Aspects of the Control of Obscene Literature in Canada
| Date | 01 November 1964 |
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb02250.x |
| Published date | 01 November 1964 |
| Author | L. H. Leigh |
ASPECTS
OF
THE CONTROL
OF
OBSCENE
LITERATIJRE IN CANADA
IT
is the purpose of this article to describe some recent developments
in the law relating to obscene literature in Canada, in the hope that,
at
a
time when dissatisfaction is being felt with the existing English
provisions, the Canadian experience may afford a useful area for
inquiry.
In
1959,
the
Criminal Code
provisions relating to obscene
literature were amended. Since that time, their construction has
come before the Supreme Court of Canada in two important appeals
from decisions ordering forfeiture of printed materials as obscene.
The first case,
Brodie
v.
The Queen,l
was
a
forfeiture proceeding
relating to
Lady Chatterley’s Lover.
The second,
Dominion News
and Gifts, Ltd.
v.
The Queen,z
related to issues of two magazines,
Dude
and
Escapade,
whose literary credentials were less impressive.
This article is concerned with the shape of the legislation, the
attitude of the Canadian courts to the question of obscenity, and
the question of the community standards test as an alternative to
the
Hicklin
test as a predicate for regulation.
The important
Criminal Code
provisions relating to obscene
literature are sections
150
and
150~.
Section
150
provides in part:
150 (1)
Everyone commits an offence who,
(a) makes, prints, publishes, distributes, circulates,
or
has
in his possession for the purposes of publication, circulation
or
distribution any obscene written matter, picture, model,
phonograph record
or
other thing whatsoever,
or
(b) makes, prints, publishes, sells, distributes
or
has in his
possession for the purposes
of
publication, distribution
or
circulation a crime comic.
(3)
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.
(8)
For
the purposes of this Act, any publication a dominant
characteristic of which is the undue exploitation of sex,
or
of
sex and one
or
more of the following subjects, namely, crime,
horror, cruelty and violence, shall be deemed to be obscene.
Section
150~~
which, like section
150
(S),
was added in
1959,
provides an
in rem
procedure for dealing with publications.
It
follows closely the
Obscene Publications Act,
1857,
but contains
1
[1962] S.C.R. 681; (1962) 32
D.L.R.
(2d)
507;
reversing
[1961] B.R. 610, 36
C.R. 200.
2
[1964] S.C.R. 251; (1964) 42 C.R. 209;
reversing
(1963)
40
C.R.
109
for
the
reasons contained in the dissenting judgment
of
Freedman
J.
A.
in
the court
below
at
p.
126
et
seq.
669
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