Scanning the bookshelves of local head shop Kustom Kulture can be both a rewarding and shocking experience – amongst the droves of alternative comics, titles like Footlicker, House Wives at Play and Head jump out at you.

While many are sexually explicit and wildly erotic books, others feature socially relevant depictions of fetishism, sexual frustration and loneliness.

Kustom Kulture is a Winnipeg retail outlet, established in 1995 to emulate a traditional 1970s head shop.

All the comics are a testament to buyer and assistant manager Cass Sikorski’s belief in the viability and diversity of comics as a medium that, she hopes, has garnered a wider readership since she started working at Kustom in 2000.

“You can attract a greater population of readers through the graphic novel format,” said Sikorski, speaking to their market potential.

“I talk to a lot of people who will say ‘I don’t read but I read comics.’”

Prompted by what she characterizes as a “pleasant obsession” with comic books, Sikorski furthered the store’s commitment to the medium by increasing and broadening its stock to include more literary graphic novels. The sales figures for certain titles, she said, especially titles of historical or political relevance, are promising.

There are severe limits on the availability of certain titles, however.

“Raincoast [a Canadian book distributor] pulled all their Fantagraphics [an American publisher] titles just recently without a reason, so now we have to import most of our comics from the States,” Sikorski said.

Fantagraphics simply changed distributors, said a Raincoast customer service representative who requested anonymity. It is common for publishers to change distributors, the representative added.

Kustom imports their comic books to Canada from the United States through United Parcel Service (UPS).

As imported goods, the books are subject to the regulations of the Canadian Border Services Agency (CBSA). The CBSA operates under the Canadian Criminal Code, the Customs Act and the Customs Tariff.

Spokesperson Lauretta Nyhus agreed to comment on the CBSA’s commitment to protecting Canadian citizens.

“We administer 90 different, various acts and legislation…We stop goods and people not allowed into the country and facilitate and help goods and people allowed into the country. That’s our mandate, that’s our job,” she said.

Art or porn?

On Apr. 23, 2008, the CBSA seized four copies of a comic destined for Kustom’s shelves. The comics were seized on the grounds of obscenity, under the subsections of bestiality and necrophilia.

The satirical book was called Boffy the Vampire Layer Meets Britney Spreads!.

A notice of detention was sent to Kustom.

“We’re an established business and I wouldn’t think we’d be singled out [by the CBSA] but at the same time it wouldn’t surprise me,” Sikorski said in an e-mail, hinting that the CBSA is not entirely fair in its seizures.

The materials, according to the detention notice, were prohibited under the Customs Tariff relating to a subsection of the Criminal Code that states: “…any publication a dominant characteristic of which is the undue exploitation of sex or of sex and any one or more of the following…namely, crime, horror, cruelty and violence, shall be deemed obscene.”

The Canadian Charter of Rights and Freedoms protects expressive rights under Section 2 of the constitution. Section 1 of the Charter, however, stipulates that certain rights within the Charter can be overruled if they cannot be justified in a “free and democratic society.” This section prevents hate speech and obscenity by overruling claims of the right to free expression because hate speech and obscenity, in certain cases, are believed to cause harm to society as a whole.

Expressive rights are suspended in the case of border seizures due to Section 1. It is argued the obscene materials cause societal harm, which justifies their seizure by the CBSA.

If Kustom were to make an appeal, they would have to argue that the imported material does not cause societal harm.

Steven Brennan, a Winnipeg-based lawyer, helped put that in context.

“…[An] argument would have to be that it [the comic book] does not fail the community standards test…that it does not unduly exploit sex in a degrading or dehumanizing way, which prevents a risk of harm to society at large,” Brennan said.

The CBSA employs some 13,000 people working across 1,200 border points throughout Canada. Of these border points, 119 are land crossings and 61 operate at all hours.

The size of the CBSA, while considering the prejudices of individual border officials, could raise speculation about the consistency of its decisions.

“Our review process and detention notices address that [problem],” CBSA’s Nyhus said.

Brennan supported this idea.

“Given that there is a specialized unit set up to hear appeals at their first instance I would suggest that it is the attempt of Canada Customs to provide consistency and uniformity,” he said.

While the CBSA has the right to seize materials, any importer has the right to appeal that decision in an attempt to regain possession of the imported items. This, Brennan argues, ensures that the CBSA’s decisions are consistent in that they are subject to reevaluation due to appeals.

“Certainly I would say that where you have a large border patrol workforce…the very justification for setting up a mechanism for appeal or a tribunal is the attempt to be consistent,” Brennan added.

The CBSA’s appeal process remains simple for small importers. After 30 days of the initial detention of the material, the CBSA informs the importer of their decision. If the material is prohibited, the importer can file a written request within 90 days to the Prohibited Importations Unit of the CBSA.

Kustom Kulture did not file an appeal and all four copies of Boffy the Vampire Layer Meets Britney Spreads! were destroyed.

“I lost my shit,” Sikorski said. “When I got the notice in the mail from the Canada Border Services Agency… [I thought] censorship! Homophobia! There were…book titles being held and I contacted our brokers right away to get as much information as I could to prep myself.”

A broker mediates between buyers and sellers, usually through a brokerage agency.

“The brokers implied that we’d pretty much be shit out of luck…the value on those [comics] was low and a minimal loss to us so I had to let it go,” she said.

Sikorski was unable to comment on her brokers directly or on their advice.

For the CBSA, the law is cut and dry.

“It is the responsibility of the importer to appeal within the designated time and we [the CBSA] have the responsibility to inform them of our decisions within a reasonable time,” Nyhus said. “It is also the responsibility of the importer to know the law before importing.”

Who decides?

Although the appeals process is free and easy, the onus is placed on the importer to disprove obscenity rather than on the CBSA to prove the material is, in fact, obscene. The material, in effect, is assumed guilty.

If the importer fails the appeal with the CBSA and pursues litigation in court, the burden of proof shifts back to the government but the process is much more expensive and much more difficult for the importer.

“It is always expensive to litigate against the government,” Brennan said. “Effectively, private parties are going up against the limitless resources of the Canadian public [which is] never an easy fight.”

Currently, if an importer wants to go beyond the internal appeal through the CBSA, up to the level of the courts, the money for that challenge comes out of the importer’s pocket. This, according the Brennan, is a bit of a contradiction.

The government is restricting expressive rights yet if the importer wants to affirm their rights through the courts, they are required to pay all legal fees.

“The larger question,” he added, “is whether there ought to be a government-funded advocate that advances the claim on the government’s purse…to ensure that resources, or the scarcity of resources, don’t become the ultimate reason for any decision.”

The Canadian Court Challenges Program was a federally funded program created in 1978 to heal this contradiction – by advancing and funding large, rights-based claims against the government. Funding for the program, however, was abolished in 2006 by the current Harper government.

Karen Busby is a University of Manitoba law professor and a constitutional law expert and civil liberties activist.

“The Conservative government, by canceling the Court Challenges Program among other things, has restricted the ability of citizens to make complaints and to take forward complicated and expensive cases,” she said.

In 2000, Busby acted as an intervener in the Supreme Court of Canada, defending a queer bookstore against what was viewed as discrimination at the hands of the CBSA. Border officers were charged with deliberately inspecting and seizing B.C.-based Little Sisters Book and Art Emporium’s book shipments under the auspice of obscenity. Little Sisters was defeated at the court level, however.

The B.C. Civil Liberties Association, another intervener in the case, did not respond to requests for an interview.

“Four [out of nine] judges would have struck down the provisions giving Canada Customs the power to exercise border controls…so the Supreme Court was closely split on that issue,” Busby said of the Little Sisters case.

That means that those judges opposed to the seizure of obscene materials by the CBSA required only one more judge to form a majority on that decision.

And rightly so, she argues.

Around the time of the Little Sisters seizures at the British Columbia border – between 1989 and 1992 – just under 35,000 shipments were prohibited under the Customs Tariff. During that time, only 14 charges – not even convictions – were laid under the obscenity provisions in the Criminal Code. This essentially means that censorship trumps criminal conviction.

“So you can see that Canada Customs is a significant censoring force but we don’t know what they do and how they do their work, and that’s problematic,” Busby said.

Enforcement

The subsection of the Criminal Code that allows for border seizures due to obscenity is relevant beyond the limits of the border: Individual stores and Canadian citizens can be charged with obscenity in any province throughout Canada.

“In my view, if Kustom Kulture wants to sell these magazines they should be able to sell them and run the risk of an obscenity charge,” Busby said. “And the reality is they’re not going to be charged under the obscenity provisions in the Criminal Code because those charges are almost nonexistent.”

Sergeant Kerry Baldwin works in the Winnipeg Police Service’s Vice Unit.

“We’re not the book police,” he said. “The difficulty is with the definition of obscenity… It is a difficult definition to wrestle with and that makes it a problem of enforcement.”

Baldwin said a complaint must be made to police and that they obviously don’t have police searching stores looking for obscene materials within the borders of Canada.

“Some of it comes down to exposure; to enforce obscenity requires a complaint.”

Busby argues that importers like Kustom Kulture are not being officially charged by the CBSA but are being censored without knowing the internal workings of border security. They are also not provided with the resources to challenge the government up to the level of the courts. Without government support, their rights are being trampled, she said.

Cass Sikorski, with her near-encyclopedic knowledge and undying love for alternative comics, has a lot to say about the importance of the medium.

She believes they are an inexorable source of education and interest.

“…People know now that they can read history in a form that’s more accessible,” she said.

Most importantly, however, is what comics – as with all art forms – provide for the reader.

“The most important thing is the pleasure you get from it.”

Published in Volume 63, Number 24 of The Uniter (March 19, 2009)