PORNOGRAPHY: Is it legal to possess and create it?                                                       

This lengthy article is directed to authors and would-be authors who have or are considering writing a sex-oriented novel or short story. As of this date, I have written eight books that have been published. None of them were pornographic in nature. But if I do write such a book I will definitely follow my own advice I have written in this particular article. Most of what I have written has been paraphrased from decisions of the Supreme Court of Canada that dealt with the examining of several literary books suspected of being of a nature as to deprave and corrupt the minds of juveniles.

The answer to the question asked in the title of this article is yes it is. Obviously there are prudes in society who believe that it is wrong to possess or even create pornography but in terms of the law, their views are for the  part, ignored.

In Canada, the Charter of Rights guarantees everyone the right to free speech and the written words and pictures of a sexual nature are covered under that protection. There was a time however when movies were not to depict a man and a woman lying on a bed together, naked or fully dressed. Nowadays, you will see a couple actually having sex on a bed. As you can see, society is far more liberal nowadays than it was in the past.

Of course, there are limits. For example, you can’t put pornographic pictures in school books or in library books and you won’t see it in newspapers but you will see it in some magazines. And although placards placed outside certain taverns that have nude girls performing, they can’t have pictures of nude girls on the placards where the public will see them. The girls in the placards have to be partially dressed without their vaginas, bottoms an breasts bare.

Pierre Trudeau when he was the prime Minister of Canada said that the government has no business in the bedrooms of Canada. Not only does that include sex acts of any nature, it also included reading pornographic magazines or pictures no matter where they are read.

When I was studying criminology at the University of Toronto back in the late 1960s, I wrote a paper on the subject of pornography. In my paper, I said that pornography fulfills a need for unfortunate men who for one reason or another are unable to physically have a sexual relationship with women and for this reason; pornography to some degree fulfils their sexual needs. The professor was so impressed, with my views on this subject, he asked me to read my paper to my classmates that included, parole officers, a judge and police officers.

Section 163(8) of the Canadian Criminal Code states that for the purposes of this Act,  any publication (that possesses ) a dominant characteristic of which is the undue exploitation of sex, and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

Defining indecency under the Canadian Criminal Code is a notoriously difficult enterprise.  The Criminal Code offers no assistance thereby leaving the task to judges.  The test developed by the cases has evolved from one based largely on subjective considerations, to one emphasizing the need for objective criteria, based on harm.  This heightened emphasis on objective criteria rests on the principle that crimes should be defined in a way that affords citizens, police and the courts a clear idea of what criminal conducts are prohibited.

In Little Sisters Book and Art Emporium v. Canada (Minister of Justice), that was heard by the Supreme Court of Canada in 2000. The justices (judges) in their decision said among other statements;

 “The protection of expressive freedom is central to the social and political discourse in our country.  If such a fundamental right is to be restricted, it must be done with care.  This is particularly the case when the nature of the interference is one of prior restraint, (as in the past) not subsequent silencing through criminal sanction.” unquote

In order to establish indecent criminal conduct, the Crown (Prosecutor) must prove beyond a reasonable doubt that two requirements have been met.  The first is that by its nature the conduct at issue causes harm or presents a significant risk of harm to individuals or society in general in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Canadian Charter of Rights or similar fundamental laws. This includes (a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty, (b) predisposing others to anti‑social behaviour, or (c) physically or psychologically harming persons involved in the conduct.  The categories of harm capable of satisfying the first branch of the inquiry are not closed.  The second requirement is that the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. 

I should point out that pictures or text of persons who are having consensual sex and suffering pain from the sex act is not pornographic as long as the pictures are not attempting to suggest to the members of the public into deliberately causing pain to members of the public who are victims of unconsentual sex acts.

The autonomy and liberty of members of the public which is paramount should not be affected by being confronted with sexual conduct in question—the exception being the prudes. However, our laws are not going to change because some prudes don’t like what is available to others.  

 Those persons who pose in the nude and are seen participating in all forms of the sexual acts and who are already disposed to this sort of sexual activity and do so with their consent, are not committing an illegal act providing that there is no evidence of anti‑social acts towards women, or for that matter even men. 

Of course, no one participating in a film or pictured in photographs should be pressured into having sex for the gratification of others in the pictures shown.  The fact that the sex magazines or DVDs are commercial endeavors do not in itself render the sexual activities taking place in the pictures as criminal acts nor does possessing them make it a criminal offence.  With respect to the third type of harm, the only possible danger to participants is the risk of catching a sexually transmitted disease. I think I am right when I suggest that those firms that arrange for the pictures and videos to be taken are careful in making sure that the participants are protected from diseases of a sexual nature.

 Indecency has two meanings—one being moral and one being legal.  Societies’ concern is not with the moral aspect of indecency, but  instead with the legal aspect.  The moral and legal aspects of the concept are, of course, related.  Historically, the legal concepts of indecency and obscenity, as applied to personal conduct and publications, respectively, have been inspired  and informed by the moral views of the community.  But over time, courts increasingly came to recognize that morals and taste were subjective, arbitrary and unworkable in the criminal context and that a diverse society could function only with a generous measure of tolerance for minority mores and practices.  This led to a legal norm of objectively ascertainable harm instead of subjective disapproval. The test for obscenity is whether the material would tend to deprave and corrupt other members of society.

In Canada, sodomy was consider a depravity and subsequently illegal and punishable with 14 years in prison. However, back in the latter part of the last century, the Canadian parliament that has the final word in the Criminal Code determined that what  goes on in  private is no one else’s business as long as the sexual  acts are done with the consent of the parties.  This also includes oral sex which prudes also condemn. Obviously, depravity and corruption vary within the eye of the beholder.

Determining depravity has proved rather difficult to apply in an objective fashion.  Convictions often depended more on the idiosyncrasies and the subjective moral views of the judges or jurors than objective criteria of what might really deprave the members of the public.

In considering this test as to what is depravity, the Supreme Court of Canada emphasized the failings of the previous tests and concluded that there was the need for new criteria which have some certainty of acceptable meanings and are capable of objective application and which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether determined by a judge or a jury

 Borrowing on decisions from Australia and New Zealand that had emphasized the foundation of criminal legislation on obscenity and indecency in societal norms, the Supreme Court of Canada Court adopted a test based on the community standard of tolerance.  On its face, the test was objective, requiring the trier of fact (judge or jury) to determine what the community would tolerate.  Yet once again, in practice it proved difficult to apply in an objective fashion.  How does one determine what the “community” would tolerate were it aware of the conduct or material? A national poll is out of the question.

How can one objectively determine what the community finds acceptable (if one could define it) as to whether or not what they would tolerate, in the absence of evidence that community knew of and considered the conduct at issue?  In practice, once again, the test tends to function as a proxy for the personal views of expert witnesses, judges and jurors.  In the end, the question often came down to what they, as individual members of the community, would tolerate.  Judges and jurors were unlikely, human nature being what it is, to see themselves and their beliefs as being intolerant.  It was far more likely that they would see themselves as reasonable, representative members of the community.  The chances of a judge or juror saying, “I view this conduct as indecent but I set that view aside because it is intolerant”, were remote indeed.  The result was that despite its superficial objectivity, the community standard of tolerance test remained highly subjective in its application.

Justice Sopinka of the Supreme Court of Canada said in part; “The courts must determine as best they can what the community would tolerate and 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.” unquote

The Supreme Court in the Little Sisters case confirmed that harm is an essential ingredient of obscenity. As Justice Binnie pointed out; “The phrase ‘degrading or dehumanizing’ in the Butler case is qualified immediately by the words “^if the risk of harm is substantial.” This makes it clear that not all sexually explicit erotica depicting adults engaged in conduct which is considered to be degrading or dehumanizing is obscene.   The material must also create a substantial risk of harm which exceeds the community’s tolerance.”  

Of course, it is difficult to determine the range of the community’s tolerance. As I see it, it appears to be quite high. As an example; there was a Hollywood movie in which in one of the scenes, the main actress had a man’s penis deep in her mouth. Years ago, I was watching a film on TV and in one of the scenes, the man’s penis was seen entering the woman’s vagina. Now admittedly, the prudes would have gone berserk but the censors didn’t remove those scenes at all which gives you some idea as to just how high the community’s tolerance is for such scenes.  If those scenes are not considered depravity, then it follows that writing about such sexual acts and depicting them in pictures is tolerable by the community per se.

 Classifying criminal indecency as being harmful would present an important change in this difficult area of the law.  Harm or significant risk of harm is easier to prove than a community standard.  Moreover, the requirement of a risk of harm incompatible with the proper functioning of society brings this area of the law into step with the vast majority of criminal offences, which are based on the need to protect society from harm.

 However, it is not always precisely clear as to how the test for harm that is used for making a determination of how indecency applies in particular circumstances.  Some cases before the courts have raised questions as to the nature and degree of harm is sufficient to establish indecency.  Further definition is required in order to resolve cases such as what I stated earlier in order to permit authors, photographers and publishers of books and magazines  to conduct themselves within the law and the police and courts to enforce the criminal sanction in an objective, fair way.

Developing a workable theory of harm is not a task for a single case.  In the tradition of the previous court decisions, its full articulation will come only as judges consider diverse situations and render decisions on them.  Moreover, the difficulty of the task should not be underestimated.  The courts must  proceed incrementally, step by cautious step.

The facts of such cases require the further exploration of what types of harm, viewed objectively is suffice to bring about a conviction for the reasons of acts of indecency.  This exploration must be based on the purposes that the offence serves society in general. More precisely, what harms are sought to be curtailed by targeting indecent conduct as shown in pornographic literature or in pornographic pictures?

  Two general requirements emerge from this description of the harm required for a determination of criminal indecency.  First, the words “formally recognize” suggest that the harm must be determined in norms which our society has recognized in its Charter of Rights or similar fundamental laws.   This means that the inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its proper functioning.  Second, the harm must be serious in degree.  It must not only detract from proper societal functioning, but must be incompatible with it.

It follows that the analysis to be performed in a particular case involves two steps.  The first step is concerned with the nature of the harm.  It asks whether the Crown has established a significant risk of harm to others that is recognized as norms which our society has formally recognized in its Charter of Rights or similar fundamental laws. The second step is concerned with the degree of the harm.  It asks whether the harm in its degree is incompatible with the proper functioning of society.  Both elements must be proved beyond a reasonable doubt before acts can be considered indecent under the Criminal Code.

 The requirement of formal societal recognition makes the test objective.  The inquiry is not based on individual notions of harm, nor on the teachings of a particular ideology, but on what society, through its fundamental laws, has recognized as essential.  Views about the harm that the sexual conduct at issue may produce, however widely held, are not sufficient to bring about a conviction. This is not to say that social values no longer have a role to play.  On the contrary, to determine a finding that such acts are indecent,  the harm must be shown to be related to a fundamental value reflected in our society’s Charter or similar fundamental laws, like Bills of Rights, which constitutes society’s formal recognition that harm of the sort envisaged may be incompatible with its proper functioning.  Unlike the community standard of tolerance test, the requirement of formal recognition inspires confidence that the values upheld by judges and jurors are truly those of Canadian society.  Autonomy, liberty, equality and human dignity are among these values.

The complexity of the guarantee of freedom of religion in this context requires further comment.  The claim that particular sexual conduct violates particular religious rules or values does not alone suffice to establish this element of the test.  The question is what values the Canadian society has formally recognized.  Canadian society through its Charter and similar fundamental laws does not formally recognize particular religious views, but rather  the freedom to hold particular religious views.  Thus, this freedom does not endorse any particular religious view, but rather it endorses the right to hold a variety of diverse views.

The requirement of formal endorsement ensures that people will not be convicted and imprisoned for transgressing the rules and beliefs of particular individuals or groups.  To incur the ultimate criminal sanction, those accused  must have violated values which Canadian society as a whole has formally endorsed as being harmful to society.

There are three types of harm that have thus far emerged from the jurisprudence (court decisions) as being capable of supporting a finding of indecency: (1)  harm to those whose autonomy and liberty may be restricted by being confronted with inappropriate conduct; (2) harm to society by predisposing others to anti-social conduct; and (3) harm to individuals participating in the conduct.  Each of these types of harm is based in values recognized by our Charter and similar fundamental laws.  The list is not closed since other types of harm may be shown in the future to meet the standards for criminality established by the courts.  But thus far, these are the types of harm recognized by the courts in the past.

A particular type of conduct may involve several types of harm since life does not fall into neatly tagged juridical boxes.  But since each type of harm rests on its own set of values, it is useful to consider each form of conduct independently. 

Being clear about the type of harm raised by the facts of a particular case, helps to determine what factors are relevant to assessing whether it rises to the degree prescribed in earlier court decisions.   It ensures that the analysis is truly contextual, and is not skewed by factors that may not be relevant to the particular harms alleged in each situation. 

 Against this background, I suggest that the courts take closer look at the three types of harm that may be grounds for a finding of criminal indecency.  If harm in any of these forms is established beyond a reasonable doubt, the inquiry then proceeds to the second step of the test and that is to assess whether the nature and quality of the harm rises to the required degree of harm to satisfy a court that the harm to society per se actually exists.

 The first is the harm of public confrontation with unacceptable and inappropriate conduct.  One reason for criminalizing indecent acts and displays is to protect the public from being confronted with acts and material that reduce their quality of life.  Indecent acts are banned because they subject the public to unwanted confrontation with inappropriate conduct.  That is why it is against the law for humans to fornicate in public other than in sex oriented DVDs and movies and even that has limitations.  

This kind of harm is conceptually akin to being a  nuisance.  Nevertheless, to call this the “eyesore” the basis of criminalization of indecent acts is to trivialize the harm. The harm is not the aesthetic harm of a less attractive act, but the loss of autonomy and liberty that public indecency may impose on individuals in society, as they seek to avoid confrontation with acts they find offensive and unacceptable.  The value or interest protected is the autonomy and liberty of members of the public, to live within a zone that is free from conduct that deeply offends them if done in the public view of people nearby.

Minor forms of harm in this category do not actually rise to the levels of harm required by previous court decisions.   Tolerance requires that only serious and deeply offensive moral assaults can be kept from public view on pain of criminal sanction.  We live in an age when sexual images, some subtle and some not so subtle, are widely dispersed throughout our public space.  However, this does not negate the fact that even in our emancipated society, there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains the public`s autonomy.  Sexual relations are intensely personal, religious and age-sensitive matters.

People’s autonomy and enjoyment of life can be deeply affected by being unavoidably confronted with debased public sexual displays.  Even when avoidance is possible, the result may be diminished freedom to go where they wish or take their children where they want to go without seeing a couple copulating together.  Sexual conduct and material that presents a risk of seriously curtailing people’s autonomy and liberty may justifiably be restricted.  The loss of autonomy and liberty to ordinary people by in-your-face indecency is a potential harm to which the law is entitled to respond.  If the risk of harm is significant enough, it may rise to the degree of the test for criminal indecency which society formally recognizes as incompatible with its proper functioning.

Since the harm in this kind of conduct is based on the public being confronted with unpalatable acts or material, (such as unsolicited sex-oriented magazines) it is essential that there be a risk that  members of the public either will be unwillingly to be exposed to such conduct or material, so that the public will be forced to significantly change their usual places they and their children frequent to avoid being so exposed to what they and especially their children don`t need to see.

   This makes the manner, place and audience of the acts alleged to be indecent relevant. In this respect, indecency differs from obscenity, where an element of public exposure is presumed as  the location in which the acts take place and the composition of the audience may affect whether or not the  acts are indecent.

                         

While these factors inform the factual and contextual determination of indecency, they are merely subsidiary and instrumental to the ultimate finding of harm. Whether certain acts are indecent cannot simply depend on whether they are performed in a “public place”, as defined in the Criminal Code.  Tremblay cautioned against an overly simplistic reliance on this factor, as “common sense indicates that there are great differences between locations which can come within the definition of public places.” More importantly, exclusive reliance on the public nature of the place is at odds with the harm-based rationale for criminal indecency.  Indecency targets harm or significant risk of harm to members of the public, which has to be established on the evidence and cannot be presumed or automatically inferred from the nature of the location where the acts take place.

Years ago when I was practicing law, I represented a prostitute who was having sex with her trick in the yard of a factory. It was at night and the only lights that were nearby were on a street. The car of the trick in which they were having sex was in total darkness. A police officer followed the car into the yard and when he shone a flashlight in the car, he saw the sexual act being committed. He charged the prostitute with committing an indecent act because it was done in public.  In my argument before the judge, I said that a dark yard where the public doesn’t wander in, is not a public location and since the prostitute was in private property and the car was in a completely darkness in the property, there was no danger of the public per se being harmed at what was going in the car. He agreed and dismissed the charge.        

 The second source of harm is based on the danger that the conduct or material may predispose others to commit anti-social acts.  In the past, using the criminal law to prevent material from depraving and corrupting susceptible people, into whose hands it may fall was in vogue.  The threshold for criminal indecency was higher envisioned almost a century and a half ago, but the logic is the same.  In some cases, the criminal law may limit conduct and expression in order to prevent people who may see it from becoming  predisposed to acting in an anti-social manner:  Indeed, a particular harm envisaged 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.

This source of harm is not confined to explicit invitations or exhortations to commit anti-social acts. The inquiry embraces attitudinal harm. For example, conduct or material that perpetuates negative and demeaning images of humanity is likely to undermine respect for members of the targeted groups and hence to predispose others to act in an anti-social manner towards them.  Such conduct may violate formally recognized societal norms, like the equality and dignity of all human beings, which is protected by the Canadian Charter of Rights and Freedoms and similar fundamental laws such as the provincial human rights codes.   Because this source of harm involves members of the public being exposed to the conduct or material, here too it is relevant to inquire whether the conduct is private or public.  This type of harm can arise only if members of the public may be exposed to the conduct or material in question that they don`t wish to be exposed to.

Here is an aside that  you may find rather funny.  Back in the mid- 1950s, I was living in the home of my employer In Victoria on Vancouver Island and one hot, sunny day, I was sunbathing in the backyard of his home with only my bathing suit on. An old woman next door screamed at me and told me that she would call the police if I didn`t put my clothes back on. I gave her what is commonly referred to as the finger. She called the police and said that I was laying on the lawn with only a bathing suit and in her opinion, that was obscene.  I guess the officer who came to the backyard I was sunbathing in probably was bored at being in the police station all day so he came to see the so-called obscenity.  He laughed with me and said he would straighten the woman out. I heard him say to her. “Don`t call us again.” I was tempted to strip off my bathing suit and get her really upset but common sense made me decide not to push my luck. I did however, give her my finger again.

About a decade later, an old man was sunbathing on the grass at High Park in Toronto. Now that was permitted if he was near a body of water such as the small lake in the park. He was charged with disobeying the rule of the park.  In court, he argued that he was actually sunbathing near a very thin stream of water working its way to the lake. He said that was a body of water. The judge agreed and he was acquitted. The city council decided that that rule about the park was silly so they ruled that anyone can sunbathe anywhere on the grass in the park.

A problem thus arises, as the analysis of obscenity becomes circular.  If it is accepted that the test for indecency in the context of the Canadian Criminal Code consists in determining whether those participating in the acts are predisposed to act in an anti‑social manner (one of the three types of harm) it seems illogical to ask whether the individual committing an allegedly indecent act is predisposed to act in an anti‑social manner.  The person is already acting in an anti‑social manner.  In the context of indecent acts, as opposed to indecent performances, the issue of predisposition to act in an anti‑social manner would seem to be irrelevant.  The harm would be more the result of a violation of social norms, as listed earlier.

 Consequently, in the context of an offence as stated in the Criminal Code, I am of the opinion that it is not absolutely necessary to consider the harm done to society, such as the predisposition to act in an anti‑social manner.  This type of harm will be present where there is evidence of dehumanizing, degrading or demeaning acts.  In my view, it is a given that the analysis does not focus on the predisposition to act in an anti‑social manner, to confirm that approach. 

iT is simply not possible to carry out a rational analysis in this area of law by limiting the test for tolerance to evidence of serious harm and, in particular, by equating serious harm with a predisposition to act in an anti‑social manner.

The analysis to establish the standard of tolerance should be based on two main factors:  the nature of the acts and their context.

 It seems to me that it is difficult to dispute that, in a given context, the Canadian community’s tolerance for sexual acts varies depending on the nature of the acts.  In my opinion, this explains why, in cases involving indecency, the courts have taken the nature of the sexual acts into consideration in establishing the standard of tolerance. In other words, magazine and DVD discs showing men and women having sex is not obscene and will not offend the emotions of those persons who accidentally see  the couple doing their thing.

Judges should not pass judgment on the morality of the acts themselves without regard to the context.  Taking the nature of the acts into account simply offers the possibility of comparing them with other acts in a similar context.  For example, if the courts have found a sexual practice to be indecent in a similar context, the nature of more degrading or dehumanizing acts will lead more easily to a finding of indecency.  The public will be less tolerant of these acts because of their potential for causing social harm.

However, in considering the assessment of the acts, judges should not be influenced by the sexual orientation of the participants.  The standard of tolerance cannot incorporate a discriminatory attitude based on sexual orientation.  That is antithetical to the remedial reasons underlying adoption of the community standard to single out a particular minority as being less worthy than others of protection and respect.

There was a time in South Africa and in Southern United States when blacks couldn’t marry whites. Those laws went the way of the dodo bird. If anyone in the US had written a novel in which a white man married a black woman, he would be arrested.  

In light of its relationship to indecency, as stated in the Criminal Code, the law necessarily imposes restrictions as to the location of the place where sexual acts are undertaken.  For example, if the editor of a sex magazine wanted to have a sex scene shown as a picture for his magazine, he cannot authorize the picture to be taken in a city park where the public has access. The commercial nature of the place and acts plays an important role in the establishment of the Canadian community’s threshold of tolerance. That is why most of not all such pictures are photographed in a studio or on very private property.

Indecency concerns of sexual behaviour or the representation of sexual behaviour that is neither obscene nor immoral, but is considered as being inopportune or inappropriate according to Canadian standards of tolerance because of the context in which it takes place.   From the perspectives of both statute and case law, indecency thus requires a contextual analysis of the acts in issue.

It would be helpful to elaborate on some of these contextual factors.  First, a consideration of the public or private nature of the place where the acts are performed should not be based on a simple public/private dichotomy.  In light of the large number of situations in which the courts may be called upon to rule on the indecent nature of sexual practices, this simplistic dichotomy must give way to an analysis based on a continuum of situations and contexts. 

The commercial nature of sexual practices cannot be disregarded in establishing indecency.  This factor is relevant because the association of sexual acts with a commercial transaction has an impact on community tolerance, particularly because the persons involved in this type of transaction may be exploited and experience a loss of dignity or autonomy.  Human traffickers are prone to forcing women into doing these acts without their consent.

The purpose of the sex acts is a factor that takes the intention or objective underlying the allegedly indecent practices into account.  For example, in respect of obscenity and indecent performances, indications of an artistic purpose will generally result in greater tolerance, although I can’t fathom a sex act being done for artistic reasons.

Harm to the participants is also relevant.  Attention must therefore be paid to the risk of physical or psychological harm.  This approach permits the risk of spreading sexually transmitted diseases (“STDs”) to be taken into account. If the evidence demonstrates a real risk of transmission linked to the systematic absence of protective measures, this factor will be relevant. 

  The consent of the participants or the fact that those who read sex-oriented magazine or view sex-oriented DVDs are informed adults is not in itself a determinative factor.  A consensual sexual act that is totally acceptable in another situation may be indecent if it is performed in a context in which it offends the Canadian community standard of tolerance.  Once again, it is the tolerance of the general public that counts, not the tolerance of the participants or those that read the sex-oriented magazines or view the sex-oriented DVDs.

  

The judge’s role is not to review the evidence for the sole purpose of determining whether or not a particular social harm has been sustained and establishing the degree of that harm.  His or her role is to resolve a question of law by assessing the nature of the acts in their context and evaluating them in relation to the practices and attitudes of Canadians.. As an example, if in a sex-oriented magazine, a woman is being sodomized. the judge can’t presume that the act wasn’t consensual. 

The judge must assume the risks of the problems involved in identifying and reconciling values that are contradictory. That isn’t always an easy task.

Judges have to inquire into the behaviour and attitudes of Canadians relating to morals and then consider the parties’ evidence on this issue.  A choice of values is made, but the judge must subordinate his or her personal views on morality to community‑wide standards.  This approach makes it possible to uphold the values on which there is a social consensus and thereby ensure a sufficient level of objectivity.  It does not appear to pose insurmountable problems for the courts.

If a judge is attempting to determine if a novel is obscene, there must be proof that obscenity is a dominant characteristic and this dominant characteristic must amount to an exploitation of sex which is undue. The search for such a dominant characteristic involves the reading of the whole book and also involves an inquiry into the purpose of the author. One cannot ascertain a dominant characteristic of a book without an examination of its literary or artistic merit, and this renders admissible the evidence of the author and others on this point. 

There has to be real unanimity in the opinions of the witnesses that the book is a true and sincere representation of an aspect of life as it appears to the author. 

The phrase "undue exploitation" is aimed at excessive emphasis on the theme of sex for a base purpose. Measured by the internal necessities of a novel, there must not have undue exploitation of sex. There should be no more emphasis on the theme of sex than was required in the treatment of such a serious work of fiction. No matter whether "undue exploitation" is to be measured by the internal necessities of the novel itself or by offence against community standards, this novel must not offend.

Now the prudes will be offended but the question to be answered is; will everyone else be offended? Human beings are easily sexually aroused and a great many of them seek out sources that will sexually arouse them—sources such as magazines,  books and DVDs  that depict the sexual acts in all forms. 

When I was a young man, I watched a couple of sex-oriented DVD discs (like millions of other young men) and sex scenes in these DVDs comprised of 90% in each disc. The shops that prominently sold these discs were never closed down by the authorities.

Section 150(8) of the Canadian Criminal Code has the effect of expanding the meaning of "obscene" to include all publications which have undue exploitation of sex as a dominant characteristic whether or not they can be shown to have a tendency to corrupt and deprave. Obviously, the sex-oriented DVD discs were not considered by the authorities as having the tendency to corrupt and deprave those that watched the sexual scenes on their DVD players.

What about violence? There is a novel that was written for children titled The Cannibals of Candyland. The plot of the story is that there exists a race of cannibals who are made out of candy. They live in an underground world filled with lollipop forests and gumdrop goblins. During the day, while the children’s parents are away at work, the candy cannibals come above ground and prowl the streets for food. Their prey: the children. They lure young boys and girls to them with their sweet scent and bright colorful candy coating, then rip them apart with razor sharp teeth and claws. This book was published on August 28, 2009. It is sold by Amazon. This book includes horror, cruelty and violence but no sex so this book is not considered obscene.

Erotica on the other hand is a recognized, hugely popular form of literature for people who wish to delve into their own psyche and explore their sexual fantasies with the help of the written word.

Erotic literature comprises of fictional and/or factual stories and accounts of human sexual relationships which have the means to or are intended to arouse the reader sexually. Such erotica takes place in the form of novels, short stories, poetry, true-life memoirs, and sex manuals. A common feature of the genre basically is sexual  fantasies  based  on  many various  themes  such  as  prostitution,  orgies,  homosexuality,  sadomasochism, and many other taboo subjects and fetishes, which may or may not be expressed in explicit language.

 

The Satyricon of Petronius Arbiter  which was later made into a  film by Felliniis an ancient Roman novel, which has partially survived, narrating the misadventures of an impotent man named Encolpius, who has been cursed by the god Priapus. The novel is filled with bawdy and obscene episodes, including orgies, ritual sex, and other erotic incidents.

A trend in the twentieth century was the rise of the lesbian pulp fiction. Works such as The Price of Salt ( 1952), Spring Fire (1952),  Desert of the Heart  (1964), and Patience and Sarah  (1969) were only a few examples of this subgenre. Many of the authors were actually women themselves, such as Gale Wilhelm  and  Ann Bannon. Many male homosexuals  also enjoyed gay pulp fiction, which used the same form of sexploitation format as the lesbian books. These books weren’t seized by the authorities.

If a novel comprises of a great deal of sex acts depicting various forms of sexual positions and activities can it be classed as obscene? Under the definition of Section 163.8 of the Canadian Criminal Code, there must be a sexual characteristic which is dominant and this dominant characteristic must amount to an exploitation of sex which is undue.

The word, “undue” is a very important word in the Act. If in a novel, a great many sex acts that are described in the novel actually moves the story line of the novel along in its story, then the sexual depictions can hardly be considered undue.

The search for such a dominant sexual characteristic involves the reading of the whole book and also involves an inquiry into the purpose of the author. One cannot ascertain a dominant characteristic of a book without an examination of its literary or artistic merit, and this renders admissible the evidence of the author and others on this point.

Surely it is obvious that such a book is intended by its author to sexually arouse its readers but that is not a crime any more than the publishing of sex-oriented magazines are a crime. Those who purchase these kinds of magazines don’t purchase them for the ads or the text.

The phrase "undue exploitation" is aimed at excessive emphasis on the theme of sex for a base purpose. The word “:base” could also mean despicable. Now obviously prudes would think of such books as being despicable but can it not been said that millions upon millions of members of society would find such books as being titillating and interesting after they have read or seen pictures in a magazine or a novel?

Measured by the internal necessities of the novel, there should be no such undue exploitation of sex. There should be no more emphasis on the theme of sex than what is required in the writing of such in the author’s work of fiction.

The language of section 163(8) does not constitute an exclusive definition of "obscenity" for the purposes of the Criminal Code. That language cannot be construed as meaning that no publication can be obscene for the purpose of the Code unless it has undue exploitation of sex as a dominant characteristic. 

Section 163 (8) has the effect of expanding the meaning of "obscene" to include all publications which have undue exploitation of sex as a dominant characteristic whether or not they can be shown to have a tendency to corrupt and deprave. The word "undue" carried the meaning of "undue having regard to the existing standards of decency in the community.

When it is being considered whether books have a tendency to deprave and corrupt, naturally every body's mind turns to the depraving and corrupting of young people into whose hands they may fall.

Allured by the conspicuous indication on the cover of a book that the particular edition thereof is unexpurgated, juveniles buying pocket-books thus advertised, it is not unreasonable to think that some juveniles have a minor interest in the literary merits, motives or purposes of the writer.

Some consideration has to be determined as to what the reading of a sex-oriented novel will have upon them or other classes of juveniles with respect to the tendency to deprave or corrupt their minds. It cannot be determined by the minute process of analysis which experts in the art of literature may adopt to lift out of the book such as the motives, purposes and literary qualities of its author. An ultimate consideration of substance is the impact which the reading of this book may exert upon the young minds as to whether depravation and corruption, against which Parliament intends to protect them from depravity and/or corruption of both    that may ensue after they have read such a novel.  

However, it is not only relevant but desirable for a judge to consider evidence of the opinions of qualified experts as to the artistic and literary qualities of the publication.

In my opinion, although sex is a dominant characteristic of many sex-oriented magazines and there are several pictures in them which, when seen alone, unduly exploit sex.  It does not follow that these pictures seen as a part of the whole book that includes pictures of nude women in various poses really have the effect of bringing about the undue exploitation of sex which contain a dominant purpose of the publication so as to bring it within the meaning section  163(8). 

Furthermore, no significant segment of the population is likely to be depraved or corrupted by reading thoroughly a book filled with the text and pictures of nude women and men. In any event, the defence of the public good is available under previous court decisions so that any harmful effect which these objectionable passages might have is counterbalanced by the desirability of preserving intact the work of the author.

Before the enactment of subsection  8 the rule laid down by Chief Justice Cockburn in R. v. Hickling had been applied in England and in various Courts in Canada it was to the effect that the test of obscenity was whether the tendency of the matter charged is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall. This is not the rule today to be followed in applying the amendment and that the judge of first instance was in error in so doing.

The word "exploitation can be defined as “”not appropriate or suitable; improper; unseasonable or unjustifiable.”  Can a novel that has a great many sexual descriptions of the sex act that forwards the story line of the novel fit the descriptions of exploitation? 

The inquiry into the exploitation aspect of the judicial inquiry must begin with a search for a dominant characteristic of the book. The book may have other dominant characteristics. It is only necessary to prove that the undue exploitation of sex is a dominant characteristic. Such an inquiry necessarily involves a reading of the whole book with the passages and words to which objection is taken when read in the context of the whole book. Of that now there can be no doubt. No reader can find a dominant characteristic on a consideration of isolated passages and isolated words. Under this definition the book now must be taken as a whole. It is not the particular passages and words in a certain context that are before the Court for judgment but the book as a complete work. The question is whether the book as a whole is obscene and not whether certain passages and certain words, part of a larger work, are obscene. A search for a dominant characteristic of the book also involves an inquiry into the purpose of the author. What was the author trying to do and actually doing, and intending to do? Had the author a serious literary purpose or was his purpose one of base exploitation?

In closing, I want to say that there does exist in any community at all times a standard that may vary from time to time—a general instinctive sense of what is decent and what is indecent, of what is clean and what is filthy, and when the distinction has to be drawn, I do not know that there is any better tribunal than a jury to draw the distinction. That is why an accused in cases like these should never choose to be tried by a judge alone.