This is being retained on the Strategis Website for purposes of comparison and historical interest.
Obscenity is defined in the Canadian Criminal Code as any publication whose dominant characteristic is the undue exploitation of sex, or of sex together with crime, horror, cruelty or violence.1 Whether a publications dominant theme is the undue exploitation of sex is determined by reference to a "community standards test" 2 and an examination of the alleged obscenity within the context of the work as a whole.3
Subsections 163 (1) and (2) of the Act create two distinct offences. First, Subsection (1) targets the production or distribution of obscenity. It applies to everyone who "makes, prints, publishes, distributes, circulates", or has in ones possession for the purpose of distribution, obscene materials. Subsection (1) has been held to be a strict liability offence. Once the Crown proves illegal act of the offense, the burden falls upon the accused to avoid liability by showing that he acted with due diligence. In other words, lack of knowledge that the material exceeded community standards will not be a defense, unless the accused can establish due diligence, a reasonable mistake of fact 4 or that the public good was served.5
On the other hand, subsection (2) makes it an offence to knowingly sell or expose to public view, or to have in possession for the purposes of selling or exposing to public view, obscene materials. Unlike the distribution section, a charge under subsection (2) requires the Crown to prove that the accused had a subjective knowledge of the content and nature of the obscene material in question.6
Cases that have considered the difference between subsections 163(1) and (2) have held that something more than offering obscene materials by one or more individual sales is required for a charge under subsection (1).7 Thus, a video store outlet that merely rents videos is characterized as a retailer under subsection (2).8 As a retailer, it is not involved in distribution and is therefore not required to know the contents of every video, book or magazine in its store, since imposing such a requirement would impose an undue burden on the retailer.9 On the other hand, a video store that also creates or copies the videos on premises would be deemed to be a distributor, and for purposes of section 163(1) would not require proof that it had knowledge of the obscene materials.10
The courts have also characterized the distinction between production and distribution of obscene materials on the one hand section 163(1) and selling or exposing to public view on the other (s.163(2)), by noting that the latter is intended to cover activities in which the accused deals only with the ultimate consumer.11 This distinction seems to have been rejected by a British Columbia Provincial Court as not necessarily being applicable to the supply of materials by computer technology.12
1. Criminal Code, s. 163(8).
2. The community standards test considers what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. The stronger the risk of harm, the less the likelihood of tolerance. For the purposes of the community standards test, the Supreme Court of Canada referred to three categories of sex: (1) sex with violence; (2) explicit sex which subjects people to treatment that is degrading or dehumanizing; and (3) explicit sex without violence that is neither degrading nor dehumanizing. The first category will almost always constitute the undue exploitation of sex. The second category may be undue if the risk of harm is substantial. The third category will generally not fall within the definition of obscenity unless it employs children in its production: R v. Butler (1992) 70 C.C.C. (3d) 129, 11 C.R. (4th) 137 (S.C.C.)
3. Upon determining that the material involves the undue exploitation of sex, the portrayal of sex is then viewed in context to determine whether it is the dominant theme of the work as a whole or whether it essential to a wider artistic, literary or other similar purpose and therefore falls within the "public good" exemption: Butler, ibid.
4. R. v Metro News Ltd, (1986) 20 C.C.C. (3d) 35 (Ont. C.A.)
5. Criminal Code, s. 163(3)
6. R. v. Jorgensen (1995) 102 C.C.C. (3d) 97 (S.C.C.).
7. R. v. Dorosz (1971) 4 C.C.C. (2d) 203 (Ont. C.A.); R. v. Householder T.V. and Appliances Ltd. (1985) 20 C.C.C. (3d) 571 (Ont. C.A.).
8. Householder, ibid.
9. Jorgensen, supra note 6.
10. R. v. Harris (1987) 35 C.C.C. (3d) 1 (Ont. C.A.).
11. Dorosz, supra note 7.
12. R. v. Hurtubise, Unreported, June 28, 1996, B.C. Prov. Ct., Surrey Registry.