For the past 30 years, Canadians have been increasingly inundated with the most disgusting exhibitions of pornography on television, in the movies, and on-line. How can that be? Throughout this period, the Criminal Code of Canada has clearly stated that everyone commits an offence punishable by up to two years imprisonment who (a) makes, prints, publishes or circulates any “obscene” thing whatever or (b) publicly exhibits “an indecent show.”
As usual when the law no longer means what it plainly states, the prime culprits are Canada’s judicial activists. Under the pretense of upholding the 1982 Canadian Charter of Rights and Freedoms, these overweening judges have routinely overturned judicial precedents and flouted the original understanding of duly enacted statutes like the Criminal Code.
In the case of pornography, the process began with Luscher v Canada, 1983, which dealt with the importation into Canada of a pornographic publication, “Flying High.” According to the trial judge, “The magazine in question is completely concerned with the sexual activity of a man and a woman from foreplay to orgasm. There are one or more colour photographs on each of the 40 pages (including the covers) and these photographs are accompanied by several hundred words of text, in narrative form, explicitly describing in grossly vulgar language the actions depicted in the photographs.”
When a Canadian customs officer found that the appellant had a copy of “Flying High” in his possession at the Canada/U.S. border, he confiscated the salacious publication pursuant to a regulation under the Customs Actdating back to 1867 which bans the importation of any book, magazine, painting or representation of any kind of “an immoral or indecent character.” The appellant appealed to the courts, arguing that no matter how the phrase “immoral or indecent” might have been understood in Victorian times, it no longer applied to publications like “Flying High.”
In ruling on this issue, the trial judge pointed out that a long line of judicial precedents obligated judges to set aside their personal views and use the community standard of tolerance as the test for what is immoral or indecent. “When I consider the evidence which has been adduced and when I measure the magazine ‘Flying High’ against my assessment of the current community standards of tolerance,” the trial judge ruled, “I am led towards the conclusion that the decision of the (customs officer) was correct.”
However, the judge pointedly added: “Such a conclusion would have meant an end to the matter in the days before the enactment of the Canadian Charter of Rights and Freedoms.” As it was, he then had to deal with the argument of the appellant that the phrase “indecent or immoral” in the Custom Actwas too imprecise to qualify as a demonstrably justifiable legal restriction on the Charter rights of Canadians to freedom of expression.
In response, the judge cited the precedent set by the Ontario Court of Appeal in R v Popert, 1981, which pointed out that in addition to “immoral” and “indecent,” the Criminal Code often “expresses itself in other imprecise terms “such as ‘reasonable’, ‘undue’, and ‘dangerous’. It is through such words that the values of the community find expression in the court-room.”
Consequently, the trial judge in Lascher found that the Customs Actwas compatible with the Charter. But even that ruling did not end the matter.
Two years later in Luscher v MNR, the Federal Court of Appeal reversed the trial judge, rejected the opinion of the Ontario Court of Appeal in Popert, and struck down the ban in the Customs Acton the importation of “immoral and indecent” items on the ground that the words “immoral” and “indecent” are too “vague and uncertain” to constitute “a reasonable limitation upon the freedoms guaranteed by section 2(b) of the Charter.”
Ultimately, this arbitrary judicial amendment to the law led to the notorious judgment of the Supreme Court of Canada in R. v. Labaie, 2005, which dismissed the time-honoured, “community standard of tolerance” test for criminal indecency altogether and imposed in its place an entirely unprecedented “harm test” of the judges’ own devising. Then, on the basis of this new judge-made law, and despite the continuing ban on obscene performances in the Criminal Code, the Supreme Court decreed that liberated swingers have a Charter right to express themselves by taking part in demonstrations of group sex before a willing audience of leering perverts.
What can be done to curb these judicial excesses ? Nothing whatsoever until Parliament and the provincial legislatures summon up the will to invoke their powers under the notwithstanding clause of the Charter or, better yet, mount a concerted campaign to restore democracy and the rule of law in Canada, by abolishing the woefully misbegotten Charter altogether.
