Provincial Right to Ban Films confirmed by Nova Scotia Ban of “Last Tango in Paris”

Last Tango Appeal to Cabinet - Dartmouth Free Press headline

All provinces and territories in Canada have the legal right to ban any film, for any reason. This was confirmed by a Supreme Court case in 1978. The case started in 1974, in Nova Scotia, when the Nova Scotia Board of Censors banned Last Tango in Paris.

The late 1960s and early 1970s saw a number of films that challenged audiences and censors with previously unseen levels of violence and sexuality (at least in widely distributed films). The United States brought in a new ratings system in 1968, grudgingly accommodating adults only films, and across Canada, most of the already more liberal boards were reorganizing to place greater emphasis on classifying films, and less on censoring. In 1972, the year Last Tango in Paris was released, Manitoba adopted a policy of not banning any films.

Last Tango in Paris was approved as a film for adults only in every jurisdiction except Nova Scotia. The retiring chair of the Ontario Board of Censors, who spent the later part of his career arguing against censorship, said “we just closed our eyes and ears and let it go.” In Manitoba, the owner of a theatre showing Last Tango was charged with exhibiting an obscene movie. The trial considered the artistic merits of the film, and the court ruled the film was not obscene. An appeal was dismissed, in a split decision (Regina v. Odeon Morton Theatres Ltd. and United Artists Corp.).

The Dartmouth Free Press decided to appeal Nova Scotia’s ban to the provincial cabinet. The paper also attacked the Board, noting that the three members, appointed for life, were patronage appointments. The chair had previously run a variety store. At the time he was appointed, his brother was a member of the provincial legislature. Another Board member had previously been a teacher, and briefly held the patronage appointment of county road superintendent. The third Board member was a bar owner who was active in the premier’s constituency.

Censors appointed through patronage are not necessarily less qualified than anyone else. The job consists largely of watching movies and filling out forms. However, the Free Press  also noted that the Board understated the number of films it had banned, and that sixteen films had been banned in the last two years. In defense of Last Tango, the Free Press noted:

Last Tango in Paris is regarded as anything but a peep-show, Eve type movie. American critic Pauline Kael said it is to movies what Stravinsky’s Rites of Spring was to music. It is on Time Magazine’s list of best movies, and it has already won important awards. When CBC’s Information Morning radio show (6 A.M. – 9 A.M.) polled listeners,  an astounding more than 600 gave their views, the majority saying they felt the movie should not have been banned.

The appeal to cabinet was unsuccessful, so the Free Press attempted to take the province to court over banning the film. The case promptly got bogged down over whether or not an individual can request that the constitutionality of a law be reviewed. The matter went all the way to the Supreme Court of Canada, which ruled in 1975 that the editor of the Free Press did have standing to challenge the law (Nova Scotia Board of Censors v. McNeil, [1976]).

The case returned to provincial court, to consider whether or not a province had the right to ban a film, particularly without giving any reasons, and for a film that was not criminally obscene. Among the considerations was that criminal obscenity can only be determined by a federal court. Again, the case went all the way to the Supreme Court of Canada. Gerard McNeil, editor of the Free Press, was on one side, with the Canadian Civil Liberties Association. On the other side was the Crown, as well as the Attorneys General for Canada, Ontario, Quebec, British Columbia, Prince Edward Island, and Alberta.

In a five/four split decision, the Supreme Court ruled that provinces did have the right to ban films. The Court ruled that banning films was simply trade regulation. In addition, banning a film was not an action that punished anyone. As such, film bans were  unrelated to criminal matters such as obscenity, or to  constitutionality.

…the pro­vincial government in regulating a local trade may set its own standards which in no sense exclude the operation of the federal law.

There is, in my view, no constitutional barrier preventing the Board from rejecting a film for exhibition in Nova Scotia on the sole ground that it fails to conform to standards of morality which the Board itself has fixed notwithstanding the fact that the film is not offensive to any provision of the Criminal Code; and, equally, there is no constitu­tional reason why a prosecution cannot be brought under s. 163 of the Criminal Code in respect of the exhibition of a film which the Board of Censors has approved as conforming to its standards of propriety (Nova Scotia Board of Censors v. McNeil, [1978]).

The United States determined that film censorship was merely trade regulation in 1915, but rejected that in 1958, and declared that films were subject to the First Amendment free speech provisions.

The constitutionality of the provincial right to ban films has never been tested, at the Supreme Court of Canada, under the 1982 Charter of Rights and Freedoms. The year the Charter was adopted, a group of artists launched a challenge in Ontario, over that Board’s handling of four films. The court sided with the Board for three of the films, but in the case of the fourth, noted that the Board had no legally defined right to ban a film. The province appealed, but the appeal was dismissed. The province could have taken the issue to the Supreme Court, but instead chose to update the laws and regulations to legally define how films could be banned (Re Ontario Film & Video Appreciation Society and Ontario Board of Censors, 1984).

Updating the laws legally defined the Board’s rights, but created a constitutional problem. In 2000, Glad Day Books was charged under the Theatres Act with selling an unapproved film. The store argued that the cost and delay of getting a film approved was unconstitutional. (The film in question was 123 minutes long, so at $4.20 a minute the approval cost was $516.60. For a mainstream theatrical release, this is negligible, but for a single store selling perhaps ten home video copies, it is prohibitive). Glad Day lost, and appealed. Among other arguments, Glad Day suggested that the McNeil case from Nova Scotia no longer applied. The court did not accept that.

Glad Day and Scythes did not persuade me that the adoption of the Charter undermines the McNeil case as controlling authority as to whether the Province of Ontario has the constitutional competence to enact the legislation from a division of powers perspective. In a division of powers analysis, the court must begin with the presumption of constitutionality. It was held in McNeil that the purpose of the film censorship scheme was to regulate the film industry within the province and, therefore, it was validly enacted by the province. The Charter does not change the division of powers analysis or its result. After the adoption of the Charter, just as before, the province has the jurisdiction, pursuant to its property and civil rights power, to enact legislation to regulate the film industry, including the censorship of images that are harmful to society, and such a provincial regulatory scheme can operate concurrently with the federal government’s penal obscenity law. What has changed since the adoption of the Charter is that both federal and provincial laws must comply with the Charter’s guarantees. (R. v. Glad Day Bookshops Inc.)

Considering that last point, the appeal ruled that while classification was fine, mandatory submission for approval was an unconstitutional prior restraint. The court gave the government a year to separate classification from film approval. This was widely reported as the end of censorship and putting the Board out of business. Again the government chose to update the law rather than appeal to the Supreme Court. The new law defied the court, and kept prior restraint and the right to ban films. In effect, nothing changed.

Nova Scotia did eventually approve Last Tango in Paris. The records on when it was approved have been lost. Nova Scotia and other provinces have since restructured their censorship boards. Nova Scotia, like several other provinces, now uses a part time public board, with members who work a few days a month for a modest payment. Alberta became the second board to declare a no ban policy. The other boards all continue to have the right to ban films, often without clear reasons. This is Quebec’s statement on censorship and bans:

Censorship in Québec was officially abolished in 1967 with the creation of the Bureau de surveillance du cinéma. Should the Régie du cinéma feel that a film interferes with public order, it can refuse to classify it, which would mean that the film could not be distributed in Québec.

In practice, bans are exercised against adult sex films, and may be used as a threat to demand cuts. It is also adult sex films that are occasionally approved by a provincial board, and then found to be criminally obscene by the courts, to the dismay of the convicted retailer. These films have few defenders, and at this point no one seems too concerned about the right of provinces and territories to ban films. Maybe there is no reason to be concerned, and the law will eventually join the list of out of date laws that are mocked. However, a change of government and public mood is all that is required for film bans to become headline news again.

What Price Glory (1926) banned in Nova Scotia

What Price Glory? is an anti-war comedy, along the same lines as M*A*S*H. It’s a silent film, made by Fox in 1926, and re-released in 1927 using new technology to include sound effects and music. It was adapted from a successful but controversial 1924 play. The language and disrespect for military traditions both caused offense. The film version had no issues with language, except for people who could read lips and understand the generous profanities the actors used. There were complaints, but mouthed though unheard and untitled obscenities did not break any censorship rules. However, the disrespect for military traditions caused the film to be banned in Nova Scotia.

The story tells of two rowdy US Marines, who alternately fight together and with each other. Set in France, during World War I, both men are trying to win the affections of a French girl, improbably portrayed by Mexican star Delores Del Rio. Realistic battle scenes and the dynamic relationship between the two men contributed to the film’s success, and the two male leads continued their characters in a series of buddy comedies.

Anti-war films, and any films that showed the military in a negative light, or showed anything close to the realities of warfare, were usually banned in Canada during World War One. Under the War Measures Act, the federal government had the power to censor films, but in practice the understaffed federal military censors relied on, and received, the enthusiastic cooperation of provincial film censors. Following the war, as the grim realities sunk in, there was some opposition to the extensive censorship that had occurred, and support for anti-war sentiments. What Price Glory? could never have been shown during the war, but a decade later it was approved in every province – except Nova Scotia.

Film censor Colonel C. E. Bent, a veteran of the war, later explained why he condemned the film.

One of the reasons I gave for condemnation was ‘holding the discipline of the Army up to ridicule.’ Certain scenes between an Officer and a Sergeant showing them arguing and even fighting over a girl was, to my mind an insult to the Army in Peace or War. It certainly could never happen in our Army, they why should a picture be shown that would create a wrong impression on the minds of those who were not permitted to serve? The memory of the days of war, the wonderful discipline, the unparalleled examples of devotion to duty, the great comradeship, the sacrifice, is too real and far too sacred for me to allow it to be treated lightly.

The distributor appealed, and the appeal upheld the ban. The Casino Theatre in Halifax opposed the ban, and showed slides before other films advertising that What Price Glory? was banned, but only in Nova Scotia. This did not always have the desired effect. One patron wrote the Evening Mail to thank God for the Nova Scotia Censors, and praise them for ensuring that “Nova Scotia is holding herself just a little higher than her sister provinces.”

The Casino Theatre also arranged for a private showing in January of 1928, hoping publicity might overturn the ban. Following the showing, at least two local papers voiced support for the film, and the head of the Motion Picture Distributors Association of Canada wrote to Premier Rhodes to request the ban be overturned. The letter pointed out that while Colonel Bent may not have approved of the military portrayal in the film, the story concerned the US Military. “Applying British ideas and ideals to the story, there is something to be said against it, nevertheless the picture is frankly American and all other British Censor Boards have taken this view.”

Promoting the American nature of the military portrayal was a risky argument. Anti-American feeling was high in Canada, over trade issues and their late entry into the War. Censors in all provinces routinely cut “gratuitous displays of the American flag” and were particularly sensitive to American war films that ignored the contributions of Canadians. However, as one paper noted, the nationality of the soldiers was not unduly stressed in What Price Glory?

The Premier responded that while the Board may have erred in banning the film, he could not overturn their ruling. He noted that if he were to express such a lack of confidence in the Board, he would then have to either review all films personally, or hire a new Board. More seriously, he pointed out that the Board of Appeal had twice rejected the film, and that three of the seven appeal board members were appointed by the owner of the Casino Theatre.

The Association tried again, complaining that because only Nova Scotia banned the film, this was another example of burdensome “local prejudice.”

For example – A picture is put on the screen in which a Salvation Army lassie appears and immediately the Salvation Army raises a protest. Another picture presents a Boy Scout in a way that Boy Scouts do not appreciate, another protest is made to some local Censor Board. … we can only be successful in our business if Censorship in the eight provinces is based on general principles, rather than on local prejudice.

This was a doomed argument, since the provincial censors took pride in reflecting the concerns of their populations. The censors had decided in 1921 to move to a single national set of standards, based on the Ontario guidelines. However, in 1922, the censor for Alberta, mindful of the population mix there, suggested that banning all German films should be left up to the individual provinces. When the dust settled, the censors decided the provinces could not share standards, since “each province has a different class of people.” In recent decades there have been some sharing agreements, but Canada still has seven boards to approve and classify films, for the eleven provinces and territories that require it (the Yukon and Newfoundland do not).

The Secretary and the Chair of the Censor Board both wrote the Premier to insist that that ban stay in place, pointing out that, in addition to the offensive nature of the film, the distributor was probably hoping to capitalize on the publicity, and this should not be allowed. A couple of Legions sent telegrams insisting the ban stay in place. The North Sydney branch declared “We who know the price of glory do not want to see it prostituted before the public.” The Premier promised the Legion that he would uphold the decision of the Board of Censors.

Eventually the film was approved, and it now has a G rating. The Maritime Film Board ratings database shows the approval date as 1928, however this date was estimated in the 1980s, and may not be accurate. Board records are not archived, and the information about this film has been obtained from archival records of the Premier’s correspondence.

The film was remade in 1952, directed by John Ford and starring James Cagney, but an attempt to make it more humorous and less anti-war, in keeping with the tone of the times, resulted in a dull and unsuccessful film. The 1952 version has not been approved for showing in Nova Scotia, but it has probably never been submitted.

Colonel Bent of the Censor Board, members of the Legion, and some members of the public wanted to avoid saying anything bad about war, but there was also local support for an antiwar message. The labour oriented Halifax Citizen newspaper not only praised the film, but felt people should see it, and criticized past support for the war.

Why was the splendid picture, “What Price Glory?” rejected by the Nova Scotia Censors? This was the question asked by the representative gathering of prominent citizens who attended a private screening of the picture by invitation of Mr. R. J. McAdam, proprietor of the Casino. This picture should not only have been passed by the Censors, but a special effort should have been made to have EVERYBODY see it.  With perhaps a slight elimination, it should be shown in churches, where the glory of war was preached for five years; in the Sunday schools, where the pupils were taught the GLORY of being a soldier; in the public schools, where the pupils were filled up to the neck with war glorification during that period; in the colleges, where all the students were exhorted and even shamed into going to their death, and helping the perpetrators of the world’s greatest crime; in all public organizations and institutions where men or women gather together. All the people should see this picture and the Board of Censors should reconsider their decision. “What Price Glory?” IS THE BEST WAR WARNING EVER PRODUCED. It presents war in all its hideousness and shows that the “Glory,” so called, does not amount to shooks compared with the terrible cost, the awful sacrifice, the horror, suffering and , more than all, the disillusionment of those who thought they were going into a high and noble struggle.
Click the clipping for a clearer image or to enlarge it.

 

Why Restructure the Ontario Film Review Board?

According to news stories in the Toronto Star and on CBC, the Ontario government is planning to restructure the Ontario Film Review Board, as part of a larger project involving the hundreds of provincial government boards. The expression “if it ain’t broke, don’t fix it,” comes to mind. The Board has operated more or less the same way for thirty years, with no significant controversy for the last ten. Significantly, it makes a profit, which is turned over to the provincial treasury.

The Star emphasizes the amount of adult sex films the Board reviews, and their contribution to the income, but there no suggestion that this will be changing, other than a vague mention of considering the fees. Ontario charges $4.20 a minute to review films, and while other provinces charge half that for mainstream films, they typically charge a similar amount for adult sex films. Reviewing fees are inconsequential to major distributors, but a significant burden to smaller companies, such as adult sex distributors, and are prohibitive for adult sex companies and independent producers that specialize in niche markets such as gay, lesbian, and feminist erotica.

If the government is feeling guilty over the income from reviewing adult sex films, and the burden on that industry, they could simply stop reviewing them. Unlike other films, there is no question that the classification will be Restricted. Unlike other films, the review process does not provide any content information or warnings. Adult sex films may contain nothing but softly lit romantic, loving sex, or graphic close ups of people being murdered during sex (murder during sex is permitted as long as it is not for sexual pleasure). The mandate of the Board is to provide “the public with sufficient information to make informed viewing choices for themselves,” but they do not do this for adult sex films.

Board approval of an adult sex film does not mean it is legal, either. Obscenity laws are federal, not provincial, and only the criminal courts can determine if a film is legal or illegal (criminally obscene). As a result, the Board can and has approved films which have subsequently been found criminally obscene or seized at customs (it has also banned films which are not criminally obscene). Since the review of adult sex films does not confirm they are legal, or provide any information for viewers, it appears to be nothing more than a sin tax.

Government and Consumer Services Minister David Orazietti says he wants the board to make less money (?), and Board chair Bruce Davis is complaining that board members are required to watch pornography (in fact they fast forward through it), so perhaps they will scrap reviewing adult sex films. Civilization would not collapse. Alberta does not review any home video, including adult sex films, Manitoba does not ban any films, and Newfoundland and the Yukon have no film classification at all. Things would improve for small distributors of adult sex films, but I’m confused as to why any government would want to abandon existing revenue in order to make things easier for the pornography industry. Is no one thinking about the headlines?

The CBC story takes a different tack. Orazietti says he wants to talk to the other provinces about greater consistency in ratings, thus revealing his lack of knowledge about film classification in Canada. The story also suggests Ontario and Quebec are the only provinces that rate films, and the others rely on them or the American MPAA ratings. It’s not clear if this central-Canada-centric ignorance is Orazietti’s or the CBC‘s. Manitoba, Alberta, BC and Nova Scotia all rate films. New Brunswick and Prince Edward Island use Nova Scotia’s ratings, Nunavut and NWT use Alberta’s, and Saskatchewan uses BC’s. The days of other provinces accepting Ontario’s cuts because the bits of film have already been removed are long gone.

The five English language agencies harmonized their classification schemes in 2004, and across Canada, even taking Quebec’s significantly different classification scheme into account, three-quarters of all films get the same rating. My own analysis of ratings has shown that the only factor affecting consistency of ratings is whether the films are rated by appointed part time board members, or full time employees (as in Alberta, BC, and Quebec). It should be no surprise that a small group of full time employees give more consistent ratings.

The CBC story also mentions The Hunger Games as a film with inconsistent ratings, noting the unusually high 14A in Ontario. What they don’t mention is that The Hunger Games was originally rated PG in Ontario, and re-rated several weeks after release, in response to complaints.

The Ontario Film Review Board is not without problems. It would benefit from a few tweaks and an updated website. Film classification never makes everyone happy, and that’s okay. It is an example of the compromises that occur in functioning democracies. The Ontario Board has been working smoothly for years, makes money, and responds to the public. It’s hard to see how this new proposed Ontario Film Authority could be an improvement, which raises the possibility that things might get worse.

More than you ever wanted to know about the provincial film review boards: Film Classification in Canada and the United States: The Freedom of Government Control?

Speech and Music

The Toronto Symphony Orchestra has decided to cancel a performance by pianist Valentina Lisitsa, apparently due to complaints about her online postings concerning the war in the Ukraine. Lisitsa was born there, has expressed strong feelings about the conflict, and apparently some people found her comments offensive.

Strictly speaking, this is not a censorship issue. No one is telling her she cannot express her opinion. And although she is an artist, this is not an artistic issue either. Her performances are completely apolitical. Nor is this an issue of private life spilling into the public arena, as she was speaking publicly. She is simply, like many people before her, someone who said something unpopular on social media and lost their job over it.

It’s hard to blame the employer. Protests are bad publicity, and while some businesses ride it out, not all want to, or can afford to, stand behind an unpopular employee. Suggestions that people should keep unpopular or controversial opinions to themselves are pointless. Innocent statements are taken out of context, and beliefs change. The fault lies with the mob.

The mob has a certain set of views, and tolerates no discussion. Issues are simple – you either agree, or you are the enemy. Thus a piano player who expresses an opinion about a war in another country should no longer be allowed to play the piano. This intolerant, black and white view of the world benefits no one. It allows small differences to separate us from other people, and makes it harder to resolve any issue, because solutions are seen as winning or losing. Unfortunately, two-party democracies reinforce this binary world view. Politicians trying to score votes make it worse by promoting and exploiting all manner of social binaries – criminals vs law abiding, hard working vs welfare cheats, gun owners vs non-gun owners, unions vs management, men vs women, foreigners vs citizens, and so on. Wars are both a result of intolerance and way to further it. A question we ask in almost every dispute, from a romantic disagreement to a war, is “whose side are you on?”

Imagine if we didn’t take sides? We could all agree that Valentina plays very well, regardless of her political opinions, which she in turn may not feel so compelled to express, ideally because there would be no war at her birthplace. “You may say I’m a dreamer, but I’m not the only one.”

Update: The TSO originally arranged for Stewart Goodyear to play the scheduled piece of music, but he has been bullied into declining. ‘Goodyear says he was accused of supporting censorship and what began as one of the happiest moments of his life turned into a “shattering display of mob hysteria.”‘ The mob scores another victim.

Dracula Sucks – The Cartoon and the Court

Dracula Sucks was an ambitious 1978 adult sex comedy parody. Legend has it that the original version was edited into two shorter films, one containing explicit sex and distributed under various other titles, and the other shown at theatres. When it came to Canada, additional cuts were made for Ontario, and the cut version eventually ended up in Alberta. As in the other provinces, the Alberta censors approved it for viewers over 18 only. There were several showings in Edmonton and Calgary, to over 8,000 people, with no complaints to the censors or the theatre chain, but police in Edmonton received complaints. They viewed the film at a theatre, seized it at the end of the showing, and charged the theatre:

That The Towne Cinema Theatres Ltd., at Edmonton, in the Judicial District of Edmonton, Alberta, on or about the 27th day of January, A.D. 1980, being the person in charge of a theatre, namely, Jasper Cinema (Blue) at 10120 – 156th Street, did unlawfully present an audience an entertainment, namely a motion picture entitled ‘Dracula Sucks’ which entertainment was immoral, indecent or obscene, contrary to the Criminal Code [R.S.C. 1970, c. C-34].

As part of the hearing, the film was screened at the censors office for the court, and the judge invited members of the public to attend the screening

….several newspaper reporters, some members of the public, His Lordship, Counsel, and the Court Clerk viewed the film on the Censor Theatre screen only one time… His Lordship had only one opportunity to view the film before his judgment convicting Towne Cinemas Theatres Ltd., and fined the said company $1,500.00.

I don’t know what the ticket price was in 1981, but 555 people viewed the film at the theatre before it was seized, so unless tickets were less than $3, the theatre still came out ahead. Nevertheless, they planned to appeal the decision.

Soon after the conviction, the Edmonton Sun published an editorial cartoon, mocking the case. Several parties were charged with contempt of court, but the Crown dropped charges against everyone except the paper. In court, the judge described the cartoon as follows:

[It] depicts a person in judicial dress complete with a wig surrounded by four persons in uniform similar to that of police officers. The hat badges have the word “fuzz” on them. There is no doubt but that the cartoonist is depicting a judge and police officers. All are leaning forward with rapt attention on the screen. Three of the police officers are salivating and drooling and the fourth is saying “So we rescrutinized ‘Dracula Sucks’ to make sure you were right, your Honour — but really! 76 times.” The judge is biting his finger. The figures are drawn in such a way as to express eagerness, anticipation and erotic thrill in each of them. The portable projector is on a pedestal of some sort together with additional reels of film. The screen is also a portable one. The impression is that the film is being shown in much the same way as one shows home movies.

The court had to consider whether the cartoon would “bring the court into disrespect” or “obstruct or defeat the administration of justice.” The latter point was significant as an appeal had been launched, and the cartoon could conceivably affect the appeal.

The judge concluded that between the poor execution of the cartoon and the lack of intelligence of the average newspaper reader, there was no danger of the cartoon being in contempt of court, although he did not like it.

It is my opinion that a person looking at the cartoon would expect to see some criticism of the judgment of the court or of the system of film censorship in Alberta. If that was the intention of the artist neither appears. Upon studying the drawing more carefully one could conclude that the artist was attempting to show that the presiding justice or that members of the judiciary are lustful and lascivious people who use court exhibits and in particular films which have been found to be obscene for their own personal use and to satisfy their own prurient desires. To put it in the vernacular, that they are “dirty old men”. I suppose that is also possible to conclude from the cartoon that members of the judiciary confer with police officers as to whether they arrived at the right decision in the cases that they have heard.

To my mind neither these nor the other matters raised by the Crown in its argument would be readily apparent to the average person reading the paper. I cannot imagine anyone taking this cartoon seriously. To me a reader would accept the cartoon as one attempting to poke innocent fun at members of the judiciary whose duty it is to determine whether a film is obscene. The fact that the caption refers to “Dracula Sucks” which readers of the newspaper must have known to have been found obscene does not alter my view. Without reference to something spectacular the cartoon would make less sense than it does in its present form.

I cannot conclude that the cartoon is in contempt of court. To me it is a stupid, pointless and unintelligible drawing and having regard to the subject matter of the film even if it portrayed someone other than a member of the judiciary or the police forces it is in very bad taste.

Meanwhile, the appeal of the theatre’s obscenity conviction was upheld. The theatre appealed to the Supreme Court of Canada, and in 1985 that court considered the case. No one bothered  defending the film on the grounds of artistic merit.

In the present case, no argument was addressed to the “artistic merit” or “serious purpose” of Dracula Sucks‑‑nor, I should think, could such an argument plausibly be made. This Court is not, therefore, called upon to expound the relationship between Judson J.’s two tests.

Instead, the court looked to community standards, a guideline since the late 1950s.

 We need only consider the issue of obscenity from the point of view of community standards.

This was also one of the first court decisions to emphasize that pornography could be harmful, even if it was tolerated in the community. 

Nevertheless, as will presently appear, it is important to remember that from the very beginning of this Court’s consideration of s. 159(8) “community standards” have been viewed as one measure of “undueness” in the exploitation of sex. They have never been seen as the only measure of such undueness; still less has a breach of community standards been treated as in itself a criminal offence.

There are other ways in which exploitation of sex might be “undue”. Ours is not a perfect society and it is unfortunate but true that the community may tolerate publications that cause harm to members of society and therefore to society as a whole. Even if, at certain times, there is a coincidence between what is not tolerated and what is harmful to society, there is no necessary connection between these two concepts. Thus, a legal definition of “undue” must also encompass publications harmful to members of society and, therefore, to society as a whole.

However, the court determined that in this case, only community standards were at issue. What is the community? In the early 1960s the courts had ruled that the community, for the purposes of determining community standards for obscenity, is the entire country. This is different from the United States, where the community is argued on a case by case basis.

Understanding what the country as a whole will tolerate is not easy, and the court mulled that over, before ruling that in the case of Dracula Sucks, the initial trial judge had relied on his own standard of taste rather than considering community standards. The conviction was set aside.

Cases:

Being Respectful

Sony has decided not to release “The Interview,” after multiple exhibitors, including 17 theatres in Toronto, cancelled screenings. The cancellations were announced after an unknown organization, possibly linked to North Korea, threatened attacks on theatres showing the film. North Korea doesn’t like the film, a comedy about assassinating  Kim Jong-un, for obvious reasons, but denies responsibility for the electronic attack on Sony and the threat, and many experts do not see the threat as credible. The controversy has also led to Fox cancelling a planned film set in North Korea. 

Anti-censorship advocates see this as a victory for opponents of free speech. Censorship by pressure groups has been a problem for decades, but artists in any medium should always remember that just because they make something does not mean other people have to buy it. Of course, this presumes artists at least have access to the market. Corporations that dominate some arts industries, like video games, can be just as powerful as governments when it comes to censorship, and unlike governments (at least democracies), they don’t have to answer to anyone.

For all of Hollywood’s bluster over the cancellation, films are routinely modified to appease one group or another. One of the earliest industry rules for making films, from 1927, was don’t give “willful offense to any nation, race, or creed.” It’s no longer a written rule, but still observed to ensure overseas sales are not affected. For example, in the German theatrical release of Die Hard, the bad guys were English/Irish, not German. For decades, Canadian censors ordered cuts or bans that might offend some segment of the population, not just to avoid giving offense, but to encourage social harmony. In 1952, Outrages of the Orient was banned, and the censor noted:

This picture portrays the atrocities perpetuated by the invading Japanese armies upon the Philippine Islands in 1942 and in light of present day events and a world trying to rise above feelings of hatred and revenge, I consider the showing of this picture to be against the public welfare.

In this more enlightened age, we no longer worry about the world or the public welfare when making or rating movies. Not surprisingly, sometimes people get offended. But banning or supporting bans is not usually the best response. As the Ontario censor said in 1963, “banning any film today only arouses controversy and brings it a publicity value it does not deserve.”

Update Dec 26, 2014: Sony went ahead with a limited release, including online distribution – and is getting yet more media coverage for that. 

Maen Striit Massacre

Some folks in Vancouver are all in a tizzy over a new online game featuring a shooting rampage on their transit system.  Developed and posted by a construction worker, the first person shooter is a construction worker caught up in transit delays. Vancouver’s transit system recently had two lengthy delays in one week, so that’s realistic, but the character’s goal is to get to the cheque cashing store before it closes. That goal establishes the game as fantasy – those places are open 24 hours.

Apart from the usual concerns about the promotion of violence, various talking heads have suggested that the game is a political or artistic statement. The creator’s “Letter to the Citizens of Vancouver” suggests the former:

Main Street Station – and the prolonged renovations (which have essentially turned it into a glorified bus-stop for the better part of a year) is a perfect metaphor for self-serving un-creative management of cities, back-door dealings in kushy government contracts – and the extreme frustrations this kind of bullshit causes for ordinary citizens. People are provoked by SkyTrain malfunctions because something much deeper is being stirred. If we were generally thriving, secure and happy – the occasional delay would be no problem. The reality is, we’re not. We’re living day to day, under constant financial and time pressure. One missed paycheck from ruin, in most cases. We’re fed-up with city life. We’re sensing a real injustice. An increasingly large divide between OUR opinions and needs – and those of the people who govern us.

He also acknowledges that the game is deliberately provocative, the publicity is great for the business he is trying to launch, and that while this game was quick and crudely made, he’s hoping it draws some attention to a better game he spent two years developing.

As the game is online, it’s beyond the jurisdiction of the provincial classification boards. Transit police are investigating, but it’s unlikely any laws are being broken. Translink asked the media to stop promoting the game by playing clips, and the president of the Vancouver Regional Construction Association stated:

The portrayal of construction workers in this video clip as violent individuals is highly inappropriate and does not reflect at all the professionalism of the construction industry.

I’m glad that’s cleared up. Although it’s worth noting that in a sample of 216 murderers, the most common occupation was labourer, at 28%, followed by service workers (17%) and students and the unemployed (13% for each). Other occupations were in the single digits. 

I’m never happy with the promotion of violence to solve problems, but it’s clear the game is satire. The crudely drawn platform includes critiques of consumerism (a poster says “Buy More Shit!”) and a sign resembling the federal government’s Economic Action Plan billboards (“Wasting of Tax Dollars in Progress!”). There’s also a banner stating “Arbeit Macht ARBEIT,” a reference to “Arbeit macht frei” (work makes you free), a slogan posted at several WWII concentration camps. 

Screen Capture from http://msm.wildmanindustrie.netdna-cdn.com/
Screen Capture from http://msm.wildmanindustrie.netdna-cdn.com/

The game’s creator denies that the game promotes violence, and a child right’s advocate agrees, noting that while the effects of violent video games on behaviour are uncertain, if we are really worried about reducing violence we should address the known causes:

What is clear is that there are links between adversity in children’s lives and later violence. In extraordinarily large numbers around the globe, children are victims of maltreatment. They are living in families in which they are exposed to intimate partner violence, to sexual and physical abuse, to severe neglect or rejection. They are raised in communities where street violence, gang violence, civil strife, or war, are their daily reality. And there is a notable absence of family supports or mental health facilities. These circumstances of rearing are more predictive of violence than is the playing of violent video games.

The game’s creator wants a better world too: 

In this day and age … with the technology we have available … there is NO GOOD GOD DAMNED REASON that ANYONE should be worried about having shelter and food – REGARDLESS of whether they are working. I can hear the onslaught of clever justifications coming … and I don’t care. The gap in theoretical efficiency and quality, given our resources – and what we’re accomplishing – is absurd. It’s pathetic.
A city should provide basic amenities to EVERYONE, no questions asked. This lip-service and grandiose bluster about “ending homelessness by 2020” is ridiculous. This could have been solved in the 60’s, or earlier.

Meanwhile, Translink has accomplished some censorship. Their lawyers sent a letter to the hosting company, claiming infringement of copyrights. The creator cannot afford a lawyer, so game is now known as Maen Striit Massacre, it takes place in a SK-itrain station, and what might have been a Translink map has been removed. I believe this is known as shooting the messenger.  

Censorship During World Wars I and II

Film censorship is a provincial matter in Canada, except in times of war. The British government managed censorship of military matters until 1915 when Canada passed the War Measures Act. Among other things, the Act allowed for a federal Chief Censor, also known as the Chief Press Censor.

As the title implies, the primary goal of the Chief Press Censor was to ensure newspapers did not print information that might be useful to the enemy, such as troop movements and ship departures. A secondary goal was to keep morale up, by ensuring newspapers printed only positive (or fabricated) stories about the war effort and England. In some respects news in Canada was more heavily censored than news in England. Wounded soldiers in bloody, lice infested uniforms, and first hand reports from the front, were common in England but rare in Canada, and the press cooperated with the military in ensuring Canadians were sheltered from the realities of trench warfare.

The War Measures Act did not extend federal censorship powers to films until 1917, but the provincial censors cooperated informally prior to that. There was widespread support for maintaining a positive image of the war and a negative image of the enemy. Items such as intense battle scenes were routinely cut from American films.

Once the United States entered the war, most American films were ideal for propaganda purposes, but some were cut or banned for suggesting the enemy was powerful. One film, The Last Zeppelin Raid (aka The Zeppelin’s Last Raid), concerning a mutiny on an airship, was banned because it humanized enemy soldiers by showing they had a conscience.

During World War II, federal censorship was a government bureaucracy under the tight control of the Prime Minister, Mackenzie King, and his justice ministers. Post World War I revelations about the extent of censorship during that conflict left both the press and the populace less comfortable with censorship.  Over a dozen newspapers were banned or shut down for their opposition to the war.

Press censors in British Columbia, who like most censors had a journalism background, fought hard to defend a Japanese paper. The RCMP shut down three Japanese language papers, leaving only the English language New Canadian serving the Japanese community. With the assistance of the censors, the New Canadian bought Japanese type from one of the closed papers, and became a bilingual paper. Censors worked closely with newspaper staff to help them meet deadlines and publish despite the many restrictions on Japanese businesses, and frequently defended the paper against racist government officials.

Radio had to be censored too. For the duration of the war, radio stations were prohibited from playing listener requests, or passing on items such as dedications and birthday greetings. The government was concerned that requests and announcements could be used to pass on secret messages.

The main concern of provincial film censors was American newsreels. Prior to American involvement in the war, these sometimes contained material from German military film units. In 1940, the provincial film censors were formally recognized as press censors. Although the United States was divided on support for the war, major film studios, many with Jewish executives, were firmly on the side of US intervention and as a result there was minimal requirement to censor Hollywood films.

The War Measures Act was replaced by the more limited Emergency Measures Act in 1988. Under that act, the government may make “such orders or regulations as the Governor in Council believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.” The only thing not permitted under this clause is conscription. In theory, we could once again see federal film censorship, but in the last hundred years our notions of war and society have changed enough that I think it unlikely.

For more information, check out my sources for this piece: Propaganda and Censorship During Canada’s Great War, by Jeffrey A. Keshen, and The Fog of War: Censorship of Canada’s Media in World War Two, by Mark Bourrie.

Censoring the Sizzle

Sin City: A Dame to Kill For, is due for release in August. The Weinstein Company has released a series of promotional posters featuring each of the stars, but the sixth, featuring Eva Green’s character in a transparent top, was deemed inappropriate by the MPAA. Take a look for yourself. Apparently a new poster is being prepared. Most reports of this poke fun MPAA’s prudishness, but others recognize a publicity stunt when they see one. 

Regardless of this little tempest, it’s a fair question to wonder why film rating boards care about advertising, when there are other agencies dedicated to advertising standards. All the boards in Canada have the legal right to review film advertising, and it is occasionally exercised. The Ontario Film Review Board banned the poster for Yana’s Friends in 2000. This right was not so much a power grab by the Boards as a way to stave off complaints.

Back in 1920, the Ontario Board of Censors was receiving a lot of complaints. It was not that people disapproved of film censorship, even though it was widespread: the approval rate was 60%. People found the board was too lax. A few years earlier the Board had tried abandoning rigid standards in favour of judging each film on its own merits, but public outcry led to the return of standards, including any prohibiting films which were “degrading, immoral, improperly suggestive, harmful, or indecent.”

Other 1920 reforms included new rules about attending screenings, to end the practice of office boys and the postman dropping in, and the Board appointed a female censor. A number of moral reform associations had complained to the Board that only women could properly judge the morality of films, and the chair recommended appointing a female censor to address that concern.

Another common source of complaints was the posters promoting films. Ordinary decent people walking down the street would see posters promising or suggesting all manner of decadence in a film, assume the film delivered what the poster implied, and complain to the Board. The Board decided to review and approve the advertising, to eliminate these complaints. In hindsight it seems silly to censor the sizzle, but perhaps some viewers were spared disappointment by more restrained posters. The rules are still in place, and the boards still get complaints about being too lax, often from people who have not seen the films they are complaining about.   

“Sit on it!”

With all the bad news coming out of Russia, a new censorship law is a minor item, though symptomatic of a state flexing its muscles over people and culture. As reported by the ITAR-TASS News Agency, “Russian President Vladimir Putin has signed a law prohibiting explicit language in literature and arts, mass media products, at concerts, theatrical performances, entertaining events, and in film.”

Films will be refused a distribution certificate if they have obscene language, however DVDs with obscene language can be sold if they are sealed and labelled. The different treatment appears to be due to the law’s concern with public performances, and DVDs are generally for private consumption. In a nod to nationalism, films cannot be considered truly Russian if they contain foul language. The law is not retroactive.

I’m not opposed to some limitations on swearing, as I noted in this post and this post, though fines and the possibility of imprisonment are harsh. Restrictions on foul language on TV brought us the memorable phrases “sit on it” and “up your nose with a rubber hose,” as well as the infamous “melon farmer.” Such a law is certainly repressive, but in the scheme of things more a nuisance than a  harm. The likely effect will be more creative and meaningful expressions replacing meaningless intensives.