Chapter VI
Last updated : 22/01/01
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Chapter VI
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CHAPTER VI
OBSCENITY AND PORNOGRAPHY
A. INTRODUCTION VI-2
B. SEXUAL EXPRESSION AND THE CHARTER VI-3
R. v. Butler VI-3 R. v. Hawkins VI-19 R. v. Mara VI-22 Gender-based harm VI-29
C. CHILD PORNOGRAPHY VI-33
Re Eli Langer VI-33
D. CUSTOMS VI-48
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) VI-48
E. THE FIRST AMENDMENT VI-66
Roth v. United States VI-66 American Booksellers Association v. Hudnut VI-71 Skyywalker Records Inc. v. Navarro VI-74 A. INTRODUCTION
Prior to the Charter, the Criminal Code prohibited sexually explicit material that offended moral values. Before the 1959 amendment, the statutory provision defined obscenity in general terms, as material which tended to corrupt morals. Section 159(8) (now s.163(8)) prohibits the "undue exploitation of sex", including sex in combination with violence, crime, horror or cruelty.
Over the years, a body of doctrine evolved around Athe undue exploitation of sex@. The concept of "community standards" test and an artistic defence, or "internal necessities" test were key elements of that doctrine. However, as Sopinka J. explains in R. v. Butler, the relationship between these tests was unclear.
The Charter's entrenchment of freedom of expression raised difficult questions about the constitutional status of sexually explicit material. To what degree and in what ways would the pre-existing doctrine have to be modified to comply with s.2(b)'s guarantee? What difference would the Charter make, if any?
The Charter posed a number of interpretive problems. For example, where did pre-existing doctrinal concepts, such as the community standards test fit into the Charter=s structureCunder s.2(b) or s.1? In more fundamental terms, how could a concept which reinforces majoritarian sexual morals be reconciled with Irwin Toy=s declaration of freedom for all repression, no matter how repugnant?
The Supreme Court of Canada addressed the constitutional status of s.163(8) for the first time in R. v. Butler, [1992] 1 S.C.R. 452. In the meantime, a number of lower court decisions held that s.163(8) is a reasonable limitation on expressive freedom. In doing so, the jurisprudence expanded the scope of s.163(8) by including degrading or dehumanizing materials in its definition of undue exploitation.
This Chapter begins with Butler and its progeny, including Tremblay, Hawkins, and Mara. From there it considers the relationship between sex and harm: In what ways is sexually explicit material harmful? Is it inherently harmful to women? or children? What, then, is the status of same sex material; is it harmful by analogy to other explicit materials, or should it be considered harmless?
Further sections consider Canada=s child pornography legislation in the context of artist Eli Langer=s prosecution, and the treatment of same-sex materials at customs, in the Little Sisters case. For purposes of comparison a few selections from the First Amendment are included. B. SEXUAL EXPRESSION AND THE CHARTER
R. v. Butler [1992] 1 S.C.R. 452
[In August 1987, the appellant, Donald Victor Butler, opened the Avenue Video Boutique located in Winnipeg, Manitoba. The shop sells and rents "hard core" videotapes and magazines as well as sexual paraphernalia....Twice the police entered the premises with a search warrant and seized inventory; the accused was indicted and charged on 250 counts. The trial judge convicted on 8 and acquitted the accused on the rest; the appellate court reversed and entered convictions on all charges. Section 163(8) of the Criminal Code reads:
Sopinka J.
Parliament's first attempt to criminalize obscenity was in s. 179 of the Criminal Code, [1892], which provided in part as follows:
The notion of obscenity embodied in these provisions was based on the test formulated by Cockburn C.J. in R. v. Hicklin (1868),L.R. 3 Q.B. 360:
The focus on the "corruption of morals" in the earlier legislation grew out of the English obscenity law which made the court the "guardian of public morals"....
The current provision, which is the subject of this appeal, entered into force in 1959.... B. Judicial Interpretation of s. 163(8)
The first case to consider the current provision was Brodie v. The Queen, [1962] S.C.R. 681. The majority of this Court found in that case that D. H. Lawrence's novel, Lady Chatterley's Lover, was not obscene within the meaning of the Code. The Brodie case lay the groundwork for the interpretation of s. 163(8) by setting out the principal tests which should govern the determination of what is obscene.... The first step was to discard the Hicklin test.
(a) Section 163(8) to be Exclusive Test
...[I]t is now beyond dispute that s. 163(8) provides the exhaustive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic and that the common law test of obscenity found in the Hicklin decision is no longer applicable.
(b) Tests of "Undue Exploitation of Sex"
In order for the work or material to qualify as "obscene", the exploitation of sex must not only be its dominant characteristic, but such exploitation must be "undue". In determining when the exploitation of sex will be considered "undue", the courts have attempted to formulate workable tests. The most important of these is the "community standard of tolerance" test.
(i) "Community Standard of Tolerance" Test
The community standards test has been the subject of extensive judicial analysis. It is the standards of the community as a whole which must be considered and not the standards of a small segment of that community.... The standard to be applied is a national one []. With respect to expert evidence, it is not necessary and is not a fact which the Crown is obliged to prove as part of its case []....
Our Court was called upon to elaborate the community standards test in Towne Cinema Theatres Ltd. v. The Queen,[1985] 1 S.C.R. 494. Dickson C.J. reviewed the case law and found:
Therefore, the community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to... (ii) "Degradation or Dehumanization" Test
There has been a growing recognition in recent cases that material which may be said to exploit sex in a "degrading or dehumanizing" manner will necessarily fail the community standards test....
Among other things, degrading or dehumanizing materials place women (and sometimes men) in positions of subordination, servile submission or humiliation. They run against the principles of equality and dignity of all human beings. In the appreciation of whether material is degrading or dehumanizing, the appearance of consent is not necessarily determinative. Consent cannot save materials that otherwise contain degrading or dehumanizing scenes. Sometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing.
This type of material would, apparently, fail the community standards test not because it offends against morals but because it is perceived by public opinion to be harmful to society, particularly to women. While the accuracy of this perception is not susceptible of exact proof, there is a substantial body of opinion that holds that the portrayal of persons being subjected to degrading or dehumanizing sexual treatment results in harm, particularly to women and therefore to society as a whole. [].
... It would be reasonable to conclude that there is an appreciable risk of harm to society in the portrayal of such material....
In Towne Cinema, Dickson C.J. [observed]... that the community might tolerate some forms of exploitation that caused harm that were nevertheless undue....
In the reasons of Wilson J. concurring in the result, the line between the mere portrayal of sex and the dehumanization of people is drawn by the "undueness" concept. The community is the arbiter as to what is harmful to it.... (iii) "Internal Necessities Test" or "Artistic Defence"
In determining whether the exploitation of sex is"undue", Judson J. set out the test of "internal necessities" in Brodie, supra:
As counsel for the Crown pointed out ..., the artistic defence is the last step in the analysis of whether the exploitation of sex is undue. Even material which by itself offends community standards will not be considered "undue", if it is required for the serious treatment of a theme.... To determine whether a dominant characteristic of the film is the undue exploitation of sex ... the courts must have regard to various things - the author's artistic purpose, the manner in which he or she has portrayed and developed the story, the depiction and interplay of character and the creation of visual effect through skillful camera techniques [] ....
Accordingly, the "internal necessities" test, or what has been referred to as the "artistic defence", has been interpreted to assess whether the exploitation of sex has a justifiable role in advancing the plot or the theme, and in considering the work as a whole, does not merely represent "dirt for dirt's sake" but has a legitimate role when measured by the internal necessities of the work itself.
(iv) The relationship of the tests to each other
This review of jurisprudence shows that it fails to specify the relationship of the tests one to another. Failure to do so with respect to the community standards test and the degrading or dehumanizing test, for example, raises a serious question as to the basis on which the community acts in determining whether the impugned material will be tolerated. With both these tests being applied to the same material and apparently independently, we do not know whether the community found the material to be intolerable because it was degrading or dehumanizing, because it offended against morals or on some other basis. In some circumstances a finding that the material is tolerable can be over-ruled by the conclusion by the court that it causes harm and is therefore undue. Moreover, is the internal necessities test dominant so that it will redeem material that would otherwise be undue or is it just one factor? Is this test applied by the community or is it determined by the court without regard for the community? This hiatus in the jurisprudence has left the legislation open to attack on the ground of vagueness and uncertainty. That attack is made in this case. This lacuna in the interpretation of the legislation must, if possible, be filled before subjecting the legislation to Charter scrutiny. ... Pornography can be usefully divided into three categories: (1) explicit sex with violence, (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing, and (3) explicit sex without violence that is neither degrading nor dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence. Relating these three categories to the terms of s. 163(8) of the Code, the first, explicit sex coupled with violence, is expressly mentioned. Sex coupled with crime, horror or cruelty will sometimes involve violence. Cruelty, for instance, will usually do so. But, even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category. As for category (3), subject to the exception referred to below, it is not covered.
Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre. Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading or dehumanizing.[] Because this is not a matter that is susceptible of proof in the traditional way and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex. That arbiter is the community as a whole.
The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. The inference may be drawn from the material itself or from the material and other evidence. Similarly evidence as to the community standards is desirable but not essential.
In making this determination with respect to the three categories of pornography referred to above, the portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
If material is not obscene under this framework, it does not become so by reason of the person to whom it is or may be shown or exposed nor by reason of the place or manner in which it is shown. The availability of sexually explicit materials in theatres and other public places is subject to regulation by competent provincial legislation. Typically such legislation imposes restrictions on the material available to children. []
The foregoing deals with the inter-relationship of the "community standards test" and "the degrading or dehumanizing" test. How does the "internal necessities" test fit into this scheme? The need to apply this test only arises if a work contains sexually explicit material that by itself would constitute the undue exploitation of sex. The portrayal of sex must then be viewed in context to determine whether that is the dominant theme of the work as a whole. Put another way, is undue exploitation of sex the main object of the work or is this portrayal of sex essential to a wider artistic, literary, or other similar purpose?... The court must determine whether the sexually explicit material when viewed in the context of the whole work would be tolerated by the community as a whole. Artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression.
C. Does s. 163 Violate s. 2(b) of the Charter?
The majority of the Court of Appeal [found] that s. 163 does not violate freedom of expression as guaranteed under s. 2(b) of the Charter....
In my view, the majority of the Manitoba Court of Appeal erred in several respects in its application of the test enunciated in Irwin Toy. First, Huband J.A. misinterpreted the distinction between purely physical activity and activity having expressive content.... The subject matter of the materials in this case is clearly "physical", but this does not mean that the materials do not convey or attempt to convey meaning such that they are without expressive content....
Second, the majority of the Court of Appeal erred in failing to properly draw the distinction between the content of the materials and the form of expression.... The form of activity in this case is the medium through which the meaning sought to be conveyed is expressed, namely, the film, magazine, written matter, or sexual gadget. There is nothing inherently violent in the vehicle of expression, and it accordingly does not fall outside the protected sphere of activity.
... In Keegstra, we were unanimous in advocating a generous approach to the protection afforded by s. 2(b).... Our Court confirmed the view ... that activities cannot be excluded from the scope of the guaranteed freedom on the basis of the content or meaning being conveyed....
With respect, the majority of the Court of Appeal did not sufficiently distance itself from the content of the materials. In assessing the purpose of the legislation, the majority stated:
Meaning sought to be expressed need not be "redeeming" in the eyes of the court to merit the protection of s. 2(b)whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure.
In this case, both the purpose and effect of s. 163 is specifically to restrict the communication of certain types of materials based on their content. In my view, there is no doubt that s. 163 seeks to prohibit certain types of expressive activity and thereby infringes s. 2(b)....
Before turning to consider whether this infringement is justified...,I wish to address the argument...that in applying s. 2(b), a distinction should be made between films and written works. It is argued that by its very nature, the medium of the written word is such that it is, when used, inherently an attempt to convey meaning. In contrast,... the medium of film can be used for a purpose "not significantly communicative"....
In my view, this submission cannot be maintained.... First, I cannot agree with the premise that purely physical activity, such as sexual activity, cannot be expression. Second, in creating a film, regardless of its content, the maker of the film is consciously choosing the particular images which together constitute the film. In choosing his or her images, the creator of the film is attempting to convey some meaning. The meaning to be ascribed to the work cannot be measured by the reaction of the audience, which, in some cases, may amount to no more than physical arousal or shock. Rather, the meaning of the work derives from the fact that it has been intentionally created by its author. To use an example, it may very well be said that a blank wall in itself conveys no meaning. However, if one deliberately chooses to capture that image by the medium of film, the work necessarily has some meaning for its author and thereby constitutes expression. The same would apply to the depiction of persons engaged in purely sexual activity....
D. Is s. 163 Justified Under s. 1 of the Charter?
(a) Is s. 163 a Limit Prescribed by Law?
The appellant argues that the provision is so vague that it is impossible to apply it. Vagueness must be considered in relation to two issues in this appeal: (1) is the law so vague that it does not qualify as "a limit prescribed by law"; and (2)is it so imprecise that it is not a reasonable limit. Dealing with (1), the test is whether the law "is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools" (Osborne v. Canada (Treasury Board) [] . Put another way, does the law provide "an intelligible standard according to which the judiciary must do its work" [].
In assessing whether s. 163(8) prescribes an intelligible standard, consideration must be given to the manner in which the provision has been judicially interpreted.... Standards which escape precise technical definition, such as "undue", are an inevitable part of the law. The Criminal Code contains other such standards. Without commenting on their constitutional validity, I note that the terms "indecent", "immoral" or "scurrilous", found in ss. 167, 168,173 and 175, are nowhere defined in the Code. It is within the role of the judiciary to attempt to interpret these terms. If such interpretation yields an intelligible standard, the threshold test for the application of s. 1 is met. In my opinion, the interpretation of s. 163(8) in prior judgments which I have reviewed, as supplemented by these reasons, provides an intelligible standard. (b) Objective
... The obscenity legislation and jurisprudence prior to the enactment of s. 163 were evidently concerned with prohibiting the "immoral influences" of obscene publications and safeguarding the morals of individuals into whose hands such works could fall.... In this sense, its dominant, if not exclusive, purpose was to advance a particular conception of morality. Any deviation from such morality was considered to be inherently undesirable, independently of any harm to society....
I agree with Twaddle J.A. of the Court of Appeal that this particular objective is no longer defensible in view of the Charter. To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract.... The prevention of "dirt for dirt's sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter.
On the other hand, I cannot agree with the suggestion of the appellant that Parliament does not have the right to legislate on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society....
As the respondent and many of the interveners have pointed out, much of the criminal law is based on moral conceptions of right and wrong and the mere fact that a law is grounded in morality does not automatically render it illegitimate. In this regard, criminalizing the proliferation of materials which undermine another basic Charter right may indeed be a legitimate objective.
In my view, however, the overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society....
The harm was described in the following way in the Report on Pornography by the Standing Committee on Justice and Legal Affairs (MacGuigan Report) (1978):
The appellant argues that to accept the objective of the provision as being related to the harm associated with obscenity would be to adopt the "shifting purpose" doctrine explicitly rejected in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. This Court concluded in that case that a finding that the Lord's Day Act has a secular purpose was not possible given that its religious purpose, in compelling sabbatical observance, has been long-established and consistently maintained by the courts....
I do not agree that to identify the objective of the impugned legislation as the prevention of harm to society, one must resort to the "shifting purpose" doctrine. First, the notions of moral corruption and harm to society are not distinct, as the appellant suggests, but are inextricably linked. It is moral corruption of a certain kind which leads to the detrimental effect on society. Second, and more importantly, I am of the view that with the enactment of s. 163, Parliament explicitly sought to address the harms which are linked to certain types of obscene materials. The prohibition of such materials was based on a belief that they had a detrimental impact on individuals exposed to them and consequently on society as a whole. Our understanding of the harms caused by these materials has developed considerably since that time; however this does not detract from the fact that the purpose of this legislation remains, as it was in 1959, the protection of society from harms caused by the exposure to obscene materials. In this regard, I lend support to the analysis of Charron Dist. Ct. J. in R. v. Fringe Product Inc.:
A permissible shift in emphasis was built into the legislation when, as interpreted by the courts, it adopted the community standards test. Community standards as to what is harmful have changed since 1959.
This being the objective, is it pressing and substantial? Does the prevention of the harm associated with the dissemination of certain obscene materials constitute a sufficiently pressing and substantial concern to warrant a restriction on the freedom of expression? In this regard, it should be recalled that in Keegstra this Court unanimously accepted that the prevention of the influence of hate propaganda on society at large was a legitimate objective....
This Court recognized [in Keegstra] that the harm caused by the proliferation of materials which seriously offend the values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression. In my view, the harm sought to be avoided in the case of the dissemination of obscene materials is similar. In the words of Nemetz C.J.B.C. in R. v. Red Hot Video Ltd. (1985),45 C.R. (3d) 36 (B.C.C.A.), there is a growing concern that the exploitation of women and children, depicted in publications and films can, in certain circumstances, lead to "abject and servile victimization" []. As Anderson J.A. also noted in that same case, if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material. Materials portraying women as a class as objects for sexual exploitation and abuse have a negative impact on "the individual's sense of self-worth and acceptance".
In reaching the conclusion that legislation proscribing obscenity is a valid objective which justifies some encroachment of the right to freedom of expression, I am persuaded in part that such legislation may be found in most free and democratic societies....
The advent of the Charter did not have the effect of dramatically depriving Parliament of a power which it has historically enjoyed.... The enactment of the impugned provision is also consistent with Canada's international obligations.... Finally, it should be noted that the burgeoning pornography industry renders the concern even more pressing and substantial than when the impugned provisions were first enacted. I would therefore conclude that the objective of avoiding the harm associated with the dissemination of pornography in this case is sufficiently pressing and substantial to warrant some restriction on full exercise of the right to freedom of expression. The analysis of whether the measure is proportional to the objective must, in my view, be undertaken in light of the conclusion that the objective of the impugned section is valid only insofar as it relates to the harm to society associated with obscene materials. Indeed, the section as interpreted in previous decisions and in these reasons is fully consistent with that objective. The objective of maintaining conventional standards of propriety, independently of any harm to society, is no longer justified in light of the values of individual liberty which underlie the Charter....
(c) Proportionality
(i) General
... In assessing whether the proportionality test is met, it is important to keep in mind the nature of expression which has been infringed....
The values which underlie the protection of freedom of expression relate to the search for truth, participation in the political process, and individual self-fulfilment. The Attorney General for Ontario argues that of these, only "individual self-fulfilment", and only in its most base aspect, that of physical arousal, is engaged by pornography. On the other hand, the civil liberties groups argue that pornography forces us to question conventional notions of sexuality and thereby launches us into an inherently political discourse....
A proper application of the test should not suppress ... "good pornography". The objective of the impugned provision is not to inhibit the celebration of human sexuality. However, [the realities of the pornography industry cannot be ignored]. Shannon J., in R. v. Wagner, [], described the materials more accurately when he observed:
In my view, the kind of expression which is sought to be advanced does not stand on equal footing with other kinds of expression which directly engage the "core" of the of freedom of expression values.
This conclusion is further buttressed by the fact that the targeted material is expression which is motivated, in the overwhelming majority of cases, by economic profit....
(ii) Rational Connection
The message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda. As the Attorney General of Ontario has argued in its factum, obscenity wields the power to wreak social damage in that a significant portion of the population is humiliated by its gross misrepresentations.
Accordingly, the rational link between s. 163 and the objective of Parliament relates to the actual causal relationship between obscenity and the risk of harm to society at large. On this point, it is clear that the literature of the social sciences remains subject to controversy....
While a direct link between obscenity and harm to society may be difficult, if not impossible, to establish, it is reasonable to presume that exposure to images bears a causal relationship to changes in attitudes and beliefs....
In the face of inconclusive social science evidence, the approach adopted by our Court in Irwin Toy is instructive. In that case, the basis for the legislation was that television advertising directed at young children is per se manipulative. The Court made it clear that in choosing its mode of intervention, it is sufficient that Parliament had a reasonable basis....
Similarly, in Keegstra, the absence of proof of a causative link between hate propaganda and hatred of an identifiable group was discounted as a determinative factor in assessing the constitutionality of the hate literature provisions of the Criminal Code....
I am in agreement with Twaddle J.A. who expressed the view that Parliament was entitled to have a "reasoned apprehension of harm" resulting from the desensitization of individuals exposed to materials which depict violence, cruelty, and dehumanization in sexual relations.
Accordingly, I am of the view that there is a sufficiently rational link between the criminal sanction, which demonstrates our community's disapproval of the dissemination of materials which potentially victimize women and which restricts the negative influence which such materials have on changes in attitudes and behaviour, and the objective.
Finally, I wish to distinguish this case from Keegstra, in which the minority adopted the view that there was no rational connection between the criminalization of hate propaganda and its suppression. As McLachlin J. noted, prosecutions under the Criminal Code for racist expression have attracted extensive media coverage. The criminal process confers on the accused publicity for his or her causes and succeeds even in generating sympathy. The same cannot be said of the kinds of expression sought to be suppressed in the present case. The general availability of the subject materials and the rampant pornography industry are such that, in the words of Dickson C.J. in Keegstra, "pornography is not dignified by its suppression". In contrast to the hate-monger who may succeed, by the sudden media attention, in gaining an audience, the prohibition of obscene materials does nothing to promote the pornographer's cause.
(iii) Minimal Impairment
In determining whether less intrusive legislation may be imagined, this Court stressed in the Prostitution Reference,[], that it is not necessary that the legislative scheme be the "perfect" scheme, but that it be appropriately tailored in the context of the infringed right []. Furthermore, in Irwin Toy, Dickson C.J., Lamer and Wilson JJ. stated:
There are several factors which contribute to the finding that the provision minimally impairs the freedom which is infringed.
First, the impugned provision does not proscribe sexually explicit erotica without violence that is not degrading or dehumanizing. It is designed to catch material that creates a risk of harm to society. It might be suggested that proof of actual harm should be required. ...[I]t is sufficient...in this regard for Parliament to have a reasonable basis for concluding that harm will result and this requirement does not demand actual proof of harm.
Second, materials which have scientific, artistic or literary merit are not captured by the provision. As discussed above, the court must be generous in its application of the "artistic defence".... The existence of an accompanying economic motive does not, of itself, deprive a work of significance as an example of individual artistic or self-fulfilment.
Third, in considering whether the provision minimally impairs the freedom in question, it is legitimate for the court to take into account Parliament's past abortive attempts to replace the definition with one that is more explicit. In Irwin Toy, our Court recognized that it is legitimate to take into account the fact that earlier laws and proposed alternatives were thought to be less effective than the legislation that is presently being challenged. The attempt to provide exhaustive instances of obscenity has been shown to be destined to fail []. It seems that the only practicable alternative is to strive towards a more abstract definition of obscenity which is contextually sensitive and responsive to progress in the knowledge and understanding of the phenomenon to which the legislation is directed. In my view, the standard of "undue exploitation" is therefore appropriate. The intractable nature of the problem and the impossibility of precisely defining a notion which is inherently elusive makes the possibility of a more explicit provision remote. In this light, it is appropriate to question whether, and at what cost, greater legislative precision can be demanded.
Fourth, while the discussion in this appeal has been limited to the definition portion of s. 163, I would note that the impugned section, with the possible exception of subs. 1 which is not in issue here, has been held by this Court not to extend its reach to the private use or viewing of obscene materials....
Accordingly, it is only the public distribution and exhibition of obscene materials which is in issue here.
Finally, I wish to address the arguments of the interveners, ... that the objectives of this kind of legislation may be met by alternative, less intrusive measures. First, it is submitted that reasonable time, manner and place restrictions would be preferable to outright prohibition. I am of the view that this argument should be rejected. Once it has been established that the objective is the avoidance of harm caused by the degradation which many women feel as "victims" of the message of obscenity, and of the negative impact exposure to such material has on perceptions and attitudes towards women, it is untenable to argue that these harms could be avoided by placing restrictions on access to such material. Making the materials more difficult to obtain by increasing their cost and reducing their availability does not achieve the same objective. Once Parliament has reasonably concluded that certain acts are harmful to certain groups in society and to society in general, it would be inconsistent, if not hypocritical, to argue that such acts could be committed in more restrictive conditions. The harm sought to be avoided would remain the same in either case.
It is also submitted that there are more effective techniques to promote the objectives of Parliament. For example, if pornography is seen as encouraging violence against women, there are certain activities which discourage it -counselling rape victims to charge their assailants, provision of shelter and assistance for battered women, campaigns for laws against discrimination on the grounds of sex, education to increase the sensitivity of law enforcement agencies and other governmental authorities....
It is noteworthy that many of the above suggested alternatives are in the form of responses to the harm engendered by negative attitudes against women. The role of the impugned provision is to control the dissemination of the very images that contribute to such attitudes. Moreover, it is true that there are additional measures which could alleviate the problem of violence against women. However, given the gravity of the harm, and the threat to the values at stake, I do not believe that the measure chosen by Parliament is equalled by the alternatives which have been suggested. Education, too, may offer a means of combating negative attitudes to women, just as it is currently used as a means of addressing other problems dealt with in the Code. However, there is no reason to rely on education alone.... Serious social problems such as violence against women require multi-pronged approaches by government. Education and legislation are not alternatives but complements in addressing such problems. There is nothing in the Charter which requires Parliament to choose between such complementary measures.
(iv) Balance Between Effects of Limiting Measures and Legislative Objective
The final question to be answered in the proportionality test is whether the effects of the law so severely trench on a protected right that the legislative objective is outweighed by the infringement. The infringement on freedom of expression is confined to a measure designed to prohibit the distribution of sexually explicit materials accompanied by violence, and those without violence that are degrading or dehumanizing. As I have already concluded, this kind of expression lies far from the core of the guarantee of freedom of expression. It appeals only to the most base aspect of individual fulfilment, and it is primarily economically motivated.
The objective of the legislation, on the other hand, is of fundamental importance in a free and democratic society. It is aimed at avoiding harm, which Parliament has reasonably concluded will be caused directly or indirectly, to individuals, groups such as women and children, and consequently to society as a whole, by the distribution of these materials. It thus seeks to enhance respect for all members of society, and non-violence and equality in their relations with each other....
[The appeal was allowed and a new trial directed on all charges under the Butler test.]
Gonthier J. (L'Heureux - Dubé J. concurring)
[Gonthier did not agree that Sopinka J.'s third category of sexually explicit materials would escape the application of s. 163 (8).]
...Obscene materials ... convey a distorted image of human sexuality, by making public and open elements of the human nature which are usually hidden behind a veil of modesty and privacy. [T]hese materials do not reflect the richness of human sexuality, but rather turn it into pure animality ....
This distorted image of human sexuality often comprises violence, cruelty, infliction of pain, humiliation, among other elements of the pornographic imagery. Not only are these materials often evidence of the commission of reprehensible actions in their making, but their representation conjures the possibility of behavioural influences. In a marketplace of ideas ... pornographic imagery is there for the taking.... Attitudinal changes in these takers, because of exposure to pornographic materials, may lead to abuse and harm....
The manner of representation, of public suggestion, can greatly contribute to the deformation of sexuality, through the loss of its humanity. Even if the content is not as such objectionable ..., the manner in which the material is presented may turn it from innocuous to socially harmful. After all, it is the element of representation that gives this material its power of suggestion, and it seems quite conceivable that this power may cause harm despite the apparent neutrality of the content....
... Let me take, as an example, an explicit portrayal of "plain" sexual intercourse, where two individuals are making love. This falls within the third category of Sopinka J. If found in words in a book, it is unlikely to be of much concern.... If found depicted in a magazine or in a movie, the likelihood of harm increases but remains low. If found on a poster, it is already more troublesome. If found on a billboard sign, then I would venture that it may well be an undue exploitation of sex, because the community does not tolerate it, on the basis of its harmfulness.
The harmfulness, in the billboard sign example, would come from the immediacy of the representation, inasmuch as the sign stands all by itself (as opposed to a passage in a book, a film or a magazine). Its message is at once crude and inescapable. It distorts human sexuality by taking it out of any context whatsoever and projecting it to the public. This example goes to the extreme, of course, but it is meant to show that the element of representation may create a likelihood of harm..., even if the content of the representation as such is not objectionable. ...
For these reasons ... materials falling within Sopinka J.'s third category ... [may] come within the definition of obscene at s. 163(8) of the Code, if their content (child pornography) or their representational element (the manner of representation) is found conducive of harm....
Notes and Questions
1. Consider the structure of Mr. Justice Sopinka's reasons. What is the relationship between his discussion of doctrine and his analysis of the Charter? More specifically, should his interpretation of s.163(8), which enhanced the statutory definition to include materials which are degrading or dehumanizing, also be subject to scrutiny under the Charter? Is a prohibition on degrading and dehumanizing materials problematic?
2. What standard does Butler establish to determine whether sexually explicit materials are obscene? Does the Court establish a sufficient threshold of harm? Is it adequate, under s.1, that the materials could reasonably be expected to cause harm in the form of a negative self-perception on the part of women, as well as in the form of slowing the achievement of gender equality?
3. Note that the court not only reinforced its generous interpretation of section 2(b), but also supported a subjective interpretation of its definition of expressive freedom as "any attempt to convey meaning". In dismissing the argument that pornographic films do not have meaning, Mr. Justice Sopinka held that it is the intent of the speaker, and not any objective assessment of his or her activity, that is determinative. 4. At what stage of the analysis, and to what extent should section 2(b)'s values influence the analysis under section 1? Note that, according to Irwin Toy and Keegstra, expressive freedom values are only considered relevant to the proportionality analysis. However, there those values are invoked, not to enhance the status of the guarantee, but instead, to legitimize a dilution of the Oakes test. Should section 2(b)'s values play a more prominent role in the section 1 analysis? Where in the analysis should they be considered?
5. How does the analysis of Gonthier J. differ from that of Sopinka J? Accepting that Gonthier J. would prohibit some materials in the third category, does he do so pursuant to a different conception of harm?
6. What is the status of same sex materials under Butler? Are they immune, because they do not threaten equality values, or can they be prohibited under Butler's conception of what is degrading and dehumanizing?
7. See also R. v. Tremblay, [1993] 2 S.C.R. 932, allowing an appeal from a conviction for keeping a bawdy-house. At the "Pussy Cat", which is a house, nude dancers would perform for clients in individual cubicles. Although clients were permitted to remove their clothing and masturbation often occurred, the management strictly enforced a "no touching" policy. The court held that the community tolerated sexually suggestive acts performed by naked dancers and the acts of both the clients and the dancers came within the range of this tolerance. Both clients and dancers knew exactly what to expect, consented to the activities and could leave at will. Whether the acts of simulated masturbation or masturbation itself are indecent depends on the circumstances. The lack of physical contact, although not determinative, reduced the likelihood of physical harm being caused to either individual. Equally important, the "no contact" rule ensured that the transmission of infectious sexual diseases was prevented and so increased the level of the community tolerance for the acts at issue. In dissent, Gonthier J. (La Forest J., concurring) held that there was no evidence to support the conclusion that masturbation in a public place meets the standard of community tolerance. The normality of an act in private cannot be directly relied upon in establishing the tolerance of that act in public when, as here, the act is in part defined by its public character. The very qualities of an act which make it normal in private may not make it normal in public, or tolerated. R. v. Hawkins (1993), 15 O.R. (3d) 549 (C.A.)
[Hawkins consolidated various appeals. At trial, two owners of "adult" video stores were convicted (one of which carried videos involving violent acts) and two were acquitted. The Court of Appeal overturned one conviction and upheld two acquittals on the basis that no substantial risk of harm was shown. The court also upheld two convictions on the basis that the material in question was degrading and/or involved violence, necrophilia and vampirism.]
Robins J.A. (Doherty and Austin JJ.A, concurring)
...These films graphically portray... a wide variety of sexually explicit acts, [which are] performed in a context devoid of any loving or affectionate relationship or any plot of meaningful value. Indeed, it is not suggested that... the "artistic defence", can be invoked in any of these cases....The essential question is whether the sort of explicit sex depicted in this genre of videotape film can properly be characterized as "degrading or dehumanizing" and, if so, whether the depiction creates the substantial societal risk of harm required by to constitute it obscene...
[The Crown's position is that] the focus must be on the manner in which sex is treated in the context of the work in question. Degradation may be found in sexually explicit material where, for instance, people are depicted as sexual playthings existing solely for the sexual satisfaction of others, or in subordinate roles in their sexual relationship with others, or in engaging in sexual practices that would, to most people, be considered humiliating. While degrading or dehumanizing pornography differs from violent material in that there is no overt exertion of force, there are other forms of abuse, such as verbal abuse or the portrayal of people as having animal characteristics, that can render material degrading or dehumanizing. This kind of material, the Crown argues, differs from "explicit erotica" where positive and affectionate human sexual interaction between consenting individuals participating on a basis of equality is portrayed.
In the Crown's submission, once sexually explicit material is found to be degrading or dehumanizing, the substantial risk of harm to society required by Butler can be inferred or assumed. By reducing sexual activity to the "merely physical dimension" these films cause "attitudinal harm" in the sense that, among other things, they encourage unrealistic and damaging expectations, "contribute to a process of moral desensitization", and reinforce the view that a primary value of human life is sensual stimulation to the detriment of the values of individual dignity and responsibility.
The Crown's position, in sum, is that videotape films containing explicit non-violent sex between consenting adults as effectively their complete substance are by definition degrading or dehumanizing and fall into the second Butler category. That being so, the argument concludes, it can be inferred that films of this genre create a substantial risk of societal harm. No further evidence is needed to prove the harm. ... In Hawkins, the trial judge found that the film, which was admittedly representative of all of the films in issue, was neither degrading nor dehumanizing nor carried a risk of harm to "the peace, order and well-being of society". His findings in this respect are supported by the evidence, and in particular the evidence of the Ontario Film Review Board's general approval of films of this nature.
... While the board's approval of video films depicting explicit sexual activity between consenting adults without violence, bestiality, necrophilia and the like clearly cannot be determinative of the criminal law of obscenity, or preclude a court from ruling otherwise, it is plainly relevant to the question of community standards of tolerance. ...
What is or is not degrading or dehumanizing and what is or is not harmful are matters to be determined by the standards of the community as a whole. ... The fact that a provincial board, composed of a cross-section of citizens, and acting pursuant to a regulatory mandate, does not now consider films of this kind to be either degrading or dehumanizing... is clearly evidence of contemporary Canadian standards of tolerance that a trial judge must weigh in objectively deciding whether... such films are so out of keeping with prevailing societal mores that Canadians, regardless of how distasteful they personally may find the films, would not allow other Canadians to see them... .
Under the Butler test, not all material depicting adults engaged in sexually explicit acts which are degrading or dehumanizing will be found to be obscene. The material must also create a substantial risk of harm to society.
In determining whether such a risk of harm has been proved, an important distinction should be borne in mind. It is one thing [] to find, in considering [the validity of legislation],that Parliament had a reasonable basis for concluding that harm will result from exposure to material which unduly exploits sex without demonstrating a causal link between the perceived harm and the material sought to be proscribed, and without actual proof of the harm. It is, however, quite another thing to find that the exercise of this constitutionally protected freedom creates the substantial risk of societal harm ... The latter finding must be specific to the individual case and must be made in the context of the evidence adduced at trial and by the application of the accepted criminal law standard of proof to that evidence.
... I cannot accept that Butler compels the conclusion that once the portrayal of sexually explicit acts is found to be degrading or dehumanizing, it necessarily follows that the films are harmful and therefore obscene. In my opinion, it remains open to the court to find that the harm component of the offence has not been established. Just as there is a range of opinion as to what is degrading or dehumanizing, there is a range of opinion as to whether such material causes social harm or the risk of such harm. In some cases, as, for example, in films portraying necrophilia, bondage or bestiality, or sex associated with crime, horror, cruelty, coercion or children, it may be concluded from the contents of the films themselves, without expert or other evidence, that they may predispose persons to act in the antisocial manner contemplated by Butler. In other cases, as, for example, in films in which the participants appear as fully willing participants occupying substantially equal roles in a setting devoid of violence or the other kinds of conducts just noted, the risk of societal harm may not be evident. Further evidence may be required to prove that exposure to the impugned material will create a substantial risk of an identifiable harm that may cause persons to act in a manner inimical to the proper functioning of society. The question is essentially one of degree... . It remains, however, for the Crown, in every case, to prove that the material or type of material in question is such as to cause the harmful effects that constitute an integral element of the offence....
In my opinion, the trial judges in [the cases involving acquittals] cannot be said to have erred....In Hawkins, the Crown adduced no evidence to establish the harmful effects which...can flow from exposure to films of the type in issue. In Ronish, the evidence adduced did not prove ... that social harm could result from exposure to the films. In both cases, the OFRB evidence was that the videos did not constitute a risk of harm to society. This evidence, particularly when unrebutted, can be taken as a significant indication of the community's perception that films of this genre are not incompatible with current standards of tolerance ..., and, moreover, are not substantially harmful.
... The further argument is ... that the trial judge ... required [the Crown] to... prove a direct causal link between a specifically discernable societal harm and the films referred to in the indictment. I would agree that such proof is not required. It is sufficient for the Crown to prove the requisite harm by reference to films of the same genre. However,... I do not think that the trial judge imposed such a burden on the Crown or misdirected himself in this regard....
In [the other appeal], the appellant was convicted [because] [t]he films ... were held to be degrading or dehumanizing because the interaction between the participants was said to be solely physical, devoid of mutual affection, and lacking in any human or personal relationship. ...
...In my opinion, [there is] no evidence from which it can be concluded... that community standards require that sexual activity take place within the context of love, affection, commitment, or emotional involvement. Nor can it be concluded that the depiction of sex outside that context would be perceived by most members of the community as substantially harmful. Indeed, the evidence is quite to the contrary. Apart from the tapes, the testimony of the chair of the OFRB was the only evidence before the court. His testimony, in essence, is that the explicit depiction of human sexuality in a context devoid of any meaningful relationship does not exceed contemporary national community standards of tolerance and, furthermore, is not harmful. Those standards are breached only if the depiction includes violence, subordination or humiliation of men or women, involves the exploitation of children, or is combined with such acts as bondage, sadism, bestiality or necrophilia.
Notes and Questions
1. Does Hawkins clarify Butler? What standard of harm does it establish? Under Hawkins, when can harm be inferred, and when must if be affirmatively established? Are you satisfied with the way the lines are drawn in this case? R. v. Mara [1997] S.C.J. No. 29
Sopinka J.
This appeal concerns the criminal liability of the appellants for allowing an indecent performance... . The trial judge acquitted both appellants, holding that the appellant Mara did not have the requisite criminal intent and that the performances were in any event not indecent []. The Court of Appeal unanimously overturned the acquittals and entered convictions... .
In my view, as a matter of law, the performances in question went beyond community standards of tolerance and were therefore indecent. This conclusion suffices to dismiss the appeal with respect to the appellant East. With respect to the appellant Mara, however, in my view the trial judge made a clear finding of fact that he did not have the requisite mens rea to support a conviction. This finding is not open to appellate review and thus I would allow the appeal with respect to the appellant Mara.
I. Facts
Cheaters Tavern in midtown Toronto was licensed to sell alcoholic beverages and food and presented "adult entertainment". The appellant, Patrick Mara, was the owner and operator of the tavern and the appellant, Allan East, was the manager in charge of entertainment.
Undercover police attended at the tavern on several days in March and April 1991. The officers testified about the adult entertainment being presented. Women performed exotic dances on stage, for which there was no charge. For a fee, the entertainer performed a "table dance" in which she would be nude, save for a long, unbuttoned blouse. The dancer would lower her chest to the patron's face, allowing the patron to suck and lick her breasts. For a larger fee, the dancer performed a "special dance" called a "lap dance". The dancer would sit on the patron's lap with her back to the patron and her bare buttocks on the patron's groin area. The trial judge summarized the sexual activity as follows:
The conduct of each dancer with the customer is clearly detailed in the evidence, and includes: (a) being nude except for wearing an open shirt or blouse; (b) fondling her own breasts, buttocks, thighs and genitals while close to the customer; (c) sitting on a customer's lap and grinding her bare buttocks into his lap; (d) sitting on a customer's lap, reaching into his crotch and apparently masturbating the customer; (e) permitting the customer to touch and fondle her breasts, buttocks, thighs and genitals; (f) permitting the customer to kiss, lick and suck their breasts; (g) permitting what appeared to be cunnilingus.
The appellants were charged with, being the manager or agent or person in charge, allowing an indecent performance to be presented contrary to s. 167(1) of the Criminal Code [which provides]:
IV. Analysis
A. Indecency as a Question of Law Alone
...[B]oth the nature of the inquiry and policy support the conclusion that the application of the community standards test to a given set of facts is a question of law for the purposes of appeal. ...
[T]here is sound policy supporting the conclusion that, at least for the purpose of appellate review, whether a particular performance gives rise to a finding of indecency is a question of law. Towne Cinema confirmed that the "community standards" referred to in obscenity and indecency cases were to be the standards of the Canadian community generally, not the particular community in which the acts took place. That is, there is a national standard. In my view, appellate review is important in ensuring that there is consistency across Canada in the application of a national community standards test. If indecency or obscenity were considered to raise factual matters for the purpose of jurisdiction on appeal, appellate review would be significantly undermined. ...
Whether undisputed facts give rise to a finding of an indecent performance raises a question of law. ...
B. Indecency
...As set out in Tremblay [] the appropriate test to determine indecency is the community standard of tolerance. Dickson C.J. stated in Towne Cinema []:
As discussed above, Butler set out that harm is the principle underlying the notion of what Canadians would tolerate. ... While Butler concerned the obscenity of particular pornographic materials, the present case concerns the indecency of live performances. The tolerance basis of the community standards test is the same in indecency cases as in obscenity cases [], but indecency, unlike obscenity, entails an assessment of the surrounding circumstances in applying the community standards test. As the majority stated in Tremblay []:
Putting the above observations together, a performance is indecent if the social harm engendered by the performance, having reference to the circumstances in which it took place, is such that the community would not tolerate it taking place. I agree with the Court of Appeal that the activities in the present case were such that the community would not tolerate them and thus were indecent.
The relevant social harm to be considered pursuant to s. 167 is the attitudinal harm on those watching the performance as perceived by the community as a whole. In the present case, as outlined in the facts, the patrons of Cheaters could, for a fee, fondle and touch women and be fondled in an intimately sexual manner, including mutual masturbation and apparent cunnilingus, in a public tavern. In effect, men, along with drinks, could pay for a public, sexual experience for their own gratification and those of others. In my view, such activities gave rise to a social harm that indicates that the performances were indecent. I agree with the Court of Appeal [that]:
Any finding of indecency must depend on all the circumstances. I am satisfied that the activities in the present case were indecent insofar as they involved sexual touching between dancer and patron. Thus, the fondling and sucking of breasts, as well as contact between the dancer or patron and the other person's genitals, in circumstances such as the present case gave rise to an indecent performance. It is unacceptably degrading to women to permit such uses of their bodies in the context of a public performance in a tavern. Insofar as the activities were consensual, as the appellants stressed, this does not alter their degrading character. Moreover, as I stated in Butler [], "[s]ometimes the very appearance of consent makes the depicted acts even more degrading or dehumanizing."
This analysis, in my view, is sufficient to ground the finding that the performances were indecent. However, I agree with the Court of Appeal that it is also relevant that the Municipality of Metropolitan Toronto recently passed a by-law prohibiting contact between anyone who provides services designed to appeal to erotic or sexual appetites or inclinations at an adult entertainment parlour from touching or having physical contact with any other person in any manner whatsoever involving any part of that person's body, and prohibits the owner from permitting such conduct. While the by-law has been challenged unsuccessfully as being ultra vires the municipality, I agree with the Court of Appeal that, aside from its validity, the by-law is instructive in the present case as evidence confirming that community standards of tolerance were exceeded by the activities in question.
The Court of Appeal considered two other factors which I view as only marginally relevant to a determination of indecency. A finding of an indecent performance depends on a finding of harm to the spectators of the performance as perceived by the community as a whole. The potential harm to the performers themselves, while obviously regrettable, is not a central consideration under s. 167. The Court of Appeal, however, appeared to treat the risk of sexually transmitted diseases and the harms associated with prostitution as significant factors in finding indecency in the present case. In my view, the risk of harm to the performers is only relevant insofar as that risk exacerbates the social harm resulting from the degradation and objectification of women. Thus, if there is increased degradation of women, and therefore an increased likelihood of social harm, because the performances in question posed risk to the performers, then these factors are relevant. In the present case, these additional factors are not necessary to my conclusion that the performances in question were indecent. Aside from the risks of harm from sexually transmitted diseases and from the activities' similarity to prostitution, the social harm resulting from the performances in the context in which they took place is sufficient to find them indecent. Women were degraded and objectified in a socially unacceptable manner, whether or not the additional harms associated with prostitution and sexually transmitted diseases were associated with the performances.
The conclusion that the performances in question were indecent is to some extent supported by the reasons of the trial judge. The trial judge would have found the performances to be indecent, but for the precedent set by Tremblay [] and Hawkins []. He stated:
... [I]t is important to recall that Tremblay involved an analysis of whether acts performed in a private room were indecent, whereas the present case involves an analysis of whether a performance was indecent. The charge in Tremblay was under s. 193(1) of the Criminal Code (now s. 210(1)). The gravamen of that offence is the keeping of a place for the purpose of the practice of acts of indecency. The presence of spectators and the effect on spectators is relatively unimportant. On the other hand, the gravamen of the offence under s. 167 is giving or allowing an indecent performance. The presence of spectators and of "performance" under s. 167(1), changes the emphasis in the present case largely to an analysis of the effect on the spectators, rather than the performers. ...
The central points distinguishing the present case from Tremblay are the physical contact between patron and dancer that occurred here, but was prohibited in Tremblay, and the public nature of the activity...; here the activity took place in an open tavern, while in Tremblay the acts took place in a private room. With respect to Hawkins, the images in question were electronic images viewed in a private living room, not live dancers performing sexual acts in a tavern. These distinguishing features have a profound effect on the finding of indecency in the present case. The public nature of the activity and the physical contact raise a factual context very different from the previous cases. Given that the trial judge erred in viewing himself bound by Tremblay and Hawkins, his alternative finding, that the performances were indecent, is operative. ...
The appellants argued that by referring to factors such as social harm and the risk of sexually transmitted diseases not addressed at trial, the Court of Appeal drew additional inferences from facts, thus indicating that its disagreement with the trial judge was based on a question of mixed law and fact, rather than on law alone. ...
In my view, neither of these arguments is convincing. As noted above, social harm is not a fact susceptible of proof in the traditional way, but rather where the activities or material in question involve the degradation and objectification of women, or perhaps children or men, the law infers harm simply from that degradation and objectification. Considering the social harm resulting from the given facts in the present case, therefore, does not involve consideration of a "new" fact, or a "new" factual inference to be drawn from given facts, but rather is a consideration going to the legal effect of the facts.
This also addresses the submission that the Crown advanced a new theory of liability on appeal. The Crown, obviously, argued that the performances were indecent at trial. Indecency depends on community standards, which in turn depend largely on an analysis of social harm. By suggesting on appeal consideration of the social harm resulting from the performances, the Crown was simply attempting to persuade the court that the legal effect of the facts as found was that the performances exceeded community standards of tolerance, contrary to the finding of the trial judge. The Crown was not advancing a new theory of liability, but rather was making a legal argument about community standards and the indecency of the performances in question.
With respect to consideration of the risk of sexually transmitted diseases, given that I place little or no weight on this factor, I will decline to consider whether it was proper for the Court of Appeal to examine those risks... . C. The Appellant Mara and Mens Rea
There is no issue in this appeal concerning the intent of the appellant East. The finding of indecency is sufficient to dismiss the appeal with respect to him. The appellant Mara, however, argued that the Court of Appeal erred in interfering with the factual finding of the trial judge that he did not have the requisite criminal intent to find him guilty.
With respect to the mens rea of the appellant Mara, the trial judge noted that both he and the appellant East testified that the latter was entirely responsible for the activity of the dancers at the tavern and stated:
... In my view, the [Court of Appeal] erred in overturning the finding of fact made by the trial judge with respect to mens rea. Section 167 requires that the accused "allow" the indecent performance. I agree with the appellant Mara and the respondent that s. 167 is a full mens rea offence. In my view, the requirement that the accused "allow" an indecent performance implies, at the very least, a requirement of concerted acquiescence or wilful blindness on the part of the accused. Indeed, I would equate "allow" in this context with "knowingly"... .
The trial judge found as a fact that the accused did not have actual knowledge of the activities in question. Dubin C.J.O., however, appeared to conclude that while the trial judge did consider actual knowledge, he did not consider wilful blindness. In my view, there is no reason to conclude that the trial judge erred in his assessment of mens rea. First, he went farther than simply stating that the appellant Mara did not have actual knowledge and stated that Mara did not have the "necessary criminal intent". Given that the requisite criminal intent includes wilful blindness, this finding sufficed to address this possibility. Second, in my view, the trial judge's finding that the appellant Mara had taken "reasonable steps" to comply with the law precludes the possibility that he could have been found wilfully blind. ... Given that the trial judge found the delegation to the appellant East to have amounted to reasonable steps to comply with the law, if East was delinquent in his duties, the appellant Mara should not be held responsible. Given that the trial judge made no apparent error in law, the Court of Appeal did not have jurisdiction on the appeal of the appellant Mara's acquittal to overturn the judge's findings of fact. The Court of Appeal simply substituted its own view of the facts for that of the trial judge, which is impermissible.
The respondent Crown... submitted that so long as the owner-accused has knowledge of the nature of the business he or she is running, he or she has sufficient mens rea to ground a conviction. If the accused is aware that he or she is in a business in which there is a risk that indecent performances will take place, then if those performances in fact do take place, the accused will have sufficient mens rea... . If owners are capable of insulating themselves from conviction simply by delegating responsibility, then the persons who benefit the most financially from the indecent performances will be offered a means of making money from indecent performances without risking trouble with the law.
I cannot accept the respondent's submission. The suggested approach would render meaningless the full mens rea requirement which the respondent conceded to be the standard under s. 167. Indeed, the approach would amount to absolute liability for all owners of adult establishments in which an indecent performance takes place. All owners of adult entertainment establishments are presumably aware of the nature of the business they are in. Thus, if ever an indecent performance took place, no matter how diligent the owner in seeking to prevent this, the very fact that the performance took place would be enough to convict the owner. In my view, this is akin to absolute liability for owners... .
With respect to the policy concern that owners may simply shield themselves by delegating, I have two responses. First, if the policy is sufficiently compelling, perhaps Parliament could amend s. 167 to make it an offence with a lower standard of mens rea, at least for owners. Second, if the owner delegates responsibility in bad faith, that is, delegates in order to protect him- or herself from the law rather than to ensure compliance with the law, then, in my view, in certain circumstances this could amount to wilful blindness. Delegation with a nod and a wink will not protect the owner from conviction. In the present case, the trial judge found that the appellant Mara's delegation of responsibility amounted to taking reasonable steps to comply with the law, hence the issue of wilful blindness, as stated above, does not arise. ...
Notes and Questions
1. Is indecency inherently a contextual concept? Is it inherently a moral concept? Do you agree with Dubin C.J.O.=s interpretation of harm in the context of s.167 of the Criminal Code? Gender-based harm
It has been suggested that Butler endorsed a feminist conception of pornography. Is there a single "feminist" perspective on pornography? If there is, who owns that perspective, and is entitled to speak for women on this issue? The excerpts which follow argue that sexually explicit material objectifies women and should be suppressed for that reason. Note, however, that a rift has developed among feminists; see N. Strossen, "A Feminist Critique of "the" Feminist Critique of Pornography", 79 Virg. L. Rev. 1099 (1993) Defending Pornography (U.S.A.: Scribner, 1995); and T. McCormack, "If Pornography is the Theory, is Inequality the Practice?", Sept. 1993 Philosophy of the Social Sciences 298.
Questions you should consider in reading these materials include the following: Is there any difference between prohibiting sexually explicit materials because they are immoral, and prohibiting them because they violate a standard of gender equality? Are generalized conceptions of harm problematic? Why or why not? What degree of harm should the courts require under s. 1, and how "particularized" must that harm be, in order to give s. 2(b)'s guarantee adequate protection? Are there deleterious effects on expressive freedom? Should the courts be concerned about the risk of censorship in prohibiting unpopular or unconventional views of sexuality?
C. MacKinnon, "Not a Moral Issue" 2 Yale Law & Political Rev. 321, at 325-26 (1984)
... Pornography, in the feminist view, is a form of forced sex, a practice of sexual politics, an institution of gender inequality. In this perspective, pornography is not harmless fantasy or a corrupt and confused misrepresentation of an otherwise natural and healthy sexuality. With the rape and prostitution in which it participates, pornography institutionalizes the sexuality of male supremacy, which fuses the erotization of dominance and submission with the social construction of male and female. Gender is sexual. Pornography constitutes the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is. Men's power over women means that the way men see women defines who women can be. Pornography is that way.
In pornography, women desire dispossession and cruelty. Men, permitted to put words (and other things) in women's mouths, create scenes in which women desperately want to be bound, battered, tortured, humiliated, and killed. Or, merely taken and used. This is erotic to the male point of view. Subjection itself, with self-determination ecstatically relinquished, is the content of women's sexual desire and desirability. Women are there to be violated and possessed, men to violate and possess them, either on screen or by camera or pen, on behalf of the viewer....
The experience of the (overwhelmingly) male audiences who consume pornography is therefore not fantasy or simulation or catharsis but sexual reality: the level of reality on which sex itself largely operates. To understand this does not require noticing that pornography models are real women to whom something real is being done, nor does it even require inquiring into the systematic infliction of pornographic sexuality upon women, although it helps. The aesthetic of pornography itself, the way it provides what those who consume it want, is itself the evidence....
K. Mahoney "Obscenity, Morals and the Law: A Feminist Critique" 170 Ottawa Law Review 33, at 51-53 (1985)
... "Harm" in the feminist analysis of pornography differs from both the liberal and the conservative concepts. The conservative view that obscenity is harmful because it causes the erosion of the social order, and the liberal view that obscenity is harmful if it constitutes a direct injury to individuals, both fail to take into account the harms perceived by feminists.
The feminist analysis of harm starts with the premise that to understand the harm caused by pornography, the full implications of violence against women in contemporary society must be examined....
At the same time, debasement of women in pornographic magazines, books, movies, films, on television, on street corner new-stands, on covers of record albums and in shop windows has steadily increased....
1. Harm to Women Generally
Feminists argue that one of the harms of pornography is that it provides a framework that encourages a range of violent, coercive and exploitive acts against women. They claim that the sheer volume of pornography requires that the moral issue be expanded to include not only the assessment of individual works, but also the meaning and force of the mass production of pornography. If allowed to continue unabated, the pornographic image of women will foster oppression by further entrenching sexist attitudes.
Feminists are of the view that, unlike rape, wife battering and incest aggression where the victims are individuals, pornography's victims are women in general. The harm it causes is public, generalized harm - the degradation of women as a class, resulting in assaults on institutions, values and practices relating to marriage, privacy, employment and the family, in a way not envisioned by male moralists. Many women's goals, such as greater participation in public life, equal pay for work of equal value and daycare, are that much more difficult to achieve when female credibility is assaulted on such a massive scale.
... Feminists argue that if, as the researchers say, pornography promotes the view that women are less equal, less valuable and less worthy than men, allowing pornography to proliferate will create a culture of perpetual inequity. This argument remains valid even where physical aggression or direct harm cannot be proved in individual cases....
S. Noonan, Annotation, R. v. Wagner (1985), 43 C.R (3d) 19
Feminist theory resoundingly rejects the proposition that materials which are sexually explicit or arouse the prurient interest are intrinsically problematic. Rather, from this perspective, it is the manner in which sexuality and sexual encounters are depicted that is determinative. ... The feminist discourse speaks of pornography not only in terms of its tendency to endorse violence against women but in terms of its false representation of female sexuality: women are frequently depicted as desiring humiliation, degradation or subordination. Another concern is that pornography tends to objectify or dehumanize the persons portrayed, so that the participants are stripped of all individuality and all persons as a "gender class" are thereby reduced to their genitalia. In short, the harm of pornography as perceived by feminists is its tendency to sanction force, coercion, degradation and dehumanization within sexual relationships....
C. Sunstein "Pornography and the First Amendment" [1986] Duke J. 589, at 606-8
... In one respect [] the feminist case for regulation of pornography might seem, quite paradoxically, to weaken the argument for regulation. The feminist argument is that pornography represents an ideology, one that has important consequences for social attitudes. Speech that amounts to an ideology, one might argue, cannot be considered low-value, for such speech lies at the heart of politics. If pornography indeed does amount to an ideology of male supremacy, it might be thought to be entitled to the highest form of constitutional protection.
But an argument along these lines is based on a misconception of what entitles speech to the highest form of protection.... Indeed, most categories of low-value speech - fighting words, commercial speech, obscenity - amount in some respects to an ideology....
Whether particular speech is low-value does not turn on whether the materials contain an implicit ideology; if it did, almost all speech would be immunized. The question instead turns more generally on the speaker's purpose and on how the speaker communicates the message. The pornographer's purpose in disseminating pornographic materials - to produce sexual arousal -can be determined by the nature of the material. And any implicit "ideology" is communicated indirectly and non-cognitively... . For pornography in particular, the cognitive element, to the extent that there is one, operates at a subconscious level; the message is communicated indirectly. Hypnosis, whether or not voluntary, does not amount to constitutionally protected speech, or to speech that is entitled to the highest level of first amendment concern; this conclusion holds even if the hypnotist's message has some ideological dimension. The example is extreme, but it suggests that the fact that speech communicates a message is not a sufficient reason to accord it the highest level of constitutional protection.
These considerations suggest [that] traditional first amendment doctrine furnishes the basis for an argument in favour of restricting pornography, and that such an argument can be made without running afoul of the ... notion of neutral principles [of constitutional interpretation]. C. CHILD PORNOGRAPHY
Re Eli Langer (1995), 123 D.L.R. (4th) 289, 97 C.C.C. (3d) 290 (Ont. Ct. (Gen. Div.)
McCombs J.
On December 14, 1993, the Globe and Mail newspaper published an art critic's review under the headline, "Show Breaks Sex Taboo". The review concerned a showing of paintings and drawings dealing with sexual themes involving adults and children, which was on display at the Mercer Union Gallery in Toronto.
The review prompted a citizen to call police, and the resulting investigation led to the paintings and drawings being seized. The artist, Eli Langer, and the director of the Mercer Union Gallery were charged under both the obscenity provisions and the new child pornography provisions of [the Criminal Code].
The Crown later withdrew the charges against the individuals, and proceeded instead with a forfeiture application under s. 164.... [which] is like a criminal trial, except no person is charged. Instead, the things seized are treated as if they are the accused. The forfeiture provisions came into being in 1959, and until recently, dealt only with obscene material and hate literature. When the new child pornography legislation came into force, the forfeiture provisions were amended to include that material within its reach.
The forfeiture scheme requires the material to be forfeited to the Crown if it is child pornography within the meaning of the new s. 163.1 of the Code. If it is not child pornography within the meaning of the section, then the artist is entitled to its return. ... Where the accused is charged, the new child pornography scheme requires the court to acquit if the material has artistic merit, or an educational, scientific or medical purpose. ...
The material before me consists of 5 large oil paintings and 34 small pencil drawings. The drawings, from the artist's sketchbook, had been on display at the gallery. They were displayed along with the oil paintings to allow the viewer to gain insight into the thinking which led to the creation of the major work.
The 34 pencil drawings consist mainly of explicit depictions of children engaging in a variety of sexual activities. In some cases, an adult is shown lurking in the background, and as a whole, the subject-matter is deeply disturbing.
The oil paintings are also disturbing. Exhibit 50 shows a naked child with her head near the genital area of a naked elderly man. Exhibit 51 depicts a naked young girl defecating. Exhibit 52 depicts a young person and an adult under the covers of a bed. It is apparent that the adult is engaged in some sort of sexual activity with the child, who has a look of anguish on his/her face. Exhibit 53 depicts a naked young girl standing over an elderly man lying in bed. A drop of liquid is drooling from her mouth, and she has a look of sorrow on her face. Exhibit 54 depicts a naked man, apparently with an erection, lying on his back on a bed. Straddling his chest is a young girl, whose labia are clearly visible just inches from his face, which is turned to the side. A barely visible masked figure is entering through the window.
For convenience, I have reproduced, in edited form, [the forfeiture provision].
shall issue a warrant authorizing the seizure of the copies. ...
During the two-week hearing, I heard from 22 witnesses, and received 109 exhibits. The evidence dealt with, among others, the following themes:
The expert witnesses fell into three broad categories. First, there was a general category of expert witnesses.... For the Crown, Staff Sergeant Robert Matthews of the O.P.P. provided samples of the type of material produced by child pornographers; and Ontario Film Review Board member Eileen Winterwerb explained the board's classification system. For the defence, lecturer and social scientist Varda Burstyn provided insight into sexual expression in popular culture; artist and therapist Tasse Geldart provided insight into the ways in which survivors of sexual abuse, for therapeutic purposes, produce art depicting their suffering; and broadcasting executive and programmer Patrick Watson spoke of, among other things, the chilling effect that ambiguous, overbroad legislation has on the artistic community.
Second, there were the behavioral sciences experts. Crown witnesses in this category included psychiatrist Dr. Peter Collins, and psychologists Dr. Howard Barbaree, Dr. William Marshall, and Dr. Richard Berry. Defence experts in this category were psychologists Dr. Jonathan Freedman, and Dr. Ronald Langevin.
Finally, there were the art experts. These included noted Canadian artists Ronald Bloore, David Blackwood, Harold Feist, Doris McCarthy, and Michael Snow, as well as art historian Dennis Reid, art critic Christopher Hume, and gallery owner Avrom Isaacs.
Detective Matthews and other officers gave evidence about [types of child pornography they had seen]...[and] [a]lthough sexually explicit material that panders to paedophiles is not widely distributed, the evidence satisfies me that the determined paedophile is able to get his hands on it, and as will be seen, uses it in ways that are harmful to children.
There is considerable controversy within the behavioral science community about the effects, if any, of child pornography upon behaviour. The main reason for the controversy appears to be that it is virtually impossible to conduct studies with sufficiently rigorous adherence to proper scientific method to produce statistically reliable results....
Dr. Jonathan Freedman and Dr. Ronald Langevin testified that there is no sound scientific basis for concluding that exposure to explicit depictions sexualizing children increases the likelihood of sexual abuse of children. However, although the evidence may not scientifically establish a clear link between child pornography and child sexual abuse, I accept the clinical opinions of experts [Collins, Barbaree, and Marshall] each of whom has extensive experience in treating sex offenders, that paedophiles are often highly motivated to get their hands on explicit child pornography, and to use it in ways that put children at risk.
The evil of child pornography lies not only in the fact that actual children are often used in its production, but also in the use to which it is put. Although behavioral scientists disagree about the reliability of scientific studies, there is general agreement among clinicians that some paedophiles use child pornography in ways that put children at risk. It is used to "reinforce cognitive distortions" (by rationalizing paedophilia as a normal sexual preference); to fuel their sexual fantasies (for example, through masturbation); and to "groom" children, by showing it to them in order to promote discussion of sexual matters and thereby persuade them that such activity is normal.
Because of the ways in which child pornography is used by paedophiles, the risk of harm is present whether or not real children are used in its creation....
The three Crown behavioral experts, Drs. Collins, Barbaree, and Marshall, each expressed the opinion that the seized materials would be of interest to paedophiles, and would increase the risk that they would act on their fantasies. They each felt that the Langer paintings and drawings could reinforce a paedophile's perception that sex with children was not a bad thing. Dr. Barbaree suggested that although a normal person would see that the children depicted in the paintings are in distress, that fact would not likely be apparent to a paedophile.
Each of the Crown experts agreed that material that stimulates the arousal of paedophiles is on a continuum, with explicit motion pictures being more stimulating than still photos, which in turn are more potently arousing than less explicit depictions. To a paedophile, the more realistic and explicit the depiction, the greater the erotic stimulation.
Defence witness Dr. Ronald Langevin, also a respected clinician and academic, disagreed with the Crown experts about the likely effects of the Langer paintings and drawings. In his view, they are less likely than other visual depictions to be used to fuel the paedophile's fantasies, and lead to sexual acting out. His evidence was to the effect that concrete photographic depictions showing the genitalia are much more likely to be used by paedophiles to fuel their fantasies.
In Dr. Langevin's view, paedophiles would be more aroused by photographic images, even relatively innocuous mainstream advertising images such as children modelling swimwear or underwear, than they would by the seized paintings and drawings, which in his view have a frightening quality that would be disquieting to paedophiles.
Having compared the paintings and drawings to the other types of child pornography which were filed as exhibits, and in light of the differing opinions of the experts concerning the risk posed by the Langer paintings and drawings, I am not satisfied that they pose a realistic risk of harm to children.
I had the benefit of the evidence of several gifted and respected artists, who were called by both the Crown and the defence... . Although the expert opinions differed in some respects, the consistent thread was that assessment of artistic merit is itself an art. ...
The experts testified that although no precise definition of artistic merit is possible, many factors are relevant. The presence or absence of these factors and their interrelationship within the particular work is what ultimately determines whether it has artistic merit. Some of the factors are:
With varying degrees of enthusiasm, each of the art experts described Mr. Langer's work as having artistic merit. ....
I prefer the view expressed by some of the experts that although the subject-matter of the paintings and drawings is shocking and disturbing, the work as a whole is presented in a condemnatory manner that is not intended to celebrate the subject-matter. In other words, the purpose of the work is not to condone child sexual abuse, but to lament the reality of it.
Moreover, I accept the uncontradicted evidence of the art experts that, in the view of the artistic community, Mr. Langer's work has artistic merit.
The presence of artistic merit is provided by statute to be an absolute defence to a charge involving child pornography. However, the mere fact that the artistic community regards the work as having artistic merit does not determine the issue. There remains the issue of whether the artistic merit defence applies at a forfeiture hearing. There also remains the important question as to whether the phrase "artistic merit" in the child pornography provisions means the same in law as it does to the artistic community, or whether it has a different legal meaning, requiring a consideration of community standards of tolerance based on the risk of harm to children....
Before the constitutional issues can be resolved, it is appropriate to first determine the meaning of the new provisions....
There are two basic differences between the [obscenity and child pornography] schemes:
With obscenity, Parliament left most of the definitional work to the courts, but in s. 163.1, Parliament has specifically defined child pornography so as to encompass three types of material:
1. s. 163.1(1) (a) (i)
2. s. 163.1(1) (a) (ii)
3. s. 163.1(1) (b)
The word "undue", which provides the foundation for the evolution of the definition of obscenity, is not found in...s. 163.1....
In both the child pornography provisions, and in the law of obscenity, the courts are required to consider artistic merit....
... In Butler, the Supreme Court of Canada confirmed that in determining when the exploitation of sex becomes "undue", the courts should employ a "community standards" test.... The Butler case shows that in the obscenity provisions, artistic merit is not, strictly speaking, a true defence, but rather it is a factor whose presence may negate one of the essential elements of the offence. The approach to the defence of artistic merit in the child pornography provisions, however, is conceptually different. With child pornography, artistic merit is a statutory defence. Unlike with the obscenity law, its presence does not negate proof of an essential element of the offence. Instead, it provides a justification or excuse which mandates acquittal by excusing material that would otherwise be child pornography within the meaning of s. 163.1.
Although a distinction exists between the approach to artistic merit in the obscenity provisions and in the child pornography provisions, it is merely a conceptual distinction without a practical difference....[].
It has been argued that the community standards test applicable to the law of obscenity arises from its definition based upon the requirement of undueness, and that since no similar notion has found its way into the definition of child pornography, community standards of tolerance should be irrelevant in that context....
With respect, I cannot agree with an interpretation of the defence of artistic merit which ignores standards of community tolerance....
[I]t would be incongruous to measure harm with reference to community standards of tolerance when dealing with obscenity, and yet ignore those same standards when dealing with child pornography.... If the artistic merit defence were to be assessed without reference to a community tolerance test based on harm, the result would be that if a scintilla of artistic merit were present, even the most harmful depictions would be excused. That could not have been the intention of Parliament.
There are strong policy grounds for requiring a community standards test based on harm when weighing a defence based on artistic merit....To read the entire child pornography scheme as excluding considerations of standards of community tolerance based on the risk of harm would be to rob it of its very reason for existing. Therefore I conclude...that the legal meaning of "artistic merit", as it is used in s. 163.1(6), is the same as in the law of obscenity. The test requires that the depiction, taken as a whole, having regard to its wider purpose and the degree of risk of harm, does not exceed contemporary standards of community tolerance....
The wording of subsection (6) indicates that Parliament has distinguished between artistic "merit", and educational, scientific or medical "purpose". It can be seen that Parliament has imposed an objective "merit" requirement for a successful defence of artwork, instead of a subjective "purpose" requirement for a successful defence of educational, scientific, or medical work.
This objective standard of artistic merit must be negatived by the Crown beyond a reasonable doubt before criminal sanctions may be imposed. The requirement of an objective standard means that the creator must not only have had an artistic purpose, but also have produced something with actual artistic merit.
It is argued that this provision is unfair because it potentially punishes the sincere but failed artist. Moreover, it has been submitted that by making a community standards of tolerance test a component of an objective artistic merit defence, the unfairness is compounded because it makes the artistic merit standard even more difficult to meet.
I am sympathetic to this argument, because for artistic expression to flourish, artists must be free to test the limits, to provoke and challenge, and of course, to fail. But in the end, society's interest in protecting its children is paramount, and where the safety of children is concerned, community standards of tolerance based on the risk of harm are more important than freedom of expression, no matter how "fundamental" that freedom may be to a free and democratic society....
In my view, the following are some of the factors which should guide the courts in developing a legal standard for the defence based on artistic merit:
It has been argued that child pornography is not a form of expression which is protected by s. 2(b) because child sexual abuse is an inherently harmful and violent activity. I agree that child sexual abuse is an act of violence.... However, the legislation under scrutiny reaches well beyond the proscription of depictions of actual child sexual abuse (a violent act), to proscribe other depictions which are not directly violent, such as:
The s.1 Test
"Prescribed by Law" -- Vagueness
... It has been submitted that the child pornography provisions are unconstitutionally vague because the language used makes it impossible to stay within the law. Phrases found in the legislative scheme such as: "who is or is depicted as being under the age of eighteen years"; "explicit sexual activity"; "for a sexual purpose"; and "artistic merit", are said to be so vague that it is impossible to know if the law is being complied with.
The Supreme Court of Canada has repeatedly indicated a reluctance to find a law unconstitutional on the grounds that it is so vague so as not to qualify as "law"... . The threshold for a finding of vagueness is relatively high... . In my view, none of the language in the child pornography provisions is so lacking in precision that it makes clear legal debate impossible. The difficulties in interpretation and application can be resolved by the courts on a case-by-case basis, so that clear definitional lines may be drawn over time.
Pressing and Substantial
... The legislation has three objectives:
The first two objectives are inextricably related. Counsel are all agreed that they are pressing and substantial....
The third objective is much wider....I have already held that I accept the expert opinion evidence of Dr. Collins and Dr. Marshall that possession of explicit child pornography increases the risk to children because some paedophiles use it for the three purposes which have been identified: to rationalize that sex with children is acceptable; to fuel their paedophiliac fantasies; and to show it to children to facilitate their attempts to engage them in sexual activity.
Having accepted the expert evidence on this issue, I conclude that although the third objective of the legislation is wide, its breadth is necessary in view of the pressing and substantial objectives of the legislation.
The Proportionality Branch of the s. 1 Analysis
In assessing [] proportionality..., it must be born in mind that the expressive activity which the state seeks to restrict is child pornography, a form of expression which can hardly be said to be crucial to the principles which lie at the core of s. 2(b)....
The Rational Connection Test
It has been argued that the application of criminal sanctions to the private possession of child pornography is not rationally connected to the objectives of the legislation. I am unable to accept that submission. In my opinion, in light of the evidence which I have accepted concerning the use to which child pornography is sometimes put, and the consequent risk of harm to children, Parliament had a reasonable basis for criminalizing not only the creation and dissemination of child pornography, but its possession as well.
S. 163.1 includes a number of defences designed to ensure minimal infringement of freedom of expression. S. 163.1(6) provides for a defence based either on artistic merit, or an educational, scientific, or medical purpose. S. 163.1(5) provides for a defence based on an honest belief, arrived at through due diligence, that the material does not depict anyone apparently under the age of 18 years. Moreover, the legislation imports from the obscenity provisions, a defence based on the public good [(s. 163.1 (7), and ss. 163(3) & (4)].
The cumulative effect of the availability of these defences is to ensure the protection of material that is not covered by one of the three objectives of the legislation.
Accordingly, I conclude that the legislation is carefully designed to meet Parliament's legitimate objectives, and is rationally connected to those objectives.
The Minimal Impairment Test
...In this case, I have accepted expert opinion evidence that the restrictions are necessary in order to further Parliament's legitimate objectives relating to protecting children from harm. I therefore conclude that the child pornography provisions impair freedom of expression as little as possible in order to meet those objectives.
Overbreadth
The respondent contends that section 163.1 is overbroad by attaching liability to actions that fall outside its objectives....
The defence contends that s. 163.1 captures activity which is outside of the necessary scope of the legislation, and cites five examples of alleged overbreadth....
By extending the reach of the legislation to material in which persons are "depicted as" being under the age of 18 years in the legislation, Parliament has targeted depictions of persons over 18 who pose as children engaging in explicit sexual activity. This type of material, known as "dress down" pornography, often employs models who are childlike in appearance, posing, for example in children's nightclothes, clutching a teddy bear or similar prop, and engaging in explicit sexual activity. Such material is clearly aimed at paedophiles, so that they may fantasize about sex with children. In my view, it poses the same risk that the paedophile will act on his fantasies as if the person depicted was actually under 18 years of age....
In my view, the proscription of sexually explicit material in which a person over 18 is "depicted as" being under the age of 18, is not unconstitutionally overbroad, given the legitimate objective of Parliament in targeting sexually explicit material that poses a realistic threat of harm to children.
Counsel for the respondent submit that since it is not a criminal offence for two 14 year-olds [ ] to engage in consensual sexual activity, it is anomalous to criminalize the depiction of that activity. I find no merit in that submission. It is one thing for Parliament to refrain from criminalizing the sexual activity of a person under 18. It is quite another to permit the public dissemination of explicit images of that activity particularly when, in the hands of a paedophile, such images may give rise to a realistic risk of harm to children.
This objection ignores the reality that, on the basis of the opinion evidence which I have accepted, private possession of child pornography poses a realistic risk of harm to children, by reinforcing cognitive distortions, fuelling fantasies, and its potential use in "grooming" possible child victims. It is entirely reasonable and within the legitimate objectives of Parliament to criminalize private possession of child pornography.
In my view, the risk of harm is present whether or not real children are used in the production of child pornography. The sexually explicit comic strip story in exhibit 73, the "Lolita Chick" publication, for example, could be created from the imagination of the maker without using a child in its production. Yet it graphically depicts a full range of explicit sexual activity with a child by a man who seduces her by pretending to be her friend. The material gives rise to a realistic risk of consequent harm to children. In an age of technical breakthroughs such as computer imaging, child pornography legislation should not be limited to images created through the use of real children. The legislation is not overbroad.
The respondent also argued that section 163.1 is overbroad with respect to the artistic merit defence, because it means that the sincere but failed artist faces possible criminal sanctions. In R. v. Butler, supra, the Court upheld as reasonable, a rule requiring allegedly obscene material to meet an objective artistic merit consideration that includes not only a legal standard of sufficiency but also a community standard of tolerance. The same rule is also reasonable in the context of the child pornography provisions.
Despite the fact that purported art must meet an objective merit standard, I think that it would be the rare case in which an artist, acting with sincerity and integrity in the creation of a work, would run afoul of this law....
The scope of section 163.1 is large, but a large scope is required to ensure that the objectives of the legislation are addressed. The child pornography legislation does not exceed the boundaries of its legitimate objectives, and is not overbroad. Reasonable Alternatives
...The defence submits that there were other less restrictive alternatives available to Parliament when enacting the child pornography provisions:
While these alternatives are indeed less restrictive, they do not fully address the legitimate objectives of Parliament.... Shortly stated, the realistic risk of harm to children must be the paramount consideration, and none of the less restrictive means which have been suggested fully addresses that risk.
I therefore conclude that Section 163.1 meets the minimal impairment branch of the proportionality test. The legislation is not overbroad, there have been no reasonable alternatives presented to the court, and finally there are several defences within the provisions to ensure that non-dangerous depictions are excluded from criminal liability.
Effects of the Limitation
...The expression inherent in the production of child pornography is not crucial to the principles which lie at the core of freedom of expression. There is no evidence to support the contention that the effects of the legislation are so deleterious that they outweigh the pressing and substantial objective of the legislation.
Conclusion
Although s. 163.1 ... infringes ... s. 2(b) of the Charter, the provision is a reasonable limit prescribed by law in a free and democratic society.
Forfeiture
...[A]lthough the mandatory seizure requirement contained in s. 164(1) is rationally connected to the valid objectives of the legislation which are related to the prevention of harm to children, the provision cannot meet the minimal impairment aspect of the proportionality branch of the test for constitutional sufficiency under s. 1 of the Charter as set out in Oakes, supra.
Because s. 164(1) employs the mandatory "shall", rather than the discretionary "may", the legislation reaches beyond what is minimally necessary in order to achieve its legitimate objectives. Other less restrictive means should be available to the court for use where appropriate. For example, where the material sought to be seized is hanging in an art gallery, it may be appropriate for a court not to order seizure, but instead to require its owner or custodian to undertake to bring it before the court at the time and place designated for the forfeiture hearing.
In my opinion, if the word "may" were to replace "shall" in the offending section, the section would meet the s. 1 criteria, because it would then confer the necessary judicial discretion to ensure minimal impairment of the right against unreasonable search and seizure contained in s. 8 of the Charter. Accordingly, I conclude that s. 164(1) does not represent a reasonable limitation on the s. 8 right. The section therefore cannot be saved by s. 1 of the Charter, and is therefore unconstitutional in its present form.
I have concluded that the mandatory continued detention of the seized material until completion of the forfeiture hearing results is an infringement of s. 2(b) of the Charter. In my opinion, in the absence of a judicial discretion which would allow a court to ensure that freedom of expression is minimally impaired, the infringement of s. 2(b) also cannot be saved by s. 1 of the Charter. Again, if the impugned section were to read "may" instead of "shall" the section would be saved by s. 1....
...I agree with the submission of the Crown that the remedy of "reading down" the section from "shall" to "may" precisely addresses the concern of the defence, and avoids the drastic step of striking down the subsection. This remedy, submitted in the alternative by the Crown, would allow for judicial discretion in the issuance of a warrant of seizure and would meet the saving criteria contained in s. 1 of the Charter....
...I conclude that the application for forfeiture must fail, and that Mr. Langer is entitled to the return of his paintings and drawings.
In accordance with the provisions of s. 164(5), an order will go that the paintings and drawings which were seized...be returned to the person from whom they were seized forthwith after the time for final appeal has expired.
Notes and Questions
1. In New York v. Ferber, 458 U.S. 747 (1982), the U.S. Supreme Court concluded that child pornography is excluded from the First Amendment and upheld legislation that criminalized "the use of a child in a sexual performance". New York provided an explicit definition of the sexual performances and conduct that were prohibited: ASexual conduct means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.@
Though the New York Law failed to include a defence for artistic, educational or scientific material, the Court held that the prevention of sexual exploitation and the abuse of children was of surpassing importance.
2. In Osborne v. Ohio, 110 S.Ct. 1691 (1990), the Court considered whether a state may proscribe the possession and viewing of child pornography. In Stanley v. Georgia, the Court had invalidated a law outlawing the private possession of obscene material because it impinged the right to receive information in the privacy of one's home. Subsequently Ferber characterized the value of permitting child pornography as "exceedingly modest, if not de minimis." In Osborne, the Court cautioned that Stanley should not be read too broadly and distinguished the Ohio legislation from the Georgia law in Stanley. The Georgia law "primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers." The Ohio statute, on the other hand, sought to "protect the victims of child pornography" and to "destroy a market for the exploitative use of children." Given the important State objective, the Court could "not fault Ohio for attempting to stamp out this vice at all levels in the distribution chain." The Court held that the legislation was not overbroad, but Osborne's conviction was overturned on other grounds.
2. See KIS Films Inc. v. City of Vancouver (1992) 11 C.R.R. (2d) 98 (B.C.S.C.), upholding a municipal by-law that restricted the hours at which sexually explicit films could be shown at a theatre across the street from an elementary school.
3. See B. Blugerman "The New Child Pornography Law: Difficulties of Bill C-128" (1993), 4 Media and Communications Law Review 17; B. Cossman, "The Eli Langer Case: Is it Porn or is it Art?" and Censorship and the Arts (Toronto: Ontario Association of Art Galleries, 1995). D. CUSTOMS
Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [1998] B.C.J. No. 1507DRS 98-10526 Vancouver Registry No. CA021811
Macfarlane J.A. (Finch J.A., concurring)
Introduction This appeal concerns the constitutionality of Tariff Code 9956(a) of Schedule VII, and s. 114 of the Customs Tariff S.C. 1987, c. 41 (3rd supplement) and ss. 58 and 71 of the Customs Act S.C. 1986 c. 1 (2nd supplement) ("the Customs legislation").
The plaintiffs submit that the Customs legislation is an infringement of their rights guaranteed under s. 2(b) and s. 15(1) of the [Charter] ... .
The plaintiffs claim a declaration pursuant to s. 52 of the Constitution Act, 1982 that the Customs legislation, or parts of it, are of no force and effect.
In addition, or in the alternative, the plaintiffs claim a declaration pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms that the Customs legislation has been construed and applied in a manner that is contrary to s. 2(b) and/or s. 15(1) of the Charter, and is not justified pursuant to s. 1 of the Charter.
In a judgment pronounced 19 January, 1996 and reported at (1996), 131 D.L.R. (4th) 486, 18 B.C.L.R. (3rd) 241, Mr. Justice Smith dismissed the plaintiffs' claims made under s. 52(1) of the Constitution Act 1982 but made a declaration under s. 24(1) of the Charter, which reads:
No appeal is brought against the grant of the s. 24(1) declaration. ...
The focus of the appeal is primarily upon the shortcomings of the administration of the legislation by customs officers, which the appellants assert are caused in part by the legislation itself. The trial judge held that the administrative shortcomings were not caused by the legislation but by systemic difficulties that could be overcome with the benefit of appropriate and consistent training of customs officers, and with the necessary time and the availability of relevant evidence to allow them to properly perform their task [].
The Customs Legislation The legislative scheme in question is described comprehensively by the trial judge in his reasons and there is no need to repeat the detail. However, in paragraph 23 of his reasons, he identifies the impugned sections of the Customs Tariff:
Subsection 163(8) of the Criminal Code, R.S.C. 1985, c.C-46 provides:
Section 99 of the Customs Act authorizes customs officers to examine imported goods and mail, and to open packages that they reasonably suspect may contain goods referred to in the Customs Tariff.
Section 58 of the Customs Act, which authorizes customs officers to determine the tariff classifications of imported goods, is also impugned in this case. It is pursuant to this section that customs officers determine whether goods are prohibited by s. 114 and Code 9956(a) of the Customs Tariff.
The Customs legislation provides for a series of steps of review of the determinations of customs officers.
Under s. 59, any officer designated by the Minister may re-determine tariff classifications. Such delegation has been made to a class of officers known as Tariff and Values Administrators.
Section 60 affords the importer the right to have the classification of prohibited goods re-determined within 90 days or, where the Minister deems it advisable, within 2 years after the time of the determination.
Section 63 grants a right to a further re-determination by the Deputy Minister of National Revenue for Customs and Excise. The Deputy Minister may delegate his powers, duties and functions under the Act to any person. Those relating to re-determinations under s. 63 of tariff clarifications have been delegated to the Director-General of Tariffs, Programs Branch, an official in the Ministry of National Revenue. Section 67 grants a right of appeal from the Deputy Minister's re-determination. Under s. 71 that appeal lies to the superior court of the relevant province. Section 71 is the final provision impugned in this case.
Section 68 provides a right of appeal from the superior court of the province to the Federal Court on any question of law.
The focus of the attack on the legislation, however, is the alleged failure of customs officers to properly interpret and apply s. 163(8) of the Criminal Code. ...
The Factual Background The factual background is set out in detail by the trial judge in paragraphs 88-119 of his reasons. There is no need to repeat what he said. Suffice it to say that the appellants Deva and Smythe opened the Little Sisters Book and Art Emporium in 1983, specializing in homosexual literature. It is one of four stores in Canada specializing in materials for homosexuals. The store has become what Mr. Deva describes as "a nerve centre for the homosexual community". The store carries a wide variety of materials, mostly catering to homosexual tastes. It has a large selection of gay and lesbian fiction and a section on gay studies.
Little Sisters imports a large proportion of its stock, mostly from the United States. There are very few publishers of exclusively homosexual material in Canada. Little Sisters has experienced difficulties with Canada Customs since its inception.
The trial judge held that Customs' administration of Code 9956(a) results in arbitrary consequences. He said that traditional book stores do not have similar encounters with Canada Customs. For instance, other stores carry many titles that were prohibited when Little Sisters attempted to import them. He noted that the Customs' regime affects artists and writers as well as commercial businesses. He also observed that Customs' procedures are sometimes applied haphazardly. In some cases requests for re-determination under s. 63 have taken more than a year for decision.
The trial judge also mentioned that police forces concerned with enforcing s. 163(8) within Canada rely to a great extent on customs officers.
There was evidence that the amount of material imported was large and that only about 10% of it is inspected. For example, 20,000 to 40,000 items of mail enter the Customs mail centre in the Vancouver Post Office each day. A maximum of approximately 10% are actually examined by customs officers for a possible prohibition pursuant to Code 9956(a). It appears that this is so because the available resources only permit a partial screening process (para. 82).
Is the Customs legislation a limit "prescribed by law"? ... The appellants argued that although Code 9956(a) is admittedly law, it is unconstitutionally vague since it is applied by civil servants and not the judiciary. They also argued that Memorandum D9-1-1, which assists the customs officers, is not law.
The trial judge rejected both propositions.
With respect, I disagree with the trial judge that Memorandum D9-1-1 is law. It is not law because it is not a statute, regulation or a common law rule. ...
The trial judge rejected the proposition that Code 9956(a) was unconstitutionally vague when applied by civil servants. ...
While recognizing that several customs officers testified to the difficulty of classifying material as obscene, the trial judge stated later in his reasons that this problem could be resolved. ...
Sopinka J. in Butler held that s. 163(8) is an intelligible standard. Judges are now in the habit of giving written instructions to a jury with respect to the applicable law. Equally, a tribunal can be, and in this case was, given written instructions, in the form of Memorandum D9-1-1, with respect to the application of the law.
If there are problems, which inevitably will occur, with the interpretation and application of Code 9956(a) by bureaucrats, the legislation provides a right of redress in the form of several stages of review including a right of appeal to the courts where the law can be interpreted and applied by the judiciary.
Given that the Memorandum is not law, does the legislation provide an intelligible standard? I am not persuaded that the Customs legislation, which incorporates s. 163(8), is impermissibly vague because some customs officers have difficulty in classifying material as obscene. In dealing with the difficulty encountered by some customs officers, and the administrative shortcomings of the scheme hitherto, the trial judge said in effect that the problem was not the lack of an intelligible standard but, rather, arose from defects in administration, a species of problem which is susceptible to solution by better training and administration.
The submissions of the appellants on this issue, and throughout, are that Parliament has left to untrained persons a difficult and complex task. It is true that some customs officers have had difficulty, or have been arbitrary, in making decisions concerning obscenity. The trial judge granted an appropriate remedy under s. 24(1) on the basis that the proven administrative shortcomings must be resolved. While recognizing those shortcomings, he was not of the view that there was lack of an intelligible standard. I agree with his conclusion.
I agree with the trial judge that the law is not unconstitutionally vague because it is initially applied by civil servants and not in a judicial proceeding. In my opinion, the threshold test whether the limit is prescribed by law is met.
Is the limitation reasonable and demonstrably justified? ... Is the objective of the Customs legislation of sufficient importance to warrant a violation of freedom of expression? Freedom of expression is of the highest importance and there must be a pressing and substantial reason for overriding the right.
The objective of s. 163(8) of the Criminal Code was identified in Butler as being the need to protect society from harm caused by the exposure to obscene materials (p.495), and to prevent harm associated with the dissemination of certain obscene materials (p. 496).
The trial judge stated that the plaintiffs conceded that the objective of the Customs legislation is the same as that of s. 163(8) of the Criminal Code.
However, the appellants argue that Butler did not decide whether homosexual pornography can cause harm to society.
Butler was concerned with obscenity, whether homosexual or heterosexual. The objective of the Criminal Code and of the Customs legislation is to prevent the proliferation of obscenity, as defined in s. 163(8) of the Criminal Code. I agree with the trial judge who said, in paragraph 174:
I agree with the trial judge, "that homosexual obscenity is proscribed because it is obscene, not because it is homosexual" []. ...
The trial judge noted that the plaintiffs conceded in argument that homosexual pornography can be obscene within the meaning ascribed to that word by Butler.
If the appellants' argument is that Parliament had no reasoned basis for apprehending harm because no harm results from the receipt and use by the gay/lesbian community of obscene material, then I must reject it. Harm is not to be determined by the standard of the gay/lesbian community but by application of a general community standard. The question is not whether harm will be caused to the gay/lesbian community by the importation of obscene material, but whether harm to society generally may be caused by importation and proliferation of such material. The objective of the legislation is not to prohibit non-obscene gay/lesbian literature, but to prohibit importation of obscene material as defined in s. 163(8) of the Criminal Code. In my opinion, the argument of the appellants that no causal link has been demonstrated between homosexual erotica and harm, and that there is no evidentiary foundation to support Parliament's view that harm may result from the proliferation of obscene matter, must fail for the foregoing reasons. Additionally, Butler holds,... that a causal link may be impossible to establish and that harm may be presumed. There are references throughout the reasons of Sopinka J. in Butler to difficulties in proof, and to the controversial opinions held by those trained in the social sciences. In the end, the evidence is inconclusive. []. Conclusive evidence from social scientists is not required. ...
In my opinion, the trial judge was correct to say he need not determine on an evidentiary basis whether there was a causal link between pornography produced for homosexual audiences and harm to society. His comments on the research of Professor Malamuth were not necessary for his decision. In the end it is open to Parliament, even in the face of inconclusive evidence, to entertain a reasoned apprehension of harm from the proliferation of obscenity, whether heterosexual or homosexual, and to prescribe a standard for determining the question whether particular material is obscene.
The focus of the argument of the appellants is upon pornography produced for homosexual audiences. The Customs legislation does not address obscenity in that context. Whether the objective of the legislation is pressing and substantial is not to be determined on that narrow basis.
In my opinion the trial judge was correct to find on the basis of what was said in Butler, and on the basis that the objective is the same in a criminal and civil context, namely, to prevent harm to society generally from the proliferation of obscene material, that there was a pressing and substantial reason for prohibiting the importation of obscene material. Importation is but a first step in the proliferation and dissemination of obscene material the effect of which is, in the opinion of Parliament, obviously of harm to society.
Are the measures chosen rationally connected to the objective? The trial judge held that Butler had settled the point that there is a rational connection between s. 163(8) of the Criminal Code and the objective of preventing obscenity, whether heterosexual or homosexual. He said it is self-evident that the objective of preventing the proliferation of obscenity is logically furthered by prohibiting its importation into Canada. I agree.
Again, the appellants argue there is no rational connection between homosexual erotica and a reasoned apprehension of harm. The plaintiffs also argue that Butler has not settled the point because it does not address the Customs process by which material is judged to be obscene.
In my opinion, prohibiting the importation of obscene materials is rationally connected to preventing proliferation of obscenity. The process established by the legislation is not arbitrary or unfair. If Customs officials err, as decision-makers occasionally do, there is a system of review and appeal. The standard to be applied is clear. The legislation, properly administered, should not give rise to irrational results. The scheme is not a perfect one. In practical terms, it must be and is designed to inspect a small percentage of the total material entering the country. It is inevitable that some obscene material will be admitted, and it is clear that errors will occur in the classification of material which turns out to be non-obscene. I think the trial judge was correct in his conclusion and I would not give effect to the argument advanced by the appellants on that point.
Does the limitation impair the freedom as little as possible, i.e. is it appropriately restrained and not over-broad? The appellants agree that in order to meet its onus under the "minimal impairment" requirement the government need not prove that it has achieved the absolutely least intrusive measure conceivable, but says it must advance evidence to show that Parliament has at least considered whether the pressing and substantial objective could be achieved in other, less intrusive, ways.
The trial judge answered that submission by holding that the government has met the onus by showing that the legislation is appropriately restrained in that it is designed to catch only obscenity. Meritorious works are not prohibited. Homosexual erotica which is not obscene is not prohibited. A decision as to whether homosexual erotica is obscene must be determined on a case by case basis and such material should not be found to obscene if it meets the "internal necessities" test. The legislation contains an articulated definition of obscenity. In the scheme under consideration there is no criminal sanction provided. Inspection of material which may result in some delay is a minimal intrusion upon freedom of expression. Although only a partial screen is in place, a total screen would be unfair and impractical.
The appellants suggest that the American system, relating to prior restraint, would be less intrusive than the Canadian system. The implementation of such a system would mean that there would have to be a trial in respect of each item that Customs considers to be within Code 9956(a). The trial judge held that such a practice is unreasonable and would be impractical. He went on to examine the American system and found it inapplicable in the Canadian context. ...
The appellants say that the legislation is over-broad or over-inclusive in its application in that non-obscene material is sometimes prohibited. In my view that resulted from administrative shortcomings properly addressed by a s. 24(1) declaration.
The appellants were unable to cite any authority for the proposition that the legislation should be found to be of no force and effect because there were some difficulties in its administration. ...
In my view the trial judge was correct to hold that the legislation and administrative scheme in place, if properly administered, impaired freedom of expression as little as possible.
Are the negative effects of the limitation of the freedom proportionate to, or outweighed by, the positive effects of the Customs legislation and the objective of the legislation? The objective is to prevent the harm of obscenity by prohibiting its importation and thereby retarding its proliferation.
Negative effects It is submitted that non-obscene as well as obscene material is detained for inspection. The effect is to delay the delivery of non-obscene material to businesses such as Little Sisters. Delay also has an effect upon authors and publishers.
The answer to the problem relating to delay is that no screening system, whether administrative or judicial, can operate without some delay in the reception of material. It is difficult in many cases for an instant decision to be made that material is non-obscene.
A prohibition of some non-obscene material may result from error by administrative decision-makers. Human error cannot be wholly avoided in any process relating to judgment. The judge found that error could be minimized by better training and administration of the scheme and it is to be noted that, ultimately, there are provisions for review and appeal of decisions made at first instance by administrative personnel.
It is submitted that some obscene material is admitted. It appears that this may result from errors by administrative decision-makers, or by introduction of the material into the country by electronic or other technological means. The latter problem is beyond the scope of the legislation in question. Some may enter the country because there is only a partial screen. A total screen would be unfair as it would cause more delay. It is impractical because resources are not available to provide such a total screen.
Positive effects The Customs legislation is a deterrent to the importation of obscene materials, although a partial screen is not a perfect process.
The prohibition of the importation of obscene material is designed to avoid proliferation of such material within Canada.
The system is less intrusive than that found in certain other national systems, and constitutes a recognition of the international obligation of Canada to control the proliferation and dissemination of obscene material.
In summary, the negative effects on freedom of speech are either minimal or have been caused in the past by defects in the administration of the legislation. The trial judge held that the administrative problems were capable of solution. In practical terms, the undesirable effects concerning limitation of the freedom of expression are proportional to or outweighed by the positive effects to be gained by furthering the parliamentary objective. Parliament has legitimate and pressing concerns relating to fulfilling its international obligations and preventing the domestic proliferation of obscene material and the means chosen is a rational scheme.
3.Section 15 ... Does the Customs legislation infringe s. 15(1) of the Charter? The trial judge found that the Customs legislation did not infringe s. 15 of the Charter. He found that there was a disproportionate impact on the appellants Deva and Smythe but that the impact was a result of s. 163(8) of the Criminal Code which he held was not impugned. He then held further that any adverse impact was not discriminatory within the meaning of s. 15. He did not therefore engage in a s. 1 analysis.
The trial judge's decision that the application of the Customs legislation infringed s. 15, resulting in a s. 24 declaration, is not being appealed. ...
The trial judge erred in failing to consider the effect of s. 163(8), on the basis that the constitutionality of that provision was not challenged in this litigation. It is true the appellants do not, and cannot, directly challenge the decision in Butler, but at the heart of this appeal is the proposition that s. 163(8) is not an intelligible standard when applied by untrained customs officers, and cannot be justified under s. 1. ...
The Customs legislation is not discriminatory on its face. If applied properly it is not discriminatory in its effect but would catch only obscene material, whether heterosexual or homosexual.
The appellants' main assertion is that the Customs legislation is discriminatory in its application. That complaint was met by the s. 24 declaration. The trial judge recognized that the law was being administered unfairly, and granted a s. 24(1) remedy based on grave systemic problems of an administrative nature, and upon the arbitrary conduct of some customs officers.
The threshold for legislation to violate s. 15 is that it must first create a distinction. The Customs legislation's proscription of homosexual obscenity does not draw a distinction between homosexuals and others. The objective of the Customs legislation is to prevent harm to society generally from the proliferation of obscene material, and if homosexual obscenity is proscribed it is because it is obscene and not because it is homosexual.
Under either approach to the s. 15 analysis... there must be a distinction created by the legislation. As was the case in the Vriend decision, it is not therefore necessary to determine which of the approaches to the s. 15 analysis is preferable.
In my opinion the appellants' submission that the legislation is of no force and effect by reason of a violation of s. 15(1) of the Charter must fail. Having concluded there is no breach of s. 15, I will not proceed with a s. 1 analysis.
To summarize:
Finch J.A. (dissenting)
III The Breach of Charter Section 2(b) The federal Crown conceded that the Customs legislation infringed the freedom of expression guaranteed by s. 2(b) and, at para.120 of his reasons, the learned trial judge held that to be a proper concession. It is, however, in my view, important not to allow that concession to mask the fundamental importance of the freedom of expression. ...
The plaintiffs point out that the importance of the s.2(b) right was again recognized by the Supreme Court of Canada in Dagenais v. C.B.C., [1994] 3 S.C.R. 835, where the court held that the right to freedom of expression was to be accorded equal status with the right to a fair trial guaranteed by s. 11(d) of the Charter.
And the plaintiffs draw on American jurisprudence and scholarly articles to point out the dangers inherent in any system which imposes prior restraint on expression.
The plaintiffs contend that the learned trial judge erred in failing to recognize that the breach of the s. 2(b) rights was caused by the Customs law itself, and not simply by the way in which Customs officials administered the law. The plaintiffs say that in its practical operation and effect, the Customs law inevitably results in banning much expression which is not obscene.
The federal Crown rejects that proposition. It concedes that discretionary decisions made by Customs officers will on occasion result in mistakes being made, but points out that the legislation provides for an internal review procedure, and a further review by the courts.
The federal Crown also says that pornography or erotica is not at the core of the value protected by s. 2(b). That form of expression is less important than others such as political or social speech. And, counsel says, it is important to observe the differences between the Canadian Charter and the United States Bill of Rights... .
Counsel for the Attorney General of B.C. also urged us to regard American authority and jurisprudence with extreme caution.
The distinctions between the Canadian and American constitutional protection of freedom of expression or "free speech", and the jurisprudence each country has developed must of course be recognized. However, the fundamental value which the constitutions of both countries protect has the same foundation, namely the history and common law of England. ...
Canadian jurisprudence has similarly drawn on the English experience as the foundation of the right to freedom of expression. In R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, Mr. Justice McIntyre for the majority referred to John Milton's Areopagitica, and to John Stuart Mill's "On Liberty" as early recognition of the importance of freedom of expression (see p.583).
I do not find it either necessary or helpful, therefore, to compare the extent of the protection given to freedom of expression under our Charter with that afforded in the United States. Both Mr. Justice McIntyre's statement in Dolphin Delivery [] that "The principal of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy" and Mr. Justice Cory's statement [] that "It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression", are clear and authoritative affirmations of the importance to be placed on the s. 2(b) right.
Although the Crown admitted that the impugned legislation constituted a breach of the plaintiffs' right to freedom of expression, it made the point that pornography is not at the core of the democratic values protected by s. 2(b), and is entitled to less rigorous protection than other forms of expression. In [Lucas v. The Queen],... Mr. Justice Cory said for the majority... :
Accepting this, as I do, it should not be forgotten that these and similar statements have been made in the context of the criminal process, post publication, where an accused has the benefit of all the protections afforded by the criminal justice system. One should, I think, be very cautious in assigning degrees of importance to different forms of speech at the stage of a prior restraint, where none of those protections are available.
Assigning degrees of importance to the nature of the expression is in itself an inherently subjective exercise. The importance of expression cannot be measured against any absolute or objective scale.
I think it is important to remember, therefore, that s. 2(b) protects freedom of all "...thought, belief, opinion and expression...", subject only to the reasonable limits imposed by s. 1. No matter how provocative, offensive, or even disgusting the expression may be to some, it remains for government to justify by the standard set in s. 1 any limitations which it may seek to impose.
IV The Butler Case ... For the purposes of the present appeal, it is important to note what Butler did not decide. First, none of the seized material in Butler was books, so in my view there is an open question whether the restriction on importation of books imposed by the Customs legislation which incorporates s. 163(8) of the Code can be "justified" under s. 1.
Second, it does not appear from the reasons that any of the seized material in Butler was directed at a homosexual market. All of the social science evidence referred to appears to have been comment upon heterosexual or child pornography. There is, in my view, therefore an open question as to whether homosexual pornography would meet the "reasoned apprehension of harm" test discussed by Mr. Justice Sopinka.
Third, there was no argument in Butler based on breach of equality rights protected by s. 15(1) of the Charter. The discriminatory effect of the Customs legislation alleged by the plaintiffs in this case was not in issue.
Fourthly, and perhaps most importantly, the Court's reasons and decision were in the context of a criminal trial, where the constitutional validity of s. 163(8) was viewed as legislation directed towards "subsequent punishment". It was not a case, like the present, where the impugned legislation was attacked as a "prior restraint" on freedom of expression.
V Justifying the Infringement Under Section 1 ... VI "Prescribed by Law" ... I respectfully agree with the Crown's concession that Memorandum D9-1-1 is not "law", and I respectfully disagree with the learned trial judge's conclusion that it was. I think there is a significant difference between the guidance offered by legal advisers in the Department of Justice for the assistance of Customs officers, and what is said by a judge in his instructions to the jury.
A jury is told to accept the judge's instructions on the law, and not to apply their own understanding of what the law is, or ought to be. Moreover, the judge has the benefit of legal argument on contentious points from both sides to the dispute. It is not the sort of ex parte advice given by the Department of Justice to Customs, or by a lawyer to a prospective importer. Moreover, the judge's instructions on the law can be specifically directed and tailored to the facts of the case, which may be open to the jury to find on the evidence adduced and subjected to cross-examination. The judge's instruction on the law is not open to question by the jury, and the instruction is treated as infallible so there will be certainty in the record, and a proper means of addressing an appeal alleging legal error in the charge, if that should occur.
None of that applies to an internal memorandum such as D9-1-1, and so I am satisfied that the Crown's concession that Memorandum D9-1-1 is not law is proper.
The question then is, in the absence of Memorandum D9-1-1, whether the legislation itself is sufficiently accessible and precise as to provide an intelligible standard. The learned trial judge answered this question in the negative at para.156 quoted above, when he referred to Customs officers' difficulty in classifying material as obscene, and their reliance on Memorandum D9-1-1.
Our attention was directed to a substantial body of evidence to support those findings, and none to contradict them. There is no basis on which this Court could interfere with the trial judge's conclusion on that issue.
The learned trial judge appears to have concluded that the legislative standard was sufficiently precise because, in his view, Customs officials could be trained to apply it. ...
It seems to me, with respect, that if the law is not intelligible without an interpretive aide, such as Memorandum D9-1-1, or without "appropriate and consistent training" it cannot be said to meet the constitutionally-mandated standard of precision. The issue in this case is not whether the Criminal Code definition of obscenity is intelligible, but whether the use of that definition by Customs officials for non-criminal purposes meets the "prescribed by law" test.
If the legislation is not intelligible without Memorandum D9-1-1, then it seems to me it will also not be intelligible no matter what other "training" tool replaces that memorandum. The need for training only goes to show that in the context of Customs classifications, the Criminal Code definition is not adequate. The point is that the Criminal Code definition cannot be used on its own, and whatever aide is brought in to make it useable will be subject to the same criticism as Memorandum D9-1-1: it will not be "prescribed by law".
The Customs legislation says that the officials are responsible for barring from Canada any material "deemed to be obscene under s. 163(8) of the Criminal Code". Publications are deemed to be obscene for the purposes of a criminal trial only when the trier of fact is satisfied by proof beyond a reasonable doubt that a dominant characteristic of the publication is the undue exploitation of sex, or of sex plus crime, horror, cruelty or violence. Customs agents, unless sitting as members of a jury on a criminal case, and in the absence of express statutory authority, have no power to make findings of fact to the criminal standard of proof. The Customs legislation which authorizes Customs officers to "determine the tariff classification" carries with it no criminal law function.
It would therefore appear that what was found in Butler to be an intelligible standard for the purposes of a criminal trial is not a sufficiently intelligible standard for the purposes of the screening process engaged in by Customs officers applying the Customs tariff. I do not consider such a conclusion to be anomalous or inconsistent. While Parliament has authorized the Customs inspectors to prohibit only the obscene, the trial judge recognized that in the absence of extensive administrative changes non-obscene expression would continue to be unconstitutionally prohibited by Customs.
Parliament has not prescribed reasonable limits on the expression right of Canadians by leaving to untrained persons the task of making the extremely difficult, complex and contextually sensitive decisions as to whether a book, art work, or other form of expression is obscene, a determination charged with constitutional considerations and yet performed in private and in the absence of anything approximating due process. Parliament's failure to prescribe reasonable limits is, in my view, fatal to any justification of the impugned provisions.
The trial judge's response that the legislation provides an eventual right of appeal to the courts where the law will be interpreted and applied by the judiciary does not answer the claim that there are no reasonable limits prescribed by law. Very few persons have the time, energy or resources to challenge Customs's frequent initial determinations of obscenity. Large quantities of non-obscene material have been banned from Canada that should not have been. ...
Whether legislation sets a reasonable limit "prescribed by law" is a threshold test under s. 1. As the federal Crown fails to meet this test, the plaintiffs must succeed on this ground alone. ...
VII A Pressing and Substantial Objective ... The plaintiffs contend that the Butler case did not consider homosexual pornography in anything other than passing references. They say homosexual pornography can be distinguished from heterosexual or "mainstream" pornography in many ways. The plaintiffs say there is sound academic criticism of the equation of homosexual pornography with mainstream heterosexual pornography. They say erotica produced for homosexual audiences does not, and cannot produce the same kind of anti-social behaviour generally or through the stereotyping and objectification of women and children that Parliament apprehended as harmful in heterosexual obscenity. They say there is a substantial body of evidence in support of this view.
So the plaintiffs say a pressing and substantial objective cannot be taken as having been decided in Butler for the purposes of this case and must be decided afresh on the evidence adduced here.
The learned trial judge referred to the research, findings and opinions of Professor Neil M. Malamuth of the University of California at Los Angeles, who expressed the view that pornography produced for homosexual audiences may cause the kinds of changes and attitudes, emotions and behaviour identified in Butler as harmful to society. ...
Professor Malamuth did not testify at trial. His evidence as to the harmful effects of homosexual pornography are contained in Part Three of a written statement of his opinion prepared at the request of the federal Crown and adduced in evidence. ...
The federal Crown relies upon this evidence as sufficient to establish a reasonable apprehension by Parliament of harm from exposure to homosexual pornography. The federal Crown could not direct us to any other evidence tending to show a risk of harm from homosexual pornography.
The provincial Crown said that there was other evidence to the same effect as Professor Malamuth's, but at the end of the day was reduced to saying that the plaintiffs' experts could not say that there was no risk of harm from homosexual pornography, any more than the Crown could say that there was a risk of harm; and further, that the social science evidence of harm from homosexual pornography was inconclusive because this is a new area of inquiry.
I think, with respect, that the position taken by the provincial Crown overlooks the fact that, as noted above, under s. 1 of the Charter it is the Crown who bears the onus of proving that a limitation on a protected right is justified, and that within that obligation lies the burden of proving that there is a pressing and substantial legislative objective, in this case said to be the protection of society from a reasoned apprehension of harm.
I have already expressed the view that Butler did not address the risk of harm from homosexual pornography [] so I think the question in this case comes down to whether Dr. Malamuth's opinion is sufficient to discharge the Crown's burden.
The learned trial judge found that his evidence did discharge the onus [], and in this, in my respectful view, he erred. I am unable to find in Professor Malamuth's tentative and qualified opinion the sort of evidence that would show a reasonable basis for a finding by Parliament of a "pressing and substantial" objective. To say that "it would be desirable to have more information", that "consideration of these complex issues is beyond the scope of the present analysis" and that "I am not aware of any published systematic content analysis of gay pornography" is to acknowledge that available social science evidence does not disclose a pressing and substantial objective. Professor Malamuth's concluding sentence in answer to question "a", which I have underlined, is nothing more than an assumption, and an equivocal one at that.
In my respectful view, the learned trial judge erred in two respects on the issue of pressing and substantial objective. First, he wrongly inferred that Butler had already decided the question. Secondly, he misapprehended the nature and effect of Professor Malamuth's written opinion. If there is evidence to support the Crown's position on this issue, it was not before the court in this case.
VIII Proportionality ... 1.A "Rational Connection" The plaintiffs say the learned trial judge erred in holding that Butler had settled the point so far as the rational connection branch of the proportionality test was concerned. The plaintiffs say Butler had nothing to do with the process by which material is judged to be obscene, except to the extent that it is judged to be obscene in a criminal trial. The plaintiffs say that the scheme established by the Customs legislation is a form of prior restraint which has not been carefully designed to achieve the objective in question.
... [W]ithout endorsing his supporting reasons, I cannot say that he erred.
If one accepts (as I do not) that there was a sufficiently pressing and substantial objective in protecting society from the harm of homosexual pornography, then I think one would have to concede that barring importation or publication of that material is a rational means of achieving the goal.
I would not give effect to the plaintiffs' argument on this branch of the proportionality test.
2."Minimal Impairment" The second part of the proportionality test laid down in Oakes is whether the legislative means employed impair as little as possible the right or freedom in question. Of course, legislation cannot be invalidated for the simple reason that, after judicial reflection, less intrusive means can be conceived of - a certain amount of deference is owed to Parliament, and the legislative means will be upheld as minimally intrusive if they simply fall within a "range of reasonable alternatives" [].
As I have said above, I do not consider that the Crown has proven a pressing and substantial objective, so deciding whether the Crown has met the minimal impairment test is something of an academic exercise. However, as the learned trial judge took the view that the legislation in this case did satisfy the minimal impairment test, it is perhaps advisable to say something on the subject.
The learned trial judge appears to have accepted that the legislation was overbroad or overinclusive in its application, but concluded that this was not the fault of the legislation, but rather of the way in which Customs officials applied the legislation. ...
The plaintiffs say the learned trial judge placed too much emphasis on "administrative convenience", and the "practicality of the circumstances" and not enough emphasis on the importance of the expression right that was infringed.
The Crown supports the learned trial judge's conclusion on the issue of minimal impairment. It says the suggestion of an obscenity trial for every disputed item would not only be impractical, but would bring the legitimate work of Customs legislation to a standstill. I pause to note that, if the work of Customs be shown not to be legitimate, this Court should not hesitate to bring it to a standstill. The constitutional validity of the law is to be measured by its effect, rather than its purpose. ...
The Criminal Code provisions under scrutiny in Morgentaler were declared invalid because the administrative scheme created by the legislation violated the principles of fundamental justice guaranteed by s. 7 of the Charter.
Here the legislation does not create an administrative scheme or structure for the identification of obscenity. It is left up to the Customs officials to apply as best they can the standards set out by s. 163(8) of the Criminal Code. Here, Parliament has opted for the use of self-guided officials to determine moral content, in the absence of due process and intelligible statutory guidelines. As the reasons of the learned trial judge amply demonstrate, the best efforts of Customs officials result in the prohibition of much material that is not obscene.
Even assuming (again, as I do not) that there were a legitimate objective to this infringement of the right to free expression, the legislation is far from a minimal impairment, and cannot be said to fall within a range of reasonable alternatives.
The Crown has the onus of at least adducing evidence to show that Parliament considered whether the "pressing and substantial objective" could be achieved in a less intrusive way. []. No such evidence has been led in this case. There is no obligation on the plaintiffs to demonstrate what less intrusive means are available.
In my respectful view, the Crown would fail to meet the minimal impairment test even if it had succeeded in establishing a pressing and substantial objective.
3.Proportionality Between the Effect of the Measures and the Objective It will be apparent that the third stage of the proportionality test established in Oakes, namely weighing the effect of the measures adopted and the objective identified as sufficiently important, does not arise on my view of this case. Nevertheless, having already expressed my views on the importance of the freedom of expression and the deleterious nature of prior restraint, it should be readily apparent that in my view the Customs legislation would not be a proportionate means, even assuming that there were a legitimate end. Free expression is a fundamental right in any democratic society. A statutory scheme that imperils the free distribution of morally unimpeachable material cannot be justified by the lame explanation that obscenity was the real target.
In my view, the Crown having admitted breach of the plaintiffs' s. 2(b) right to freedom of expression, has failed to meet the test for justification under s. 1.
IX Remedy In my view the impugned legislation and tariffs are an unjustifiable infringement of the plaintiffs' s. 2(b) rights, and are of no force or effect as they apply to the importation of homosexual books, printed paper, drawings, paintings, prints, photographs or representations of any kind that are alleged to be obscene, and I would grant a declaration to that effect.
Because in my view the Crown has failed to establish justification under s. 1 of the breach of s. 2(b) it is unnecessary for me to consider the arguments arising under s. 15 of the Charter.
[The concurring opinion of Hall J.A. is omitted.] E. THE FIRST AMENDMENT
Roth v. United States 354 U.S. 476 (1957)
Brennan, J.
... Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales. He was convicted [for] mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute....
The dispositive question is whether obscenity is utterance within the area of protected speech and press. Although this is the first time the question has been squarely presented ... this Court has always assumed that obscenity is not protected by the freedoms of speech and press. [ ]
... The guaranties of freedom of expression in effect in 10 of the 14 States which by 1792 had ratified the Constitution, gave no absolute protection for every utterance. Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes. As early as 1712, Massachusetts made it criminal to publish "any filthy, obscene, or profane song, pamphlet, libel or mock sermon" in imitation or mimicking of religious services.[ ] Thus, profanity and obscenity were related offenses.
In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance. This phrasing did not prevent this Court from concluding that libelous utterances are not within the area of constitutionally protected speech. [] At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press.
The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people....
All ideas having even the slightest redeeming social importance -- unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion -- have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgement that obscenity should be restrained.... We hold that obscenity is not within the area of constitutionally protected speech or press.
It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they punish incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which is or may be incited in the persons stimulated to such thoughts. ... But, in light of our holding that obscenity is not protected speech, the complete answer to this argument is in the holding of this Court in Beauharnais v. Illinois []:
However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press....
It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest....
Harlan, J.
... In final analysis, the problem presented by these cases is how far, and on what terms, that state and federal governments have power to punish individuals for disseminating books considered to be undesirable because of their nature or supposed deleterious effect upon human conduct. ... [T]he Court finds the "dispositive question" to be "whether obscenity is utterance within the area of protected speech and press", and then holds that "obscenity" is not so protected because it is "utterly without redeeming social importance". This sweeping formula appears to me to beg the very question before us. The Court seems to assume that "obscenity" is a peculiar genus of "speech and press", which is as distinct, recognizable, and classifiable as poison ivy is among other plants. On this basis the constitutional question before us simply becomes, as the Court says, whether "obscenity", as an abstraction, is protected by the First and Fourteenth Amendments, and the question whether a particular book may be suppressed becomes a mere matter of classification, of "fact", to be entrusted to a fact-finder and insulated from independent constitutional judgment. But surely the problem cannot be solved in such a generalized fashion. Every communication has an individuality and "value" of its own. The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and in the nature of things every such suppression raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressible within constitutional standards. Since those standards do not readily lend themselves to generalized definitions, the constitutional problem in the last analysis becomes one of particularized judgments which appellate courts must make for themselves.
I do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labelled the questioned matter as "obscene".... Many juries might find that Joyce's "Ulysses" or Bocaccio's "Decameron" was obscene, and yet the conviction of a defendant for selling either book would raise, for me, the gravest constitutional problems, for no such verdict could convince me, without more, that these books are "utterly without redeeming social importance".... I am very much afraid that the broad manner in which the Court has decided these cases will tend to obscure the peculiar responsibilities resting on state and federal courts in this field and encourage them to rely on easy labelling and jury verdicts as a substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case....
... I do not think ... state and federal powers in this area are the same....
Not only is the federal interest in protecting the Nation against pornography attenuated, but the dangers of federal censorship in this field are far greater than anything the States may do. It has often been said that one of the great strengths of our federal system is that we have, in the forty-eight States, forty-eight experimental social laboratories.... The same book which is freely read in one State might be classed as obscene in another. And it seems to me that no overwhelming danger to our freedom to experiment and to gratify our tastes in literature is likely to result from the suppression of a borderline book in one of the States, so long as there is no uniform nation-wide suppression of the book, and so long as other States are free to experiment with the same or bolder books....
I judge this case, then, in view of what I think is the attenuated federal interest in this field, in view of the very real danger of a deadening uniformity which can result from nation-wide federal censorship.... So viewed, I do not think that this conviction can be upheld.... I cannot agree that any book which tends to stir sexual impulses and lead to sexually impure thought necessarily is "utterly without redeeming social importance." ...
Douglas, J., dissenting
... The absence of dependable information on the effect of obscene literature on human conduct should make us wary. It should put us on the side of protecting society's interest in literature, except and unless it can be said that the particular publication has an impact on action that the government can control.
As noted, the trial judge in the Roth case charged the jury in the alternative that the federal obscenity statute outlaws literature dealing with sex which offends "the common conscience of the community." That standard is, in my view, more inimical still to freedom of expression.
The standard of what offends "the common conscience of the community" conflicts, in my judgment, with the command of the First Amendment.... Certainly that standard would not be an acceptable one if religion, economics, politics or philosophy were involved. How does it become a constitutional standard when literature treating with sex is concerned? Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms. ...
I can understand (and at times even sympathize) with programs of civic groups and church groups ... I can understand the motives of the Anthony Comstocks who would impose Victorian standards on the community. When speech alone is involved, I do not think that government, consistently with the First Amendment, can become the sponsor of any of these movements. I do not think that government, consistently with the First Amendment, can throw its weight behind one school or another. Government should be concerned with antisocial conduct, not with utterances. Thus, if the First Amendment guarantee of freedom of speech and press is to mean anything in this field, it must allow protests even against the moral code that the standard of the day sets for the community. In other words, literature should not be suppressed merely because it offends the moral code of the censor.
The legality of a publication in this country should never be allowed to turn either on the purity of thought which it instills in the mind of the reader or on the degree to which it offends the community conscience. By either test the role of the censor is exalted, and society's values in literary freedom are sacrificed....
I reject too the implication that problems of freedom of speech and of the press are to be resolved by weighing against the values of free expression, the judgment of the Court that a particular form of that expression has "no redeeming social importance." The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence. The First Amendment puts free speech in the preferred position....
Notes and Questions
1. What does it mean for Brennan J. to state that obscenity is "utterly without redeeming social importance"? Is such a statement defensible? Can it survive the principle of content neutrality? If not, which of the two should prevail?
2. Harlan J. argues that, as matter or definition, it is unrealistic for the majority to exclude an entire category or expression from the first amendment. Do you agree? If you do, how should the question of reasonable limitations be judged: by Oakes, or by an issue-specific standard of justification?
3. Mr. Justice Harlan also addresses concerns which arise from principles of federalism. Which is preferable: a federal law which applies a uniform definition of obscenity, or different definitions of obscenity in different parts of the country?
4. Douglas J. states that the "absence of dependable information on the effect of obscene literature" argues against censorship. Do you agree with that proposition? American Booksellers Association v. Hudnut 771 F.2d 323 (7th Cir. 1985)
Easterbrook, Circuit Judge
Indianapolis enacted an ordinance defining "pornography" as a practice that discriminates against women. ... The City's definition of "pornography" is considerably different from "obscenity," which the Supreme Court has held is not protected by the First Amendment. ...
"Pornography" under the ordinance is "the graphic sexually explicit subordination of women", whether in pictures or in words, that also includes one or more of the following: [Presenting women as sexual objects who enjoy pain or humiliation; as sexual objects who experience sexual pleasure in being raped; as sexual objects tied up or cut up or mutilated or bruised or physically hurt, or as dismembered or truncated or fragmented or severed into body parts; as being penetrated by objects or animals; or in scenarios of degradation, injury, abasement, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual; or as sexual objects for domination, conquest, violation, exploitation, possession, or use, or through postures or positions of servility or submission or display.]
... The Indianapolis ordinance does not refer to the prurient interest, to offensiveness, or to the standards of the community. It demands attention to particular depiction, not to the work judged as a whole. It is irrelevant under the ordinance whether the work has literary, artistic, political, or scientific value....
Collectively the plaintiffs ... make, sell, or read just about every kind of material that could be affected by the ordinance, from hard-core films to W.B. Yeats's poem "Leda and the Swan"... to the collected works of James Joyce, D.H. Lawrence, and John Cleveland....
... Under the First Amendment the government must leave to the people the evaluation of ideas. Bald or subtle, an idea is as powerful as the audience allows it to be. A belief may be pernicious.... A pernicious belief may prevail. Totalitarian governments today rule much of the planet, practising suppression of billions and spreading dogma that may enslave others. One of the things that separates our society from theirs is our absolute right to propagate opinions that the government finds wrong or even hateful.
The ideas of the Klan may be propagated. [ ] Communists may speak freely and run for office. [ ] The Nazi Party may march through a city with a large Jewish population. [ ] People may criticize the President by misrepresenting his positions, and they have a right to post their misrepresentations on public property. [ ] People may teach religions that others despise. People may seek to repeal laws guaranteeing equal opportunity in employment or to [deny] the vote to blacks and women. They may do this because "above all else, the First Amendment means that government has no power to restrict expression because of its message [or] its ideas...."
Under the ordinance graphic sexually explicit speech ... that "subordinates" women and also, for example, presents women as enjoying pain, humiliation, or rape, or even simply presents women in "positions of servility or submission or display" is forbidden, no matter how great the literary or political value of the work taken as a whole. Speech that portrays women in positions of equality is lawful, no matter how graphic the sexual content. This is thought control. It establishes an "approved" view of women, of how they may react to sexual encounters, of how the sexes may relate to each other. Those who espouse the approved view may use sexual images; those who do not, may not.
Indianapolis justifies the ordinance on the ground that pornography affects thoughts. Men who see women depicted as subordinate are more likely to treat them so. Pornography is an aspect of dominance. It does not persuade people so much as change them. It works by socializing, by establishing the expected and the permissible. In this view pornography is not an idea; pornography is the injury.
There is much to this perspective. Beliefs are also facts. People often act in accordance with the images and patterns they find around them....
Therefore we accept the premises of this legislation. Depictions of subordination tend to perpetuate subordination. The subordinate status of women in turn leads to affront and lower pay at work, insult and injury at home, battery and rape on the streets. [ ] ...
Yet this simply demonstrates the power of pornography as speech. All of these unhappy effects depend on mental intermediation. Pornography affects how people see the world, their fellows, and social relations. If pornography is what pornography does, so is other speech. Hitler's orations affected how some Germans saw Jews. Communism is a world view, not simply a Manifesto by Marx and Engels or a set of speeches. Efforts to suppress communist speech in the United States were based on the belief that the public acceptability of such ideas would increase the likelihood of totalitarian government. Religions affect socialization in the most pervasive way....
Racial bigotry, anti-semitism, violence on television, reporters' biases- these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected as speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.
Sexual responses often are unthinking responses, and the association of sexual arousal with the subordination of women therefore may have a substantial effect. But almost all cultural stimuli provoke unconscious responses. Religious ceremonies condition their participants. Teachers convey messages by selecting what not to cover.... Television scripts contain unarticulated assumptions. People may be conditioned in subtle ways. If the fact that speech plays a role in a process of conditioning were enough to permit governmental regulation, that would be the end of freedom of speech. It is possible to interpret the claim that the pornography is the harm in a different way. Indianapolis emphasizes the injury that models in pornographic films and pictures may suffer.... [A] state may make injury in the course of producing a film unlawful independent of the viewpoint expressed in the film.
The more immediate point, however, is that the image of pain is not necessarily pain.... Depictions may affect slavery, war, or sexual roles, but a book about slavery is not itself slavery, or a book about death by poison a murder....
... We come, finally, to the argument that pornography is "low value" speech....
Indianapolis seeks to prohibit certain speech because it believes this speech influences social relations and politics on a grand scale, that it controls attitudes at home and in the legislature. This precludes a characterization of the speech as low value. True, pornography and obscenity have sex in common. But Indianapolis left out of its definition any reference to literary, artistic, political, or scientific value. The ordinance applies to graphic sexually explicit subordination in works great and small....
Any rationale we could imagine in support of this ordinance could not be limited to sex discrimination. Free speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech. Culture is a powerful force of continuity; Indianapolis paints pornography as part of the culture of power. Change in any complex system ultimately depends on the ability of outsiders to challenge accepted views and the reigning institutions. Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.
The definition of "pornography" is unconstitutional....
Notes and Questions
1. What is Easterbrook J.'s message? What conception of expressive freedom does he endorse - is it pessimistic or optimistic - and do you agree or disagree with it?
2. Why does he view the argument for regulation so critically? Is the regulation of expressive activity itself harmful, and is it any different than the regulation of other human activity? Skyywalker Records Inc. v. Navarro 742 F. Supp. 578 (1990)
Gonzalez, J.
... The recording As Nasty As They Wanna Be was released to the public by 2 Live Crew in 1989. To date, public sales have totalled approximately 1.7 million copies.... 2 Live Crew has also produced a recording entitled As Clean As They Wanna Be (Clean) which has sold approximately 250,000 copies. Although neither party introduced Clean into evidence, it apparently contains the same music as Nasty but without the explicit sexual lyrics....
The Miller v. California Test
In deciding whether a specific work is or is not obscene, the court must apply the controlling test enunciated in Miller v. California. To be obscene, there must be proof of all three of the following factors: (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) measured by contemporary community standards, the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value [].
The Relevant Community
Both the first and second elements of Miller require application of "contemporary community standards." The ... size of the appropriate community, its composition, and the view of the average person in that group are all questions of fact....
[I]n assessing whether this work is obscene, the relevant community is the area of Palm Beach, Broward, and Dade Counties.... These three adjoining counties share common geography on the eastern coast of Florida.... All three counties are open communities.... Culturally, there is also a strong connection. Even though each county has a distinct mix of ethnic peoples, cultural events are advertised to and attended by the residents of all three. Because of the strong transportation ties, the area is also linked economically.... Finally, there are political ties....
If the relevant community is Broward, Dade, and Palm Beach counties, the next step is to determine the composition of the citizens of this area. The court, as the finder of fact, must rely upon its own personal knowledge as the parties failed to present evidence on this point. In a word, this area is remarkable for its diversity. The three counties are a mecca for both the very young and the very old.... There are both families and single individuals residing in the communities. Generally, the counties are heterogeneous in terms of religion, class, race, and gender. The Average Person Standard
...In determining the views of the "average person" in this area, the court has not focused only on the views of the most tolerant or the most sensitive individuals. [ ] The "average person" does not necessarily represent any one segment of the community. It is a legal concept whereby a single perspective is derived from the aggregation or average of everyone's attitudes in the area including persons with differing degrees of tolerance....
The true basis of the plaintiffs' argument is that the legal standard of the "community" and the "average person" are too nebulous to apply to an issue of constitutional law. This position ignores the fact that the law does not require absolute certainty.... Application of the "community" and "average person" standards are no different than that of applying the standard of the "reasonable person"....
The First Miller Test: Prurient Interest
This court finds, as a matter of fact, that the recording As Nasty As They Wanna Be appeals to the prurient interest....
Nasty appeals to the prurient interest for several reasons. First, its lyrics and the titles of its songs are replete with references to female and male genitalia, human sexual excretion, oral-anal contact, fellatio, group sex, specific sexual positions, sado-masochism, the turgid state of the male sexual organ, masturbation, cunnilingus, sexual intercourse, and the sounds of moaning.... [S]ection 847.001(11), Florida Statutes, [] defines "sexual conduct" to include "actual or simulated sexual intercourse, deviate sexual intercourse, ... masturbation, ... sadomasochistic abuse; [or] actual lewd exhibition of the genitals"." Section 847.001(2), defines deviate sexual intercourse as sexual conduct between unmarried persons involving contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. Section 847.001(8) defines sadomasochistic abuse as satisfaction from sadistic violence derived by inflicting harm upon another. These definitions cover most, if not all, of the sexual acts depicted in As Nasty As They Wanna Be.
Furthermore, the frequency and graphic description of the sexual lyrics evinces a clear intention to lure hearers into this activity. The depictions of ultimate sexual acts are so vivid that they are hard to distinguish from seeing the same conduct described in the words of a book, or in pictures in periodicals or films.
It is also noteworthy that the material here is music. It is true that it would be difficult, albeit not impossible, to find that mere sound without lyrics is obscene.... But, the focus of the Nasty recording is its lyrics. Based on the evidence at trial, music of the "rap" genre focuses upon verbal messages accentuated by a strong beat.... The evident goal of this particular recording is to reproduce the sexual act through musical lyrics. It is an appeal directed to "dirty" thoughts and the loins, not to the intellect and the mind.
[The] fact that the plaintiffs made a profit from the public distribution of the Nasty recording is not relevant in determining obscenity. [ ] However, the court can consider the manner in which the material was distributed and promoted to determine if the "leer of the sensualist" permeates the work. [ ]
... The record at trial indicates that the plaintiffs' commercial exploitation of this work was done in a manner calculated to make a salacious appeal....
One of the more interesting points suggested by the evidence at trial ... was that 2 Live Crew made two apparently identical albums with the only difference being the sexually explicit lyrics.... To date, the Nasty version has sold 1.7 million ... copies. The identical recording sans sexual lyrics(Clean) has sold only 250,000 copies. The difference between the actual sales of the two recordings can reasonably be found to have been motivated by the "leer of the sensualist"....
The Second Miller Test: Patently Offensive
The court also finds that the second element of the Miller test is satisfied in that the Nasty recording is patently offensive. This is a question of fact, which must be measured by contemporary community standards. [ ]...
The recording depicts sexual conduct in graphic detail. The specificity of the descriptions makes the audio message analogous to a camera with a zoom lens, focusing on the sights and sounds of various ultimate sex acts. Furthermore, the frequency of the sexual lyrics must also be considered. With the exception of part B on Side 1, the entire Nasty recording is replete with explicit sexual lyrics....
While the above facts are sufficient to support a finding that this material is patently offensive, there are additional considerations that support such a finding. First, the Nasty lyrics contain what are commonly known as "dirty words" and depictions of female abuse and violence. It is likely that these offensive descriptions would not of themselves be sufficient to find the recording obscene. [ ] When these terms are used with explicit sexual descriptions, however, they may be considered on the issue of patent offensiveness. Secondly, the material here is music which can certainly be more intrusive to the unwilling listener than other forms of communication.... A person laying on a public beach, sitting in a public park, walking down the street, or sitting in his automobile waiting for the light to change is, in a sense, a captive audience. [Citizens] do not have an obligation to buy and use ear plugs in public if the state legislature has chosen to protect them from obscenity....
The Third Miller Test: Social Value
The final factor under Miller is whether the Nasty recording, taken as a whole, lacks serious literary, artistic, political, or scientific value. This factor is not measured by community standards. The proper inquiry is whether a reasonable person would find serious social value in the material at issue. [] ....
As a preliminary matter, it is again important to note what this case is not about. Neither the "Rap" or "Hip-Hop" musical genres are on trial....
The third element of the Miller test focuses upon the social value of the particular work, not its creators....
The plaintiffs themselves testified that neither their music nor their lyrics were created to convey a political message.
The only witness testifying at trial ... was Carlton Long, who was qualified as an expert on the culture of black Americans. [He] stated that the recording was political because the 2 Live Crew, as a group of black Americans, used this medium to express themselves. While it is doubtless true that Nasty is a product of the group's background, including their heritage as black Americans, this fact does not convert whatever they say, or sing, into political speech....
... Professor Long also suggested that there is cultural content in 2 Live Crew's recording which rises to the level of serious sociological value. According to this witness, white Americans "hear" the Nasty recording in a different way than black Americans because of their different frames of references. Long identifies three cultural devices evident in [this work]: "call and response", "doing the dozens", and "boasting"....
The only examples of "call and response" in the Nasty recording are portions where males and females yell, in repetitive verse, "Tastes Great--Less Filling" and, in another song, assail campus Greek-letter group. The phrases alone have no significant artistic merit nor are they examples of black American culture. In the case of "Tastes Great--Less Filling", this is merely a phrase lifted from a beer commercial.
The device of "doing the dozens" is a word game composed of a series of insults escalating in their satirical content. The "boasting" device is a way for persons to overstate their virtues such as sexual prowess. While this court does not doubt that both "boasting" and "doing the dozens" are found in the culture of black Americans, these devices are also found in other cultures. "Doing the ... commonly seen in adolescents, especially boys, of all races. "Boasting" seems to be part of the universal human condition.
Professor Long also cited to several different examples of literary devices such as rhyme and allusion which appear in Nasty, and points to the song title "Dick Almighty" as an example of the literary device of personification. This, of course, is nonsense.... "A quotation from Voltaire in the fly leaf of a book"..."will not constitutionally redeem an otherwise obscene publication." []
Prior to Miller, the government had to demonstrate that a work was utterly without redeeming social value to be judged obscene. [] The present test is less stringent, only requiring proof of an absence of serious social worth....
The key to judging the Nasty recording is to consider it as a whole.... Taking the work in its entirety, the several riffs [borrowed from other artists] do not lift Nasty to the level of a serious artistic work. Once the riffs are removed, all that remains is the rhythm and the explicit sexual lyrics which are utterly without any redeeming social value.
Obscenity is not a required element for socially valuable "rap" or "hip-hop" music. 2 Live Crew itself proved this point by the creation of its Clean recording....
Notes and questions
1. The litigation history of 2 Live Crew raised questions about the concept of "community standards". What was the likelihood, in Broward County Florida, that "the community" would be capable of accepting black rap music? Can black rap music avoid being marginalized by a dominant white community?
2. Andrew Dice Clay and Robert Mapplethorpe provide useful counter-examples. Why should 2 Live Crew be regarded as more misogynist than Andrew Dice Clay, and how can sado- masochistic photographs be constitutionally protected in Cincinnati when "As Nasty" was found to be without any redeeming value in Florida? If blacks and women have both been discriminated against historically, how do you decide whose interests prevail?
3. "As Nasty" was found by the Ontario Provincial Court to violate s. 163 of the Criminal Code; [see R. v. Emery (1992), 8 O.R. (3d) 60; affirming (1991), 4 O.R. (3d) 344.]. [See A. Young, "From Elvis's Pelvis" to "As Nasty As They Wanna Be: Freedom of Expression and Contemporary Popular Music", (1990) 1 Med. and Comm. L. Rev. 155.]. |
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