COMMENTS
CHRONIQUE DE JURISPRUDENCE ET DE LfEGISLATION
Defining Pornography: An Analysis of Bill C-54
Kathleen E. Mahoney*
The Criminal Code provisions presently in
force dealing with pornography have been
criticized for a number of reasons by various
groups within Canadian society. Among
these are feminists, moralists and civil lib-
ertarians. The feminists demand greater
severity in dealing with degrading pornog-
raphy; the moralists are asking for a general
limitation on the production of erotic as well
as pornographic material; the civil libertari-
ans would like to see the definition of por-
nography in the Code clarified in order to
limit judicial arbitrariness in the classifica-
tion process. The author analyzes Bill C-55,
a bill which attempts to reform the law re-
lating to pornography. This attempt by the
legislators, although praiseworthy, is found
deficient in many respects. The author notes,
among other problems, the poor drafting of
the Bill, the absence of a clear distinction be-
tween pornography and eroticism, the meas-
ures dealing with child pornography which
are in some cases too restrictive and in others
too liberal, and sanctions which are dispro-
portionate and often ineffectual. When one
considers the existing jurisprudence on por-
nography, the author concludes, it becomes
apparent that the proposed legislation does
not offer any new protection to those affected
by pornography. Instead, it could well be-
come the source of numerous injustices.
Les mesures pr~sentement en vigueur dans
le Code criminel relativement A Ia pronogra-
phie sont critiqu~es pour diverses raisons par
de nombreux groupes au sein de la popula-
tion, groupes que l’on peut distinguer selon
qu’ils soient feministes, moralistes et d~fen-
seurs de .libert~s civiles. Les premiers de-
mandent une plus grande s6v~rit6 A
l’encontre des produits pornographiques d6-
gradants, ce qui s’est le plus souvent av~r6 le
cas pour la femme; les seconds recherchent
une limitation g~n~rale de la production
d’oeuvres i caract~re tant pornographique
qu’Erotique; les derniers, quant A eux, de-
mandent une definition plus claire des pro-
hibitions du Code afin de limiter l’arbitraire
des tribunaux dans l’appr~ciation du carac-
tare pornographique d’une oeuvre. Lauteure
analyse le projet de loi C-54, qui se veut une
r~forme du droit relatif A la pornographie.
Cet effort du lgislateur, bien que louable,
s’avre deficient sur plusieurs points. Uau-
teure note, entre autres, la mauvaise r~dac-
tion legislative, l’absence de distinction claire
entre pornographie et 6rotisme, le caractre
tantft trop restrictif et tant6t trop permissif
des dispositions relatives A la pornographie
enfantine, ainsi que ses sanctions dispropor-
tionn~es et souvent inefficaces. Ce projet de
loi, conclut l’auteure, n’offre pas de protec-
tion nouvelle si l’on considre la jurispru-
dence existante en matire de pornographie.
Au surplus, il pourrait s’avfrer source de
nombreuses injustices.
*Associate Professor, Faculty of Law, University of Calgary.
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Introduction
The Government of Canada has been searching for a way to improve
obscenity laws since the mid-1970s. 1 This search has included studies by
Parliamentary Committees, special committees, task forces, numerous pub-
lic hearings and volumes of research. 2 These efforts were sometimes in
response to, but often in conjunction with, the formation of citizen coalitions
and other lobby groups who organized their own campaigns to protest the
state of the current law.3
All the studies and reports commissioned or conducted by the govern-
ment, culminating in the Fraser Committee Report,4 recommended change.
They essentially agreed that the exploitative nature of pornography and its
harmful effects on women and children must be addressed by the criminal
law. In June 1986, the federal government introduced Bill C-1 14,5 which
proposed to revise the obscenity provisions of the Criminal Code and Cus-
toms TariffAct. This bill was dropped at the end of the Parliamentary session
and replaced by Bill C-54, in May, 1987.6
In this paper, I will examine Bill C-54, by comparing it to the present
law and by explaining specific provisions in the Bill. I will examine the
Bill’s definitions, offences, defences and penalties in light of the government’s
stated policy objectives and compare them to criticisms and reform de-
manded by the lobby groups and recommended by the Fraser Committee.
I will attempt to draw some conclusions as to the efficacy and potential
effects of the Bill.
‘There have been over forty bills introduced in the House of Commons in the last twelve
years.
2For example, see Canada, Report of the Committee on Sexual Offences Against Children
and Youth (Ottawa: Supply & Services, 1984) (Chair. R.E Badgley); Canada, Parliament, H.C.,
Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs,
“Report on Pornography” No. 18 (22 March 1978); Department of Justice, Special Committee
on Pornography and Prostitution (Fraser Committee) (1983).
3Some of the major groups were the Canadian Coalition Against Media Pornography (and
several provincial coalitions); Canadian and provincial Advisory Councils on the Status of
Women; Media Watch; National Action Committee on the Status of Women; Canadian Civil
Liberties Association (and provincial associations); Canadian Conference of Catholic Bishops;
and the United Church of Canada.
4Pornography and Prostitution in Canada: Report of the Special Committee on Pornography
and Prostitution, 2 vols and summary (Ottawa: Supply & Services, 1985) (Chair. P. Fraser)
[hereinafter the Fraser Committee].
5Bill C-1 14, An Act to amend the Criminal Code and the Customs Tariff, 1st Sess., 33d Parl.,
1984-85-86.
6Bill C-54, An Act to amend the Criminal Code and other Acts in consequence thereof, 2d
Sess., 33d Parl., 1986-87.
19881
CHRONIQUE DE LEGISLATION
I. A Critical Review of the Present Law
In order to provide some background to Bill C-54 and to understand
why new laws which deal with pornography are thought to be necessary,
one must examine the present law and the criticism it has attracted.
All of the relevant provisions in the Criminal Code use the word “ob-
scenity” in describing and defining offensive material. “Pornography”, by
contrast, is not a term employed by the drafters. The definition provided
in the Code for “obscenity” is “any publication a dominant characteristic
of which is the undue exploitation of sex, or of sex and any one or more
of the following subjects, namely crime, horror, cruelty and violence.”‘7
The Criminal Code prohibits the circulation, distribution and produc-
tion of obscene matter.8 It permits the seizure, forfeiture and disposal of
obscene material 9 and distributors of such material are prohibited from
requiring retailers to accept pornographic. materials in order to sell non-
obscene material (“tied sale” arrangements).’ 0
Other provisions make it an offence to exhibit a “disgusting object or
an indecent show”, 1′ to present or participate in “an immoral, indecent, or
obscene performance”, or to print or publish in relation to any judicial
proceedings “any indecent matter or indecent medical, surgical or physio-
logical details, being matter or details that, if published, are calculated to
injure public morals.”’12
Critics of the present obscenity laws generally fall into one of three
ideological groups: feminists, civil libertarians or conservative moralists.
Each group has its own perception of harm and its own rationale for limiting
sexual expression. The ideologies of the groups promoting change are of
fundamental importance, because as I have discussed in an earlier article,’ 3
much of the confusion and dissatisfaction surrounding obscenity laws can
be traced to the failure of lawmakers to develop a coherent rationale to
justify and explain their policies and decisions. Different statutes often have
philosophical bases that contradict or clash with one another. Any new laws
will require philosophical consistency in order to overcome these problems.
7R.S.C. 1970, c. C-34, s. 159(8).
sIbid., s. 159(I)(a).
9lbid., s. 160.
‘0lbid., s. 161.
“Ibid., ss 159(2)(b), 163.
12lbid., s. 162(1)(a).
13K.E. Mahoney, “Obscenity and Public Policy: Conflicting Values – Conflicting Statutes”
(1985-86) 50 Sask. L. Rev. 75.
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A. Pornography as a Moral Issue
It is clear from the plain words of the obscenity provisions that sexual
immorality is the mischief the law seeks to address. 14 This policy has at-
tracted a great deal of criticism. Feminist commentators argue that por-
nography, far from being a moral issue, is a political issue, because it
promotes and ensures the unequal status of women.’ 5 They say that ob-
scenity laws which only concern themselves with nudity, explicitness, of-
fensiveness and sexual stimulation of the viewer completely miss the point:
any new law must necessarily arise out of a collective desire to change
societal conditions of women. 16
A leading positivist has rejected the moralistic approach, pointing out
that the present obscenity laws presuppose a common morality and sexual
ethic which is not necessarily shared by all in a pluralistic society; a good
society can only survive in a market place of ideas, free from restraint. 17
Civil libertarians reject moral underpinnings because they uphold free-
dom of the individual as the ultimate value to be protected by law. To them,
the social order is not a valued end in itself but rather a means to achieve
individual freedom and security. The self-expression and self-fulfillment of
individuals who comprise a society are ends in themselves that should be
free from majoritarian or state direction.
Conservative moralist critics on the other hand, support the moral
foundation of the obscenity laws, arguing that only strong moral values will
prevent the destruction of society. 8 Their argument rests on the underlying
assumption that pornography is an aberration from normal, acceptable so-
cietal conditions. Only obscenity laws need be changed, not society itself.
B. The Definition of Obscenity
The definition of obscenity in the Criminal Code has been heavily
criticised from all sides. Curiously, there is a consensus that it is too broad
and too vague.
14The sections dealing with obscene and indecent materials appear in the Criminal Code
under the title, “Offences Tending to Corrupt Morals”. In R. v. Beaver (1905), 9 O.L.R. 418
at 425 (C.A.) MacLaren, J.A. stated that obscenity meant “something offensive to modesty or
decency, or expressing or suggesting unchaste or lustful ideas or being impure, indecent or
lewd”.
Harvard University Press, 1987) c. 13: “Not a Moral Issue”.
15C.A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, Mass.:
S6For example, see B. Faust, Women, Sex andPornography (Harmondsworth: Penguin Books,
1980) at 180-89.
17H.L.A. Hart, Law, Liberty and Morality (Stanford: Stanford University Press, 1963) at 67-
81.
18P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965) at 18.
1988]
COMMENTS
Civil libertarians argue that the vagueness and subjectivity of the words
used in section 159 leave publishers, film makers, authors and booksellers
in a state of constant insecurity about compliance with obscenity laws. 19
Any new formulation of the concept, they say, must be narrower in scope
and much more precisely defined.20
Feminists object to the current definition on the same grounds but make
the additional point that subjective norms in the hands of a male-dominated
administration often results in biased decision-making.21 The lack of pre-
cision in the definition leaves it open to subjective interpretation by police
and customs officers, crown attorneys and judges. Violent, degrading por-
nography often slips through the net of subjective interpretation while non-
violent, non-degrading sexual material is sometimes found obscene. Fem-
inists also criticize the definition for its implicit approval of the sexual
exploitation of women. Where section 159 states that obscenity includes the
“undue exploitation of sex”, it appears to affirm that there is such a thing
as “due” exploitation even if combined with the other elements of crime
and violence. 22
Conservative moralist groups oppose the current definition for its va-
gueness and breadth, arguing that it permits the law to be interpreted too
liberally, allowing violent and degrading depictions of sex as well as other
explicit portrayals of sexual behavior to escape criminal sanction. Both
feminists and conservative moralists attack the definition for not addressing
child pornography.
C. Judicial Interpretaion of Obscenity Laws
The judiciary has been criticized from all sides for its fickle interpre-
tation of the obscenity laws and particularly for its resort to the “community
standards” test. Civil libertarians condemn the test because it is enormously
difficult to apply and yields inconsistent results. 2 3 Feminists go further. They
view judges’ use of the “community standards” test as inherently biased.
Moreover, in a society where discrimination against women is systemic, any
test based on community standards is bound to be disadvantageous for
19Fraser Committee, supra, note 4 at 77.
2OIbid. at 78. In their brief to the Fraser Committee, the Canadian Civil Liberties Association
took the position that unless the portrayals of sexual violence were real as opposed to simulated,
they should not be proscribed. Various local associations gave qualified support to municipal
regulations keeping pornography out of the sight and reach of children.
21See K.E. Mahoney, “Biased and Neutral Approaches in Obscenity Decisions” in K.E.
Mahoney and S.L. Martin, eds, Equality and Judicial Neutrality (Toronto: Carswell, 1987) 298.
22Fraser Committee, supra, note 4 at 114.
23Canadian Civil Liberties Association, “Pornography and the Law” (1984) [unpublished
brief submitted to the Fraser Committee].
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women.24 Judges themselves have recognized that a common community
standard in a country as diverse and geographically far-flung as Canada, is
extremely difficult to discern. 2 5 One judge has asserted:
The lack of unanimity in the decisions of the courts in obscenity cases suggests
that the Canadian contemporary community standard may very well be a very
elusive, not readily discernible, and ill-defined standard.26
D. Fraser Committee Recommendations
The Fraser Committee was struck in 1983 to consider, inter alia, the
availability, effects and common conception of pornography in Canada; to
ascertain public views on ways and means to deal with it; and to consider
alternatives, to report findings and to recommend solutions to the problems
associated with pornography and prostitution in Canada.2 7 The Committee
reported to the Minister of Justice in 1985, recommending comprehensive
legal reform so that the social causes of the problems associated with por-
nography and prostitution could be addressed and remedied.
The Fraser Committee detected two forms of harm flowing from por-
nography: the moral offence caused when people are involuntarily exposed
to it and the broader social harm it causes by undermining the right to
equality. Its recommendations envisioned a three-tiered approach. Extreme
forms of pornography involving children or physical harm to participants
would be prohibited and would attract the most serious penalties. On a
second level, violent behavior for the purpose of sexually stimulating the
viewer, including bondage, bestiality, incest or necrophilia, would also be
prohibited but attract less serious sanctions than tier one; the third tier would
include visual material depicting vaginal, oral or anal intercourse, mastur-
bation and lewd touching of genitalia which would attract criminal sanction
only where no warning was given or material was sold or made accessible
to people under eighteen. No portrayal of persons under eighteen or sexual
violence were to be included in tier three.2 8
24Mahoney, supra, note 19 at 304-06.
25See comments of Borins Co. Ct J. in R. v. Doug Rankine Co. (1983), 9 C.C.C. (3d) 53 at
68-71, 36 C.R. (3d) 154 [hereinafter Doug Rankine cited to C.C.C.].
26R. v. Cinema International Canada Ltd (1981), 13 Man. R. (2d) 337 at 342 (Co. Ct), afld
(1982), 13 Man. R. (2d) 335 (C.A.) [hereinafter Cinema International (C.A.)].
27Fraser Committee, supra, note 4 at 5-6.
28Ibid. at 276-79.
19881
CHRONIQUE DE LEGISLATION
E. Post-Fraser Report Developments
Subsequent to the Fraser Report, the Supreme Court of Canada clarified
somewhat the legal definition of obscenity. Degradation and violence in
movies were addressed in dicta in Towne Cinema29 and non-degrading, non-
violent but explicit sex in movies and video, was dealt with in R. v. Video
World.30 In Towne Cinema the Court concluded that sexually degrading
depictions were “undue” for the purposes of section 159. Madam Justice
Wilson’s characterisation of”undueness” explained the type of harm caused
by obscenity:
It seems to me that the undue exploitation at which s. 159(8) is aimed is the
treatment of sex which in some fundamental way dehumanizes the persons
portrayed and, as a consequence, the viewers themselves. 31
The Court was of the view that sexual expression portraying persons as
objects of violence, cruelty or other dehumanizing treatment was obscene,
yet they added their voices to the criticism of the definition when they stated
a need for objective criteria to determine the question of “undueness”.
In Video World, the Supreme Court was asked to rule on films con-
taining simulated depictions of almost every form of sexual activity possible,
including anal, oral, and vaginal intercourse, masturbation, cunnilingus,
lesbianism and group sex. 32 Video World had been brought to the Manitoba
Court of Appeal as a test case to decide which of two conflicting views on
the content of obscenity previous decisions was correct. On the one hand,
obscene films had been described as
either wholly destitute of plot or, if they do have a story line, it is one that is
transparently thin, a palpably meagre framework on which to hang one erotic
episode after another. … [T]hey invariably show, among other depictions of
sex, a scene of Lesbianism as well as the inevitable wild orgy. Anyone familiar
with skin-flicks –
either through stag movies or through certain types of com-
mercial theatres – will be aware of something else too, namely that the sexual
scenes often go beyond mere simulation. 33
29Towne Cinema Theatres Ltd v. R., [1985] 1 S.C.R. 494, 45 C.R. (3d) 1, 18 D.L.R. (4th) 1
[hereinafter Tovne Cinema cited to S.C.R.].
30R. v. Video World Ltd, [1987] 1 S.C.R. 1255, 77 N.R. 77 aff’g (1985), 36 Man. R. (2d) 68,
22 C.C.C. (3d) 331 (C.A.), rev’g (1985), 32 Man. R. (2d) 41 [hereinafter Video World (C.A.)
cited to Man. R.].
31Supra, note 29 at 523.
32The evidence consisted of an agreed statement of facts, the video cassettes and agreed
written summaries of the films. The agreed statement of facts said none of the movies contained
scenes of violence, involvement of children or animals or degradation of women, but all of
the movies contained scenes of various types of sexual activities.
33Cinema International (C.A.), supra, note 26 at 337, Freedman C.J. in reference to his earlier
judgment in R. v. Odeon Morton Theatres Ltd (1974), 45 D.L.R. (3d) 224 at 233, [1974] 3
W.W.R. 304, 16 C.C.C. (2d) 185 [hereinafter Odeon Morton].
McGILL LAW JOURNAL
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On the other hand, another Manitoba court had decided that “films which
consist substantially of scenes of people engaged in sexual intercourse” and
also scenes of “group sex, lesbianism, fellatio, cunnilingus, and anal sex”
were not obscene. 34
The Manitoba Court of Appeal chose the standard set in the first case.
The court added that it was not necessary for sexually explicit depictions
to contain crime, horror, cruelty or violence in order to be found obscene
and the fact that the sexual acts were simulated did not lessen their obscene
character. As Matas J.A. explained,
in some cases a simulated act can be more graphic and explicit than a depiction
of the actual physical act. A more apt distinction would be the manner of
portrayal of the sexual acts. The manner of depiction is all important; not
whether the scenes are simulated.35
He added that the films before him were devoid of artistic merit. The
Supreme Court of Canada, dismissing the appeal, adopted his reasoning.
In Video World the Supreme Court thus established a minimum stand-
ard for sexually explicit visual material. At the very least, an explicit or
simulated film must be more than a “skin flick” (as described by Freedman
C.J. in Cinema International) to avoid being obscene. It appears that sex
films, simulated or explicit, are vulnerable to prosecution unless they have
some redeeming artistic merit and do not degrade or humiliate the partic-
ipants. The effect of these two recent decisions is to prohibit a very broad
range of sexual expression, beyond that recommended by the Fraser Com-
mittee, feminist groups or civil libertarians. It is against this backdrop that
I now turn to an examination of Bill C-54.
III. Bill C-54
The Justice Minister revealed the government’s policy on pornography
when he tabled the proposed amendments to the Criminal Code in the
House of Commons on 26 November 1987.36 He said:
Bill C-54 reflects the Government’s commitment to pass legislation to fight
against pornography in an effective manner, and to insert in the Criminal Code
the relevant provisions it so badly needs. Our legislative response is aimed at
ensuring the dignity of the individual in Canadian society. …[W]e must take
the steps necessary to protect our children from gratuitous violence, whether
adopting the view of Borins Co. Ct J. in Doug Rankine, supra, note 25 at 70.
34R. v. Ramsingh (1984), 29 Man. R. (2d) 110 at 115, 14 C.C.C. (3d) 230 (Q.B.), Ferg J.,
35Video World (C.A.), supra, note 30 at 77.
36Supra, note 6.
1988]
COMMENTS
37
emotional or physical, and must protect individuals from degradation and
exploitation.
In order to meet the objectives of ensuring individual dignity and pro-
tecting children from sexual abuse, the Government’s proposal to amend
the Criminal Code includes new definitions of “pornography” and “erotica”;
a new offence structure including restrictions on display; a broad penalty
range from summary convictions to ten year prison terms; child pornog-
raphy as a distinct type of pornography; new provisions dealing with the-
atrical performances; a new hate propaganda provision including “sex” as
a prohibited category and amendments to the Customs Tariff Act.
A. Definitions
The most important changes proposed in Bill C-54 are two new defi-
nitions to be added to the Criminal Code. One deals with “erotica”, the
other with “pornography”, signalling an apparent change in terminology,
spirit and intent. Instead of addressing “offences against morals”, the Bill’s
intent appears to embrace the feminist view in its condemnation of sexual
exploitation and violence. In some respects, however, the definition retains
the conservative moralist character of existing obscenity laws.
1.
Erotica
The definition of “erotica” in Bill C-54 is a serious flaw in the proposed
legislation. The generally recognized meaning of the term and that ascribed
to it by feminists who lobbied for its inclusion on the Bill is ignored. The
Bill defines erotica as
[a]ny visual matter a dominant characteristic of which is the depiction, in a
sexual context or for the purpose of the sexual stimulation of the viewer, of a
human sexual organ, a female breast or the human anal region. 38
The term “erotica” is generally used to describe healthy, non-violent, non-
degrading sex. Feminists typically define erotica as the sexual expression of
positive and affectionate human sexual interaction between consenting in-
dividuals participating on a basis of equality.39 The courts have agreed that
sex per se is not necessarily obscene by stating, for example, that “it is the
message that counts, not the degree of explicitness. ’40 The Bill C-54 defi-
37Canada, H.C. Debates, vol. 129, no. 219 at 11226 (26 November 1987).
38Bill C-54, supra, note 6, s. 138 [all references are to section numbers as they would appear
in an amended Criminal Code following passage of the Bill in its present form].
39See G. Steinem, “Erotica and Pornography: A Clear and Present Difference” in L. Lederer,
ed., Take Back the Night: Women on Pornography (New York: Morrow, 1980) 35 at 37.
4See Shannon J. in R. v. Wagner (1985), 36 Alta L.R. (2d) 301 at 311, 43 C.R. (3d) 318
(Q.B.) aff’d (1986), 69 A.R. 78, 50 C.R. (3d) 175 (C.A.) (leave refused [1986] 1 S.C.R. xv).
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nition fails to provide any context within which to judge sexual depictions,
the very element the courts and others have employed to distinguish por-
nography from non-pornography.
By merely defining erotica as the prominent display of body parts “in
a sexual context,” the definition fails to recognize that what saves erotica
from being pornographic is its positive declaration of equality between par-
ticipants. Depictions of a woman’s body which humiliate, ridicule or present
the female in a demeaning, unequal context could not only be saved by the
Bill C-54 definition, they would acquire the positive label of “erotica”. This
result would surely undermine the spirit and intent of the Bill and mislead
the public as to the concept of positive, healthy sexual expression. One
suggestion is to rename this category as “non-prohibited pornography”. 41
Another misunderstanding of erotica is contained in the Bill’s require-
ment that the display of genitals be a dominant feature of the depiction.
The purpose and dominant characteristic of erotica is the sexual stimulation
of the viewer. While prominent display of the genitals is a factor to be
considered, it should not be an essential element.
2.
Visual Pornography
The elimination of the word “obscenity” from the vocabulary of pro-
hibited sexual expression is in keeping with the apparent change in objec-
tives from the protection of public morals to protection of individuals from
exploitation and abuse. The word “obscenity” is defined in the Oxford
dictionary as “indecency, lewdness … foulness, loathsomeness. ‘ 42 The Latin
root of the word means foul, repulsive, filthy, morally impure, or indecent.43
By contrast, the word “pornography” is defined as “a description of the life,
manners, etc. of prostitutes and their patrons. ’44 The word “pornography”
is thus a more appropriate point of departure for defining what should be
prohibited when the mischief sought to be addressed is exploitation.
The definition of “pornography” in Bill C-54 distinguishes visual from
non-visual material. There are six kinds of visual matter included in the
definition of pornography, as follows:
54″ (Toronto, October 1987) [unpublished] at 15.
41Committee Against Pornography, “An Overall Analysis and Detailed Critique of Bill C-
42The Shorter Oxford English Dictionary on Historical Principles, 3d ed. (Oxford: Clarendon
43Cassell’s New Latin-English English-Latin Dictionary (London: Cassell, 1959).
44Supra, note 42.
Press, 1973).
1988]
CHRONIQUE DE LEGISLATION
a. Infliction of bodily harm in a sexual context
“Pornography” includes depictions of
a person causing, attempting to cause or appearing to cause, in a sexual context,
permanent or extended impairment of the body or bodily functions of that
person or any other person. 4
There is no defence for actual or simulated depictions of this kind. Intended
to address very violent depictions of the infliction of lasting physical injury
or even death (such as so-called “snuff” films), the content of this section
was clearly influenced by the recommendation of the Fraser Committee.
The Committee stated that this type of material should be prohibited to
protect performers, to send the message that deliberate physical harm in
the context of sexual relations is not acceptable and to avoid social harm
caused by the undermining and violation of the equality of women 46 and
of human dignity in general. However, the Fraser Committee did not include
simulations in this category. Civil libertarians argue that a simulation of
extreme violence in a sexual context is not as reprehensible as actual injury.
But I submit that the contrary view of Matas J.A. on this point is
persuasive. 47
While the targetting of violence and exploitation in this section is gen-
erally praiseworthy, the words “in a sexual context”, are undefined and
vague. More precise wording is required because judges take differing views
of what is “sexual”. An example is found in R. v. Arena Recreations (Toronto)
Ltd.48 In that case, Jewers J. was asked to decide whether photographs of
bound women, nude and partially nude, were obscene. The judge deter-
mined that photos showing the bound women suspended or hanging by
ropes from trees with their breasts exposed were devoid of any “sexual
element”, despite the fact that he found the publication was an “adult”
magazine, devoted largely to the depiction of nudity and sex. He explained
the photographs did not have a “sexual element” because they did not show
sexual activity nor was any “violator” committing indignities upon or in-
juring the women … “,49 although he acknowledged that the same photo-
graphs had been found obscene in another jurisdiction.50
45Bill C-54, supra, note 6, s. 138 “pornography” (a)(ii).
46Fraser Committee, supra, note 4 at 265.
47Video World (C.A.), supra, note 30 at 77.
48(1987), 46 Man. R. (2d) 47, 56 C.R. (3d) 118 (Q.B.) [hereinafter Arena Recreations cited
to Man. R.].
49Ibid. at 51.
50See R. v. Metro News Ltd (1986), 56 O.R. (3d) 321, 32 D.L.R. (4th) 321, 53 C.R. (3d) 289,
29 C.C.C. (3d) 35,23 C.R.R. 77, 16 O.A.C. 319 (C.A.) [hereinafter Metro News cited to D.L.R.].
A criminal jury of 12 persons found the photographs to be obscene.
McGILL LAW JOURNAL
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Consideration of the type of publication within which the depiction
appears should be a factor. If not, pornographers may escape liability merely
by ensuring that no overt sexual activity occurs on the same page or in the
same frame as the otherwise pornographic image. This would clearly con-
travene the expressed intent of the Bill. “Pornography” should include de-
pictions of the aftermath of permanent or lasting impairment of the body
or bodily functions in a sexual context thus conveying the message that
deliberate physical harm in the context of sexual relations is unacceptable.
Whether the violator is actually depicted in the act of causing that harm
should not be relevant. The violence is no less merely because the act is
complete.
b. Sexually Violent Conduct
Bill C-54 defines as “pornography”
sexually violent conduct, including sexual assault and any conduct in which
physical pain is inflicted or apparently inflicted on a person by that person or
any other person in a sexual context.51
This portion of the definition appears to cover actual sexual violence,
whether self-inflicted or inflicted by another. However, the use of the word
“apparently” is not as clear as the word “appearing” in subparagraph (ii)
with reference to bodily harm, so it is not clear that simulated depictions
would be covered. The wording should be consistent if the intent of the Bill
is the same in both branches of the definition.
The vagueness of the words “sexual context” is not as pressing an issue
here; the specific reference to “sexually violent conduct, including sexual
assault” rather than to any broader notion such as physical impairment
renders them superfluous. However, the use of the words “any conduct in
which physical pain is inflicted or apparently inflicted” raises some addi-
tional problems. If a victim is depicted visually as enjoying or not objecting
to violent conduct, it could be argued he or she is not experiencing physical
pain.
Subparagraph (a)(iv) which addresses “degrading” pornography (see
below) says that consent is not relevant. The same standard should apply
to sexual violence. Pornography that depicts women as enjoying and con-
senting to sexual abuse is one of the most objectionable varieties. Feminist
critics identify this ingredient as that which most seriously undermines
women’s dignity as human beings.
51Bill C-54, supra, note 6, s. 138 “pornography” (a)(iii).
19881
COMMENTS
The case law shows that there is a need to clarify the consent issue. In
Arena Recreations Jewer J. implies that lack of visible protest or terror in
the part of the person shown in a visual medium goes to the issue of whether
or not the depiction is sexually violent. He comments:
[T]here are certain aspects of the material which, to my mind, tend to diminish
the impact the photographs might otherwise have had. Any elements of cruelty
or violence are implied rather than explicit… . There is a stillness about the
figures in the photographs; for the most part, one cannot see the expressions
on their faces, but where one can they appear calm and serene… *52
Without a consent exclusion, it is arguable that the most commonly por-
trayed acts of violence against women in pornography could slip past this
definition. Apparent consent to sexual violence would disqualify it as a
depiction of sexual assault which, by definition, requires touching without
consent. It may also fail to qualify as “sexually violent conduct” or “any
conduct in which physical pain is inflicted or apparently inflicted” if the
victim is shown as enjoying or welcoming pain.
In summary, the underlying rationale of the subparagraphs prohibiting
sexual violence is sound because it clearly acknowledges that violent sexual
abuse (typically of women) lowers the status of the victims and contravenes
their right to equality. Simulations convey the same message as actual de-
pictions. “Sexual context” should be defined. The potential defence of con-
sent, where the victim is portrayed as enjoying abuse, should be removed.
c. Degrading Acts
Subparagraph (a)(iv) defines as pornography
any visual matter that shows
a degrading act in a sexual context, including an act by which one person treats
that person or any other person as an animal or object, engages in an act of
bondage, penetrates with an object the vagina or the anus of the person or any
other person or defecates, urinates or ejaculates onto another person, whether
or not the other person appears to be consenting to any such degrading act, or
lactation or menstruation in a sexual context… .53
Subparagraph (a)(v) states that bestiality, incest and necrophilia are also
pornographic.54
The underlying rationale of subsections (iv) and (v) is broader than
that of the subsections addressing violence. The emphasis here is on the
protection of human dignity, protection from socially- repellant behaviour,
52Arena Recreations, supra, note 48 at 51.
53Bill C-54, supra, note 6, s. 138 “pornography” (a)(iv).
54Ibid., s. 138 “pornography” (a)(v).
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and protection of equality rights. Civil libertarians will likely object to this
portion of the definition because of the lack of relation between degrading
depictions and identifiable harm to individuals. They may view the entire
degradation paragraph as an unwarranted limitation on freedom of expres-
sion. The pronouncements of the Supreme Court in Towne Cinema regard-
ing the concept of harm, 55 indicate that such an argument would not succeed.
However, the inclusion of “lactation or menstruation in a sexual con-
text” under the definition of a “degrading act” goes beyond the Court’s
stated harm justification. Neither of these bodily functions is inherently
degrading, connotes a power imbalance, or is unnatural, like bestiality and
necrophilia. Without something more, they are inconsistent with the pur-
pose of protecting individuals from degradation and exploitation. Putting
lactation and menstruation in the same category as truly degrading or un-
natural acts not only confuses the issue of harm, it even indicates a lack of
understanding and respect for the female person. Only if combined with
violence or degradation, could portrayal of these bodily functions be por-
nographic. Therefore, they should either be omitted from the definition or
qualified by reference to degradation and violence.
The vague phrase “in a sexual context” recurs here. Unless it is defined
or worded more precisely, it could defeat the purpose of the Bill. A more
precise phrasing might be “for the apparent purpose of sexual stimulation
of the consumer of the material”. 56
d. Masturbation, Ejaculation and Intercourse
The Bill would include as “pornography”
masturbation or ejaculation not referred to in subparagraph (iv), or vaginal,
anal or oral intercourse… .57
This portion of the definition refers to explicit acts; thus simulated versions
of such conduct would not be pornographic.
This portion of the definition cannot be defended on the basis of pro-
tecting individuals from degradation and exploitation. There is no reference
to a context within which to evaluate these sexual acts. By eliminating
context, this concept ignores the feminist analysis that explicit portrayals
of sexuality are not pornographic per se and can be beneficial if evidently
consenting and positive. It also neglects the civil libertarian position that
55Above, text accompanying note 29.
56Committee Against Pornography, supra, note 41 at 38.
57Bill C-54, supra, note 6, s. 138 “pornography” (a)(vi).
1988]
CHRONIQUE DE LEGISLATION
only demonstrated harm can justify limiting expression. What it does reflect
is the conservative moralist view that any explicit sexual portrayal which
sexually stimulates the viewer should be prohibited. This represents a back-
ward step in our understanding and analysis of pornography.
The Supreme Court, which in Video World 8 adopted the view that
simulated or explicit sexual acts, if they amount to “skin flicks”, are obscene,
says the material must be evaluated in context. Like lactation and men-
struation, portrayals of sexual acts are capable of being either pornographic
or erotic. Prohibition of a sexual portrayal with which no violence or deg-
radation is associated can only mean that the law regards these depictions
as immoral. This justification reflects the same “offences against morals”
rationale of the current obscenity provisions. Protecting individuals from
their own moral shortcomings and upholding social standards of modesty
and good taste may be desirable goals, but using the criminal law to enforce
them is inappropriate. Subparagraph (vi) would be more appropriately
placed in the section called “erotica” if properly defined, otherwise within
a new definition called “non-prohibited pornography”. Regulations regard-
ing display and accessibility to children but not prohibition should be
applicable.
e. Child Pornography
The child pornography definition 59 addresses the production of por-
nography involving children and the exhibition of pornography to children;
it catches everything that is defined as pornography that involves or is
conducted in the presence of children. In addition, child pornography is
material which, for a sexual purpose, exposes images of the genitals, female
breast, or the anal region of a person under eighteen, or the exhibition of
these parts of the body in the presence of a person under eighteen.
The underlying policy is simply that any use of children for the sexual
entertainment of adults is reprehensible. It is reinforced by the broad def-
inition of a child, which includes anyone “depicted as under” or “apparently
under” eighteen years of age. The Bill does not make a distinction between
“erotica” and “pornography” as far as children are concerned. All explicit
material, including the simple depiction of sexual organs, is pornographic
if it involves children or is shown to them for a sexual purpose.
The words “for a sexual purpose” are not explained and add to the
confusion raised elsewhere by the words “in a sexual context”. The defi-
58Supra, note 30.
59Bill C-54, supra, note 6, s. 138 “pornography” (a)(i).
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nition of erotica compounds the problem by adding yet another concept
through the words “for the purpose of the sexual stimulation of the viewer”.
Presumably, three distinct phrases would not have been used unless they
were intended to mean different things. If that is the case, the three terms
should be defined. If not, the wording should be made consistent.
The intent of the child pornography definition is laudable but its breadth
could constrain some legitimate sex education materials. Any visual depic-
tion of children masturbating as well as any written material which incites,
promotes, encourages or advocates masturbation for children would be
made pornographic and would be vulnerable to prosecution. 60 It is well
accepted that masturbation does not harm children and some sex education
sources recommend that parents not discourage their children from mas-
turbating in private.61 Eliminating the word “masturbation” would permit
that small amounts of legitimate material in which children are shown or
encouraged to participate in a sexual activity not be considered harmful.
The vagueness of the words “for a sexual purpose” could even raise
problems in the classroom. Without further clarification, it could be argued
that sex education classes are for a “sexual purpose” and that anatomy charts
shown to children which display explicit genitalia may fall within the def-
inition of pornography as “the exhibition, for a sexual purpose, of a human
sexual organ, a female breast or the human anal region of, or in the presence
of, a person who is, or is depicted as being or appears to be, under the age
of eighteen years.”’62 It is unlikely that any prosecutor would proceed with
such a charge, but the words should be more clearly defined nevertheless.
This is especially true in light of the fact that section 159.1 exempts child
pornography from the defence of educational purpose. It is also inconsistent
with section 159.6 which allows the defences of artistic merit, educational
purpose or prior acceptable classification to the offence of exhibiting erotica
to persons under eighteen in section 159.4 or the sale or rental of erotica
to persons under eighteen in section 159.5.
If subparagraph (vi) were separated from the pornography definition
as recommended herein 63 the child pornography definition would require
amendment so that intercourse and ejaculation involving children would
still be prohibited.
60Ibid., s. 138 “pornography” (b).
61For example, Planned Parenthood Federation of America, How to Talk with your Child
About Sexuality: A Parent’s Guide (Garden City, Mich.: Double Day, 1986).
62Bill C-54, supra, note 6, s. 138 “pornography” (a)(i).
63Above, text following note 58.
1988]
COMMENTS
3.
Non-Visual Pornography
The pornography definition also reaches “any matter or commercial
communication that incites, promotes, encourages or advocates any conduct
referred to in any of subparagraphs (a)(i) to (v).’ ‘ 64 This appears to include
transmissions over telephone lines, computerized material, books, audio
tapes, records, commercial advertising or any other non-visual material. In
order to be pornographic, non-visual representations must incite, promote,
encourage or advocate child pornography, sexual violence or degradation,
bestiality, incest or necrophilia. Depiction of various forms of intercourse,
masturbation and ejaculation are not included here. In other words, it would
be permissible for non-visual material to incite, promote, encourage or ad-
vocate these forms of sexual activity without restraint.
This paragraph acknowledges that visual images are more potent than
non-visual images and that the written word is more deserving of protection
than visual images. In a limited way, it also acknovledges the importance
of context. It allows those administering the law to distinguish between mere
representations or descriptions of sexual violence, degradation and exploi-
tation and those which incite, promote, encourage or advocate such things.
Offences involving this form of pornography can be defended on
grounds of artistic merit, or educational, scientific or medical purpose, but
it is not clear from the provision whether the work taken as a whole must
incite, promote, encourage or advocate pornography. This should be
clarified.
B. Offences and Penalties
Sections 159 to 165 of the Criminal Code containing the present ob-
scenity offences would be repealed by Bill C-54. The new offences are dealing
in pornography, using children in pornography, possession of child pornog-
raphy, presenting, exhibiting, selling or renting erotica to children, and dis-
play of erotica. 65
1.
Dealing in Pornography
Dealing in pornography is the umbrella offence, including everything
from production to display. It is defined in proposed section 159(2) as
follows:
For the purposes of this section, a person deals in pornography if the person
imports, makes, prints, publishes, broadcasts, distributes, possesses for the
64Bill C-54, supra, note 6, s. 138 “pornography” (b).
65Ibid., ss 159(2), 159.2(1), 159.2(2), 159.4, 159.5, 159.7.
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purpose of distribution, sells, rents, offers to sell or rent, receives for sale or
rental, possesses for the purpose of sale or rental or displays, in a way that is
visible to a member of the public in a public place, the pornography.
Dealing in child pornography or pornography showing permanent or
extended bodily harm in a sexual context, is an indictable offence and is
punishable by a maximum often years imprisonment. 66 No defence is listed
for dealing in pornography involving bodily harm. The only defence for
dealing in child pornography is the “reasonable steps” defence. 67
The next most serious offence, punishable on indictment by five years
imprisonment or by summary conviction, is for dealing in sexually violent
or degrading pornography or pornography involving bestiality, incest or
necrophilia. 68 An accused may avail himself of the defences of artistic merit,
or educational, scientific or medical purpose. 69
The section does not distinguish between those who produce and dis-
tribute pornography and those who sell it. From both a prevention and
culpability standpoint, it is inappropriate that the potential liability be the
same for producers and distributors as it is for sellers. A producer or dis-
tributor on summary conviction would face a maximum sentence of six
months or a fine of $2,000.70 A $2,000 maximum fine is far too low to deter
producers or distributors, who generally make much larger profits than sell-
ers, from dealing in pornography; the punishment does not fit the crime.
At the bottom of the hierarchy of offences is dealing in “conventional”
pornography involving intercourse, masturbation and ejaculation. This is
an indictable offence punishable by a maximum of two years imprisonment
or upon summary conviction. 71 The defences of artistic merit or educational,
scientific or medical purposes exist here as well.72 Because there are no
inherent qualities in intercourse, masturbation or ejaculation that are harm-
ful or exploitative, this type of material should not be “prima facie” por-
nographic and would be more suitably placed in the display offences section
of the Bill. 73
661bid., ss 159(2), 159(3).
67Ibid. Section 159.3(b) provides that the accused shall be found not guilty if he establishes
on a balance of probabilities that he took all reasonable steps to ensure that no person in the
matter or communication was depicted as being, appeared to be or was described as being
under the age of eighteen years.
68Ibid., s. 159(4).
691bid., s. 159.1(1).
70Subsection 722(1) of the Criminal Code provides that where there is no other provision
made by law, a maximum fine of $2,000 or six months imprisonment or both can be imposed
for a summary conviction offence.
71Bill C-54, supra, note 6, s. 159(5).
72Ibid., s. 159.1(1).
73See below, arguments following note 58.
1988]
CHRONIQUE DE LEGISLATION
2.
Child Pornography Offences
The use of children in the production of pornography would become
an indictable offence punishable by a term of imprisonment not exceeding
ten years.
The defence of “reasonable steps” is contemplated. 74 Possession of child
pornography is punishable upon summary conviction.75 The rationale for
this last offence is that much of the trade in child pornography is through
informal networks and the dealing offences therefore might not apply. This
reasoning should also apply to the very violent depictions causing or ap-
pearing to cause bodily harm because much of the trade in this material,
where it exists, is through informal networks and contacts.
3.
Offences and Penalties Involving Erotica
There are three offences involving erotica: theatre presentation to per-
sons under eighteen, sale or rental to persons under eighteen and display
to the public. All are punishable upon summary conviction. 76 The offences
pertaining to those under eighteen have the defences of artistic merit or
educational purpose or a prior acceptable classification for viewing by per-
sons under eighteen by a lawful provincial body. The reasonable steps de-
fence also applies. In this context it requires that the accused show all
reasonable steps were taken to ensure no erotica was sold, rented or dis-
played to those under eighteen or to ensure that the person was eighteen
years or older.77 The defences of artistic merit or educational, scientific or
medical purpose and “reasonable steps” to ensure no erotica was displayed
are available to alleged offenders under the public display provision.78
The constitutionality of these sections may be an issue; regulations
controlling display and sale are traditionally areas of provincial jurisdiction
even though the case law on the point is contradictory.79 If a provincial
classification system has previously approved the material for their age
group, the Bill would permit minors access to it. However, by giving su-
premacy to provincial controls, the Bill will result in differential access in
different provinces raising the further issue of uniformity in application of
the law.
74Bi1 C-54, supra, note 6, ss 159.2(1), 159.3(a).
75Ibid., s. 159.2(2).
76Ibid., ss 159.4, 159.5, 159.7.
77Ibid., s. 159.6.
78Ibid., s. 159.8.
79See Re Sharlmark Hotels Ltd and Municipality of v. Metropolitan Toronto (1981), 32 O.R.
(2d) 129, 121 D.L.R. (3d) 415 (Div. Ct) and Hamilton Independent Variety and Confectionery
Stores Inc. v. City of Hamilton (1983), 143 D.L.R. (3d) 499, 20 M.P.L.R. 241 (Ont. C.A.).
McGILL LAW JOURNAL
[Vol. 33
Section 159.7 sets out what retailers must do in order to comply with
proposed display provisions. It states:
Every person who displays any erotica in any way that is visible to a
member of the public in a public place, unless the public must, in order to see
the erotica, pass a prominent warning notice advising of the nature of the
display therein or unless the erotica is hidden by a barrier or is covered by an
opaque wrapper, is guilty of an offence punishable on summary conviction. 80
If prevention from involuntary exposure is the aim of the display pro-
visions, as civil libertarians and feminists suggest, then the proposed choices
of warning signs, barriers or opaque wrappers is questionable. Warning signs
will be the easiest and least expensive method of complying with the Bill,
and most sellers of pornography or erotica will likely opt for them. But a
prominent warning sign would not protect the person who has no alternative
place to shop from involuntary exposure. A provision making the sale, rental
or display of erotica illegal where the majority of material sold, rented or
displayed is not erotic or prescribing mandatory opaque coverings would
be preferable.
4.
Offences Involving Theatrical Performances
Bill C-54 would prohibit the use, inducement, incitement, coercion or
agreement to use persons under eighteen in any theatrical performance in-
volving “pornography” as set out in the definition section, the maximum
penalty being ten years imprisonment with the defence of “reasonable
steps”. 81 It further forbids the owner, manager or person in charge of a
theatre from presenting or allowing to be presented any pornographic per-
formances involving children under eigteen or persons appearing to be or
depicted as being under eighteen, the penalty being a maximum often years
imprisonment with the defence of “reasonable steps”. 82 Owners, lessees,
managers or persons in charge of theatres are prohibited from presenting
or allowing the presentation of all other pornographic performances, the
penalties following the same pattern as in the dealing offences. 83 Appearing
as an actor, performer or assistant in pornographic performance is a sum-
mary conviction offence with a defence of artistic merit. 84
The artistic merit defence is available for violent, degrading, unnatural
or “conventional” pornography.85 No defence is available for pornographic
theatrical performances showing bodily harm.
80Bill C-54, supra, note 6, s. 159.7.
81Ibid., s. 162.
82Ibid., s. 163.
83Ibid., ss 163.1-163.3.
4Ibid., ss 163.4, 163.5.
85Ibid., s. 163.5.
19881
COMMENTS
Nonsensically, the Bill does not specifically address those who produce
and direct such performances. As a result, they would escape liability unless
it could be proven that the criteria of subsection 162(1) applied. For example,
it would be difficult to prove that a producer who finances a performance
under this category, “uses, induces, incites, coerces, or agrees” to use children
in a pornographic performance.
5. Mailing Pornography or Hate Literature
Bill C-54 would amend the hate propaganda provisions of the Criminal
Code to include “sex” in the listed groups protected by the section.86 It
would become an offence to mail pornography or hate literature. This offence
would be indictable, punishable by a maximum of two years imprisonment,
or upon summary conviction.87
To be effective, the sections dealing with hate propaganda require fur-
ther amendment. The Special Parliamentary Committee on Participation
of Visible Minorities in Canadian Society recommended three changes to
the hate propaganda provision: 88 removal of the requirement of specific
intent to promote hatred; clarification that the burden of raising the statutory
defences is on the accused; and removal of the requirement that the Attorney
General consent to a prosecution. The Fraser Committee endorsed these
recommendations in its report, 89 accepting the argument that most por-
nography is an expression of misogyny and very similar to the evil aimed
at in section 281.2. The Cohen Committee suggested that the test for hate
propaganda is whether the message does injury to the community itself and
to individual members of identifiable groups.90 The recommended amend-
ments are essential in order to give effect to the proposed extension of the
hate propaganda provisions and to provide protection against sexual hatred.
C. Defences
The defences to the various pornography offences which Bill C-54 cre-
ates are artistic merit, educational or medical purpose and reasonable steps.
8S6Ibid., s. 281.1(4).
871bid., s. 164.
88Equality Now! (Ottawa: Supply and Services, 1984) at 69-71.
89Fraser Committee, supra, note 4 at 322.
9See M. Cohen, “The Hate Propaganda Amendments: Reflections on a Controversy” (1970)
9 Alta L. Rev. 103 at 113.
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1.
Artistic Merit
Artistic merit is a concept which is inherently vague and subjective.
Under the present law, it is only one element among several determinants
of “community standards”. As such, its inherent problems are diminished
in importance. Under Bill C-54, artistic merit takes on a larger significance
because it is a complete defence.
The degree of artistic merit which will be required to legitimize por-
nography is not clear. Under the present obscenity law, the courts have taken
different approaches to this question. Some judges require the accused to
show serious artistic merit,9 1 while others suggest that unless the Crown
establishes that the work is virtually devoid of any plot or story line, artistic
merit will be in issue. 92 Still others say the artistic merit threshold is met
if there is some evidence of a plot or theme.93 Added to this uncertainty is
the fact that scholars, artists and art critics seldom agree on what “artistic
merit” means. Bill C-54 does nothing to clarify these uncertainties. The
judiciary, the police, customs officials and others who will administer the
law will be no farther ahead than they are now.
A strong argument can be made that in addition to being too vague to
permit consistent and uniform application, the artistic merit defence is too
broad and defeats the purpose of the Bill. The complete defence of artistic
merit could legitimize material which advocates sexual violence, degrada-
tion, bestiality, or necrophilia. If the primary purpose of the legislation is
to supress such harmful material then artistic merit should be irrelevant.
Arguably, the more artistic and well done a depiction is, the stronger its
message becomes. When that message is the advocacy or portrayal of sexual
violence or of degradation in a sexual context, it defeats the purpose of the
Bill to excuse it because it is well done. It makes artistry more important
than the avoidance of violence and degradation.
To preserve the integrity of the Bill, the defence of artistic merit should
be excluded for these types of pornography. Alternatively, artistic merit
should not be a complete defence, and some minimum qualifying criteria
should be set out.
In summary, the artistic merit defence, as drafted, is a serious flaw in
the proposed legislation. It undermines the Bill because of conceptual con-
tradictions and vagueness. The objectivity achieved in the definition of
pornography is defeated by an almost purely subjective defence leaving the
91Arena Recreations, supra, note 48 at 49.
92Video World (C.A.), supra, note 30 at 71.
930deon Morton, supra, note 33.
1988]
CHRONIQUE DE LftGISLATION
final determination of what pornography is resting on the same unsatisfac-
tory grounds it has in the past.
2.
Reasonable Steps and Ignorance
Under the current law of obscenity, the defence of ignorance of the
nature and presence of the material is expressly removed from the offences
of producing and distributing obscenity.94 In other words, producers and
distributors cannot escape liability by claiming they “did not know” the
nature or the presence of material alleged to be obscene. Only retailers can
use the defence of ignorance. Under Bill C-54, the defence of ignorance is
not expressly excluded. It is only addressed in the “reasonable steps” defence
as it relates to child pornography.
Those who are charged with child pornography offences must show “all
reasonable steps” were taken to ensure that no one in the material was or
appeared to be, under the age of eighteen. 95
The effect is to provide a defence of ignorance not only to retailers, but
everyone who deals in other kinds of pornography, including its violent,
degrading or unnatural forms. The reason for this new approach is not clear 96
but it does not accord with the underlying concept of protecting individuals
from the harm of pornography. There is no apparent justification for treating
child pornography differently than pornography depicting serious bodily
harm or even the other forms of violent and degrading depictions.
A more appropriate distinction would be to remove the defence of
ignorance for producers and distributors of pornography who are in a better
position to know its content and retain the reasonable steps defence for
retailers only. This way, the condemnation of the content of violent and
degrading pornography is not diminished, yet some notice is taken of the
different degree of culpability between the different levels of the pornography
trade and some incentive is given to merchants to review materials coming
into their establishments.
3.
Burden of Proof
Bill C-54 requires that the accused person must establish, on a balance
of probabilities, any of the defences of artistic merit or educational, scientific
or medical purpose, or reasonable steps.97 Some have argued that the Crown
94Criminal Code, supra, note 5, s. 159(6).
95Bill C-54, supra, note 6, s. 159.3.
961t may be a response to freedom of expression concerns; however, s. 159(8) has been upheld
as not violating the Charter of Rights and Freedoms. See R. v. Red Hot Video Ltd (1985), 18
C.C.C. (3d) I at 24, 45 C.R. (3d) 36 at 60 (B.C.C.A.), (leave refused, [1985] 2 S.C.R. x).
97Bill C-54, supra, note 6, ss 159.1, 159.3, 159.6, 159.8, 162.1(2), 163.5.
McGILL LAW JOURNAL
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should have the burden of disproving the defences; otherwise, the pornog-
raphy provisions amount to reverse onus offences. While it is true that the
accused has the burden of proving his defence, these are not reverse onus
offences in the true sense. It is only necessary for the accused to prove a
defence once the Crown has established beyond a reasonable doubt that all
the elements of pornography are present and that the accused has dealt in
the pornography or committed another pornography offence. If the Crown
fails either to apply the definition or to prove commission of the offence,
there is no need for the accused to prove anything in order to be acquitted.
For example, if the Crown proves the defendant dealt in pornographic ma-
terial, it is only at this point the pornography becomes presumptively illegal.
The defendant can still be acquitted if he proves on a balance of probabilities
that the material has artistic merit or educational, scientific or medical
purpose.
Conclusions
Bill C-54 addresses many of the concerns raised by critics of the ob-
scenity laws. It creates new definitions of pornography which are much more
objective and precise than presently exist. It makes a distinction between
pornography and erotica and between visual and non-visual depictions, It
establishes a new unoerlying rationale of protecting children from abuse
and adults from degradation and exploitation. It streamlines offences, sig-
nificantly increases the range and severity of penalites and protects against
involuntary exposure to displays of sexual depictions. All of the above
changes are positive steps consistent with equality and the feminist critique
of pornography.
The majority of the problems in the Bill are caused by poor drafting
and a failure to adhere consistently to its underlying rationale. Serious prob-
lems arise in the scope of the definitions and the extent of the defences
under the Bill. The erotica definition in no way resembles the contextualized
concept put forward by both feminists and the courts. Rather, it reflects the
concerns of the conservative moralists and thus fails to distinguish properly
between positive and negative portrayals of sexuality. The scope of the por-
nography definition is indicative of the same problem. By defining inter-
course, masturbation, lactation and menstruation as pornographic, the
drafters go far beyond what feminists have argued is harmful to equality
interests. The defence of artistic merit weakens the Bill by undermining its
objectivity, while other defences make inappropriate distinctions among the
more extreme types of pornography.
In practical terms, if Bill C-54 becomes law it will bring about very
little change. Most of what the Bill defines as pornographic the courts have
already found to be obscene. Those new categories such as child pornography
1988]
COMMENTS
and pornography depicting serious bodily harm which have not been spe-
cifically addressed in the case law would most likely be ruled obscene under
existing standards. By including explicit sex in the definition of pornography,
Parliament shows the same conservative moralist inclinations as the Su-
preme Court in Video World,98 but the Bill is more “liberal” in the sense
that it does not prohibit simulated scenes of sexual intercourse. By pros-
cribing violence and degradation, Bill C-54 accords with the dicta in Towne
Cinema.99 By making artistic merit a complete defence, however, it ignores
the Court’s call for objective criteria, and ensures that the decision of “what
pornography is” will remain, in most cases, a highly subjective one.
98Supra, note 30.
99Supra, note 29.
