheme, then it is up to the judiciary to resolve cases within that framework. This is an accurate representation of how the court acted in this case. The legislative scheme outlined the social goals that were to be pursued; that is, the protection of the public from obscene materials, and what constituted obscene materials. The court did not rule on what constituted obscene materials, but rather upheld the law as valid, and simply removed the provision that was contrary to the relevant principle.
Liberty & 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
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.
Law as Efficiency
Efficiency in the economic theory of law relates to the maximization of social wealth, which includes all measurable satisfactions, not simply monetary wealth. Legal efficiency seeks to create win-win scenarios for the rational actors involved. Win-lose scenarios are also acceptable if the losing party is compensated for their loss. This effectively makes it a positive sum transaction. The point of law then, in this model should be to maximize societal wealth. Thus, in this theory, anything that costs more money than it generates must be deemed to have a greater societal value. This is the case for the criminal law system; society pays to incarcerate individuals who deserve to be punished for their moral wrongs. The theory acknowledges that transactions are not self-contained interactions, and have effects on parties externally. Laws are implemented to removes these externalities and thereby allow transactions to reflect the real costs of the transaction more effectively.
Application to this case
The judgment in this case does not seem to employ the economic theory of law. The judgment upheld the Customs Act and the agency’s ability to confiscate “obscene” materials; changing only the provision that created a reverse onus in proving the material to be not obscene. If this case was decided by employing the economic theory of law, then we must conclude that obscene material, which in this case must include literature, erotica, and information of a homosexual nature are more damaging to society than the social wealth created by the sale of these materials. Clearly, when considering the broad scope of the Customs Act, which bars harmful drugs and other substances, this seems reasonable and rational. However, the Court has the ability to read down certain sections of the law. In contention with this view is the narrower considerations involved with this specific case. The business operations of the Little Sisters bookstore can be seen to contradict an economic theory of law reading of this case. A bookstore importing goods indicates that there is a market for these goods. The business takes the cost of importation in expectation of future sales. Denying the opportunity for the customers to purchase these materials indicates that the courts feel that the material is objectionable enough to justify the additional cost of regulating these type of materials. Furthermore, as there is no provision to compensate the importer for their both the loss of actual costs and loss of chance, this judgment does not create a win-win scenario, nor does it compensate the losing party to create greater societal wealth on the whole.
In terms of economic theory, it seems unlikely that the decision would be made the same if the theory were to be employed in the court’s reasoning. While the general regulation of goods would be upheld regardless, the fact that resources were used to specifically target this type of material, as evidenced by the numerous occasions Little Sisters had their materials confiscated, might lead the court to allow this type of material for import.
The theory of Feminism involves a cluster of related and different views as opposed to a single school of thought. However, there exists the common core that is central to all theories of feminism, that the world is structured by patriarchy leading to female disadvantage. Consequently, men have determined the nature and interests of women. This patriarchy has impacts within our legal system as well. According to feminists, laws are imposed on women through a patriarchal lens. Although there are differing perspectives within feminism, the working definition of feminist jurisprudence is the analysis and critique of law as a patriarchal institution. The liberal feminist believes, as liberals do, that because men and women are equal, the law should be gender blind. Specifically, there should be no special restrictions or assistance given to females. The radical feminist believes that the only way to invoke change is to transform the way women view their own gender. A Marxist feminist believes that equality is not possible in the class-based society in which we live because women fall into the powerless class. Another perspective is that of the post-modern feminist who believe that every women faces different social realities so there is no single solution to the problem of female oppression.
Relation To Little Sisters Case
When examining the decision in Little Sisters, it is clear that the differing perspectives of feminism would see features of their approaches. Overall, most feminist’s would likely view the decision to have been analyzed with a legalistic approach rather than through a feministic one. Specifically, the court founded most of their judgment on the basis of s. 2 Charter rights violations. However, found that the law in question was justified under s. 1 because the law allowing Customs agent to prevent obscene material from entering the country is in place to protect the citizens of Canada.
The subject matter of the case involves erotic pornographic-like materials that are homosexual and lesbian in nature. The post-modern feminist believes that men fall within the main category while women fall into the remaining “other”. It is likely that a feminist may view gay individuals whether male or female, fall within this “other” category. The “other” category is one that the patriarchal system imposes its laws on.
The radical feminist believe that sexuality in our society, perpetuated by things like pornography, results in the use of women as sex objects and furthers patriarchy. Accordingly, a radical feminist would likely disagree with the court in Little Sisters essentially allowing the erotica materials, which the appellant was importing, to be deemed not obscene. By supporting pornographic-like materials entrance into Canada, women too would be adding to the power imbalance that exists in society. To a radical feminist women need to change their own views on the ways in which law and society result in inequality This can be achieved by recognizing male power over women as embodied in individual rights. This case with reference to the Butler case found that categorizing the pornographic material as obscene was a violation of the s. 2(b) of the Charter, the freedom of expression. The radical feminist would argue this illustrates the maintenance of male power over women by allowing pornography to enter Canada on the basis of individual rights.
The liberal feminist when examining this decision would agree with the decision of the Supreme Court of Canada to hold that banning lesbian and homosexual materials was a violation of s. 2 of the Charter. Liberal feminist believe that men and women should be equal and therefore anti-pornography laws should make no distinction between heterosexual pornography, which has been found not obscene, and the gay pornography materials that the appellants were importing.
The Marxist feminist would find that the Court’s judgment is illustrative of the class-based and oppressive society in which we live. Specifically, finding that the actions of Customs agents were discriminatory, allowed the free flow of materials to enter the country. In capitalism the facilitation of the market is most crucial. Therefore the customs agents in hindering the flow of Little Sister’s bookstore materials had a negative effect on the market. The Marxist feminist would argue that with a functioning capitalist regime, women would continue to be de-valued and seen as economically useless.
- R v Butler,  1 SCR 452, 89 D.L.R. (4th) 449
- Little Sisters Book and Art Emporium v. Canada (Minister of Justice) 2 SCR 1120
- Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 1.
- Customs Tariff, S.C. 1987, c. 41 (3rd Supplement), 9956(a).
- Criminal Code, R.S.C., 1985, c. C-46. [Code]
- Canadian Charter of Rights and Freedoms, R.S.C. 1985, Appendix II, No. 44, Schedule B
- Criminal Code, R.S.C., 1985, c. C-46. [Code]
- Canadian Charter of Rights and Freedoms, R.S.C. 1985, Appendix II, No. 44, Schedule B
- Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), s. 1.
- Customs Tariff, S.C. 1987, c. 41 (3rd Supplement), 9956(a).
- Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69  2 S.C.R. 1120 at 4.
- Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69  2 S.C.R. 1120 at 102.