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A COURT IN NEED AND A FRIEND INDEED: AN ANALYSIS OF THE ARGUMENTS OF THE AMICUS CURIAE IN THE QUEBEC SECESSION REFERENCE

Little Sisters Book and Art Emporium is Vancouver's only bookstore specializing in gay and lesbian literature. Little Sisters argued that the provisions of the Customs Act and Customs Tariff that together empower officials to stop obscene representations at the border constitute unreasonable restrictions on freedom of expression and equality rights protected by section 2(b) and section 15 of the Charter. In our view, Justice Smith's findings on the importance of sexual expression to the gay and lesbian community, and on the disproportionate impact of Customs censorship on gay and lesbian materials, ought to have led to the conclusion that the legislation in its effects violates section 15. On the question of whether the violation of section 2(b) was a reasonable limit, we believe that Smith J. ought to have exercised greater caution in assuming that the reasoning in Butler could be extended, without hesitation or problematization, to gay and lesbian, sexual imagery. Many of the publications suppressed by Customs are integral to the cultural and political identity of a disadvantaged and stigmatized sexual minority. Thus their distribution fosters goals that lie at the heart of the Charter's protection of expression and equality interests in sections 2(b) and 15, respectively. For this reason, we believe that Smith J. erred in not holding the government to a rigourous standard of justification at the section 1 stage of the analysis. We have also taken issue with Smith J.'s failure to implicate the procedural deficiencies of the Customs Act in the Charter violations identified by the evidence. In our view, at the very least, a system of administrative censorship cannot constitute a minimal impairment of Charter rights if it makes little or no attempt to ensure that decisions will be made expeditiously by expert decision-makers who have the ability to receive evidence of a publication's merits.

ABORIGINAL RIGHTS AND DELGAMUUKW V. THE QUEEN

In the 1990s cases of Mossop and Egan, the Supreme Court of Canada twice found ways to avoid dealing with the implications of anti-discrimination law for the rights of gay and lesbian couples. No doubt one reason for the Court's equivocation was the large gap that existed between the logical requirements of equality principles and the exclusion of gay and lesbian couples from a multitude of laws dealing with the rights and responsibilities of family members. By 1999, a pattern of favourable rulings from lower courts and administrative tribunals, changes in the membership of the Court, and a steady increase in public support for the recognition of the rights of gay and lesbian couples, combined to create the conditions in which the Court was emboldened to start closing the gap between constitutional promise and legislative reality.The style of judicial reasoning in M v. H reflects the impact of the increasingly aggressive attacks directed by some politicians and the media at the exercise of judicial power required by the Charter. Caution was written all over the decision. The narrow focus on the challenged provision, the absence of lengthy discussions of the surrounding legal and social context, the employment of the language of judicial deference, and the avoidance of the "reading in" remedy - all signal a Court treading lightly in the face of the attacks on its legitimacy. But, despite the caution, the Court to its credit did not back down from fulfilling its basic democratic role of protecting minority rights. As politely as it could, the Court has sent a clear message to all legislatures: opposite sex definitions of spouse are discriminatory. If you don't change them, we'll have to do it for you, case by case, definition by definition.