The Criminal Code contains a number of provisions governing pornography although the word itself I is never used. These provisions generally refer instead to material which is “obscene”, “indecent,” “immoral” or “scurrilous”, or in some combination thereof. Obscenity is the only one of the four words that is spelled out in law. The others have been left to the Courts to define.
The main provision against pornography comes in Section 159 of the Criminal Code under which it is an offence to publish or distribute “obscene” matter. (Section 160 permits the seizure of such material. Section 161 prohibits enforced distribution to retailers. Section 163 prohibits “immoral, indecent or obscene” theatrical performances. Section 164 forbids the use of the mails to send “obscene, indecent, immoral or scurrilous” material.)
With regard to pornography, the question therefore, is: “what is obscene” according to the present law?
An “obscene” publication is defined in subsection 159(8)as “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.” As Peter De Julio of Ontario’s Crown Attorney’s Office pointed out at the Canadians for Decency Conference held in Toronto on February 1, this definition involves four key concepts
The first is the element of sex. Unless sex is involved the crown cannot prove that something is “obscene” under the present law. Consequently some child pornography is not against the law: it doesn’t involve sexual activity. Similarly, masochism or sadism escapes the technicalities of the law when these acts do not involve sex. Crime, horror, cruelty or violence is not obscene under these terms.
The second key element consists of the words: dominant characteristic. A film or a novel which has just a few or just one scene of sex is not obscene, according to the present law.
Thirdly, there must be undue exploitation of sex. Consequently, advertising which uses scantily-clad women to sell products falls outside the scope of the present law unless it can be shown to be “exploiting” sex unduly.
The term “undue” touches upon the fourth factor, indeed the key factor, namely community standards. A work is only “obscene” if it offends against community standards of decency. These community standards are supposed to reflect a “general average” of thinking and are to be neither the most liberal or lascivious nor the most conservative or “puritan” tastes, according to the interpretation of the Crown against Dominion News and Gifts Ltd. It is also held that community standards are not static but evolve with society.
As anyone will recognize, this has been a boon to the supporters of the permissive society who have argued repeatedly that what was forbidden a few years go should be acceptable today because standards are “evolving”, becoming more “enlightened” or “progressive” Indeed it becomes difficult for a prosecutor to argue that for example, Playboy is obscene when 300, 000 people buy a copy at $3.50 p every month.