Tom Luscher v. Deputy Minister, Revenue Canada, Customs and Excise, [1985] 1 CTC 246

Hugessen, J:—This is an appeal from a decision of Anderson, Co Ct J, sitting as a “judge” as defined in section 50 of the Customs Act, RSC, c C-40, on an appeal, brought under section 47 of that Act, from a decision of the Deputy Minister classifying a magazine, Exhibit 1 herein, under Tariff item 99201-1 of Schedule C of the Customs Tariff, RSC, c C-41. Judge Anderson dismissed the appeal and confirmed the Deputy Minister’s classification of the magazine in question as “immoral” or “indecent”.

On the appeal to us, appellant argued but faintly that Judge Anderson and the Deputy Minister had been wrong in the determination they had made and in the application of the “community standard of tolerance” test as established by the jurisprudence. It would be otiose to recite at length the cases in which that test was established and approved and I am quite satisfied that Judge Anderson correctly instructed himself in law as to its nature and extent.

The magazine which is the subject matter of the litigation and the reasons for the appellant having it in his possession are succinctly and accurately summarized by the trial judge, as follows:

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. These actions are in no way unnatural or unlawful and, indeed, they are a common part of the lives of Canadian men and women. It is conceded that the appellant had no intention of circulating or selling the magazine. He intended to use it in the privacy of his bedroom as a means of “fantasy enhancement”.

The appeal to this Court under subsection 48(1) of the Customs Act being limited to questions of law and the material before the trial judge being more than adequate to support the determination which he made, I would not interfere with his decision that the Deputy Minister properly interpreted and applied the provisions of the Customs Tariff.

The principal thrust of the appeal to this Court is not against the decision of the Deputy Minister, which was confirmed by Judge Anderson, but against the legislation under which that decision was reached. Appellant argues that Tariff item 99201-1 is an infringement upon the freedoms protected by paragraph 2(b) of the Canadian Charter of Rights and Freedoms and, as such, inoperative as not being saved by the excepting words of section 1. The appellant does not argue that Parliament could not prohibit or regulate the importation of material of this sort, commonly described as “smut”, but rather that the prohibition as drawn in the legislation is invalid. I am in agreement with that submission.

Tariff item 99201-1, read in conjunction with section 14 of the Customs Tariff, prohibits the importation of:

Books, printed paper, drawings, paintings, prints, photographs or representations of any kind of a treasonable or seditious, or of an immoral or indecent character.

Paragraph 2(b) of the Charter enshrines and protects as “fundamental” freedoms:

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

That a prohibition whose first object is “books” is prima facie an infringement of the freedoms protected by paragraph 2(b) appears to me to be a proposition not requiring demonstration.

No freedom, however, can be absolute and those guaranteed by the Charter are no exception. They are, by section 1, subject to

such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

That text, in its turn, makes it clear enough that the task of demonstrating the justification for a limitation of a protected freedom falls upon Government.* [1]

In my opinion, one of the first characteristics of a reasonable limit prescribed by law is that it should be expressed in terms sufficiently clear to permit a determination of where and what the limit is. A limit which is vague, ambiguous, uncertain, or subject to discretionary determination is, by that fact alone, an unreasonable limit. If a citizen cannot know with tolerable certainty the extent to which the exercise of a guaranteed freedom may be restrained, he is likely to be deterred from conduct which is, in fact, lawful and not prohibited. Uncertainty and vagueness are constitutional vices when they are used to restrain constitutionally protected rights and freedoms. While there can never be absolute certainty, a limitation of a guaranteed right must be such as to allow a very high degree of predictability of the legal consequences.

The experience of others is very helpful in this regard. Article 10 of the European Convention on Human Rights subjects freedom of expression to

such . . . restrictions . . . as are prescribed by law and are necessary in a democratic society.

It may be noted that the Convention does not in terms require that the restrictions be “reasonable”.

In The Sunday Times v The United Kingdom, 2 EHRR 245, at 271 the European Court of Human Rights said:

In the Court’s opinion, the following are two of the requirements that flow from the expression “prescribed by law’’. First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a “law’’ unless it is formulated with sufficient precision to enable the citizen to regulate h»s conduct: he must be able — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.

In the United States, the freedom of speech protection of the First Amendment is not specifically subject to limitations as in the Charter and the European Convention and it has fallen to the courts to define the extent of permissible legislative limits. In Miller v California, 413 US 15 (1972), the Supreme Court made it clear that specificity and foreseeability were the first requirements of any such limits:

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. . . . As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

(at 23-24)

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.

(at 27).

In this country, while experience with the Charter has necessarily been brief, the courts have already had occasion to impose minimum standards of certainty and foreseeability as a condition to a limitation on a protected freedom being sheltered by section 1. In Ontario Film and Video Apppreciation Society v Ontario Board of Censors, 34 CR (3d) 73 at 83, the Ontario Divisional Court dealing with a provincial censorship statute, said:

The next issue is whether the limits placed on the applicant’s freedom of expression by the Board of Censors were “prescribed by law”. It is clear that statutory law, regulations and even common law limitations may be permitted. But the limit, to be acceptable, must have legal force.This is to ensure that it has been established democratically through the legislative process or judicially through the operation of precedent over the years. This requirement underscores the seriousness with which courts will view any interference with the fundamental freedoms.

The Crown has argued that the board’s authority to curtail freedom of expression is prescribed by law in the Theatres Act, ss 3, 35 and 38. In our view, although there has certainly been a legislative grant of power to the board to censor and prohibit certain films, the reasonable limits placed upon that freedom of expression of film-makers have not been legislatively authorized. The Charter requires reasonable limits that are prescribed by law; it is not enough to authorize a board to censor or prohibit the exhibition of any film of which it disapproves. That kind of authority is not legal, for it depends on the discretion of an administrative tribunal. However dedicated, competent and well-meaning the board may be, that kind of regulation cannot be considered as “law”. It is accepted that law cannot be vague, undefined, and totally discretionary; it must be ascertainable and understandable. Any limits placed on the freedom of expression cannot be left to the whim of an official; such limits must be articulated with some precision or they cannot be considered to be law.

That decision was approved by the Court of Appeal in a judgment reported at 7 CCR 129, where the Court said at 131:

We would go further than the Divisional Court on this issue. In our view, s 3(2)(a), rather than being of “no force or effect”, is ultra vires as it stands. The subsection allows for the complete denial or prohibition of the freedom of expression in this particular area and sets no limits on the Board of Censors. It clearly sets no limit, reasonable or otherwise, on which an argument can be mounted that it falls within the saving words of s 1 of the Charter — “subject only to such reasonable limits prescribed by law”’.

More recently still the British Columbia Court of Appeal struck down subsection 214(2) of that province’s Motor Vehicle Act, which permits a peace officer to suspend temporarily a driver’s licence when the officer “has reason to suspect that the driver . . . has consumed alcohol”. (R v Robson, BCCA, March 6, 1985, Vancouver Registry No CA 002682, unreported). The principal grounds for the decision, as I read it, were that the provision was, in the words of Nemetz, CJBC, “riddled with vagueness” and, in the words of Esson, JA, “so hopelessly vague as to be incapable of being a reasonable limit”.

Respondent Deputy Minister argues that the provisions of Tariff item 99201-1 are not, in fact, vague and that the words “immoral” and “indecent” have received judicial interpretation over the years so as to render their meaning reasonably certain. In this respect, he points to cases such as Gordon & Gotch (Canada) Ltd v Deputy Minister of National Revenue for Customs and Excise, [1978] 2 FC 603, and R v Popert, 58 CCC (2d) 505.

In my view, decisions rendered prior to the coming into force of the Charter are of little help on the question of whether or not a limit on a Charter-protected right is reasonable. In pre-Charter days, courts had no mandate to refuse to apply a duly enacted statute simply on the grounds that it was vague or uncertain. Their duty was, as best they could, to extract a meaning from the words used by Parliament and to apply it to the cases before them. That they generally (but not always) did so without complaining adds nothing to the debate. What has to be determined today is whether the words of Tariff item 99201-1, together with any judicial gloss which has been placed on them, are sufficiently clear to constitute a “reasonable limit prescribed by law”.

The first observation to be made in this regard is that the words “immoral” and “indecent” are nowhere defined in the legislation. This at once serves to distinguish the provisions of Tariff item 99201-1 from the obscenity provisions of the Criminal Code, which contains in subsection 159(8) words which might be thought to give to those provisions sufficient certainty and particularity.

Secondly, the words “immoral” and “indecent” are highly subjective and emotional in their content. Opinions honestly held by reasonable people will vary widely. The current public debate on abortion has its eloquent and persuasive adherents on both sides arguing that their view alone is moral, that of their opponents, immoral. Standards of decency also vary even (or perhaps especially) amongst judges. The case of R v P (1968), 3 CRNS 302, provides an interesting example of a learned and articulate debate between the present Chief Justices of Canada and Manitoba respectively, as to whether an act of heterosexual fellatio performed in private (such as Exhibit 1 herein depicts, amongst other things) was grossly indecent.* [2]

While obscenity under the Criminal Code is, by statutory definition, limited to matters predominantly sexual, there is no such limitation upon the concepts of immorality or indecency, and this is so notwithstanding the judicial gloss which has carried over into the test for immorality or indecency the test of community standards of tolerance. As stated by Lord Reid in Regina v Knuller, [1973] AC 435 at 458:

Indecency is not confined to sexual indecency: indeed it is difficult to find any limit short of saying it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.

While it is, of course, true that the judicial overlay of the community standards of tolerance test has done something to reduce the inherent subjectivity of the words “immoral” and “indecent”, this has, if anything, had the effect of increasing their uncertainty. Community standards themselves are in a constant state of flux and vary widely from place to place within the country. Yet the courts are obliged to apply a contemporary and nationwide standard. I need not repeat here what I had occasion to say in Priape Enrg v D/MNR, 24 CR (3d) 66. It finds an eloquent echo, albeit in another context, in the words of Borins, Co Ct J, in R v Rankine, 36 CR (3d) 154 at 173:

In films of this nature it is impossible to define with any precision where the line is to be drawn. To do so would be to attempt to define what may be indefinable.

I would add that it is, of course, no answer to the argument that a limitation on freedom is so vague as to be unreasonable to say that this publication or that is so immoral or indecent that it clearly falls afoul of the prohibition. One might as well argue that the Tale of Peter Rabbit was clearly not immoral or indecent and could therefore be admitted. Even the most defective provision is unlikely to be so vague as not to permit the placing of some cases on one side of the line or the other. What is significant is the size and importance of the grey area between the two extremes. Vagueness or uncertainty, like unreasonableness, are not themselves absolutes but tests by which the courts must measure the acceptability of limits upon Charter-protected freedoms.

Finally, let it be quite clear that what the Charter protects in section 2(b) is not acts or deeds but thought, expression and depiction. While the activities shown in the subject magazine are probably, as far as one can determine, legal, it would make no difference if they were crimes. The depiction of murder, real or imagined, is protected by section 2(b), but that does not mean that the Charter has been declared open season for assassination.

I conclude that, in so far as it prohibits the importation of matters of immoral or indecent character, Tariff item 99201-1 is not a reasonable limitation upon the freedoms guaranteed by section 2(b) of the Charter and is of no force or effect.

In light of that conclusion, it becomes unnecessary to deal with the appellant’s request made at the hearing that we receive additional evidence relating to the testimony of the Crown’s expert witness, Dr Murray, and I would leave the questions raised by that request for another occasion.

I would allow the appeal, set aside the decision of Anderson, Co Ct J, vacate the decision of the Deputy Minister made on or about February 16, 1982, and refer the matter back to the Deputy Minister for redetermination on the basis that Tariff item 99201-1 of Schedule C of the Customs Tariff is of no force or effect in so far as it prohibits the importation of matters of immoral or indecent character. The appellant is entitled to his costs of the appeal in this Court.

Appeal allowed.