Held: The appeal should be allowed and a new trial ordered.
Per Dickson C.J. and Lamer and Le Dain JJ.: A film is obscene under s. 159(8) of the Criminal Code if it contains as a dominant characteristic the "undue exploitation of sex". To determine "undueness" one of the tests to be applied is whether the accepted standards of tolerance in the contemporary Canadian community, taken as a whole, have been exceeded. In applying the community standard of tolerance what matters is not what Canadians think 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. Relevant to that determination is, among other factors, the audience to which the film is targeted since the community may tolerate different things for different groups of people depending on the circumstances.
The trier of fact must formulate an opinion of what the contemporary Canadian community will tolerate in order to determine "undueness" by the community standards test. The community consensus must be assessed and community level of tolerance objectively determined. While evidence of the community standards of tolerance may well be useful in many cases, it is not essential, for it is the opinion of the trier of fact about the community standards of tolerance which is important. The judge does not have to accept evidence, expert or otherwise, but he cannot reject it without good reason. The trier of fact's personal views regarding the impugned film are irrelevant.
In the case at bar, the trial judge applied his own subjective standards of taste and not the community standards of tolerance. He did not direct his mind to the question whether most people would tolerate others seeing the film in question and he failed to consider the fact that the film was restricted to adults only and that only those who chose to see it would be exposed to it. Further, it was incumbent upon him to consider and assess the weight, if any, to be given to the evidence adduced by the defence indicative of community standards of tolerance. He should not have rejected it without explanation.
Per Beetz, Estey and McIntyre JJ.: The standard to determine "undueness" is that of tolerance. What matters is not what Canadians think is right for themselves to see but 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. The audience to which the film is exposed, however, is not relevant in the determination of whether or not it is obscene.
Per Beetz and Estey JJ.: The Crown is not required to adduce expert evidence as to community standards of tolerance.
Per McIntyre J.: In formulating the community standard of tolerance some evidence must be adduced by the Crown before the trier of fact.
Per Wilson J.: Under s. 159(8) of the Criminal Code , a film is deemed to be obscene if a dominant characteristic of the film is the "undue exploitation of sex". "Undue" refers to the treatment of sex which in some fundamental way dehumanizes the persons portrayed and, as a consequence, the viewers themselves. The question whether there was "undueness" must be determined according to the objective standard of the contemporary Canadian community. What must be ascertained is the degree of exploitation of sex Canadians at any given time will accept in their films. It is therefore not open to the courts under s. 159(8) to characterize a movie as obscene if shown to one constituency but not if shown to another. A movie is either obscene based on a national community standard of tolerance or it is not.
There is an onus on the Crown to put evidence before the court on the issue of "undueness". The community standard against which the allegedly obscene matter must be measured cannot be identified without it. Indeed, it is naive to think that a judge, drawing on his own experience alone, can determine the objective standard against which impugned conduct is to be measured. Moreover, it is wrong in principle. It leaves the accused with no way of knowing the case to be met, or the level of acceptability imposed by any particular judge.
In the case at bar, there is no indication that the trial judge took into consideration the uncontested evidence adduced by the defence of the unanimous approval of the film by the censor boards. He did not address his mind to the issue of the significance of the approvals as evidence of the community standard of acceptance. Considering that the business of these boards is to assess films on an ongoing basis for the very purpose of determining their acceptability for viewing by the community, it is difficult to think that a judge would be better informed as to what was acceptable to Canadians across the country. The trial judge, applying an objective test and giving proper consideration to that evidence, could not have reached the result he did. The judge clearly saw his role, not as applying the community standard but as raising it if he personally thought it was too low. In this respect he erred.
Cases Cited
R. v. Sudbury News Service Ltd. (1978), 39 C.C.C. (2d) 1; R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Brodie v. The Queen, [1962] S.C.R. 681; Dominion News & Gifts (1962) Ltd. v. The Queen, [1964] S.C.R. 251; [1963] 2 C.C.C. 103 (Man. C.A.); R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251; R. v. Penthouse International Ltd. (1979), 46 C.C.C. (2d) 111; R. v. Great West News Ltd., [1970] 4 C.C.C. 307; R. v. Cameron (1966), 58 D.L.R. (2d) 486, considered; Dechow v. The Queen, [1978] 1 S.C.R. 951; R. v. Fraser, [1966] 1 C.C.C. 110; R. v. Goldberg and Reitman, [1971] 3 O.R. 323; Daylight Theatre Co. v. The Queen (1973), 17 C.C.C. (2d) 451; R. v. McFall (1975), 26 C.C.C. (2d) 181; United States v. Kennerley, 209 F. 119 (1913); R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154; R. v. American News Co. (1957), 118 C.C.C. 152; Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); United States v. Various Articles of Obscene Merchandise, 709 F.2d 132 (1983); R. v. Wagner, Alta. Q.B., January 16, 1985; R. v. Chin (1983), 9 W.C.B. 249; Weidman v. Shragge (1912), 46 S.C.R. 1, referred to.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 159(8), 163, 164.
APPEAL from a judgment of the Alberta Court of Appeal pronounced May 12, 1982, dismissing appellant's appeal from his conviction of presenting an obscene entertainment. Appeal allowed and new trial ordered.
Jack N. Agrios, Q.C., and Bradley J. Willis, for the appellant.
Michael G. Allen, for the respondent.
The reasons of Dickson C.J. and Lamer and Le Dain JJ. were delivered by
1. The Chief Justice‑‑The question is whether the trial judge applied the proper test in finding Towne Cinema Theatres Ltd. guilty of presenting an obscene entertainment. The indictment reads:
That The Towne Cinema Theatres Ltd., at Edmonton, in the Judicial District of Edmonton, Alberta, on or about the 27th day of January, A.D. 1980, being the person in charge of a theatre, namely: Jasper Cinema (Blue) at 10120 ‑ 156 Street, did unlawfully present to an audience an entertainment, namely: a motion picture entitled "Dracula Sucks" which entertainment was immoral, indecent or obscene, contrary to the Criminal Code .
I The Facts and the Trial Judgment
2. In January, 1980, the accused company was owner and manager of a theatre, known as Jasper Cinema (Blue), located in the City of Edmonton. The cinema was a typical picture theatre showing motion picture films to members of the public who paid an admission fee. On January 25 to 27, 1980 the accused was regularly presenting showings of a motion picture called Dracula Sucks. The film had been given a "Restricted" rating by the Alberta Motion Picture Censor Board. A copy of the motion picture was seized by the Edmonton City Police on January 27, 1980, after the public showing on that date and before the scheduled second public showing. The accused was charged and tried before a justice of the Court of Queen's Bench of Alberta. Three witnesses testified.
3. Staff Sergeant Ashworth of the Edmonton City Police said he had attended and observed the film and it was he who had taken possession of the film. The Court then adjourned to the Censor Board film theatre where the trial judge viewed the film. At the resumption of the trial, Ashworth testified that on January 21, 1980, the film had been showing at the Capitol Square Cinema, before being transferred to the Jasper Cinema. While at the former theatre Ashworth had received about five phone calls from persons complaining about the film. In cross‑examination he was asked:
Did you find the movie very offensive to yourself?
He replied:
Yeah, I thought it was disgusting. That's only my personal...
The film itself and the evidence of Staff Sergeant Ashworth constituted the case for the Crown.
4. The defence called two witnesses. The first was Terrance Yushchyshyn, Director of Operations for the theatres operated by the accused company in the five westerly provinces. His evidence in summary was as follows. Prior to being booked into his theatre in Edmonton, the film, the subject of the present charge, had been shown at two Famous Players' Theatres, one in Edmonton, where it had been seen by 4065 persons and one in Calgary, where it had been seen by 4075 persons. The film was then moved to the Jasper Cinema where it was seen, before seizure, by 555 people, without complaints. In Mr. Yushchyshyn's opinion the impugned film was "very passé", "boring and dull". Other films such as Last Tango in Paris, had far greater emphasis on sexual gratification.
5. Owen Garland Hooper is Chairman of the Alberta Motion Picture Censor Board. The Board views every film seen in Alberta. The Board allowed Dracula Sucks to be shown in the province as a restricted adult movie, no one under the age of eighteen being admitted. The film was approved in the restricted adult category or equivalent by all of the provincial censor boards or classification boards across Canada. Mr. Hooper said that his Board had not made any deletions to the film. Most movies are "pretty extensively cut when we get them". This one had been edited in Toronto. The Board arrives at appropriate classification for a movie consistent with the Board's interpretation of current community standards of acceptance. Compared to other movies he had seen, Mr. Hooper described Dracula Sucks as "pretty forgettable". The Board had received no complaints regarding this particular film. During the preceding year, the Board viewed 750 films and rejected twelve, because it was felt that adult Albertans would generally repudiate them. The basis for the Board's assessment of community standards has shifted during the preceding ten years: now, "it's contemporary, it's modern, it must be Canadian". Mr. Hooper succinctly described Dracula Sucks: "Well, it has nudity in it, it has violence in it, it has simulated sex encounters in it."
6. The trial judge found the film to be immoral, indecent and obscene. It possessed "absolutely no artistic merit whatsoever"; "most of the film was devoted to extreme, tasteless violence and explicit, unnecessary sex".
7. The accused company was convicted and fined $1500.
II On Appeal
8. In a brief judgment, the Court of Appeal of Alberta dismissed the appeal. The Court noted it was not its function to judge the merits of the film, and it had not found it necessary to see the film; its sole function was to review the propriety of the trial. The judgment continued:
We have reviewed the reasons for judgment given in support of this conviction. Those reasons are blunt and impactive. The trial judge, sitting as a jury, was obliged to determine in an objective way what was tolerable in accordance with the contemporary standards of the Canadian community. As a trier of fact he was entitled to draw on his experience in the community. He had to consider the expert evidence but was entitled to reject it and obviously did. In this we are paraphrasing the remarks of Howland, C.J.O., in Regina v. Sudbury News Service 1978 39 C.C.C. (2d) 1 at p. 7.
The judgment concluded thus:
The reasons of the trial judge challenged in this appeal must be considered in the context of his whole judgment and the argument which immediately preceded it. The trial judge found that the only theme of the film "Dracula Sucks", was sex and violence, extreme and explicit. He found no plot. He asked himself what are contemporary community standards and considered all the evidence led. He cautioned himself on the dangers of slipping into subjective standards and concluded that the film did not meet the objective test. We see no grounds, in law, to disturb this conviction and dismiss the appeal.
III Issues
9. In his factum, counsel for Towne Cinema raised five grounds of appeal. At the hearing oral argument was presented on only two of these grounds, both alleging errors in the trial judge's determination of the community standard of tolerance.
10. In view of the importance of the issues raised in this appeal, the Court felt that it would be proper to request a re‑hearing before a full bench.
11. The Court requested counsel to address the following four questions:
1. Assuming that for purposes of s. 159, undue exploitation of sex is to be assessed on the basis of community standards, do these standards refer to what one would find acceptable for oneself to see or read, or to what one would tolerate others seeing or reading?
2. How is this standard to be ascertained by the trier of fact?
3. How is an impugned film to be measured against it?
4. What is the relevance, if any, of the audience to which a film is geared in determining whether it is obscene under s. 159(8)?
12. In my view the following issues arise from the two grounds argued on the appeal and the four questions addressed at the re‑hearing:
1. What is the proper interpretation of the word "undue" in s. 159(8) of the Criminal Code ?
2. Must the Crown adduce evidence to establish undueness?
IV Undueness and the Community Standards Test
13. In 1959 Parliament amended the provisions of s. 150 (now s. 159) of the Criminal Code dealing with obscenity by adding subs. (8) (1959 (Can.), c. 41, s. 11) which reads:
(8) For the purposes of this Act, 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, shall be deemed to be obscene.
14. Any doubt that might previously have existed on the question of whether s. 159(8) embodied the proper or the exclusive test for obscenity in relation to a film was implicitly resolved by this Court in Dechow v. The Queen, [1978] 1 S.C.R. 951. A number of decisions in various jurisdictions had previously concluded that films were "publications" and therefore properly dealt with under s. 159(8) (see R. v. Fraser, [1966] 1 C.C.C. 110 (B.C.C.A.); R. v. Goldberg and Reitman, [1971] 3 O.R. 323 (C.A.); and Daylight Theatre Co. v. The Queen (1973), 17 C.C.C. (2d) 451 (Sask. Dist. Ct.))
15. Dechow dealt with an allegation of obscenity with regard to an exhibition of sex stimulators. Using language and reasoning easily extendible to motion pictures, Ritchie J., writing for the majority, held that the objects in question, accompanied as they were by printed instructions for their use, were "publications" within the meaning of that term in s. 159. They were therefore to be judged by the standard laid down in s. 159(8), which was the sole test of obscenity in relation to publications. Chief Justice Laskin, speaking for a minority of the Court, preferred the view that the articles in question were not publications. He was, however, of the opinion that the Court should apply exclusively the test in s. 159(8) in respect of allegations of obscenity whether such allegations are made under s. 159 (which deals with publications) or one of the other sections of the Code, such as s. 163 (under which the charge against Towne Cinema was laid) or s. 164.
16. The practical effect of the two judgments, though they differ widely in approach, is, for present purposes, the same: s. 159(8) embodies the sole test of obscenity in relation to motion pictures. It supersedes rather than supplements the much‑criticized test enunciated by Cockburn C.J. in R. v. Hicklin (1868), L.R. 3 Q.B. 360.
17. In Canada, the notion of "community standards", as relevant to the determination of obscenity, has its origins in the judgment of Judson J. (speaking also for Abbott and Martland JJ.) in Brodie v. The Queen, [1962] S.C.R. 681, the Lady Chatterley’s Lover case. Brodie was the first obscenity appeal to come before this Court following the introduction of s. 159(8) and Judson J.'s explication of this section reveals a very clear awareness of the criticism that had been leveled against the Hicklin test and an intention to avoid its pitfalls in the future. In Hicklin Cockburn C.J. had said:
...I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.
18. This definition had been criticized for its focus on the reactions of the weakest and least capable members of society, for its disregard of serious purpose or artistic merit in the impugned material and for its excessive dependence on subjective conjecture on the part of the trier of fact. In Brodie, Judson J. expressed the view that by the enactment of s. 159(8) "all the jurisprudence under the Hicklin definition is rendered obsolete" (p. 701) and that the new definition gave the Court "an opportunity to apply tests which have some certainty of meaning and are capable of objective application, which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury" (p. 702). Henceforth, the standard for obscenity would be an "undue exploitation of sex" and Judson J. proposed two tests which he regarded as capable of objective application to determine such "undueness".
19. The first test focussed on the "internal necessities" of the work in question. In the American case of United States v. Kennerley, 209 F. 119 (1913), Judge Learned Hand had reluctantly felt bound to apply the Hicklin test, but said, at pp. 120‑21: "I question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas." In Brodie, at pp. 704‑05, Judson J. applied this principle to the newly‑enacted statutory definition:
...I do not think that there is undue exploitation if there is no more emphasis on the theme than is required in the serious treatment of the theme of a novel with honesty and uprightness.... The section recognizes that the serious‑minded author must have freedom in the production of a work of genuine artistic and literary merit and the quality of the work, as the witnesses point out and common sense indicates, must have real relevance in determining not only a dominant characteristic but also whether there is undue exploitation.
20. Judson J.'s second test for "undueness" looked to the standards of the community. The concept of "community standards" had previously been applied by courts in Australia and New Zealand as a measure of whether a work exhibited an "undue emphasis" on sex. Judson J. regarded this reading of undue as meaning "what the community regards as excessive" to be preferable to what he saw as the only alternative (at p. 706):
Surely the choice of courses is clear‑cut. Either the judge instructs himself or the jury that undueness is to be measured by his or their personal opinion‑‑and even that must be subject to some influence from contemporary standards‑‑or the instruction must be that the tribunal of fact should consciously attempt to apply these standards. Of the two, I think that the second is the better choice.
21. Judson J. made no attempt to harmonize or integrate his two tests. He simply concluded that whether the question was approached on the basis of the internal necessities of the novel itself or on the basis of an offence against community standards, undue exploitation of sex was not a dominant characteristic of Lady Chatterley’s Lover.
22. In the present case, no argument was addressed to the "artistic merit" or "serious purpose" of Dracula Sucks‑‑nor, I should think, could such an argument plausibly be made. This Court is not, therefore, called upon to expound the relationship between Judson J.'s two tests. We need only consider the issue of obscenity from the point of view of community standards.
23. Nevertheless, as will presently appear, it is important to remember that from the very beginning of this Court's consideration of s. 159(8) "community standards" have been viewed as one measure of "undueness" in the exploitation of sex. They have never been seen as the only measure of such undueness; still less has a breach of community standards been treated as in itself a criminal offence.
24. There are other ways in which exploitation of sex might be "undue". Ours is not a perfect society and it is unfortunate but true that the community may tolerate publications that cause harm to members of society and therefore to society as a whole. Even if, at certain times, there is a coincidence between what is not tolerated and what is harmful to society, there is no necessary connection between these two concepts. Thus, a legal definition of "undue" must also encompass publications harmful to members of society and, therefore, to society as a whole.
25. Sex related publications which portray persons in a degrading manner as objects of violence, cruelty or other forms of dehumanizing treatment, may be "undue" for the purpose of s. 159(8). No one should be subject to the degradation and humiliation inherent in publications which link sex with violence, cruelty, and other forms of dehumanizing treatment. It is not likely that at a given moment in a society's history, such publications will be tolerated. See R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154 (Ont. Co. Ct.) at p. 173; R. v. Wagner, Alta. Q.B., January 16, 1985 (unreported); R. v. Chin, Ont. Prov. Ct., February 22, 1983 (unreported, but summarized at 9 W.C.B. 249).
26. However, as I have noted above, there is no necessary coincidence between the undueness of publications which degrade people by linking violence, cruelty or other forms of dehumanizing treatment with sex, and the community standard of tolerance. Even if certain sex related materials were found to be within the standard of tolerance of the community, it would still be necessary to ensure that they were not "undue" in some other sense, for example in the sense that they portray persons in a degrading manner as objects of violence, cruelty, or other forms of dehumanizing treatment.
27. In the present case, however, only the community standard of tolerance is directly in issue. The rest of this decision will be concerned with the community standard of tolerance.
28. Two years after the Brodie case this Court, in Dominion News & Gifts (1962) Ltd. v. The Queen, [1964] S.C.R. 251, adopted in toto the dissenting reasons delivered in the Court of Appeal of Manitoba by Freedman J.A., [1963] 2 C.C.C. 103. In that case, as in this, the allegedly obscene material had no discernible serious purpose or artistic merit. Freedman J.A.'s discussion of whether or not it unduly exploited sex was therefore focussed on its relationship to community standards. Applying Judson J.'s observation in Brodie about the need to test undueness by objective criteria, Freedman J.A. elaborated on several requisite characteristics of the community standards to be applied. He held that the standards must be Canadian standards, not those prevailing elsewhere, and that they must be contemporary standards reflecting the current level of candour with regard to sexual matters not the level of the past. On the question of which contemporary Canadians are to be the touchstone of "community standards" Freedman J.A. said at p. 116:
Those standards are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered. Obviously this is no easy task, for we are seeking a quantity that is elusive. Yet the effort must be made if we are to have a fair objective standard in relation to which a publication can be tested as to whether it is obscene or not. The alternative would mean a subjective approach, with the result dependent upon and varying with the personal tastes and predilections of the particular Judge who happens to be trying the case.
29. In 1974, in R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185, Freedman C.J.M. had much the same to say with regard to the appropriate community standard to apply in determining whether the film Last Tango in Paris was obscene at p. 188:
The learned trial Judge made it abundantly clear that his obligation was to consider the film not according to his own subjective views but according to the objective test furnished by contemporary community standards in Canada. Indeed he expressly stated in his reasons for judgment that his personal views were adverse to the acceptability of the film but that he was setting aside those views. That of course was the correct and judicial thing to do.
30. I said earlier that the undue exploitation of sex is the touchstone of obscenity under s. 159(8), and that a breach of community standards is simply one measure of such undueness. It is harm to society from undue exploitation that is aimed at by the section, not simply lapses in propriety or good taste. In R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251 (Man. C.A.), Monnin J.A. and I considered this point at p. 269:
The Court was urged to define "community standards" as community standards of acceptance, i.e., tolerance. I would accept this definition. In the Brodie case Judson J., referred, p. 181, to "standards of acceptance prevailing in the community". In the Great West News case, we referred to contemporary standards of tolerance. I have no doubt, as Dr. Rich testified, and as the Judge agreed, a distinction can be made between private taste and standard of tolerance. It can hardly be questioned that many people would find personally offensive, material which they would permit others to read. Parliament, through its legislation on obscenity, could hardly have wished to proscribe as criminal that which was acceptable or tolerable according to current standards of the Canadian community.
31. A similar point was made by Weatherston J.A., delivering the judgment of the Ontario Court of Appeal in R. v. Penthouse International Ltd. (1979), 46 C.C.C. (2d) 111 (leave to appeal refused, [1979] 1 S.C.R. xi) at pp. 114‑15:
It is neither helpful nor accurate to say that the standard of tolerance is synonymous with the moral standards of the community...the words "moral standards of the community" mean no more than a consensus of what is right and what is wrong.... The question, in any event, is not whether the content of the publication goes beyond what the contemporary Canadian community thinks is right, but rather whether it goes beyond what the contemporary Canadian community is prepared to tolerate.
32. R. v. Sudbury News Service Ltd. (1978), 39 C.C.C. (2d) 1 (Ont. C.A.), was concerned with the distribution to certain confectionary stores of magazines alleged to be obscene, including Penthouse and Oui. Howland C.J.O., speaking for the Ontario Court of Appeal, reviewed the relevant authorities and then, in a number of propositions distilled from those authorities expressed, in my view admirably, the present state of Canadian law as applied to the question presently before the Court.
33. I have taken the liberty of extracting the following propositions from various places in the judgment: (i) in determining what is undue exploitation within s. 159(8), one of the tests to be applied is whether the accepted standards of tolerance in the contemporary Canadian community have been exceeded; (ii) the standards must be contemporary as times change and ideas change with them, one manifestation being the relative freedom with which the whole question of sex is discussed; (iii) it is the standards of the community as a whole which must be considered and not the standards of a small segment of that community such as the university community where a film was shown; (iv) the decision whether the publication is tolerable according to Canadian community standards rests with the court; (v) the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one's own personal ideas of what is tolerable.
34. The cases all emphasize that it is a standard of tolerance, not taste, that is relevant. What matters is not what Canadians think 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.
35. Since the standard is tolerance, I think the audience to which the allegedly obscene material is targeted must be relevant. The operative standards are those of the Canadian community as a whole, but since what matters is what other people may see, it is quite conceivable that the Canadian community would tolerate varying degrees of explicitness depending upon the audience and the circumstances. I would adopt the following passage of Howland C.J.O. in Sudbury News Service Ltd. (supra) at p. 8:
The next question which arises is the extent to which the manner and circumstances of distribution are relevant in determining whether or not a publication is obscene. There are some publications which are so blatantly indecent that they would not be tolerable by the Canadian community under any circumstances. Some pictures are offensive to the majority of people to the point that the Canadian community would not tolerate them on a billboard, or on the cover of a magazine, or on a television screen where persons of all ages and sensibilities would be exposed to them, but would be prepared to tolerate them being viewed by persons who wished to view them. Some pictures would not be acceptable by Canadian community standards in a children's bedtime story‑book or primer but would be in a magazine for general distribution. The Canadian community might be prepared to tolerate the exhibition of a motion picture to an adult audience, but would consider the exhibition of the same motion picture to a general audience, which included children, to be an undue exploitation of sex. Similarly, the general distribution of certain magazines to a neighbourhood store accessible to all ages would not be tolerable, whereas the distribution of such magazines to "adult" bookstores to which children under a certain age were not admitted might not be objectionable. The packaging and pricing of a publication may also be relevant in considering whether Canadian community standards have been exceeded. The distribution of magazines in plastic covers marked "adult" in some respects might act as an attraction rather than a deterrent unless the price was high enough to place it beyond the reach of most children.
In endorsing this view I am modifying the position I had adopted in the Manitoba Court of Appeal in R. v. Great West News Ltd., [1970] 4 C.C.C. 307, at p. 317 (leave to appeal denied, [1970] S.C.R. ix).
36. With that review of the cases, I turn now to the trial judgment in the present case. The appellant submits that the trial judge misdirected himself in holding that his assessment of the local community's feeling of "revulsion" was determinative of the Canadian community standard of tolerance, and in thereby employing a subjective and regional rather than objective and national test. According to the appellant the Crown must prove beyond a reasonable doubt that the film would not be tolerated by the Canadian community in the sense that those who do not wish to view it will not accept or tolerate the fact that others do and will see it.
37. In delivering judgment the trial judge said:
I do not have the benefit of a jury. In making the remarks I have made, I do not feel that I am imposing my own standards completely, although how can one help but be subjective in a case like this. None of us live on an island, we all live in a world which, as evidence has suggested today, is becoming more tolerant of explicit sex in films and more tolerant of violence. Somebody has got to draw the line and I don't know how far community standards are prepared to be stretched before somebody does draw the line on the type of garbage that I saw this morning.
I am satisfied that this film is a long way from meeting the contemporary community standards. It may satisfy a certain element of a community, it may gratify them, but I am prepared to say that the majority of the community would feel the same revulsion for this show that I felt when I left there this morning.
When I say the dominant theme of this film was sex and violence, I am not being entirely correct, it is the only theme. There is no plot, there is no story whatsoever, unless it is hidden in such a way that I couldn't find it. I was making notes at the time the show was on, but I was able to watch it in its entirety.
38. In the present case I think, with respect, that the trial judge applied a standard of taste, not tolerance, as reflected in these words:
...I am prepared to say that the majority of the community would feel the same revulsion for this show that I felt when I left there this morning.
In my view this statement can only be interpreted as saying that most people would be personally offended. The judge did not direct his mind to the question whether most people would tolerate others seeing the film in question. In that I think he erred.
39. It should also be noted that the trial judge gave no consideration to the fact that Dracula Sucks was restricted to adults only, and that only those who chose to see it would be exposed to it. As I have said, these factors are important considerations in applying a test of tolerance.
40. The appellant argues, as I have indicated, that the trial judge applied a subjective and local standard rather than a national objective test. In Brodie, Judson J. makes it clear that the trier of fact is not supposed simply to apply his own subjective standard but rather to assess the community standard. The statement of the trial judge, "I do not feel that I am imposing my own standards completely" seems to imply that he is imposing his own standards primarily and lends support to the submission of the appellant that the test applied was subjective and not objective. In particular, the sentence reading: "Somebody has got to draw the line and I don't know how far community standards are prepared to be stretched before somebody does draw the line on the type of garbage that I saw this morning" suggests that the judge is imposing his own standard‑‑somebody has to draw the line and he is going to be the one to do it.
41. Reading his comments as a whole, I can reach no conclusion other than the trial judge applied his own subjective standards of taste and not community standards of tolerance.
V The Evidentiary Issue
42. The appellant's second ground is that the judge failed to have regard to the unrebutted evidence of the Chairman of the Censor Board that the film did not fall below contemporary community standards. Counsel for the appellant does not contend that censor board approval is a bar to a criminal prosecution. He readily concedes that it is for the courts to decide whether a publication is obscene (Daylight Theatre Co. v. The Queen (supra); R. v. McFall (1975), 26 C.C.C. (2d) 181 (B.C.C.A.)
43. Counsel does, however, take the point that in light of the evidence, not disputed, of the approval of the allegedly obscene film by all of the censor boards or classification boards across the country there was an additional onus on the Crown to adduce evidence to establish beyond a reasonable doubt that the film went beyond what the contemporary Canadian community is prepared to tolerate. In support of this argument counsel cited several passages on the subject of expert evidence from the dissenting judgment of Laskin J.A., as he then was, in R. v. Cameron (1966), 58 D.L.R. (2d) 486 (Ont. C.A.) and urged us to accept them as correct statements of the evidentiary requirements in obscenity cases.
44. The issue of who must place evidence of what before the trier of fact in obscenity cases is a vexing and recurring problem. Under the Hicklin rule expert evidence was in general held to be irrelevant. As Laidlaw J.A. explained in R. v. American News Co. (1957), 118 C.C.C. 152 (Ont. C.A.) at p. 157, since, under the Hicklin test, the gravamen of the offence was a tendency to deprave or corrupt, evidence as to artistic merit‑‑no matter how reliable‑‑was held to be irrelevant to the issue of obscenity. And as for evidence tending to show that the material in question had no tendency to deprave or corrupt, Laidlaw J.A.'s discussion, at p. 161, illustrates that the prevailing rules of evidence held such testimony to be inadmissible opinion evidence going to the very question to be determined by the trier of fact.
45. With the inception of the new statutory definition in s. 159(8) this rigid inflexibility was considerably relaxed. In Brodie (supra), at p. 703, Judson J. made it clear that expert evidence as to the seriousness of the artist's purpose and the artistic merit of the material in question was certainly admissible, and, in his view, very helpful:
I can read and understand, but at the same time I recognize that my training and experience have been, not in literature but in law and I readily acknowledge that the evidence of the witnesses who gave evidence in this case is of real assistance to me in reaching a conclusion.
46. In the Prairie Schooner case one issue was the admissibility of expert evidence (in the form of public opinion polls) on the question of the actual state of contemporary community standards. At page 266 of the report of that case there appears the following passage in the judgment of Monnin J.A. and myself:
...it would seem to me that when it becomes necessary to determine the true nature of community opinion and to find a single normative standard, the Court should not be denied the benefit of evidence, scientifically obtained in accordance with accepted sampling procedure, by those who are expert in the field of opinion research. Such evidence can properly be accorded the status of expert testimony. The state of mind or attitude of a community is as much a fact as the state of one's health: it would seem therefore as proper to admit the opinion of experts on the one subject as on the other.
(Emphasis added.)
47. To hold expert evidence admissible with regard to the factual underpinnings of the community standard test for "undueness" is, of course, not the same as holding such evidence to be mandatory. In R. v. Great West News Ltd. (supra), the appellants attempted to impose precisely that obligation on the Crown. It was argued that the Crown must fail because no evidence had been put before the court from which the court could objectively determine prevailing community standards. Counsel submitted that the court must determine from evidence placed before it by the Crown: (i) what is the community standard, that is to say, what is the standard of tolerance of Canadians as a whole to material of the nature of that impugned? (ii) does the material impugned so far transcend that standard as to be branded as criminal? After a review of the cases, and speaking also for Smith C.J.M., I had occasion to say, at pp. 314‑15:
The authorities would seem to ascribe to the Judge a much more important role in the assessment of contemporary community standards than counsel for the appellants would accord him. I do not find in Brodie or elsewhere in the Commonwealth, any majority opinion that expert evidence of community standards is an essential ingredient to a finding of guilt. If any inference can be drawn from Brodie it is that the Judge must, in the final analysis, endeavour to apply what he, in the light of his experience, regards as contemporary standards of the Canadian community. In so doing he must be at pains to avoid having his decision simply reflect or project his own notions of what is tolerable.
48. I am unaware of any majority opinion, since the Great West News Ltd. judgment, in Canada or elsewhere in the Commonwealth, which has made expert evidence of community standards mandatory. To impose on the Crown a positive requirement to adduce expert evidence as to community standards would be unrealistic. Expert evidence is always expensive, sometimes simply not available and frequently unreliable. The American experience‑‑based, to be sure on a somewhat different test for obscenity‑‑has been summarized in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) at p. 56, Note 6. Obscenity, it is said, "is not a subject that lends itself to the traditional use of expert testimony...indeed the `expert witness' practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony". United States v. Various Articles of Obscene Merchandise, 709 F.2d 132 (2d Cir. 1983) at p. 135, a recently reported American obscenity decision, confirms that although the government bears the burden of proving each element of obscenity (including a breach of community standards) to the satisfaction of the trier of fact, expert evidence of community standards is not constitutionally required, and that absent (or even in the face of) such evidence, the impugned materials may "speak for themselves" so as to ground a conviction for obscenity.
49. This is essentially the situation that obtains in Canada. In R. v. Cameron (supra), in the judgment cited by the appellant, Laskin J.A. distills from the case law five propositions regarding the law of obscenity. The fifth, at p. 513, is:
Expert evidence is admissible on the issue of "undueness" but it must be weighed by the Court even when it is all one way and stands uncontradicted.
50. With respect, I agree that this is an accurate statement of the law. If later passages in Laskin J.A.'s dissent do in fact retreat from this position, so as to suggest that expert evidence, whether in chief or in rebuttal, is a legal prerequisite for a finding of obscenity, then with great respect I cannot agree. I consider as accurate the following statement of evidentiary requirements enunciated in the recent decision of Borins J. in R. v. Doug Rankine Co. (supra), at pp. 171‑72:
It is well established that if the material itself is introduced into evidence, expert evidence as to obscenity or community standards is not required. Indeed, even if it is presented, the trier of fact is not bound to accept it. There is no necessity for the judge or jury to rely on evidence introduced in court as the basis for identifying community standards. Therefore, the trier of fact may determine for himself or herself (or themselves, in cases tried by a jury) the content of the community standard which is to be applied in determining whether the material in issue exceeds that standard. It is an objective test which applies. The test is not based on the level of tolerance of the judge or the jury. It is what the judge or jury believe the national level of tolerance to be.
51. Although, with great respect, I would not subscribe to any suggestion in Laskin J.A.'s dissent in R. v. Cameron (supra) that expert evidence is mandatory, I would nonetheless adopt his comment at p. 515 of that judgment:
Of course, that ultimate issue was for him [the judge], but even the most knowledgeable adjudicator should hesitate to rely on his own taste, his subjective appreciation, to condemn art. He does not advance the situation by invoking his right to apply the law and satisfying it by a formulary advertence to the factors which must be canvassed in order to register a conviction.
52. What is essential to a determination of undueness by means of the community standards test is that the trier of fact formulate an opinion of what the contemporary Canadian community will tolerate. In forming this opinion, the trier of fact must assess the community consensus. This assessment will inevitably involve judgments about values since it is one that touches the very fundamental mores and viewpoints of the Canadian community.
53. I would repeat, however, that this inquiry, though involving judgments about values, must be distinguished from the application of the trier of fact's subjective opinions about the tastelessness or impropriety of certain publications. The decision must focus on an objective determination of the community's level of tolerance and whether the publication exceeds such level of tolerance, not the trier of fact's personal views regarding the impugned publication. Thus, the role of an appellate court on an appeal from a determination of the community standard is to ensure that the trier of fact's decision is based on an opinion on the community standard of tolerance, not on his or her opinion about the tastelessness or impropriety of the impugned publication.
54. Evidence of the community's standard of tolerance may well be useful and indeed desirable in many cases. Nonetheless, I do not consider that there must be evidence, expert or otherwise, which the trier of fact accepts before a particular publication can be determined to violate the community standard. It is the opinion of the trier of fact on the community standard of tolerance with which we are concerned. It ought not to be stated as a matter of law that the trier of fact must have evidence, expert or otherwise, to be able to form an opinion on the community standard of tolerance.
55. As I have indicated, the defence did lead evidence of Mr. Hooper, the Chairman of the Alberta Censor Board for the purpose of showing that the film did not fall below contemporary community standards. The trial judge made only one reference to this evidence:
Now, whether or not the film was approved by the Censor Board, as far as I am concerned, has nothing whatsoever to do with whether or not the Crown can prefer an indictment against it for providing an immoral, indecent or obscene performance. The Court is the one that has to decide that.
56. The law is clear that a trier of fact does not have to accept testimony, whether expert or otherwise. He can reject it, in whole or in part. He cannot, however, reject it without good reason. In this case, it was incumbent on the trial judge to consider and assess the weight, if any, to be given to the evidence, indicative of community standards of tolerance, afforded by the approval of the film by censor boards or classification boards as well as the fact that no complaints had been received by the Board in Alberta although more than 8,500 people had viewed the film. He might, for instance, have considered the following assessment of similar evidence with regard to Last Tango in Paris by Freedman C.J.M. in R. v. Odeon Morton Theatres Ltd. (supra), at p. 196:
[The issue of obscenity] must be determined according to contemporary community standards in Canada. Relevant to that determination are many factors. One is the testimony of the experts, to be judicially assessed and weighed. Another is the circumstance that the film is adult fare only, as it has been given the classification "Restricted Adult", thereby becoming unavailable to persons under 18 years of age. A third is the fact that the film is being shown in New Brunswick, Quebec, Ontario, and British Columbia, in all of which Provinces it was given clearance by censor boards who made no deletions in it. (The film is of course being shown in many other countries in the world as well.) The record does not disclose a single Province that has banned "Last Tango". I am loath to believe that Manitobans are less tolerant, less sophisticated, or more in need of protective shelter than other Canadians.
In the present case the trial judge should certainly not have rejected the evidence before him without explanation.
57. It must also be kept in mind that the Crown must prove its case beyond a reasonable doubt. If at the end of the case the trial judge, whether on the basis of the defence evidence or otherwise, has a reasonable doubt that the material falls below community standards, he must acquit. There is no onus on the accused to show that community standards have been met.
58. In my view the trial judge erred in failing to have regard to the unrebutted evidence of the Chairman of the Censor Board of Alberta.
59. Both the points advanced by the appellant are well taken. I would therefore allow the appeal, set aside the judgments at trial and on appeal, and order a new trial.
The reasons of Beetz and Estey JJ. were delivered by
60. Beetz J.‑‑I have had the advantage of reading the reasons for judgment written by the Chief Justice, Mr. Justice McIntyre and Madame Justice Wilson.
61. Like Mr. Justice McIntyre, I agree with the Chief Justice that the standard we seek is that of tolerance and that: "What matters is not what Canadians think 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." I agree, however, with the Chief Justice that the Crown is not required to adduce expert evidence as to community standards.
62. Again like Mr. Justice McIntyre, I agree with Madame Justice Wilson that the audience to which a film or other publication is exposed is not relevant to a consideration of whether it is obscene.
63. I would dispose of the appeal as do the Chief Justice and Madame Justice Wilson.
The following are the reasons delivered by
64. McIntyre J.‑‑I have read the reasons for judgment prepared for delivery by the Chief Justice and Madame Justice Wilson. I am in agreement with the Chief Justice that the standard we seek is that of tolerance and that: "What matters is not what Canadians think 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." I agree, however, with Madame Justice Wilson that the audience to which a film or other publication is exposed is not relevant to a consideration of whether it is obscene, and also share her view that to formulate the community standard, which is an element of the proof required from the Crown in a criminal case, some evidence, expert or otherwise, must be adduced by the Crown before the trier of fact. I would dispose of the appeal as do the Chief Justice and Madame Justice Wilson.
The following are the reasons delivered by
65. Wilson J.‑‑I concur in the result reached by the Chief Justice. I wish, however, to express my own view as to what the trial judge did in this case that constituted error in law. In so doing I have found it necessary to some extent to revert to first principles. I start with the wording of s. 159(8) of the Criminal Code which reads:
(8) For the purposes of this Act, 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, shall be deemed to be obscene.
It seems to me that the question which the section poses is: is the undue exploitation of sex a dominant characteristic of this movie? The narrower question is: is the exploitation of sex in this movie "undue"? If the exploitation of sex in the movie is not "undue", then it matters not that the exploitation of sex is a dominant characteristic of the movie; it cannot be obscene under the section. The primary question then to which all others are subordinate is: is the exploitation of sex in the movie "undue"?
66. I turn to the test of "undueness". How is "undueness" to be measured? Clearly it postulates a standard which cannot be exceeded and that standard has been stated by the courts to be an objective one, the contemporary community standard in Canada. The problem then becomes one of how to identify that contemporary community standard in order to decide whether or not it has been exceeded.
67. The standard we are concerned with, it seems to me, is the degree of exploitation of sex which the Canadian community at any given point of time is prepared to accept in its movies. This is sometimes referred to as the Canadian standard of tolerance. I take no issue with the word tolerance. In my view there is no difference in meaning between acceptance by the community and tolerance by the community. I do not find it helpful, however, to refine further on that standard by identifying it as the degree of exploitation of sex to which Canadians are prepared to have other Canadians exposed. I think this is a different standard, a much more difficult one to identify and one not mandated by the section.
68. The test by which the trier of fact must assess the community standard is an objective one. The community standard itself, however, necessarily contains an element of subjectivity since what must be objectified are the subjective views of the entire community as to what degree of exploitation of sex is acceptable. To identify the community standard in terms of the degree of exploitation of sex to which Canadians are prepared to have other Canadians exposed has the effect, however, of introducing an even greater degree of subjectivity into the community standard. I believe this is so because what Canadians consider to be acceptable for other Canadians is likely to depend heavily on which other Canadians they have in mind. The community may feel that the degree of exploitation of sex in a particular film would be unacceptable if the film were shown to an audience of young people or senior citizens but nevertheless feel that it would be acceptable if the film were shown to a university group. In determining this community standard the trier of fact would be forced to speculate not only on what the community considers to be acceptable but on which particular constituency the community has in mind in setting the standard of acceptability.
69. I think we have to approach the question more directly and ask: do Canadians today accept this degree of exploitation of sex in their movies? If they do, then the movie is not obscene. If they don't, then the exploitation is "undue" and, if it is a dominant characteristic of the movie, the movie is deemed to be obscene under the section. It is not, in my opinion, open to the courts under s. 159(8) of the Criminal Code to characterize a movie as obscene if shown to one constituency but not if shown to another. I do not doubt that it is desirable to regulate the movies that can be shown to different constituencies. A movie which is not obscene within the meaning of the Criminal Code may still not be desirable viewing material for persons under the age of 18. Such regulation, as will be mentioned later in these reasons, is authorized in various provincial jurisdictions but it is the regulation of material which is not obscene under the Code. I do not think the Court should, by segregating the community into different groups for purposes of ascertaining the standard of tolerance the community would adopt for each group, inject into s. 159(8) of the Criminal Code a series of different tests of obscenity. In my view, a movie is either obscene under the Code based on a national community standard of tolerance or it is not. If it is not, it may still be the subject of provincial regulatory control.
70. "Undueness", however, is not purely a matter of degree. It must have reference to the total context of the movie. As Judson J. said in Brodie v. The Queen, [1962] S.C.R. 681 at p. 702, in discussing obscenity in literature:
It is not the particular passages and words in a certain context that are before the Court for judgment but the book as a complete work. The question is whether the book as a whole is obscene not whether certain passages and certain words, part of a larger work, are obscene.
The same point was made by Chief Justice Freedman in R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185 (Man. C.A.), when, in speaking of the film Last Tango in Paris, he said at p. 193:
It must be judged as a whole. It should not be condemned as obscene merely by reference to its sexual episodes or to its occasional gross and earthy language. Both the episodes and the language must be assessed in the context of and in their relationship to the entire film.
71. Coming back then to the determination of the community standard in the terms I have described, namely the standard the community at any given time is prepared to accept or tolerate, how is this moral consensus to be ascertained? I describe it as a "moral" consensus because I agree with the Chief Justice that we are not concerned here with matters of "taste". To use the standard accepted by members of the community for themselves does not, in my view, substitute "taste" for moral acceptability. I think it is incorrect to say that when I am deciding whether or not I myself am prepared to be shown a certain type of movie I am making a decision merely on the basis of taste but when I am deciding whether or not I am prepared to have that same movie shown to others I am making a decision on the basis of tolerance. This, in my view, is a false distinction. In either case tolerance in the sense of moral acceptability is the issue‑‑in the former case moral acceptability to myself and in the latter moral acceptability to others. People may, of course, refuse to patronize certain movies on grounds of taste but this is not at all what we are concerned with under the Criminal Code .
72. The Shorter Oxford English Dictionary defines "toleration" as "the action or practice of tolerating or allowing what is not actually approved". It is apparent from this definition that there is a distinction between that which is not approved and that which is not to be tolerated. In R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154 (Ont.) at p. 173, Borins Co. Ct. J. made the following assessment of community standards of tolerance in relation to what may be described as "sex films":
In my opinion, contemporary community standards would tolerate the distribution of films which consist substantially of scenes of people engaged in sexual intercourse. Contemporary community standards would also tolerate the distribution of films which consist of scenes of group sex, lesbianism, fellatio, cunnilingus, and anal sex. However, films which consist substantially or partially of scenes which portray violence and cruelty in conjunction with sex, particularly where the performance of indignities degrades and dehumanizes the people upon whom they are performed, exceed the level of community tolerance.
In drawing this distinction I do not think that Borins Co. Ct. J. was suggesting that the average Canadian finds the former type of film to his or her taste or that such films are inoffensive to most Canadians. Rather, I think that Borins Co. Ct. J. recognized that whether or not Canadians found the former type of films distasteful, they were prepared to tolerate their being shown.
73. It seems to me that the undue exploitation of sex at which s. 159(8) is aimed is the treatment of sex which in some fundamental way dehumanizes the persons portrayed and, as a consequence, the viewers themselves. There is nothing wrong in the treatment of sex per se but there may be something wrong in the manner of its treatment. It may be presented brutally, salaciously and in a degrading manner, and would thus be dehumanizing and intolerable not only to the individuals or groups who are victimized by it but to society at large. On the other hand, it may be presented in a way which harms no one in that it depicts nothing more than non‑violent sexual activity in a manner which neither degrades nor dehumanizes any particular individuals or groups. It is this line between the mere portrayal of human sexual acts and the dehumanization of people that must be reflected in the definition of "undueness".
74. How is the Court to determine where the line is drawn? By guidelines read into the definition as a matter of interpretation of the word "undue"? By consideration of the presumed social ills sought to be avoided by restrictions on freedom of publication? By statistics showing what people are prepared to look at and what they are not? The courts have said that the test is an objective one and clearly that must be so. But objectivity requires criteria and the courts have not been too successful in evolving them. Yet this is a criminal offence and it is basic to our system of criminal justice that the public know what conduct is criminal and what is not.
75. This, it seems to me, militates very strongly against a community standard test of undueness which varies with "the targetted group". I believe it is important to the publishing industry to have some degree of certainty as to when they may be exposing themselves to a criminal charge. The only way to provide that degree of certainty is, in my opinion, to have a uniform community standard test of "undueness" under the Code. With great respect to those who think otherwise, I see nothing in s. 159(8) which would permit something to be obscene under the section when shown to X but not obscene when shown to Y. Moreover, it seems to me that this approach would inevitably lead to problems where a publication targetted to one group by the accused fell into the hands of others.
76. As I see it, the essential difficulty with the definition of obscenity is that "undueness" must presumably be assessed in relation to consequences. It is implicit in the definition that at some point the exploitation of sex becomes harmful to the public or at least the public believes that to be so. It is therefore necessary for the protection of the public to put limits on the degree of exploitation and, through the application of the community standard test, the public is made the arbiter of what is harmful to it and what is not. The problem is that we know so little of the consequences we are seeking to avoid. Do obscene movies spawn immoral conduct? Do they degrade women? Do they promote violence? The most that can be said, I think, is that the public has concluded that exposure to material which degrades the human dimensions of life to a subhuman or merely physical dimension and thereby contributes to a process of moral desensitization must be harmful in some way. It must therefore be controlled when it gets out of hand, when it becomes "undue".
77. Addressing the problem of "undueness" in the context of agreements which "prevent or lessen, unduly, competition" in a product, Mr. Justice Idington said in Weidman v. Shragge (1912), 46 S.C.R. 1 at pp. 20‑21:
This being a criminal statute we must try to find the vicious purpose aimed at in order to bring parties within its prohibitions.
...
Crimes usually imply something all right‑minded men condemn.... The test must in each case be the true purpose and its relation to the activities specified in and by the words of the statute and a finding of an evil or vice answering to the descriptive word "unduly".
He found the vicious purpose in the context of combines legislation to be the destruction of all competition. What is the vicious purpose aimed at in the case of obscenity legislation? The statutory definition does not provide an answer nor, with respect, does the existing jurisprudence.
78. The test of the community standard is helpful to the extent that it provides a norm against which impugned material may be assessed but it does little to elucidate the underlying question as to why some exploitation of sex falls on the permitted side of the line under s. 159(8) and some on the prohibited side. No doubt this question will have to be addressed when the validity of the obscenity provisions of the Code is subjected to attack as an infringement on freedom of speech and the infringement is sought to be justified as reasonable. Suffice it to say, that clearly some fairly basic values are designed to be protected by the obscenity provisions and the community standards test is premised on the assumption that these values are held in common by the contemporary Canadian community.
79. The community standard test in Canada, I believe, had its origin in Brodie (supra), the Lady Chatterley’s Lover case, in which four members of this Court concluded that the definition of obscenity introduced into the Code in 1957 made the test in R. v. Hicklin (1868), L.R. 3 Q.B. 360, obsolete. In their view it was no longer necessary to show a tendency to corrupt and deprave if the dominant characteristic of the publication was an exploitation of sex which was "undue". The test of "undueness", said Mr. Justice Fauteux at p. 697, was whether the exploitation was shocking and disgusting "having regard to the existing standards of decency in the community...." Mr. Justice Judson agreed at pp. 705‑06 that the standards of acceptance prevailing in the community provided the test of "undueness" for purposes of the definition. The statutory definition, he felt, could not be superimposed upon the Hicklin test without leaving the citizen in the position of not knowing whether he was committing a criminal act or not.
80. The community standard test was applied the same year (1962) in Manitoba by Freedman J.A. (as he then was) dissenting in R. v. Dominion News & Gifts (1962) Ltd., [1963] 2 C.C.C. 103. The learned justice said he would have judged the magazines by the standards of the community and this Court, in reversing the decision of the Manitoba Court of Appeal ([1964] S.C.R. 251), unanimously approved and adopted his reasons. I quote the relevant passage in full from pp. 116‑17 of Mr. Justice Freedman's reasons:
The case for the Crown stands or falls on the applicability or otherwise of the first part of the definition‑‑namely, that a dominant characteristic of these magazines was "the undue exploitation of sex".
Can it fairly be said that this was a dominant characteristic of either Dude or Escapade? I have examined them both with care. That they do not qualify as reading matter which I would personally select for myself even in an idle hour is undoubtedly the case. But that does not make them obscene. In this area of the law one must be especially vigilant against erecting personal tastes or prejudices into legal principles. Many persons quite evidently desire to read these magazines, even though I do not. I recognize, of course, that the mere numerical support which a publication is able to attract is not determinative of the issue whether it is obscene or not. Let a publication be sufficiently pornographic and it will be bound to appeal, in the hundreds or thousands, to the prurient, the lascivious, the ignorant, the simple, or even the merely curious. Admitting, therefore, that a large readership is not the test, I must yet add that it is not always an entirely irrelevant factor. For it may have to be taken into account when one seeks to ascertain or identify the standards of the community in these matters. Those standards are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered. Obviously this is no easy task, for we are seeking a quantity that is elusive. Yet the effort must be made if we are to have a fair objective standard in relation to which a publication can be tested as to whether it is obscene or not. The alternative would mean a subjective approach, with the result dependent upon and varying with the personal tastes and predilections of the particular Judge who happens to be trying the case.
Community standards must be contemporary. Times change, and ideas change with them. Compared to the Victorian era this is a liberal age in which we live. One manifestation of it is the relative freedom with which the whole question of sex is discussed. In books, magazines, movies, television, and sometimes even in parlour conversation, various aspects of sex are made the subject of comment, with a candour that in an earlier day would have been regarded as indecent and intolerable. We cannot and should not ignore these present‑day attitudes when we face the question whether Dude and Escapade are obscene according to our criminal law.
Community standards must also be local. In other words, they must be Canadian. In applying the definition in the Criminal Code we must determine what is obscene by Canadian standards, regardless of attitudes which may prevail elsewhere, be they more liberal or less so.
I think I should add my view that, in cases close to the border line, tolerance is to be preferred to proscription. To strike at a publication which is not clearly obscene may have repercussions and implications beyond what is immediately visible. To suppress the bad is one thing; to suppress the not so bad, or even the possibly good is quite another. Unless it is confined to clear cases, suppression may tend to inhibit those creative impulses and endeavours which ought to be encouraged in a free society.
81. In reversing the Manitoba Court of Appeal Taschereau C.J. said at p. 251:
We are all of opinion that the appeals should be allowed. We agree with the reasons given by Freedman J.A. in the Court of Appeal for Manitoba. We wish to adopt those reasons in their entirety and do not find it necessary to add anything to them.
I would respectfully adopt "the Freedman approach" as the law applicable to this case.
82. If I am correct as to how the community standard in Canada is to be identified, namely with reference to what Canadians at any given point of time will accept in their movies, then what is the significance of the evidence of the unanimous approval of this film by the censor boards of all the provinces having such boards?
83. I believe that there is an onus on the Crown to put evidence before the court on the issue of "undueness". I cannot see how the community standard against which the allegedly obscene matter has to be measured can be identified without it. In R. v. Cameron (1966), 58 D.L.R. (2d) 486 (Ont.), Laskin J.A. (as he then was) pointed out in dissent that because a judge or jury may be limited in the geographical range of his exposure, which in turn might result in "a limitation of opportunity of appreciation and understanding" of the particular subject‑matter‑‑in that case artists' drawings‑‑expert evidence was indispensable. He said at p. 515:
I think that such evidence would always be necessary to support the case for the Crown as well as to support the defence, especially where, as here, pictures by artists of repute are seized from a reputable gallery. Holding this view, I cannot but be surprised that the Crown in the case at bar produced no expert evidence and relied on the pictures themselves to convey obscenity to the Magistrate. Of course, that ultimate issue was for him, but even the most knowledgeable adjudicator should hesitate to rely on his own taste, his subjective appreciation, to condemn art. He does not advance the situation by invoking his right to apply the law and satisfying it by a formulary advertence to the factors which must be canvassed in order to register a conviction.
84. Laskin J.A. was, of course, speaking of expert evidence in the context of that case but it seems to me that the point is well made with respect to non‑expert evidence as well. Having regard to the fact that the onus is on the Crown to establish obscenity beyond a reasonable doubt, it seems to me that the onus is on it to establish both what the community standard of acceptability is and that the accused has gone beyond it. The accused may counter the Crown's evidence of the community standard with evidence of its own and the judge may reach his decision on the evidence in the usual way. In my view it is naive to think that a judge, drawing on his own experience alone, can determine the objective standard against which impugned conduct is to be measured. As Borins Co. Ct. J. said in R. v. Doug Rankine Co. (supra) the legislature cannot credibly expect a trier of fact to have his finger on the "pornographic pulse of the nation". Moreover, it is wrong in principle. It leaves the accused with no way of knowing the case it has to meet, at what level of acceptability the line will be drawn by any particular judge. There is no certainty. It is the length of the Chancellor's foot imported into the criminal law.
85. The result feared by Laskin J.A. when no evidence is presented to the trial judge is precisely what happened here. The trial judge made "a formulary advertence to the factors that had to be canvassed". He indicated that he knew that the test of "undueness" was an objective one, that he had to decide whether or not the film exceeded the standard of acceptability to the community as a whole but he then proceeded to attribute the sense of revulsion which he experienced on viewing the film to the community as a whole. He gave no indication of the basis on which he felt able to make that leap and there is no suggestion that he took into consideration the evidence of censor board approval which was before him. That evidence was not contested and, having regard to the statutory purpose for which these boards were created, I think it was relevant evidence and evidence which he was obliged to consider.
86. The legislation creating these boards varies from province to province but the role of the boards, generally speaking, is to approve, prohibit or regulate the exhibition of films within their respective provinces. The boards are not only empowered to approve or disapprove films in toto. In some provinces the legislation also authorizes the boards to "remove by cutting or otherwise" parts of films. Most provinces have a film classification system, the classes, generally speaking, being "general", "adult" and "restricted".
87. Since the business of these boards is to assess films on an ongoing basis for the very purpose of determining their acceptability for viewing by the community as a whole or a segment of the community depending upon classification, they must be regarded as tribunals with expertise at least on the community standard within their own province. It is hard to think that a judge, or even a jury, sitting in or drawn from a local area would be better informed as to what was acceptable to Canadians across the country. Moreover, in this case at least, the boards' assessments disclose a remarkable degree of uniformity. I do not see how the learned trial judge, applying an objective test and giving proper consideration to that evidence, could have reached the result he did. I believe it is clear from his reasons that he saw his role, not as applying the community standard, but as raising the standard if he personally thought it was too low. I think he was clearly in error in this regard.
88. The Court of Appeal on this aspect of the case stated:
The trial judge, sitting as a jury, was obliged to determine in an objective way what was tolerable in accordance with the contemporary standards of the Canadian community. As a trier of fact he was entitled to draw on his experience in the community. He had to consider the expert evidence but was entitled to reject it and obviously did.
With respect, I think it is far from obvious that the trial judge rejected the expert evidence. The only comment he made on it was:
Now, whether or not the film was approved by the Censor Board, as far as I am concerned, has nothing whatsoever to do with whether or not the Crown can prefer an indictment against it for providing an immoral, indecent or obscene performance. The Court is the one that has to decide that.
There is no question that the approval of the censor board does not preclude the preferring of an indictment. The issue the judge had to decide was the significance of the approvals as evidence of the community standard of acceptance. It seems to me that he never addressed his mind to that issue.
89. In my view, the practice of allowing the trier of fact to rely exclusively on his or her personal experience of community standards of tolerance (see R. v. Great West News Ltd., [1970] 4 C.C.C. 307 (Man. C.A.) at pp. 314‑15) is an invitation to the type of error committed by the trial judge in this case. The problem can be readily avoided by requiring the Crown to adduce evidence of the community standard. The trier of fact would then determine the community standard on the basis of the evidence before him in the same way as he determines the factual issues in any other kind of criminal case.
90. I cannot see how such a requirement would, as has been suggested, frustrate the Crown's ability to secure a conviction in a meritorious case. At present the trier of fact in an obscenity case can be faced with the unenviable task of deciding the level of tolerance of a community of 24 million people on the basis of nothing more than his or her own personal experience. In effect, what the trier of fact does in the absence of evidence is attribute by inference his or her own perception to the entire Canadian community. I would think that requiring the trier of fact to make the determination on the basis of evidence adduced would render the task easier rather than more difficult. It would also, in my view, inspire greater public confidence in the result. Moreover, it might well have the very desirable effect of enhancing uniformity in the application of the law of obscenity since evidence of community standards which is relevant to one prosecution will commonly be relevant to others.
91. I agree with the Chief Justice that the appeal must be allowed, the judgments at trial and on appeal set aside and a new trial ordered.
Appeal allowed and new trial ordered.
Solicitors for the appellant: J. N. Agrios and B. J. Willis, Edmonton.
Solicitor for the respondent: Ross W. Paisley, Edmonton.
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