The ruling all but chokes any possibility of advance funding in future cases, University of Toronto Law Professor Brenda Cossman said. "In order to get advance costs, you have to show that your case is unbelievably, totally special," she said. "If this case wasn't exceptional, I don't know what is.

This was an action involving an unrelenting censor with whom Little Sisters had been battling for 12 years -- and they were operating in defiance of a Supreme Court order," Prof. Cossman said. "If Little Sisters doesn't challenge them, no one will."

For more than a decade Little Sister's has taken on "Big Brother" - in the words of Justice Binnie, the little bookstore on Davie Street "has borne the brunt of the battle on this branch of expression and equality
rights". Today that battle has been lost by Little Sister's - not because Canada Customs has been vindicated,but rather because Little Sister's does not have the financial resources to continue the battle.

The current round of litigation arose from the banning of four books - two comic books and two books by Larry Townsend, a writer well-known in the gay community. Little Sister's appealed the prohibition of these books and in the process of the appeal found evidence of Canada Customs continuing to disproportionately detain gay and lesbian literature (70% of all items seized, as found by Justice Binnie), continuing to ban books that had been central to the Court's findings in Little Sister's #1 (e.g. Macho Sluts by Pat Califia), and that indeed Customs may not be living up to the commitment it made to the Court in Little Sister's #1 - i.e. that it had taken effective measures to remedy the systemic discrimination identified by the Courts in Little Sister's #1.

The outcome of this case means that unless there is a litigant with pockets deep enough to take on Canada Customs, the bureaucracy will continue to determine what Canadians can and cannot read, unscrutinized by public hearings.

Jim Deva, owner of Little Sister's Bookstore, says that this is a very sad day in Canada for free expression, equality rights and access to justice. As noted by Justices Binnie and Fish, after successfully establishing the existence of systemic Charter violations in Little Sister's #1, "the present issue is whether the rights established in that case in principle have (or will) become rights in reality."

"Today's decision denies Little Sister's, and indeed all Canadians, the answer to that important question. That can only be viewed as a setback to the expression rights, equality rights and access to justice for all Canadians."

Joe Arvay, counsel for the bookstore, adds that "all Canadians should be deeply concerned about this erosion of our expression and equality rights and access to justice." Mr. Arvay agrees with the observation of Justice Binnie who, with Justice Fish, dissented from the majority decision. Justice Binnie opined:

"Today four books, tomorrow another four books. Litigation follows litigation until the rational businessperson is forced to throw in the towel. This is how civil liberties can be eroded, little by little, yields in small increments that case by case are not worth the cost of the fight. It takes an unbusinesslike litigation like Little Sister's to elbow aside purely financial considerations ... and carry on what it sees as unfinished Charter business against the government."

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