A lazy drive home from a weekend auto show turned into a stomach-churning experience at the Canada-US border for an Ottawa couple.
It was a sunny Monday afternoon, Jun 16. Rick Frenette and his partner Shawn were returning from Gettysburg, Pennsylvania, snaking through the Eastern US to the border at the Thousand Islands, near Kingston.
Both avid car buffs, they were towing their latest project, a vintage Bricklin, home. But a problem with the car's paperwork led Canada Border Service Agency (CBSA) officers to pull the pair in for an extra inspection.
"We didn't think there would be anything other than the normal questions, but there was," Rick says. "They went through our entire truck. They did not go through our toiletries, which we were surprised about, but they opened up the laptop, and I guess one of the icons said 'porn' on it."
While the gay men watched, a CBSA agent sat in their truck and poked through the contents of the laptop. When he ran into locked material, he got the passwords from them.
Rick and Shawn say that, in retrospect, it was a slapdash search. The laptop was combed, but not their cell phones, Shawn's Blackberry, or the loose burned CDs in the truck's glove compartment.
The CBSA officers went into their office. Time ticked by as Rick and Shawn pondered what to do next.
About an hour later, a CBSA officer came back with bad news.
"He came back and said 'We're going to have to confiscate the laptop.' I asked why. He said it had 'questionable material,'" says Rick.
The "questionable material" was gay porn. In particular, the CBSA officer pointed to a video that showed light watersports. The pair's video collection wasn't any more racy than the videos you can buy at porn shops in Canada, they say.
Among the movies on their laptop were home videos of the couple having sex.
According to those close to the CBSA, it not an uncommon story. And as the Supreme Court of Canada has pointed out in the Little Sister's bookstore case, porn that would be perfectly legal to make, sell and possess in Canada is often stopped at the border. Academic papers, fictions, letters and correspondence, bootlicking pictures, family photos — it can all get you in trouble.
Joe Arvay, the lead lawyer in the Little Sister's case, said in 2006 that up to 70 percent of porn seized by the CBSA is gay or lesbian material.
A trip to the US is normal weekend fare for Rick and Shawn, and they say they've never had trouble with the border guards before. But now they want to spread the word to other gays and lesbians to leave their laptops at home when they're travelling.
"Mostly, we want to let people know they shouldn't have any pornographic material, period," says Rick. "It's just a pissoff. People aren't aware of it."
Jim Deva thinks that it's more than just a pissoff. He spent 20 years before the courts fighting for Little Sister's Bookstore to be able to import gay and lesbian erotica.
"How is that going to protect us or keep us safe? What a waste of manpower! What a waste of the security state! Shouldn't they be looking for knives and guns? Wouldn't that be a better use of their time?" says Deva.
Deva and the other staff at Little Sister's have become lightning rods for anecdotal complaints about the CBSA. He says most people don't fight the seizures because they're afraid of the consequences, often abandoning their computers with agency staff.
"You don't want your name flagged when you cross the border. It is a major inconvenience. It's not just that you'd lose your laptop, it's that you can't fly into or connect in any American airports without a lot of hassle and so people ask themselves if it's worth it," he says.
He says that Rick and Shawn's case is a typical example of overreach. Pornography isn't illegal to buy, own or make in Canada, and importing the material isn't illegal either. Historically, the CBSA has taken issue with both watersports and fisting, but both are theoretically okay.
"They have no legal right to keep either of those," says Deva. "There is nothing wrong with watersports, it's not an obscene activity. It's something that lots of gay couples participate in. And fisting — our court case 10 years ago proved that fisting is not an obscene activity."
"The whole thing is insane. So as long as the border services agency can keep it quiet, they can keep doing it."