Obscenity : Richard G. Fox

172 ALBERTA LAW REVIEW [VOL.
XII
OBSCENITY*
RICHARD G. FOX**
The project staff of the Prohibited and Reguuzted Conduct Project of the Law Reform
Commission of Canada state that the uncertainty of the law of obscenity the uneven-
ness of its interpretation and application throughout Canada, and the q'uestion of its
relevance as a constituent part of the criminal law prompted this extensive considera-
tion of whether the existing law is in need of reform. In hi.s introduction, Professor
Fox elaborates on the two fundamental difficulties at the root of the problem: first,
that obscenity i.s an inescapably subjective phenomenon; and second, the law's own
indeterminacy of aim. He then scrutinizes the plethora of possibk subject matter
for obscenity and its dissemination; and he proceeds to a consideration of whether
the suspect material is obscene per se or variable according to susceptibility of the
audience. Six possible fustifications are offered for legi.slative prohibitions on
obscenity; each of these are very closely examined and most are found to be
tenuous at best. After a rather detailed examination of the cases on the Criminal
Code provisions, other Federal legi.slation touching on the subfect of obscenity,
and the necessaril11 incidental consideration of defences and expert witnesses,
Professor Fox weighs the possible alternatives to the present law. There cannot, of
course, be any definitive answers.
I. INTRODUCTION
It is social censure and public opinion that we normally look to to regulate the evolution
of private mores and if, instead, we insist that this continuing process be translated and
crystallized into penal law, we have only ourselves to blame when judges and Parliamen-
tary draughtsmen fail to convert an inescapably subjective word lilce obscene, whose
interpretation varies not only from person to person but from year to year, into an
acceptably objective law capable of reasonabl)" consistent application. That they can
only offer us question-begging periphrasis should be no surprise because we have left
them without guidance as to what is intended to be achieved. They cannot say what
they mean because they do not know what they mean, and they do not know what they
mean because we cannot tell them what we mean them to mean. 1
What is meant by obscene? The derivation of the word is obscure and, in
its modem usage, is associated with a host of synonyms: dirty, disgusting,
filthy, immoral, impure, indecent, lascivious, lewd, licentious, lustful, offensive,
pornographic, prurient, smutty, vulgar. Some courts have attempted to separate
indecency from obscenity by holding that "indecent" is a weaker label of
disapprobation: an indecent article being not necessarily obscene, but an
obscene one always being indecent. 2 In similar fashion, pornography is regarded
as representing the worst in obscenity and denoting total rejection. Works
condemned as pomopaphic have been described as "utterly without redeeming
social importance", 3 pure filth",• and as "dirt for dirt's sake".6 But such exercises
in semantics provide no clue as to the external criteria by which indecency may
be distinguished from obscenity, obscenity from pornography, or pornography
from its host of accompanying adjectives. Different writers have variously
asserted that the "essence" of obscenity is to be found in the subversion of
0 Prepared as a study paper for the Law Reform Commission of Canada. The views
expressed by the writer are not necessarily those of the Law Reform Commission.
00 Associate Professor, Centre of Criminology and Faculty of Law, University of Toronto.
1 Arts Council of Great Britain, The Obscenity Laws 14-15 ( 1969).

2 McGowan v. Langmuir [1931] S.C. (J.) 10 at 13; R. v. Stanley [1965] 2 W.L.R.
917 at 921; Crowe v. Graham (1968) 41 Aust. L.J.R. 402 (High Court of Australia).
The Canadian Criminal Code, R.S.C. 1970, c. C-34, s. 159(2) (b) prohibits the
exhibition of an indecent show.
a Roth v. U.S. ( 1957) 345 U.S. 476 at 484.
• Gorer, Does Pornography Matter? 40 (Rolph, ed. 1961 ).
:i U.S. v. One Book Called "Ulysses" ( 1933) 5 F. Supp. 182 at 184.
1974] OBSCENITY 173
accepted standards of sexual morality,6 in invitation or excitation to venereal

pleasure, 7 in individual or communal feelings of indignation, 8 in the "leer of the
sensualist",9 or in the community's sense of shame at exposure of sexual or
excremental matters. 10 Anthropologists, however, assert that they can discover
no absolutes in the descriptive content of what is regarded as obscene in
different societies in the world. 11 Nothing is obscene that has not been culturally
defined as such. In each society, obscenity inheres in representations, words, or
acts, which may not necessarily be prohibited elsewhere.
Obscenity is a term which enjoys current use in both legal and non-legal
contexts. If it is to be maintained as a criminal law concept, it ought to be
susceptible of reasonably precise definition in its judicial uses if for no other
reason than to satisfy the principle of legality - nullum crimen sine lege, nulla
poena sine lege - that the citizen be aole to ascertain beforehand whether his
conduct will infringe a legal prohibition. The common law could offer nothing
more precise than the Hicklin test: 12
... whether the tendency of the matter charged as obscene 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.
Nothing is offered to show what is meant by depravity and corruption and proof
of hami is not required since: 18
It is assumed incontrovertibly by the common law that obscene writings do deprave and
corrupt morals by causing dirty-mindedness, by creating and pandering to a taste for
the obscene.
In Canada, the common law test of obscenity has been modified by statutory
provisions in the Criminal Code: 14
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.
Judicial interpretive glosses upon this provision have provided a morass of
verbiage whose practical effect is to make the subjective personal reaction of the
individual members of the court the overriding factor in the judicial evaluation
of obscenity.
There is no tangible or verifiable reality corresponding to the label
"obscenity". It is an expression of opinion rather than of fact. It is a value
judginent based upon the emotive responses of individuals or groups to stimula-
tion by exposure to tabooed material. The emotions expressed are usually those
of disgust, anger and indignation, but the elicitation of these responses is always
relative, subjective, and variable. Though occupational, educational, and income
factors have been shown to have sigtrlficant bearing upon an individual's
j"udgmentthat material is obscene, it has also been demonstrated that, even among
different individuals, certain items and specific characteristics of items will elicit
6 Lockhart and McClure, Literature, The Law of Obscenity and the Constitution, ( 1954)
38 Minn. L. Rev. 295 at 333.
7 Gardiner, Catholic Viewpoint on Censorship 65 ( 1958); Murphy, Censorship: Gov-
ernment and Obscenity 36 ( 1963).
a Marcuse, Obscene: The History of Indignation 11 ( 1965).
o U.S. v. One Book Called "Ulysses", supra, n. 5 at 183.
10 U.S. v. Kennerley ( 1913) 209 Fed. 119 at 121; Kallan, The Ethical Aspects of
Censorship, ( 1953) 5 Social Meaning of Legal Concepts 42.
11 Honigmann, A Cultural Theory of Obscenity, ( 1944) 5 Journal of Criminal Psycho-
pathology 713; La Barre, Obscenity: An Anthropological Appraisa~ ( 1955) 20 Law &
Contemporary Problems 533.
12 R. v. Hicklin ( 1868) L.R. 3 Q.B. 360 at 371 per Cockburn, C.J.
1s Crowe v. Graham, supra, n. 2 at 410.
14 Supra, n. 2, s. 159(8), formely s. 150(8),
174 ALBERTA LAW REVIEW [VOL. XII
fairly consistent judgments regarding the degree of obscenity present. 15 In

popular usage, the word obscenity may be applied, as a pejorative term, to
indicate disgust with almost any subject matter. Until recently, in legal usage,
obscenity was exclusively confined to breaches of taboos relating to sexual and
excretary functions.16 But now, by statute, the concept has been extended
to include undue exploitation of sex, crime, horror, cruelty and violence, and it
appears that a much wider range of material may be condemned under this head.
Not only is obscenity an inescapably subjective_phenomenon, it also repre-
sents a depreciatory judgment on at least three different grounds: aesthetic,
moral, and utilitarian. The first two call for de gustibus definitions which
cannot provide an objective standard for differentiating meritorious from
meretricious publications. The aesthetic judgment is made in relation to the
technique of presenting the tabooed subject matter. Havelock Ellis suggested
that we choose to label as obscene that which depicts shameful matters which
ought not to be shown on "the stage of life".11 But the issue is not quite as
straightforward as this, because if the shameful matters are presented with
sufficient literary or artistic merit, the work may be saved - presumably on the
ground that it is no longer aesthetically repulsive (though still shameful). D. H.
Lawrence, who believed quite firmly in the need for censorship of some forms
of sexually explicit material, distinguished non-censorable eroticism from censor-
able poronography on aesthetic grounds alone. Pornography in general, he
claimed, could be recognized by the insult it offered to sex and the human
spirit, while pornographic writings in particular were" ... either so ugly that
they make you ill, or so fatuous you can't imagine anybody but a cretin or a
moron reading them, or writing them."18
To some, obscenity is, at bottom, not an aesthetic category but a sin. It is
suppressed for the spiritual purity, the moral tone of the community and the
salvation of its members.19 The sinfulness of obscene publications is demonstrated
by reference to the fact that such works depict "polymorphous perverse" sexual
behaviours condemned by Christian belief. Obscenity laws are, thus, seen as
manifestations of a community's aspirations to holiness or propriety and, accord-
ingly, whether a particular publication threatens these aspirations becomes a
purely moral judgment. Whether criminal sanctions may be imposed_ upon
citizens for breach of common standards of morality alone, without further
utilitarian justification, has been the subject of the well known Hart/Devlin
debates and it is sufficient for this study _paper to note that, to some minds, the
prosecution of obscenity is simply the legal enforcement of one part of the
seamless web of community morality and that the enforcement of community
morality is, in itself, a positive moral value which requires no further vindication.
However, others hold that only those aspects of community morality essential for
social survival should be enforced by the sanctions of the criminal law.
111 Higgins & Katzman, Determinants in the Judgment of Obscenity, ( 1969) 125
American Journal of Psychiatry 1733.
18 English and English, Dictionary of Psychol.ogicaland Psychoanalytical Terms 353
(1958) restricts the definition of obscenity to "'gestures, language or pictures that
violate the established conventions of what may properly be expressed under certain
conditions in respect of sex and the excretory functions." The American Law Insti-
tute's Model Penal Code, s.251.4 (Proposed Official Draft), 1962, limits obscenity
to ..... a shameful or morbid interest in nudity, sex or excretion ... "
17 Ellis, "The Revaluation of Obscenity", More Essays in Love and Virtue 104 (1931).
18 Lawrence, Sex, Literature and Censorship 15 ( Moore, ed. 1953). See also the dis-
cussion of pornography by fourteen contemporary novelists and critics in Perspectives
on Pornography ( Hughes, ed. 1970).
1 9 Henkin, Morals and the Constitution - the Sin of Obscenity, ( 1963) 63 Colum.
L. Rev. 391 at 395; Alpert, Censorship of Obscene Literature, ( 1938) 52 Harv.
L. Rev. 40 at 43.
1974] OBSCENITI 175
Finally, representations of sexual or excretory functions will evoke damnatory

connotations if it is believed that they will, directly or indirectly, threaten the
stability of the community or its members. But the exact nature of the threat is
a matter of endless debate. Overt misbehaviour of a criminal nature would, of
course, represent a threat to society and sufficient utilitarian justification for the
prohibition of the writing which incited it. But other threats are perceived and
the utilitarian judgment that obscenity does or does not tend to produce harmful
behaviour appears to be predicated upon intuition rather than evidence. And,
often, the intuition itself is derived from the feelings of shock, disgust and
revulsion generated by the offending representation.
In its attemft to control obscenity, the law is acutely hampered by its own
indeterminacy o aim. The recent reports of the United States Commission on
Obscenity and the Working Party of the Arts Council of Great Britain, the
experiences with liberalized laws of the Scandinavian countries, especially
Denmark, and recent concern for the strengthening of civil rights, including the
right of adult, non-captive audiences to see and read whatever they wish without
government interference so long as no criminal conduct results, have generated
demands for modification of the law relating to obscenity. But there are also
counter pressures from those who are concerned that obscenity is connected with
a breakdown in law and order and constitutes a grievous affront to community
standards of tolerance of sexual expression.
II. THE SUBJECT MATTER: MEDIA, CONTENT AND CLASSIFICATION
"What's your game?'' she asked suddenly .
..My game? Oh, I write."
..Go on • . . do you mean it? What sort of stuff? History, biology . . . ?''
..Naughty books," I said, trying to blush deeply .
..What kind of nau~hty books? Naughty-naughty, or just dirt?"
"Just dirt, I guess.'
"You mean - Lady Chatterby or Chattersley, or whatever the hell it is? Not that swill
you don't mean, do you?"
I laug~ed. :·No, not that s?,1:o... just straight obscenity. You know ... duck, chit,
kISs, trick, punt. . . . -
Despite the English decision of John Calder (Publications) Ltd. v. PoweU21
in which a book advocating drug addiction was declared obscene as tending to
deprave and corrupt its readers, the legal prohibitions on obscenity are applied
as a matter of practice, only to sexual or scatological material, especially that
featuring graphic representation of human genital organs and their functions.
Section 159( 8) of the Criminal Code deems obscene any publication a dominant
characteristic of which is the undue exploitation of sex, or the combination of
sex and crime, horror, cruelty or violence. The matter charged as obscene may
be written, printed, drawn, photographed, 22 filmed, modelled, or recorded. 28
The descriptive content of the material comprises representations of every aspect
of the physical side of human sexuality, whether regarded as normal or deviant.
It includes portrayals of men, women, adults and juveniles, engaged in every
imaginable form and combination of heterosexual and homosexual relations and
eml:iraces, oral-genital, genital-anal and masturbatory activities, fetishes,
necrophilia, incest, relations with animals, and sexual gratification in defecation
and urination. The presentation of these activities is often coupled with sado-
20 Miller, "Astological Fricassee", Remember to Remember: Essays and Stories ( 1952).

21 [1965] 2 W.L.R. 138. See also commentary in [1965] Crim. L. Rev. 112. The
decision in R. v. Lambert ( 1965) 46 C.R. 12 at 15 suggests that a similar interpreta-
tion of obscenity is possible in Canada.
22 Photographic negatives are included: Cox v. Stinton [1951] 2 All E.R. 637; q.
Straker v. D.P.P. [1963] 1 Q.B. 926. In England now see Obscene Publications Act
1964, s. 2.
23 Canadian Criminal Code, supra, n. 2, s. 159 (1 )(a), ( 2 )(a).
masochistic overtones, especially those derived from linking sex with flagellation
and torture. 24 The more graphic the representation, and the more taboo the
language in which the descriptions are couched, the more likely is the publica-
tion to be regarded as obscene.
Sexually explicit material can be communicated in all media forms. Well
publicized general release films produced by major studios have given increas-
ingly candid treabnent of sexual subjects, both in the activity clepicted and
in the degree of nudity shown on the screen. Full frontal nudity, simulated
acts of masturbation, fellatio, cunnilingus, sexual intercourse, and the entire
gamut of "dirty language" may be encountered. These ~ctivities may also be
accompanied by grarhically portrayed scenes of violence. Other films, often
lmown as "skin flicks , are shown in a more limited circuit of theatres. The film
titles, though advertised, are publicized less and are not as familiar to most
people as the general release films. The main feature of these films appears to
be nudity, sexual exploitation, and minimal story line. Recently, the larger
Canadian cities have seen the introduction of small theatres exhibiting silent
black & white or colour 8 mm. films of females stripping and parading themselves
in the fashion of a burlesque show. Some "adult" book stores also have a
collection, of juke-box like machines or "peep-shows" which, for $0.25, show
approximately 2-3 minutes of an erotic 8 mm. film. To view the entire reel, the
customer must spend between $1 and $2. Films in these "movie-parlours"
usually depict totally nude males or females exposing their genitals and may
depict both heterosexual and homosexual foreplay between couples depending
on the current level of police enforcement in the area. Some theatres offer
sexually oriented films to their audiences on television screens in order to avoid
the restrictions liable to be imposed under provincial film censorship laws.
The predominant media for sexual content is, of course, printed matter -
hard cover books, paperbacks, periodicals, and magazines. These include hard
cover best selling book club selections with a strong sexual theme, their paperback
versions, confession and scandal magazines and newspapers, glamour and pin-UJ?
feriodicals ( some of which contain sophisticated literary and political writing),
adult only"25 paperback books, nudist magazines, and other pictorial matter.
It is not possible to elaborate the innumerable variations in content and form of
this sexually oriented material. However, it appears to be a common feature of
the "adults only" paperback books that all restraints upon both language and
descri_ptionof sexual activity are eliminated. The books consist of a series of
sexual adventures linked by a minimal plot. "Four-letter" words describing
sexual acts, genitalia, excretion, etc. proliferate and the books tend to have a
major theme such as heterosexual intercourse, lesbianism, anal intercourse,
bestiality, sadism and masochism, or homosexuality. There is another category
of paperback books which purport to be serious histories or scientific studies of
sexual activity. Although these books are presented as having been written by
medical practitioners or research scientists, they consist primarily of detailed
descriptions of sexual performances and are sold alongside what purport to be
marriage manuals, and studies of censorship and pornography. These "adults
only" paperbacks retail in Canada at between $2 and $5. The price tag often is
superimposed over a United States price which is usually considerably less.
"Adults only" pictorial magazines contain photographs ( nowadays usually
in colour), of nude males, females or grou_psposed in a manner which emphasizes
their genitals, sometimes in clinical detail. In the industry, the latter are known
as "spreader" or "split beaver" magazines. They contain little text or enough to
represent the magazine as one advocating nudism. The magazines generally
2• See Kilpabick, The Smut Peddlars ch. 1 ( 1961).

25 So called because they usually bear an "Adult Only" label on the cover.
1974] OBSCENITY 177-
imply, but do not actually portray, sexual activity, and arousal of the male models
is seldom depicted. The magazines approximate 32 pages or more in length and
sell in Canada at about $5. They are usually sealed in clear plastic envelopes and
clearly marked "adults only". In some cases, genital nudity is visible on the front
or back cover, but ordinarily the magazine is packaged so as to cover these areas
of the model's body. There is a second-hand market in both the "adults only"
paperback books and pictorial magazines. In addition to the material described
above, most of which is available without difficulty in any of the larger Canadian
cities, there is a covert market in more explicit material. This is material which
is distributed in an apparent belief that it is unlawful, either because it has been
illegally imported or exceeds the boundaries of permissible explicitness tolerated
on the open market. At some stage during the last few years, most "adult only,,
paperback books, pictorial magazines, and erotic "classics" were sold in this
manner. There is no well-defined standard regarding that which may be sold
openly and that which must circulate covertly. Police enforcement ~ !ic~ces are
obviously a relevant factor. By and large, however, colour-moving · , photo- 1
sets, and pictorial magazines depicting vaginal, oral or anal penetration, masturba-
tion and sexual relations with animals ( or combinations thereof) are usually the
subject of "under the counter" distribution. Covert distribution may take place
either through established retail outlets for books or in other settings such as
bars or pool-rooms, and by mail-order or private illegal importation from U.S.A.
or Europe.
One of the difficulties with the epithet "obscene" is that for some it encom-
passes popular erotica such as the glamour or pin-up magazine, while for others
it is confined to written or photographed portrayals of bizarre sexual or scatolog-
ical behaviour. Attempts have been made to identify and categorize different
classes of material subsumed under the head "obscenity". Some focus on format,
others on content. Commissioners Hill, Link and Keating, in their minority
addition to the Report of the Commission on Obscenity and Pornography, 26
emphasized the former when they identified the following categories of publica-
tion as deserving of special review by prosecuting officials:27
1. The Stag Film; 2. The Sexploitation Film; 3. The Commercial Unrated Film;
4. Advertisements for X and Unrated Films; 5. Underground Sex Publications; 6. Under-
ground Newspapers; 7. Mimeographed Underground Newspapers; 8. Sensational Tabloids;
9. Homosexual Magazines; 10. Sex Violence Magazines; 11. "Spreader .. or "Tunnel"
Magazinesi. !2, Teenage Sex Magazines; 13. Pseudo-Scientific Sex Publications; 14. So-
called Nuaist Magazines; 15. Lyrics on Commercially Distributed Rocle Records; 16. Sex-
action Photographs; 17. Sex-action Records; 18. Sex-action Slides and Tapes; 19. Mail
Order Advertisements for the above; 20. Paperbaclcs with themes of: homosexuality,,
sado-masochism, incest, bestiality; 21. Hard Cover Books devoted to homosexuality.
sado-masochism, incest.
Such classifications, however, do not identify sexual material in sufficiently
distinct forms to warrant their use as a basis for differentiating licit from illicit
publications.
Courts and writers have sometimes attempted to set the boundary of
acceptance at "poronography".28 Of all the pejorative epithets applied to sexual
writings, the term "pornography" implies the severest condemnation. It has been
asserted that publications condemned as pornographic may all be shown to
exhibit definite similarities in structure and content which are sufficient to
distinguish them from other types of obscene writing. Gebhard and his colleagues,
26 Report of the Commission on Obscenity and Pornography 456 ( Bantam Books ed.,
1970).
21 Id. at 503.
2sE.g., R. v. Adams [1966] 4 C.C.C. 42 at 75-76 (N.S.Co.Ct.); R. v. Georgia Straight
Publishing Ltd. & McLeod ( 1970) 5 C.C.C. 31 at 41 ( B.C.Co.Ct.) but cf. R. v.
Dominion News & Gifts Ltd. [1963] 2 C.C.C. 103 at 121 (Man.C.A.).
iii the~ ~ey Institute ~tudy of sex offenders, 20 defined erotica as covering all
graphic, liter~ and auditory materials that induce, at least occasionally, some
degree of cons~1~ussexual response ~ mos~ adults, but they identified pornog-
raphy as a specific sub-class of matenals deliberately designed to produce strong
sexual arousal rather than titillation and which usually achieves its primary goal.80
While indulgence in pornography has been called a form of psychic mas-
turbation, 81 it is more likely that the most frequent use made of such material is
to provide erotic fantasy for actual physical masturbation. Indeed the hallmark
of pornography might be taken to be its success in stimulating the viewer or
reader ( usually male) to orgasm. Anthropologist Margaret Mead sees por-
no~aphf as "words or acts or representations that are calculated to stimulate sex
feelings mdependent of the presence of another loved and chosen human being".82
Accorcling to her, an essential element in pornography is that it has the character
of the day-dream as distinct from reality: 33
True, the adolescent may take a description of a real event and turn it into a day-dream.
f
The vendor of omography may represent a medical book as £ull of day-dream materialt
but the materia of true pomography is compounded of day-dreams themselves, composea
without regard for any given reader or looker, to stimulate and titillate. It bears the
signa.ture of non-participation . . • pornography does not lead to laughter.; it leads to
deadly serious pursuit of sexual satisfaction divorced from personality ana from every
other meaning. • • •
On a more pragmatic level, Eliasberg sought to provide objective criteria for
pornography in the form of a table of clinical factors. The presence of "several"
of these factors would allow the diagnosis of pornography, viz: 84
( 1) Asexualsexuality ( the sexuality is and indefinite as to the sex of addressee and
sender).
2 Emphasis on the erogenic zones of the body.
3 Monotony and infanfilism in the emotions.
4 Emphasis on parts rather than the whole.
5 Stereo-typed repetition.
6 Adjectives and attributes without substance.
7 Sequence of cruelties and suffering ( physical and moral).
8 Absence of true narrative (plot), let alone dramatic progress.
9 Absence of contact between the personalities of the onlooker, reader, or listener on
the one hand., and the writer, artist, composer on the other; often artistic worthless-
ness as statea by art criticism.
The generality of these particular criteria and each of the preceeding definitions
of ~ornography render them all but useless as an aid in the formulation of legal
policy.
In a widely publicized book, Pornography and the Law, H two American
psycholo~ts, Drs. Eberhard and Phyllis Kronhausen, claim to have discerned a
number of criteria by which pornography can be distinguished from erotica
realism and other forms of erotica considered to be obscene. They state that the
primary purpose of pornographic books is to stimulate erotic responses in the
reader, rather than to describe truthfully the basic realities of life, and that the
predominant feature in the organization of such books is the progressive develop-
ment of erotic tension during the course of the story. On their analysis, por-
29 Gebhart, Cagnon, Pomeroy & Christenson, Sex Offenders: An Analysis of Types
(1965).
80 Id. at 669. Or, to put it in crude terms: Pomog111phy is ..any passage of text, or any
picture, that gives seven of twelve good men and true an erection •.• "; quoted by
Hawkins, The Problem of Pornography, ( 1966) 5 Syd. L. Rev. 221 at 222.
8 1 Karpman, The Se%Ul1l Offender and his Offenses 360 ( 1954).
a2 Mead, ..Sex and Censorship in Contemporary Society", New World Writing 18 ( 1953).
88 Id. at 19, 23.
H Eliasberg, Psuchlatric Viewpoint on Indecency, Obscenity and Pornography in Lit-
erature and the Arts. ( 1962) 16 American Journal of Psychotherapy 477.
815Kronhausen & Kronhausen, Pornography and t'he Law ( revised ed., 1964).
1974] OBSCENITY 119
nographic books commence with a relatively mild low-keyed sexual encounter

and proceed with a flimsy tale whose only function is to serve as a vehicle for
tying together a succession of sexual incidents. These increase in frequency,
complexity and erotic intensity as the story unravels until, ultimately, the work
reaches a climatic end in a concentration of orgiastic scenes. The sexual incidents
are always described in a direct and obtrusive manner. The plot is rarely
hampered with more than a minimum of distracting non-erotic content. Neither
philosophical discourse, characterization, nor scene setting is allowed to interfere,
unduly, with the aphrodisiac stimulus.
According to the Kronhausens, the content of pornographic writing which
sets it apart from other erotic works is the elaborate and exaggerated description
of seduction, defloration, incest, permissive-seductive parent figures, profaning
the sacred, super-sexed males, nymphomaniac females, negroes and Asians as sex
symbols, homosexuality, flagellation and torture. The writing rarely pretends to
be a contribution to science, literature or aesthetics and, because popular literature
has rendered respectable clinical descriptions of heterosexual foreplay and coitus,
all that is left for pornogra)?hers are descriptions of the activities of various sets
of genitals, "dirty language and a series of sexual taboos to be exploited. Since
there is a limit to the range and variety of sexual activity of which humans are
ca_pable, the pornographers' writing is necessarily repetitious, using the same
taboo expressions of speech and calling up the same sexual images. If it were
not for its aphrodisiac effect, pornography would be dismissed as tediously
boring. 86
The Kronhausens distinguish pornography from erotic realism which they
claim does not possess the characteristics of pornow-aphy but which, nevertheless,
is considered to be obscen~. If pornography is 'sex out of all contexts except
that of sensational enjoyment"87 then erotic realism is sex in the context of
reality. They argue that the dominant characteristic of erotic realism is that it
presents a truthful description of man's sexual behaviour. 38 And, if an author
writes realistically on the subject of sex, it is not inappropriate for the reader to
respond erotically to the writing, in the same way as he may laugh at humorous
passages. Realistic writing about sex need not always stimulate erotic responses;
it may often have decidedly anti-erotic effects, but both the erotic or anti-erotic
reaction are incidental to the author's primary aim-that of depicting life as it is,
including the sexual side of man's personality. This is in direct contrast to
pornography, in which reality is distorted in order to promote erotic responses.
Underlying the differentiation of erotic realism as a special class of writing
is the argument that the expression of frank sexuality is entitled to a proportional
share in any attempt of graphic representation of the reality of human existence,
irrespective of the technique or medium used. The Kronhausens extend this
argtll!lent further, by contending that erotic realism reflects a basically healthy
ana therapeutic attitude towards life in that it emphasizes man's corporeality and
36 United States Commission on Obscenity and Pornography, Washington ( 1970) at

214-218 for discussion of satiation effects. See also discussion infra under heading
The Harm Feared - Sexual Arousal.
s1 Soper, Does Pomography Matter?, supra, n. 4 at 42.
88 Into the category of erotic realism the Kronhausens place the Kama Sutra and the
Perfumed Garden, Mark Twain's bawdy essay 1601, the unexpurgated version of the
Diary of Samuel Pepys, the Memoires of Casanova, My Secret Life ( the 11 volume
record of the sexual exploits of an anonymous Englishman who lived in London
during the Victorian era), My Life and Loves by Frank Harris, Nabokov's Lolita, the
Works of Henry Miller, D. H. Lawrence's Lady Chatterley's Lover and, with some
reservations, John Cleland's Fanny Hill: Pomography and the Law, supra, n. 35 at
303-324.
contributes towards familiarity with one's body and an acceptance of its natural
function, both of which they regard as necessary prerequisites of mental health .
.On cl?ser analysis, the Kro~ause~'s ~tinction between pornography and
erotic realism breaks down.39 Frrstly, 1t fails because books which attempt to
represent the reality of human sexual relationships can often lay claim to literary
artistic or scientific merit and this renders them more tolerable than those which
cannot be justified on these grounds. It is the aesthetic or scientific justification
rather than any significant differences in aim, structure or content that dis-
tinguishes that which is tolerable ( erotic realism) from that which is not
(pornography). Secondly, it does not assist in segregating into pornographic and
non-porno?aphic categories, material which, although designed primarily to
stimulate auto-erotic reverie'',40 fails to deviate significantly from the reality of
sexual relations. The bulk of this material is non-literary erotica, especially filmed
or photographed scenes of heterosexual and homosexual intercourse, oral stimula-
tion of genitals and bestiality. Because they are portrayals of reality, they can
hardly oe excluded from the category of erotic realism, yet the current practice
is to regard them as hard-core pornography.
Another possible wa}' of distinguishing censorable obscenity from non-
censorable erotica is to identify those specific parts of the human body, the
exhibition of which is obscene. Pictorial representations of nude human figtires
not engaged in any sexual activity pose the typical problem. When, if ever, does
a photograph of a nude human body, or its parts, become obscene? It seems that
the courts do not consider that nakedness itself is obscene unless pubic areas
or genitalia are clearly revealed. 41 Yet there is common acceptance of genital
nudity in children and a high degree of nudity in an attractive female is the
essence of the ].)in-up girl. The courts have rarely attempted to formulate the
criteria which clistinguishes acceptable from non-acceptable genital exposure
and, on the odd occasion when such an attempt has been made, the tribunal has
been forced to adopt quite arbitrary designations of obscenity. Thus, in the
United States case of Sunshine Book Company v. Summerfield, 42 the presiding
judge, in considering whether a nudist magazine was obscene, proposed the
following rules for the assistance of postal authorities: 43
Posterior views of nudes of either sex and of any age are not obscene.
Side views of nudes are not obscene if they do not reveal the genitalia or pubic areas.
Front views of nude adults if photographed at sufficient distance are not obscene nor
are they obscene if the pubic area is concealed or obliterated by retouching or
shadowing the photograph.
Front views of nude children below the age of seven years which show diminutive and
underdeveloped genitalia are not obscene.
Front views of nude children between the ages of seven and fourteen years may or may
not be obscene depending on an assessment of each individual photograph.
Close range views of the pubic areas of adults are obscene.
At one stage it was common for police forces and courts to adopt the rather
crude but expedient approach of treating as obscene any portrayal of nudity in
so See criticism in Hawkins, supra, n. 30 at 224-226; Katz, Free Discussion v. Final
Decision: Moral and Artistic Controversy and the Topic of Cancer Trials, ( 1969)
79 Yale L.J. 209 at 222, n. 43; and Clor, Obscenity and Public Morality ( 1969). It
has been reported that the head of Citizens for Decent Literature has condemned
the book as undercover pornography. Rogers., Police Control of Obscene Literature,
( 1966) 57 Joumal of Criminal Law, Criminology and Police Science 430 at 460.
40 Larrabee, The Cultural Context of Sex Censorship, ( 1955) 20 Law and Contemporary
Problems 672 at 684.
41 M'Gowan v. Langmuir, supra, n. 2 at 14; R. v. Great West News Ltd. Mantell &
Mitchell [1970] 4 C.C.C. 307 (Man.C.A.). Cf. Conway v. R (1943) 81 C.C.C. 189
(Que.K.B.) and R. v. Stroll (1951) 100 C.C.C. 171 (Mont.Sess.Ct.).
42 (1955) 128 F. Supp. 564. The photographs which the court held to be obscene in
this case are reproduced in Gerber, Sex, Pornography and Justice 143-147 ( 1965).
43 ( 1955) 128 F. Supp. 564 at 570.
1974] OBSCENITY 181
which pubic hairs were shown, irrespective of the subject's ~12ose."But this is,
now, neither the practice nor the rule. 45 And attempts to specity in legislation the
precise areas of the human body which are obscene begin themselves to have
somewhat of an aura of indecency viz: 46
The following material is 'obscene for minors' ..•
Any picture or other representation which depicts one or more 'specified anatomical
areas' ...
'Specified anatomical areas' means:
( i) less than completely and opaquely covered; (a) human genitals, ( b) pubic regio~
( c) buttocks and ( d) female breast below a point immediately above the top of
the areola; and
(ii) human male genitals in a discemably turgid state even if completely and opaquely
covered.
Because the distinction between obscenity and acceptable titillation in
nudity is so subjective, it is not possible to obtain a precise description of what is
considered obscene in the naked human being. The situation arises out of the
community,s own ambivalent attitude towards genital nudity and in the paradox
that, in its very insistence that sexual organs and activities be hidden, the
community manifests its intense interest in them.
III. INHERENT OR CIRCUMSTANTIAL OBSCENITY?
In my opinion, the use to which various materials are put - not just the words and
pictures themselves - must be considered in determining whether or not the materials
are obscene. A technical or legal treatise on pornography may well be inoffensive under
most circumstances but, at the same time, 'obscene' in the extreme when sold or displayed
to children. 47
The attempt to identify and set apart pornography as a distinct category of
interdicted erotica, draws attention to the fact that there are two major conceptions
of the nature of obscene material. I£ the law maker thinks of obscenity as an
intrinsic quality of certain subject matter which is always to be considered
obscene irrespective of the context in which it appears, or the audience to whom
it is directed, the implications for legislation will be entirely different from
those which follow if obscenity is regaraed as a variable quality whose existence
depends upon the circumstances of dissemination.
It is in the proposition that material which suffers execration as the worst in
obscenity exists, in pornography, as a distinct type of writing with a recognizable
structure and content, that the most forceful argument for inherent obscenity is
to be found. The stronger the feelings of disgust, anger, indignation and
arousal/revulsion generated by a publication, the more difficult it becomes to
conceive of a situation in which the work is not properly labelled obscene. This
is the basis of the concef t of inherent obscenity and from it flows the contention
that within the genera community, some matters are considered obscene in
whatever context they appear. For instance, the words "fuck" and "cunt" are
popularly regarded as obscene no matter where they are found and these words
do not lose their character as obscenities merely because of the circumstances of
their publication or the audience to whom they are addressed. In R. v. K & H, 48
counsel for the defence, in a Canadian case involving a charge of gross indecency,
argued that acts such as urination were not indecent per se but took their
H Minutes of Evidence Before the Select Committee on the Obscene Publication Bill
59-60, 73 ( 1958); Fox, The Concept of Obscenity 29 ( 1967).
45 See English magistrate courts decisions referred to in Arts Council of Great Britain,
supra, n. 1 at 88.
46 Commission on Obscenity and Pornography, supra, n. 36, Minority Report by
Commissioners Hill, Link, and Keating, Appendix I at 576.
,1 Jacobellis v. Ohio (1964) 378 U.S. 184 at 201 (U.S.S.C.) per Chief Justice Warren.
4 8 ( 1957) 118 C.C.C. 317 at 319 ( Alta.S.C.).
character from the surrounding circumstances e.g., whether the act could be
observed by passers-by. The trial judge responded by saying: 49
The weakness of [t]his argument and of this illustration, in my view lies in the fact
that the act of urination is not in itself indecent at all. Here the act does' become indecent
because of the time, place or circumstances of its performance, but when we come to an
~ct whi~ is inherently indeC?nt, the circumstances surrounding its performance are
unma~erial.... I calll!-ot believe that buggery, or acts akin thereto, can ever be
anythmg but grossly mdecent, whatever the circumstances under which they are
performed.
On the other hand, a magistrate, in the same jurisdiction, had only a few months
earlier held that an act of fellatio between a sixteen year old girl and her fiance
in a station-wagon in a park at night was not indecent having regard to the
circumstances in which it was performed. 150 In the absence of empirical study,
it is not possible, however, to indicate the precise range of subject matter that is
generally regarded as obscene in all circumstances. Vague general labels such as
"pornography" do not provide the answer, nor would such information, if avail-
able, resolve the question whether individuals should be free to obtain such
material for their own personal gratification.
If obscenity is not regarded as an invariable characteristic of certain words
or representations but is recognized as a label whose attachment depends upon
the circumstances of dissemination, it follows that the same publication may be
regarded as obscene in the hands of one group of persons and innocuous in the
hands of another. The judicial determination that a publication is obscene would
thus depend upon a finding that the material would have an adverse affect upon
a susce_ptibleaudience and that it was, or was likely to be, disseminated to such
an audience. Under the common law Hicklin formula, this principle found
expression in the proposition that a publication was obscene if it tended to
deprave and corrupt "those whose minds are open to such immoral influences and
into whose hands a publication of this sort may fa1!'51 ( emphasis added).
Similarly, some forms of Commonwealth anti-obscenity legislation oblige the
courts to have regard to the impact of the publication on the "persons, classes of
persons, and age-~oups to or among whom, it was, or was intended, or was likely
to be published, distributed, sold, exhibited. . . . "r.2 etc. Canadian legislation
has no such provision though reference to the audience may take place in con-
sidering whether the public good was served under s.159(3) or whether the
work was one whose dominant characteristic was undue exploitation under
s.159(8).
Under the concept of circumstantial obscenity, the most explicit material
will not be legally accounted obscene when distributed to a proper audience.
49 Id. at 318-319.
150 R. v. /. (1957) 118 C.C.C. 30 (Alta.C.A.). See also R. v. P. [1968] 3 C.C.C. 129
(Man.C.A.) and R .v. Munster (1960) 129 C.C.C. 277 at 280-281 (N.S.S.C.). But
cf. R. v. Goldberg & Reitman [1971] 3 O.R. 323 ( Ont.C.A.) where an allegedly
obscene film was shown only to the University community. Held, it was no answer
to argue film not obscene in hands of University viewers - community standards
test under s. 159 ( 8) requires consideration of National community standards of
tolerance.
151 R. v. Hicklin, supra, n. 12 at 371.
152 E.g., New South Wales: Obscene and Indecent Publications Act, 1901-1955, s. 3(3);
Victoria: Police Offences Act, 1958, s. 164( 2). However, the Australian legislation is
defective in that it proceeds to require the courts to consider the impact of the
publication on the most susceptible of these classes or groups. Under the English
Obscene Publications Act 1959, 7 & 8 Eliz. 2, c. 66, s. 1, an article is deemed to be
obscene if it tends to "deprave and corrupt persons who are likely, having regard to
all relevant circumstances, to read, see, or hear the matter contained or embodied
in it". Following the decision in Clayton v. Halsey_ the Act was amended so as to
allow a wider potential audience to be considered: see Obscene Publications Act
1964, c. 74, s. 1(3) (b).
1974] OBSCENITY 183
The nature of the marketing does not change the content of the material but
modifies its impact and, theoretically, by limlting the risk of harm sought to be
avoided by the law, shields it from being legally declared obscene. The concept
of circumstantial obscenity requires that particular attention be paid to identifying
the audience. Only in cases of wide, indiscriminate, dissemination would it be
appropriate to use the general community as a standard against which to test the
impact of the publication.
The concept of obscenity as circumstantial in nature is perhaps best demon-
strated in the American case of the U.S. v. 31 Photographs 58 in which proceedings
were brought for the forfeiture and destruction of certain photographs, books
and other articles which the Kinsey Institute for sex research at Indiana Univer-
sity sought to import into the United States. The relevant statute prohibited the
importation of obscene matter and did not exempt scientific institutions from the
prohibition. There was no dispute that the photographs and articles were of a
pornographic nature, but counsel for the Institute contended that as the por-
no~aphy would not be accessible to the general public, but was only to be used
by bona fide research workers furthering the Institute's study of human sexual
behaviour, there was no reasonable probability that it would be disseminated to
a susceptible audience. The court accepted this argument and held that, in the
possession of the Kinsey Institute, the pornography was not obscene even though
it acknowledged that it would have held the same material obscene had an
ordinary citizen attempted to import it. In coming to this decision, the court
expressly rejected the Government contention that matter existed which was
legally "obscene per se'' and held that it was not possible for material to be
legally accounted obscene without reference to any beholder. 54
The English Court of Criminal Appeal has come to a similar conclusion. In
R. v. Clayton and Halsey/ 5 a book shop owner and his assistant were convicted
of publishing obscene articles in contravention of the Obscene Publications Act
( 1959). The articles consisted of a packet of photographs which were bought
from the defendants' bookshop by two experienced police officers whose function
it was to make such test purchases. Both officers agreed in evidence that they
examined many thousands of similar photographs in the course of their work and
that the photographs did not arouse any feelings in them whatsoever. It was
argued for the bookseller that the test of obscenity in the Act had not been
satisfied since the photographs did not tend to deprave and corrupt the persons
who were likely, in all circumstances, to see them. Not only had the police
officers acknowledged that they had not been depraved or corrupted by the
photographs, but by the very nature of their employment, they were not sus-
ceptible to the depraving and corrupting influence of such articles. Counsel for
the Crown argued that the photographs were so inherently obscene as to tend to
deprave or corrupt anyone to whom they were published whatever his occupation
and whatever his evidence as to their effects on him. This argument was rejected
and, in delivering judgment quashing the convictions, Lord Parker stated: 11G
This court cannot accept the contention that a photograph may be inherently so
obscene that even an experienced or scientific viewer must be susceptible to some
corruption from its influence. The degree of inherent obscenity is, of course, very
relevant, but it must be related to the susceptibility of the viewer.
Acceptance of this principle leads to the conclusion that a person selling
allegedly obscene material should be permitted to answer that the publication in
question did not affect the consumer in any way that is the concern of the
58 (1957) 156 F. Supp. 350.

54 Id. at 358.
5s [1962] 3 W.L.R. 815.
so Id. at 818.
criminal law. What effects are the concern of the criminal law will be discussed
in the next section, but it should be noted at this point that under Canadian
legislation, no specific provision exists to compel consideration of the impact of
the publication on the specific audience to whom it was disseminated, or into
whose hands it was reasonably likely to fall. In prosecutions under s.159 of the
Code, forfeiture procedures under s.160 or prohibitions on importation under the
Customs Tariff Act, the court or government official takes the potential audi-
ence the Canadian community at large.
It is suggested that the better view is to aclmowledge that obscenity is
never an intrinsic quality of written or pictorial material but that a
chameleonic quality whose presence or absence in a publication must always
legally be determined only after consideration of the time, place, and circum-
stances of dissemination and the impact upon the exact audience to whom it is
directed. This means that a book may be held obscene in one part of Canada
and not obscene in another. Indeed the same work may be the basis of a con-
viction in one case and an acquittal in another in the same city on the same day
because, even though content of the publication has remained constant, the use
to which it has been put has varied. The same concept can be seen in operation
in relation to the determination of what are housebreaking instruments under
s.309( I) of the Code. A screwdriver is not, inherently, a housebreaking instru-
ment but the use to which it is to be put may bring it within the Code prohibition.
So it is with obscenity; as Chief Justice Warren of the United States Supreme
Court has observed: 57
It is not the book that is on trial; it is a person. The conduct of the defendant is the
central issue, not the obscenity of a book or picture. The nature of the material is, of
course, relevant as an attribute of the defendant's conduct, but the materials are thus
placed in context from which they draw colour and character.
IV. THE HARM FEARED
It is obvious that an individual may by unrestricted indulgence in vice so weaken himself
that he ceases to be a useful member of society. It is obvious also that if a sufficient
number of individuals so weaken themselves, society will thereby be weakened. 58
Obscene material is feared for many reasons; because it gives rise to sexual
arousal or overt misbehaviour, because it lowers moral standards or involves
commercial exploitation of sexual curiosity, or simply because it is offensive to
viewers or readers. At common law, the raison cletre of the law of obscenity was
the avoidance of "depravity and corruption,,. In Canada, the harm feared is
"undue exploitation». These phrases have been used as though the dangers to
the social order which they purport to describe were seH-evident, however, they
are not, and what follows is an attempt to separate out and examine the various
justifications offered for the legislative prohibitions on obscenity.
1. Sexual Arousal
In Hicklins case, which set out the common law definition of obscenity, the
harm that the court feared would flow from the sale of the publication in question
was that: 59
. . . it would suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of a most impure and libidinous character.
The proposition discussed in this section is that the harmful effect of obscenicy
is to be found in the stimulation of sexual thoughts and arousal, independent of
any risk that such erotic thoughts or state of arousal would provoke a reader into
57 Roth v. U.S., supra. n. 3 at 495.
58 Devlin, The Enforcement of Morals 111 ( 1965).
59 R. v. Hicklin, supra, n. 12 at 37. The old indictment for the common law offence
of publishing an obscene libel averred that the accused had published the obscene
material to the King's_subjects with intent to " ... raise and create in their minds
inordinate and lustful desires," Archbold, Criminal Pleading 553 ( 11th ed.). See
also R. v. American News Co. Ltd. (1957) 118 C.C.C. 152 at 157 ( Ont.C.A.).
1974] OBSCENITY 185
overt behaviour. 60 Studies conducted for the United States Commission on

Obscenity and Pornography have indicated, not surprisingly, that sexually explicit
material can and does cause sexual arousal or stimulation in adults. 61 The research
also casts doubt upon the common belief that women are considerably less
aroused by such erotic stimuli than are men62 and it has been hypothesised that
the supposed lack of female response is due to the social and cultural inhibitions
against reporting such arousal and to the fact that erotic material is generally
oriented towards a male audience.
The belief that libidinous thoughts are harmful in themselves has its roots in
Christian teaching that lustful thoughts are as great a threat to salvation as are
lustful deeds: 63
Ye have heard that it was said by them of old time, Thou shalt not commit adultery:
But I say unto you, That whosoever looketh on a woman to lust after her hath committed
adultery with her already in his heart.
There are many variations on this theme, for instance, a Catholic theologian has
referred to "mental unchastity" as the harm to be avoided.04 Such sentiments are
expressions of concern for the dig!}ity of man by individuals who feel that human
sexual instincts should not be deliberately aroused purely for pleasure. 65 In
similar terms, the brief for the United States in the Supreme Court case of
Roth v. U.S.60 identified "pleasure in sexual gratification, whatever the means»
as the only objective of hard core pornography, and admonished that "the social
value of such notions is, of course, nil».67
The justification offered by the draughtsmen of the American Law Institute' s
Model Penal Code represents an alternative formulation of concern for the
readers mental processes:68
Literaiy or graphic material which disregards the social convention evokes 'repression-
tension , i.e. mixed feelings of desire and pleasure on the one hand, and dirtiness, ugliness,
revulsion on the other . . . Society may legitimately seek to deter the deliberate
stimulation and exploitation of emotional tensions arising from the conflict between
social convention and the individual's sex drive.
It is difficult to see how exploitation of the tensions stimulated by curiosity and
desire ( tensions which are conceded to be normal) can be a justification for
suppressing writing. While it may be entirely appropriate for a religion to
discourage its adherents from material which is likely to turn their minds from
spiritual to carnal thoughts; it is questionable whether in the absence of addi-
tional utilitarian justification, such aspirations to propriety and holiness should
be supported by penal legislation.
Another variation is found in the proposition that obscenity is harmful
because, in promoting preoccupation with sexual thoughts, it diverts the reader
from more worthwhile and creative roles in the community. C. H. Rolph writes: 69
60 Arts Council of Great Britain, supra, n. 1 at 27-28.
61 Report of the Commission on Obscenity and Pornography, supra, n. 26 at 198-233·
Mosher, Females' Affective Responses to Reading Erotic Literaturefo( 1969) 33 Jo~
of Consulting and Clinical Psychology 472; Zuckerman, Physio gical Measures of
Sexual Arousal in the Human, (1971) 75 Psychological Bulletin 297.
62 Commission on Obscenity and Pornography, supra, n. 36.
11sMatthew 5:27-28.
64 Rutledge, Does Pornography Matter?, supra, n. 4 at 87.
65 Gardiner, Moral Principles Towards a Definition of the Obscene, ( 1955) 20 Law and
Contemporary Problems 560 at 564-565; Amen~ The Church v. Obscene Literature,
( 1965) 11 Catholic Lawyer 21; Segal, Censorsnip, Social Control and Socialization,
( 1970) 21 British Journal of Sociology 53.
66 Supra, n. 3.
6 7 Lockhart and McClure, Obscenity Censorship: the Core Constitutional Issue - What
is Obscene? (1961) 7 Utah L. Rev. 289 at 296-297.
6 8 American Law Institute, Model Penal Code (Tentative Draft No. 6) at 30.
69 Does Pornography Matter?, supra, n. 4 at 103.
A preoccupation with pornography, by isolating sensitive and intelligent men from

those not so /reoccupied, devalues many a personality and, in effect, robs society of
many a gifte member.
Abse argues that the deleterious influence of pornography lies in the fact that it
"encourages people to luxuriate in morbid, regressive, sexual-sadistic fantasy and
cultivates this morbidity in them, tending to arrest their development".70 But
this is really a disguised form of the complaint that pornography's primary use is
as a means of facilitating fantasy for solitary masturbation. The sociologist,
Geoffrey Gorer, has observed: 71
It seems probable that the real ( though unexpressed) fear of the legislators is that
pornography will be used as a substitute for action rather than as an incitement to actio~
that the readers will find sufficient stimulation in the 'impure and lustful' thoughts and
images evoked by pornography for complete gratification. In other words, it is feared
that the consumers will find so much satisfaction from masturbation that they will fail
in their heterosexual duties.
Studies undertaken for the Commission on Obscenity indicated that exposure
to sex stimuli increased the frequency of masturbation only among minorities of
various populations and that the increased frequencies of masturbation appeared
to disappear within 48 hours after exposure to erotica.72 Moreover, the researchers
verified what had been long suspected, namely, that extensive exposure to
sexually explicit material led to a satiation effect and a diminished desire for
further viewing even though the material was freely available.73
In a world which is threatened by the immediacy of a population explosion,
it is questionable that diversion from mastw'bation is a sufficient justification for
the law to interfere. Moreover, even if sexual arousal through stimuli such as
books and pictures were to be considered a socially undesirable result, there
appears to be little evidence that obscenity laws can actually aid in diminishing
arousing stimuli. We live in a society whose members tolerate, if they do not
actively encourage, a great deal of eroticism in dress, art, literature, entertainment
and advertising. Sexual thoughts and states of sexual arousal in human beings
are inevitable; they are evoked by a myriad of stimuli which are often far
removed from that which is ordinarily regarded as erotic. Insofar as sexual
thoughts, arousal, or masturbation interferes with the salvation of an individuars
soul, or his personal adjustment, control may be important from a theological or
psychiatric point of view. But alone, they constitute such an insignificant danger
to the social order that it seems appropriate they be treated as the exclusive
domain of the person concerned.
2. Overt Misbehavior
The primary utilitarian justification for the censorship of obscenity is the
avoidance of overt misbehavior. This is based upon a tacit assumption that
sexual thoughts evoked by obscene matter are somehow translated into actions
which have undesirable consequences. There are two forms to the argument
that obscenity provokes overt misbehavior in the reader or viewer. One regards
the susceptible audience as consisting of the average person exposed to the
obscenity, while the other emphasizes the effect of explicit sexual materials on
adolescents and juveniles. In either case, it is usually assumed that the misconduct
provoked will be of a sexual nature. This assumption involves the two subsiduary
propositions: (a) that graphic representations of sexual behavior will lead to
70 Abse, Psychodynamic Aspects of the Problem of Definition of Obscenit11, ( 1955)
20 Law and Contemporary Problems 572 at 586.
71 Gorer, supra, n. 4 at 38. Polsky, Hustlers, Beats and Others 189 ( 1967), writing on
the sociology of pornography, gives the classic description of pornographic boolcs as
"the books that one reads with one hand".
72 Commission on Obscenity and Pornography, supm, n. 36 at 221-222.
73 Id. at 214-218; Reilfer, Howard, Lipton, Liptzin and Widmann, Pornography: An
Experimental Study of Effects, ( 1971) 128 American Journal of Psychiatry 575.
1974] OBSCENITY 187
sexual arousal, and ( b) that the sexual arousal will be expressed in conduct
similar to that depicted in the particular representation involved. The first
proposition finds strong support in clinical experience and empirical studies, but
even so, it is subject to important qualifications. Cairns, Paul and Wishner, in
their analysis of empirical investigations into the effect of psychosexual stimuli7•
warn that although a significant proportion of persons in the community ( both
adults and adolescents) are sexually aroused by some form of erotic stimulus in
pi~~es or books, the same stimulus might have quite opposite effects on
different individuals and even on the same individual at a different time. They
are at particular pains to point out that: n
. • . males differ among each other in terms of preference for and response to various
types of sex stimuli. . . . The environmental circumstances under which the sex stimuli
are viewed may influence the extent to which the viewers will show evidence of sexual
arousal. . . . Exposure to certain types of sex stimuli is, for some persons both males
and females, a distinctly aversive experience. Sexual guilt appears to be an important
determinant of the extent to which viewing sexually relevant material will be considered
an unpleasant event.
The second proposition - that the reader or viewer will exhibit overt sexual
behaviour similar to that depicted in the stimulating material - appears not to
be established. According to a 1970 interview survey with a random sample of
2486 adults conducted under the auspices of the U.S. Obscenity Commission, 49%
of the respondents indicated that they believed that sexual materials led people
to commit rape. 76 Most of the evidence, however, turns out to be bare con-
jecture based upon intuition or generalizations broadly derived from sensational
single instances. 77 Moreover, in cases where judges, police officers, prison guards
or psychiatrists are heard to comment on an apparent relationship between
obscenity and sexual offences, it is found that their opinion is often based on no
more than an observation that those who are lmown to be socially maladjusted
are interested in reading "sexy»material. Whether they are more or less interested
in this material than citizens who make up the rest of the community is not
considered and no attempt to unravel cause and effect is made. Coincidental
possession does not establish a causal relationship.
A study conducted by research workers at the Kinsey Institute for Sex
Research at Indiana University on sex offenders 78 compared different types of
sex offenders with each other, with men imprisoned for other offences, and with
men never convicted of offences more serious than traffic violators. The study
used a sample of 2721 men of whom 1356 were sex offenders. The most striking
feature of the study was the small number of individuals who had never seen
pornography - only 14 out of the total sample of 2721 - an indication that
exposure to pornography is prevalent in at least some social classes. The belief
that graphic representations of sexual activity strongly stimulates sexual arousal
and promotes sexual activity was somewhat undermined by the researchers'
H Cairns, Paul and Wishner, Sex Censorship: The Assumptions of Anti-Obscenity Laws
and the Empirical Eoidence, (1962) 46 Minn. L. R. 1009; Cairns, P~chological
Assumptions in Sex Censorship: An Evaluative Review of Recent (1961-68) Research,
Working Papers of the National Commission on Reform of Federal Criminal Laws
2 226 (1970).
10 Cairns, Paul and Wishner, supra, n. 74 at 1032.
,a Commission on Obscenity and Pornography, supra, n. 36.
11 See Wertham, Seduction of the Innocent { 1955). In 1957, J. Edgar Hoover, late
Director of the United States Federal Bureau of Investigation, wrote: " ... an over-
whelmingly large number of sex crimes is associated with pornography. We know that
sex crimfua1sread it, are clearly influenced by it • • . Pornography is a major cause
of sex violence", quoted in MU!{)hy,Censorship: Government and Obscenity 137
1963). See also Hoover, Coml,ating Merchants of Filth: The Role of the FBI,
,s
l
1964) 25 U. Pitt. L. Rev. 469; Kyle-Keith, The High Price of Pornography, c. 4
1961); Clor, supra, n. 39 at 136-146.
Gebhard, Gagnon, Pomeroy and Christenson, supra, n. 29.
finding that a large proportion of both sex offenders and control gi:oups reported
little or no sexual arousal from pornography. The responsiveness of sex offenders
to pornography appeared to be less than the other groups. The researchers
hypothesized that better educated and younger persons were more likely to be
aroused by pornography because they had a tendency to be more imaginative
and emphatic and this enhanced their sensitivity to psychological stimuli. Since
the majority of sex offenders were neither well-educated nor particularly youthful,
it was thought possible to e~lain their relative unresponsiveness in these terms.79
The conclusion was reached that pornography was not a consequential factor in
the offenders' sex offences.
A series of studies by Thorne and his colleagues80 provided direct support
for the findings of the Institute for Sex Research investigators. Comparing sex
offenders against females with men convicted of property crimes, the investigators
concluded that sex offenders tended to report less stimulation from pornography
and to hold more rigid attitudes concerning sex than did the control subjects.
Other studies on smaller samples also reported that no differences were found
between the two groups on measures of sexual arousal, and as far as previous
exposure to pornography was concerned, that sex offenders generally experienced
less frequent and milder exposure to pornography than did Criminal Code
offenders.81 Other studies undertaken at the request of the Obscenity Com-
mission led the commissioners to report: 82
Studies show that in comparison with other adults, sex offenders and sexual deviants are
significantly less experienced with erotica during adolescence. As adults, sex offenders
are not significantly different from other adults in exposure or in reported arousal or
reported likelihood of engaging in socio-sexual behaviour following exposure to erotica.
Various studies revealed no significant differences between sex offenders and other groups
in reference to whether erotica had affected their morals or _produced preoccupation with
sexual materials. When explicitly given the opportunicy to do so, a small minority of sex
offenders say that erotica or pomogi:_:aphyhad some relationship to their committing sex
crimes, but rbecause of the nature of the question, the ambiguity of the findings, and the
weight of other available research comparing sex offenders and other persons] these data
cannot be regarded as reliable evidence of such a relationship. Sex offenders generally
report sexually repressive family backgrounds, immature and inadequate sexual histories
and rigid and conservative attitudes concerning sexuality. Research suggests that child-
hood experiences which encourage sexual repression and inhibition of sexual curiosity are
associated with psycho-sexual maladjustment and anti-social sexual behavior.
Though attempts to correlate pornography with criminal sex behavior have
so far yielded negative results, it might be premature to conclude from the
studies that obscene or pornographic stimuli play no role whatsoever in the
elicitation and maintenance of anti-social behavior. Caims 83 particularly warns
that the studies undertaken are relatively insensitive to the possible "triggering"
functions that sexually explicit material might have served for the sex offender.
At this point of time, however, it would be accurate to say that the various
studies, as a whole, fail to establish a meaningful causal relationship, or even
significant correlation between exposure to erotica and anti-social behavior
among adults.
The Commission on Obscenity also considered the relationship between
availability of erotic materials over the last decade and the incidence of sex
79 This hypothesis is also discussed in Kinsey, Pomeroy and Martin, Sexual BehafJior
in the Human Male 363 (1948).
eo Working Papers of the National Commission on Reform of Federal Criminal Laws,
supra, n. 80 at 1231, n. 1.
81 Cook, Fosen and Pacht, Pornography and the Se.t Offendet-: Patterns of Previous
Exposure and Arousal Effects of Pornographic Stimuli, ( 1971) 55 Journal of Applied
Psychology 503.
s2 Commission on Obscenity and Pornography, supra, n. 36 at 286.
sa Working Papers of the National Commission on Reform of Federal Criminal Laws,
supra, n. 80 at 1231, n. 1.
1974] OBSCENITY 189
offences both in the United States and Denmark. u Their U.S. conclusion was
that, although the evidence showed that adult arrests for sex offences had
increased, tlie increase had not been as great for these offences as for other
serious offences such as robbery and narcotic law violations. Moreover, arrests
for sex offences constituted no more than 2% of all adult arrests during the
period 1960-69. The Commission was of the opinion that if the increased avail-
ability of sexually explicit material were directly related to the incidence of sex
offences, a greater increase in arrests for sex offences should have occurred. 85
The Danish experience after repeal of the obscenity laws is thought by many
to be relevant to predicting the consequences of similar action in North America.
In 1967, following the recommendation of the Permanent Criminal Law Com-
mittee, Denmark abolished all restrictions on the sale of pornographic literature
to adults. This was followed by a considerable fall in the circulation of obscene
books and a sharp rise in sales of pornographic pictures. In 1969, the Danish
Parliament also removed restrictions on the sale of pictorial pornography to
adults while maintaining the prohibition on its display in public places. Opinion
polls in 1970, a year after the final legalisation, showed that 57% of the population
agreed with the measures.86 During the 1960's, there was a dramatic decrease in
the number of sexual offences registered by the police in Copenhagen. The
decrease took place in all forms of sex crimes although the larger drop was in
offences of peeping, exhibitionism, ~d indecent interference with ~ls, while
there was only a small decrease in registered cases of rape or attempted rape. 87
Attempts were made to determine whether the reported decrease in sex
offences was attributable to changes in criminal legislation, law enforcement
practices, reporting of official statistics, individuals' subiective definitions of sex
crimes ( i.e., persons who might formally have considered themselves "victims" of
"sex crimes" might no longer consider themselves in that light), readiness to
report sex crimes to the police or the actual number of persons objectively
victimized by sex crimes. Kutschinsky has asserted that there is evidence to
support the tentative conclusion that in at least two types of sex crime, namely,
peeping and physical indecency towards girls, the abundant availability of
hard-core _pornography in Denmark may have been the direct cause of a
considerable actual decrease in the numbers of such offences committed.88
Whether or not this conclusion can be maintained in the li®t of further
research, the fact remains that reported sex crimes in Denmark declined in
frequency at a time when the availability of a great variety of explicit sexual
material had increased. This is, at least, strong evidence that the availability of
such material does not increase reported sex offences and, impliedly, is not a
critical factor among the causes of sex offences.
Particularly strong fears are held in relation to the effect of exposure to
obscenity on the conduct of juveniles. Obscenity has been declared to be a
ponderable factor in juvenile delinquency. 89 But again, the claims are not founded
upon comprehensive studies involving the use of control groups of non-
delinquents. Usually they are based upon the anecdotal experiences of a variety
s• Commission on Obscenity and Pornography, supra, n. 36 at 269-272.

815 See also San Francisco Committee on Crime, Report on Non-Victim Crime in San
Francisco - Part II Pornography 68-69 ( 1971).
8 6 Fact sheet published by the Press and Information Department of the Ministry of
Foreign Affairs of Denmark, 1971.
87 Commission on Obscenity and Pornography, supra, n. 36 at 272-274; Kutschinsky,
Studies on Pornography and Sex-Crimes in Denmark 99 ( 1970).
88 Kutschinsky, supra, n. 87 at 159.
89 Soper, Does Pornography Matter?, supra, n. 4 at 50; Wertham, supra, n. 77.
o~ obse~ers wor~g amongst delinquen~. 0° The. vie~ that obscenity has a

Vitally important influence on the behaV1our of Juveniles carries with it the
implication that delinquency can usually be attributed to a single or major
causative factor. This is an idea which has long since been rejected by those
engaged in delinquency research. Nowadays, the nature and quality of inter-
personal relationships and subcultural pressures are recognized as being far
more significant determinants of delinquent's conduct than vicarious experience,
however stimulated. During the decade 1960-69, there was a considerable
increase in juvenile crime and illegitimacy in the United States but the role of
erotica in relation to these phenomena is unlmown.91 Specific studies undertaken
on behalf of the Obscenity Commission attempted to assess the extent to which
youths were experienced with erotic materials. The studies indicated that about
80% of American males and 70% of females had seen visual representations or
had read written descriptions of sexual intercourse by age 18. A further series
of studies suggested that the proportion of youthful offenders who were familiar
with sexually explicit material was not significantly different from the proportion
of other adolescents and young adults who had such experience, regardless of
their age or social background. 02 The Commission summarizes its findings in the
following terms: 93
Delinquent and non-delinquent youth report generally similar experiences with explicit
sexual materials. Exposure to sexual materials is widespread among both groups. The
age of first exposure, the kinds of materials to which they are exposed, the amount of
their exposure, the circumstances of exposure, and their reactions to erotic stimuli are
essentially the same, particularly when family and neighbourhood backgrounds are held
constant. There is some evidence that peer group pressure accounts for both sexual
experience and exposure to erotic materials among youth.
There is, therefore, no stronger case with respect to the behavioral ~act
upon juveniles than there is in relation to adults. The separate question of the
role of obscenity on the development of sexual attitudes and values in juveniles
is considered in the next section.
It is occasionally argued that the publication of obscenity should be
prohibited because the state of sexual arousal created is likely to be relieved in
anti-social conduct which is not necessarily sexual in nature, particularly in
those individuals who already lack adeq:!,lateinternalized control of their aggres-
sive impulses. However, the precise effect obscenity has on such persons, and
the extent to which it is more potent than the numerous other erotic stimuli
available remains unclear. Scientific data is lacking and the evidence adduced,
is, at best, tangential and fragmentary so that the validity of this assertion can
neither be confirmed nor denied. Moreover, it may never be resolved because,
apart from any transitory state of arousal or revulsion, the impact of obscene
material on the non-sexual conduct of the reader or viewer will tend to be
completely masked by the numerous other internal and external stimuli which
impinge upon him.
The belief that obscenity has a harmful impact on the outward behavior of
adults or adolescents is ultimately grounded in intuitive processes, clinical
judgment and guesswork. Opposing views are generally based on the same
shaky foundations, although the sex offender and Commission delinquency
studies provide some scientific support for the view that obscenity is not the
significant causal factor in criminality claimed. If anything, the research suggests
oo See generally, Green, Obscenity, Censorship and Juvenile Delinquency, ( 1962) 14

U. of T. L.J. 229 at 232-241; Clor, supra, n. 39 at c. 4; Kuh, Foolish FigleavesP
c. 18 ( 1967).
91 Commission on Obscenity and Pomogmphy, supra, n. 36 nt 258-261.
02 Id. at 263-265.
9s Id. at 30-31.
1974] OBSCENITY 191
that the issues are more complex than a simplistic condemnation of obscenity
alone would allow. In the absence of trustworthy and unambi~ous information
concerning the effects of obscenity on outward behaviour, it would seem that the
overt misoehaviour rationale of obscenity law is so severely undermined that it
can hardly be presented alone as sufficient justification for invoking penal
measures.
3. Change In Moral Standards
Related to the "overt misbehavior" rationale for censoring obscenity is the
fear that, in the long run, the sexual thoughts stimulated by obscene matter will
somehow lead to a breaking down or lowering of the moral standards of the
community. Here the emphasis is on delayed and long range effects of exposure
to obscenity rather than on any immediate risk of incitement to anti-social conduct
and, again, anxiety is expressed separately in relation to the community at large
and juveniles. The harm feared was succinctly described by Mr. Justice
Taschereau in the Supreme Court of Canada as the '1egalized assault against
morality".94 The implication is that material which attacks commonly accepted
standards of sexual morality might actually subvert the moral status quo. Under-
pinning this argument is the theory that public morality is indivisible in the
sense that one aspect cannot be corrupted without affecting the rest, and that
therefore those who deviate from any part would probably deviate from the
whole: 95
The standard of values within the ambit of public morality as those values exist from
time to time must be protected otherwise there would be no cohesion in our society.
Everybody would set their own standards: society would disintegrate and there would be
social chaos.
This rationale focuses on preserving community morals with virtually no con-
sideration of whether the impact on morals will result in conduct which is
immoral or illegal, though this is implied. It is agreed that internalized moral
standards are of importance in determining and regulating individual conduct,
yet the role of obscene material in modifying conduct by bringing about changes
in moral standards, is so remote and difficult to prove that the formulation of
this justification of obscenity legislation must take the form that it is concerned
with the preservation of morals per se. In any event, since obscenity legislation
is. as much aimed at scatological content as sexual ( the former is less likely to
lead to any unlawful or immoral act since its effect is emetic rather than
aphrodisiac), the morals justification must be kept distinct from the overt
misbehavior rationale.
The argument for prohibiting obscenity on the grounds of moral danger is
presented at various levels of generality. In their dissent from the Commission
94 R. v, Brodie, Dansky & Rubin ( 1962) 132 C.C.C. 161 at 168 ( S.C.C.). See also
R. v. Bemgner ( 1959) 122 C.C.C. 350 at 353 ( N.S.S.C.); R. v. Cameron (1966)
4 C.C.C. 273, 285, 289 ( Ont.C.A.) and Roth v. U.S., supra, n. 3 at 502 per Harlan
J.: "The state can reasooably draw the inference over a long period of time that
indiscriminate dissemination of materials, the essential character of which is to
degrade sex, will have an eroding effect on moral standards".
96 R. v. Coles Co. Ltd. [1965] 2 C.C.C. 304 at 317 ( Ont.C.A.). See also Chaffee,
I Government and Mass Communications 211 ( 1947); Devlin, supra, n. 58 at
155; Van den Haag, "The Case for Pornography is the Case for Censorship and Vice
Versa", Perspectives on Pornography, supra, n. 18 at 122. Catholic pro_ponentsof the
moral harm justification contend that man is forbidden by natural law to read
literature that will "endanger the preservation of morality" and they suggest that
"common man" has "built-in" competence to tell him that obscenity subverts public
morality: Hayes, Survey of a Decade of Decisions on the Law of Obscenity, ( 1962)
8 Catholic Lawyer 93 at 100; Amen, The Church v. Obscene Literature, supra, n. 65
at 21, 22-23. The contention that distribution of pornography leads to a decline in
"civilization" is also discussed by the San Francisco Committee on Crime, supra,
n. 85 at 70.
19.2 ALBERTA LAW REVIEW [VOL. XII
on Obscenity and Pornography Report, Commissioners Hill, Link and Keating

broadly affirmed: 88
We believe that pornography has an eroding effect on society\ on public morality, on
respect for human work:, on attitudes towards family love, on culture.
Recently, a Canadian judge expressed more specific fears in the following terms: 91
An assault by the promoters of free love upon established public morality must be
viewed by the reasonable man as a weakening of the societal structure. However, the
ass~ult is ~eld~m direct and, in its obliquity, becomes insidious. The flood of material
wntten, p1ctonal and spoken, appears to have the purpose of creating in people an
almost subliminal effect - a consciouness that fornication, besides being desirable, is
univ~rsally acceptable. In actual fact, it is an attempt by a few, not to nurture com-
muruty standards, but rather to change them. • • . This undermining of an accepted
public morality turns that which is a noble and essential expression of higher love into
something tawdry, cheap and offensive. This cheapening of something vital in the
human psyche is a wrenching out of context of a gift to humanity that was designed to
give coliesiveness and stability to the family, the very kerstone of society. In this sense
it is a[n] •.. undue exploitation of sex by reason if its lack of appropriateness and its
unwarranted intrusion upon established morality.
Or, again, the danger may be found in the possibility that what is presently re-
gardea as offensive may, in time, become accepted as normative. A recent
commentator makes the point forcibly: 98
When the movie version of Gone With the Wind first appeared, Clark Gable's famous
exit line, 'I don't give a damn,' aroused considerable objection. Today nothing short of
'Fuck you, Scarlett' could have a similar effect. Perhaps the distance travelled between
'damn' and 'fuck" is lamentable, but the point is that the first amendment [guarantee of
freedom of speech] postulated willingness to take chance with the future development
of society by relying on the free exchange of ideas.
The opposing view is that, far from being a signal of corroding moral decline,
the changes in sexual morals are signs of vigour and health. The tolerance or
acceptance of sexually explicit material is regarded as representing a divesting
of crippling immature notions of sexualicy and the functions of the human body
and a preparation for new sexual standards which represent a more mature level
of eroticism. The whole issue is clouded by terminological inexactitude for in
this context ''morality" is porbnanteau word of such expandable capacity that
anything remotely relevant will fit into it if so desired by the person using the
term. It may embrace moral concepts, attitudes, standards of behavior, religious
dogmas, social mores, and even matters of taste and manners.99 None of these
categories command unanimous assent or practice.
The desire to avoid movement towards more permissive standards of sexual
morality is of particular significance in relation to the "undue exploitation"
provision definiiig obscenity in the Criminal Code. It will be pointed out later
that, as a result of judicial interpretation, whether the exploitation of an emphasis
on sex in an allegedly obscene publication is "undue" must be tested against the
"community stanaards" of acceptance. It is therefore entirely open to Canadian
courts to use the community standards interpretation as a means of preserving
the current sexual mores by censoring matter describing or advocating non-
conformist sexual conduct regardless of whether any harm can be shown to flow
from the non-conformity. There are two main objections to this type of moral
conservatism in the law of obscenity. The first refers to the question of causal
relationships, while the second involves demands for the liberty to advocate
change.
The difficulties met in attempting to determine whether a casual relationship
exists between exposure to obscenity and overt misbehavior have already been
98 Commission on Obscenity and Pornography, supra, n. 36 at 458.

97 R. v. Beaudoin [1972] .2 W.W.R. 140 at 148 (Alta. Dist. Ct.).
88 Katz, supra, n. 39 at .218.
98 R. v. Ma"o (1955) 113 C.C.C . .297 at 302 (Mont. Ct. of Sess.).
1974] OBSCENITY 193
discussed. The same difficulties exist, a fortiori in respect of the relationship

between obscenity and changes in moral standards_ governing sexual relations.
The factors that influence the development and modification of moral standards
are so numerous and complex that it is impossible to isolate the impact of
obscene books. It cannot be denied that changes in an individual's standards of
conduct can be brought about by book learning. And if decent books can
inculcate acceptable attitudes and moral values then, equally, a person can
acquire perverse attitudes and values from obscene writings. But why should
obscenity have the extraordinary ability to change values that are ascribed to it?
The English psychoanalyst, Robert Gosling, has noted that, if the popular notion
of the power of obscenity is true, "it must be about the most effective teaching
material ever invented". 100 It is a long step in logic to conclude that, because a
~rson is exposed to graphic descriptions of sexual immorality, he will be led to
adopt such standards himself, despite all his earlier conditioning to the contrary.
Indeed, Dr. Gosling points out: 101
In the adult, the internal structure of the personality that regulates the discharge of
sexual impulses is fairly stable and is not easily altered. This stability is attested to by
the long time required for any effective psychotherapy. Although the impact of porno-
graphic material may temporarily disturb the balance of forces within the personality,
cause sexual excitement, and so prompt some sexual activity, it is doubtful if it signifi-
cantly alters the underlying and ~rsisting structure, which depends far more upon the
ingrained experiences of childhood than it does on passing new encounters.
The Commission on Obscenity and Pornography studies into attitudinal,
emotional, and judgmental responses to erotica indicated that exposure to por-
nography tends to liberalize attitudes towards whether such material is harmful
and whether it should be restricted. The U.S. national survey conducted by the
Commission also indicated that Americans who had more experience recently with
erotic material tended to tolerate homosexuality, premarital intercourse, and the
non-reproductive functions of intercourse to a greater extent than those inex-
perienced with erotica. Whether any causal relationship can be made out has
not yet been resolved and even if the connection was established, whether such
attitudes represent the ebbing of communal moral standards to an extent calling
for the intervention of the criminal law, remains a separate, debatable, point.
The use of obscenity law simply to maintain existing moral standards in the
community is objected to on a second ground, namely, that it is not a proper
function of the criminal law to suppress attacks on existing morality when there
is no positive utilitarian justification for doing so. Indeed, it may be argued that
attempts to maintain a set of moral precepts which are religious in origin, may
well represent state imposition of authoritarian moral pronouncements and so
represent a violation of Canadian conceptions of freedom of religion and speech.
Even if conventional moral attitudes did change in a permissive direction as
the result of the wides_pread dissemination of obscenity, this would not mean
that the morality of the community had been lowered or subverted in any
absolute sense. Changes in social morality ( including sexual mores) may be
seen as normal and legitimate evolutionary developments in any community
unless one subscribes to the view that current moral standards have the status
of divine revelation or eternal truth, and, as such, ought to be legally enforced.
Furthermore, the possibility of successfully preserving the moral status quo by
legislative means is so remote, and the costs of restriction in free debate and
personal liberty so great, that the use of obscenity law to suppress matter simply
because it might change moral standards appears entirely unjustified.
100 Does Pornography Matter?, supra, n. 4 at 71.

101 Id. at 76.
The regulation of access of juveniles to sexual material on moral grounds has

always been regarded of great moment. 102 In writing of the history of Canadian
anti-obscenity leg!slation, W. H. Charles notes that many who testified in 1952-53
before the Canaclian Senate Committee believed that obscene material would
provide youngsters with a distorted view of the nature of men and women: 108
The emphasis upon the sexual appetites of man, it was felt, would result in the grace
and dignity of man being ignored. In the same way, the repetitious portrayal of the
relations of men and women as primarily physical in nature would give young people
the erroneous impression that women were essentially immoral and worthy of no respect
whatsoever.
This argument is based on the view that adolescents have not yet developed
stable attitudes towards sexual conduct since they are still in the process of
discovering their own sexuality and the community standards which govern its
expression. They may thus be seen as being in a particularly vulnerable stage of
their sexual development, and obscenity ( especially in the form of pornography)
may constitute a danger insofar as it distorts and misrepresents communal values
and teaches deviant standards of sexual conduct. It is argued, moreover, that
anti-obscenity legislation would reduce such distortion in the sexual education
of children and would aid in the maintenance of parental control, both over that
education and over the content of the sexual communications to which their
children are exposed. Without such controls decisions relating to the material to
be made available to children will be left in the hands of commercial distributors
whose profit motive rather than concern for the weHare of the child, would
constitute the primary consideration. Although, intuitively, this ar~ent may
seem to have merit, it still tends to over-estimate the effectiveness of obscenity
as teaching material and to under-estimate the importance of social and inter-
personal relationships in adolescents' learning of moral values.
As previously mentioned, the Commission on Obscenity and Pornography
found no evidence to suggest that exposure to explicit material led juveniles to
commit delinquent acts, but a significant deficiency in the work of the Com-
mission was the failure to comprehensively study the effects of erotica on
children and juveniles whose sexual behavior was not yet fixed. Ethical con-
siderations and social taboos prevented such experiments even though there was
evidence that adolescents had considerable experience with sexual material.
Longitudinal studies of the consequence of exposure to erotica among youngsters
with similar social and demographic characteristics is the type of research: that
is envisaged as being particularly needed. 10 •
If the community does feel an urgent need to protect its youngsters from the
alleged dangers of long-term exposure to obscene matter by enacting legislation
specifically prohibiting the dissemination of obscenity to children under a certain
arbitrarily determined age, or by reference to specific types of publication such
as crime comics,1011 it must be clearly recognized that such prohibitions cannot
yet be founded upon scientifically established facts as to the effect of obscenity
on juveniles. They can be no more than the legal expression of deeply felt
parental anxieties, and they must find their justification in the view that the
102 R. v. Ma"o, supra, n. 99 at 302; R. v. Brodie, Dansky & Rubin, supra, n. 94 at 176~
Canadian Bar Association, A Report of the Saskatchewan Sub-Committee on Civii
Liberties on Censorship and Obscenity, ( 1960) 25 Sask. Bar Rev. 80 at 87.
103 Charles, Obscene Literature and the Legal Process in Canada ( 1966) 44 Can. Bar
Rev. 243 at 284; Kuh, supra, n. 90 at 240-248; American Law Institute, Model Penal
Code (Tentative Draft No. 6) at 55.
10, Commission on Obscenity and Pornography, supra, n. 36 at 268.
10s As in the English Children ai:id Young Persons ( Hannful Publications) Act 1955;
South Australia's Children's Protection Act 1936-1961 and California's Penal Code
s. 313 (see San Francisco Committee on Crime, supra, n. 85 at 73-74 and Appendix
C); Canadian Criminal Code, supra, n. 2, s. 159( 1 ) ( b).
1974] OBSCENITY 195
protection of children and adolescents from risk of moral harm ( even though
the danger is remote) is a value of far greater significance than unregulated
freedom of expression and that, with adequate protection for access to this
material by adult audiences, the interference with free expression involved is
only slight.
A major counter-argument in relation to the moral harm rationale relates to
the proposition that a significant function of pornographic material is the pro-
vision of needed information on sex. The national survey conducted for the
Commission on Obscenity and Pornography indicated that it was not uncommon
for adolescents to first obtain sex information from explicit sexual materials in
the course of socializing with their peers.100 This was not, however, their
preferred source of sexual information and this, in part, led the Commission to
make a number of non-legislative recommendations regarding the launching of
sex education pro~es which could provide accurate and reliable sex
information throug!I legitimate sources. The Commission also expressed the
belief that such information would generate healthy attitudes and orientations
towards sexual relationships, and would provide better protection for youngsters
against distorted ideas. 107 They saw this as a powerful positive approach to the
problems of obscenity and pornography, especially in relation to the young.
4. Commercial Exploitation
Increasingly a quasi-economic justification for the prohibition on obscenity
is advanced. The tenor of the argument is that making money out of peoples
interest in, or wealmess for, obscenity is a particularly detestible activity which
ought not to be tolerated. To disseminate obscene matter is bad enough, but to
do so for financial profit is to rub salt into the wound. Pornography has been
described as "dirt for money's sake''108 and the Criminal Code expressly
1 00 Commission ro Obscenity and Pornography, supra, n. 36 at 314-316.

1 01 Id. at 54-55.
108 Kingsley, International Pictures Corp. v. Regents of the University of New York
(1959) 360 U.S. 684 at 692. See also R. v. Brodie, Dansky & Rubin supra, n. 94 at
168. Mohr, Report on the Study of Obscene and Indecent Literature 64-65 ( 1958),
provides some brief and now out-dated informatioci on the profits made on
magazine and pocket book distribution. The Commission on Obscenity and Por-
no~phy provides a detailed analysis of the various markets and sub-markets which
distrioute the variety of erotic materials available. The Commission makes the point
that there is no monolithic smut industry but that various :industries, vacying in
terms of media, content and manner of distribution exist. Some of these industries
are susceptible to precise estimates of dollar and unit volume, others are not. The
Commission panel on the traffic and distribution of sexually oriee.:itedmaterials in
the United States provided the following estimate of the volume of traffic in rela-
tively explicit sexual materials:
VALUE
MATERIAL $ MILLIONS
"Adult only" books at retail 45-55

"Adult only" periodicals at retail 25-35
Motion Pictures (box-office) 450-460
Mail Order ( all materials) 12-14
Under-the-Counter ( all materials) 5-10
TOTAL 537-574
recognizes the commercial side of the dissemination of obscenity in s.160, which

authorizes the seizure and forfeiture of obscene publications kept for sale or
distribution. It is also argued in support of the commercial exploitation rationale
that if production and circulation of obscene material for gain could be elimi-
nated, the supply would be cut off at its source. The compilers of the American
Law Institute's Model Penal Code were so concerned with the fear of commercial
exploitation that they went so far as to propose that not only the disseminator
of actual obscenity be punished, but also the person who promoted the sale of
non-obscene material by advertising it as being obscene.109 While this proposal
may be admirable when set out as a governing principle in regulatory provisions
dealing with false advertising generally, there is no good reason to single out
misrepresentation in the promotion of obscenity as a special case unless money
made from sexual exploitation is thought to be uniquely tainted.
It would not be unreasonable to expect that organized crime, with its
µ-aditional interest in providing illegal goods and services, should be represented
among the producers and distributors of illegal sexual publications. 110 In the
United States context the Commission on obscenity found itseH unable to draw
any conclusions with respect to the involvement of organized crime in the
distribution of obscene material. It did note however, that there was evidence
that the book stores retailing sexually explicit material tended to involve
individuals who had considerable arrest records. They attributed this to the fact
that such businesses were at the periphery of legitimacy and at the margin of
legality and consequently were avoided by persons with greater concern for
legitimacy and general reputation. This was not, however, the same as "being
run by organized crime."111 The extent to which criminal elements are involved
is likely to depend more upon the degree of illegality which is attached to the
industry and which closes it to legitimate economic competition, than upon any
special affiliation between obscenity and crime.
It is obvious that one function of the dissemination of sexually explicit
material is to make profit for the producers and distributors. This form of
economic activity also provides paid work for their employees and for sellers at
the end of the distribution line. It also provides employment for the dissemi-
nators, professional opponents. But in a capitalist society, such as Canada which
has long been exploiting sex for commercial purposes, it scarcely seems appro-
priate to make the profit motive a ground for the censorship of obscenity. It
would be anomalous, to say the least, to permit the sale of some products and
services designed and sold primarily to exploit sexual interest, but to prohibit
commercial capitalization upon the same interest through the sale of books,
magazines, or films. Indeed s.159(5) of the Criminal Code declares that the
motives of an accused are irrelevant for the purposes of a charge under s.159
and it has been held that "undue exploitation,, in s.159(8) does not mean making
profit out of sex.112 Moreover, the very fact that there is a sufficiently intense
and widespread interest in sex to be exploited, suggests that no prohibition upon
commercial exploitation is likely to be successful.
5. Offensiveness
It seems that, to a large extent, obscenity is prohibited not because it is
dangerously alluring, but because it is grossly offensive. The harm feared is not
sexual arousal, anti-social behavior, lowered moral standards, or commercial
109 American Law Institute, Model Penal Code, ( Tentative Draft No. 6) at 53 and
Proposed Official Drafts . .25I.4(2)(e).
110 Exploitation Spreading Here, New York Times, July 11, 1971 at l; Denmark Closing
Some Sex Shows, New York Times, Feb. 12, 1972 at 10.
111 Commission on Obscenity and Pornography, supra, n. 36 at 142-143.
112 R. v. Prairie Schooner News Ltd. & Powers (1971) 1 C.C.C. (2d) 251 (Man.C.A.).
1974] OBSCENITY 197
exploitation, but simply that obscene matter is likely to arouseJ'owerful feelings

of shock, shame, disgust and revulsion in those who are expose to it. It may be
argued that in the same way as the defence of provocation is a manifestation of
the criminal law's appreciation of ordinary human fraility, so prohibition on
obscenity constitutes a legal recognition both of the existence of deeply entrenched
cultural taboos on exposing or depicting intimate detail of sexual interaction or
excretory activity and of the principle that individuals should not be forced to
respond to certain forms of unpleasant stimuli.118
The fact that sexual material gives offence to some will not be sufficient
reason to prohibit its general distribution in a society which places high value on
freedom of expression. Nevertheless, there is evidence to indicate that a sub-
stantial proportion of those who have had experience with erotic material react
with feelings of disgust.114 The legal protection of such feelings, however,
requires that a distinction be drawn between voluntary and involuntary offence.
The former involves a situation in which the citizen is offended by obscenity in
material which he has voluntarily chosen to read or view. On the other hand,
involuntary offence describes the affront to a person's sensibility which occurs
when unsought obscenity is thrust upon him in his use of places of public resort
or through other forms of communication such as radio or television broadcasts,
public d1splays in stores, store windows, billboards, theatre hoardings and the
like, or in the mail.
(a) Voluntary Offence
The avoidance of voluntary offence is an insufficient justification for pro-
hibiting the availability of explicit sexual materials. The protection of citizens
from being shocked and revolted by what they have voluntarily chosen to read
or view is a trivial ground for invoking the criminal law.115 If they willingly seek
out offensive material they cannot complain if they are offended. And if a
person starts to read a book or magazine which unexpectedly turns out to be
obscene, there is no obligation on him to continue once he has discovered its true
nature. Thoucli a person in the latter situation may be embarrassed by the initial
obscenity he has unavoidably read or viewed, or may be possibly distressed by
the thought that other readers might be similarly misled, his emotional reaction
is likely to be only of momentary duration. The risk of this type of temporary
distress in sensitive individuals can hardly be regarded as a -,'harm" sufficient
to outweigh the value of free expression.
If this danger is thought to warrant legislative intervention, the matter can
be sufficiently dealt with by a requirement that explicit sexual material be
labelled "adult sexual material" and that films, if not already given a restricted
classification by provincial censorship tribunals, carry a box office warning ( as
is now often done) that parts of the film may be offensive to some persons.
Such legislation may well lie more properly in the realm of consumer protection
or false advertising than in the criminal law.
(b) Involuntary Offence
Citizens have usually been offered protection from physical discomfort or
mental distress in their use of places of public resort through the law of public
nuisance. At common law, and under the Criminal Code, the offence of public
nuisance is constituted by actions that materially interfere with the rights which
all members of the community are entitled to enjoy, or by conduct which
s Rembar, The End of Obscenity 509-510 (1968).

11
114Report of the Commission on Obscenity and Pornography, supra, n. 26 at 203
(Table 7).
m Compare R. v. Sequin [1969] 2 C.C.C. 150, 156 ( OntCo.Ct.) with R. v. Ma"o,
supra, 11. 99 at 302.
seriously discomforts the public. 116 Apart from nuisance in the form of threats
of a directly physical nature such as infectious disease, noxious fumes, or
obstruction of a highway, the law also recognizes nuisances which onbrthreaten
adverse psychological reactions, e.g. arousal of feelings of disgust and revulsion
by public displays of physical horror or indecency. 117
In many respects the legal concept of obscenity can best be understood
merely as an aspect of the law of nuisance in that it serves as a means of abating
the public offensiveness of blatant displays of sexual or scatological intimacy.
A number of judges have recognized the public nuisance aspect of the dissemi-
nation of sexual material: 118
The mischief resides not so much in the book or picture per se as in the use to which
it is put . . . what is in a real case a local public nuisance.
The public exposure of obscene writing or representation is forbidden for
the same reason that indecent exposure, public nudity, and obscene language in
public are prohibited; not because they are likely to be imitated by others, but
simply because they affront passers-by who claim the right to be free from such
unwanted exposure. While an individual need not go to a nudist film if he does
not like pictures of genital nudity, it is more difficult to escape the billboards,
or drive-in theatre screens visible from the highway or nearby houses. Material
on public display is being disseminated indiscriminately to passers-by and the
offence is direct, immediate and not capable of being avoided by regulating
subsequent action short of surrendering the right to make use of places ot public
resort. Both the Danish and American experiences in this regard are worthy of
note. In Denmark, and the larger American cities, the liberalization of obscenity
laws was accompanied by a greater public visibility of the erotica being sold in
the stores. And recently in both communities there has been increased attention
paid to the enforcement of police regulations limiting the degree of public display
permissible.119
The involuntary offence rationale is not confined to offensiveness in public
places. George Steiner has strongly argued against pornography on the ground of
its offence to individual privacy, 120 and others have joined in this response by
contending that recognition of the right to be free from involuntary exposure
should result in legislation prohibiting the mailing of obscene literature or
advertisements to persons who do not desire to receive it. Other forms of
communication such as radio, television or newspapers would appear to fall more
properly under the category of voluntary offence.
It must again be emphasised that the offensiveness justification for the law
of obscenity does not consider whether the dissemination of such material is
immoral, or a cause of anti-social behaviour. It simply proposes that the display
of obscene matter in the face of an involuntary public seriously offends the
sensibilities of ordinary citizens, a substantial proportion of whom do not desire
to view it and, further, that it is no great infringement on individual liberty to
11a Walter v. Selfe ( 1851) 4 De G. & Sm. 315 at 326, 64 E.R. 849 at 853; R. v. Price
( 1884) 12 Q.B.D. 247 at 256; Criminal Code, supra, n. 2, s. 176.
111 E.g., R. v. Grey (1864) 4 F. & F. 73, 176 E.R. 472 (Herbalist publicly exhibiting in
shop window picture of man covered with erruptive sores-guilty of nuisance in
exposing offensive and disgusting exhibition); R. v. Clark (1883) 15 Cox C.C. 171
( exposing mutilated body of infant on public highway-convicted of public nuisance) ;
R. v. Elliott and White ( 1861) Le. & Ca. 103, 169 E.R. 1322 ( couple having
intercourse on a common~held indictable offence in the nature of a public nuisance).
See also R. v. Mayling [1963] 2 W.L.R. 703.
11 s Galletly v. Laird [1953] S.C. (J,) 16, 26; R. v. Berringer, supra, n. 94 at 363
( N .S.S.C.).
119 Pornography Shops Clean Up Windows to Comply With Law, New York Times,
Sept. 2, 1971 at 36.
120 Steiner, "Night Words: High Pornography and Human Privacy," in Hughes,
supra, n. 18 at 96.
1974] OBSCENITY 199
insist that displa}'S of this nature either take place in private to a voluntary
audience, or conform to the current minimum accepted standards of public
decency. An actress friend of George Bernard Shaw put it neatly when she said,
"I don't mind at all what people do, as long as they don't do it in the streets and
frighten the horses."121
6. The Audience to be Considered
If some forms of sexually explicit material are regarded as obscene per se,
the actual audience to whom they are distributed is irrelevant, and the adverse
impact of the book is assumed simply by reference to its contents: the harm is
inferred by the court as a matter of law from perusal of the publication com-
plained of. If obscenity is recognized as being circumstantial in nature, the
audience must always be considered and an identical publication may be held
obscene when distributed to one class of person and not obscene when distributed
to another depending upon the effect it has on the respective groups. On this
view the extent to which any of the harms discussed above are likely to be
brought about by the dissemination of an obscene work depends ultimately upon
the nature of the audience into whose hands the work may fall. This emphasis
on the circumstances of dissemination demands careful delineation of the persons
to whom the alleged obscenity is, or is intended to be directed. Two situations
arise, (a) limited dissemination and ( b) indiscriminate dissemination.
(a) Limited Dissemination
If there is clear evidence that the obscene material was or is being dissemi-
nated to a special limited class or group of persons such as doctors, psychologists,
lawyers, university students, delinquents, etc., the obscenity of the work would
be decided in the light of evidence of its effect on that class or group alone and
not upon any incidental peripheral viewers or readers. Evidence ( including
evidence of the price at which the publication was sold) would be admissible
for the purpose of identifying the special class of persons among whom the
offensive material was likely to be distributed and also for the purpose of
informing the court of the likely reaction and probable behavior of those persons.
Under present Canadian law the judge may not confine his inquiry to the effect
on the particular group or class exposed but must test the alleged obscenity
against a hypothetical national community standard. This holds true even if the
material is disseminated to a narrowly defined audience e.g., labelled "adult", 122
or shown only to those at a university. 123
(b) Indiscriminate Dissemination
The audience to be considered would become a problem in the situation in
which there has been indiscriminate dissemination of offensive matter to the
public at large. The difficulty here is whether the obscenity of the work is to be
judged by reference to normal or abnormal persons, adults, adolescents or
chilclren.
(i) The "Most Vulnerable Person" Test
In the Hicklin case, Lord Chief Justice Cockburn, in setting out the common
law definition of obscenity, referred to the most vulnerable as the relevant
audience i.e. "those whose minds are open to ... immoral influences", and he
made ~ecial reference to the young. 12 " The attitudes of the courts subsequent
to Hicklin's case has generally been to assess the obscenity of the work in the
light of its supposed effect on those members of society with the lowest level of
121Remark atbibuted to Mrs. Patrick Campbell, quoted in Kuh, supra, n. 90 at 269.
122R. v. Great West News Ltd., Mantell and Mitchell, supra, n. 41 at 317.
12sR. v. Goldberg & Reitman, supra, n. 50.
m Supra, n. 12 at 371. See also R. v. St. Clair ( 1913) 21 C.C.C. 350 ( Ont.C.A.).
intellectual and moral discernment - the young, the sexually immature and the
abnormal. The danger of preoccupation with those who are most vulnerable is
that normal or average adults may be denied access to material because the
court has formed the opinion that young or abnormal members of the com-
munity might be adversely affected. This is, as one American judge has put it,
"to burn tlie house to roast the pig."m
(ii) The "Average Man" Test
The main alternative suggested is that, in cases of indiscriminate dissemi-
nation, the obscenity of the publication ought to be tested by reference to its
effect on the "average" members of the community.
The compilers of the American Law Institute's Model Penal Code recom-
mended that: 126
The normal or reasonable man rule is clearly the proper one for state regulation of
publicatioo, if all art, literature and journalism is not to be degraded to the level of
dullness and innocuity . . . criminal laws • • . should not jeopardize communications
that ordinary people regard as fit for the eyes and ears of their peers.
At the same time they recognized the need to give effect to community demands
for protection of the particularly vulnerable. The end result was a recommenda-
tion that obscenity be judged with reference to "ordinary adults" unless: 127
. . . it appears from the character of the material or the circumstances of its dissemina-
tion to be designed for children or other specially susceptible audience.
In Canada the average man test finds expression through the community
standards test of obscenity. In his dissenting judgment in R. v. Dominion News
and Gifts Limited 128 ( subsequently approved and commended unreservedly by
the Supreme Court), 120 Mr. Justice Freedman noted that the standards must be
contemporary Canadian standards and that they: 180
... are not set by those of lowest taste or interest. Nor are they set exclusively by
those of rigid, austere, conservative, or puritan taste or habit of mind. Something
approaching a general average of thinking and feeling has to be discovered.
The use of the "average man" in obscenity cases is based on the use of the
famous "reasonable man" of the civil law of wrongs. This "excellent but odious"181
gentleman is the theoretical embodiment of all the qualities demanded of a good
citizen and is presented to the civil jury as the standard against which the
defendant's conduct is to be judged. Only the broadest outline of the reasonable
man's character is drawn by the judge; the rest is left to the jury. If the "average
man" test is to be used at all it seems not unreasonable that it should be inter-
preted by a jury for the jury enjoys a closer affinity to the "average man" than
any magistrate or judge. In the final analysis neither individual judge nor jury
can do more than blindly guess at the qualities and likely responses of the
"average man". The admissibility and use of scientific evidence on the nature
of the audience thus becomes as important in determining the "average man's"
response to indiscriminate dissemination of sexually explicit material, as it is to
the determination of the effect on special groups of limited dissemination.
m Frankfurter J. in Butler v. Michigan (1957) 352 U.S. 380 at 383.

126 (Tentative Draft No. 6) at 38.
121 Model Penal Code (Proposed Official Draft), s . .251.4(1).
12s Supra, n • .28.
12& Dominion News and Gifts Ltd. v. The Queen [1964] S.C.R. 251 ( S.C.C.).
1aoSupra, n. 128 at 116. See also R. v. Adams, supra, n. 28 at 64-76; R. v. Cameron,
supra, n. 94 at 303-311; R. v. Great West News Ltd., Mantell & Mitchell, supra, n. 41
at 314-315.
1s1 Herbert, Uncommon Law 4 (1935).
1974] OBSCENITY 201
(iii) The "Primary Audience" Test

A third approach has been suggested by Professors Lockhart and McClure 132
who reject both the "most susceptible person" and the "average man" as appro-
priate standards for testing obscenity in cases of indiscriminate dissemination.
They deny that indiscriminate dissemination of obscenity, in any real sense,
ever talces place. The thrust of their argument is that most obscene material is
not directed to and does not reach the general public. It is their belief that the
substantial variations in audience appeal which occur in other types of writing
or representation also apply in relation to obscenity. This leads them to conclude
that although obscene matter may be publicly offered, it in fact only reaches a
limited segment of the general public. This limited segment they describe as the
"primary audience" and obscenity is to be tested by reference to a hypothetical
person typical of that audience. The effect of the publication on persons repre-
senting peripheral audiences is not considered. By urging a closer examination
of the actual audience exposed to the offending publication, Lockhart and
McClure are obviously attempting to avoid the arbitrariness inherent in the
legislative policies which express deliberate preference for the protection of
particular groups of individuals in the community without regard to their number
or proportion in the total audience actually reached. Support for the Lockhart
and McClure position is found in the studies of patrons of adult book stores and
theatres undertaken by the Obscenity Commission in order to identify the
characteristics of people who bought erotic material. The profile of the patron
of adult book stores that emerged from observations made in different parts of
the United States was of a white, middle-aged, middle-class, married, male,
dressed in business suit or neat casual attire, shopping alone.133 Similar observa-
tions in Copenhagen characterized consumers as middle-aged, middle-class,
white males, at least a quarter of whom were estimated to be from another
country. 134 Similar profiles were obtained from observations of audiences of
theatres showing adult films and patrons of arcades showing sexually explicit
peep-shows.135
It would follow that if the specific primary audience can be identified in
this fashion, the obscenity of the publication must be tested by reference to this
group alone. If the sexual arousal and commercial exploitation justifications are
untenable, and the overt misbehavior and change in moral standards rationales
insufficiently established in science, the only remaining justification is that of
offensiveness. But if the "primary audience" has voluntarily chosen to read or
view the material ( as in the case of patrons of adult bookstores, theatres or
arcades), this justification for the prohibition on obscenity cannot be maintained,
and these indi-yiduals should be free to pursue their interest in sexually explicit
material. This is so because, under the doctrine of circumstantial obscenity, the
material in these circumstances, is not legally offensive in their hands. If, on the
other hand, protection of juveniles was the rationale and the primary audience
was juvenile, the material would be obscene in their hands, the voluntariness of
their consumption would be no answer, and the person who disseminated the
material to them would be liable to punishment.
V. CRIMINAL CODE PROVISIONS
We believe that we have produced a definition which will be capable of application with
speed and certaintyi by providing a series of simple objective tests in addition to the
somewhat vague suojective test which was the only one formerly available, The test
will be: 'Does the publication complained of deal with sex, or sex and one or more of
the other subjects named? If so, is this the dominant characteristic? Again, if so, does
m Censorship of' Obscenity, ( 1960) 45 Minn. L. Rev. 5 at 78-79.

1H Kutschinsky, Studies on Pornography and Sex Crimes in Denmark, supra, n. 87 at 17.
I uis Commission on Obscenity and Pornography, supra, n. 36 at 157-163.
t
I
.J
i
I
I
:
I
20.2 ALBERTA LAW REVIEW [VOL. XII
it exploit these subjects in an undue manner?' We have been careful in working out
this definition not to produce a net so wide that it sweeps in borderline cases or cases
about which there may be a genuine difference of opinion. In our efforts we have
deliberately stopped short of any attempts to outlaw publications concerning which
there may be any contention that they have genuine literary, artistic or scientinc merit.
These works remain to be dealt with under the Hicklin definition, which is not
superseded by the new statutory definition. 186
The recently renumbered Criminal Code 137 provisions governing obscenity
are: s.159, which creates a series of in personam offences in relation to the
dissemination of obscene matter; 138 s.160, which permits in rem proceedings
against obscene publications 139 by allowing for their seizure, forfeiture and
disposal; s.161, which prohibits tied sales ( e.g. distribution of non-obscene
puolications to shop-keepers on condition that they accept, for sale, other
publications which may be obscene); s.163, which prohibits the presentation
of or participation in obscene theatrical performances; 140 s.164, which makes it
an offence to use the mails for transmitting or delivering anything that is
obscene;141 and s.17l(a), which, inter alia, provides for the funishment of those
causing a disturbance in or near a public place by use o obscene language.
Sections 513(1) and 516(l)(d) of the Code provide respectively, that thougli a
charge of selling or exhibiting obscene writing is not insufficient by reason only
of the fact that the count does not set out the writing alleged to be obscene, the
court may order the prosecution to furnish such particulars. By virtue of s.165,
offenders against ss. 159, 161, 163, and 164 may be proceeded against by indict-
ment or summarily.142 Those found guilty on indictment are liable to imprison-
ment for two years143 and those convicted summarily are liable to a fine of not
more than $500 or imprisonment for six months or both. 144 Section 171 creates only
a summary offence. If the Crown exercises its option to proceed by way of
indictment, the accused is entitled to a jury trial but may elect to be tried by a
magistrate or judge without a jury. 1411 _
The key obscenity provisions are s.159 ( formerly s.150) and s.160 ( formerly
s.150A), the essential parts of which read: 146
159.
( 1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the
purpose of puolication, distribution or circulation any obscene written matter,
picture, model, phonograph record or other thing whatsoever . . .
186 Mr. D. E. Fulton, Minister of Justice, (1959) 5 H. C. Deb. 5517.

1 87 Supra, n. .2.
1 8 8 The section also includes prohibitions on the dissemination of crime comics, the
public exhibition of disgusting objects or indecent shows, the sale or advertisement
of abortifacients, and the advertisement of methods of restoring sexual virility or
curing venereal diseases. Section 162( l)(a) punishes proprietors, editors, printers
and publishers who print, in relation to judicial proceedings, any indecent matter or
indecent medical, surgical or physiological details which, if published are calculated
to injure public morals. The prohibition does not extend, specificaby, to obscene
material.
1s9 The section also permits seizure and forfeiture of crime comics.
140 The section also extends the prohibition to immoral or indecent performances. See
R. v. Jourdan (1904) 8 C.C.C. 337 (Mont.Rec.Ct.); R. v. McAuliffe (1904) 8 C.C.C.
21 (N.S.Co.Ct.); Conway v. R., supra, n. 41; R. v. Marro, supra, n. 99; Smith v. R.
[1963] 1 C.C.C. 395 (Man.Co.Ct.); R. v. Seguin, supra, n. 115.
1 4 1 Or, indecent, immoral or scurrilous. See R. v. Lambert, supra, n. 21.
142 The validity of such discretionary power in the Crown is established by Smythe v.
R. (1971) 3 C.C.C. (2d) 366, 16 C.R. 147 (S.C.C.).
143 Canadian Criminal Code, supra, n. 2, s. 165( a). A fine may be imposed in addition
to, or in substitution of the term of imprisonment: See s. 646.
144 Id. at s. 722.
1411 Id. at s. 484.
146 Id.
(
1974] OBSCENITY 203
(2) Every one commits an offence who knowingly, without lawful justification or excuse
(a) sells, exposes to public view or has in his possession for such a purpose any
obscene written matter, picture, model, phonograph record or oilier thing
whatsoever.
( 3) No person shall be convicted of an offence under this section if he establishes that
public good was served by the acts that are alleged to constitute the offence
and that the acts alleged did not extend beyond what served the public good.
( 4) For the purposes of this section it is a question of law whether an act served the
public good and whether there is evidence that the act alleged went beyond what
served the public good, but it is a question of fact whether the acts did or did not
extend beyond what served the public good.
( 5) For the purposes of this section the motives of an accused are irrelevant.
( 6) Where an accused is charged with an offence under subsection ( 1) the fact that the
accused was ignorant of the nature or presence of the matter, picture, model,
phon(?graph record, crime comic or other thing by means of or in relation to which
the offence was committed is not a defence to the charge. . .
( 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.
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 distiibution
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.
(2) Within seven days of the issue of the warrant, the judge shall issue a summons to
the occupier of the premises requiring him to appear before the court and show
cause why the matter seized should not be fodeited to Her Majesty.
( 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 fodeiture 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 fodeited 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 . . •
( 7) Where an order has been made under this section by a judge in a province with
respect to one or more copies of a publication, no proceedings shall be instituted or
continued in that province under section 159 with respect to those or other copies
of the same publication without the consent of the Attorney General . . .
A brief outline of the history of these Code provisions is essential to an
understanding of the present law.147 The first Canadian statutory prohibition on
obscenity was s.179 of the 1892 Criminal Code. That section provided that the
public sale, or exposure for sale of any obscene book or printed matter would
constitute an indictable offence. The term "obscene" was not defined but, in
dealing with obscenity prosecutions, the courts applied the English common law
definition of obscenity as enunciated by Lord Chief Justic Cockburn in the 1868
case of R. v. Hicklin, 148 viz:149
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.
u1 For a detailed examination of the background, see Charles, supra, n. 103, and the
judgment of Laidlaw J.A. in R. v. American News Co. Ltd., supra, n. 59.
Hs Supra, n. 12.
us Id. at 371. Reported Canadian cases until 1959, in which the Hicklin test was
applied to_publications are: R. v. Beaver (1904) 9 C.C.C. 415 (Ont.C.A.); R. v.
MacDougaU (1909) 15 C.C.C. 466 (N.B.S.C.); R. v. St. Clair, supra, n. 124; R. v.
National News Co. Ltd. ( 1953) 106 C.C.C. 26 ( Ont.C.A.); R. v. Hellier ( 1953) 106
C.C.C. 145 (B.C.C.A.); and R. v. American News Co. Ltd., supra, n. 59. The test
was also utilized in re1ation to theatrical performances in: R. v. McAuliffe, supra,
n. 140; R. v. Jourdan, supra, n. 140 and R. v. Conway, supra, n. 41.
This test was applied in Canadian courts until the introduction, in 1959, of what
is now s.159(8).
The Hicklin formula has been much criticized.150 It has been repudiated in
the U.S.A.,161 and modified by statute in England and Australia.152 Apart from
general objections on the grounds that it is vague in meaning and subjective in
a_pplication,specific complaints are that the test is concerned with the effect of
the publication on the most vulnerable individuals in the potential audience, that
the tendency of the publication charged as obscene to deprave and corrupt is
inferred from an examination of the document itself and that evidence from
experts as to the impact of the material is not admissible.m No defence of
literary or artistic merit is allowed 154 ( evidence upon these matters is excluded);
a specific intention to deprave and corrupt is either not required or may be
inferred from the nature of the publication since it is not necessary for the
prosecution to prove that intention by other evidence,155 and, finally, the practice
has developed in applying the test, of examining isolated passages from the text
and not the work as a whole.use
A Senate Special Committee on the Sale and Distribution of Salacious and
Indecent Literature was established in 1952 to consider the question of con-
trolling objectionable literature. The existing legislation, still relying on the
Hicklin common law definition of obscenity, was defended by the then Minister
of Justice who protested that the law was neither vague nor uncertain and that
the problem was primarily one of enforcement. He stated that no law enforce-
ment agencies had complained that the law was unenforceable and none of those
persons who had made the allegation had shown that they had invoked the law
and had failed to secure a conviction because of its unenforceability. The Senate
Committee did not reach a decision and was not reappointed at the next session
15 °For Canadian criticism, see MacKay, The Hicklin Rule and Judicial Censorship,
( 1958) 36 Can. Bar Rev. l; Edmonson & Wright, Canadian Obscenity Law -
Archaic Trends, ( 1958) 16 U.T., Faculty of Law Rev. 93; Welbourn, Censorship and
the Law in Canada, ( 1959) 29 Sask. Bar Rev. 29; Charles, supra, n. 103.
mi U.S. v. One Book Entitled "Ulysses", supra, n. 5.
162 England: Obscene Publications Act, 1959, as amended by Obscene Publications Act,
1964; Australia - Victoria: Police Offenses Act, 1958, Part V; New South Wales:
Obscene and Indecent Publications Act, 1901- 1955; see generally Fox, supra, n. 44.
t5s R. v. Reiter [1954] 2 Q.B. 16; Thomson v. Chain Libraries Ltd. [1954] 1 W.L.R.
999; R. v. Anderson & Ors [1971] 3 W.L.R. 939 ( C.A.).
m However s. 179(3) of the 1892 Criminal Code provided that: "No one shall be
convicted of any offence in this section mentioned u he proves that the public good
was served by the acts alleged to have been done". See now Canadian Criminal Code,
supra, n. 2, s. 159( 3).
1115 See Laidlaw J.A. in R. v. American News Co. Ltd., supra, n. 59 at 161 and Fullagar
J. in R. v. Close [1948] V.L.R. 445 at 462. The proposition is, however, not good
law: Fox, supra, n. 44 at 100-106.
156 E.g., in Paget Publications Ltd. v. Watson [1952] 1 All E.R. 1256, the Court of
Appeal upheld a magistrate's ruling that an entire publication should be destroyed

as obscene even though only the illustrations on the inside covers were objectionable.
Year No. Prosecutions % Convictions
1950 33 91
1951 31 90
1952 30 96
1974] OBSCENITY 205
of Parliament. 157 In 1958, a study prepared for the Ontario Attorney-General's

Committee on Obscene and Indecent Literature reported that there was, at that
time, definitely no major concern regarding obscene and indecent literature in
that province and that a similar position obtained with respect to the other
provinces. 111s
In 1959, a Bill was introduced in the Commons to amend the obscenity
provisions in the Code. The major changes proposed were the addition of the
words: 169
For the purpose 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.
and the introduction of in rem proceedings against the book itself without the
need to bring a criminal charge against an individual.
It was the clear intention of the Minister of Justice, in proposing the legisla-
tion, that the new statutory definition was meant to supplement the Hicklin test
and was not designed to supplant it. 160 What was aimed at was a double standard
of obscenity; that of "undue" exploitation of a theme involving sex to bar items
which, even though contrary to public taste, could not have been legally held to
be obscene under the Hicklin test, and, in reserve, the Hicklin rule to deal with
"ordinary" obscenity. These amendments, particularly the new definitional clause,
were criticized for being difficult to understand, complex and as subjective as the
Hicklin test, and also for failing to make clear the legislative intention with
respect to the continued status of the Hicklin definition. 161 The Bill was never-
theless passed and proclaimed. The new legislation has given rise to a number
of problems.
1. Is The Hicklin Test Still Applicable?
The first reported cases upon the new provisions accepted that the Hicklin
test of obscenity and the new formulation could co-exist.162 In R. v. Munster, Chief
Justice Isley briefly observed of s.159( 8) :168
It does not purport to be a definition of 'obscene'. Matter not included in its pro-
visions may be obscene. And whether such matter is obscene or not is, in my opinion,
determined by the test in R. v. Hicklin . ...
and in R. v. Standard News Distributors Inc. 164 Monty J. contrived to find that the
essence of undueness was whether the matter could only tend to deprave and
corrupt those whose minds were open to such influences and into whose hands
the publication was likely to fall.
In 1959, forfeiture proceedings were brouwit against D. H. Lawrence's
book Lady Chatterley's Lover. The matter reached the Supreme Court of Canada
in R. v. Brodie, Dansky & Rubin 166 where, of the nine members of the court
Charles,
1111 See sura, n. 103 at 250-252. The Minister's position found support in
figures ( ( 1953 2 H.C.Deb. 1852) relating to prosecutions and convictions under
the obscenity section of the Code in 1950-52 which indicated relatively few prosecu-
tions but a high percentage of convictions:
us Mohr, supra, n. 108 at 48, 51-52. See also Proceedings of the Conference of Com-
missioners on Uniformity of Legislation in Canada 32 ( 1957).
1Go Nows. 160. The section was based upon Lord Campbell's 1857 Obscene Publications
Act, 20 & 21 Viet. c. 83 (Eng.).
160 (1959) 5 H.C.Deb. 5517, 5542.
101 Charles, supra, n. 103 at 253-256.
162 R. v. Munster, supra, n. 50; R. v. Standard News Distributors Inc. ( 1960) 34 C.R.
54 (Mont.Mun.Ct.).
168 R. v. Munster, supra, n. 50 at 279.
16' Supra, n. 160.
16G Supra, n. 94.
who heard the appeal, four held that the Hicklin test was excluded under the
new legislation, two held that it might apply, and three reserved their opinion
on this point. The leading judgment delivered by Judson J. (Abbott and Maitland
JJ. concurring) expressly disapproved of R. v. Munster and denied that there
was a double standard: 166
li there is to be a double standard, it must be expressly set out in the Code • • • if a
result such as this is to be brought about the legislature must define the two standards
of obscenity and tell the court that the charge is proved if the work offends either
standard. .
A series of subsequent cases have treated the statutory definition as being
exhaustive,167 but the Supreme Court has not subsequently had the question
before it for reconsideration and the issue cannot be considered completely
closed. For instance, s.159(8) deems certain "publications" obscene, but the
Code elsewhere deals with obscenity which is not in the form of a publication
e.g. models, phonograph records and theatrical performances. What definition
of obscenity applies to such "non-publications'' remains an outstanding and
unresolved question. 168
2. What is the Meaning of' the s.159(8) TestP
The meaning of obscenity as derived from the statutory formula of s.159(8)
is unsettled. An elaborate interpretive gloss has been building up with each
succeeding case and the apparently simple words of the subsection gi~e little
guidance as to the manner in which the courts apply the test. Three difficulties
exist: (a) What are the constituent elements of the formula? ( b) How do the
different elements relate to one another? and ( c) How is the test applied in
practice? 168
(a) What Are the Constituent Elements of the s.159(8) Formula?
The cases have separated out two major elements: "dominant characteristic"
and "undue ~loitation". Neither the word "characteristic" nor "exploitation"
have caused difficulty; the former being accepted as referring to a distinguishing
peculiarity or quality, while the latter is taken to have the neutral economic
meaning of "turning to account" rather than any strong perjorative tone.170 So far
as the words "dominant" and "undue" are concerned, the principles enunciated
by Mr. Justice Judson and the three concurring judges in the Supreme Court
hearing of the Lady Chatterley's Lover case were that: 1. A book may have more
than one dominant characteristic. 2. Whether any one of the dominant char-
acteristics of the work is the undue exploitation of sex depends upon: (a) the
examination of the work as a whole 171 and not merely isolated passages, ( b) the
author's purpose, and ( c) the literary or artistic merit of the work. 3. Some
exploitation of sexual themes is permitted. 4. Whether the exploitation is undue
166 Id. at 178. Judson J. added that this was the manner in which the Australian and
New Zealan legislation was framed.
1 67 R. ex rel. Rose v. Marshall (1962) 48 M.P.R. 64 (Nfld.Dist.Ct.); R. v. Modenese
( 1962) 38 C.R. 45 ( B.C.Mag.Ct.); Re Gordon Magazine Enterprises Ltd. ( 1965)
46 C.R. 313 ( Ont.C.A.); R. v. Coles Co. Ltd., supra, n. 95; R. v. Lambert, supra, n.
21; R. v. Cameron, supra, n. 94; R. v. Fraser [1966] 1 C.C.C. 110 (B.C.C.A.); R. v.
Georgia Straight Publishing Ltd. & McLeod, supra, n. 28. But cf",R. v. Adams,
supra, n. 28 and R. v. Huot (1968) 70 D.L.R. (2d) 703 (Man.C.A.).
168 This point was raised but not resolved in R. v. Lambert, supra, n. 95 at 15; and R. v.
Sequin, supr~1 n. 115. Mention was, however, made in both cases of the po~sibility
of applying tne Hicklin test. As to the meaning of "publication" in this context, see
Re R. v. Adams, supra, n. 28; R. v. Frazer, supra, n. 167 at 120-121, 132.
168 See generally, Barnett, Obscenity and s. 150(8) of the Criminal Code, ( 1969) 12
Crim. L. Q. 10.
170 R. v. Prairie Schooner News Ltd. & Powers, supra, n. 112 at 268.
171 See R. v. Brodie, Dansku & Rubin, supra, n. 94 at 179; R. v. Georgia Straight
Publishing Ltd. & McLeod, supra, n. 28. But cf".R. v. Anderson & Ors, supra, n. 153.
1974] OBSCENITY 207
depends upon: ( a) the author's purpose, (b) the literary or artistic merit of
the work, and ( c) whether the work offends against community standards of
decency. 172
(b) How do these Different Elements Relate to One Another?
In a detailed examination of this question one Canadian writer recently
commented: 173
In adopting the terms 'purpose', 'merit' and 'community standards" Judson J. substantially
increased the size of the already mushy obscenity jargon with the inevitable result
that subsequent cases would thoroughly shuffle the terms about. Thus R. v. Cameron
considered that 'merit' was relevant in the determinaion of 'obscenity' and 'purpose' but
only if the subject matter of the work did not per se offend 'community standards'·
R. v. Fraur agreed that the whole work in context, as well as purpose and merit must
be considered, to determine a dominant characteristic and undue exploitation, however
'in wei~g all these considerations there should be taken into account the contemporary
and local standards of the community'; R. v. Adams tried to resolve the possible conflict
between • . . merit and community standards test h}' making community standards the
test for merit ... O'Hearn Co.Ct.J. found such a resolution unconvincing and concluded,
in the reverse, that merit and purpose were relevant to the determination of community
standards. It is safe to say that any one consideration has to be held to be relevant to
every other. . . .
A closer examination of the criteria "author's _purpose", "artistic and literary
merit" and "community standards" also serves to deepen the morass of verbiage.
The Brodie case drew a distinction between base purpose ( implying obscenity)
and serious purpose ( implying non-obscenity). Serious p~se has been inter-
preted as having something to do with portraying life with "honesty and
uprightness"m but has also been linked with artistic merit. The Cameron case,
however, illustrates that serious purpose alone will not avail to save a work that
is thought to offend against community standards. 175 Base purpose on the other
hand, is to vilify sex and to treat it as something iess than beautiful" or to write
in a manner calculated to serve aphrodisiac purposes. 176
Literary and artistic merit is a factor whose influence on the judgment that
a work is obscene is complicated by the fact that it has been held to be relevant,
not only to the question, under s.159( 8), what is the dominant characteristic of
the work and whether the exploitation of sex is undue, but also, under s.159(3),
to the issue of whether the "public good" has been served. Moreover the courts
have, understandably, no formula for literary or artistic merit and rely heavily
on expert evidence in this regard. On occasion, however, they refer to the
"internal necessities'' of the work as a measure of its merit in holding that
exploitation may be undue if the writer goes beyond what the theme requires. 177
But this tends to place judges in the strange position of having to become literary
critics whose duties include instructing authors how to write their books after
they have been written.
Offence to community standards of decency is the key variable in the
Supreme Court's interpretation of the meaning of obscene, in s.159(8). Indeed,
so over-riding has become this factor, that the present Canadian test of obscenity
might well be described as the "community standards" test. The basis of the
reference to "community standards" as a measure of the extent to which
exploitation is undue is a series of Australian and New Zealand obscenity deci-
11 2R. v. Brodie, Dansky & Rubin, supra, n. 94 at 179-182.

17s Barnett, supra, n. 169 at 12-13.
174 Surpa, n. 94 at 181.
1 u B. v. Cameron, supra, n. 94.
m R. v. Duthie Books [1967] 1 C.C.C. 245 at 261 ( B.C.C.A.).
1n R. v. Brodie, Dansky & Rubin, supra, n. 94 at 181 but note the comments of Laskin
J. in R. v. Cameron, supra, n. 94 at 306-307.
sions dealing with the phrase "undue emphasis".178 The proposition found in
these cases is that unduly emphasising matters of sex means dealing with them
in a manner which offends against the standards of the community in which the
article is published, distributed etc. In Brodie's case Judson J. in delivering the
majority judgment declared: 179
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 the second is the better choice.
Shortly afterwards, in R. v. Dominion News and Gifts Ltd., 180 the Manitoba Court
of Appeal was called upon to determine whether the dominant characteristic of
two magazines for men was the undue exploitation of sex within the meaning of
the Code. In a dissenting judgment, which was subsequently unreservedly
ap_proved and commended by tlie Supreme Court, 181 Freedman J. offered the
following delineation of community standards: Firstly, the mere numerical
support which a publication was able to attract was not to be determinative of
the issue whether the work was obscene or not, since a sufficiently pornographic
publication would be bound to appeal to hundreds or thousands of prurient,
lascivious, ignorant, simple or merely curious readers. Large readership was not
the main test although it might be taken into account in ascertaining or attempt-
ing to identify the standards of the community in relation to obscene pub-
lications: 182
The 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 or habit of mind.
Something approaching a general average of thinking and feeling has to be discovered.
Secondly, he declared that the community standards applied must be contem-
porary and that recognition must be made of the changing times and ideas and
the increased liberalization and relative freedom with which the whole question
of sex is discussed. Thirdly, the community standards applied must be local
regardless of attitudes which might prevail elsewhere, whether they be more
or less liberal. His Honour's use of the word "local" was unfortunate, for it is
obvious from his judgment that he had national, rather than provincial,
metropolitan or rural standards in mind and that he was merely seeking to
forestall attempts to introduce evidence of United States' tolerance of the publi-
cations. Subsequent decisions have, however, confirmed that the standard to be
applied is a national one.183 How such standards are to be ascertained will be
discussed at a later stage.
The manner in which the constituent elements of s.159(8) are legally
inter-related remains open and uncertain. One valiant attempt to untangle the
web, produced the following equation: 18 '
Base purpose, lack of merit and an offence against community standards count in-
dividually towards a finding of obscenity while serious _purpose, artistic merit and a
non-offence against community standards do not individually count away from a finding
of obscenity unless all three point away.
178 R. v. Crose, supra, n. 155; Wavish v. Associate Newspapers [1959] V.R. 57 (Viet.
Sup.Ct.); In re Lolita [1961] N.Z.L.R. 542 (N.Z.C.A.); R. v. Neville (1966) 83
W.N. (N.S.W.) 501 (N.S.W.C.C.A.).
1 1° R. v. Brodie, Dansky, & Rubin, supra, n. 94 at 183.
18 0 Supra, n. 28.
1 8 1 Dominion News & Gifts Ltd. v. R. (1964) 3 C.C.C. 1 (S.C.C.).
182 Supra, n. 28 at 116.

183 R. v. Adams, supra, n. 28; R. v. CameroniJsupra, n. 94; R. v. Duthie Books, supra, n.
176; R. v. Great West News Ltd., Mante & Mitchell, supra, n. 41; R. v. Goldberg &
Reitman, supra, n. 50.
1 8' Barnett, supra, n. 169 at 20.
1974] OBSCENITY 209
But when a trial judge directed a jury in precisely these terms, the Ontario Court
of Appeal held it to be a misdirection and ruled that a correct charge to the jury
would have been to put to them the three factors of purpose, merit, and
community standards, without reference to weight or relationship. 185
(c) How is the Test Applied in Practice?
An examination of the actual decisions in the reported cases leads to the
conclusion that the application of s.159( 8) leaves much to be desired and that
the real reasons for the decisions are not to be found in the formula: 186
.•. the formula discussed and developed in the abstract, and occupying the greatest
part of the obscenity decisions, has never been satisfactorily applied to the facts but is
applied only by way of salutatory genuflexion, usually to the concealment of whatever
real reason the tribunal may have had for its decision .... Every reported obscenity
judgment without exception is confident and resolute even when forming part of the
minority. When one considers the number of unanimous decisions reversed on appeal
and the very slim deciding majority that has made so much of our law of obscenity>
serious questions arise as to what law individual judges were applying to the facts or,
more basically, as to what the facts were that each judge saw.
When translated into operational terms, the test of obscenity, as interpreted by
Canadian courts, may be little more than, "Does the publication shock the judge?".
If it does, it will be interpreted as being in conflict with community standards>
unredeemed by purpose or merit, and the casual link between the publication
and the social dangers feared will be assumed. This is a far cry from the confident
assertion of the Minister of Justice in 1959, that he had produced a definition
"which will be capable of application with speed and certainty, by providing a
series of simple and objective tests in addition to the somewhat vague subjective
test which was the only one formerly available".
3. Knowledge and Intention
It is to be noted that the omission of the word "knowingly'' from s.159( 1)
and the provision of sub-section 6 make it unnecessary for the Crown to prove,
in the case of a charge under s.159( 1) that the accused knew that the matter in
question was obscene. Under s.159(2), however, the Crown must prove tha~
the offence was committed knowingly and without justification or excuse. The
statute does not explain the reason for the presence of "knowingly" in sub-section
2 and its absence in sub-section 1, though it has been suggested, so far as
s.159( 2 )(a) is concerned, that the difference exists to protect the innocent retail
store proprietors who "sell" and "expose to view" large quantities of magazines
and newspapers, the contents of which, they cannot reasonably be expected to have
read. 187 Certainly the cases indicate that inclusion of "knowingly" requires the
Crown to establish, beyond reasonable doubt, that the accused was aware of the
character of the material published and that it was sold or exposed for public
view with his lmowledge,1 88
This suggestion, that the presence of "knowingly" in sub-section 2, is
intended to protect a certain class of innocent disseminators does not ring true
since the same protection is offered to persons who offend against other sub-
sections, namely s.159( 2 )( b), ( c) and ( d). It is more logical to view the
omission of "Imowingly" from s.159(1), and the addition of sub-section 6, as an
attempt to make it easier to prosecute the manufacturers and commercial dissemi-
m R. v. Times Square Cinema Ltd. (1971) 4 C.C.C. (2d) 229 (Ont.C.A.).

1ss Barnett, supra, n. 169 at 27 & 28.
187 See Practice Note to R. v. Harte-Maxwell (1962) 39 C.R. 172 (Ont.Co.Ct.).
188 R. v. Beaver, supra, n. 149; R. v. MacDougaU, supra, n. 149i R. v. Brittnell (1912)
20 C.C.C. 85 ( Ont.C.A.); R v. American News Co. Lta., supra, n. 59; R. v.
National News Co. Ltd., supra, n. 149; R. ex rel. Bums v. Menkin ( 1957) 118
C.C.C. 306 (Ont.Mag.Ct.); R. v. Cameron, supra, n. 94; Fraser v. R. (1967) 2
C.C.C. 43 (S.C.C.).
nators of obscenity by relieving the Crown of its obligation to prove the element
of lmowledge. It is, in fact, an attempt to turn the offences of making, printing,
publishing, distributing or circulating obscene matter, or possessing obscene
matter for such purposes, into offences of strict liability.
Whether the Criminal Code should contain offences of strict liability is a
question which should be settled as a matter of general principle, rather than on
anoffence by offence basis. Any advantages to the prosecution may well be set
off by the sense of arbitrariness and injustice which is generated when defendants
are denied the usual grounds of exculpation e.g. lack of requisite intent, knowledge,
etc. No case can lie made out for abrogating the general principles of the
criminal law in relation to one? poorly identifiea group of possible offenders 189
while allowing another group full protection. To require mens rea in all cases
would be consistent with principle and would do less violence to the overall
log!c of defining criminal offences in terms of both act and intent. It is true that
such a change would increase the evidentiary burden on the prosecution, but
this is not unduly onerous for the requisite knowledge may, in the absence of
evidence to the contrary, be inferred from proof that the accused had full control
over what was or was not to be published. 190 While honest ignorance will provide
a defence, wiHul blindness or recklessness will not. 191
4. Relationship Between s.159 and s.160
Whereas s.159 sets out a series of offences for which individuals may be
prosecuted, s.160, which like s.159 was added in 1959, provides only for in rem
p~oceedings against the publication itself. The principal sub-section reads: 192
A judge who is satisfied by information ufon oath that there are reasonable grounds for
believing that any publication, copies o which are kept for sale or distribution in
premises within the jurisdiction of the court, is obscene . . . shall issue a warrant under
his hand authorizing seizure of the copies.
this section is based upon the English Obscene Publication Act 1857 ( Lord
Campbell's Act) 198 but contains two important provisions which were not found
in that Act. The first is that the author, as well as the owner of the publication,
may appear and be represented in proceedings to show cause why the matter
seized should not be forfeited to the Crown ( s.160( 3) ) . The second is that once
an order for forfeiture or return has been made under s.160, no proceedings can
be broug!it under s.159 in relation to the same publication except with the
consent of the Attorney-General. This is intended to minimize the risk of double
jeopardy. The courts have supervised proceedings under s.160 with some strict-
ness and if the particulars in the warrant are insufficiently specific, the warrant
may be quashed. 1H
· The issuance of the warrant requires that the judge be satisfied that there
are reasonable ~ounds for believing that copies of obscene publications are
~eing kept for sale or distribution. The order to forfeit or restore the publica-
1soOn its face, s. 159 ( 1) (a) does not cover retail sellers but only those responsible for
the makin~ distributing or circulation of obscene material. Sellers are caught hr
s. 159(2) a). However, in Fraser v. R., supra, n. 188, the Supreme Court of
Canada in ·cated that in certain circumstances the proprietor of a retail book shop may
be liable to conviction under s. 159( 1) (a) in relation to books found on the shelves
of the shop. See also R. v. Yip Men [1970] 4 C.C.C. 185 (B.C.Co.Ct.) and R. v.
Dorosz [1971] 3 O.R. 368 (Ont.C.A.).
1eoR. v. MacDougall, supra, n. 149.
191 R. B% rel. Bums v. Menkin, supra, n. 188; R. v. Lee [1971] 3 C.C.C. (2d) 306
( B.C.S.C.).
192 Canadian Criminal Code, supra, n. 2, s. 60.
19s 20 & 21 Viet. c. 83.
1 9' Mueller v. McDonald, Cowan and A-G for Saskatchewan ( 1962) 133 C.C.C. 183
(Sask.Q.B.); Re.Rand Adams (1969) 2 C.C.C. 21 (N.S.Co.Ct.). See also Vamplew,
Obscene Literature and Section 150~ (1964) 7 Crim. L. Q. 187.
1974] OBSCENITY 211
tions requires only that the court be "satisfied" of their obscenity or otherwise.
The question of the onus and standard of proof required in this context is
complicated by the fact that s.160(2) compels the occupier of the premises from
which the matter was seized to appear before the court and show cause why it
should not be forfeited. It would accord with principle if the word "satisfied"
was amended to read "satisfied beyond all reasonable doubt" and thus made it
clear that the onus of proof still rests squarely upon the Crown. 195
In rem proceedings, which are concerned with the publication itself rather
than with the conduct of an individual offender, are predicated upon obscenity
being seen as an inherent quality in certain subject matter irrespective of the
context in which it is disseminated. The aim of the s.160 procedure is to prevent
certain matter being disseminated at all, and it is no answer to say that the
material was intended to be disseminated to a voluntary adult audience immune
to the harm thought to flow from exposure to such publications. The assumptions
or values underlying s.160 are that commercial exploitation of sexually explicit
material should be prevented, that obscenity inheres in certain identifiable
subject matter, and that the courts should be given power to circumvent the
possibility of any dissemination and profit-making by confiscation and forfeiture.
5. Conspiracy
Section 423 ( 1) ( d) of the Code makes it an offence to conspire with anyone
to commit an indictable offence and s.423( 2) (a) maintains the offence of
common law conspiracy. The significance of these provisions is two-fold. Under
s.423( 1) ( d) a charge of conspiring to commit an indictable offence of distributing
obscene matter may be laid and, as was demonstrated in the English case of
R. v. Clayton and Halsey, 100 may operate to by-pass any safeguards contained
in the obscenity legislation, because the charge is conspiracy and not obscenity.
Section 423( 2) (a) leaves open the possibility that, even if the Code provisions
on obscenity are significantly modified, charges in relation to conspiracy t~
corrupt public morals (as in D.P.P. v. Shaw 197 ) and conspiracy to outrage public
decency ( as in R. v. Knuller 198 ) could be effectively used to punish the dissemi-
nators of sexually explicit material.
6. Private Possession
Unless the matter happens to be a prohibited import under item 99201-1 of
schedule C of the Customs Tariff Act ( see discussion below under heading
'Other Federal Legislation'), private possession alone of obscene material is not
an offence under Canadian law.
Section 159{1) (a) renders possession for the purpose of publication, dis-
tribution or circulation an offence while s.159( 2) (a) punishes possession for the
purpose of selling or exposing to public view. But possession simpliciter is not
prohibited. In 1961, Wilson J. of the Supreme Court of British Columbia held that
the private non-commercial presentation of an obscene film to friends and guests
by a person in his own home did not constitute the offence of possessing
obscene matter for the purpose of "publication" 199 and, recently, the Supreme
1 911 SeeR. v. Dominion News & Gifts Ltd., supra, n. 28 at 115 per Freedman J.
1 96 [1962] 3 All E.R. 500 (C.A.). In Canada, for such an attempt, iee R. v.
McAuslane & Ors (1972) 5 C.C.C. (2d) 54 (Ont.C.A.).
117 [1962] A.C. 220 (H.L.). Mewett, Morality and the Criminal Law, (1962) 14
U.T. L.J. 213 at 220 argues that D.P.P. v. Shaw is not good law in Canada. Even if
maintained, his argument is based upon considerations that are not applicable in
the case of conspiracy to outrage public decency.
10s [1971] 3 All E.R. 314 ( C.A.).
m R. v. Leong ( 1961) 132 C.C.C. 273 ( B.C.S.C.).
Court of Canada held that a similar showing was also not possession for the
purpose of "circulation".200
VI. OTHER FEDERAL LEGISLATION
I r~y think that we are much better qualified to deal with increasing the seasonal
tariff on cabbages and cucumbers than to pass moral judgment on literature coming
into the country.201
1. Postal
The Criminal Code proscription, under s.164, of the use of the mails for the
purpose of transmitting anything that is obscene is sup_plemented by a general
power under s.7 of the Post Office Act202 to restrict the mailing privileges of
those who make unlawful use of the mails, viz:
Whenever the Postmaster General believes on reasonable grounds that any person
(a) is by means of the mails,
( i) committing or attempting to commit an offence
(ii) aiding, counselling or procuring any person to commit an offence, or
( b) with the intent to commit an offence, is using the mails for the purpose of
accomplishing his object,
the Postmaster General may make an interim order . . . prohibiting the delivery of all
mail directed to that person . . . or deposited by that person in a post office.
This power is clearly not restricted to cases in which the source of the
unlawfulness is the dissemination of obscenity. There is provision for appeal
from such prohibitory orders to a Board of Review but the Board's decision is
only advisory and the ultimate power remains vested in the Posbnaster General.
There is no express provision, under Canadian law, for citizens to protect them-
selves against receipt of unwanted or sexually offensive mail, and the Canadian
Post Office has not become involved in the investigation and censorship_ of
obscenity to the same degree as has the U.S. Postal Service.203 Post Office
officials have limited rigl!ts to open mail, and the bulk of complaints and
suspected materials is handled, after local investigation, through the Post Office
Department in Ottawa in conjunction with the Customs and Justice Depart-
ments. Ordinarily, in the case of isolated complaints, the recipient of offensive
mail is advised to complain to the sender. Only mass or repeated mailings of
objectionable matter evoke official intervention but the Post Office does circulate
to its officers an extensive list of addresses, mainly foreign, in relation to which
prohibitory orders exist. ( See Appendix A).
2. Customs
Section 14 of the Customs Tariff Act20• empowers the Crown to seize, destroy,
or otherwise deal with goods whose importation is prohibited under Schedule C
of the Act. Item 99201-1 of Schedule C identifies amongst the categories of
prohibited goods:
Books, printed paper, drawings, paintings, prints, photographs or representations of any
kind of a treasonable or seditious, or of an immoral or indecent character.
200R v. Rioux [1970] 3 C.C.C. 149 ( S.C.C.). Cf. R. v. Berringer, supra, n. 94 and
1
R. v. Piddington (1958) 122 C.C.C. 265 (B.C.C.A.). In the U.S.A. in Stantey v.
Georgia ( 1969) 394 U.S. 557 at 568 the U.S. Supreme Court held that "the First
and Fourteenth amendments prohibit making mere private possession of obscene
material a crime".
201Mr. G. C. Nolan, Minister of National Revenue, (1958) 4 H.C.Deb. 4177.
202R.S.C. 1970, c. P-14.
203Paul & Schwartz, Obscenity in the Mails, ( 1957) 106 U. of Penn. L. Rev. 214;
U.S. Congress, House of Representatives Committee on Government Operations,
Subcommittee Hearing on Use of the Postal Service for the Unsolicited Advertisement
of Hard-Core Pornographic or Otherwise Obscene Material, 1969, Report of the
Commission on Obscenity and Pornography 388-392 ( 1970).
20•R.S.C. 1970, c. C-14.
1974] OBSCENITY 213
In 1970, 4,461 importations were prohibited on the grounds that they were
of an immoral or indecent character. 200 As with the post office, local officials
serve an investigative and enforcement role but questionable material is referred
to Ottawa for decision. In a Tariff Board decision relating to the novel "Peyton
Place", criminal cases on obscenity were referred to and the Hicklin test was
applied in reversing the ruling of the Deputy Minister of Customs that the book be
prohibited entry into Canada on the grounds of its indecency and immorality.206
Appeals from the Deputy Minister have now been transferred to the Courts in
relation to 99201-1 items. 201 The Customs Department attempts to follow the
Criminal Code obscenity cases in setting standards for admission of sexually
explicit material. ( See Appendix B).
It is no answer to a charge of obscenity under the Criminal Code to point
to the fact that the importation of the publication in question was not prohibited
by the Customs Department. Firstly, the phrase "of an immoral or indecent
character" in 99201-1 of Schedule C is not the equivalent of "obscene" in the
Code, and, secondly, permission to import is insufficient to give rise to a defence
of fact as to the character of the matter imported. It may, however, be relevant
to mitigation of penalty. 208
3. Radio and Television
The Broadcasting Act 209 establishes a Canadian Radio-Television Com-
mission which is charged with the responsibility for implementing the broad-
casting policy set down in s.3 of the Act. This policy includes an affirmation
that the right to freedom of expression and the right of persons to receive pro-
grammes is unquestioned "subject only to the generally applicable statutes and
regulations". The Commission is empowered to make regulations respecting
standards of programmes 210 and pursuant to this power has prohibited the broad-
casting of obscene, indecent or profane language. 211 The Commission's primary
sanction is the suspension or revocation of broadcasting licences.
4. Trade Marks Act
Section 9(l)(j) of the Trade Marks Act212 prohibits the adoption in con-
nection with a business, as a trade mark or otherwise, of any "scandalous, obscene
or immoral word or device" or anything that is a close resemblance.
5. Bill of Rights
The decision of the Supreme Court in R. v. Drybones 218 indicated that the
Canadian Bill of Rights 214 might become a more potent guide to legislative
2or; (1970) H.C.Deb. 10809. The Customs Department advises that earlier figures are
1967-115; 1968-518 and 1969-2530. These figures are based upon the number of
prohibitions of issues of a publication or of packages of pictures, photos, leaflets etc.,
sought to be imported. They do not refer to the number of single copies whose
importation was prohibited.
200 Appeal No. 471, re Peyton Place, ( 1958) 92(1) Canada Gazette 1438.
201 Customs Act, R.S.C. 1970, c. C-40, ss. 46, 47 & 48 as modified by s. 50.
208 R. v. Prairie Schooner News & Powers, supra, n. 112.
200 R.S.C. 1970, c. B-11.
210 s. 16(l)(b)(i).
211 Broadcasting Act: Radio (A.M.) Broadcasting Regulations SOR/64-49, s. 5(1)(c),
the same regulations apply to F.M. broadcasting; Broadcasting Act: Radio (T.V.)
Broadcasting Regulations SOR/ 64-50, s. 5 ( 1 )( c), (1964) 98 Canada Gazette
(Part II) Feb. 12, 1964.
212 R.S.C. 1970, c. T-10.
218 [1970] 3 c.c.c. 355 ( s.c.c.).
21' 1960, c. 44.
interpretation than had hitherto been recognized. The Bill in s.l ( d) and ( f)
contains express reference to freedom of speech and freedom of the pressm and
althouJdi the Canadian Act does not enjoy the same constitutional status as the
United' States' First Amendment.216 the courts have, on numerous occasions, paid
at least lip service to the proposition that freedom of expression is a respected value
in Canadian society.217 However, on each occasion, when the courts have been
directly confronted with the Bill of Rights freedom of speech argument, they have
rejected it. In the lower court hearing in the Lady Chatterley's Lover case,
Larouche J. declared: 218
L'appelant a fait grand etat du droit a la liberte d' expression, invoquant a cette fin la
Declaration Canadienne des Droits. Je me permettrai de rappeler sur ce point que si
les paragraphes ( d) et ( f) de I'article 1 de cette loi garantissent les droits fondamentaux
a la liberte de parole et de presse, il faut toutefois reconnaitre que le Parlement n'a
pas entendu pour autant accorder une liberte illimitee qui ne tienne compte d'aucune
norme. II a pris soin de bien preciser dans le 2e alineadu preambule:
'Que les hommes et les institutions ne demeurent libres que dans la mesure ou la liberte
s'inspire du respect des valeurs mora'les et spirituelles et du regne du droit.'
Or, une oeuvre, dont la tenclance est justement de depraver et de corrompre les moeurs,
ne respecte plus les 'valeurs morales' procalmees par la Declaration Canadienne des Droits.
In R. v. McLeod, 210 a case involving a newspaper article which encouraged the
planting of marijuana contrary to s.6 of the Narcotic Control Act, the British
Columoia Court of Appeal denied that upholding the conviction would involve
an interference with the "freedom of the press" as expressed in the Bill of Rights.
Referring to its earlier judgment in Koss v. Konn,220 which held that a section
of the Trade Unions Act did not infringe "freedom of speech", the court again
quoted the words of Lord Wright in James v. Commonwealth of Australia:m
'Free' is itself vague and indeterminate. . . . Free speech does not mean free speechi
it means speech liedged in by all the laws against defamation, blasphemy, sedition ana
so forth; it means freedom governed by law.
And, similarly, in R. v. Prairie Schooner News Ltd. & Powers222 Justices Dickson
and Monnin, of the Manitoba Court of Appeal, rejected the argument that free-
dom of speech guaranteed by the Canadian Bill of Rights includes freedom to
read whatever one desires:
Freedom of speech is not unfettered either in criminal law or civil law. The Canadian
Bill of Rights was intended to protect, and does protect, basic freedoms of vital
importance to all Canadians. It does not serve as a shield behind which obscene matter
may be disseminated without concern for criminal consequences. The interdiction of
the publications which are the subject of the present charges in no way trenches upon
the freedom of expression which the Canadian Bill of Rights assures.
The argument that "freedom of speech" does not really mean freedom of
speech, but must be read subject to existing legal restraints on free expression
is an illogical use of words, though an understandable policy compromise. United
States Supreme Court decisions have taken the _positionthat obscenity is beyond
the pale of the First Amendment protection for speech because it is "utterly
without redeeming social importance", 223 but this is no less illogical since it is
m S. l(d) and (f).

2 16 .. Congress shall make no law . . . abridging the freedom of speech, or of the
press .... .,
211 R. v. Dominion News & Gifts, supra, n. 28 at 117 per Freedman J., aff'd [1964] 3
C.C.C. 1 (S.C.C.); R. v. Co'les Co. Ltd., supra, n. 95 at 311 per Porter C.J.O.; R. v.
Cameron, supra, n. 94 at 305 per Laskin J.A.
21s Brodie, Dansky and Rubin v. R., supra, n. 94 at 225-226.
21 9 ( 1971) 1 C.C.C. ( 2d) 5 ( B.C.C.A.).
22o (1961) 30 D.L.R. (2d) 242 (B.C.C.A.).
221 [1936] A.C. 579 ( P .C.).
222 Supra, n. 112 at 271.
223 U.S. v. Roth, supra, n. 3 at 484; Memoirs v. Massachusetts ( 1966) 383 U.S. 413, 418.
1974] OBSCENITY 215
predicated upon two untenable subsidiary propositions, namely, that something

which generates sexual interest is of no social value, and that the courts' own
involvement in assessing the matter in no way invests it with importance ( not
even importance from an historical or judicial point of view).
Though the point has not yet been discussed in the context of an obscenity
case, perhaps the greatest limitation on a successful appeal to the protection of
the Bill of Rights is the wording of the first part of s.l which recognises and
declares that in Canada there have existed and shall continue to exist "without
discrimination by reason of race, national origin, colour, religion or sex the
following human rights and fundamental freedoms namely: . . . ( d) freedom
of speech; . . . ( f) freedom of the press" ( emphasis added). It follows from
the words "without discrimination" that the fundamental freedoms set out were
not meant to be interpreted as absolute freedoms devoid of control.m Indeed,
on the contrary, it appears that if the "fundamental freedoms" are abridged or
even totally abrogated, s.l of the Bill of Rights would not be violated, provided
the abrogation occurs without discriminating between those to be affected on
grounds of race, national origin, colour, religion or sex. The American constitu-
tional guarantees are not so limited and, accordingly, United States analogies are
of questionable value in considering the likely impact of the Canadian Bill of
Rights on the future of the law relating to obscenity.
6. Relationship Between Federal and Provincial Legislation
The federal government has not expressly enacted legislation relating to
censorship of films or printed material although it is arguable that, by virtue
of the Code and Customs Tariff Act prohibitions, it has already entered the field.
Nine of the ten provinces have passed legislation providing for film censorship
and/or classification2211 and three have asserted similar powers in respect of
written publications. 226
The question is whether such legislation is within the exclusive legislative
competence of the provinces. The issue is important in considering the alterna-
tives available to federal legislators contemplating varying anti-obscenity law.
224 R. v. Smythe [1971] 2 0.R. 209 at 228-229 per Wells C.J.; R. v. Viens ( 1970) 10
C.R.N.S. 363 (Ont.Prov.Ct.); R. v. Lavoie (1971) 2 C.C.C. (2d) 185 (B.C.Co.Ct.);
R. v. Beaulne (1971) 2 C.C.C. (2d) 196 (Ont.H.C.).
m Alberta: Amusements Act, R.S.A. 1970, c. 18; British Columbia: Moving Pictures
Act, R.S.B.C. 1960, c. 254; Manitoba: Amusements Act, R.S.M. 1970, c. A-70; New
Brunswick: Theatres, Cinematographs and Amusements Act, R.S.N.B. 1952, c. 228;
Newfoundland: Censoring of Moving Pictures Act, R.S.N. 1952, c. 75; Nova Scotia:
Theatres and Amusements Act, R.S.N.S. 1967, c. 304; Ontario: Theatres Act, R.S.O.
1970, c. 459; Quebec: Moving Pictures Act, R.S.Q. 1964, c. 55 as amended by the
1965, c. 375. See also Krotter, Censorship of Obscenity in British Columbia: Opinion
Cinema Act, 1966-67, c. 22; Saskatchewan: Theatres and Cinematographs Act, R.S.S.
and Practice, {1970) U.B.C. L. Rev. 123; Kirsch, Film Censorship: The Ontario
Experience, ( 1970) 4 Ottawa L. Rev. 312; Larry & Kirsch, The Men with the
Scissors, ( 1971) 19 Chitty L. J. 73 & 111.
220 Quebec: Publications & Public Morals Act, R.S.Q. 1964, c. 50 deals with provincial
censorship of written publications; Saskatchewan: Queen's Booch Act, R.S.S. 1965,
c. 73, s. 42 provides that action may be brought by or on behalf of the Attorney-
General restraining publication of obscene matter. A similar provision exists in
Ontario's Judicature Act, R.S.O. 1970, c. 228, s. 19(2). (This latter provision was
held to be ultra vires in A-G for Ontario v. Koynok ( 1940) 75 C.C.C. 100 ( Ont.S.C.).
The Crown appealed and the matter was disposed of without further discussion of
the constitutional point: (1940) 75 C.C.C. 405).
Two provinces, Alberta and Ontario, have official "advisory" bodies which have no
legal power to prevent the sale of a publication in the province but attempt to
negotiate with publishers and distributors for the withdrawal from circulation of
material regarded as objectionable. In Ontario. the body is the Attorney-General's
Committee on Obscene Literature, and in Alberta it is the Advisory Board on
Objectionable Publications. Neither body has received the cooperation it would
like from distributors of the more explicit material.
.216 ALBERTA LAW REVIEW [VOL. XII
Can ~orship procedures more elaborate than the simple prohibitions currently
found m the Code, be enacted under the criminal law power? Or does censor-
ship by way of prior restraint fall only within the provinces' enumerated heads
of power?
In ~-G for Ontario v. Koynok 221 Mr. Justice Kelly ruled that the protection
of public morals was not a matter of local or private nature for the provinces
under s.92( 13) of the British North America Act, and the comments of the
members of the Supreme Court in the case of A-G of British Columbia v. Smith 228
in which the Juvenile Delinquents Act was characterized as criminal legislati~n,
disclose generous judicial interpretation of the possible outer limits of federal
criminal law power.
Most recently a Quebec Superior Court ruled that the censorship sections
of the Quebec Publications and Public Morals Act 1964 were ultra vires on the
ground that they fell neither under the B.N.A. Act, s.92(13) (provincial property
and civil rights) nor under s.92( 16) ( matters of a purely local and private
nature), but constituted a usurpation of the exclusive federal criminal law power
under s.91(27). 229 Mr. Justice Batshaw distinguished the cases dealing with the
similarity between provincial highway traffic legislation and s.233 of the Code
( formerly s.221) on the ground that the provincial and federal legislation had
been enacted for different purposes. But in relation to the impugned legislation
before him he saw no such distinction: 230
[B]oth statutes by title and definition deal with the same subject matter, namely the
corruption of public morals by obscene illustrations, in terms which are virtually
identical. . . . It is extremely difficult, therefore, to recognize a valid difference in
object, purpose, or 'pith and substance' between the two enactments. . . . On the
contrary, it seems rather an attempt to use the property and civil rights head of section 92
as a ground for justifying an unwarranted intrusion into the field of criminal law.
Similar attempts have been struck down by the Supreme Court as colourable legislation
in more than one instance.
The decisions emphasize the exclusiveness of the federal power to punish
breaches of public morality and strongly indicate that censorship by way of
prior restraint is possible under the Criminal Code. It is, perhaps, merely coin-
cidental that some of the provinces have restructured their film censorship
legislation to emphasize theatre licencing and film classification rather than
censorship functions. It should also be noted in passing that the fact that a
film has been passed by provincial censorship authorities is no answer to a
prosecution for obscenity under the Code.
VII. DEFENCES
Lascivious . . . works when beauty has touched them, cease to give out what is wilful
and disquieting in their subject and become altogether intellectual and sublime. There
is a high breathlessness about beauty that cancels lust. 231
It is sometimes proposed that even if a work is obscene, it is redeemed by
its possession of certain meritorious qualities which serve the public good, by
the author's sincerity of purpose or reputation, or by favorable comparison with
other unprosecuted works in circulation.
221 Supra, n. 226.

228 [1969] 1 c.c.c. 244 ( s.c.c.).
229 Montreal Newsdealer Supply Company Limited v. Board of Cinema Censors of the
Province of Quebec and the Attorney-General for the Province of Quebec [1969]
c.s. 83.
230 [1969] C.S. 83 at 90-93. See the cases of Dufresne v. The King [1912] 5 D.L.R.
501; Saumur v. Quebec ( 1953) 2 S.C.R. 299; Johnson v. A-G for Alberta [1954]
S.C.R. 127; Birks v. City of Montreal [1955] S.C.R. 799; Switzman v. Elbling [1957]
S.C.R. 285. Similar issues may arise in relation to attempts at municipal regulation
of obscenity: Hlookoff v. City of Vancouver (1968) 67 D.L.R. (2d) 119 (B.C.S.C.).
23 1 Santayana, 4 The Life of Reason 170-171 (191.2).
1974] OBSCENITY 217
1. Public Good
Section 159( 3), provides: 282
No person shall be convicted of an offence under this section if he establishes that the
public good was served by the acts that are alleged to constitute the offence and that
the acts alleged did not extend beyond what served the public good.
Sub-section 4 declares that it is a question of law whether an act served the
public good but it is a question of fact ( i.e. for the jury) whether the acts did or
did not extend beyond what served the public good.
The affirmative defence of public good does not apply to ss. 160, 163 or
164.288 At common law, the publication of an obscene libel under the Hicklin
tests could not be justified on the ground that the "public good" was served or
advanced by the defendant's action. It was Sir James Stephen who first
formulated this supposed defence when, in his Digest of the Criminal Law, 234 he
submitted that:
A person is justified in exhibiting disgusting objects, or publishing obscene books, papers,
writings, prints, pictures drawings or other representations, if their exhibition or
publication is for the puhlic good, as being necessary or advantageous to religion or
morality, to the administration of justice, the pursuit of science, literature or art, or other
objects of general interest; but the justification ceases if the publication is made in such
a manner, to such an extent, or under such circumstances, as to exceed what the public
good requires in regard to the particular matter published.
In Canada, this defence was incorporated into the Criminal Code and, although
it has a long history of changes and modifications,236 the influence of Stephen
can still be recognized.
It is not sufficient to satisfy the requirements of sub-section ( 3) for an
accused person to establish that the public good was served by the alleged act.
He must also establish that the act did not extend beyond what served the public
good. But these requirements of the statutory defence raise questions of con-
siderable difficulty. As Mr. Justice Laidlaw explained in R. v. American News
Company Ltd.: 286
In what way can an accused person establish the requirements of sub-section ( 3)?
How can he prove that the public good was served by the alleged criminal act? How
can he establish that the act did not extend beyond what served the public good? It has
been decided in R. v. Palmer [1937] 68 C.C.C. 20, that the provision in suo-section ( 3)
contemplated and authorized the giving of evidence by the accused to prove that the
public good was served by the acts complained of. But who can say with any degree
of certainty that the _public good was served by an act tending to deprave and corru_pt
the minds of some classes of the public? For every person holding the view that the
public good was served by such an act, the prosecution could no doubt adduce evidence
of another or many other persons who hold the opposite view. Who is qualified to
speak with any authority in answer to the question? I do not know, but I assume that
the presiding Judge would decide that matter in accordance with the }?articular
circumstances of each case. Again, what is included in the words 'public good ? Surely
it does not mean benefit or advantage to the public of every conceivable kind. I suggest
that the limitation on those words appearing in the submission by Mr. Justice Stephen
... namely, that which is 'necessary or advantageous to religion, or morality, to the
administration of justice, the pursuit of science, literature or art, or other objects of
general interest. Without such limitation or description the defence is of such a vague,
indefinite character as to be almost impracticable both in theory and in practice.
In R. v. Cameron,237 MacKay, J.A. noted that there was little judicial guid-
ance on the general subject of public good but rejected as untenable an argument
2a2 Canadian Criminal Code, supra, n. 2.

288 Id.
m 116 ( 3rd ed., 1883).
2aG For history of the "public good" subsection in the Criminal Code, see Laidlaw J.A.
in R. v. American News Co. Ltd., supra, n. 59 at 162-166.
238 Id. at 166.
281 Supra, n. 94.

to th_eeffect ~at, as long as there is artistic merit in a drawing or painting, the

public go?d 1s served, no matter how explicitly sexual matters are portrayed.
Indee.d HIS Honour came close to articulating the position that if a work unduly
exploited a theme of sex as a dominant characteristic the public good could
never be served. 238 But such a position would render nugatory the affirmative
~efence under s.159(3) for it is tantamount to holding that whenever a publica-
tion is obscene under s.159(8) the defence of public good is excluded under
s.159(3). While this position might have made sense under a dual test of
obscenity rHicklin and s.159(8)], it is illogical in the state of the law as presently
interpreted by Canadian courts.
Not only is the meaning of public good unclear, but so is the relationshi:e
between s.159(3) and the reference to "without lawful justification or excuse
in s.159( 2). It is understood that the "public good" defence is an affirmative
defence which must be established by the accused on the balance of probability,
whereas s.159(2) requires the Crown to negative lawful justification or excuse,
and that the Crown must discharge its onus of proof beyond reasonable doubt, m
but what precisely are the heads of lawful justification or excuse under 159(2),
and what relationship they bear to the legitimate heads of public good, is
completely obscure.
2. Author's Purpose
It was previously shown that the process of judicial interpretation of s.159(8)
of the Criminal Code definition of obscenity introduced the author's purpose as
a factor relevant to the determination of obscenity. The cases indicate that the
innocent intentions or excellent reputation of the author should be considered in
assessing whether his work is legally obscene even though he is not the actual
person charged with the dissemination of the alleged obscenity. It is not clear
whether this ground of exculpation is distinct from, or part of, the defences of
"public good" or "literary and artistic merit", but, it is, in any event, essentially no
more than a manoeuvre to divert attention from the conduct of the publisher and
to focus it upon the moral blamelessness of the author who, indirectly, will also
be condemned if the work is found obscene. Thus under s.160 the author, as well
as the owner of the matter seized and alleged to be obscene, may appear in
order to oppose the making of a forfeiture order. Quite apart from evidentiary
problems in relation to the establishment of the author's motives or purposes
(particularly in relation to deceased writers) it is difficult to see how the author's
sincerity of purpose and good reputation alone can be regarded as the antithesis
of obscenity.
3. Literary or Artistic Merit
In Canada, no specific defence of literary or artistic merit exists, although
these factors are considered as relevant to the determination of obscenity under
s.159(8). In England, the supposed defence of "public good" finds expression in
the protection expressly afforded to works of literary, scientific or artistic merit.
Thus s.4(1) of the English Obscene Publications Act (1959) states: 240
A person shall not be convicted of an offence against . . . this Act, and an order for
forfeiture shall not be made . . . if it is proved .that the publication of the article in
question is justified as being for the public good on the ground that it is in the interests
of science, literature, art or learning, or of other objects of general concern.
In Australia, the legislation of each state offers differing degrees of immunity
2as Id. at 287 - 288.

289 Since the Crown is being called upon to prove a negative as an element of the
charge, little proof will often suffice: R. v. Cameron, supra, n. 94 at 287-288, 289-293
&: 300-301.
240 English Obscene Publications Act, 1959.
1974] OBSCENITY 219
to a variety of material. The protection offered ranges from the requirement

that the tribunal consider any such merit merely as a factor in determining the
issue of obscenity, to an acceptance of literary, scientific or artistic merit as a
complete defence. In two states of Australia express reference is made to
exemption from criminal liability accorded bona fide professional or political
publications. 241 The argument for expressly recognizing defences of this nature
is considered below.
4. Comparison With Other Books
Another suggested defence is that if the publication complained of is not
materially different from others which circulate freely at the time of the prosecu-
tion, it ought not be found obscene. In R. v. Coles Company Limited,m counsel
for the appellant argued that since, in Brodie's case, the book Lady Chatterley"s
Lover was held not to be obscene, the publication then before the court ( the
book Fanny 'Hill) should also be ruled unobjectionable. The court refused to
accede to the request, in accordance with the principle established in the English
cases that the character of other unprosecuted books is irrelevant to the
determination of the obscenity or otherwise of a publication before the court.248
It must, however, be pointed out that comparison with other books is not
totally barred since, if literary merit of the work is put in issue, either under
s.159(3) or 159(8), evidence relating to the nature and standards of contem-
porary literature would be admissible to establish whether the publication has
redeeming merit
In similar fashion the climate of literature, as evidenced by the widespread
circulation of books, can be of particular relevance to the "community standards'"
interpretation of "undue exploitation"' in the Criminal Code definition of ob-
scenity. It may well be argued that whether writing offends against a community's
standards of decency can be gauged by the extent to which publications similar
to those charged as obscene are freely circulating and publicly tolerated. 2 "
But this is not acceptable to the courts as an indicator of the community's
standards of decency and tolerance, and therefore demonstration of the wide
dissemination of similar but unprosecuted works can never, of itseH, be used as
a defence to an obscenity charge. Such evidence may, however, be taken into
account by the judge or magistrate in imposing sentence. 24 :i
5. Why Special Defences?
If the legal controls on the publication of obscenity are designed to protect
the community from harm, why allow such defences?246 In the case of works of
literary, artistic and scientific merit it is argued, by those who place a high value
on literary skills, aesthetic quality and scientific objectivity, that these qualities
carry with them a kind of disinterest or detachment which is incompatilile with
corruption. This is a difficult proposition to accept, for it is more reasonable to
eX!)ectthat literary skill would render the obscenity more palatable, more potent
anathus more likely to influence readers.
When the Roth case was before the United States Federal Court of Appeals,
Mr. Justice Frank noted the curious dilemma wherein obscenity statutes condemn
241 Victoria: Police Offences Act, 1958, s. 180; Queensland: Objectionable Literature
Act, (1954), s. 4(2).
242 Supra, n. 95.
Ha Id. at 313, referring to R. v. Reiter, supra, n. 153 and Galletly v. Laird, supra, n. 118.
2u See Robson v. Hicks Smith & Sons Ltd. [1965] N.Z.L.R. 113; R. v. Cameron, supra
n. 94 at 309-310. · ·
m R. v. Close, supra,, n. 155 at 453; Kerr Hislop v. Walton [1952] N.Z.L.R. 267· at 271.
2,s See generally, Hughes, supra, n. 18; Clor, supra, n. 39 at c. 7.
the books that were dull and without merit ( the ones least likely to affect readers)
yet exempted works of literary distinction ( books most likely to affect readers)
and he commented: m
The courts have not yet explained how they escape the dilemma, but instead seem to
have gone to sleep ( although rather uncomfortably) on its horns.
The explanation certainly does not lie in Santayana's belief that somehow art
magically effaces or nullifies obscenity. Art and law exist in different realms
and even the finest artistic creation may be adjudged obscene if the court
believes that it satisfies the legal criteria prescribed. To date the criteria
applied in the judicial determination of obscenity are not drawn from the world
of art, science or literature; they are crude expressions of what are thought to
be the moral values of the community.
The special defences do not change something which is obscene into some-
thing which is not obscene. 248 The correct analysis of the special statutory
exemptions is that they enable writing of cultural or social worth to escape
suppression despite the fact that it deviates from accepted standards of decency.
This is a manifestation of a belief that art, literature and the sciences are a mark
of civilization and that high value should be placed upon freedom of expression
in these areas. It would appear, in Canada, where specific defences of literary,
artistic or scientific merit are not available or are subject to restrictive qualifica-
tions in theory or practice, freedom of literary, artistic or scientific expression is
not accepted as a value paramount to that of avoiding the harm feared from
obscene publications.
It should also be added that recognition of special defences of artistic, etc.
merit implies recognition of a doctrine of inherent obscenity since it involves
examining the allegedly obscene text in isolation. This would mean that if the
content is found to possess merit, the work would not be accounted legally
obscene no matter to what audience it was distributed. On this theory a medical
text, having scientific merit, would neither be obscene in the hands of doctors
nor in the hands of children. The doctrine of circumstantial obscenity on the
other hand, is less concerned with the inherent qualities of the publication than
with the use to which it is put. Thus a poronographic book in the hands of sex
researchers still remains erotic, but the person who sold the book to them is
entitled to be acquitted, not because the work has scientific merit, but because,
in the circumstances, the work was disseminated to an audience not likely to be
harmed. In this context it is relevant to note that the defence of "public good"
under s.159( 3) does not refer to whether the book or publication was for the
public good but whether the public good was served by the acts ( i.e. sales,
distribution, etc.) that are alleged to constitute the offence. Under this formula-
tion, literary etc. merit is relevant as only one factor in the circumstances of
dissemination which determine the legal obscenity of the book, rather than a
unique feature which redeems a publication which would otherwise be considered
inherently obscene.
VIII. EXPERT EVIDENCE
. . . the departure from [ the Hicklin rule] has meant not only a change in the legal
test of obscenity but also a change in the kind of evidence, information and materials
receivable by a court in that connection. . . . It is important in this branch of the law
that Judges, especially when trying cases without a jury, and Magistrates should be
exposed to the persuasion of evidence and extrinsic materials to counter-balance the
ineradicable subjective factor residing in the application of any legal standard of
obscenity, however objective it purports to be. 249
241 U.S. v. Roth, supra, n. 3 at 819.

2,s R. v. National News Co. Ltd., supra, n. 149.
2,e R. v. Cameron, supra, n. 94 at 302 per Laskin J.
1974] OBSCENITY 221
Expert opinion evidence is likely to be adduced in obscenity cases in relation

to the establishment of the defence of "public good" under s.159(3), to prove the
author's purpose, and literary, artistic or scientific merit, and in order to demon-
strate the nature of community standards. Although the Criminal Code does
not go as far as the English legislation to expressly provide for the admissibility
of expert opinion evidence on the literary, scientific, or other merits of the publi-
cation before the court, 250 there is no doubt that as a matter of practice such
evidence is admissible.251 Indeed the courts' acceptance of the relevance of the
author's purpose, and of merit, renders indispensible the appraisal of literary and
scientific experts for, without their assistance, the courts would find themselves
in the role of having to assume the character of the literary expert - a role
which magistrates are rarely competent to _Qlay.Since under s.159( 8) of the Code
the courts are required to test the allegedly obscene matter against the current
community standards of acceptance and tolerance, the problem of deciding how
to ascertain the standards must be faced. The Australian courts which have had
occasion to deal with this issue have taken the view that the appropriate tech-
nique of assessing community standards is simply to leave the entire issue to
the tribunal of fact, which is assumed to have the requisite knowledge. Thus,
typically, in Wavish's case Martin J. declared that: 252
When the question is whether a book or article, judged by _present day standards . • •
offends against the standards of the community, I consider that a Magistrate or Jury is
just as capable of deciding if it is likely to have that effect as are psychiatrists or
psychologists.
The Canadian approach to the discernment of community standards is to allow
the tribunal of fact to hear expert evidence. This technique accepts that
community standards are phenomena which, although diverse, may be capable
of objective ascertainment and that the courts need not restrict themselves to
evidence culled only from "common sense", "ordinary experience", "judicial
notice", or other similar introspective approaches. Thus, in R. v. Great Western
News Ltd., Mantell and Mitchell,253 the Manitoba Court of Appeal held that, in
the trial of an obscenity charge, expert testimony to describe the standards of
the community is admissible in evidence though it is not sine qua non of con-
viction. 254 It is relevant, in passing, to note that the compilers of the American
Law Institute' s Model Penal Code also recognized the value of expert evidence
in obscenity cases in their proposal that, in any prosecution for obscenity, evi-
dence ( including expert testimony) should be admissible to show, inter alia, the
degree of public acceptance of the material. 255 However incomplete their
scientific evidence may be, the experience and findings of social scientists called
upon as expert witnesses are likely to be more objective than the intuition of a
judge, magistrate or jury and therefore they provide a preferable basis for the
court's decision.
250 England: Obscene Publications Act, 1959, s. 4( 2).

251 R. v. Brodie, Dansky & Rubin, supra, n. 94; R. v. Coles Co., supra, n. 95. But note
s. 7, Canada Evidence Act, R.S.C. 1970, c. E-10 provides that not more than five
expert witnesses to give opinion evidence may be called by either side without leave
of the court.
252 [1959] V.R. 57 at 63. See generally, Fox, supra, n. 44 at c. 8; Whyte, Use of Expert
Testimony in Obscenity Litigation, [1965] Wisc. L. Rev. 113; Ross, Expert Testimony
in Obscenity Cases, ( 1966) 18 Hastings L. J. 161; Stern, Toward a Rationale for
the Use of Expert Testimony in Obscenity Litigation, ( 1969) 20 Case Western
Reserve L. Rev. 523.
253 Supra, n. 41. Leave to Appeal Denied: Supreme Court Bulletin, February 6, 1970.
254 But cf, the dissenting judgment of Laskin J. in R. v. Cameron, supra, n. 94 at 305;
eXJ?~rtevidence to assist the judge or magistrate, or judge and jury, is accordingly
indispensible.
2 1515Model Penal Code ( Proposed Official Draft), 1962, s. 251.5 ( 4 )( d).
In three recent obscenity cases Canadian courts have been invited to receive
survey evidence of community standards of tolerance of sexually explicit
material. The judicial responses indicate a willingness on the part of the courts
to admit properly introduced social survey data which appears relevant to the
resolution of the question whether the publication offends community stand-
ards. 256 The judges are, however, not without their hesitancies and there is still
some ambiguity as to the proper basis upon which survey findings can be
admitted.
In each of the three cases the survey evidence was not admitted, or was
treated as having no persuasive weight. In part, this was because of methodo-
logical wealrnesses in the research itseH, but the major difficulty arose because
under s.159(8), the courts must seek a national standard of tolerance and not
merely a provincial or local one.m Surveys are grounded in the logic of attempt-
~g to measure the whole by an examination of a representative part. The
difficulties in obtaining a representative, unbiased sample for the purpose of
establishing national community standards are substantial if not insuperable.
In Prairie Schooner News Ltd. & Powers, Mr. Justice Freedman adverted to the
problem of the survey becoming too costly and impracticablem and this may
constitute an important factor in considering whether the search for a national
standard is a realistic basis upon which to test obscenity.
Ironical though it may appear, if the legal definition of obscenity is
interpreted to require scientific evidence of a very high standard, and the
defence does not have the resources to commission the necessary study, the courts
will revert to use of impressionistic opinion evidence. Thus in R. v. Pipeline
News 250 survey evidence was adduced by the defence but rebutted by prosecu-
tion expert witnesses and ultimately excluded as a ponderable factor in the
decision. The judge, then having decided that the scientific evidence was
inadequate to assist him in deciding whether the material before the court con-
travened national Canadian community standards, in accordance with well
established principles 260 dutifully applied a standard based upon his own
subjective experiences: 261
. . . 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.
Though obscenity is a legal concept, it is wrong for the court to assume that
in every case it has sufficient knowledge of the factual basis upon which the
legal definition is to operate. The court must not deny itseH the op:Vortunityof
being enlightened, if for no other reason than the fact that the experts testimony
may act as an antidote to an underlying unstated, variable in the case, namely,
the judge's own moral conservatism. The fact that the task of assessing the merits
of the often conflicting opinion of experts will be a difficult one is no ground
for refusing to hear such evidence and reverting to an intuitive method of
determining the matter.
If the law of obscenity is to be modified it is essential that provision be made
for permitting the receipt of such evidence and that attention be paid to the
25eR. v. Prairie Schooner News Ltd. & Powers, supra, n. 112; R. v. Times Square
Cinema Ltd. (1971) 4 C.C.C. (2d) 229 (Ont.C.A.); R. v. Pipeline News (1972) 5
C.C.C. ( 2d) 71 (Alta.Dist.Ct.).
m See Fox, Criminal Law-Survey Evidence of Community Standards in Obscenity
Prosecutions, (1972) 50 Can. Bar Rev. 315.
2GsSupra, n. 112 at 259.
259 Supra, n. 256.
260 R. v. Great West News Ltd., Mantell & Mitchell, supra, n. 41.
m Id. at 314-315.
1974] OBSCENITY 223
question whether the legal definitions are formulated in such a manner as to be

incapable of being objectively assessed, having regard to the costs involved and
the available techniques of social science.
IX. ARGUMENTS FOR CHANGE AND LEGISLATNE ALTERNATNES
If one has to choose the most muddled law in Canada today there is no doubt that the
law relating to obscenity would be a top contender. 262
The arguments over revision of the law relating to obscenity range from those
which indicate a basic satisfaction with the status quo to those which reflect
demands either for more stringent laws, or for the total abolition of legal control.
Sometimes the demand is simply for increased ( or decreased) efficiency in
enforcement without reference to the state of the law but, by and large, the two
are interwoven and modification of the law is thought to be the panacea for all
complaints.
1. Preserving the Status Quo
One end of the continuum of opinion holds that the existing law is satis-
factory, both as formulated and in practice. If there are problems, they arise
from discrepancies in enforcement, but these are discretionary matters for police
officers and prosecutors who have to act according to the climate of opinion in
their local community and the policing resources available to them. 263 The
exercise of these local discretions provide a useful buffer between legislation
which can only be defined in broad principles and which, because of its very
subject matter, cannot provide elaborate, unambiguous guidance in specific cases.
According to the proponents of this view, "obscenity" describes a feature of
common experience which is sufficiently familiar to warrant dispensing with the
attempt at a comprehensive definition. In addition, the claim is made that even
though there is uncertainty as to its range of meaning, the word is no more vague
than other terms used by the courts since "the law is full of instances where a
man's fate depends on his estimating rightly ... some matter of degree".m
Moreover, there is evidence suggesting that the North American community
is in fact not greatly concerned about obscenity._ The 1970 interview survey
of a random sample of 2,486 adults and 769 young persons in the United States,
conducted at the request of the Commission on Obscenity and Pornography, found
only 2% of the population referred to erotic materials as one of the two or three
most serious problems facing their country. 265 In Canada, the wide range of
sexually explicit materials openly available and the low number of prosecutions
or seizures instituted by police ( see Appendix C) may also be read as suggesting
that there is no overwhelming concern for a modification of the status quo.
2. Clarification and Re-definition of Existing Law
A variation of the status quo position is one which merely seeks legislative
settlement of the major unresolved interpretative issues that are a product of the
1959 attempt to introduce a double test of obscenity into the Code. This form of
"tidying up" requires no major policy changes but looks to the legislature to
settle the following:
(a) Whether the Hicklin test of obscenity is now totally abrogated in Canada in
favour of the definition in s.159( 8)?
2e2 Schmeiser, Civil Liberties in Canada 232 (1964).

2es Graburn, Excerpts from Lecture to School for Crown Attorneys and Assistant Crown
Attorneys delivered at the Centre of Criminology, Toronto, August 19, 1969, ( 1969)
6( 4) Performing Arts in Canada 6.
2H Nash v. U.S. (1913) 229 U.S. 373 at 377.
2H Commission on Obscenity and Pornography, supra, n. 36 at 187-188.
(b) If it is clearly no longer to be part of the law, what test of obscenity should
apply to Code offences not involving "publications"? Should s.159( 8) apply
to all media forms?
( c) ~at is ,,the relationship between the words "obscene", "indecent" and
unmoral as used in the Code and other Federal statutes dealing with
obscenity and related matters? Would a single common word such as
''obscene'' be sufficient for certainty of interpretation?
( d) J'h:it. is ~e role and r~latiy~ wei~~ of "public good", "author's purpose",
artistic literary and scientific ment and "community standards" in the
determination of obscenity? And how are these factors to be related one to
another?
( e) What intention or knowledge is required to constitute the mental element
in offences involving dissemination of obscenity? Can these matters not be
dealt with as an aspect of the codification of the general part of the criminal
law?
Any such operation will be based upon the premise that the climate of
public opinion is not such as would permit either obscenity laws to be swept
out lock, stock and barrel, or extended and expanded. The concern is for
clarification and, perhaps, some amelioration through the introduction of logical
and, at least, internally consistent anti-obscenity legislation.
A more substantial "tidying up" operation micii,t include consideration of
provisions which would redefine obscenity; clari1y the nature of defences;
require warnings prior to seizure or prosecution; and allow interested parties to
obtain non-punitive declaratory judgments regarding the alleged obscenity of
disputed publications. But, whatever approach short of total repeal is taken to
the role of the criminal law in the censorship of sexually explicit materials, a
number of common problems will inevitably remain.
Firstly, what is the legislative intention in enacting or maintaining such
legislation? As has been demonstrated earlier in this paper, the raison ii etre of
the law of obscenity is not clear, but it appears to be an amalgam of utilitarian
and moral justifications, not all of which can stand up under close examination. If
the legislature takes the view that the evils obscenity legislation is designed to
sup_pressinclude sexual arousal, overt misbehaviour, change in moral standards
and commercial exploitation, the law will need to be far broader in application
than if the danger is thouciit to rest only in offence to the public and distorted
sexual education of juveniles.
One possible way of solving this first difficulty would be by incorporating a
statement of purpose in the anti-obscenity legislation. Statements of legislative
aims, purpose or intent ( a function which at one time was served by the preamble
of an Act) could be used not onlr for the Criminal Code, as a whole, but also
for sections creating specific offences ( unless the point of the section is
unquestionably self-evident). Under Canadian law, the courts may not look to
parliamentary debates for elucidation of legislative intent; and even were they
permitted to do so, they would find themselves in considerable difficulty in
determining which statements made during the progress of a Bill represent the
legislature's policies. A statement of legislative policy incorporated in the Act
itseH would obviate this problem. Though the drafting difficulties should not
be underestimated, the value of such a statement is threefold: it would serve to
expose for critical evaluation the hitherto unstated, and often unwarranted,
assumptions upon which the legislation has been built; it would provide police
and prosecutors some guidance as to the manner in which they should exercise
their largely unfettered enforcement discretions; and it would provide courts
with some identification of the social harm which the legislature is seeking to
forestall as well as an indication, more helpful than the mere listing of sentencing
maxima, of the manner in which the court should regard offenders.
1974] OBSCENITY 225
The American Law Institute's Model Penal Code provides general statements
of purpose in its introductory sections dealing with matters such as purposes,
principles of construction, general principles of liability, justification, respon-
sibility, and so forth. The United States Commission on Obscenity and Por-
nography introduces its proposed legislation controlling the sale and display of
explicit sexual material to young persons with the following specific statement
of purpose:26a
It is the purpose of this section to regulate the direct commercial distribution of certain
explicit sexual materials to young persons in order to aid parents in supervising and
controlling the access of children to such material. The Legislature finds that whatever
social value such material may have for young persons can adequately be served by its
availability to young persons through their parents.
and the section prohibiting public displays opens with: 267
It is the purpose of this section to prohibit the open public display of certain explicit
sexual materials, in order to protect persons from potential offence through involuntary
exposure to such material.
A second common problem concerns the definition of the subject matter
prohibited. No single word such as obscene, indecent, or immoral (wor~
presently used in the Code) or related terms such as pornographic, objectionable
or offensive, can suffice to give fair warning of the subject matter objected to or
of the adjudicative standards to be applied. The Legislature may choose, in a
search for clarity, to enact "clear" and "simple" prohibitions which offer n<?
~eater definition of the matter prosecuted than the requirement that it be
obscene". The clarity and simplicity thus attained is illusory for, as the
Canadian experience demonstrates, the door is then opened to a multitude of
uneven judicial interpretations which turn out to be neither clear, simple not
self-evident. The statutes sometimes opt for a recitation of multiple synonyms
as a means of definition, but this is no advance and serves only to confuse. If it is
intended to maintain some form of criminal law control, an attempt will have to
be made to identify the prohibited material in terms more meaningful than used
in the past. ·
Two main approaches are possible. The first attempts to define the matter
objected to by reference to its impact on others in bringing about the mischief
the legislature is seeking to restrain, e.g. as in the Hicklin test: obscene matter
is that which tends to deprave and corrupt a susceptible audience. The alterna'."
tive tack is to try to define the prohibited matter by reference to its content
and its internal characteristics, e.g. as under s.159( 8): obscene material is that in
which the undue exploitation of sex is a dominant characteristic. The latter type
of definition appears potentially more objective, and easier to apply, but it
always carries with it the unstated assumptions that all material exhibiting these
characteristics is harmful to viewers and readers. The former style of definition
is vague as to the internal characteristics of the publication but has the advantage
of concentrating on effects. Both forms of definition need to be supported by
provisions which permit evidence to be given regarding the effects of th.e
publication in question, and the law should not permit the impact to be implied
or inferred as under the Hicklin rule in practice.
The first type of definition reflects the concept of obscenity as circum-
stantial in nature; the second treats obscenity as an inherent quality of certain
subject matter. But both types of definition will be defective if they are couched
in such generalities as to· fie almost totally devoid of objective meaning. The
English experience with the case of John Calder (Publications) Ltd. v. Powell 268
where the words, depravity and corruption, were extended to non-sexual forms of
2 5a Id. at 76.
267 Id. at 78.
260[1965] 2 W.L.R. 138.
ALBERTA LAW REVIEW [VOL. XII
corruption, is a telling illustration of the ambiguities which exist At least s.159(8)

~ecifies that the content of obscenity must be sexual in nature. Present Canadian
legislation still, however, attempts to avoid the need for a more elaborate defini-
tion by casting off responsibility to the courts through the use of generalities such
as "unduly emphasizes". But the judicial interpretation of this phrase has led to
more confusion and subjectivity than the Minister of Justice ever expected when
he introduced it in 1959.
Th.e .~ommission on Obs_cenityand Pornography, in attempting to cope with
the definitional problem, av01ded use of the word, obscene or indecent, and made
its prohibitions turn on what is described as "explicit sexual material". This is
defined as: 269
Any pictorial or three dimensional material including but not limited to books
magazines, films, photographs and statuary, which is maae up in whole or in dominant
part of depictions of human sexual intercourse masturbation, sodomy ( i.e., bestialicy, or
oral or anal intercourse), direct physical stimulation of unclothed genita½, or flagellation
or torture in the context of a sexual relationship or which emphasizes tne depiction of
uncovered human genitals; provided however, that works of art or of anthropological
significance shall not be deemed to be within the foregoing definition.
The definition problem must be tackled though it will never be solved. The
subject matter which constitutes obscenity, and the circumstances in which such
material is regarded as being justifiably exposed, changes over time and remains
as illusive as the search for community standards under s.159(8) of the Code.
The compromise that may have to be considered in a clarification and
r.edefinition exercise is a combination of a more objective definition of the subject
,natter thougltt to be inherently obscene ( along the lines suggested by the
Commission definition above) together with a clear legislative recognition of
the circumstantial nature of the plienomenon of obscenity in the form of exemp-
tions from liability or affirmative defences. These may be based upon the
redeeming qualities of the work and upon proof of the fact that the circumstances
of its dissemination indicate that the harm feared is unlikely to occur. In other
words, the legislature defines the content of matter regarded as prima facie
obscene, but acknowledges in certain circumstances of dissemination that that
same material should not be legally accounted obscene notwithstanding the
social judgment that the content of the material is obnoxious. An example of
legislative recogrrltion of the circumstantial nature of obscenity is found in the
final report of the National Commission on Reform of U.S. Federal Criminal
Laws. The section dealing with obscene material provides: 270
It is a defence to a prosecution under this section that dissemination was restricted to:
(a) institutions or persons having scientific educational, governmental or other similar
justification for possessing obscene material; or ( b) non-commercial dissemination to
personal associates of the actor; or ( c) dissemination carried on in such a manner as, in
fact, to minimize risk of exposure to children under 18 or to persons who had no
effective opportunity to choose not to be so exposed.
Works of literary or scientific merit, if not thought to be protected under
(a) above, could be incorporated in the definition of obscene matter and
·e~2m ted from liability in the same way as works of art and anthropological
si · ·cance are excluded under the draft legislation recommended by the
0 scenity Commission.
Such provisions may need to be supplemented by a section such as s.251.4
·of the Model Penal Code which expressly provides that evidence shall be
admissible to show, inter alia:271
:ia 9 Commission on Obscenity and Pornography, supra, n. 36 at 77.

270 National Commission on Reform of Federal Criminal Laws, Final Report, Wash-
ington, 267 ( s. 1851 ) ( 1971 ) .
271 Model Penal Code (Proposed Official Draft), 1962.
1974] OBSCENITY 227
(a) the character of the audience for which the material was designed or to which it
was directed;
( b) what the predominant appeal of the material would be for ordinary adults or any
special audience to which it was directed, and what effect, if any, it woula
probably have on conduct of such people; ·
( c) artistic, literary, scientific, educational or other merits of the material;
( d) the degree of public acceptance of the material•...
It may also be necessary, having regard to the general objections voiced against
the law of conspiracy, and the particular manner in which it can be used to
by-pass safeguards built into the substantive law of obscenity, either to prohibit
prosecutions for con~iring to disseminate obscene matter, or to enact legislation
ensuring that the defences available to disseminators of obscenity may be
equally available to those who agree with each other to distribute such material.
Consideration may also be given to the introduction of a legislative require-
ment of warnings before prosecution in the case of commercial distributors. At
the moment, although the police may exercise a discretion to warn booksellers
and others of their intention to prosecute, there is no legal obligation on them to
do so.272 Written warnings before prosecution may be advantageous both to the
Crown and the accused. They would aid the Crown in establishing mens rea
if the material was sold despite the warning, but they would also permit the
seller to take steps to withdraw from sale or otherwise limit the dissemination of
the material objected to without a prosecution being instituted.
Since the only manner in which the warning could be challenged, would be
by continuing to sell or disbibute the alleged obscenity and thus invite criminal
prosecution with its attendant risks, the arbitrariness of a police warning or
prosecution system might be limited by the introduction of a means whereby the
question of the obscenity of a publication could be resolved by some form of
declaratory judgment which carried no immediate threat of punishment. In
1963, New Zealand created a special Indecent Publications Tribunal 278 whose
sole function is to determine whether any book, magazine or periodical ( either
in manuscript or final form) or any sound recording referred to it, is indecent. m
The Tribunal has, however, no power to punish disseminators of offensive
works. The legislation provides that whenever the question of the indecency of
a publication or recording arises in any civil or criminal proceedings, the court
hearing the matter must refer the question to the Indecent Publications Tribunal
for decision and report. The Tribunal is granted exclusive jurisdiction to
determine the issue of indecency in such cases. Furthermore, the Comptroller
of Customs, the Secretary of Justice or, by special leave, any other person may
submit a publication or record to the Tribunal for decision without any civil or
criminal proceedings having been instigated. And once it has been delivered,
the decision of the Tribunal as to the character of the work becomes conclusive
evidence in any subsequent judicial proceedings other than an appeal to the
Supreme Court. The legislation takes into account the circumstantial nature of
obscenity and indecency by providing that the Tribunal may declare that the
work is indecent only in the hands of persons under a specified age, or that it is
21 2 Such legislation exists in Australia - W.A.: Indecent Publications Act, 19~ s. 6;

Queensland: Vagrants, Gaming and other Offences Act, 1931-67, s. 14.
21a N.Z.: Indecent Publications Act, 1963. For a detailed exposition of the history and
work of the Tribunal, see Perry The Indecent Publications Tribunal ( 1965} and
McKean., The War Against In~cent Publications, ( 1965) 1 Otago L. Rev. 75.
The Triounal consists of a Chairman who must be a barrister or solicitor of at least
seven years' standing and four other members of whom at least two must have
special qualifications in the field of literature or education.
2 7' The operative term in the New Zealand legislation is "indecent». The word "obscene''
is not used but "indecent" covers the same ground since s. 2 declares that "indecent'"
includes "describing, depicting, expressing, or otherwise dealing with matters of sex,,
horror, crime, cruelty or violence in a manner that is injurious to the public good".
-indecent unless restricted to specified persons or classes of persons, or unless it

is used for a particular purpose. Similarly, changing community standards are
taken into account by a provision that permits reclassification of a work after
three years. A similar system of declaratory judgments is in operation in
Massachusetts through the civil courts 275 and such an approach has been mooted
for Canada in recent years276 though, if introduced, it would have to be defined
as falling within the criminal law head of constitutional power.
The seizure provisions under s.160 are designed to prevent certain matter
being disseminated at all. If such in rem proceedings are to be continued in
revised legislation, it must be pursuant to a clear legislative desire to prevent
commercial distribution of sexual material irrespective of the audience to whom
it is to be made available. If profit-making is not the harm feared and obscenity
is recognized as being circumstantial in nature, it would be logical to amend
s.160 to enable the respondent to show that the audience to whom the material
.was or was likely to be disseminated was not the class of person whom the law
was attempting to protect.
Insofar as unevenness of enforcement is concerned, a possible means of
curbing the prosecutorial zeal of individual police officers might be to require
the consent of the Attorney-General before proceedings are brought, as is
presen~y _necessaryunder s.170 of the Code ( offence of public nudity). Finally,
in claritying existing law, consideration should be given to the abrogation of
s.159( I) ( b) and ( 7) ( prohibitions on crime comics) and the references to
,seizure of crime comics in s.160. As a distinct category of offensive material,
"crime comics" is so all-encompassing as to be practically meaningless. Attention
must be paid to articulating the legislative policy behind such prohibitions and,
if the harm feared is the learning of criminal techniques, it will become relevant
to ask why other media forms, especially television, are not also included within
the wording of the prohibition. If portrayal of excessive violence itseH is objected
to, it may be clearer to identify this as a distinct category outside the definition of
·obscenity,211 rather than continue with the combination of sex and crime, horror,
cruelty and violence which now make up s.159( 8). Again, however, the questions
must be put: On what basis and for what purpose are these prohibitions included?
Are there groups or classes of persons in whose hands this matter is not objection-
able? Are there circumstances in which such material can be disseminated
.without social danger? If so, the law should, logically, permit exceptions from
-liability and specify them in terms more precise than iawful justification or
.excuse', or "public good" which define the present exculpations in the Code.
Similar questions must also be answered in respect of s.159( 2) ( b), ( c) and ( d).
It may be more appropriate to treat s.159(2) ( b) ( public exhibition of disgusting
object or indecent show) under an extension of common nuisance ( s.176) and
s.159( 2) ( c) and {d) ( advertisement and/ or sale of abortifacients and treatments
for impotence and V.D.) may, if required as continuing prohibitions against false
advertising or advertising illegal drugs, be relegated either to provincial false
advertising or V.D. control legislation, or incorporated in Federal drug
regulations.
2 75 Zellick, New Approach to the Control of Obscenity, ( 1970) 33 Mod. L. Rev. 289.
2 10 Krotter, supra, n. 225. See also Mohr, supra, n. 108 at 69-70 for a suggested
"non-coercive" system of preventive justice in relation to obscene publications.
277 Clor, supra, n. 39 at 245, offers the following as an element which might be
included in a legal definition of obscenity: "An obscene book [etc.] is one which
tends predominantly to:
Visually portray in detail, or graphically describe in lurid detail, the violent
physical destruction, torture, or dismemberment of a human being provided
that this is done to exploit morbid or shameful interest in these matters
and not for genuine scientific, educational, or artistic purposes.
1974] OBSCENITY 229
As far as other Federal legislation is concerned, if prohibitions on obscenity

are to continue, a common clescriptive term for the prohibited material is
required, together with reference to the Code definition of that same term. The
Customs Tariff Act schedule refers to indecent and immoral publications; yet, in
the first and only reported Tariff Board Appeal on the meaning of these words,
they were treated as calling forth the Hicklin test of obscenity, 278 and two of the
three members of the Board added an addendum to their judgment calling for
an amendment to the tariff item so that it only applied to books which were
obscene under the Criminal Code. Since the Customs seizure powers are
similar to those exercised under s.160 of the Code, the same arguments regarding
revision to allow for consideration of the potential audience are applicaole.
3. Extended Prohibitions
A third position is one which calls for more extensive involvement by the
criminal law in the control of the dissemination of offensive material. This
position is based on the premises that obscenity and pornography are breeding
grounds of crime and that official permissiveness is a sign of moral weakness
sufficient to jeopardize the very fabric of society. It is said that the state's
interest in protecting the level of morality in the community, "protects this level
from falling and creates an abnosphere by which it can rise" and that: 210
The obvious morals protected are chasity, modesty, temperance, and self-sacrificing love.
The obvious evils being inhibited are lust, adultery, incest, homosexuality, bestiality,
masturbation and fornication.
On this view, existing law has been unable to effectively moderate the flow
of pornography and demeaning sexual behaviour, and further control on por-
nography and sexual behaviour is required for social stability and cultural
enrichment. There is no other choice but the extension of censorship controls. 280
The extended censorship position also calls in aid concern for the debasing effect
pornography has upon the sense of human dignity, 281 and the need to protect the
young. The possibility that even privately possessed obscenity might reach
children is adduced as a justification for widening the anti-obscenity laws to
cover even private consensual possession and, at the same time, there is a
demand for the extension of obscenity laws to cover material depicting extreme
violence. 282 The most vocal of those who seek extended censorship reject the
research reports, findings, and recommendations of the Commission on Obscenity
and Pornography as biased, inaccurate and incomplete. 283 In addition, they
contend that it is impossible, and totally unnecessary to attempt to prove or
disprove a cause and effect relationship between pornography and criminal
behaviour. 28 They claim that there are certain social phenomena whose existence
4,
can be confidently asserted without being sanctioned by empirical research or

statistical evidence and that some actions may therefore be legitimately punished
by society despite the absence of scientific proof that they tend to cause harm.
It is enough, the argument runs, that the action is generally felt to be harmful. 285
21s Appeal No. 471, re Peyton Place, supra, n. 206.
210 Commission on Obscenity and Pornography, supra, n. 36, Minority Report by
Commissioners Hill, Link, and Keating at 500.
28 0 Bonniwell~ The Social Control of Pornography and Sexual Behaviour, ( 1971) 397
The AnnaJS97.
281 Segal, supra, n. 65 at 63; Berns, Pornography vs. Democracy; A Case for Censor-
ship, ( 1971) 22 The Public Interest 3; Kristol, Pornography, Obscenity and the Case
for Censorship, New York Times Magazine, March 28, 1971 at 24.
28 2 Arts Council of Great Britain, supra, n. 1 at 20-23.
288 Commission on Obscenity and Pornography, supra, n. 36 at 463-490; Clor, Science,
Eros and the Law: A Critique of the Obscenity Commission Report, ( 1971) 10
Duquesne L. Rev. 63.
2 H Commission on Obscenity and Pomography, supra, n. 36 at 458.
285 Rolph, supra, n. 4 at 104-105; Van den Haag, "To Deprave and Corrupt ... ",
Quia Ineptum 113-114 ( Chandos, ed., 1962).
The legislative techniques for implementing a more rigid policy of anti-

obscenity control includes: redefinition of obscenity to cover other forms of
offensive content, extended prohibitions on private and commercial dissemina-
tion, limitation on type and number of defences, reversal of burden of proof from
Crown to the accused, abandonment of the requirement of f:tllilty intent or
knowledge, increased restrictions on importation and mailing, ana the setting up
of censorship tribunals or other forms of prior restraint.
4. Total or Partial Repeal
A fourth possible response is to withdraw the criminal law,s involvement
in the regulation of obscenity. Again, a number of variations in the implementa-
tion of such an approach are possible. These may range from total repeal of
existing legislation with the intent of permitting absolute freedom of dissemi-
nation, through to legislation which permits all private consensual transactions
between adults but which prohibits other transactions in which there is an
element of publicity, absence of consent, or in which juveniles are involved.
This decriminalization position is based on a number of premises of which
the foremost is that freedom of expression is one of the primary social and
political values which should be as little interfered with as possible. Although
the underpinning of the demand for freedom of expression is a belief that through
open and free exchange of ideas the community will be "advanced" or "im-
proved", the demonstration of the likelihood of such advancement is not conceded
to be the sine qua non of free expression. The claim, at its widest, is that
individuals have a right to possess, read and view whatever they choose,
regardless of the apparent lack of objective social value in the material. And,
since the right to read or view cannot be exercised without access to some
source of distribution ( unless the material involved is self-produced), it follows
logically that at least some dissemination must be permitted. Thus, the claim to
freedom of expression carries with it, as a corollary, a demand for the right to
receive and retain the product of the exercise of free expression by others. The
degree of risk the legislature should be prepared to take in the interest of
maximizing other communal values, such as freedom of speech, is more a matter
of policy, than of empirical research. However, it is worth adding that the
national opinion survey conducted by the Commission on Obscenity and
Pornography indicated that a majority of adults ( almost 60%) believed that
adults should be allowed to read or see any explicit sexual material they
wanted. 286
The argtll!lent for total or partial repeal is also based on a denial that any
demonstrated harm flows from exposure to obscene matter and, insofar as such
material may carry with it the potential to change moral standards, resisting
change is not the proper function of the criminal law. As the Wolfenden Report
puts it: 287
. • • the function of the criminal law • . • is to preserve public order and decency, to
protect the citizen from what is offensive or injurious, and to provide sufficient safe-
guards against exploitation and corruption of others . . . there must remain a realm of
private morality and immorality which is .•• not the law's business.
Moreover, it is argued that legislative intervention will likely continue to do more
harm than good, not only because of the inherent crudity, harshness and
arbitrariness of the criminal law process, but also because obscenity law itself
suffers from excessive subjectivity and ambiguity. The law is incapable of
286 Commission on Obscenity and Pornography, supra, n. 36 at 411. There is no

equivalent Canadian study.
2 8 7 Report of the Committee on Homosexual Offences and Prostitution, H.M.S.O., 9-10 &
24 (1957).
1974]. OBSCENITY 231
reflecting community standards in a pluralistic society and, in effect, attempts

instead to compel the judges' personal standards upon others under the guise of
dealing with social evils. But these evils themselves are purely speculative.
Positive educative approaches to the development of healthy attitudes toward
sexuality provide a more rational way of dealing with the "problem" of
pornography than the negative approach of the criminal law.288
In 1969 in Great Britain, the Arts Council Working Party, after an extensive
inquiry, called for the repeal of the English Obscene Publications Acts of 1959
and 1964 for a trial period of five years. The reasons given for this recommenda-
tion were as follows:289
( 1) It is not for the State to prohibit private citizens from choosing what they may or
may not enjoy in literature or art unless there were incontrovertible evidence that
the result would be injurious to society. There is no such evidence.
(2) No crystal ball can tell us dogmatically whether more or less pornography would
result from Repeal but in any case there is a complete absence of evidence to
suggest that sex in the arts, even when aphrodisiac in intention, has criminalor
anti-social repercussions.
( 3) Though it is sometimes conjectured with no indisputable evidence that heavy and
prolonged exposure to the portrayal of violence may not only reflect but also
Influence the standards of society, violence has been ubiquitous in the art, literature
and press of the civilised world for so long that censorship must by now be recog-
nised as a totally inadequate weapon to combat it. Indeed laws available for tlie
purpose including the Obscenity Acts are virtually never even invoked against it.
( 4) Since judges have to work in what is in effect a legal vacuum, the prosecution of an
occasional book - usually the wrong one - often succeeds only in bringing the
law into disrepute, without effectively preventing the distribution even of that book.
( 5) The very objective of the law is not even established, let alone identified in concrete
meaningful tenns that could command acceptance. Although judges emphasize
that an article cannot be condemned because it shocks or disgusts, in practice that
is precisely what happens, since juries have no other criterion to guide them.
( 6) It is impossible to devise a definition of obscenity, that does not beg the question,
or a rational procedure for weighing depravity and corruption against artistic
merit and the public good'.
( 7) When juries and defendants are without a comprehensible definition of the crime
alleged, the defendant is left at the mercy of a personal opinion; which is a system
of censorship rather than a system of law.
( 8) It is intolerable that a man should be criminallr punished for an action that he has
no means of ascertaining in advance is criminal.
( 9) Incitement to criminal behaviour is sufficiently covered by the ordinary law of
incitement. To that extent the Obscenity Acts are redundant. Insofar as they add
the concept of a mere unintentional tendency toward crime as a punishable
offence they are to be deplored.
( 10) It is an affront both to legal and common sense that incitement to a non-crime
should be punishable as a crime; and worse when this doctrine is extended to a
mere tendency.
( 11) No encouragement should be given to the concept of the State as custos morum
with its corollary that merely to shock is a criminal offence.
( 12) The proper sanction for breaches of taste or non-conformity ,vith current mores
should be social reprobation and not penal legislation.
The working Party concluded that the anti-obscenity laws constituted a danger
to the innocent private individual and provided no serious benefit to the public.
The problems in founding an acceptable law on a concept as subjective as
obscenity were insuperable and there was little hope that alternative legislation
would offer more than peripheral improvements.
In September 1970, after two years of study, the United States Commission
on Obscenity and Pornography reported to the President and the Congress that
it recommended that federal, state and local legislation prohibiting the sale,
288 Commission on Obscenity and Pornography, supra, n. 36 at 53-57, 309-346.

289 Arts Council of Great Britain, supra, n. 1 at 35-36.
exhibition, or distribution of sexual materials to consenting adults should be

repealed. 290 The Commission stated that it believed that there was no warrant
for continued governmental interference with the full freedom of adults to
obtain, read, or view any sexual material they wished. This conclusion was
based upon the following factors: 291
( I ) Empirical research has found no evidence to date to indicate that exposure to
explicit sexual materials plays a significant role in delinquent or criminal behaviour
in youth or adults.
( 2) Explicit sexual materials are sought out as a source of entertainment and informa-
tion by substantial numbers of adults.
( 3) Present anti-obscenity laws have not been successful in operation because of
vagueness and inc01J1Sistentapplication.
( 4) Public opinion does not suf port the imposition of legal restrictions on the right of
adults to read or see sexua material.
( 5) Consistent enforcement of prohibitions on consensual adult transactions in obscene
material would require the expenditure of considerable law enforcement resources.
( 6) Obscenity laws prohibiting dissemination of materials to adults are a threat to the
traditions of free speech, free press and free communication of ideas.
( 7) The desire to shield juveniles from obscene material does not justify prohibiting
adults from obtaining access to this material. To do so would be to adjust the
level of adult communication down to that considered suitable for children.
( 8) There is no evidence to indicate that elimination of control of sexual materials
available to adults would adversely affect the availability to the public of other
books, magazines and fihns.
( 9) There is no evidence that the lawful distribution of sexually explicit materials to
adults will adversely affect private or public morality in such a way as to induce
anti-social or criminal behaviour.
( 10) It is unwise for government to attempt to legislate individual moral values and
standards independent of behaviour, especially when such legislation involves
restrictions on consensual communications and where there is no clear public
mandate to do so.
But, neither the Arts Council Working Party nor the Obscenity Commission
advocated total absence of legal controls. Both reports recommended maintenance
of legislation aimed at protection of juveniles from exposure to obscene matter
and at abating the public nuisance aspect of obscenity which was highly visible
in public places or thrust upon unwilling recipients. Even Denmark, which has
long been thought of as a country in which obscenity laws have been totally
repealed, retains vestigal prohibitions on selling obscenity to persons under 16
years of age 292 and upon the imposition of obscene material on people who do
not wish to see it. 293 Furthermore, police by-laws exist which are intended to
prevent distribution and exhibition of offensive publications or pictures in public
places, ( the word "offensive" being regarded as more comprehensive than
obscene). The Danish legislation, and the English and American recommenda-
tions each seek to punish the mailing of obscene matter to individuals who have
not solicited it. Mailing, at the request of the recipient, would not be prohibited
and the censorship role of the Post Office would, to that extent, be diminished.
As has been previously pointed out in this paper, the justification for
legislation aimed specifically at withholding obscenity from juveniles is not to
be found in scientifically established facts as to the effect of obscenity on
juveniles. It rests upon the view that protection of youngsters from risk of
distorted sexual learning, moral danger and the potentiality of delinquency
( even though the risk is extremely remote) is a value of greater significance than

291 Id. at 58-62. See also recommendations of the San Francisco Committee on Crime
supra, n. 85 at 56-82.
292 Danish Criminal Code, s. 234. See generally, Schindler, A Report on Denmark·s
Legalized Pornography ( 1969).
20s Danish Criminal Code, s. 232.
1974] OBSCENITY 233
unregulated freedom of expression and that, provided adults are not restricted in
their access to this material, the interference with freedom of expression is in any
event not substantial. One other justification, which has been advanced in all
seriousness, is that if the state does not provide reasonable protection to children,
parents and others will take private concerted action against obscenity. The
excesses demonstrated by some of the United States citizen action groups in
imposing their standards of propriety on others, leads to the proposition that
legislation with respect to children is a necessary alternative to "vigilante
action".m Whether this holds true for Canada is, perhaps, doubtful.
Related both to the juvenile protection and public offense justifications for
retaining a minimal level of obscenity law, is the suggestion that obscene material
be required to bear an "adults only" label or sticker to give fair warning of the
offensiveness of its contents. Apart from the passing observation that juveniles
may be thus more tempted to try to obtain material so labelled, practical
difficulties may arise in requiring such labels. Even assuming that a retailer
knows and is capable of accurately applying the law to the materials he handles,
it would be unfair to expect him to be familiar with the contents of more than a
small proportion of the books and periodicals in stock. To prove his knowledge
of the contents would be difficult but, equally, to make the offence of dissemi-
nating obscenity to juveniles or unwilling adults one of strict liability is objected
to on the grounds that it may result in the conviction of innocent persons. If
labelling is thought necessary, it would be more appropriate to require the
manufacturer or importer of the publication to affix a label indicating that,
prima facie, it falls within the range of material defined as obscene. This would,
of course, require a fairly elaborate descriptive definition of obscenity, such as
the one discussed earlier in this section of the paper. Hicklin or s.159(8) defini-
tions would be unworkable on account of their vagueness. Both the manufacturer
and the importer can, more reasonably, be expected to know the nature of the
publication's contents.
The object of the public offence prohibitions is the protection of persons from
unwilling confrontations with offensive representations. Freedom of expression
is not substantially thwarted, because what cannot be publicly displayed can
still be privately distributed to willing adults. Anti-display statutes may even
serve a useful function in removing irritants from public view and thus calming
the advocates of greater censorship. Legislation of this type, when combined
with the legalization of private consensual transactions, would drive obscenity
into discreet rather than underground channels 295 since distributors who can sell
legally to adults are less likely to sell illegally to children or thrust material on
an unwilling public.
X. CONCLUDING REMARKS
By this time Gertrude Stein was in a sad state of indecision and worry. I sat next to
her and she said to me early in the afternoon, What is the answer? I was silent. In that
case, she said, what is the question? 296
Controversy and conflict are inevitable concommitants of the law of ob-
scenity. No matter what recommendations are made by the Law Reform
Commission, they will not be received with unanimous approval either by the
legislature or the Canadian public at large. No community is ever unanimous as
to what is required by way of legal controls on sexual materials. There are very
few fixed principles; value judgments are always at the core of the matter .. ~d
in a complex society, diyergent values are forced ~o compete for leg.al reco~1tion.
Advocates on either side of the controversy will employ rhetonc and mvoke
. 204 Dibble, Obscenity: A State Quarantine to Protect Children, ( 1966) 39 S. Cal. L. Rev.
345.
20:s San Francisco Committee on Crime, supra, n. 85 at 77-82.
20a Tok1as, What is Remembered 173 ( 1963).
authority to assert contradictocy value systems. The debate will talce the form
of rival vested interests ( churches, police, helping professions, publishers and
sellers) stating their case on the effect or lack of effect of certain forms of
media on a "vital" but ill-defined and selectively perceived, communal value.
The Commission will be pressed to aclmowledge, in its legislative recommenda-
tions on obscenity, the moral supremacy of the values of one sector of the public
over those of another. That the final recommendations will be read in this
fashion is unquestjonable. But that the criminal law on obscenity should be
framed with this as an objective is unacceptable. In a pluralistic community,
such as Canada, the criminal law should not be modified simply in order to give
effect to, or reinforce the moral standards of, a powerful or vocal minority, or
even of a majority. Independent criteria of harmfulness such as those suggested
by the Canadian Committee on Corrections, must provide the measure of
justification viz: 291
(1) No act should be criminally proscribed uruess its incidence, actual or potenial, is
substantially damaging to society.
(2) No act should be criminally prohibited where its incidence may adequately be
controlled by social forces other than the criminal process. Public opinion may be
enough to curtail certain kinds of behaviour. Other kinds of behaviour may be more
appropriately dealt with by non-criminal legal processes, e.g. by legislation relating
to mental health or social and economic condition.
(3) No law should give rise to social or personal damage greater than that it was designed
to prevent.
And although it smacks of ad hominem argument, the Commission may have
to take into account, in assessing responses to proposed recommendations, some
of the recent research findings regarding the presence of a hard core minority of
adults who are opposed on principle to the existence of explicit materials and
who indicate that their opposition will remain even if the material is shown to
have no harmful effects and is limited to private reading and viewing by
adults. 298
In the 1960's, the obscenity debate was focussed on the extent to which the
community was willing to hobble literature and the arts, but the case is no
longer being put on the grounds of access to works of merit. The proliferation
of sexually explicit pictorial matter, most of which can lay no claim to artistic
or scientific merit, has compelled the proponents of less restrictive laws to ground
their argument upon the contention that the material is not harmful. It is difficult
to prove a negative and, understandably, the interpretations of the research
findings aimed at estimating the impact of obscenity have been questioned
vigorously. The Commission on Obscenity's research on effects is not conclusive
in any absolute sense though the direction in which it points does require serious
consideration. However, as one critic has pointed out: 200
It will be unfortunate if people conclude that the obscenity problem has now been
resolved because now, at last, we have the scientific facts. It would be even more
unfortunate if people accept the implicit claims that the Commission has made for the
primacy of its behaviouralist methodology over other ways of thinking about social
problems and legal principles.
It may well be that recommendations for liberalization of the law can rest
simply on a policy decision to withdraw the criminal law from all areas of
291 Ouimet, Report of the Canadian Committee on Co"ections 12 ( 1969).

298 Zurcher & Kirkpatrick, Collective Dynamics of_ Ad Hoc Anti-Pornography Organiza~
twn, and Zurcher & Cushing, Participants in Ad Hoc Anti-Pornography Organizations:
Some Individual Characteristics, 5 Technical Report of the Commission on Obscenity
and Pornography at 83-142, 143-215. See also Wilson, Facts versus Fears: Why
Should We Worry About Pornography, ( 1971) 397 The Annals 105; Zurcher & Monts
Political Efficacy, Political Trust, and Anti-Pornography Crusading: A Research Note'
( 1972) 56 Sociology and Social Research 211. ,
209 Clor, supra, n. 283 at 76.
1974] OBSCENITY 235
conduct except those that threaten substantial harm. In the field of private
morals, this would allow minorities the freedom to remain pluralistic instead of
coercing them to conformity.
If, on the other hand, extended anti-obscenity legislation and a vigorous
campaign of law enforcement is to be recommended, attention should at least
be given to whether the community is willing to pay the costs in manpower,
money and invasions of privacy. The question of monetary costs and manpower
might be easily tested by recommending that each new offence created should
be accompanied by an allocation of funds for its enforcement.
Ultimately, the problem to be resolved is whether, in Canada in the 1970's,
the state, through the vehicle of the criminal law, must maintain its role as
custosmorum over consenting adults. Are there to be any circumstances in which
one willing adult will legally be permitted to purchase, from another, access to
any sexual material he or she desires?

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172 ALBERTA LAW REVIEW [VOL.

1 Arts Council of Great Britain, The Obscenity Laws 14-15 ( 1969).

accepted standards of sexual morality,6 in invitation or excitation to venereal

fairly consistent judgments regarding the degree of obscenity present. 15 In

Finally, representations of sexual or excretory functions will evoke damnatory

20 Miller, "Astological Fricassee", Remember to Remember: Essays and Stories ( 1952).

2• See Kilpabick, The Smut Peddlars ch. 1 ( 1961).

nographic books commence with a relatively mild low-keyed sexual encounter

36 United States Commission on Obscenity and Pornography, Washington ( 1970) at

58 (1957) 156 F. Supp. 350.

overt behaviour. 60 Studies conducted for the United States Commission on

A preoccupation with pornography, by isolating sensitive and intelligent men from

s• Commission on Obscenity and Pornography, supra, n. 36 at 269-272.

o~ obse~ers wor~g amongst delinquen~. 0° The. vie~ that obscenity has a

oo See generally, Green, Obscenity, Censorship and Juvenile Delinquency, ( 1962) 14

on Obscenity and Pornography Report, Commissioners Hill, Link and Keating

98 Commission on Obscenity and Pornography, supra, n. 36 at 458.

discussed. The same difficulties exist, a fortiori in respect of the relationship

100 Does Pornography Matter?, supra, n. 4 at 71.

The regulation of access of juveniles to sexual material on moral grounds has

1 00 Commission ro Obscenity and Pornography, supra, n. 36 at 314-316.

"Adult only" books at retail 45-55

recognizes the commercial side of the dissemination of obscenity in s.160, which

exploitation, but simply that obscene matter is likely to arouseJ'owerful feelings

s Rembar, The End of Obscenity 509-510 (1968).

m Frankfurter J. in Butler v. Michigan (1957) 352 U.S. 380 at 383.

(iii) The "Primary Audience" Test

m Censorship of' Obscenity, ( 1960) 45 Minn. L. Rev. 5 at 78-79.

186 Mr. D. E. Fulton, Minister of Justice, (1959) 5 H. C. Deb. 5517.

Appeal upheld a magistrate's ruling that an entire publication should be destroyed

Year No. Prosecutions % Convictions

of Parliament. 157 In 1958, a study prepared for the Ontario Attorney-General's

11 2R. v. Brodie, Dansky & Rubin, supra, n. 94 at 179-182.

182 Supra, n. 28 at 116.

m R. v. Times Square Cinema Ltd. (1971) 4 C.C.C. (2d) 229 (Ont.C.A.).

m S. l(d) and (f).

predicated upon two untenable subsidiary propositions, namely, that something

221 Supra, n. 226.

2a2 Canadian Criminal Code, supra, n. 2.

281 Supra, n. 94.

to th_eeffect ~at, as long as there is artistic merit in a drawing or painting, the

2as Id. at 287 - 288.

to a variety of material. The protection offered ranges from the requirement

241 U.S. v. Roth, supra, n. 3 at 819.

Expert opinion evidence is likely to be adduced in obscenity cases in relation

250 England: Obscene Publications Act, 1959, s. 4( 2).

question whether the legal definitions are formulated in such a manner as to be

2e2 Schmeiser, Civil Liberties in Canada 232 (1964).

corruption, is a telling illustration of the ambiguities which exist At least s.159(8)

:ia 9 Commission on Obscenity and Pornography, supra, n. 36 at 77.

21 2 Such legislation exists in Australia - W.A.: Indecent Publications Act, 19~ s. 6;

-indecent unless restricted to specified persons or classes of persons, or unless it

As far as other Federal legislation is concerned, if prohibitions on obscenity

can be confidently asserted without being sanctioned by empirical research or

The legislative techniques for implementing a more rigid policy of anti-

286 Commission on Obscenity and Pornography, supra, n. 36 at 411. There is no

reflecting community standards in a pluralistic society and, in effect, attempts

288 Commission on Obscenity and Pornography, supra, n. 36 at 53-57, 309-346.

exhibition, or distribution of sexual materials to consenting adults should be