🚀 go-pugleaf

horton@icons.net (John R. Shaw) wrote:

>On Thu, 18 Jul 1996 23:21:07 GMT, alchemy@interlog.com (Morton
>Goldmacher) wrote:

>> By the way, obscenity is well defined judicially.

>How can obscenity ever be defined in a way that is more than relative
>and subject to personal interpretation and local 'community
>standards'.  Would Canada 40 years ago have used the same definition
>as is used now? Will they in 40 years form now.  It is clearly a
>relative thing, and subject to personal interpretation (and therefore
>abuse).  

Mr. Shaw's point regarding changing community standards is irrelevent
to the discussion of whether obscenity can be well defined.  If
community standards are a measure of obscenity (and it is not) the
definition of obscenity would be open to change, but that fact alone
doesn't mean that the standard is undefinable.  The statement that
community standards are changeable carries the tacit assumption that
they can be ascertained and applied.

An article is obscene if its content can be proven to be injurious to
the fabric of society.  The depiction of explicit sexual conduct is
never obscene unless it is degrading, dehumanizing or imbued with
violence.  By adopting this definition the Supreme Court of Canada
began to take obscenity out of the realm of being "a relative thing,
and subject to personal interpretation."  A jury or judge would be
charged with the responsibilty of deciding whether something is
obscene, but the law is clear about what makes something obscene.  I
amagine that Mr. Shaw would say "Different juries and judges can and
will arrive at different conclusions regarding the same stuff", and he
would be correct about that.  But only because they may see the
material differently from each other, not because the law is ill
defined.  In every trial the evidence can support differing
conclusions and the jury or judge must decide which conclusion they
have been convinced of.  This indeterminacy is different from the
inderminacy of a law which is vague or unsettled.

The difficulty that Mr. Shaw should be concerned with is not that
obscenity is incapable of being defined, but the uncertainty of
whether a given image or article falls within the definition.  In R.
v. Metro News Ltd. a publisher or distributer was charged with
disseminating obscene porn.  This was in 1986 when the definition
incorporated community standards.  The defendant argued that he could
not have known that community standards were offended and therefore he
did not have the  intent to commit the offense.  The Ontario Court of
Appeal held that the mistake of not knowing that the material was
obscene is not a mistake of fact, a valid defense, but a mistake of
law which is no defense at all.   Metro News Ltd. was convicted.

In a police state where the rule of law is non-existant anything can
be banned or censored.  In a religious dictatorship any "anti-god"
sentiments can be criminalized.  Things are a little different in
Canada.  It is instructive to read R. v. Trembley, (1993), in which
the Supreme Court of Canada defines obscenity as it applies to
indecent performances in a public place.

>Are not the 'nude beaches' in BC considered obscene in some (many ?)
>parts of Canada, and are illegal (even if the statute used to prohibit
>them is not defined as 'obscenity' the intent is the same).

The only relevent questions are 1.) are they indecent in the host
community, and 2.) are they public places (a more complicated question
than the first)?  It is not relevent whether they may be obscene in
Cape Breton or anywhere else.

>  This is a
>key point in discussing censorship, there is always the assumption
>that obscenity can be impartially defined, but a lot of cases would
>seem to indicate it's judgement and local 'community standards', and
>simple prudishness in some cases.

In a prudish community the standard is lower.  Why shouldn't it be?
Incidentally, prohibiting nude bathing is not censorship.  That is why
"indecency" and "obscenity" have such divergent definitions.

Morton M. Goldmacher
Barrister and Solicitor