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>>>>> "Tipsy" == Tipsy McStagger <sberry@ivory.trentu.ca> writes:

        David> I am familiar with the US obscenity ruling, Miller
        David> v. California.
        David> 
        David> What is the Canadian equivalent?  What is the test
        David> for determining whether an item is obscene or not?
        David> 


    Tipsy> I'm not sure but I believe it encompasses (or if it
    Tipsy> doesn't, it should) the following:

    Tipsy> 1. does it have academic merit? yes/no 2. does it...
        [...]
    Tipsy> 15. does the material exploit a
    Tipsy> member or members of an identified group of society?
    Tipsy> yes/no
 
That is quite a list.  I hope that is not what the jury is
instructed it has to consider.  Those are all good points but
there are so many of them it might be hard to give them weight.

Some of them seem to suggest that whether or not something is
obscene or not depends upon how politically correct it is or what
was in the author's mind or the director's or the actors' at the
time they made it.

One of the things about the U.S. law is that there is no national
standard for what is outside the federal constitutions protected
area of free speech.  If something is obscene it is not protected
and may be punished as a crime.  But the constitutional test is
that a local judge or jury is supposed to apply local community
standards and decide if the material is outside those standards.
If it is and has no real artistic or social significance it is
obscene and properly subject to criminal laws.

    Tipsy> If you ask me, those are the questions I'd be asking
    Tipsy> to distinguish if the material is art (ie., see
    Tipsy> R. vs. Eli Langer, the artist dude in Toronto) or if
    Tipsy> it is sexually explicit material of a certain variety
    Tipsy> or if it is not sexually explicit but designed to
    Tipsy> promote illegal or immoral acts that are contrary to
    Tipsy> the law.

Well if it is designed to promote illegal acts then it could be
criminal whether or not it was obscene.  But it would have to
"promote" specific acts and not just portray (even without
condemnation). 

When we make up our our minds of something is obscene we go
through a processes that is hard to define in a way that would
apply to every case.  Thus the famous quote from former
U.S. Supreme Court Justice Potter Stewert to the effect that it
was difficult to exactly define pornography but "I know it when I
see it."

Of course Justice Stewert and the rest of the court did not want
to have to make all these decisions themselves and so that task
is put to local juries.

Here in the U.S. we are already seeing cases where a prosecutor
in a very conservative area has an officer down load porn and
then convict a poster for something that would not have been
found to be pornographic in the place where it was first posted.

It is not clear how this idea of "local standards" is going to
play out in cyberspace.  It seems an idea which solved a problem
for the U.S. Federal Courts at one time, but that time has passed.
-- 
Fred G. Athearn        fga@sover.net        http://www.sover.net/~fga
Rockingham, VT, USA    finger for pgp key   (802) 869-2003