Ottawa, January 31, 1997
1. As a result of evolving jurisprudence, the departmental policy concerning obscenity has been revised to include the community standard of tolerance and internal necessities tests, as outlined by the Supreme Court of Canada. A segment on the relationship between Revenue Canada's role in this area and the Canadian Charter of Rights and Freedoms has also been added (see the attached revised Memorandum D9-1-1).
2. A separate Memorandum has been created to deal with hate propaganda, treason, and sedition. The Department's policy in this area has not changed (see Memorandum D9-1-15, Revenue Canada's Interpretative Policy for the Administration of Tariff Code 9956 - Hate Propaganda, Treason, and Sedition).
3. the revised Memorandum D9-1-1 and Memorandum D9-1-15 will replace Memorandum D9-1-1, Interpretative Policy and Procedures for the Administration of Tariff Code 9956, dated September 29, 1994.
Ottawa, January 31, 1997
This Memorandum outlines and explains the interpretation of tariff code 9956(a) of Schedule VII to the Customs Tariff.
Section 114 of the Customs Tariff states that importation into Canada of any goods enumerated, described, or referred to in Schedule VII to the Customs Tariff is prohibited.
Tariff code 9956 reads:
"Books, printed paper, drawings, paintings, prints, photographs or representations of any kind thatSubsection 163(8) of the Criminal Code reads:
(a) are deemed to be obscene under subsection 163(8) of the Criminal Code;..."
"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."
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 infringement is justifiable 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 on 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
6. In addition, the Courts have also found that the provisions of the Customs Act that allow customs officers to detain and prohibit obscene material do not allow customs officers to detain or prohibit material that is not obscene. The Courts have found that decisions by customs officers to detain or 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 Schedule VII to 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 purpose; 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 code 9956 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:12. Goods not classified under tariff code 9956 include the following:
(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 persons actually or apparently under the age of 18;
- (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 condone 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 of 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 through enemas as part of sexual arousal;
(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).
15. The first test 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:
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 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, literary, or other similar purpose.
25. A determination must be made whether 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.
* 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.