Towne Cinema Theatres Ltd. v. The Queen

Towne Cinema Theatres Ltd. v. The Queen
Collection
Supreme Court Judgments
Date
1985-05-09
Report
[1985] 1 SCR 494
Case number
17125
Judges
Dickson, Robert George Brian; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha
On appeal from
Alberta
Subjects
Criminal law
Evidence
Notes
SCC Case Information: 17125
Decision Content
Towne Cinema Theatres Ltd. v. The Queen, [1985] 1 S.C.R. 494
Towne Cinema Theatres Ltd. Appellant;
and
Her Majesty The Queen Respondent.
File No.: 17125.
1983: September 28.
Present: Ritchie, Dickson, McIntyre, Lamer and Wilson JJ.
Re‑hearing: 1984: November 23; 1985: May 9.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Obscenity ‑‑ Film ‑‑ Whether "undue exploitation of sex” ‑‑ Community standards ‑‑ Criminal Code, s. 159(8) .
Evidence ‑‑ Evidence on charge of obscenity ‑‑ Whether Crown must adduce evidence to establish undueness.
Appellant, owner of an Edmonton theatre, was charged with presenting an obscene motion picture contrary to s. 163 of the Criminal Code . At trial, the defence adduced evidence indicating that the film had been approved and classified by the Censor Board as a restricted adult movie and that it had been previously shown in Alberta to a large audience with no complaint being made to the Board. The evidence further showed that the film had been similarly approved and classified by the other provincial censor boards across the country. The trial judge found the film immoral, indecent and obscene and convicted the appellant. The Court of Appeal upheld that decision. This appeal is to determine whether the trial judge applied the proper test in finding the appellant guilty of presenting an obscene entertainment.
Held: The appeal should be allowed and a new trial ordered.
Per Dickson C.J. and Lamer and Le Dain JJ.: A film is obscene under s. 159(8) of the Criminal Code if it contains as a dominant characteristic the "undue exploitation of sex". To determine "undueness" one of the tests to be applied is whether the accepted standards of tolerance in the contemporary Canadian community, taken as a whole, have been exceeded. In applying the community standard of tolerance what matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it. Relevant to that determination is, among other factors, the audience to which the film is targeted since the community may tolerate different things for different groups of people depending on the circumstances.
The trier of fact must formulate an opinion of what the contemporary Canadian community will tolerate in order to determine "undueness" by the community standards test. The community consensus must be assessed and community level of tolerance objectively determined. While evidence of the community standards of tolerance may well be useful in many cases, it is not essential, for it is the opinion of the trier of fact about the community standards of tolerance which is important. The judge does not have to accept evidence, expert or otherwise, but he cannot reject it without good reason. The trier of fact's personal views regarding the impugned film are irrelevant.
In the case at bar, the trial judge applied his own subjective standards of taste and not the community standards of tolerance. He did not direct his mind to the question whether most people would tolerate others seeing the film in question and he failed to consider the fact that the film was restricted to adults only and that only those who chose to see it would be exposed to it. Further, it was incumbent upon him to consider and assess the weight, if any, to be given to the evidence adduced by the defence indicative of community standards of tolerance. He should not have rejected it without explanation.
Per Beetz, Estey and McIntyre JJ.: The standard to determine "undueness" is that of tolerance. What matters is not what Canadians think is right for themselves to see but what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it. The audience to which the film is exposed, however, is not relevant in the determination of whether or not it is obscene.
Per Beetz and Estey JJ.: The Crown is not required to adduce expert evidence as to community standards of tolerance.
Per McIntyre J.: In formulating the community standard of tolerance some evidence must be adduced by the Crown before the trier of fact.
Per Wilson J.: Under s. 159(8) of the Criminal Code , a film is deemed to be obscene if a dominant characteristic of the film is the "undue exploitation of sex". "Undue" refers to the treatment of sex which in some fundamental way dehumanizes the persons portrayed and, as a consequence, the viewers themselves. The question whether there was "undueness" must be determined according to the objective standard of the contemporary Canadian community. What must be ascertained is the degree of exploitation of sex Canadians at any given time will accept in their films. It is therefore not open to the courts under s. 159(8) to characterize a movie as obscene if shown to one constituency but not if shown to another. A movie is either obscene based on a national community standard of tolerance or it is not.
There is an onus on the Crown to put evidence before the court on the issue of "undueness". The community standard against which the allegedly obscene matter must be measured cannot be identified without it. Indeed, it is naive to think that a judge, drawing on his own experience alone, can determine the objective standard against which impugned conduct is to be measured. Moreover, it is wrong in principle. It leaves the accused with no way of knowing the case to be met, or the level of acceptability imposed by any particular judge.
In the case at bar, there is no indication that the trial judge took into consideration the uncontested evidence adduced by the defence of the unanimous approval of the film by the censor boards. He did not address his mind to the issue of the significance of the approvals as evidence of the community standard of acceptance. Considering that the business of these boards is to assess films on an ongoing basis for the very purpose of determining their acceptability for viewing by the community, it is difficult to think that a judge would be better informed as to what was acceptable to Canadians across the country. The trial judge, applying an objective test and giving proper consideration to that evidence, could not have reached the result he did. The judge clearly saw his role, not as applying the community standard but as raising it if he personally thought it was too low. In this respect he erred.
Cases Cited
R. v. Sudbury News Service Ltd. (1978), 39 C.C.C. (2d) 1; R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185; R. v. Hicklin (1868), L.R. 3 Q.B. 360; Brodie v. The Queen, [1962] S.C.R. 681; Dominion News & Gifts (1962) Ltd. v. The Queen, [1964] S.C.R. 251; [1963] 2 C.C.C. 103 (Man. C.A.); R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251; R. v. Penthouse International Ltd. (1979), 46 C.C.C. (2d) 111; R. v. Great West News Ltd., [1970] 4 C.C.C. 307; R. v. Cameron (1966), 58 D.L.R. (2d) 486, considered; Dechow v. The Queen, [1978] 1 S.C.R. 951; R. v. Fraser, [1966] 1 C.C.C. 110; R. v. Goldberg and Reitman, [1971] 3 O.R. 323; Daylight Theatre Co. v. The Queen (1973), 17 C.C.C. (2d) 451; R. v. McFall (1975), 26 C.C.C. (2d) 181; United States v. Kennerley, 209 F. 119 (1913); R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154; R. v. American News Co. (1957), 118 C.C.C. 152; Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); United States v. Various Articles of Obscene Merchandise, 709 F.2d 132 (1983); R. v. Wagner, Alta. Q.B., January 16, 1985; R. v. Chin (1983), 9 W.C.B. 249; Weidman v. Shragge (1912), 46 S.C.R. 1, referred to.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, ss. 159(8), 163, 164.
APPEAL from a judgment of the Alberta Court of Appeal pronounced May 12, 1982, dismissing appellant's appeal from his conviction of presenting an obscene entertainment. Appeal allowed and new trial ordered.
Jack N. Agrios, Q.C., and Bradley J. Willis, for the appellant.
Michael G. Allen, for the respondent.
The reasons of Dickson C.J. and Lamer and Le Dain JJ. were delivered by
1. The Chief Justice‑‑The question is whether the trial judge applied the proper test in finding Towne Cinema Theatres Ltd. guilty of presenting an obscene entertainment. The indictment reads:
That The Towne Cinema Theatres Ltd., at Edmonton, in the Judicial District of Edmonton, Alberta, on or about the 27th day of January, A.D. 1980, being the person in charge of a theatre, namely: Jasper Cinema (Blue) at 10120 ‑ 156 Street, did unlawfully present to an audience an entertainment, namely: a motion picture entitled "Dracula Sucks" which entertainment was immoral, indecent or obscene, contrary to the Criminal Code .
I The Facts and the Trial Judgment
2. In January, 1980, the accused company was owner and manager of a theatre, known as Jasper Cinema (Blue), located in the City of Edmonton. The cinema was a typical picture theatre showing motion picture films to members of the public who paid an admission fee. On January 25 to 27, 1980 the accused was regularly presenting showings of a motion picture called Dracula Sucks. The film had been given a "Restricted" rating by the Alberta Motion Picture Censor Board. A copy of the motion picture was seized by the Edmonton City Police on January 27, 1980, after the public showing on that date and before the scheduled second public showing. The accused was charged and tried before a justice of the Court of Queen's Bench of Alberta. Three witnesses testified.
3. Staff Sergeant Ashworth of the Edmonton City Police said he had attended and observed the film and it was he who had taken possession of the film. The Court then adjourned to the Censor Board film theatre where the trial judge viewed the film. At the resumption of the trial, Ashworth testified that on January 21, 1980, the film had been showing at the Capitol Square Cinema, before being transferred to the Jasper Cinema. While at the former theatre Ashworth had received about five phone calls from persons complaining about the film. In cross‑examination he was asked:
Did you find the movie very offensive to yourself?
He replied:
Yeah, I thought it was disgusting. That's only my personal...
The film itself and the evidence of Staff Sergeant Ashworth constituted the case for the Crown.
4. The defence called two witnesses. The first was Terrance Yushchyshyn, Director of Operations for the theatres operated by the accused company in the five westerly provinces. His evidence in summary was as follows. Prior to being booked into his theatre in Edmonton, the film, the subject of the present charge, had been shown at two Famous Players' Theatres, one in Edmonton, where it had been seen by 4065 persons and one in Calgary, where it had been seen by 4075 persons. The film was then moved to the Jasper Cinema where it was seen, before seizure, by 555 people, without complaints. In Mr. Yushchyshyn's opinion the impugned film was "very passé", "boring and dull". Other films such as Last Tango in Paris, had far greater emphasis on sexual gratification.
5. Owen Garland Hooper is Chairman of the Alberta Motion Picture Censor Board. The Board views every film seen in Alberta. The Board allowed Dracula Sucks to be shown in the province as a restricted adult movie, no one under the age of eighteen being admitted. The film was approved in the restricted adult category or equivalent by all of the provincial censor boards or classification boards across Canada. Mr. Hooper said that his Board had not made any deletions to the film. Most movies are "pretty extensively cut when we get them". This one had been edited in Toronto. The Board arrives at appropriate classification for a movie consistent with the Board's interpretation of current community standards of acceptance. Compared to other movies he had seen, Mr. Hooper described Dracula Sucks as "pretty forgettable". The Board had received no complaints regarding this particular film. During the preceding year, the Board viewed 750 films and rejected twelve, because it was felt that adult Albertans would generally repudiate them. The basis for the Board's assessment of community standards has shifted during the preceding ten years: now, "it's contemporary, it's modern, it must be Canadian". Mr. Hooper succinctly described Dracula Sucks: "Well, it has nudity in it, it has violence in it, it has simulated sex encounters in it."
6. The trial judge found the film to be immoral, indecent and obscene. It possessed "absolutely no artistic merit whatsoever"; "most of the film was devoted to extreme, tasteless violence and explicit, unnecessary sex".
7. The accused company was convicted and fined $1500.
II On Appeal
8. In a brief judgment, the Court of Appeal of Alberta dismissed the appeal. The Court noted it was not its function to judge the merits of the film, and it had not found it necessary to see the film; its sole function was to review the propriety of the trial. The judgment continued:
We have reviewed the reasons for judgment given in support of this conviction. Those reasons are blunt and impactive. The trial judge, sitting as a jury, was obliged to determine in an objective way what was tolerable in accordance with the contemporary standards of the Canadian community. As a trier of fact he was entitled to draw on his experience in the community. He had to consider the expert evidence but was entitled to reject it and obviously did. In this we are paraphrasing the remarks of Howland, C.J.O., in Regina v. Sudbury News Service 1978 39 C.C.C. (2d) 1 at p. 7.
The judgment concluded thus:
The reasons of the trial judge challenged in this appeal must be considered in the context of his whole judgment and the argument which immediately preceded it. The trial judge found that the only theme of the film "Dracula Sucks", was sex and violence, extreme and explicit. He found no plot. He asked himself what are contemporary community standards and considered all the evidence led. He cautioned himself on the dangers of slipping into subjective standards and concluded that the film did not meet the objective test. We see no grounds, in law, to disturb this conviction and dismiss the appeal.
III Issues
9. In his factum, counsel for Towne Cinema raised five grounds of appeal. At the hearing oral argument was presented on only two of these grounds, both alleging errors in the trial judge's determination of the community standard of tolerance.
10. In view of the importance of the issues raised in this appeal, the Court felt that it would be proper to request a re‑hearing before a full bench.
11. The Court requested counsel to address the following four questions:
1. Assuming that for purposes of s. 159, undue exploitation of sex is to be assessed on the basis of community standards, do these standards refer to what one would find acceptable for oneself to see or read, or to what one would tolerate others seeing or reading?
2. How is this standard to be ascertained by the trier of fact?
3. How is an impugned film to be measured against it?
4. What is the relevance, if any, of the audience to which a film is geared in determining whether it is obscene under s. 159(8)?
12. In my view the following issues arise from the two grounds argued on the appeal and the four questions addressed at the re‑hearing:
1. What is the proper interpretation of the word "undue" in s. 159(8) of the Criminal Code ?
2. Must the Crown adduce evidence to establish undueness?
IV Undueness and the Community Standards Test
13. In 1959 Parliament amended the provisions of s. 150 (now s. 159) of the Criminal Code dealing with obscenity by adding subs. (8) (1959 (Can.), c. 41, s. 11) which reads:
(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.
14. Any doubt that might previously have existed on the question of whether s. 159(8) embodied the proper or the exclusive test for obscenity in relation to a film was implicitly resolved by this Court in Dechow v. The Queen, [1978] 1 S.C.R. 951. A number of decisions in various jurisdictions had previously concluded that films were "publications" and therefore properly dealt with under s. 159(8) (see R. v. Fraser, [1966] 1 C.C.C. 110 (B.C.C.A.); R. v. Goldberg and Reitman, [1971] 3 O.R. 323 (C.A.); and Daylight Theatre Co. v. The Queen (1973), 17 C.C.C. (2d) 451 (Sask. Dist. Ct.))
15. Dechow dealt with an allegation of obscenity with regard to an exhibition of sex stimulators. Using language and reasoning easily extendible to motion pictures, Ritchie J., writing for the majority, held that the objects in question, accompanied as they were by printed instructions for their use, were "publications" within the meaning of that term in s. 159. They were therefore to be judged by the standard laid down in s. 159(8) , which was the sole test of obscenity in relation to publications. Chief Justice Laskin, speaking for a minority of the Court, preferred the view that the articles in question were not publications. He was, however, of the opinion that the Court should apply exclusively the test in s. 159(8) in respect of allegations of obscenity whether such allegations are made under s. 159 (which deals with publications) or one of the other sections of the Code, such as s. 163 (under which the charge against Towne Cinema was laid) or s. 164.
16. The practical effect of the two judgments, though they differ widely in approach, is, for present purposes, the same: s. 159(8) embodies the sole test of obscenity in relation to motion pictures. It supersedes rather than supplements the much‑criticized test enunciated by Cockburn C.J. in R. v. Hicklin (1868), L.R. 3 Q.B. 360.
17. In Canada, the notion of "community standards", as relevant to the determination of obscenity, has its origins in the judgment of Judson J. (speaking also for Abbott and Martland JJ.) in Brodie v. The Queen, [1962] S.C.R. 681, the Lady Chatterley’s Lover case. Brodie was the first obscenity appeal to come before this Court following the introduction of s. 159(8) and Judson J.'s explication of this section reveals a very clear awareness of the criticism that had been leveled against the Hicklin test and an intention to avoid its pitfalls in the future. In Hicklin Cockburn C.J. had said:
...I think the test of obscenity is this, 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.
18. This definition had been criticized for its focus on the reactions of the weakest and least capable members of society, for its disregard of serious purpose or artistic merit in the impugned material and for its excessive dependence on subjective conjecture on the part of the trier of fact. In Brodie, Judson J. expressed the view that by the enactment of s. 159(8) "all the jurisprudence under the Hicklin definition is rendered obsolete" (p. 701) and that the new definition gave the Court "an opportunity to apply tests which have some certainty of meaning and are capable of objective application, which do not so much depend as before upon the idiosyncrasies and sensitivities of the tribunal of fact, whether judge or jury" (p. 702). Henceforth, the standard for obscenity would be an "undue exploitation of sex" and Judson J. proposed two tests which he regarded as capable of objective application to determine such "undueness".
19. The first test focussed on the "internal necessities" of the work in question. In the American case of United States v. Kennerley, 209 F. 119 (1913), Judge Learned Hand had reluctantly felt bound to apply the Hicklin test, but said, at pp. 120‑21: "I question whether in the end men will regard that as obscene which is honestly relevant to the adequate expression of innocent ideas." In Brodie, at pp. 704‑05, Judson J. applied this principle to the newly‑enacted statutory definition:
...I do not think that there is undue exploitation if there is no more emphasis on the theme than is required in the serious treatment of the theme of a novel with honesty and uprightness.... The section recognizes that the serious‑minded author must have freedom in the production of a work of genuine artistic and literary merit and the quality of the work, as the witnesses point out and common sense indicates, must have real relevance in determining not only a dominant characteristic but also whether there is undue exploitation.
20. Judson J.'s second test for "undueness" looked to the standards of the community. The concept of "community standards" had previously been applied by courts in Australia and New Zealand as a measure of whether a work exhibited an "undue emphasis" on sex. Judson J. regarded this reading of undue as meaning "what the community regards as excessive" to be preferable to what he saw as the only alternative (at p. 706):
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 that the second is the better choice.
21. Judson J. made no attempt to harmonize or integrate his two tests. He simply concluded that whether the question was approached on the basis of the internal necessities of the novel itself or on the basis of an offence against community standards, undue exploitation of sex was not a dominant characteristic of Lady Chatterley’s Lover.
22. In the present case, no argument was addressed to the "artistic merit" or "serious purpose" of Dracula Sucks‑‑nor, I should think, could such an argument plausibly be made. This Court is not, therefore, called upon to expound the relationship between Judson J.'s two tests. We need only consider the issue of obscenity from the point of view of community standards.
23. Nevertheless, as will presently appear, it is important to remember that from the very beginning of this Court's consideration of s. 159(8) "community standards" have been viewed as one measure of "undueness" in the exploitation of sex. They have never been seen as the only measure of such undueness; still less has a breach of community standards been treated as in itself a criminal offence.
24. There are other ways in which exploitation of sex might be "undue". Ours is not a perfect society and it is unfortunate but true that the community may tolerate publications that cause harm to members of society and therefore to society as a whole. Even if, at certain times, there is a coincidence between what is not tolerated and what is harmful to society, there is no necessary connection between these two concepts. Thus, a legal definition of "undue" must also encompass publications harmful to members of society and, therefore, to society as a whole.
25. Sex related publications which portray persons in a degrading manner as objects of violence, cruelty or other forms of dehumanizing treatment, may be "undue" for the purpose of s. 159(8) . No one should be subject to the degradation and humiliation inherent in publications which link sex with violence, cruelty, and other forms of dehumanizing treatment. It is not likely that at a given moment in a society's history, such publications will be tolerated. See R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154 (Ont. Co. Ct.) at p. 173; R. v. Wagner, Alta. Q.B., January 16, 1985 (unreported); R. v. Chin, Ont. Prov. Ct., February 22, 1983 (unreported, but summarized at 9 W.C.B. 249).
26. However, as I have noted above, there is no necessary coincidence between the undueness of publications which degrade people by linking violence, cruelty or other forms of dehumanizing treatment with sex, and the community standard of tolerance. Even if certain sex related materials were found to be within the standard of tolerance of the community, it would still be necessary to ensure that they were not "undue" in some other sense, for example in the sense that they portray persons in a degrading manner as objects of violence, cruelty, or other forms of dehumanizing treatment.
27. In the present case, however, only the community standard of tolerance is directly in issue. The rest of this decision will be concerned with the community standard of tolerance.
28. Two years after the Brodie case this Court, in Dominion News & Gifts (1962) Ltd. v. The Queen, [1964] S.C.R. 251, adopted in toto the dissenting reasons delivered in the Court of Appeal of Manitoba by Freedman J.A., [1963] 2 C.C.C. 103. In that case, as in this, the allegedly obscene material had no discernible serious purpose or artistic merit. Freedman J.A.'s discussion of whether or not it unduly exploited sex was therefore focussed on its relationship to community standards. Applying Judson J.'s observation in Brodie about the need to test undueness by objective criteria, Freedman J.A. elaborated on several requisite characteristics of the community standards to be applied. He held that the standards must be Canadian standards, not those prevailing elsewhere, and that they must be contemporary standards reflecting the current level of candour with regard to sexual matters not the level of the past. On the question of which contemporary Canadians are to be the touchstone of "community standards" Freedman J.A. said at p. 116:
Those 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 and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered. Obviously this is no easy task, for we are seeking a quantity that is elusive. Yet the effort must be made if we are to have a fair objective standard in relation to which a publication can be tested as to whether it is obscene or not. The alternative would mean a subjective approach, with the result dependent upon and varying with the personal tastes and predilections of the particular Judge who happens to be trying the case.
29. In 1974, in R. v. Odeon Morton Theatres Ltd. (1974), 16 C.C.C. (2d) 185, Freedman C.J.M. had much the same to say with regard to the appropriate community standard to apply in determining whether the film Last Tango in Paris was obscene at p. 188:
The learned trial Judge made it abundantly clear that his obligation was to consider the film not according to his own subjective views but according to the objective test furnished by contemporary community standards in Canada. Indeed he expressly stated in his reasons for judgment that his personal views were adverse to the acceptability of the film but that he was setting aside those views. That of course was the correct and judicial thing to do.
30. I said earlier that the undue exploitation of sex is the touchstone of obscenity under s. 159(8) , and that a breach of community standards is simply one measure of such undueness. It is harm to society from undue exploitation that is aimed at by the section, not simply lapses in propriety or good taste. In R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251 (Man. C.A.), Monnin J.A. and I considered this point at p. 269:
The Court was urged to define "community standards" as community standards of acceptance, i.e., tolerance. I would accept this definition. In the Brodie case Judson J., referred, p. 181, to "standards of acceptance prevailing in the community". In the Great West News case, we referred to contemporary standards of tolerance. I have no doubt, as Dr. Rich testified, and as the Judge agreed, a distinction can be made between private taste and standard of tolerance. It can hardly be questioned that many people would find personally offensive, material which they would permit others to read. Parliament, through its legislation on obscenity, could hardly have wished to proscribe as criminal that which was acceptable or tolerable according to current standards of the Canadian community.
31. A similar point was made by Weatherston J.A., delivering the judgment of the Ontario Court of Appeal in R. v. Penthouse International Ltd. (1979), 46 C.C.C. (2d) 111 (leave to appeal refused, [1979] 1 S.C.R. xi) at pp. 114‑15:
It is neither helpful nor accurate to say that the standard of tolerance is synonymous with the moral standards of the community...the words "moral standards of the community" mean no more than a consensus of what is right and what is wrong.... The question, in any event, is not whether the content of the publication goes beyond what the contemporary Canadian community thinks is right, but rather whether it goes beyond what the contemporary Canadian community is prepared to tolerate.
32. R. v. Sudbury News Service Ltd. (1978), 39 C.C.C. (2d) 1 (Ont. C.A.), was concerned with the distribution to certain confectionary stores of magazines alleged to be obscene, including Penthouse and Oui. Howland C.J.O., speaking for the Ontario Court of Appeal, reviewed the relevant authorities and then, in a number of propositions distilled from those authorities expressed, in my view admirably, the present state of Canadian law as applied to the question presently before the Court.
33. I have taken the liberty of extracting the following propositions from various places in the judgment: (i) in determining what is undue exploitation within s. 159(8), one of the tests to be applied is whether the accepted standards of tolerance in the contemporary Canadian community have been exceeded; (ii) the standards must be contemporary as times change and ideas change with them, one manifestation being the relative freedom with which the whole question of sex is discussed; (iii) it is the standards of the community as a whole which must be considered and not the standards of a small segment of that community such as the university community where a film was shown; (iv) the decision whether the publication is tolerable according to Canadian community standards rests with the court; (v) the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one's own personal ideas of what is tolerable.
34. The cases all emphasize that it is a standard of tolerance, not taste, that is relevant. What matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it.
35. Since the standard is tolerance, I think the audience to which the allegedly obscene material is targeted must be relevant. The operative standards are those of the Canadian community as a whole, but since what matters is what other people may see, it is quite conceivable that the Canadian community would tolerate varying degrees of explicitness depending upon the audience and the circumstances. I would adopt the following passage of Howland C.J.O. in Sudbury News Service Ltd. (supra) at p. 8:
The next question which arises is the extent to which the manner and circumstances of distribution are relevant in determining whether or not a publication is obscene. There are some publications which are so blatantly indecent that they would not be tolerable by the Canadian community under any circumstances. Some pictures are offensive to the majority of people to the point that the Canadian community would not tolerate them on a billboard, or on the cover of a magazine, or on a television screen where persons of all ages and sensibilities would be exposed to them, but would be prepared to tolerate them being viewed by persons who wished to view them. Some pictures would not be acceptable by Canadian community standards in a children's bedtime story‑book or primer but would be in a magazine for general distribution. The Canadian community might be prepared to tolerate the exhibition of a motion picture to an adult audience, but would consider the exhibition of the same motion picture to a general audience, which included children, to be an undue exploitation of sex. Similarly, the general distribution of certain magazines to a neighbourhood store accessible to all ages would not be tolerable, whereas the distribution of such magazines to "adult" bookstores to which children under a certain age were not admitted might not be objectionable. The packaging and pricing of a publication may also be relevant in considering whether Canadian community standards have been exceeded. The distribution of magazines in plastic covers marked "adult" in some respects might act as an attraction rather than a deterrent unless the price was high enough to place it beyond the reach of most children.
In endorsing this view I am modifying the position I had adopted in the Manitoba Court of Appeal in R. v. Great West News Ltd., [1970] 4 C.C.C. 307, at p. 317 (leave to appeal denied, [1970] S.C.R. ix).
36. With that review of the cases, I turn now to the trial judgment in the present case. The appellant submits that the trial judge misdirected himself in holding that his assessment of the local community's feeling of "revulsion" was determinative of the Canadian community standard of tolerance, and in thereby employing a subjective and regional rather than objective and national test. According to the appellant the Crown must prove beyond a reasonable doubt that the film would not be tolerated by the Canadian community in the sense that those who do not wish to view it will not accept or tolerate the fact that others do and will see it.
37. In delivering judgment the trial judge said:
I do not have the benefit of a jury. In making the remarks I have made, I do not feel that I am imposing my own standards completely, although how can one help but be subjective in a case like this. None of us live on an island, we all live in a world which, as evidence has suggested today, is becoming more tolerant of explicit sex in films and more tolerant of violence. Somebody has got to draw the line and I don't know how far community standards are prepared to be stretched before somebody does draw the line on the type of garbage that I saw this morning.
I am satisfied that this film is a long way from meeting the contemporary community standards. It may satisfy a certain element of a community, it may gratify them, but I am prepared to say that the majority of the community would feel the same revulsion for this show that I felt when I left there this morning.
When I say the dominant theme of this film was sex and violence, I am not being entirely correct, it is the only theme. There is no plot, there is no story whatsoever, unless it is hidden in such a way that I couldn't find it. I was making notes at the time the show was on, but I was able to watch it in its entirety.
38. In the present case I think, with respect, that the trial judge applied a standard of taste, not tolerance, as reflected in these words:
...I am prepared to say that the majority of the community would feel the same revulsion for this show that I felt when I left there this morning.
In my view this statement can only be interpreted as saying that most people would be personally offended. The judge did not direct his mind to the question whether most people would tolerate others seeing the film in question. In that I think he erred.
39. It should also be noted that the trial judge gave no consideration to the fact that Dracula Sucks was restricted to adults only, and that only those who chose to see it would be exposed to it. As I have said, these factors are important considerations in applying a test of tolerance.
40. The appellant argues, as I have indicated, that the trial judge applied a subjective and local standard rather than a national objective test. In Brodie, Judson J. makes it clear that the trier of fact is not supposed simply to apply his own subjective standard but rather to assess the community standard. The statement of the trial judge, "I do not feel that I am imposing my own standards completely" seems to imply that he is imposing his own standards primarily and lends support to the submission of the appellant that the test applied was subjective and not objective. In particular, the sentence reading: "Somebody has got to draw the line and I don't know how far community standards are prepared to be stretched before somebody does draw the line on the type of garbage that I saw this morning" suggests that the judge is imposing his own standard‑‑somebody has to draw the line and he is going to be the one to do it.
41. Reading his comments as a whole, I can reach no conclusion other than the trial judge applied his own subjective standards of taste and not community standards of tolerance.
V The Evidentiary Issue
42. The appellant's second ground is that the judge failed to have regard to the unrebutted evidence of the Chairman of the Censor Board that the film did not fall below contemporary community standards. Counsel for the appellant does not contend that censor board approval is a bar to a criminal prosecution. He readily concedes that it is for the courts to decide whether a publication is obscene (Daylight Theatre Co. v. The Queen (supra); R. v. McFall (1975), 26 C.C.C. (2d) 181 (B.C.C.A.)
43. Counsel does, however, take the point that in light of the evidence, not disputed, of the approval of the allegedly obscene film by all of the censor boards or classification boards across the country there was an additional onus on the Crown to adduce evidence to establish beyond a reasonable doubt that the film went beyond what the contemporary Canadian community is prepared to tolerate. In support of this argument counsel cited several passages on the subject of expert evidence from the dissenting judgment of Laskin J.A., as he then was, in R. v. Cameron (1966), 58 D.L.R. (2d) 486 (Ont. C.A.) and urged us to accept them as correct statements of the evidentiary requirements in obscenity cases.
44. The issue of who must place evidence of what before the trier of fact in obscenity cases is a vexing and recurring problem. Under the Hicklin rule expert evidence was in general held to be irrelevant. As Laidlaw J.A. explained in R. v. American News Co. (1957), 118 C.C.C. 152 (Ont. C.A.) at p. 157, since, under the Hicklin test, the gravamen of the offence was a tendency to deprave or corrupt, evidence as to artistic merit‑‑no matter how reliable‑‑was held to be irrelevant to the issue of obscenity. And as for evidence tending to show that the material in question had no tendency to deprave or corrupt, Laidlaw J.A.'s discussion, at p. 161, illustrates that the prevailing rules of evidence held such testimony to be inadmissible opinion evidence going to the very question to be determined by the trier of fact.
45. With the inception of the new statutory definition in s. 159(8) this rigid inflexibility was considerably relaxed. In Brodie (supra), at p. 703, Judson J. made it clear that expert evidence as to the seriousness of the artist's purpose and the artistic merit of the material in question was certainly admissible, and, in his