Provincial News Co., et al. v. R., [1976] 1 SCR 89

Supreme Court of Canada

Provincial News Co., et al. v. R., [1976] 1 S.C.R. 89

Date: 1974-12-19

Provincial News Co., Penthouse International Ltd. and Robert C. Guccione Appellants;

and

Her Majesty The Queen Respondent.

1974: October 21; 1974: December 19.

Present: Laskin C.J. and Martland, Judson, Spence and Dickson JJ.

MOTION TO QUASH AND MOTION FOR LEAVE TO APPEAL

Criminal law—Obscenity—Forfeiture order—Prevailing community standards of tolerance—Evidence—Criminal Code, R.S.C. 1970, c. C-34, ss. 159(8), 160

Proceedings were taken under s. 160 of the Criminal Code for the seizure and forfeiture of a certain issue of a magazine on the ground that it was obscene. An order of forfeiture was made and an appeal therefrom to the Alberta Appellate Division was dismissed by a majority judgment with Sinclair J.A. dissenting. In his dissent Sinclair J.A. was of the opinion that the dominant characteristic of the particular issue of the magazine was the exploitation of sex but he concluded that the evidence did not satisfy him beyond a reasonable doubt that the exploitation was “undue” so as to meet the statutory test of obscenity under s. 159(8) of the Criminal Code. In this Court, the Crown moved to quash the appeal by the accused and the latter applied for leave to appeal in the event that the motion to quash succeeded.

Held (Laskin C.J. and Spence J. dissenting): The motion to quash should be granted and the application for leave to appeal should be dismissed.

Per Martland, Judson and Dickson JJ.: Section 160(6) of the Criminal Code provides that “an appeal lies from an order [of forfeiture] …(a) on any ground of appeal that involves a question of law alone, (b) on any ground of appeal that involves a question of fact alone, or (c) on any ground of appeal that involves a question of mixed law and fact, as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XVIII and sections 601 to 624 apply mutatis mutandis.” The submission of the appellants that, by virtue of s. 160(6), the appellants are given the same right of appeal to this Court as if the dissent of Sinclair

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J.A., on a question of fact, had been converted into a dissent on a question of law, was not accepted. Subsection (6) provides for a right of appeal to the Court of Appeal, but the wording is not apt to describe an appeal to this Court.

The appellants’ submission, on the application for leave to appeal, that the failure of the Crown to adduce evidence as to prevailing community standards of tolerance should have resulted in the dismissal of the Crown’s case at its conclusion, also failed. The appellants’ contention, i.e., that a court cannot, in law, make an order of forfeiture under s. 160(4) unless the Crown has led evidence as to prevailing community standards of tolerance, was not supported by any authority, and in any event the point did not arise in the present case. The trial judge did have before him evidence from both sides respecting the matter of community standards to assist in reaching his conclusion.

Per Laskin C.J. and Spence J., dissenting: The motion to quash should be dismissed but, if necessary, leave to appeal should be granted if only to bring to this Court the question of required proof by the Crown to establish “undue” exploitation of sex by way of evidence to show contemporary or prevailing community standards.

Section 618(1)(a) gives an appeal as of right to this Court from a conviction which has been affirmed on appeal (offences punishable by death are treated separately), “on any question of law on which a judge of the Court of Appeal dissents”. Section 160(6) enjoins that the rights of appeal given thereunder are to be treated “as if” they were appeals on a question of law alone. Therefore where there is a dissent on any ground stated in clauses (a), (b) or (c) of s. 160(6), it is to be treated as if on a question of law alone for the purposes of an appeal to this Court. In the result, the apppeal taken here on the basis of the dissent of Sinclair J.A. comes here as of right.

Also, it is s. 160(6) that is the dominant provision for the purpose of appellate jurisdiction, and, as provided, ss. 601 to 624 are to be read conformably to give effect to what s. 160(6) decrees.

[Brodie v. The Queen, [1962] S.C.R. 681; R. v. Dominion News & Gifts (1962) Ltd., [1964] S.C.R. 251; R. v. Great West News Ltd., Mantell and Mitchell, [1970] 4 C.C.C. 307, referred to.]

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Motion by the respondent to quash appellants’ appeal and motion by the appellants for leave to appeal from a judgment of the Supreme Court of Alberta, Appellate Division[1], affirming an order of Kerans D.C.J. for the forfeiture of obscene material. Motion to quash granted and motion for leave to appeal dismissed, Laskin C.J. and Spence J. dissenting.

B.A. Crane, for motion to quash and contra motion for leave to appeal.

A. Golden, contra motion to quash.

L.H. McDonald, Q.C., for motion for leave to appeal.

The judgment of Laskin C.J. and Spence J. was delivered by

THE CHIEF JUSTICE (dissenting)—The question on this application to quash is the scope of the appellate jurisdiction of this Court under s. 160(6) of the Criminal Code. The facts out of which the application arises may be briefly stated. Proceedings were taken under s. 160 for the seizure and forfeiture of the February 1973 number of Penthouse magazine on the ground that it was obscene. An order of forfeiture was made and an appeal therefrom to the Alberta Appellate Division was dismissed by a majority judgment with Sinclair J.A. dissenting. In his dissent Sinclair J.A. was of the opinion that the dominant characteristic of the particular issue of the magazine was the exploitation of sex but he concluded that the evidence did not satisfy him beyond a reasonable doubt that the exploitation was “undue” so as to meet the statutory test of obscenity under s. 159(8) of the Criminal Code.

The dissent of Sinclair J.A. was not on a question of law, and this is underscored by the fact that the formal order of the Alberta Appellate Division dismissing the appeal does not specify any dissent

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on a ground of law, which would have been necessary under s. 606 of the Criminal Code, if there had been a dissent on that basis. Notwithstanding this, the appellant filed a notice of appeal, asserting an appeal as of right by virtue of s. 160(6). If s. 160(6) does not carry beyond this Court’s normal jurisdiction to entertain an appeal as of right, as specified in s. 618(1)(a) then the motion to quash must succeed. I may say here that the appellant responded to the motion to quash by a counter-application for leave to appeal but I leave this for later consideration. If there is no appeal as of right under s. 160(6), that is not therefore the end of this matter. I am of the view, however, that wittingly or not, Parliament has given an appeal as of right to this Court under s. 160(6) where it would not lie if taken under s. 618(1)(a) alone.

Section 160(6) reads as follows:

An appeal lies from an order made under subsection (4) or (5) by any person who appeared in the proceedings

(a) On any ground of appeal that involves a question of law alone,

(b) on any ground of appeal that involves a question of fact alone, or

(c) on any ground of appeal that involves a question of mixed law and fact,

as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XVIII and sections 601 to 624 apply mutatis mutandis.

Because proceedings under s. 160 are, so to speak, proceedings in rem it is understandable that there be some express mention of appeals, “as if”, to use the words of s. 160(6), they were appeals against conviction or acquittal. The specification in clauses (a), (b) and (c) of grounds of appeal is followed by the declaration that appeal on those grounds is to be treated as if the appeal was on a question of law alone under Part XVIII of the Criminal Code, the Part that deals with appeals to the provincial Court of Appeal and to this Court in respect of

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indictable offences. There is, moreover, the important reference in the concluding words of s. 160 (6) that “sections 601 to 624 apply mutatis mutandis”.

If reference is made to Part XVIII respecting appeals to the provincial Court of Appeal on a question of law alone where there has been a conviction, it will be seen that under s. 603(1)(a) an appeal on a question of law alone can be brought as of right but an appeal on any other ground, whether of fact or mixed law and fact or otherwise, requires leave. (I leave out of consideration an appeal based on a certificate of the trial judge.) Section 160(6) says, however, that an appeal on any of the grounds specified in clauses (a), (b) and (c) thereof lies as if it were on a question of law alone, and hence it appears quite clear to me that appeals under those clauses do not require leave because none is required under s. 603(1)(a)(i) where a question of law alone is involved.

Moving then to s. 618 which governs appeals to this Court from conviction or acquittal, s. 618(1)(a) gives an appeal as of right from a conviction which has been affirmed on appeal (offences punishable by death are treated separately), “on any question of law on which a judge of the Court of Appeal dissents”. Section 160(6) enjoins that the rights of appeal given thereunder are to be treated “as if” they were appeals on a question of law alone. I cannot therefore escape from the conclusion that where there is a dissent on any ground stated in clauses (a), (b) or (c) of s. 160(6), it is to be treated as if on a question of law alone for purposes of an appeal to this Court. In the result, the appeal taken here on the basis of the dissent of Sinclair J.A. comes here as of right.

It is not only the enveloping words “as if” that compel this conclusion, but as well the direction

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that ss. 601 to 624 of the Criminal Code be read mutatis mutandis for the purposes of s. 160(6), that is with the necessary changes in points of detail. It is s. 160(6) that is the dominant provision for the purpose of appellate jurisdiction, and ss. 601 to 624 are to be read conformably to give effect to what s. 160(6) decrees.

If I am correct in this assessment of the scope of appellate jurisdiction, I do not think that the appellants require any further leave to raise other points; it seems to me they are already involved in the appeal as of right. However, if I am wrong, I would be disposed to give leave to appeal if only to bring to this Court the question of required proof by the Crown to establish “undue” exploitation of sex by way of evidence to show contemporary or prevailing community standards. I take this both from the judgment of Judson J. in Brodie, Dansky and Rubin v. The Queen[2] and the judgment of Freedman J.A., as he then was, in R. v. Dominion News & Gifts (1962) Ltd.[3], adopted unanimously by this Court[4]. In the present case, the Crown led no evidence at all of community standards. I think it important for this Court to decide whether on a question of obscenity the trial judge can proceed unaided by Crown evidence to determine for himself, as if a question of law alone was involved, whether there was undue exploitation of sex. I refrain from any further exposition of this matter on an application for leave.

I would dismiss the motion to quash but, if necessary, I would give leave to appeal.

The judgment of Martland, Judson and Dickson JJ. was delivered by

MARTLAND J.—The circumstances which led up to the respondent’s motion to quash and to the appellants’ motion for leave to appeal are set out in

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the reasons of the Chief Justice. I agree with him that the dissenting reasons of Sinclair J.A., in the Appellate Division, did not constitute a dissent on a question of law within the meaning of s. 618(1)(a) of the Criminal Code.

The submission of the appellants in response to the motion to quash is that, by virtue of s. 160(6) of the Criminal Code, the appellants are given the same right of appeal to this Court as if the dissent of Sinclair J.A., on a question of fact, had been converted into a dissent on a question of law.

The relevant portions of s. 160 provide as follows:

160. (1) A judge who is satisfied by information upon oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is obscene or a crime comic, shall issue a warrant under his hand authorizing seizure of the copies.

* * *

(3) The owner and the author of the matter seized and alleged to be obscene or a crime comic may appear and be represented in the proceedings in order to oppose the making of an order for the forfeiture of the said matter.

(4) If the court is satisfied that the publication is obscene or a crime comic, it shall make an order declaring the matter forfeited to Her Majesty in right of the province in which the proceedings take place, for disposal as the Attorney General may direct.

(5) If the court is not satisfied that the publication is obscene or a crime comic, it shall order that the matter be restored to the person from whom it was seized forthwith after the time for final appeal has expired.

(6) An appeal lies from an order made under subsection (4) or (5) by any person who appeared in the proceedings

(a) on any ground of appeal that involves a question of law alone,

(b) on any ground of appeal that involves a question of fact alone, or

(c) on any ground of appeal that involves a question of mixed law and fact,

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as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, on a question of law alone under Part XVIII and sections 601 to 624 apply mutatis mutandis.

I do not agree with this submission. Section 160(6) gives the right to “an appeal”, in the singular. The grounds for such an appeal are defined in paras, (a), (b) and (c); i.e., grounds involving: (a) a question of law alone; (b) a question of fact alone; or (c) a question of mixed law and fact. These are the grounds on which a person convicted by a trial court in proceedings by indictment may appeal “against his conviction” to the court of appeal under s. 603(1)(a)(i) or (ii). The first ground, (a), is one on which the Attorney General may appeal under s. 605(1)(a) against “a judgment or verdict of acquittal” of a trial court in proceedings by indictment.

Proceedings under s. 160 do not result in a conviction or a judgment or verdict of acquittal, and therefore the right of appeal given by ss. 603(1)(a)(i) and (ii) and 605(1)(a) would not be available to a party affected by an order made under subs. (4) or subs. (5) of that section. For this reason, subs. (6) goes on to provide “as if it were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be”.

An appeal against conviction by a trial court in proceedings by indictment, under s. 603(1)(a)(ii), does not lie in respect of a question of fact alone or in respect of a question of mixed law and fact unless leave is obtained from the court of appeal or a judge thereof or upon the certificate of the trial judge that the case is a proper case for appeal. The Attorney General cannot appeal from a judgment or verdict of acquittal in proceedings by indictment, pursuant to s. 605(1)(a), save on a ground of appeal that involves a question of law alone.

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Subsection (6) obviates the need to obtain leave or a certificate for an appeal on a question of fact alone or on a question of mixed law and fact and eliminates the limitation on the right of the Attorney General to appeal only on questions of law by providing that an appeal under s. 160(6) lies as if it were an appeal “on a question of law alone”.

Because subs. (6) relates to “an appeal” and because the phraseology used in defining that appeal is taken from those provisions of the Criminal Code which govern the right of appeal to the court of appeal in proceedings by indictment, it is my opinion that that portion of subs. (6) which I have so far discussed provides, and provides only, for a right of appeal to the court of appeal. The wording is not apt to describe an appeal to this Court. Subsection (6) uses the words “as if it were an appeal against conviction or against a judgment or verdict of acquittal”. An appeal by the accused to the court of appeal under s. 603 is an appeal “against his conviction”. An appeal by the Attorney General to the court of appeal under s. 605 is an appeal “against a judgment or verdict of acquittal”. An appeal to this Court by an accused person in respect of an indictable offence (other than an offence punishable by death) is brought under s. 618 which provides, in subs. (1), for an appeal by a person convicted of an indictable offence whose conviction is affirmed by the court of appeal, and in subs. (2) for an appeal by a person who is acquitted of an indictable offence whose conviction, is set aside by the court of appeal. An appeal to this Court by the Attorney General in respect of an indictable offence is brought under s. 621 “where a judgment of a court of appeal sets aside a conviction pursuant to an appeal taken under section 603 or 604 or dismisses an appeal taken pursuant to paragraph 605(1)(a) or subsection 605(3)”. An appeal to this Court under s. 618 or s. 621 is not an appeal against conviction or against a judgment or verdict of acquittal. It is an appeal from a judgment by a

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court of appeal affirming or setting aside a conviction or an acquittal.

The concluding words of subs. (6) “and sections 601 to 624 apply mutatis mutandis”, which sections include those which provide for appeals to this Court, are not sufficient to permit an appeal to this Court on a question of fact. In so far as this Court is concerned they only mean that ss. 618 to 624 are applicable in respect of an appeal from the court of appeal in forfeiture proceedings under s. 160. I do not construe them as meaning that those sections are to be applicable to an appeal to this Court from a court of appeal in forfeiture proceedings under s. 160 with the added proviso that in such appeal the words “any question of law” wherever they appear in ss. 618 to 624 shall include “any question of fact”.

For these reasons it is my opinion that the motion to quash should be granted.

The appellants applied for leave to appeal to this Court in the event that the motion to quash succeeded. The appellants’ submission is that the failure of the Crown to adduce evidence as to prevailing community standards of tolerance should have resulted in the dismissal of the Crown’s case at its conclusion. In essence, the contention is that a court cannot, in law, make an order of forfeiture under s. 160 (4) unless the Crown has led evidence as to prevailing community standards of tolerance.

Counsel for the appellants did not cite any decided case which has so held. In this Court, in Brodie v. The Queen[5], forfeiture proceedings under s. 150A of the Criminal Code (now s. 160) were under consideration and the issue was as to whether the book “Lady Chatterley’s Lover” was obscene within the meaning of s. 150 (now s. 159). The Crown rested its case on the mere production of the book. Evidence on behalf of the defence was

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submitted as to its literary merit. There is no suggestion in that case that the Crown could not establish a case without calling supporting evidence. Judson J., whose reasons were supported by three other members of the majority, held only that the defence evidence was admissible and had assisted him in reaching the conclusion that the book was not obscene.

In Dominion News & Gifts (1962) Ltd. v. The Queen[6], this Court agreed with the reasons of Freedman J.A. (as he then was) who had dissented in the Court of Appeal for Manitoba[7], at p. 125. In that case also the Crown had relied upon the contents of the publications themselves as proof of their obscenity. The defence called one witness to testify as to community standards of morality. Again there was no suggestion in the judgments rendered that, in law, the Crown had to adduce evidence of that kind. Freedman J.A. stated that, in determining the issue of obscenity, contemporary standards of tolerance should be applied, but in reaching his conclusion on this issue it appears that he did not base it upon the defence evidence on this point, but upon his own consideration of the contents of the publications.

In R. v. Great West News Ltd., Mantell and Mitchell[8], the Court of Appeal for Manitoba held that the magazines in question were obscene. The main point raised by the defence was that the Crown must fail because it had not led evidence as to prevailing community standards. Dickson J.A. (as he then was), with whom Smith C.J.M. concurred, held (at p. 314) that such evidence is admissible but not essential. Freedman J.A., the other member of the Court, while he wrote separate reasons, which did not deal with this point, concurred in the dismissal of the defendants’ appeal.

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Apart from the merits of the point raised by the appellants, I do not think that it arises in the present case. The appellants raised this issue at the conclusion of the Crown’s case on a motion for dismissal, but, when that motion was refused, the appellants did not rest their case upon this point, but, instead, elected to call evidence. The Crown then called in rebuttal an administrative officer of the Department of Culture, Youth & Recreation, who was the secretary of the Advisory Board on Objectionable Publications in Alberta. He gave evidence that such Board had considered the publication in question along with other issues of the same work and had found them to be objectionable.

In the result, the trial judge did have before him evidence from both sides respecting the matter of community standards to assist in reaching his conclusion.

I would dismiss the application for leave to appeal.

Motion to quash granted and application for leave to appeal dismissed, LASKIN C.J. and SPENCE J. dissenting.

Solicitors for the appellants: L. Harris McDonald, Edmonton, and Aubrey E. Golden, Toronto.

Solicitor for the respondent: W.F. McLean, Calgary.