The Challenges of Determining Obscenity
In Canada, censorship history typically begins with the British Hicklin case of 1868. A metal worker, who belonged to a protestant group opposed to the Catholic Church, was selling a propaganda pamphlet called The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession. The pamphlet, consisting of Latin passages by various authors and loose English translations, suggests priests took great delight in asking women sexually explicit questions and hearing the details of their sex lives.
Obscene materials were illegal under the Obscene Publications Act of 1857. However, according to the author of the pamphlet, it was not obscene because the intent of the pamphlet was not to make money but to attack the Catholic Church.
With the history of church abuses that have come to light, it’s worth noting the judges were not concerned with the accuracy of the pamphlet, but simply whether its descriptions of sexual acts were obscene. There were several hearings and appeals, ending with the conclusion that the pamphlet was obscene, and a test to determine obscenity for future cases.
The test of obscenity is this, whether the tendency of the matter charged as obscenity 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.
Regina v. Hicklin (1868), https://en.wikisource.org/wiki/Regina_v._Hicklin
To modern sensibilities, there are two major problems with this test. First, the intent and context of the publication is irrelevant. Second, the concern with “those whose minds are open to such immoral influences” meant obscenity was a problem for women, children, the poor, and racial minorities, but not wealthy white men. Hence, “secret museums,” where wealthy white men could view sexually explicit artworks, were socially acceptable.
Another way of looking at Hicklin is that a case that started with the accusation of powerful men sexually abusing women led to a ruling and laws that were used to control women’s sexuality. Hicklin was cited in enforcement of the American Comstock Act (1873), which was used to suppress distribution of information on birth control.
The Hicklin test was incorporated into Canadian law in 1892 and was used until 1959. Until 1940, there were only five major obscenity cases, but in the post-World War II world the law was seen as outdated. Additional qualifications to determine obscenity were added. In 1959, the recommendations of a Senate Committee led to a new objective and equitable test for obscenity (still in effect):
For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
Criminal Code of Canada, s.163(8) https://laws-lois.justice.gc.ca/eng/acts/C-46/page-23.html
Of course, this test simply pushed the definition of obscenity down the road, and the new problem was what constituted “undue exploitation,” especially since some exploitation of sex was apparently to be expected and allowed (provided it was not associated with crime, horror, cruelty or violence).
The first obscenity case that went to the Supreme Court under the new law concerned the D. H. Lawrence novel Lady Chatterley’s Lover, sold in Montreal. The court found it not obscene (i.e. there was not “excessive emphasis on the theme of sex for a base purpose”). The ruling was based on the notion that community standards determined whether the sexual exploitation was undue. In referring to applying community standards, the judgement cited a 1948 case from Australia, R. v. Close VLR 445.
There does exist in any community at all times—however the standard may vary from time to time—a general instinctive sense of what is decent and what is indecent … and when the distinction has to be drawn, I do not know that today there is any better tribunal than a jury to draw it. … I am very far from attempting to lay down a model direction, but a judge might perhaps, in the case of a novel … There are certain standards of decency which prevail in the community.
qtd. in Brody, Dansky, Rubin v. The Queen, 1962. https://www.canlii.org/en/ca/scc/doc/1962/1962canlii80/1962canlii80.html
Once again, however, this decision pushed determination of obscenity down the road, since community was not defined and left up the judge. And the court had no trouble recognizing the artistic merits of the novel. For example, “there was no more emphasis on the theme of sex than was required in the treatment of such a serious work of fiction.” For what it’s worth, I found the novel dull, and it had few defenders on publication. Iris Murdoch called it “an eminently silly book.” (I previously commented on the British trial.)
The judges understood what the real problem was. “The aim of the [Obscene Materials] Act was without doubt to clean up all news stands of this lewd, filthy literature, published surely not to serve the public good but merely for pecuniary gain.”
Which brings us to Dominion News of Winnipeg, a less cosmopolitan city than Montreal, and the lewd magazines sold at that news stand in the early 1960s. Dominion announced it was closing earlier this year, but online searches suggest it may still be open. Reviews and photos suggest it is part variety store, part headshop, and part adult store, but these may not be accurate or current.
The courts carefully reviewed the contents of two magazine seized at the store: Escapade (December 1962) and Dude (September 1962). The magazines are very much in the style of Playboy, with cartoons, articles, fiction, a few photo layouts of questionable taste, and a heavily airbrushed centre poster.
In my opinion, such “men’s lifestyle magazines” were far more offensive than the cruder and more explicit “nudie mags.” While both offered nude pictures of women and presented them as sex objects, the context of the lifestyle magazines explicitly presented women as items to be consumed, accumulated, and/or displayed, with a veneer of respectability in that process. The nudie mags didn’t pretend respectability or aspire to anything beyond the pleasure of the male gaze.
But I digress. The issue before the court was determining whether or not these magazine were obscene according to community standards. The court was aware that judges’ standards may not reflect community standards. The Supreme Court ruling determined the magazines were not obscene, and relied entirely on the dissent of Justice Freedman, from the earlier Manitoba Court of Appeal case which had found the magazines obscene.
The case for the Crown stands or falls on the applicability or otherwise of the first part of the definition — namely, that a dominant characteristic of these magazines was “the undue exploitation of sex”.
Can it fairly be said that this was a dominant characteristic of either Dude or Escapade? I have examined them both with care. That they do not qualify as reading matter which I would personally select for myself even in an idle hour is undoubtedly the case. But that does not make them obscene. In this area of the law one must be especially vigilant against erecting personal tastes or prejudices into legal principles. Many persons quite evidently desire to read these magazines, even though I do not. I recognize, of course, that the mere numerical support which a publication is able to attract is not determinative of the issue whether it is obscene or not. Let a publication be sufficiently pornographic and it will be bound to appeal, in the hundreds or thousands, to the prurient, the lascivious, the ignorant, the simple, or even the merely curious. Admitting, therefore, that a large readership is not the test, I must yet add that it is not always an entirely irrelevant factor. For it may have to be taken into account when one seeks to ascertain or identify the standards of the community in these matters.
Those standards are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered. Obviously this is no easy task, for we are seeking a quantity that is elusive. Yet the effort must be made if we are to have a fair objective standard in relation to which a publication can be tested as to whether it is obscene or not. The alternative would mean a subjective approach, with the result dependent upon and varying with the personal tastes and predilections of the particular Judge who happens to be trying the case.
Community standards must be contemporary. Times change, and ideas change with them. Compared to the Victorian era this is a liberal age in which we live. One manifestation of it is the relative freedom with which the whole question of sex is discussed. In books, magazines, movies, television, and sometimes even in parlour conversation, various aspects of sex are made the subject of comment, with a candour that in an earlier day would have been regarded as indecent and intolerable. We cannot and should not ignore these present-day attitudes when we face the question whether Dude and Escapade are obscene according to our criminal law.
Community standards must also be local. In other words, they must be Canadian. In applying the definition in the Criminal Code we must determine what is obscene by Canadian standards, regardless of attitudes which may prevail elsewhere, be they more liberal or less so.
I think I should add my view that in cases close to the border line, tolerance is to be preferred to proscription. To strike at a publication which is not clearly obscene may have repercussions and implications beyond what is immediately visible. To suppress the bad is one thing; to suppress the not so bad, or even the possibly good is quite another. Unless it is confined to clear cases, suppression may tend to inhibit those creative impulses and endeavours which ought to be encouraged in a free society.
Guided by these considerations I turn back to the magazines in question. Both contain photographs of partially nude women. Female bosoms are exposed in both. I am far from persuaded that the mere representation of the female breast, as in the present cases, serves to establish obscenity. I observe that these photographs are of women alone, never accompanied by or placed in juxtaposition to a male person, except in the case of one group of photographs depicting a male and female in certain ballet dance poses. Nor should it be thought that sex pervades the entire issue of these magazines. I do not say it is essential for conviction that this be the case. A dominant characteristic is enough, provided the exploitation of sex is undue. But I do not find that here.
In Escapade, which is made up of 72 pages, there are 15 pages on which photographs appear of the kind I have described. As for the rest, its content has been summarized in the following paragraph, which I quote from counsel’s factum: “The remainder of the magazine consists of text material which includes letters to the editor, advertisements on learning to draw, toupees for those with receding hair, on The Rosicrucians, gadgets from England, a 1963 calendar, a musical cigarette lighter, etc.; three short stories, “The Undeceived,” “Horace’s Atom,” and “Somethin’ Finer”; a satire on censorship entitled “The Last Word”; an article and photographs of Tulane University; an article and photographs on a Los Angeles Millionaire’s Club; an article on wild animals, including a hairy-nosed wombat, as pets and entitled “Once Upon a Wombat”; an article entitled “Report from New York’s Secret Cinema’; a story called “Saturday’s Other Heroes” dealing with half-time entertainment on the gridiron, and finally an article entitled “Should We Revive Dueling’?”
As for the other magazine, Dude, without attempting to summarize its contents, I can say that in general it is of the same pattern as Escapade. That is to say, there are several photo graphs similar in character to those in Escapade, but there are as well numerous articles, stories, and advertisements on subjects of a general rather than of a specifically sexual nature.
Viewing both magazines as a whole, I am unable to say that they are obscene. The witness Arnold Edinborough described them as flippant and saucy, and noted that when they dealt with sex they treated it in a normal and not a perverted fashion. I would agree. Risqué the magazines are, but not obscene.
R. v. Dominion News & Gifts (1962) Ltd., 1963 CanLII 724 (MB CA)
The case was significant for two reasons: First, it demonstrated that sexual material need not be serious art or literature to be found not obscene. As one of the appeal judges noted, in a view that was rejected by the Supreme Court, “this is using dirt for dirt’s sake. It would be difficult to find a more obvious instance of undue exploitation of sex.”
Second, this case established that community standards means the country as a whole. The standard of obscenity is not determined by the city or province you live in (though the positions and statements of the provincial film censor boards often contradict that), or even some non-geographic community. The United States, which has a similar emphasis on community standards and introduced it around the same time, has never established the meaning of community, so an item can be found legal in one city, county, or state, and obscene in another. Jurisdiction shopping is not unheard of when prosecutors want to shut down a magazine or movie studio.
In recent decades, feminist and LGBTQ organizations pressured the federal government into criminal code updates that added notions of harm to the concept of obscenity. This reflects Justice Freedman’s observation that simply because something appeals to a lot of people does not it is not obscene, and an understanding that the community can be wrong.
The 1992 Butler ruling led to a updated definition of undue exploitation. It essentially stated that sexual explicitness per se is not undue exploitation. It’s worth noting that our considerations of what might constitute obscenity went from photos of topless women to films showing all details of sexual activity in the space of thirty years.
Explicit sex with violence will generally constitute undue exploitation of sex, and explicit sex that is degrading or dehumanizing will be undue if it creates a substantial risk of harm, as outlined by Sopinka J. Explicit sex that is neither violent nor degrading or dehumanizing may also come within the definition of obscene in s. 163(8). While the content of this category of materials is generally perceived as unlikely to cause harm, there are exceptions, such as child pornography. As well, it is quite conceivable that the representation may cause harm, even if its content as such is not seen as harmful. While the actual audience to which the materials are presented is not relevant, the manner of representation can greatly contribute to the deformation of sexuality, through the loss of its humanity, and make it socially harmful. The likelihood of harm, and the tolerance of the community, may vary according to the medium of representation, even if the content stays the same. The overall type or use of the representation may also be relevant. The assessment of the risk of harm here depends on the tolerance of the community. If the community cannot tolerate the risk of harm, then the materials, even though they may offer a non-violent, non-degrading, non-dehumanizing content, will constitute undue exploitation of sex and fall within the definition of obscenity.
R. v. Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452
I recently acquired copies of the two magazines in the Dominion News case. I am going to examine them both with care. That they do not qualify as reading matter which I would personally select for myself even in an idle hour is undoubtedly the case. But that does not make them obscene. I got them for the articles. I’ve always wanted to read about keeping hairy-nosed wombats as pets.
In addition to the links provided, an excellent resource in this subject area is Undressing the Canadian State: The Politics of Pornography from Hicklin to Butler, by Kirsten K. Johnson. “Through a detailed historical analysis of Canada’s obscenity legislation, Johnson argues that the state implicitly supports the ideology of pornography.” Published in 1995, this work obviously does not cover post-Butler issues and cases. I summarized them through 2010 in my MA Thesis.
Tim Covell 