Nova Scotia Board of Censors v. McNeil

Nova Scotia Board of Censors v. McNeil
Collection
Supreme Court Judgments
Date
1978-01-19
Report
[1978] 2 SCR 662
Judges
Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe
On appeal from
Nova Scotia
Subjects
Constitutional law
Decision Content
SUPREME COURT OF CANADA
Nova Scotia Board of Censors v. McNeil, [1978] 2 S.C.R. 662
Date: 1978-01-19
The Nova Scotia Board of Censors (also known as the Amusements Regulation Board of Nova Scotia)
and
The Attorney General in and for the Province of Nova Scotia Appellants;
and
Gerard McNeil Respondent.
1977: May 24, 25; 1978: January 19.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA, APPEAL DIVISION
Constitutional law — Provincial regulatory statute — Legislative authority — Censorship — Films and theatrical performances — Presumption of validity of provincial statute — Essential nature of statute — Theatres and Amusements Act, R.S.N.S. 1967, c. 304 — British North America Act, 1867, ss. 91(27), 92(13), (16).
Civil rights — Fundamental freedoms — Power of legislature to determine in light of local standards what is fit for viewing on moral grounds — Theatres and Amusements Act, R.S.N.S. 1967, c. 304 — British North America Act, 1867, ss. 91(27), 92(13), (16).
The respondent had become concerned about the wide powers of the Nova Scotia Board of Censors (also known as the Amusements Regulation Board of Nova Scotia) and, after the Board, in exercising the authority which the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, purported to confer on the Board, prevented the film "Last Tango in Paris" from being exhibited in the theatres of Nova Scotia, the respondent made application for a declaration that certain sections of the Act as amended and certain regulations made thereunder were ultra vires and beyond the legislative compe­tence of the Province of Nova Scotia. Respondent's standing to take the proceedings was confirmed (see [1976] 2 S.C.R. 265). The challenge was to the statutory provisions purporting to authorize the Board to regulate and control the film industry within the Prov­ince of Nova Scotia according to standards fixed by the Board, on the ground that citizens of Nova Scotia are thereby denied, on moral grounds, their right to exercise their freedom of choice in the viewing of films and theatre performances which might otherwise be available to them. 1t was also alleged that the legislation constituted an invasion of fundamental freedoms. The questions raised on the application were reserved for the consideration of the Appeal Division, which granted the application by declaring "that the word 'prohibiting' in Sections 2(1)(b) and 2(1)(g) and subsections (2) and (3) of Section 3" of the Act and "that regulations 4, 5(1), 13, 18 and 32 made pursuant to" the Act were null and void and of no effect being ultra vires the legislature of Nova Scotia.
Held (Laskin C.J. and Judson, Spence and Dickson JJ. dissenting): The appeal should be allowed.
Per Martland, Ritchie, Pigeon, Beetz and de Grandpré JJ.: The Court cannot ignore the rule that any question as to the validity of provincial legislation is to be approached on the assumption that it was validly enacted. The Act and Regulations read as a whole were primarily directed to the regulation, supervision and control of the film business within the Province of Nova Scotia and the impugned provisions were enacted to reinforce the authority of the Board to perform that regulatory task which included the authority to prevent the exhibition of films which the Board, applying its own local standards, considers as unsuitable for viewing by provincial audiences. The impugned legislation was con­cerned with dealings in and the use of property (in this case films) wholly within the Province and constituted nothing more than the exercise of provincial authority over transactions wholly within the Province, i.e. the "regulating, exhibition, sale and exchange of films" irrespective of the origin of those films. Morality and criminality are not to be regarded as co-extensive. The impugned legislation was not concerned with criminality as such i.e. the creation of a criminal offence per se but rather in regulating a business within the province so as to prevent exhibitions which did not comply with the standards of propriety established by the Board. Its true object, purpose, nature and character was the regulation of a local trade. The legislation had a valid provincial purpose and therefore was valid.
That is not to say that Parliament is in any way restricted in its authority to pass laws penalizing immor­al acts or conduct but simply that the provincial legisla­ture in regulating a local trade may set its own stand­ards which in no sense exclude the operation of the federal law.
Regulations 4 and 5(1) which provide that no theatre owner shall permit the use of any unauthorized film or theatrical performance in his theatre, Reg. 13 which prohibits advertising a performance without the permis­sion of the Board, and Reg. 18 are of the same character as those considered in Quong Wing v. The King (1914), 49 S.C.R. 440 and therefore valid.
Regulation 32 is invalid as being virtually indistin­guishable from s. 159(2) of the Criminal Code, the use of the word "indecent" being the common factor. That Regulation is however clearly severable from the balance of the Regulations and the statute and it in no way detracts from, varies or curtails the authority vested in the Board under the statute.
The validity of the legislation might also be sustained by viewing the determination of what is and what is not acceptable for public exhibition on moral grounds as a matter of a "local and private nature in the Province" within the meaning of s. 92(16) of the B.N.A. Act, and, as this is not a matter coming within any of the enume­rated classes in s. 91, it is in a field in which the Legislature is free to act.
Having regard to the presumption of constitutional validity there was no basis for finding that the legisla­tion was invalid as infringing fundamental freedoms such as freedom of association, of assembly, of speech, of the press, of other media, of conscience or religion.
Per Laskin C.J. and Judson, Spence and Dickson JJ. dissenting: The Appeal Division invalidated certain provisions of the Act and the Regulations on the basis that they invaded exclusive federal power in relation to the criminal law. The Board had refused to sanction the showing of "Last Tango in Paris" and gave no reason for rejecting it and respondent had failed in his efforts to appeal the decision to the Governor in Council. An administrative authority like the Board, which is given unfettered and unguided power and discretion to prohib­it the public exhibition of a film, and whose statutory power is challenged as being unconstitutional, cannot shield its exercise of that power by refusing to disclose the grounds upon which it has acted. Such an adminis­trative authority must act in good faith, however wide its powers and regardless of the ambit of its discretion. Further, on the constitutional side, the validity of legis­lation (or a power given by legislation) is not to be judged from the standpoint of matters to which it might be limited, but upon the general terms in which it is in fact couched. In this case the issues before the Court did not engage the licensing authority of the Board, did not relate to any film classification system and were not concerned with the safety or suitability of premises. The Board asserted an unlimited statutory authority to determine for the general public what films were fit for viewing. There were no criteria set by the Act and no provision distinguishing or classifying films as being fit for viewing by adults but not by children. Only Reg. 32 purports to establish any criteria, namely "indecent or improper performance". Thus what was involved was the unqualified power of the Board to determine the fitness of films for public viewing on considerations which might extend beyond the moral and include the political, the social and the religious. At its narrowest, in this case the Board asserted authority to protect public morals and to safeguard the public from exposure to ideas and images in films that it regarded as morally offensive, indecent, or probably obscene. The determina­tion of what is decent or indecent or obscene in conduct or in a publication, what is morally fit for public viewing in films, art or in a live performance is, as such, within the exclusive power of the Parliament of Canada under its enumerated authority to legislate in relation to the criminal law. The contention that morality is not coex­tensive with the criminal law cannot of itself bring legislation respecting public morals within provincial competence. The federal power in relation to the crimi­nal law extends beyond control of morality and is wide enough to embrace antisocial conduct or behaviour.
It was not enough to save the provisions of the impugned legislation that they were part of a wider legislative scheme. The provisions in question went beyond the licensing provisions and engaged the public directly. The appeal should be dismissed and the impugned provisions held ultra vires.
[Severn v. The Queen (1878), 2 S.C.R. 70; Reference re The Farm Products Marketing Act, [1957] S.C.R. 198; Shannon v. Lower Mainland Dairy Products Board, [1938] A.C. 708; Home Oil Distributors Lim­ited v. A.G. of British Columbia, [1940] S.C.R. 444; Caloil Inc. v. Attorney General of Canada, [1971] S.C.R. 543; Lord's Day Alliance of Canada v. A.G. of British Columbia, [1959] S.C.R. 497; Proprietary Articles Trade Association v. Attorney-General of Canada, [1931] A.C. 310; Bédard v. Dawson, [1923] S.C.R. 681; O'Grady v. Sparling, [1960] S.C.R. 804; Smith v. The Queen, [1960] S.C.R. 776; Stephens v. The Queen, [1960] S.C.R. 823; Mann v. The Queen, [1966] S.C.R. 238; Quong Wing v. The King, (1914), 49 S.C.R. 440; Johnson v. Attorney General of Alberta, [1954] S.C.R. 127, referred to.]
APPEAL from a judgment of the Supreme Court of Nova Scotia, Appeal Division[1], to which consideration of questions raised by an application for a declaration were reserved by order of Hart J. made pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2, granting an Order declaring ultra vires certain sections of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, and cer­tain regulations made there under. Appeal allowed, Laskin C.J. and Judson, Spence and Dickson JJ. dissenting.
Donald G. Gibson and William M. Wilson for the appellants.
Robert Murrant, Dereck M. Jones and B. Mcl­saac for the respondent.
T. B. Smith, Q.C., and M. L. Basta for the intervenant Attorney General of Canada.
J. Polika for the intervenant Attorney General of Ontario.
Gil Rémillard and Anne Laberge for the intervenant Attorney General of Quebec.
Louis Lindholm, Q.C., and Paul Pearlman for the intervenant Attorney General of British Columbia.
Hugh Macintosh for the intervenant Attorney General of Prince Edward Island.
W. Kenkel, Q.C., for the intervenant Attorney General of Alberta.
E. J. Ratushny for the intervenant Canadian Civil Liberties Association.
The judgment of Laskin C.J. and Judson, Spence and Dickson JJ. was delivered by
THE CHIEF JUSTICE (dissenting)—The Attor­ney General of Nova Scotia appeals, with leave of this Court, from a judgment of the Appeal Divi­sion of the Nova Scotia Supreme Court declaring, by unanimous decision of the four members of the Appeal Division, that (1) it was ultra vires the Legislature of Nova Scotia to enact, by use of the word "prohibiting", s. 2(1)(b)(g) and s. 3(2)(3) of the Theatres and Amusements Act, R.S.N.S. 1967, c. 304, as amended, and (2) Regulations 4, 5(1), 13, 18 and 32, made pursuant to the Act were also ultra vires.
The issue in this appeal which gave rise to the declaration of invalidity was precipitated by the banning by the Amusements Regulation Board (a tribunal established under the aforementioned Act and known prior to May 15, 1972, as the Nova Scotia Board of Censors) of the film "Last Tango in Paris" from public viewing in theatres or other places in the Province. The ban was announced on or about January 8, 1974. No reasons were given for the prohibition and, indeed, it was one of the submissions of the Attorney General of Nova Scotia that reasons were not obligatory because there was no requirement under the Act or Regu­lations that the Board give reasons. The Attorneys General of Ontario, Quebec, British Columbia, Prince Edward Island and Alberta intervened to oppose the judgment in appeal and the Attorney General of Canada and the Canadian Civil Liberties Association intervened in support of the judgment.
In this Court, following the granting of leave to appeal, the constitutional question to be considered was formulated as follows by an order of June 4, 1976, amended by an order of July 5, 1976:
Are Sections 2(1)(b), 2(1)(g), 3(2) and 3(3) of the Theatres and Amusements Act, R.S.N.S., 1967 c, 304 and Regulations 4, 5(1), 13, 18 and 32 made under the provisions of that Act, intra vires the Legislature of Nova Scotia?
Provision for interventions was also made under the order.
The present case came before this Court earlier on the question of the plaintiffs standing to chal­lenge the constitutionality of the legislation under which the Amusements Regulation Board acted; and in sustaining the Courts below, which had rejected the challenge to the plaintiff's standing (see [1976] 2 S.C.R. 265) this Court noted that the Theatres and Amusements Act was not only a statute authorizing the licensing of theatres, film exchanges, cinematograph operators and appren­tices as well as theatre performances (including, by definition, moving picture performances or exhibitions) and envisaging too regulations in con­nection therewith, but it was also a statute operat­ing directly upon the public by empowering the Amusements Regulation Board to permit or pro­hibit the public exhibition of any film and any performance in any theatre. (The Act also pro­vided for an amusement tax payable by members of the public attending places of amusement but nothing turns on this feature of the Act.). The licensing power operated upon those engaged in the theatre business or in the film business or who worked as motion picture projectionists. As to them, s. 2(3) of the Act is explicit that "The Board may in its absolute discretion revoke or suspend any license issued under the authority of this Act or of the regulations". Whether the Board's licens­ing control is exercisable in terrorem with respect to any particular film which an exhibitor or theatre operator may wish to show for public viewing is not a question that arises here. Clearly, the Board's censorship authority, given by s. 3(2)(3) of the Act, is an overriding authority, and in this respect engages the interests of members of the public beyond the interests of exhibitors or theatre owners or operators as licensees under the Act.
The following are the provisions of the Act and Regulations which are relevant to the determina­tion of the constitutional question that arises in this case:
Provisions of the Act
1 In this Act,
(g) "performance" means any theatrical, vaude­ville, musical or moving picture performance or exhi­bition for public entertainment, or any other performance or exhibition for public entertainment, whether or not of the kind hereinbefore enumerated;
2 (1) The Governor in Council may from time to time make regulations for or in relation to or incidental to any one or more or to any part or parts of any one or more of the following matters:
(a) the licensing and regulating of theatres and places of amusement;
(b) regulating and licensing or prohibiting any performance or performances in a theatre or theatres, and any amusement or amusements or recreation or recreations in a place or places of amusement, and any amusement or amusements, recreation or recrea­tions for participating or indulging in which by the public or some of them, fees are charged by any amusement owner;
(c) the construction, use, safety, inspection and supervision of theatres;
(d) the licensing, using and operating of cinemato­graphs;
(e) prescribing the terms and conditions under which cinematographs shall be operated;
(f) the licensing, operating and defining of film exchanges;
(g) prohibiting or regulating the exhibition, sale, lease, and exchange of films;
(h) the examining, regulating and licensing of cinematograph operators and apprentices;
(i) prescribing the terms and conditions under which films shall be exhibited, sold, leased and exchanged;
(j) prescribing the term or period during which any class of license shall be in force;
(k) prescribing and regulating the fees, including methods for ascertaining, calculating or determining the fees to be paid for licenses, and for examinations of cinematograph operators, and for examinations of films;
(l) prescribing by whom licenses shall be issued .. .
…
(3) The Board may in its absolute discretion revoke or suspend any license issued under the authority of this Act or of the regulations.
3 (1)...
(2) The Board shall have power to permit or to prohibit
(a) the use or exhibition in Nova Scotia or in any part or parts thereof for public entertainment of any film;
[Page 670];
(b) any performance in any theatre;
(c) any amusement in a place of amusement or any amusement or recreation for participating or indulg­ing in which by the public or some of them fees are charged by any amusement owner.
(3) Any power mentioned in subsection (2) may be exercised by the Board, notwithstanding that the Board has previously permitted the use or exhibition of the film, or that a license respecting the theatre is in force.
(4) There shall be an appeal from the Board to the person, body or court designated, and subject to the conditions prescribed by regulation of the Governor in Council.
…
8 Any person who violates this Act or who violates any of the regulations made under this Act, shall be liable to a penalty of not less than twenty dollars or more than two hundred dollars.
20 (1) Where the Board is satisfied after due inquiry that any film exchange or theatre owner has violated this Act or any regulations made hereunder the Board may:
(a) revoke or cancel any license of such film exchange; or
(b) revoke or cancel any license of such theatre owner; or
(c) attach to any of such licenses such terms, con­ditions or restrictions as it deems advisable.
…
Provisions of the Regulations
…
2. An appeal from a decision of the Board shall be to the Governor in Council.
3. (1) No theatre owner shall give any performance in his theatre unless he holds in respect of the theatre a license which is in force.
4. No theatre owner shall permit any performance to be given in his theatre unless the same is authorized under the Regulations.
5. (1) No theatre owner shall permit the use or exhi­bition in his theatre of any film which has not been authorized by the Board.
13. No person shall advertise any performance unless the permission of the Board has first been obtained. 16. (1) No 35 mm film exchange shall carry on business in the Province unless it holds a license which is in. force ..
18. (1) No film shall be used or exhibited in the Province unless the film has been submitted to the Board and the Board has authorized the use or exhibi­tion thereof.
(2) The Board may authorize or prohibit the use or exhibition of any film or may authorize the use of any film with such changes as it may direct. No film shall be so changed without the consent of the film exchange.
(3) The Board shall give a certificate in respect of every film which it has authorized for use or exhibition in the Province.
(4) The Board may at any time or from time to time re-examine any film and may prohibit the use or exhibi­tion of any film which it has previously authorized for use or exhibition or may permit its use or exhibition with such further changes as the Board may direct.
(5) No film exchange shall use, exhibit, sell, lease or exchange any film unless a certificate of the Board has been issued in respect thereof and any film which is used, exhibited, sold, leased or exchanged in violation of this regulation may be confiscated by the Board.
32. (1) No theatre owner or amusement owner shall permit any indecent or improper performance in his theatre or place of amusement.
(2) No performer shall take part in any indecent or improper performance.
(3) The Board may from time to time define what constitutes an indecent or improper performance within the meaning of these Regulations.
The ground upon which the members of the Appeal Division proceeded in invalidating certain provisions of the Act and Regulations was, simply stated, that they invaded exclusive federal power in relation to the criminal law. MacDonald J.A., who delivered the principal set of reasons, noted that the Appeal Division was sitting as a Court of first instance by reason of a reference of the constitutional issue to it by Hart J. pursuant to s. 30(3) of the Judicature Act, 1972 (N.S.), c. 2. Factually the situation was that the Board had refused to sanction the showing of the film "Last Tango in Paris"; that it gave no reason for rejecting it and the plaintiff failed in his efforts to appeal the decision to the Governor in Council. The learned Justice of Appeal said in his reasons that "it appears to be common ground between the parties that the Board has never given reasons for prohibiting the showing of any film nor has the Board ever publicly stated the guidelines, if any, it follows in considering films". He noted that there were statutory criteria in comparable legislation in other Provinces, these being (as he said) "of the usual 'sex, morals and violence' type that are normally associated with film censorship"; however, in the present case, "the censorship criterion, being left to the Board to determine, could be much wider and encompass political, religious and other matters".
Cooper J.A. was of the opinion that it was clear from the material before the Court that the film was placed in the rejected classification because it was considered by the Board to offend against acceptable standards of morality. The only ma­terial before the Court consisted of various affida­vits and of letters exchanged between counsel for the parties. There were affirmations in some of the affidavits of belief that the film was banned because offensive to public morality and because it was obscene. However, the Chairman of the Board, although swearing an affidavit, did not disclose in it any reason for the ban and counsel for the Board and for the Attorney General refused in an answering letter to assign any reason for the ban when asked directly by counsel for the respondent to provide the reason. MacKeigan C.J.N.S. said flatly that "censorship of this type is obviously directed at obscenity and other immoral exhibitions".
An administrative authority like the Board, which is given unfettered and unguided power and discretion to prohibit the public exhibition of a film, and whose statutory power in that respect is challenged as being unconstitutional, cannot shield its exercise of that power by refusing to disclose the grounds upon which it has acted. Although counsel for the Attorney General of Nova Scotia stated in the course of his submissions that there was no limit to the Board's power to prohibit, his proposition is incorrect on administrative law grounds as well as on constitutional law grounds. It is enough, on the administrative side, to offer the reminder that an administrative authority must act in good faith, however wide its powers and regardless of the ambit of its discretion: see Roncarelli v. Duplessis[2]. On the constitutional side, there is the principle laid down by Kellock J. in Saumur v. Quebec and Attorney General of Quebec[3], at p. 339 where, speaking in relation to a Quebec city by-law which similarly gave unfet­tered and unguided discretion (to the Chief of Police) to refuse or grant permission to distribute pamphlets in the streets of the city, he said of the by-law:
Its validity is not to be judged from the standpoint of matters to which it might be limited, but upon the completely general terms in which it in fact is couched.
It is apt in this connection to refer to a preceding paragraph of Kellock J.'s reasons because they illuminate the issue raised here by the generality of the statute and the refusal of the Board to be candid about its exercise of authority. He says this (at p. 338):
Being perfectly general in its terms and setting no standard by which the official it names is to be governed in granting or refusing licences, the by-law can be used, as it has been, to deny distribution of its literature to one religious denomination, while granting that liberty to another or others. The by-law is equally capable of being applied so as to permit distribution of the litera­ture of one political party while denying that right to all others, or so as to refuse to allow the selling in the streets of some newspapers while permitting others. In any or all of these cases, the same physical acts would be involved occasioning the same degree of obstruction, if obstruction there would be. Nothing more is needed to demonstrate, in my opinion, that such a by-law was not enacted "in relation to" streets but in relation to the minds of the users of the streets.
A more recent instance of this approach, although not arising in a strictly constitutional context, is seen in the decision of this Court in City of Prince George v. Payne[4]. There the question was whether the City could lawfully refuse a business licence to a so-called sex shop under the broad mandate of the applicable British Columbia Municipal Act which, as here, contained no guidelines or standards but provided only that a licence or a renewal of licence shall not be unreasonably refused. This Court held, inter alia, that the City exceeded its powers in exercising its licensing au­thority to prohibit wholesale a particular business, a particular land use.
The issues before this Court in the present case do not engage the licensing authority of the Amusements Regulation Board, they do not relate to any film classification system, they are in no way concerned with the safety or suitability of premises in which films are sought to be exhibited or presented. The only inference that can be, indeed must be, drawn from the bare facts on the record is that the Board presumes to protect the general public from exposure to certain kinds of films, to insulate members of the public from viewing those films because, in the Board's allegedly unchallengeable judgment, the general public should not see them. Put another way, the Board asserts an unlimited statutory authority to determine for the general public what films are fit for public viewing.
The challenged provisions of the Act authorize regulations for (1) regulating and licensing or prohibiting any performance (which, as defined, includes film showings) and (2) prohibiting or regulating the exhibition of films. They go on to empower the Board to permit or to prohibit the exhibition of any film and, indeed, to prohibit notwithstanding a previous permission to exhibit. The Regulations that were attacked forbid theatre owners to permit any performance unless it has been authorized under the Regulations and, simi­larly, forbid any theatre owner to permit exhibi­tion of any film in his theatre which has not been authorized by the Board. These are supplementary provisions to the Board's power to permit or pro­hibit and are fed by Regulation 18 which requires submission of films to the Board and Board authorization for their use or exhibition. Under that Regulation, the Board may authorize or pro­hibit use or exhibition of a film or may authorize use with directed changes. Regulation 32 forbids any theatre owner to permit "any indecent or improper performance in his theatre", the Board being left to define what those terms mean. The sanction for any breach of the Act or Regulations by any person is a monetary penalty and also revocation or cancellation of licence if the offender is a licence holder, thus emphasizing the Board's complete control over the exhibition of films in the Province. One other Regulation was invalidated by the judgment below, namely, Regulation 13, forb­idding the advertising of any performance without the prior permission of the Board. It too reinforces the prohibitory authority of the Board over the exhibition of films.
There are no criteria fixed by the Statute upon which the Board is required to act, no provision distinguishing or classifying films as being fit for viewing by adults but not by children. Only Regu­lation 32 purports to establish criteria but they are at large, namely "indecent or improper perfor­mance" as the Board may define; and although they are addressed to theatre owners and amusement owners they relate directly to the general public's opportunity to view films that are sought to be exhibited. All of this is by way of prior determination, by way of anticipatory control of public taste.
Nova Scotia is not the only Province where censorship of films is left at large to a tribunal upon whose judgment the public is required to rely as to what may or may not be seen. The position is the same in Ontario, which was the first Province to enact film censorship legislation (see 1911 (Ont.), c. 73): see now The Theatres Act, R.S.O. 1970, c. 459, am. 1972, c. 1, s. 56. The arbitrary power of the Ontario Board of Censors is qualified only by a right of appeal to the Minister of Con­sumer and Commercial Relations who is likewise left without criteria, there being none under the Statute and there being no regulations. The Ontario Statute envisages, however, a classifica­tion system since s. 24(1) concerns signs or adver­tising referable to the classification of a film as adult or restricted entertainment, and under s. 21(4) persons "apparently under eighteen years of age" are not permitted to purchase tickets or to be granted admission to a theatre exhibiting a film classified as restricted entertainment. In Alberta, the Amusements Act, R.S.A. 1970, c. 18, empow­ers a board of censors to permit or prohibit the exhibition of any film in Alberta. Classification of films may be prescribed by regulation, and apart from certain exemption from censorship by the responsible Minister in favour of an educational organization, all films to be shown in Alberta must have a stamped approval of the censors. In New Brunswick, under the Theatres, Cinematographs and Amusements Act, R.S.N.B. 1973, c. T-5 the New Brunswick Film Classification Board is empowered to prohibit the exhibition of any film or any performance in a theatre "for cause", a term left to ad hoc definition by the Board.
In those Provinces where criteria were set out in film censorship legislation, general terms were used in giving direction to film censors to determine the fitness of films for public viewing. For example, they were to determine whether the films depicted "scenes of an immoral or obscene nature" or suggested "lewdness or indecency" or were "injurious to the morals of the city or any citizen thereof" or offered "evil suggestions to the minds of children" or were against the public welfare or likely to offend the public. These terms were found in the early legislation of Manitoba, British Columbia, Saskatchewan and Newfoundland: see Jewett, Censorship of Movies for Canadian Television (1972), 30 Fac. of Law Rev. (U. of T.), 1, at pp. 6 et seq. Newfoundland still retains as the criteria for "summarily" prohibiting the exhibition of any film whether the Board of Censors consid­ers it to be "injurious to the morals of the public, or against the public welfare or offensive to the public": see The Censoring of Moving Pictures Act, R.S. Nfld. 1970, c. 30. In the other Provinces just mentioned, signifi­cant changes have occurred in the past few years in their censorship legislation. In Manitoba, The Amusements Act, R.S.M. 1970, c. A70 was amended by 1972 (Man.), c. 74 to substitute a film classification board for the previous censor board, and the power given to the latter to permit or prohibit the exhibition of any film is replaced by power to classify and to control and regulate the advertising of films. The classification basis is set out in s. 23(2) as follows:
23 (2) The board shall
(a) classify any film or slide which in its opinion is unsuitable for viewing by children or by a family by reason of sex, nudity, violence, foul language or other reason, in such a manner that the film or slide shall be restricted to viewing only by persons eighteen years of age and over; and
(b) ensure that all classifications made by it are properly advertised by the owner or operator of the place of amusement where the film or slide is proposed to be exhibited, in such manner as the board may require.
In British Columbia, a new Act, the Motion Pic­tures Act, 1976 (B.C.), c. 27 provides for the appointment of a film classification director to whom films must be submitted for approval and he is required to classify every film which he approves for exhibition under one of three classifications; (1) general, suitable for all persons; (2) adult, unsuitable for or of no interest to persons under age 18; (3) restricted, suitable only for persons age 18 or over. There are no criteria for classification in the Act which gives the director power to order, as a condition of approval, the cutting or otherwise from the film of any portion that he does not approve for exhibition. He is further empowered "subject to the Act and regulations, to approve, prohibit or regulate the exhibition of any film in the Province".
In Saskatchewan, under The Theatres and Cinematographs Act, 1968 (Sask.), c. 76, a Film Classification Board is established with power to approve or disapprove of films intended for exhibi­tion in the Province, power to order removal by cutting or otherwise of any disapproved portion, and power to classify all films presented to it for review as either general, adult or restricted adult.
In Quebec, the Cinema Act, R.S.Q. 1964, c. 55, as amended by 1966-67 (Que.), c. 22 provided for the establishment of a Cinema Supervisory Board in place of a Board of Cinema Censors, and whereas the latter was empowered without qualification to examine films and to permit or deny their use in the Province, the former was empowered (under the 1967 amending legislation aforementioned) to permit a film to be shown "if in its opinion its showing is not prejudicial to public order or good morals"; and, in addition, all authorized showings were to be by way of classification under either (1) film for all; (2) film for adolescents and adults (spectators at least 14 years of age); (3) film for adults only (spectators at least 18 years of age). Before the 1967 amendment, the Act was known as the Moving Picture Act, and the Board of Censors thereunder was given authority under the Publications and Public Morals Act, R.S.Q. 1964, c. 50 to examine at the request of the Attorney-General, any periodical in order to determine whether any illustration therein was an immoral one within the Act which defined "immoral illus­tration" as any drawing, photograph, picture or figure which evokes real or fictitious scenes of crime or of the habitual life of criminals, or morbid or obscene situations or attitudes, tending to corrupt youth and pervert morals. Upon an order being made by the Board that any periodical contains an immoral illustration, and upon the posting of the order as provided by the Act, the periodical involved, subsequent copies included, could no longer be the object of ownership or possession, a type of sanction which was applied to slot machines under the provincial legislation held to be invalid as an invasion of the federal criminal law power in Johnson v. Attorney-General of Alberta[5].
I mention the Publications and Public Morals Act because it was considered and held ultra vires by Batshaw J., Quebec Superior Court, in Regina v. Board of Cinema Censors, ex parte Montreal Newsdealers Supply Co. Ltd.[6], a judgment relied on in opposition to the proponents of the Nova Scotia Theatres and Amusements Act. Batshaw J. came to the conclusion, in a lengthy review of the legislation and of a large number of cases put forward in its support, that there was no valid provincial object served by the legislation, unlike such cases in this Court as O'Grady v. Sparling[7], and Mann v. The Queen[8], but, rather, it dealt with public morals in an aspect falling within the feder­al criminal law power and, moreover, the federal Criminal Code applied in the very situation before the Court.
In 1975, Quebec replaced its Cinema Act by a new statute similarly named: see 1975 (Que.), c. 14. It goes beyond censorship and deals, inter alia, with the promotion of a Quebec film industry. I need only refer here to those of its provisions which relate to censorship. The new Act retains the classification system found in the superseded Act but the provision in the former Act that a film may be shown if it is not prejudicial to public order and good morals is gone. Instead, there are provisions governing the advertising of films and requiring approval of such advertising, such approval depending, under s. 29, on the film clas­sification director's opinion that the advertising is not likely to mislead the viewing public and is not contrary to public order, good morals or common decency.
I have referred to provincial censorship legisla­tion in the other Provinces not to pass any judg­ment on any of it but simply to show the various ways in which movie censorship is being handled in the various Provinces, the more recent legislation having moved to a classification scheme and to advertising control. The former is not involved in the present case and the latter in only a supple­mentary way. What is involved, as I have already noted, is an unqualified power in the Nova Scotia Board to determine the fitness of films for public viewing on considerations that may extend beyond the moral and may include the political, the social and the religious. Giving its assertion of power the narrowest compass, related to the film in the present case, the Board is asserting authority to protect public morals, to safeguard the public from exposure to films, to ideas and images in films, that it regards as morally offensive, as indecent, probably as obscene.
The determination of what is decent or indecent or obscene in conduct or in a publication, what is morally fit for public viewing, whether in films, in art or in a live performance is, as such, within the exclusive power of the Parliament of Canada under its enumerated authority to legislate in rela­tion to the criminal law. This has been recognized in a line of cases in which, beginning with the seminal case of Attorney-General of Ontario v. Hamilton Street Rwy.[9], (where it was said that it is the criminal law in the widest sense that falls within exclusive federal authority), the criminal law power has been held to be as much a brake on provincial legislation as a source of federal legisla­tion. For example, in Switzman v. Elbling[10], the Supreme Court invalidated a provincial statute which not only made it illegal for the possessor or occupier of a house to use or permit it to be used to propagate communism or bolshevism (which were not defined), but also made it unlawful to print, publish or distribute any newspaper or writing propagating or tending to propagate communism or bolshevi