C.M. CAMPBELL, ESQ. FOR THE APELLANT
B.R. EVERNDEN, ESQ. FOR THE RESPONDENT
On or about 5 March 1986, Canadian Customs officials seized and detained a book entitled "The Joy of Gay Sex" which was being imported by Glad Day Bookshop Inc. (the appellant) from a similarly-named company in Boston, Massachusetts.
That decision to detain was confirmed by the Deputy Minister of National Revenue (Customs and Excise) on 25 April 1986 and the appellant appeals from that decision. I am advised by both counsel that the appeal is by way of a trial de novo, that the burden is upon the Crown and that the issue is whether the book is obscene within the definition contained in s. 159(8) of the Criminal Code which provides as follows:
"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."
The principal concern of the customs officials is with the question
of anal sex, both penile/anal and oral/anal and, to some lesser
degree, the questions of bondage and domination.
The crown led no evidence by way of expert opinion on the issue
of obscenity or community standards content, apparently, to let
the book speak for itself.
Since the book cannot really speak for itself, I shall describe
it. It, (or at least the copy furnished to me and marked as exhibit
5) is a 7-inch by 10-inch (18 centimetre by 26-centimetre) soft-cover
book about 1/2 inch (1.5 centimetres) thick. The cover simply
bears the title of the book, a description that it is "an
intimate guide for gay men to the pleasures of a gay lifestyle"
and the names of the co-authors. The back cover contains a promotional
synopsis of some of the book's content and four brief extracts
from reviews. it contains certain types of illustrations. They
are as follows:
The text of the book covers a number of non-sexual topics such
as disease, fidelity, depression and affection but its central
theme is homosexual sexual activity and the specific description
of its various practices.
One of the book's authors, Charles Silverstein, testified for
the defence. He holds a B.S. in education (1959) from New York
State University at New Paltz, and an M.A. and Ph.D. (1975) in
psychology from Rutgers University. He and his co-author are both,
according to him, homosexual. They did not write this book as
a charitable endeavour. He is a qualified sex therapist. he describes
the book as a sex manual for "debutante" homosexuals.
The illustrations are intended to give the book a "sensual"
Karl Siegler also testified for the defence. He holds both a B.A.
(Honours) and an M.A. (First Class) in literature from Simon Fraser
University. In addition to as a consultant to the Manitoba Department
of Cultural Affairs he is chief executive officer of Talon Books.
Talon Books is not a sex manual publisher but a "literary
house". He describes the book as a self help book, incredibly
well done with a clear objective and an accomplished piece of
writing in spite of its "hard direct language."
Ronald Langevin testified for the defence. He holds a B.A. from
McGill in psychology and anthropology, an M.A. in psychology from
the University of Toronto and a Ph.D. in psychology from O.I.S.E.
He is an associate professor in the department of psychiatry at
the University of Toronto. He consults with the Toronto board
of Education on questions of homosexuality. He testified that
over 90% of homosexual men have experienced oral genital sex and
mutual masturbation, that over 30% of homosexual men have practised
anal intercourse and that 20% do so on a regular basis. He also
testified that 43% of heterosexual men have engaged in heterosexual
anal sex and that 2% do so on a regular basis. In Mr. Langevin's
opinion the book has educational merit, is well written, clear,
simple and contains useful information. He says that 90% of the
population receives no sex education from home or school and must
rely on books.
Dr. Beryl Chernik testified for the defence. She holds an M.D.
degree (cum laude) from the University of Western Ontario
(1962) and a Ph.D. in pharmacology from the University of Western
Ontario (1967). She is a well known practising sex therapist.
In her opinion the book is a useful educational volume of appropriate
sexual advice, its text is not generally arousing and its intention
appears to be to inform.
I find that the above-mentioned witnesses were well qualified
to give opinion evidence and sincere in the evidence that they
gave. I reach the conclusions I do not because of their evidence
but comforted by it. Much has been written (some would say too
much) on the subject of obscenity and much more will no doubt
be written in the future. I will not add much to that already
substantial body of literature. I find that the book deals rationally
and unsensationally with the sexual practices of a substantial
segment of the male population. However repugnant the concept
of anal sex may be to the heterosexual observer it is, I find,
the central sexual act of homosexual practice. To write about
homosexual practices without dealing with anal intercourse would
be equivalent to writing a history of music and omitting Mozart.
the drawings in my view are a non-prurient illustration of the
textual material. I find the "school-yard" language
regrettable but not obscene. I hold that the book is not obscene
within the meaning of s. 159(8) of the Criminal Code of Canada.
Accordingly, the appeal is allowed.
Dated at Toronto, this 20th day of March, 1987
Judge Bruce Hawkins
* 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.