Revenue Canada

MEMORANDUM D9-1-1


Ottawa, February 4, 1998

SUBJECT

JURISPRUDENCE AND
REVENUE CANADA'S INTERPRETATIVE
POLICY FOR THE ADMINISTRATION OF
TARIFF ITEM NO. 9899.00.00 ON GOODS
DEEMED TO BE OBSCENE UNDER
SUBSECTION 163(8) OF THE
CRIMINAL CODE

This Memorandum outlines and explains the interpretation of tariff item No. 9899.00.00, paragraph(a), of the List of Tariff Provisions to the Customs Tariff.

Legislation

The List of Tariff Provisions to the Customs Tariff states that importation into Canada of any goods enumerated, described, or referred to in tariff item No. 9899.00.00 is prohibited.

Tariff item no. 9899.00.00 reads, in part:

Books, preinged paper, drawings, paintings, prints, photographs or representations of any kind that

(a) are deemed to be obscene under subsection 163(8) of the Criminal Code;...

Subsection 163(8) of the Criminal Code reads:

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.

GUIDELINES AND
GENERAL INFORMATION

General Context: The Uniqueness of Obscenity Decisions in Revenue Canada's Mandate

1. In the course of administering the many laws of Parliament that prohibit, control, or regulate the importation of goods, customs officers deal with a wide range of goods (e.g., hazardous products, agricultural products subject to sanitary and phytosanitary standards, apparel).

2. One category of goods differs from all others, however; that is, material that may be subject to prohibition under the provisions of the Criminal Code which deem the material to be obscene.

3. Unlike many other goods which Revenue Canada officers deal with on a routine basis, written and visual materials have been found by the Courts to be protected by the freedom of expression guarantees of section 2(b) of the Canadian Charter of Rights and Freedoms. The Courts have found that, by seeking to prohibit certain types of expressive activity, section 163 of the Criminal Code infringes section 2(b) of the Charter.

4. Nevertheless, the Courts have found that infreingement is justifiavle under section 1 of the Charter because the overriding objective of section 163 is the avoidance of harm to society and that this is a sufficiently pressing and substantial concern to warrant a restriction of freedom of expression.

5. However, the Courts have also outlined a number of tests which must be applied before a decision may be made that material is deemed to be obscene.

The Courts and Customs' Role in Prohibiting Obscenity

6. In addition, the Courts have also found that the provisions of the Customs Act that allow customs officers to detain and prohibit material that is not obscene infringe the Charter rights of the importers.

7. Therefore, the handling of potentially obscene material and the decision making process of classifying material as obscene under tariff item No. 9899.00.00 in the Listo f Tariff Provisions of the Customs Tariff have totally different repercussions for Revenue Canada and for importers than do comparable decisions made for other goods which do not involve Charter issues.

Determining Whether Goods Are Obscene: Goods Where the Portrayal of Sex Is Not Essential to a Wider Artistic, Literary, or Other Similar Purpose

8. Goods which are deemed to be obscene under the Criminal Code are those materials exhibiting, as a dominant characteristic, the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime horror, cruelty, and violence.

9. The Courts have accepted that much of the potentially obscene material which Revenue Canada deals with is "capable of relatively quick decision." The Court is referring here to the material where there is clearly an undue exploitation of sex and where the portrayal of sex is not essential to a wider artistic, literary, or other similar pupose; in other words, material where the portrayal of sex is the main object.

Guidelines for Dealing With Material Where the Portrayal of Sex is Not Essential to a Wider Artistic, Literary, or Other Similar Purpose

 

10. When dealing with material where the portrayal of sex is not essential to a wider artistic, literary, or other similar purpose, the following guidelines apply.

11. The following goods, insofar as they may constitute "undue" exploitation of sex within the meaning of the terms as set forth above, may be classified under tariff item No. 9899.00.00 and their importation into Canada may be prohibited:

(a) goods which depict or describe sexual acts that appear to degrade or dehumanize any of the participants, including:

(1) depictions or descriptions of sex with violence, submission, coercion, ridicule, degradation, exploitation, or humiliation of any human being, whether sexually explicit or not, and which appear to consone or otherwise endorse such behaviour for the purposes of sexual stimulation or pleasure;

(2) depictions or descriptions of sexual assault (previously, rape). Any goods that depict or describe a sexual activity between male/female, male/male, or female/female which appears to be without his/her consent and which appears to be achieved chiefly by force or deception;

(3) depictions or descriptions of bondage, involuntary servitude, and the state of human beings subjected to external control, in a sexual context;

(4) depictions or descriptions which appear to be associating sexual pleasure or gratification with pain and suffering, and with the mutilation of or letting of blood from any part of the human body, involving violence, coercion, and lack of basic dignity and respect for a human being;

(5) depictions or descriptions of sexual gratification gained through causing physical pain or humiliation, or the getting of sexual pleasure from dominating, mistreating, or hurting a human being. This includes depictions and descriptions of physical force which appear to be used so as to injure, damage, or destroy; of extreme roughness of action; of unjust or callous use of force or power; of spanking, beating, or shoving in a sexual context;

(6) depictions or descriptions of mutilation or removal of any part of the human body or of the taking of human life, real or implied, for the purposes of sexual arousal; and

(7) depictions or descriptions of menstrual blood, fecal matter, urine, or the inducement of feces trhough enemas as part of sexual arousal;

(b) goods describing sexual acts involving children or juveniles, and depictions or descriptions of children or juveniles in total or partial undress, alone or in the presence of other persons, and in which the context is even slightly sexually suggestive. Children and juveniles are presons actually or apparently under the age of 18;

(c) goods depicting or describing sexual acts between members of the same family, other than between husband and wife. This includes depictions or descriptions of any sexual activity among members of a family, whether or not they are genetically related (incest), except a husband an wife, which generally appear to condone or otherwise endorse this behaviour for the purposes of sexual stimulation or pleasure;

(d) goods depicting or describing sexual acts between human beings and animals (bestiality). This includes depictions or descriptions of bestiality, whether there is actual copulation with an animal or the animal is merely present and copulation is implied;

(e) goods depicting or describing sexual acts between live persons and dead persons or dead animals (necrophilia).

12. Goods not classified under tariff item No. 9899.00.00 include the following:

(a) for the purpose of sections 22(3) and 464 of the Criminal Code, goods which counsel, procure, or incite persons to commit criminal offenses, unless they are determined to be obscene;

(b) goods which communicate in a rational and unsensational manner information about a sexual activity that is not unlawful;

(c) sex aids and toys;

(d) advertisements that simply promote the sale of goods which may themselves be prohibited. However, explicit textual descriptions or visual depictions of acts considered obscene in the advertisements themselves will continue to be prohibited.

The Undue Exploitation of Sex: The Artistic Merit Defence

13. The Courts have found that certain material that Revenue Canada deals with is "more difficult to evaluate...The officer must make a subjective assessment of whether, in the context of the whole work, the exploitation of sex is 'undue' and further, whether the exploitation of sex is overcome by an artistic, literary, or other similar purpose."

14. Since attempts to provide exhaustive instances of obscenity have failed, the only practical alternative for the courts was to strive towards a more abstract definition of obscenity that is contextually sensitive. Therefore, in arriving at decisions about material that may fall into this category of goods, officers are required to apply a series of legal tests as follows.

Whether the Exploitiation of Sex Is "Undue"

15. The first text is whether the exploitation of sex is "undue."

16. The exploitation of sex is "undue" when the sexually explicit sections of the material fail the "community standard of tolerance test."

17. This test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to. This is not a test of whether given material may be morally offensive to some people, but rather whether public opinion would perceive the material to be harmful to society.

18. Harm in this context means that the material predisposes persons to act in an anti-social manner, in other words, a manner which society formally recognizes as incompatible with its proper functioning.

19. The stronger the inference of harm, the lesser the likelihood of tolerance.

20. If the community cannot tolerate the risk of harm then the material will constitute the "undue exploitation of sex," which is, essentially, what the community would not tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. For example:

(a) the portrayal of sex coupled with violence will almost always constitute the "undue exploitation of sex";

(b) explicit sex which is degrading or dehumaniaing may be "undue" if the risk of harm is substatial;

(c) explicit sex that is not violent and neither degrading or dehumanizing is generally tolerated in our society and will not qualify as the "undue exploitation of sex," unless it employs children in its production.

Note: The use of the words "almost always" and "may" in the above examples are extremely important. Each case must be judged on it merit and in its entirety.

The Internal Necessities Test (The Artistic Merit Defence)

21. The last step in the analysis of whether the exploitation of sex is "undue" is the "internal necessities" test or artistic defence.

22. Even material which by itself offends community standards will not be considered "undue" if it is required for the serious treatment of a theme.

23. The need to apply the "internal necessities" test arises only if a work contains sexually explicit material which might, in another context, constitute the "undue exploitation of sex."

24. The portrayal of sex must be viewed in the context to determine whether the exploitation of sex is the main object of the work or whether the portrayal of sex is essential to a wider artistic, litereary, or other similar purpose.

25. A determination must be made whther the sexually explicit material, when viewed in the context of the whole work, would be tolerated by the community as a whole.

26. Any doubt in this regard must be resolved in favour of freedom of expression; that is, the goods must be released.

Note: All importations by the book trade in Canada will be considered to prima facie involve a possible defence of artistic merit and require consultation with Headquarters.


APPENDIX

IMPORTER RIGHTS

Advance Reviews

1. An importer or publisher who encounters difficulty in determining if goods are in compliance with obscenity guidelines may submit samples of goods, prior to commercial importation, to the Prohibited Importations Unit for review and will be provided with an opinion regarding their admissibility into Canada. This service is designed to promote voluntary compliance with the legislation. importers or publishers can arrange for advance review arrangements by contacting the Manager of the Prohibited Importations Unit in Ottawa at (613) 954-7049.

2 For the purposes of the prohibitory provisions of tariff item No. 9899.00.00 goods that are made (manufactured, printed, purchased, etc.) in Canada and exported are considered to constitute an importation on their return to Canada.

When Suspected Goods Are Detained - Notification

3. An An importer, whose goods are suspected of being obscene according to the legislation, will be provided with a written notice of detention containg the following information: a brief description of the goods; the port of entry where the goods are detained; the date of detention; a contact name and telephone number.

4. If the goods are found to be obscene according to the legislation, the importer will receive a written notice of determination containing the following information: a brief description of the goods; the reasons for prohibition; a contact name and telehone number; a list of options available to the importer, including instruction for appeal.

5. If the goods are found to be admissible, they will be forwarded to the importer immediately.

When Goods Are Prohibited - Importer Options

6. When goods are found to be obscene and are prohibited, the importer may exercise any one of the following options:

7. If no contact is made with the Department within 90 days of the date of decision, the goods will be considered forfeit and will be destroyed.

Artistic, literary, or Other Similar Merit

8. In cases where detained goods may have artistic, literary, or other similar merit (for example, educational, scientific, etc.), the importer will receive a written invitation to view the goods and submit evidence in writing attesting to their admissibility within 30 days. If no submissions or responses are received within the prescribed time, the Department will make a decision on the admissibility of the material based on the evidence at hand.

9. All shipments to the book trade in Cnada will be presumed to have a possible defense of artistic or literary merit and will be treated accordingly.

10. Every effort will be made to identify material which may have artistic, literary or other similar merit as soon as possible in the process to avoid unnecessary detentions.

11. Any doubt about the admissibility of goods in which the portayal of sex may be necessary to a brouader artistic, literary, or other similar purpose will be resolved in favour of freedom of express - that is, the goods will be released.


REFERENCES

ISSUING OFFICE

Prohibited Importations Unit
Admissibility Programs Division
Trade Policy and Interpretation Directorate
Customs and Trade Administration Branch

LEGISLATIVE REFERENCES

Customs tariff, tariff item No. 9899.00.00
Customs Act, sections 60, 61, 67, 68 and 71
Criminal Code, sections 22(3), 163(8), and 464

HEADQUARTERS FILE

4545-1

SUPERSEDED MEMORANDA "D"

D9-1-1, January 31, 1997
D9-1-1, July 14, 1997 (Appendix)

OTHER REFERENCES

D4-1-6, D6-2-3


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* The above text has been reproduced as faithfully as humanly possible from the original document. However, this reproduction is not, nor intended to be, the official version of the original.