Court File No. 619/90

ONTARIO COURT OF JUSTICE

BETWEEN:

GLAD DAY BOOKSHOP INC. AND

JEARLD MOLDENHAUER

Apellants

- and -

DEPUTY MINISTER OF NATIONAL

REVENUE FOR CUSTOMS AND EXCISE

Respondents

Charles Campbell and
Clare Barclay for the
Appellants

Vern Brewer and
Beverly Wilton for the
Respondent

Heard: May 12, 13, 14 & 15, 1992

HAYES J.

This is an appeal from a determination of the Deputy Minister of National Revenue for Customs and Excise pursuant to the provisions of section 67(1) and section 71 of the Customs Act R.S. 1985 c.1 (2nd supp.).

Section 114 of the Customs Tariff S.C. 1987 c.49 (the "Tariff") provides that the importation into Canada of any goods enumerated or referred to in Schedule 7 of the Tariff is prohibited. Code 9956 of Schedule 7 is comprised, in part, of books, printed paper, drawings, paintings, prints, photographs or representations of any kind that are deemed to be obscene under section 163(8) of the Criminal Code.

On October 3, 4, & 16and November 14, 1989 customs officials detained five shipments containing copies of nine publications imported by the Appellants, Glad Day Bookshop Inc. and Jearld Moldenhauer hereinafter referred to as "Glad Day".

On October 16th and November 1st and 20th, 1989 customs officers made determinations pursuant to section 58 of the Act that importation of the publications into Canada was prohibited because they were classified as obscene under Code 9956 of Schedule 7 of the Tariff. The appellant on the 2nd January, 1990 requested re-determinations pursuant to section 60 of the Act.

On January 9th, 1990 a Tariff and Values Administrator made re-determinations under section 60 of the Act that the publications were obscene and prohibited importation into Canada under Tariff Code 9956. Glad Day requested further determinations under section 63 of the Act on April 4, 1990.

On July 16th, 1990 the Deputy Minister made her decision classifying the publications as obscene under Code 9956 of the tariff, thereby confirming that importation of the publications into Canada is prohibited.

This appeal was launched by Glad day on October 18th, 1990 and on November 5th, 1990 the Deputy Minister filed her Notice of Appearance on this appeal.

The Customs Act does not set out any procedure for the hearing of the appeal.

On March 24th, 1992 Glad Day brought a motion before the General Division of the Ontario Court for an order declaring this appeal to be governed by the procedural rules applicable to criminal proceedings. The Deputy Minister brought a cross motion which was heard on the same day for directions requiring that the hearing proceed in accordance with the rules applicable to civil proceedings.

The application came on for hearing before Madam Justice Chapnik and her reasons were released on April 8th, 1992. Chapnik J. observes in her reasons:

Accordingly the issue to be decided involves a characterization of the type of proceeding herein as well as the consequences which flow from that determination. Both parties conceded that the Statute is unclear as to what constitutes the applicable rules and the standard of proof in such cases. It appears that this particular matter had never been judicially determined.
In respect of the standard of proof she stated:
To require proof of obscenity beyond a reasonable doubt in such circumstances where no charges have been laid, would --- place undue hardship upon the Crown --- in all the circumstances, I would suggest that the intention of the legislature in developing and implementing its administrative scheme including an appeal to this court, was for the standard of proof to be on a balance of probabilities. Upon a careful review of the legislation, I am satisfied that it was not intended that the Crown should bear the burden of proving grounds for prohibiting the importation of goods beyond a reasonable doubt.
She further held that:
The usual civil procedure rules were not meant to apply to this type of hearing.
and she proceeded to order the Deputy Minister to provide a summary of evidence relied on to prove the importation of the goods and their classification as obscene, a list off the witnesses and a summary of their evidence, and an affidavit on production by April 21st, 1992. Glad Day was ordered to provide a summary of its argument in response and an affidavit of production by April 30th, 1992 and it was further ordered that factums be provided to the court in accordance with the Rules of Civil Procedure.

I understand from counsel that the disclosure and other items directed by Chapnik J. have been completed by the parties prior to the commencement of this hearing.

In this matter it is to be noted that the procedure by the Deputy Minister did not provide for the reception of any evidence, for submissions by counsel or for any opportunity to be heard by the Appellant apart from the Appellant's request for a decision of the Deputy Minister pursuant to the provisions of the Act.

Therefore there is not before this Court any record of the proceedings before the Deputy Minister other than the letter indicating her determination with respect to the articles in question and the Crown has filed as exhibits on this appeal the publications in respect of which the determinations were made by the Deputy Minister.

The parties made submissions with respect to the form of the hearing. For reasons dictated, I determine that the parties should have the opportunity to call evidence. There was some discussion as to which of the parties should proceed first but it was unnecessary to decide that matter as counsel for the Respondent advised that they were not calling any evidence and relied on the Court examining the books and magazines for its determination with respect to obscenity.

Burden and Standard of Proof

Counsel made extensive submissions with respect to the above matter which may be summarized as follows:

The Appellant

The Respondent's submissions with respect to the standard of proof may be summarized as follows:

I have reviewed the structure and provisions of the Customs Act and it sets up a regulatory scheme to control what substances or materials can be imported into Canada. In addition, it creates under section 160 and 161 summary conviction and indictable offenses for the breach of certain specified sections of the Act. it would seem to be a quasi criminal statute with certain administrative procedures relating to the entry into Canada of goods or materials.

If the materials do not conform to the standard for admission the citizen is denied possession of them and in this case the items would be returned.

The procedure of classification of the articles is in effect an in rem procedure and, of course, does not affect the liberty of the person but may result in the books or magazines in this case being returned to the sender.

This could result in a breach of section 2(b) rights of the appellant and the return of the books and magazines in effect analogous to a forfeiture.

If the books and magazines were in the country it is possible that they could be seized by the police under section 164(4) of the Criminal Code. Although the owner of the publications seized must show cause why it should not be forfeited the onus remains of the prosecution to prove obscenity beyond a reasonable doubt. This again is not a procedure which affects the liberty of the subject but it could result in a breach of the section 2(b) rights of the appellants.

It would not seem consistent if the standard of proof under the Customs Act was a preponderance of evidence and under section 164 proof beyond a reasonable doubt when the results, that is, forfeiture and/or return of the items are essentially the same. In addition, there is in each case the possibility of a breach of the section 2(b) rights of the person who is the recipient of the property.

A prohibition whose first object is books, is prima facie contrary to section 2(b) of the Canadian Charter of Rights and Freedoms and the Crown bears the burden of justifying such a limitation under section 1 of the Charter. See: Luscher (1985) 15 C.R.R. 167 (F.C.A.).

I have considered the Reasons for Judgment of Madam Justice Chapnik with respect to the standard of proof and I must respectfully disagree with her conclusion, that proof is by a preponderance of evidence. When the result of the prohibition from importing under the Customs Act is the same as forfeiture under the provisions of the Criminal Code and there could conceivably be different results, different standards of proof would not be a consistent application of the law in respect of the same item especially in each case where the decision maker is applying the same definition of obscenity that is the provisions of section 163(8) of the Criminal Code.

Therefore it is my opinion that the burden is on the Deputy Minister to satisfy himself by proof beyond a reasonable doubt that the material is obscene within the meaning of section 163(8) of the Criminal Code.

Nature of publication prohibited

The publications are in the form of what might be termed magazines and publications containing short stories.

The pictures and short stories generally relate to explicit sexual activities between males. The text of the material describes in intimate detail the explicit sexual practices reactions and feelings of the participants with excessive, lewd and disgusting detail.

The material, the evidence and the submissions as they relate to the law concerning obscenity have been generally directed by counsel to the relationship and sexual practices between males who have been referred to here as the "gay community".

Evidence on the Appeal

The Appellant tendered evidence on the appeal some of which may be summarized as follows:

1. Robert Payne, advised he had been Chairman of the Ontario Film Reform Review Board for approximately three years and a member for two years prior to being appointed Chairman. Part of the mandate of the Board is reflect community standards. the membership of the Board reflects racial, cultural, male and female members from various parts of the Province of Ontario.

The Board has communication and conferences with similar Boards across the country and they compare their standards.

They also endeavour to be knowledgeable about the activities and governing principles of boards outside Canada. The Board has regulations concerning the standards to be applied by the Board and under those regulations they have internal guidelines.

Explicit sex and scenes of penetration either heterosexual or gay is not a concern to the board as long as it does not involve violence or minors and is not degrading.

In cross-examination the Chairman expressed the opinion that explicit sex is not degrading or dehumanizing nor does it cause harm.

It is his opinion that the Supreme Court of Canada has not defined "degrading" and he does not agree with the statement of Madam Justice Wilson in Towne Cinema Theatres Limited v. The Queen [1985] 1 S.C.R. 494 at p.524 where she states:

The most that can be said I think is that the public has concluded that exposure to material which degrades human dimensions of life to a sub human or merely physical dimension and thereby contributes to a process of moral desensitization must be harmful in some way.
The Chairman stated that the Board decides matters on a case by case basis.

There has been placed before the Court parts of the legislation and regulations relating to the activities of the Ontario Film Review Board and the guidelines provided to the Board.

Section 14 is entitled "Board Criteria for Refusal to Approve" and in subsection 2 there is provided a list of the guidelines.

2. Kyle Rae is a city councillor for Ward 6 and a director of the community centre for the lesbian and gay community.

He states his political constituency encompasses the largest gay community in Canada.

He further indicated that he lobbied to get sexual orientation in the Human Rights Code.

He has never received complaints about violence between gay men nor has he had complaints about abusive sexual behaviour between males.

He states that if there was a lack of consent in respect of violent sexual activity between men it would be degrading.

He has not done any research with respect to violence in the gay community. He agrees that there may be abusive homosexual relationships not within his knowledge.

It is his opinion that there is no violence in the sexual activity in the gay community but acknowledges there is "rough sex" such as spanking and fisting (inserting the hand in the anus).

It is further his opinion that sexual activity while a party is restrained is rough sex but in his opinion it is not degrading.

3. Barry Adams

This witness is a Professor of Sociology at the University of Windsor. he teaches theories of sexuality as it relates to the sexual behaviour in the straight and gay community.

He gave expert testimony with respect to:

(1) Sexual practices in the gay community and the frequency of homosexual relationships.

(2) The nature of sexual conduct in the gay community.

(3) The nature of sexual subordination in the gay community.

(4) Issues of harm in the gay community as perceived by the gay community.

He states the majority of gay men practice oral and anal sex.

His evidence indicates there is little research on harm, if any, in the gay community and as the result of their sexual practices a gay man could avoid violence by not staying in the relationship.

There is coercive sex in the gay community in the form of sadomasochism and bondage but if there is there is underlying consent and it is sexual theatre.

He has reviewed some of the material in this case and there is an illustration of masochism and an act of humiliation.

If someone consents to a person urinating on them or someone inflicting pain on them it is tolerable and it is not degrading or dehumanizing.

In his evidence at page 59 of the transcript of his evidence line 25 he states:

Answer:

No I think it is fair to say that there are different ways of interpreting it and for many people it is not their taste, but there is a general acceptance that for people for whom it is their taste they can do it, they should have the right to do it.

At page 60 the transcript line 26 are the following questions and answers.
Question:

And I'll ask you if you agree or disagree with this statement, page 25 of the judgment: (Sopinka J. in R. v. Butler).

Among other things, degrading and dehumanizing materials place women, and sometimes men in positions of subordination servile submission, or humiliation. They run against the principles of equality and dignity of all human beings. in the appreciation of whether material is degrading or dehumanizing the appearance of consent is not necessarily determinative. Consent cannot save materials that otherwise contain degrading or dehumanizing scene. Sometimes the very appearance of consent makes the depicted act even more degrading or dehumanizing.
Do you agree or disagree with those comments?

Answer:

They may seem reasonable to me and what I find remarkable in trying to think through that rule in terms of the material that I read, is that what seems so fundamentally different to me if rather than having the situation of, for example, having women depicted for male audiences enjoying violence, and thereby providing warrant to male aggressors to inflict that violence upon women, that on the contrary we have in this literature a situation that is consistently written from the viewpoint of the man seeking self abasement and going out of his way to find someone to help him engage in that process and, therefore, there is a clear message that it is the man who is seeking the self abasement who is in control and thereby there is no warrant to give to any unqualified exertion of force or coercion upon the subordinate party.

Question:

So I gather from that you have difficulties in agreeing with Justice Sopinka's statement of principles?

Answer:

I think I am agreeing with it in that to me, my understanding of it, and obviously I am not a lawyer, but my understanding of it is that there is a concern that has come out of the women's movement that there are forms of pornography that function as a kind of hate literature which give warrant to providing, encouraging, and affirming violence against women, and this is a literature that is written my men from a male viewpoint, impugning pleasure into women to allow men to exert that domination and again what I found so remarkable about the text that I looked at was they were fundamentally the opposite of that kind of situation where they were not written from the viewpoint of the aggressor. The aggressor was often a kind of cardboard cut out figure in the story. They had not emotional life. All the emotional life was contained in the viewpoint of the subordinate person, and indeed, it would seem to me the only way to understand or even enjoy the story would be that the reader would have to have some sympathy with that position, but to me that separates it from the concern that was expressed in the quote that you just read.

Question:

Since you have just raised the issue, Professor, isn't it correct to say that the principle enunciated by Justice Sopinka will appear to apply to all people, not just heterosexual people or to women but to all people?

Answer:

Yes, I don't think that is what we are talking about here in excepting gay men, but rather that the nature of this particular form of erotica does not conform or does not fall into the problem that was identified in the quote that you just read. In other words, I think there is a consistent principle here, and we are not talking about exempting gay men because they are gay men.

Law relating to obscenity

The Supreme Court of Canada has in the decision in R. v. Butler rendered February 27th, 1992, outlined a complete analysis of this area of law.

The Court determined that section 163(8) of the Criminal Code provides an "objective standard of obscenity" and made reference to Brodie v. The Queen [1962] S.C.R. 681.

and

Sopinka J. at p. 20 states:

Any doubt that R. v. Butler, supra.

1. Re Oriental Guys No. 4 Spring 1989

This magazine contains explicit descriptions of consensual oral and anal sex with oriental males. The article "Adonis" contains extensive excessive descriptions of the acts and professed pleasures and the appreciation of the physical activity. There is no description of violence.

The description in the magazine of this sexual activity is degrading, I am of the opinion that this particular material does indicate a strong inference of a risk of harm that might flow from the community being exposed to this material. I am of the opinion that the community would not tolerate others being exposed to this item. he dominant characteristic is an undue exploitation of sex. It is obscene.

2. Movie Star Confidential

This is supposedly a comic strip concerning an aging movie actress. It depicts sexually explicit activity. It also depicts a messenger of the actress paying men to attend at her home and ejaculate on her in her bath tub so she could satisfy her desire to bath in semen. There are also some parts of the material relating to bondage.

It does not contain any real human relationship. In its grotesque figures and their sexual activity it is completely degrading and the community would not tolerate others being exposed to this material.

There is a strong inference of a risk of harm to be drawn from the material itself. The material is subhuman. The dominant characteristic is the undue exploitation of sex. It is clearly obscene.

3. Wolfbiorin The Viking

This is a description in comic strip format of grotesque male figures engaging in oral and anal sex with up to four participants. There is also some element of bondage with chains being attached to parts of the body.

The conduct depicted is such that society would formally recognize it as being incomparable with its proper functioning. There is a strong inference of harm from the material. The community would not tolerate others being exposed to this material. The dominant characteristic is the undue exploitation of sex. It is clearly obscene.

4. Spartan's Quest

This is a succession of grotesque drawings of three males engaged in various forms of sexual activity one of the men having emerged from the sea in a fishing net. it is a sexual encounter without any real meaningful human relationship. The manner in which the conduct is depicted would not be recognized as compatible with the proper functioning of society. It is degrading. There is a strong inference of harm. The community would not tolerate others being exposed to this gross material. I find it to be obscene.

5. Harry Chess

This is a comic book format with respect to a detective looking for people who have taken young men to perform various sex acts on them and left them on a beach in San Francisco.

The entire theme is sexual. There are depicted scenes of bondage, sex with pain and forced violent sexual activity. The material does not have any real human dimension. Harm is depicted and clearly harm would flow from the release of the material.

Applying the test in R. v. Butler, supra, it is obscene.

6. Humongous: True Gay Encounters

This is a collection of short stories relating to the sexual encounters of gay men.

There are such titles as "Born Again Stud", "Two Hawaiians", "Chocolate Delight", "You're Hung Like a Colt", "Slapped Him Until He Came".

The sexual encounters described in the stories are generally between males who are not previously known to each other. the stories involve explicit oral and anal sexual activity accompanied in some cases by bondage, urination, defecation and pain. The stories all have the same theme describing the activity in excessive descriptive terms.

The manner in which they express explicit sexual activity is described is degrading to human beings. There is no real human relationship as stated in Towne Cinema, supra, by Dickson C.J. "Degradation or dehumanization" is a principle indicator of "undueness". The descriptions are not necessary for the serious treatment of what purported to be the theme of these stories.

Humongous: True Gay Encounters is a publication which the community would not tolerate others being exposed to and there is a strong inference of harm to be drawn from the material. I find it to be obscene within the principles of R. v. Butler.

7. Hot Tricks: True Revelations and Strange Happenings from 18 Wheelers

The author in his opening statement clearly indicates that the explicit sexual activity that he is about to describe in the collection of short stories does not arise from any ongoing human relationships but are descriptions of random sexual encounters.

The stories involve explicit oral and anal sex, sex with juveniles, urination in the mouth and sex with a mentally retarded person.

This material is clearly degrading and dehumanizing. It is material of the type referred to by Wilson J. in Towne Cinema, supra.

The dominant characteristics of the material is the undue exploitation of sex. I find it to be obscene.

8. Sex Stop: true Revelations and Strange Happenings from 18 Wheeler

This is a collection of short stories describing explicit oral and anal sex encounters accompanied by urination taking place in washrooms and trucks with one male engaging in this activity with a number of males generally unknown to him.

The introduction to this book as in the previous book clearly indicates the base purpose of the material which has no human dimension and is degrading and dehumanizing. There is a strong inference of a risk of harm as considered in R. v. Butler, supra.

The community would not tolerate others exposed to this material as harm may flow. The dominant characteristic is the undue exploitation of sex. I find it to be obscene.

9. Bear, issue no.9

It is a magazine containing letters to the editor describing explicit sexual activities including violence, urination for sexual arousal, anal penetration with a fist, ejaculation on the face.

There are stories of explicit sexual encounters of oral and anal sex and digital anal penetration. There is a description of a biker gang using one person for explicit anal intercourse and in violent impersonal and degrading circumstances with lewd descriptions of the activity and the alleged pleasures.

There is a strong inference of harm as referred to in R. v. Butler, supra. The community would not tolerate others being exposed to it and the dominant characteristic is the undue exploitation of sex. It is obscene.

10. Playguy

This is a magazine type format with pictures of unclothed males including a picture of six men involved in oral sex.

There are also short stories of oral and anal sex and urination with excessive descriptions of the activity. As in many of the articles referred to above the nature of the explicit sexual activity and its description is completely degrading.

It is clear applying the tests in R. v. Butler that the dominant characteristic is the undue exploitation of sex. I find it to be obscene.

11. In Touch, no. 154

This is a magazine of explicit pictures of nude males and text on the cover relating to sexual experiences. There are also stories of specific sexual encounters involving oral and anal sex with excessive descriptions which are degrading. I find that the dominant characteristic is the undue exploitation of sex. I find it obscene.

12. Advocate Men

This is a magazine of explicit pictures of nude males and stories of explicit casual sexual encounters relating to oral and anal sex.

The description and activities are degrading and without any human dimension. The dominant characteristic is the undue exploitation of sex. I find it to be obscene.

I have reviewed all of the material considered by the Deputy Minister, the evidence and the submissions of Counsel and for the reasons set out above the materials referred to above referenced by control number C.O. 1807, 1806, 1949, 2399 and 1763 seized and detained by Canada customs are obscene by proof beyond a reasonable doubt and the appeal in respect of each item is dismissed.

I find that detention of the subject materials is not an unreasonable violation of the appellant's freedom of expression contrary to sec. 2 of the Canadian Charter of Rights and Freedoms.

Counsel did not address the question of costs if any of the appeal. therefore the Court will receive written submissions with respect to what, if any, order should be made with respect to costs and the amount thereof. Submissions as to costs to be exchanged and filed with the Court on or before 30 days from the date of this judgment.

[signed] F.C. Hayes J., July 14, 1992


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