49 D.L.R. (2d) 34
 1 O.R. 557
Ontario Court of Appeal,
Porter, C.J.O., Roach, Gibson, MacKay, and McLennan, JJ.A.
December 2, 1964.
Criminal law - Obscenity - "Fanny Hill" - Whether obscene under s.150(8) of Criminal Code as "undue exploitation of sex".
Criminal law - Obscenity - Definition under s.150(8) of Criminal Code - Whether exhaustive.
Accused book store appealed an order that copies of a publication entitled Fanny Hill -- Memoirs of a Woman of Pleasure be seized as obscene pursuant to s.150A of the Criminal Code as enacted by 1959 (Can.), c.41, s.12.
Held, Roach, J.A. (McLennan, J.A., concurring), dissenting, the publication in question was not obscene within the definition of s.150(8) of the Code, as enacted by 1959 (Can.), c.41, s.11, which definition is exhaustive as to what constitutes obscenity, and accordingly the appeal must be allowed and the books restored to the appellant.
Per Porter, C.J.O. (Gibson and MacKay, JJ.A., concurring): Section 150(8) of the Code, which defines obscenity as "any publication a dominant characteristic of which is the undue exploitation of sex ..." is exhaustive and the common law Hicklin rule has no application and because s. 150(8) creates a new definition which is different from those applicable in England and the United States the decisions of Courts in these jurisdictions are of little assistance. Although the book in question exploited sex as a dominant characteristic, being the story of the life of a prostitute, such exploitation was not undue within the meaning of s.150(8). The test of "undueness" is objective and requires consideration of a number of factors, including the literary purpose and merit of the book viewed as a whole and whether it is a serious attempt to portray an aspect of life as it appeared to the author, considered in the context of contemporary community standards of toleration in literature.
``Fanny Hill'' was written with the serious purpose of presenting in the form of a novel an accurate picture of a certain seamy side of the life of the time, which was accomplished with humour, integrity and realism and, if not a great novel, the book had literary merit and historical value and, when read as a whole, it did not have about it that aura of morbidity nor that degree of suggestive pruriency which might render it obscene within the meaning of the Code.
The freedom to write books, and thus to disseminate ideas, opinions and concepts of the imagination, and the freedom to treat with complete candour of an aspect of human life, and the activities, aspirations and failings of human beings, are fundamental to progress in a free society and such freedom should not be curtailed except in extreme circumstances.
Per Roach, J.A. (McLennan, J.A., concurring), dissenting: Section 150(8) constitutes an exhaustive definition of obscenity and the determination of what amounts to an "undue exploitation of sex" thereunder must be judged by the contemporary standard of decency and morality, that is, how would a particular publication be regarded by the average, well-intentioned, moderate individual. Artistic and historical merit, although relevant, do not necessarily exclude obscenity; sadism, cruelty or crime are not necessary ingredients, and candour is not an elixir capable of transmuting obscenity into decency. Neither can a publication in a particular case be compared with other publications, or Court rulings in respect of other publications, and evidence of experts comparing the publication in question with other books is irrelevant and inadmissible. Furthermore, although the element of "undueness" in the proscription imposed by s.150(8) makes the evidence of experts in the field of literature relevant as to the literary and historical merits of the publication in question, the essential purpose of the statute is to protect public morals and such experts are not, usually, experts on questions of morality and accordingly they should not be asked nor permitted to give opinion evidence as to the moral qualities of a book. In the instant case the book itself afforded the best evidence of its nature and it was composed of nothing but a chronological succession of venereal adventures, wallowing in sex and dripping with sensuality and lewdness. It was plain unvarnished dirt for dirt's sake and comes squarely within s.150(8) as a book whose dominant characteristic is the undue exploitation of sex.
[R. v. Brodie; R. v. Dansky; R. v. Rubin, 32 D.L.R. (2d) 507, 132 C.C.C. 161,  S.C.R. 681, 37 C.R. 120; R. v. Dominion News & Gifts (1962) Ltd.,  2 C.C.C. 103, 40 C.R. 109, 42 W.W.R. 65; revd  3 C.C.C. 1, 42 C.R. 209,  S.C.R. 251, consd; R. v. Hicklin (1868), 11 Cox C.C. l9; Larkin v. G.P. Putnam's Sons (1963), 242 N.Y.S. 2d 746; revd 247 N.Y.S. 2d 275; R. v. Reiter et al.,  2 Q.B. 16; Galletly v. Laird,  S.C.(J.) 16; Commonwealth v. Isenstadt (1945), 62 N.E. 2d 840; R. v. Close,  V.L.R. 445, refd to]
APPEAL from a judgment of Weaver, Co.Ct.J., ordering seizure of copies of the book ``Fanny Hill'' as obscene pursuant to s.150A of the Criminal Code.
G.D. Finlayson, Q.C., for defendant, appellant.
R.A. Cormack, Q.C., for the Crown, respondent.
A similar appeal decision was made in the United States. According to The Encyclopedia of the American Constitution, in Memoirs v. Massachusetts, 383 U.S. 413 (1966) the U.S. Supreme Court reversed a 1963 Massachusetts state court decision that John Cleland's "Fanny Hill" was obscene.