On May 9, 1985 the Supreme Court split sharply on how to measure pornography in obscenity trials. By a 4-3 majority, with two judges missing, the court ruled that it does not matter who the supposedly obscene material is aimed at. The only measure that counts Madame Justice Bertha Wilson said for the majority, is the national community standard of tolerance.
By contrast, Chief Justice Brian Dickson claimed the intended audience is relevant because Canadians might tolerate more or less sexual explicitness in a film or publication “depending on the audience and the circumstances.”
The uncertainty of the decision, which might easily be reversed in another decision if the other two judges side with the minority, was further enhanced by another difference of opinion. The seven judges also split over how to measure community standards. Two judges thought the prosecution should present a judge and jury with some evidence about community standards. The other five judges did not believe such evidence mandatory and the judge and jury could decide for themselves.
The court quashed the 1980 obscenity conviction of Edmonton’s Towne Cinema for showing Dracula Sucks… Blood, a blue movie passed by the Alberta Film Board. It claimed the trial judge had wrongly used his own revulsion over the film, not trying to “feel the nation’s pornographic pulse” (Ottawa Citizen, May 10).
While there is a sharp split (and sharp words) over the relevance of the intended audience, the court largely agrees on the following key points:
● Material can still be obscene even if tolerated by Canadians generally, with dehumanizing and violent pornography mentioned;
● Tolerance, not taste, is relevant. Five judges say that “what matters is not what Canadians think it is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it;
● Judges and juries have to take account of the ratings by censorship boards, which may have a better handle on community feeling than any single judge.
AH
