AVNONLINE COLUMN 200601 - LEGAL - Oh, Canada!: What's the difference between the U.S. and Canada? How we define obscenity.

They say that one way to tell an American from a Canadian is to remark, "There's no difference between Canadians and Americans." The Americans will shrug their shoulders and say "That's true." The Canadians will proudly don their toques and wax eloquently about beer, back bacon, colored money, maple sugar, and the Royal Canadian Mounted Police, eh?

One of the interesting differences between America and Canada is how our respective countries deal with the legal test for determining if a particular work is obscene. What follows is my attempt to address the difference between the “Miller Test” of the USA and the “Butler Test” of Canada.

Miller vs. California, 413 U.S. 15 (1973)

The Miller Test for determining obscenity has a number of components. In Miller the Court stated that the guidelines for the trier of fact must be: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals the prurient interest. (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

The Miller Test requires the offensive content to be measured against contemporary community standards. And here lies the major departure for the Canadian test. In America, the community standard test is a local standard. Here is what Mr. Justice Burger in Miller said about that:

... Our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 states in a single formulation, even assuming the prerequisite consensus exists. ... People in different states vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.

Translation: if you get a job transfer, check your atlas and then your porn collection. Your porn may be legal in Soho but a "no go" in Provo.

Regina vs. Butler [1992] 1 S.C.R. 452

In Canada, the Supreme Court of Canada (SCC) has come to exactly the opposite conclusion. The SCC has said it makes no sense to have localized community standards, which will create inconsistent findings depending on the geographic locale, and local standards of a community. The standard of the community is a Canadian national standard.

Oddly, local means national in Canada. The SCC stated in Regina vs. Dominion News & Gifts (1962) Ltd [1964] S.C.R. 251 that "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."

The leading case in Canada regarding the test of obscenity is the case of Regina vs. Butler [1992] 1 S.C.R. 452, in which the Court held that pornography can be divided into three categories:

1) Explicit sex with violence;

2) Explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing;

3) Explicit sex without violence that is neither degrading nor dehumanizing.

Of these three categories, category No. 3 will almost never, if ever, be determined to be obscene unless it employs children in its production. Category No. 1, will almost always be obscene. And category No. 2 will likely be found to be obscene if there is a substantial risk of harm to society by viewing the material in question. This “harm test” is also applied to category No. 1, but the Court has said it may be open to the Crown to ask a Court to infer that harm just be the nature of the material itself.

In Butler the SCC went to great lengths to try and articulate the test for obscenity. The key to that test is tolerance. The test is not “What will I not tolerate viewing?" but “What would I not abide other Canadians viewing because it would be beyond the contemporary Canadian standard or tolerance to allow them to view it?” In other words, I may hate it and it makes me ill, but if someone else wants to view it, I am OK with that.

But that's not the end of it. For the Courts to determine what the community will tolerate others viewing on the basis of the degree of harm that may flow from exposure to such material, harm has been defined in Butler as predisposing people to act in an anti-social manner, that is, conduct that society formally recognizes as incompatible with its proper functioning. The Court said that the stronger the inference of a risk of this type of harm, the lesser the likelihood of tolerance.

In Canada, there has been much judicial discussion about what is the substantial risk of harm. Causing people to act in an anti-social manner is one of the harms. However, this isn’t so easy to determine. The Court has made reference to specific anti-social acts such as the physical or mental mistreatment of women by men or the reverse.

Lastly, if it is found that the sexually explicit matter constitutes the undue exploitation of sex, it must be analyzed in its context to determine whether that is the dominant theme of the work as a whole. That is, is the portrayal of sex essential to a wider artistic, literary, or other similar purpose? And when viewed in that context, would the community as a whole tolerate it. The Court holds that artistic expression rests at the heart of freedom of expression values and any doubt in this regard but be resolved in favor of freedom of expression.

The Ontario Court of Appeal in Regina vs. Hawkins (1993) 86 CCC (3d) 246 has held that the burden is always on the Crown to prove the harm element in any obscenity prosecution just as the Crown must prove all other elements of the offense, and, in this writer's opinion, the onus is on the Crown to prove this aspect of the offense beyond a reasonable doubt.

Enter the battle of the social scientists. Some experts will opine that by watching certain types of porn, it's monkey see, monkey do. Watching it will cause you to lose all inhibition and go out an engage in various anti-social behaviors. Others say that that is not the case, and as rational beings we have the intermodulation of thought, which intercedes and precludes taking such actions. There are studies that each side can trot out to buttress their positions.

However, it appears that since the explosion of the Internet since 1995, there has not been a concurrent increase in sexual crimes, and indeed, trends in the opposite direction have been noted. Whether or not one statistic is related to the other in some cause-and-effect manner remains a matter of some debate.

In 1964, Associate U.S. Supreme Court Justice Potter Stewart stated in his ruling opinion on Jacobellis vs. Ohio, 378 U.S. 184, 197 (1964): "I shall not today attempt further to define the kinds of material I understand to be embraced ...[b]ut I know it when I see it."Madame Justice Wilson of the SCC in Regina vs. Towne Cinema Theatres Ltd. [1985] 1 SCR 494 has said that judges are perhaps not in the best position to ascertain community standards of tolerance, as judges may not have their “finger on the pornographic pulse of the nation.” To assist the judiciary, I recommend that good defense counsel will give judges a helping hand by providing extrinsic evidence of the nation's pornographic pulse.

How to do this? The starting point, today, is the Internet. Given that Web access is widely available, relatively inexpensive, and if not in your home, available at school, the library, or your local cyber café, this is the logical starting point for any obscenity defense based on community standards.

Next, check your local gay/ lesbian-oriented bookstore. From there, there is satellite television, cable, pay-per-view, Lodge Net, your local video store, (and not just the XXX section—try the foreign film section.), your public library, ads in counter culture and underground newspapers for fetish or BDSM play parties. This type of evidence of community standards is required to demonstrate just what the community is tolerating, or what the city is granting special-occasion permits for, or what the local police allow and are perhaps uninterested in policing.

I think this approach will hold true for U.S. attorneys defending cases based on the Miller test of community standards as well. While the local community standard test is still the law in America, there have been recent judicial rumblings south of the border that perhaps, in a post World Wide Webian World, a local community standard test may no longer be the correct measuring stick. However, that issue will have to be resolved at a later date. In a speech in Cape Town, South Africa, on June 7, 1966, Robert F. Kennedy said, "There is a Chinese curse which says, ‘May he live in interesting times.’ Like it or not, we live in interesting times. ..."But, as Bob Dylan said, “the times they are a-changin’.”