On December 22, 2012, one of the stranger criminal law stories in recent Canadian history came to an end: Quebec-based special effects artist Remy Couture was acquitted by a jury on the charges of “corrupting morals” in connection with various photographs and short videos he had made available on his website. The specific charges for obscenity (although it is not clear from the news reports which precise section Couture was charged under) are found in Sections 163(1) and (2) of the Criminal Code, which bear the heading “Corrupting Morals” and which provide that:
(1) Every one commits an offence who
(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever … .
(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 other thing whatever;
In short, Couture had been charged with creating and showing obscene materials.
As noted in the CBC news story linked above, Couture’s materials “depict[ed] gruesome murders, torture, sexual abuse, assaults and necrophilia — all with young female victims.” Some of the materials were apparently so realistic that some viewers (including, evidently, a pathologist in Europe) had difficulty determining whether they depicted actual crimes. As further detailed in the news report, Couture’s website
“was part of a personal project by Couture designed to raise the bar of his make-up and special- effects work. …. Couture described it as a sort of “fake diary of a serial killer,” complete with his own universe inspired by horror movies and literature. But there was no victim in the case — all of the works were staged with willing actresses and a combination of fake blood, latex and silicone to create lifelike, horrific images. Couture testified the reason behind the work was to highlight his skills and abilities as a master of special effects horror, and that the goal is to make his work look believable.”
Because the case was heard by a jury, no written reasons will be released for the case. The case does, however, offer an opportunity to consider what precisely constitutes “obscene” material in film and TV productions.
Section 163(8) of the Code provides a definition of “obscene”:
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.
While the definition is somewhat opaque, we’ve got the outlines of the elements of “obscene” material: it needs to involve the “undue” exploitation of sex (or sex coupled with some other elements, namely crime, horror, cruelty and/or violence), and such undue exploitation must be the “dominant” characteristic of the work in question. We’re left with a number of questions, probably the most salient of which is what constitutes “undue” exploitation of sex. Helpfully, the courts have spilled considerable ink trying to sort this all out – unhelpfully, it’s not totally clear that all their effort has led to all that much clarity.
There are two leading Canadian cases on obscenity, both Supreme Court of Canada decisions – in R v Butler,  1 SCR 452, the Court considered the “adult” obscenity provisions in Section 163; in R v Sharpe, 2001 SCC 2, the Court addressed the “child pornography” provisions in Section 163.1, which contain some similar language and are animated by some of the same considerations. In Butler, the Court held that for a publication to “unduly” exploit sex, the sex must be “explicit”; in Sharpe, in considering the phrase “explicit sexual activity” (which appears in the child pornography provision), the Court held that depictions would only be prohibited if they fell at the “extreme end of the spectrum of sexual activity – acts involving nudity or intimate sexual activity represented in a graphic and unambiguous fashion”.
We’re getting a bit closer to a cognizable meaning for “obscene” – so far we know that the work must depict explicit sexual activity, but we need a better handle on what “undue” means. In Butler, the Court held that something would “unduly” exploit sex if it exploited sex “in a ‘degrading or dehumanizing’ manner” which would be “perceived by public opinion to be harmful to society” (in Butler, the harm was held to be generally directed towards women, while in Sharpe the harm was directed primarily at children). As the Ontario Court of Appeal noted in R v Smith (2005 CanLII 23805), “materials that exploit sex and raise a reasoned apprehension of harm to the group being portrayed … will constitute the ‘undue’ exploitation of sex”.
The Supreme Court also described three categories of potential obscene materials: (1) the depiction of explicit sex with violence; (2) the depiction of explicit sex without violence, but which subjects individuals to treatment that is degrading or dehumanizing; and (3) explicit sex without violence that is neither degrading or dehumanizing. Work falling within category (3) is described by the Court as “generally tolerated in our society” and will not contravene the Criminal Code unless children are used in the production of the work (in which case it would fall under Section 163.1). Work falling within category (2) may qualify as obscene (i.e., it may constitute the “undue exploitation of sex”) if it presents a substantial risk of harm to the depicted group. Work falling within category (1) “will almost always” be considered obscene.
We can now see the hurdles which an impugned work must clear before it can be considered “obscene” for purposes of the Criminal Code: (a) it must have as a “dominant characteristic” the undue exploitation of sex; (b) for there to be “undue exploitation of sex”, there must be a risk of harm arising from the fact that it combines explicit sex and violence or it depicts sexual activity in a manner which is degrading or dehumanizing. The Supreme Court in R v Butler articulated the standard for obscenity as follows:
The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner… . The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.
That definition was modified somewhat in R v Labaye, 2005 SCC 80, in which it was held (in considering a different section of the Criminal Code) that references to “undue” should refer not to community standards but to “objectively ascertainable harm” (see R v Katigbak, discussed below, at para. 66).
All of which is well and good, but it leaves open the question of what defences might be available to someone accused of making or selling obscene materials – there are free expression considerations which must be taken into account, after all. There are three matters which qualify the approach taken by the courts when dealing with allegedly obscene materials which seek to balance the potential liability imposed by Section 163 with the interest in protecting free expression: first, the courts adopt a restrictive interpretive stance with respect to obscene materials; second, the courts have created what I’ll call an “internal” artistic merit defence; and third, the legislation contains an explicit “public good” defence.
The first limiting agent on the obscenity provisions is an interpretive stance invoked by the courts – as the Ontario Court of Appeal articulates it in R v Smith (which, somewhat similar to Couture’s case, involved an obscenity charge for audio-visual and written materials which were made available to subscribers of a website and, oddly enough, also involved consideration of “special effects” employed by the defendant in creating the materials), the Criminal Code is given a “restrained interpretation”, so that it “capture[s] only depictions that fall at the far end of the spectrum because only those depictions are likely to cause harm”. Thus, only in “extreme” situations will the impugned material be considered obscene, in deference to free expression considerations.
The second limiting agent in the court’s application of the obscenity provisions is what I’ve referred to as the “internal” artistic merit defence. The Supreme Court of Canada referred to this in R v Butler as the “internal necessities” test. This test involves assessing the work to determine whether the undue exploitation of sex is the “dominant theme” of the work, or whether such portrayal of sex is “essential to a wider artistic, literary or other similar purpose”. As the Supreme Court noted, beacause “[a]rtistic expression rests at the heart of freedom of expression values … any doubt in this regard must be resolved in favour of freedom of expression”.
The courts have thus crafted some interpretive devices which permit them significant latitude in determining what constitutes obscene materials. However, even otherwise “obscene” materials will not result in a conviction if there is a “public good” served by the creation and dissemination of the materials. Section 163(3) of the Code creates an explicit (get it?) “public good” defence:
No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.
In R v Sharpe, the majority decision interpreted “public good” as “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”. The reasons also described scenarios which might qualify: “possession of child pornography by people in the justice system for purposes associated with prosecution, by researchers studying the effects of exposure to child pornography, and by those in possession of works addressing the political or philosophical aspects of child pornography”. The bar is actually set quite high to avail oneself of the “public good” defence – as the Supreme Court of Canada noted in R v Katigbak, 2011 SCC 48, the question is not whether the defendant intended to serve the public good, or whether the material created could serve the public good, but “whether, viewed objectively, the evidence supports the contention that the activities in question actually served the public good” [emphasis added].
Beyond that, the “public good” defence in Section 163(3) has not received much authoritative attention from the courts in the post-Charter era. In trying to assess how the courts might handle the defence, we might be able to obtain some guidance from R v Katigbak, which considered the “legitimate purpose” defence in Section 163.1(6) which is only available for “child pornography” – while the wording in Section 163.1(6) is significantly different from that in Section 163(3), the tenor of the Supreme Court’s decision gives some indication of how credulously the courts will treat assertions of “artistic merit” by defendants (which is to say, they don’t appear inclined to give such assertions much credence unless there’s some actual artistic merit to be had).
So where does this all leave us? It means that, for the most part, getting convicted in Canada for promulgating “obscene” material is going to be pretty difficult to do if your film or TV production has any objective artistic content to it. It is worth recalling that Remy Couture was acquitted of an obscenity charge – and the stuff he created essentially had no artistic conceits in the works themselves: there was no narrative, no plot, no character development (there weren’t even really “characters”), no thematic development – it was all simply the depiction of “special effects” for the sake of that depiction alone. There is also, without putting too fine a point on it, an enormous amount of explicit pornography which is sold in Canada without any threat of an obscenity charge – and as the court’s have intimated, it’s an awfully high bar to clear before they will consider something to constitute the “undue exploitation of sex”. So materials which are created for commercial exploitation and which have literary elements to them, even if sex and violence are incorporated therein, are in the vast majority of cases never going to come anywhere close to the line of being deemed “obscene” for purposes of our Criminal Code.