The Horror of Canadian Obscenity Law

Makeup artist Remy Couture is being prosecuted in Montreal for "corrupting morals" by making "obscene" horror movies and posting them online. Under Canadian law, material is deemed obscene if "a dominant characteristic" of it is "the undue exploitation of sex" or sex combined with "crime, horror, cruelty and violence"—a definition so vague that it makes you miss the relative clarity of America's Miller standard. The two-prong definition means sex and horror scenes that would be legal on their own can trigger prosecution when combined in the same film; it arguably makes just about any R-rated American horror movie obscene in Canada. Couture's short films chronicle the crimes of a serial killer who likes to have sex with his victims after they're dead. Couture (pictured in the middle of the photo, which was taken at a protest outside the Montreal courthouse) emphasizes that his work does not feature rape scenes and that all the gory violence is simulated. Too well, apparently. The Montreal Gazette reports that the case against Couture originated with complaints to Interpol from people who "thought the depicted events were real."

The notion that simulated violence can justify legal restrictions that would otherwise be impermissible is central to the case involving California's ban on sales of violent video games to minors, which the Supreme Court is scheduled to hear in a couple of weeks. As a law professor, Supreme Court Justice Elena Kagan promoted a similar idea, suggesting in a 1993 law review article that anti-porn activists could get around First Amendment obstacles by focusing on "works that are both sexually explicit and sexually violent."

Comments

[BakedPenguin]

"the undue exploitation of sex"

When is the exploitation of sex ever not due? Every time I think about moving to Canada, I read some shit like this.

[Episiarch]

You really, really don't want to move to Canada. I know that we're pretty fucked here, but Canada is worse in every respect. No bill of rights = no need for warrants, etc.

[Pro Libertate]

Free Aresen!

[lifeonqueen]

You really ought to try reading the Charter of Rights and Freedoms sometime. It would prevent episodes of publicly acting like a moron.

[Episiarch]

O Rly? Can Canadian police do checkpoints for whatever they want? Oh yes, they can. Can you get brought up in front of a kangaroo court for "hate speech"? Why yes, you can.

I'm not chest-beating here. The US has a fuck-ton of problems. But anyone who pretends that Canada is better in those respects is the fucking moron. Which you now are.

[Isaac Bartram]

It is generally amusing to hear Canadians and Australians talk about how puritanical Americans are.

Until the 1970s most Provinces had liquor laws that made Utah look like a bunch of drunks.

[John Thacker]

It's also amusing when Canadians, Australians, and the British make fun of the occasional US state that tries to ban violent video games or crack down on movies, considering that most Canadian provinces, Australia, and the UK have laws similar to those that keep getting struck down in the USA.

[Concern Troll]

"But anyone who pretends that Canada is better in those respects is the fucking moron. Which you now are."

Translation: If you disagree with me, you are a fucking moron.

[Episiarch]

Oh, anonypussy; you're so fucking passive aggressive. Can't you just grow a pair?

[Xenocles]

Yes, if you refuse to accept the plain truth, it says something about your intelligence, your character, or both.

[Canuck usta be...]

Hey asshole, ya I'm talkin' to you @ lifeonqueen. You mean with your handle, the full, unfettered life one lives on Queen St. in Hog Town? (Toronto for those not in the know)...gag!

Here's a bit of the Charter that pissed off me, a freedom loving, former Canuck, and would cause a revolution in any real freedom based society, but Canadians are so friggin' polite! (from http://en.wikipedia.org/wiki/S.....d_Freedoms ) Or just go here and scroll down to section 33 http://laws.justice.gc.ca/en/c.....rbo-ga:l_I

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" countermanding sections of the Charter, thereby nullifying any judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. A simple majority vote in any of Canada's eleven jurisdictions may suspend the core rights of the Charter. The rights to be overridden, however, must be either a fundamental right (e.g., section 2 freedom of expression, religion, association, etc.), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc.), or a section 15 equality right. Other rights such as section 6 mobility rights, democratic rights, and language rights are inalienable.

Such a declaration lapses after five years or a lesser time specified in the clause, although the legislature may re-enact the clause indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. (The provisions of the Charter that deal with elections and democratic representation are not among those that can be overridden with the notwithstanding clause.)

The Notwithstanding Clause reflects the hybrid character of Canadian political institutions. In effect it protects the British tradition of parliamentary supremacy under the American-style system of written constitutional rights and strong courts introduced in 1982.[1] The argument has been made that if fundamental rights?such as freedom of expression and freedom of association?can be overridden, then it is questionable whether the Charter really provides a check on parliamentary power. However, scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies. This type of reasoning was used by the jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms. Against this reasoning, however, the introduction of the Charter coincided with the final, full independence of Canada from Britain and the 'Patriation of the Constitution,' so arguments concerning British Constitutional law now have a much weaker force than they would have had before Canada's autonomy was complete. Also, whether a modern constitutional design should have no better mechanism than the possibility of a popular uprising to protect fundamental human rights from legislative tyranny may be questioned. Finally, preserving a legal tradition of Parliamentary supremacy by the notwithstanding clause may today seem less morally imperative than protecting fundamental human rights from legislative attack.

[Old Mexican]

Wow. Something like "you have rights until we the wise overlords say otherwise, by a simple majority vote and, granted, only 'temporarily'." [Yeah, right.]

[Pro Libertate]

Pretty much the same problem the British have.

[Bradley]

It's not just the Notwithstanding Clause, either. Section 1 of the charter concedes that the so-called fundamental freedoms (free expression, religion, association, etc) are not guaranteed. They're subject to "reasonable limits" that are "demonstrably justified" and "proscribed by law".

Can you imagine if the First Amendment ended with a caveat like that?

[Colonel_Angus]

Don't think about moving to Canada.

[Fist of Etiquette]

I can't define hoser but I know one when I see him.

[JW]

In a former life, I worked for a law firm. We had some documents shipped to us for a case, that evidently had to prominently display CONTAINS NO PORNOGRAPHY on the outside of the box in order to make it out of Hoserland.

That box sat in my office for about a year. Everyone who came into my office always had to do a double-take.

[R C Dean]

In my second-to-last law firm job, one of the clients I worked with ran a talent agency for strippers.

Those files were kept under lock and key. The agency had been in business for maybe 30 years, so as an (ahem) historical archive, they were actually quite, umm, interesting.

[Isaac Bartram]

Be careful with that JW. That label may have had to be there to satisfy USPS or US Customs regs. They both have some doozies, I'm told. And of very questionale constitutionality.

But you're right it was quite possible the Canuckistanis that required it.

[JW]

At the time I was told it was because of Canadian regs. But yeah, sure, with so many idiotic bureaucracies to choose from ...

[BakedPenguin]

Everyone who came into my office always had to do a double-take.

They were that amazed that you actually had a box with no pornography?

[Spazmo]

Labelling the boxes is not so ridiculous, given that Canada Customs had (has?) a habit of seizing imported literature they felt was too dirty for the Canadian mind.

Eventually this was appealed all the way to the Supreme Court of Canada. The SCC decided that, while customs was indeed infringing on the right to free expression, it was justified because it was done to promote a noble overarching social goal ? namely, suppressing pornography that the court felt was "degrading" or "dehumanizing".

Another case argued in 2000 found essentially the same result ? censorship is OK, as long as it's implemented in a non-discriminatory way: i.e. not singling out gay porn over straight porn.

This is what we get from having a constitution written in the 1980s.

[Rich]

sex combined with "crime, horror, cruelty and violence"

So, no US Congress documentaries, eh?

[Uncle Pervy]

So, you're saying child-porn snuff films would be right out, then....?

[lde]

Ditch the porn aspect and you'll be right-as-rain.

[Mongo]

Canadian comix fans would complain that their subscription Heavy Metal magz had offending pages ripped out or black marker scrawled over the sex parts.

[melman]

which is funny, because the movie Heavy Metal was done in Canada

[Tman]

I think that we, as Americans, take for granted the freedoms that are outlined in our constitution, especially the first amendment. Freedom of speech is not by any means an accepted standard in the western world, and it's always pretty revealing to see how unimportant the idea of a first amendment is to non-American westerners.

Bruce Bawer had an article at PJM this weekend-"Europe Needs a First Amendment" that goes in to more detail.

[Mister DNA]

Couture needs to go all out and make a sex/horror film that is critical of Islam.

Or is that a death penalty offense in Canada?

[SugarFree]

"Canadian porn! Trust me when I tell you that their universal health care system doesn't cover breast implants. If I have to sit through one more flat-chested Nova Scotian riding a Mountie on the back of a Zamboni, I'll go 'oot' of my mind. "

[fresno dan]

Members of the itty bitty titty fan club "tsk tsk" your mean spirited comments directed at the poorly endowed.

[JW]

Is that from an episode of Survorman?

[JW]

Preview is for the weak... Survivorman

[Old Mexican]

Under Canadian law, material is deemed obscene if "a dominant characteristic" of it is "the undue exploitation of sex" or sex combined with "crime, horror, cruelty and violence" ? a definition so vague that it makes you miss the relative clarity of America's Miller standard.

I would imagine that an "undue exploitation of sex" is when a movie shows anything that portrays sexual encounters in such a way the movie will sell at a profit... Just sayin'.

And "sex combined with crime, cruelty, horror . . ." That should immediately make any Charlie Sheen viral video illegal in Canuck-land.

[Old Mexican]

As a law professor, Supreme Court Justice Elena Kagan promoted a similar idea, suggesting in a 1993 law review article that anti-porn activists could get around First Amendment obstacles by focusing on "works that are both sexually explicit and sexually violent."

Good to know the legal scholar (and wise fat oaf) knows how to get around the law of the land - should come in handy when those 4th and 5th amendments come by...

[Dagny T.]

"Remy Couture" is a name so awesome, it has to be fake. Suis down, Remy.

[heller]

Anyone have any idea how we can protest this? Anyone? Sugarfree?

[SugarFree]

Moar zombi pron, plz.

[R C Dean]

"Remy Couture" is a name so awesome, it has to be fake.

The founder of Cirque du Soleil is named "Guy Laliberte". I submit there is no finer name in existence than one which translates as "Freedom Guy."

[Adonisus]

But of course. Horror has been the biggest target of prudes, moral crusaders and busy bodies for decades. It's quite possible the most subversive of genres in genre fiction and genre cinema.

Remember, it was horror comic books that started the Comic Book Panic in the States. It was horror films that gave birth to the infamous 'video nasties' panic in Britian. And violent horror films were one of the many things blamed for the Columbine massacre.

Horror isn't always just a hobby. It can be an act of revolution.

[Invisibel Finger]

Doesn't Cronenberg get government subsidies and stuff?

[John Thacker]

There's a certain mindset under which everything has to be banned, subsidized, or occasionally both at once.

[Episiarch]

Yes he does. And when you look at the sexual content of something like Shivers, it's pretty hilarious. Though as you can see in the Wikipedia entry, he did get some criticism for it.

[Mongo]

Shivers -- my Holy Grail of DVDs.

[Colonel_Angus]

Fuck Canada and their lack of Direct TV.

Canadians are pompous assholes.

[jtuf]

Eh? Canadians are the second largest market for my website. The USA and Canadian web audiences have mostly merged by now.

[fresno dan]

"...with complaints to Interpol from people who "thought the depicted events were real."

Ow, I hurt myself laughing. Maybe I shouldn't mock the ginourmously stupid:
Interpol: This is Interpol - may I help you?
Canadian: I was watching the muppets reruns on TV, and that critter that lives in a trash can ATE beeker!!! OH, THE HUMANITY!!!
Interpol: Madam, we regret Beeker being eaten, but you realize that the muppets appeared on TV more than 30 years ago? The remains of Beeker have been processed at the sewage plant decades ago. As for the critter in the trash can, although never convicted, he got his when he was recycled into macrame.

[jtuf]

In Canada, it's illegal to write an erotic story about minors having sex. Their politicians believe that imaginary children need protection too.

[Jess Asken]

Is it illegal to mention an erotic story about minors having sex? Is it illegal to allude to the possibility of the existence of an erotic story about minors having sex? Is it illegal to write the phrase "an erotic story about minors having sex"?

[Bradley]

Whereas in the United States, it's only illegal to draw cartoons of minors having sex. A great improvement!

[Robert]

My friend Ernie from the Census Bureau had it right when he said we (i.e. USA) should never have allowed Canada to exist.

For sure we shouldn't've allowed British Columbia & Sask., let alone Vancouver Is. Shoulda made a deal with the Russkies to clean out British North America. The Brits always figure out how to screw everybody even when they hold a weak hand.

You know, they never even admitted they were wrong to interpret the Treaty of Paris to let them stay in the Territory Northwest of the Ohio R. They just agreed in 1815 to clear out as if the treaty said so -- which it did. Sometimes I address mail to my friend Nancy in Michigan "Upper Canada".

[new laptop battery]

Personally I know a guy is gay when we meet and i feel the need to check my fly~hd454