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O Canada! Customs Routinely Seizes Gay Material as ’Obscene’

by Scott Stiffler

EDGE Media Network Contributor

Thursday December 13, 2007

America's collective attention has been focused on the southern border with Mexico of late. But forget all of those illegal immigrant spilling into Arizona, Texas and California. A far more insidious quality of life incursion is being perpetrated by our neighbors to the north. Yes, the "friendly giant" of Canada has not been so friendly--or at least gay-friendly--of late.

Despite gay marriage and other actions, Canadian customs officers have been quietly but systematically blocking U.S.-made erotica. Their actions have had the effect of severely limiting free speech. Lest you think this is only about curtailing the masturbatory options of law-abiding Canadians and wreaking havoc on the profit margin of of the sex-industry, it is, in fact, a broad assault on civil liberties that should worry people on both sides of the extensive border.

Bound only by vague, randomly implemented policies and consumed with targeting material created to engage, educate and, yes, titillate the localLGBT community, the Canadian customs service (a.k.a. the Canadian Border Services Agency, or CBSA) regularly impounds whole shipments to adult bookstores. Despite a landmark 2000 decision by the Supreme Court of Canada, the CBSA continues to seize material which it deems obscene.

Founded in 1983 and located in Vancouver's West End, Little Sisters Bookstore sells gay and lesbian material primarily imported from the United States and the United Kingdom. Following a series of periodic legal skirmishes beginning in 1986, Little Sisters mounted a March 2000 challenge to the section of the Canadian Customs Act prohibiting obscene material (Section 1) and putting the burden on the accused to disprove obscenity (Section 2).

Acknowledging that Little Sisters had been targeted by customs, the Canadian Supreme Court found the government in violation of Section 2 but decided the violation was allowable under Section 1. The court heard spoken testimony from lawyers representing PEN Canada (a non-profit that "campaigns on behalf of writers persecuted for their thoughts"), the Canadian Civil Liberties Association, the Canadian AIDS Society, the Canadian Council for the Arts, LEAF (Women's Legal Education and Action Fund), and EGALE (Equality for Gays and Lesbians Everywhere).

Despite the best efforts of so many free-speech and anti-censorship organizations, their testimony in fact led to more seized material, since, in the course of the trial, CBSA learned of heretofore-unknown acts that were described during arguments. Depictions of vaginal and anal fisting were subsequently deemed obscene, along with the sexualization of objects and acts, such as licking boots for gratification, as found in Tom of Finland drawings, for example. In January 2007, the Supreme Court denied a Little Sisters appeal for funding to further challenge the CBSA.

A Bookstore Can't Stock Its Shelves
The British Columbia Civil Liberties Association, founded in 1962, works to "preserve, defend, maintain and extend civil liberties and human rights in British Columbia and across Canada." Although BCCLA doesn't offer legal advice or representation, it lobbies, educates, and acts as an advocate in cases such as defending local theaters charged with obscenity, challenging provincial government decisions or cases involving school boards.

John Dixon, a spokesperson for BCLA, believes that it's import to understand how materials go to Little Sisters and other bookstores. "Ordinarily," he said, "most of our materials created for gay audiences come from the U.S. or U.K. There are criminal prohibitions against the distribution, sale and publication of obscene material in Canada. When the material doesn't originate here, it shows up at customs."

Civil Liberties Groups Fight an Uphill Battle
There, a low-level administrative figure decides off the cuff if it is obscene, Dixon said. "Virtually everything is opened," he added. "They have hundreds of people opening. Over the years, they came to focus on the importers they believe are likely to bring in obscene material."

By the 1980s, Little Sisters couldn't bring product in, because CBSA had seized so much of its would-be retail product. BCLA became involved in 1988, in an incident involving The Advocate, of all things. CBSA had deemed the highly respectable national gay newsmagazine obscene.

Based in Toronto, Ontario, the Canadian Civil Liberties Association, or CCLA, is comparable to our ACLLU. Speaking about the lack of common sense and discretion on the part of customs, CCLA General Counsel Alan Borovoy told EDGE, "Over the years, they screened out some highly questionable material."

His personal favorite is a book including information on male masturbation that was headed for the University of Manitoba Medical School. The school had to go to court to recover it.

"This is in large part a problem with the law," Borovoy said, "formulated in such terms that if you have customs officials attempting to apply a law that was absurdly overbroad and vague in the first place, you're going to get some weird results."

In the Little Sisters case, the CCLA tried to argue that was a case of prior restraint--that is, it wasn't prosecuting after a product hit the market. Rather, it was a case of seizing material and not letting it onto the market at all.

'How can it be anything else other than a product of the mind offered for the consideration of other minds? It's not a record of something that happened in the world.'

Comic Books Aren't Fit for Adults
And that brings us to the most recent action of CBSA, involving, of all things, a comic book.

Earlier this year, the CBSA seized a shipment of erotic comic books sent by French publisher H&O Comics to Pirape, a well-known gay retailer with stores in Toronto, Calgary, Vancouver and Montreal. The offending titles were Dads & Boys, Volumes 1 & 2 and Justin, Volumes 1 & 2, all by the single-named artist Josman. The cartoons are certainly erotic, if not downright arousing.

They depict a humpy divorced father whose once-estranged teen-age son moves in with him. They develop an incestuous relationship. In addition, however, CBSA also seized Japanese manga comics. Arena and Gunji are both by Gengoroh Tagame, a well known out, gay "mangaka," or comic artist. Since the early 1980s, Tagame has been creating works of gay sexuality which include graphic visual depictions of violence and bondage.

In 2005, his mangas were translated and published by H&O Comics. Tagame told EDGE, "It's a sad thing for both of me and my fans." He said he heard about the seizure from a Canadian fan who tried to buy my books from a Japanese gay bookstore that most of his books are prohibited in Canada.

"My publisher said that they became unable to export my French translated books to the French-Canadian area," he added. "I can say this event is hurting the sales of my books." His native Japan also can be prudish. To draw naked genitals is basically still nominally illegal in Japan. Tagame published Gay Erotic Art in Japan without the genital mask, but it had a risk of my being arrested for the publishing of an obscene book.

"The publisher of my manga is putting as small as possible of a 'mask' on the genitals of my drawings," he complained. "They are anticipating that by this censor mask, it's keeping inside of the safety line of legal pornography." Still, Tagame remains concerned that, even with the addition of the so-called "genital masks," his work could be subject to censorship and prosecution: "But if they judge that this book is illegal because these masks are too small, it's still out there, and we can't do anymore. This problem is always a cause of trouble to me."

Neither H&O Comics nor Pirape brought any legal challenge to the seizure of their materials. Denis Leblanc, who heads operations and inventory for Priape Inc., declined to go on record for this article. In a prepared statement, Leblanc wrote in an email, "All I can and will say is that this issue is still open and ongoing." Priape owner Bernard Rousseau has stated elsewhere that the company decided not to protest the incident because the Josman comics depict incest and young men.

Targeting Gay Material
Gomorrahy is a non-profit, educational website concerning censorship in Canada which provides a comprehensive, watchdog's eye view of custom's policies and activities. At, you can access the CBSA's Quarterly List of Admissible and Prohibited Titles, which includes books, magazines, comics and DVDs.

A cursory glace of their July through September 2007 list reveals that importation of the DVD title 5 Guy Cream Pie: 29 is admissible, but Barebackin' Brothers! Director's Edition is prohibited.

Referring to the Little Sisters case, Dixon insisted that there was "no question it was targeted because it was gay instead of straight." Dixon, who served as a senior Advisor to the minister of justice and attorney general of Canada, saw first-hand CBSA's seizure of anything that showed full male penetration. Ontario courts Ontario deemed these materials not obscene.

Even the attorney general told her customs colleagues they were illegally seizing material. The AG was told that customs will continue to seize it and they don't give a damn, according to Dixon.

"That was astonishing," he added. "There's no other way to characterize it other than homophobic." So Canadian gay material is at the mercy of low-level customs officials. The subsequent court case could drag on for years, pitting resources of a small publisher in another country against the full might of the national Canadian government.

Right now, in fact, BCLA is involved with a Meatman, an art comic book depicts homosexual rape. BCLA contends that these images are theatrical and offered in the context of art. "The particular books are high-end glossy comics," Dixon noted. "Our position is, look, for every minute they spend doing it, they spend nine anticipating. Nine-tenths of the sexual activity of human beings is spent in their heads. The freedom to communicate with each other about what we think about is essential; so to prohibit a fantastic representation of sexual possibilities is an offense to freedom of speech."

That's the position BCLA takes on all representations of S&M, particularly those in book form. "How can it be anything else other than a product of the mind offered for the consideration of other minds?" Dixon asked. "It's not a record of something that happened in the world."

In what is perhaps the height of irony, CCLA tried to present a program of film censorship. In order to show a film in the theaters, it has to clear a censorship board. Borovoy mockingly compared it to nuclear secrets. "You don't have to clear it before you disseminate it," he said. "We were treating sexual material with greater solicitude than nuclear material."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.

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