[Indexed as: R. v. Hawkins]
15 O.R. (3d) 549
 O.J. No. 2572
Action No. C11978, C12199, C14430, C13260, and C7376
Court of Appeal for Ontario,
Robins, Doherty, and Austin JJ.A.
October 19, 1993
* An application by Jorgensen et al. for leave to appeal to the Supreme Court of Canada was granted April 28, 1994 (Lamer C.J.C., Cory and Iacobucci JJ.). An application by the Crown in R. v. Hawkins, R. v. Jorgensen, and R. v. Ronish for leave to appeal to the Supreme Court of Canada was dismissed April 25, 1994 (Lamer C.J.C., Cory and Iacobucci JJ.).
Criminal law -- Obscenity -- Not all material depicting adults engaged in sexually explicit consensual acts which are degrading or dehumanizing constituting obscenity -- Material must also create substantial risk of harm to society -- Crown having to prove risk of harm beyond reasonable doubt -- Depiction of sex outside context of emotional involvement not perceived by most members of community as substantially harmful -- Approval of films by Ontario Film Review Board not amounting to lawful justification or excuse and not negating possibility of finding that accused acted "knowingly" in selling obscene film -- Criminal Code, R.S.C. 1985, c.C-46, s.163.
All of the accused were charged with obscenity offences under s.163 of the Criminal Code.
H was in the business of renting and distributing videocassettes. Police seized 800 videos from his home, 10 of which were entered as exhibits at trial. The videos did not portray violence, cruelty, bestiality, masochism or child pornography. They consisted of a great number of explicit consensual sex acts, with minimal narrative linkage, occurring in a context which was devoid of love or affection. The videos had been reviewed by the Ontario Film Review Board ("OFRB") and approved for "restricted" viewing. H called P, chair of the OFRB, as an expert witness at his trial. P testified that community standards no longer required a context of "love and affection" in films of this nature, if they ever did. The trial judge found that the films were not degrading or dehumanizing and did not carry a risk of harm, and were accordingly not obscene. H was acquitted. The Crown appealed.
J owned and operated three stores whose business was, in part, the sale of videos approved by the OFRB and classified as "restricted". The videos seized in his case were very similar to those in the H case, in that they did not portray violence but did portray a large number of explicit consensual sex acts. P also testified as an expert witness at J's trial. The trial judge held that the films were degrading and dehumanizing, principally because they were "devoid of anything other than the merely physical act". He concluded that the total effect of the films was such that the risk of harm was substantial. The films were accordingly found to be obscene and J was convicted. He appealed.
R owned an "adult" video store. The videos seized were all approved by the OFRB and were of the same type as the cassettes in issue in the case of H and J. Again, P testified that he was of the opinion that none of the films approved by the OFRB could create a substantial risk of harm to society, and that everything approved by the OFRB would fall within the guidelines of contemporary community standards of tolerance. The trial judge found that there was no proof of social harm being caused by exposure to these films. He dismissed the charges. The Crown appealed. 913719 owned and operated an "adult" video store. Each of the tapes seized had been approved by the OFRB. Three of the videos contained violence and/or apparently non-consensual sex. The trial judge held that, while OFRB approval is indicative of the community standards of tolerance, such approval does not amount to a "lawful justification or excuse". The three videos which depicted sex coupled with violence were found to be obscene and the accused were convicted on the counts relating to them. The trial judge was not satisfied that the explicit depiction of sex in the other videos was degrading or dehumanizing, nor was she satisfied that these videos resulted in a substantial risk of societal harm. Accordingly, the charges relating to these videos were dismissed. The Crown did not appeal those acquittals. 913719 appealed the convictions.
S's company owned and operated a tavern and adult entertainment parlour which showed movies obtained by a satellite dish. The movies were not screened by the OFRB and did not have the OFRB's approval. The films contained scenes portraying necrophilia, violence, and vampirism in a sexual context. The trial judge found the films to be obscene, and S's conviction was affirmed on appeal. S appealed.
Held, the Crown's appeals from H and R's acquittals and the appeals by 913719 and S should be dismissed; J's appeal should be allowed, the conviction should be set aside and an acquittal should be registered.
In R. v. Butler, the Supreme Court of Canada formulated a new legal framework within which to determine whether something is obscene. It did so by dividing "pornography" into three categories of materials: (1) explicit sex with violence; (2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; and (3) explicit sex without violence that is neither degrading nor dehumanizing. Obscenity is defined in terms of what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. The first category of pornography set out above will almost always constitute the undue exploitation of sex. The second category may be undue if the risk of harm is substantial. The third category is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.
The definition of criminal obscenity is limited so as to capture only material that creates a substantial risk of harm. Harm is a component of the offence. Harm in this context means that it predisposes persons to act in an antisocial manner. The stronger the inference of a risk of harm, the lesser the likelihood of tolerance.
What is or is not degrading or dehumanizing and what is or is not harmful are matters to be determined by the standards of the community as a whole. These are not matters to be determined by the tastes of individual judges. The fact that a provincial board does not consider a film to be degrading or dehumanizing and has approved it for exhibition and distribution is clearly evidence of contemporary Canadian standards of tolerance that a trial judge must weigh in objectively deciding whether, on all the evidence, such films are so out of keeping with prevailing societal mores that Canadians would not allow other Canadians to see them.
As s.163 was interpreted in Butler, harm is an essential component of the definition of obscenity. Under the Butler test, not all material depicting adults engaged in sexually explicit acts will be found to be obscene. A substantial risk of harm to society must be proved beyond a reasonable doubt and that proof must be found in the evidence at trial.
In the case of H, the Crown adduced no evidence to establish harmful effects. In R's case, the evidence adduced did not prove to the satisfaction of the judge that social harm would result from exposure to the films.
In 913719's appeal, the trial judge properly concluded with respect to the three films which resulted in convictions that their contents included the portrayal of sex coupled with violence and coercion or subordination and created the requisite risk of harm. The trial judge did not err in finding that the OFRB approval of the film amounted to a lawful justification or excuse. Moreover, OFRB approval does not negate any possibility of a finding that the accused acted "knowingly" in selling obscene films.
In the case of J, the record contained no evidence from which it could be concluded, as the trial judge in effect held, that community standards require that sexual activity take place within the context of love, affection, commitment or emotional involvement. Nor can it be concluded that the depiction of sex outside that context would be perceived by most members of the community as substantially harmful.
In the case of S, the violence, vampirism, and necrophilia shown in these films (which did not have OFRB approval) were patently such as to bring the films within the second of the Butler categories. Manifestly, these explicit depictions of indignities to the human body rendered the material degrading or dehumanizing and created the risk of harm contemplated by Butler.
Other cases referred to
The judgment of the court was delivered by
ROBINS J. A.: -- The issue in these five appeals, which were heard together, is whether the videotape films in question are obscene within the meaning of s.163(8) of the Criminal Code, R.S.C. 1985, c.C-46, which provides that:
The nature of the videotape films will be outlined in detail later. However, it might be noted at this stage that, with certain limited exceptions, the films in question explicitly portray non-violent sexual activity in a wide variety of forms between consenting adults. They contain little plot and are of no literary or artistic value. What plot may be found is designed to link a series of graphically depicted scenes of sexual activity which take place throughout the films. All of the films, save those in one appeal, were reviewed by the Ontario Film Review Board ("OFRB" or the "board"), an agency of the Ontario Ministry of Consumer and Commercial Relations established pursuant to the Theatres Act, R.S.O. 1990, c.T.6, and approved for "restricted" viewing.
- 163. (8) 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.
It is common ground that the question of whether these films are obscene falls to be determined in accordance with the interpretation recently placed on s.163(8) by the Supreme Court of Canada in R. v. Butler,  1 S.C.R. 452, 70 C.C.C. (3d) 129. In that case, the court affirmed that Parliament is constitutionally entitled to criminalize the sale and distribution of certain pornographic material. While the obscenity provisions of the Code infringe the Canadian Charter of Rights and Freedoms guarantee of free expression, they were held to constitute a reasonable limit demonstrably justifiable in a free and democratic society within the meaning of s.1 of the Charter.
In delivering the majority judgment, Sopinka J. reviewed the legislative history of the criminalization of obscenity before deciding the constitutional issue. He noted that the statutory definition contained in s.163(8) provides the exclusive test of obscenity with respect to publications and objects which exploit sex as a dominant characteristic. The common law test, the Hicklin test, which had as its focus whether the impugned material would result in the corruption of morals, is no longer relevant or applicable.
For something to be obscene within the statutory definition, it must have as a dominant characteristic the "undue exploitation of sex". To determine whether particular material unduly exploits sex the courts have over the years formulated a number of tests, namely, the "community standard of tolerance" test, the "degradation and dehumanization" test, and the "internal necessities" or "artistic defence" test. After reviewing these tests, Sopinka J. concluded that the jurisprudence interpreting s.163(8) failed "to specify the relationship of the tests one to another" and left the legislation "open to attack on the ground of vagueness and uncertainty". In order to fill the "lacuna" in the interpretation before considering whether the obscenity provisions of the Code can withstand Charter scrutiny, Butler formulated a new legal framework within which to determine whether something is obscene. It did so by dividing "pornography" into three categories of materials:
Obscenity is defined in terms of what the community would tolerate others being exposed to "on the basis of the degree of harm that may flow from such exposure". In making this determination with respect to the three categories into which pornography is to be divided, Butler says that the first category -- the portrayal of explicit sex coupled with violence -- will "almost always" constitute the undue exploitation of sex. The second category -- explicit sex that is "degrading or dehumanizing" -- may be undue "if the risk of harm is substantial". The third category -- explicit sex that is not violent and is neither degrading nor dehumanizing -- is "generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production".
- explicit sex with violence;
- explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing; and
- explicit sex without violence that is neither degrading nor dehumanizing.
In the present appeals, the videotapes in issue are all of an explicit sexual nature. However, with very few exceptions, none contains scenes of violence. The central issue, as these appeals were presented, is whether the portrayal of sexual activity of the kind depicted in these films constitutes "treatment that is degrading or dehumanizing". Do films of this genre fall into the second or the third of the Butler categories? If they fall into the second category, has a "substantial risk of harm" been proven or can such a risk be assumed? Put another way, in light of the Supreme Court of Canada's interpretation of s.163(8) in Butler (to which I shall return later) are videotape films of this type criminally obscene?
Before considering those questions, I turn to the facts and decisions in each of the five appeals before the court.
(1) R. v. Allan Peter Hawkins
In this case the Crown appeals the respondent's acquittal by Misener J. of the Ontario Court (General Division) on April 10, 1992, on charges of unlawfully distributing obscene material contrary to s.163(1)(a) of the Code, unlawfully exposing obscene material to the public without justification or excuse contrary to s.163(2)(a) of the Code, and unlawfully possessing obscene material for the purpose of circulation contrary to s.163(1)(a) of the Code.
The respondent was in the business of renting and distributing videocassettes to members of a club which he had formed for this purpose. As the result of a complaint, the police seized approximately 800 videocassettes from his home, ten of which were entered as exhibits at trial and relied upon by the Crown to prove the charges. One of these cassettes containing a film entitled "Pink 'n' Pretty" was viewed at trial. It was agreed that this film was representative of the material in issue and that if it was found to be obscene, the other tapes would also be obscene. Similarly, if this film was not obscene, then none of the others was obscene. It was also agreed that these videos did not portray violence, cruelty, bestiality, masochism or child pornography. The only issue was whether the videos were obscene within the meaning of s.163(8) of the Code. The essential ingredients of the charges were otherwise admitted.
"Pink 'n' Pretty" is approximately 1 hour and 15 minutes long. Such plot or story line as there is simply serves as a vehicle for showing, as a police officer stated, "an awful lot of explicit sex". The trial judge described the film in this way:
What I describe this movie as, what it's all about, is most explicit cunnilingus, fellatio, masturbation, heterosexual sex in a variety of different ways, with overtones of lesbianism in the two women, one man scene -- scenes. As an aside, I note that it's also a study in the unbelievable stamina of some males apparently. It's not about male domination. It's not about violence or anything approaching male domination or violence and, if anything, the female is the dominant character. And the final scene is again, one of explicit but explicit -- explicit -- what I put down is "explicit pure lesbianism" or homosexuality if that's what you want to call it.The respondent called Robert Payne, then chair of the OFRB, as an expert witness, as, indeed, did the accused in all but one of these appeals. Mr. Payne testified generally with respect to the composition of the board and its power to classify, prohibit and regulate the exhibition and distribution of films and videos made available for commercial purposes in Ontario. The board is composed of a rotating group of private citizens of various ages, cultural, religious and social backgrounds who presumably reflect the diversity of the population of the province. It operates under the Theatres Act, and has developed guidelines pursuant to which it classifies films and videos according to four categories: family, parental guidance, adult accompaniment and restricted. The board may demand changes, including cuts, to films and videos containing unacceptable scenes, and may ban a film completely.
Since September 1990, the board has consistently allowed material containing explicit sexual activity involving consenting adults, including lesbian and homosexual acts, as long as the sexual activity does not incorporate such things as violence, humiliation or degradation of either women or men, use of anyone appearing to be a minor, bestiality or necrophilia. Mr. Payne testified that the standards of the Ontario board were "higher in the sense of more puritanical, more conservative" than other provincial review boards. The standard the board applied is a national standard "involving not taste but tolerance . . . it's not so much what I personally like or what you personally like but what all of us will tolerate our neighbours having in his or her home".
"Pink 'n' Pretty" was viewed by Mr. Payne while it was shown in court. In his opinion, there was nothing in this video which the board would require to be edited out. Although the movie was devoid of "love and affection", community standards no longer require a context of affection, "if [they] ever did". In the view of the board, Mr. Payne testified, there was nothing wrong, in terms of community tolerance, with "sex for fun".
Misener J., after describing the film, found it "utterly devoid of serious value of any kind" and the "quintessence of what might be called `dirt for dirt's sake' ". Nonetheless, he held that the film was not degrading or dehumanizing:
It would be quite wrong for me to say that there is even a hint of humiliation or degradation of one of the sexes and it would be just as wrong for me to say that collectively they are dehumanized or demeaned or that there is any tendency to do so. There is absolutely no message at all in this film. There is no advocacy of any kind. The film is simply a constant display of human sexual activity in most of its known forms, and the only intent of the producer is to completely satisfy the prurient interest and no other interest from the very beginning of the film to the very end of the film.Applying the interpretation adopted by the Supreme Court of Canada in R. v. Butler, the learned judge concluded that because the film, and by admission the other nine films, although sexually explicit, was not degrading or dehumanizing and did not, as he also found, carry a risk of harm to the "peace, order and well-being of society", it was not obscene within the meaning of s.163(8). The respondent was accordingly acquitted on all charges.
(2) R. v. Randy Jorgensen
The appellant in this appeal, which I shall refer to as "Jorgensen-Hamilton", appeals his conviction by Mitchell Prov. Div. J. at Hamilton on May 27, 1992, on three counts of selling obscene materials and three counts of possession of obscene materials for the purpose of sale contrary to s.163(2)(a) of the Code. An appeal against sentence was not pursued and is accordingly dismissed.
The appellant owns or operates, under the name "Adults Only", three stores in Hamilton whose business is, in part, the sale of videocassettes approved by the OFRB and classified as restricted to persons 18 years of age and older. He was informed by the police that the OFRB classification would not prevent him from being charged if the police believed the videos to be obscene. The police subsequently seized eight cassettes, each approved by the OFRB, which form the basis for the charges: "Oriental Taboo", "D-Cup Delights", "La Bimbo", "The Honeymooners", "Lawyers in Heat", "Kinky Sluts", "Secret Action Man", and "Suzy Superstar Three".
The defence consisted of the transcript evidence of Robert Payne, the then chair of the OFRB, in which he testified as to the operation of the board and its standards with respect to the explicit portrayal of sexual activities. His testimony was essentially the same as that given by him in the Hawkins case.
Provincial Judge Mitchell described the films as having a very loose story line, if any, and explicitly depicting "in almost every imaginable position and photographed from every imaginable position" sexual intercourse, fellatio, cunnilingus, anilingus, lesbian activity, homosexual activity, masturbation, ejaculation, and group sex. He went on to say that:
The characteristic that the court would have to say that is most prominent through them all, is that they were straight, physical sex. The participants were impersonal. There was no mutual affection shown. In fact, there was almost no interaction between any of the participants other than physical. Any words that were spoken could not be said to be in the development of any human or personal relationship. There was certainly no loving interaction for that to be a consideration . . .The trial judge accepted Misener J.'s interpretation of the Butler decision and the law as it was applied in Hawkins. However, contrary to the conclusion in Hawkins, the trial judge held that the films were degrading and dehumanizing and, as such, fell within the second Butler category. Although he found no violence in the depiction of the explicit sex in the films and no indication that the acts were other than between consenting adults, the films, in his view, were degrading or dehumanizing principally because "they were totally devoid of anything other than the purely physical act and that the physical act was an automatic response, an automatic acceptance amongst interchanging adults". The effect of the films, he concluded, was such that "their total effect would be that the risk of harm is substantial and would be so perceived by the majority of the members of the contemporary community society and the Canadian community standard test".
The films were accordingly found to be obscene and the appellant was convicted on all counts. The appellant's reliance on the approval of the OFRB was held not to negate the inference that he acted "knowingly", or to amount to a lawful justification or excuse.
(3) R. v. Roman Ronish and George Ronish
This is a Crown appeal from the acquittal of the respondents by Cole Prov. Div. J. on January 7, 1993 on three counts of possessing obscene material for the purpose of sale, and knowingly selling obscene material without lawful justification or excuse, contrary to s.163(2)(a) of the Code.
The respondent Roman Ronish is the owner of a video store called "Super Adult Video" in Scarborough where the four videocassettes in issue were sold. The respondent George Ronish was the employee who sold the cassettes, namely, "Backdoor to Harleywood", "For His Eyes Only", "Anal Addiction" and "Back Door to Hollywood, Part 8".
Summaries of the contents of the cassettes, all of which were approved by the OFRB, were entered as exhibits. They are of the same type as the tapes in issue in Hawkins and Jorgensen-Hamilton. Each contains numerous scenes of explicit sexual acts between consenting adults; none has any artistic or literary merit. The trial judge found that:
The story lines are entirely transparent, intended only to provide a pretext for numerous types of sexual activities. These involve several different male and female participants, with a few lesbian scenes. . . . There is obviously no romantic involvement between the participants. Their contact is only sexual.Robert Payne, then chair of the OFRB, again testified to the same effect as he had in the cases outlined above. He expressed the opinion that none of the films approved by the OFRB could create a substantial risk of harm to society, and that everything approved by the OFRB would fall within the guidelines of contemporary Canadian community standards of tolerance. He made it clear that the job of the OFRB is not to judge what is obscene but to approve films on the basis of contemporary community standards of tolerance. Under the OFRB guidelines, approval would not be given to video films containing explicit sex with violence, bondage, bestiality, necrophilia, crime, use of children, or anything considered degrading or humiliating.
The Crown called expert psychiatric evidence on the general effects and potential harm of exposure to this kind of pornography. The trial judge, however, concluded that this evidence, which consisted mainly of a summary of the results of studies and academic research in this area, taken at its highest, did not provide "clear proof of social harm being caused by the exposure of these films, even to those who may be predisposed to contemplate or actually commit violence against women".
In analyzing whether the films are obscene, the trial judge dealt with a scene in "Backdoor to Harleywood" in which a female is spanked on the buttocks. He found this act to be "minor or minimal", and "neither central to the sexual act being performed at that moment, nor . . . startlingly different from any of the other 59 sex acts contained in that film", and was unable to conclude that there was "any explicit factual linkage [in the impugned videos] between sex and violence so as to constitute an offence under that latter part of the test in s.163(8)" or, alternatively, had a reasonable doubt on the point.
In considering whether the films fell within either the second or third of the Butler categories, the judge expressly rejected the approach taken and the conclusion reached in Jorgensen-Hamilton. He did not agree that films of explicit sex, which are not otherwise obscene, would be degrading or dehumanizing, and thus obscene, because the sexual acts portrayed are "totally devoid of anything other than the purely physical act and that the physical act was an automatic response, an automatic acceptance amongst interchanging adults"; nor did he agree that the total effect of films involving such sexual activity "would be that the risk of harm is substantial and would be so perceived by the majority of the members of the contemporary community and the Canadian community standard test".
Provincial Judge Cole preferred the reasoning in Hawkins and concluded, on the basis of Butler, that proof of social harm must be established in cases involving depictions of non- violent explicit sex. Since he found himself uncertain as to whether the tapes fell within the second or third Butler category, he proceeded on the assumption that they fell into the second category, and held that, on the evidence before him, he had "no proof, let alone legally sufficient proof" of social harm being caused by the exposure of these films. Accordingly, he dismissed the charges against both defendants.
(4) R. v. Randy Jorgensen and 913719 Ontario Limited
In this case, which I shall refer to as "Jorgensen-Scarborough", the appellants appeal their convictions by Newton Prov. Div. J. on August 20, 1992, on three counts of a 24-count information of selling obscene material without lawful justification or excuse contrary to s.163(2)(a) of the Code. An appeal against the sentences imposed at trial was not pursued and will accordingly be dismissed.
The appellant 913719 Ontario Ltd., of which the appellant Jorgensen is the sole officer, owns and operates a store in Scarborough under the name "Adults Only Video and Magazine Store". The convictions were registered with respect to three videocassettes that were purchased there, namely, "Bung Ho Babes", "Made in Hollywood", and "Dr. Butts". The charges with respect to six other videos were dismissed and the balance of the charges were not proceeded with. Each of the tapes had been approved by the OFRB.
Robert Payne was called by the defence in this case also. As in the above cases, the then chair of the OFRB testified as to the function and role of the board and the national standards applied by it in classifying videotapes. The board, he said, would not knowingly approve anything that in its opinion was obscene. He indicated, for example, that a slap on the buttocks resulting in reddening would generally result in censorship. He agreed that if a video were approved, the board must have viewed it as being within the Canadian standard of tolerance. He testified further that the board was one of the more conservative of the provincial film review agencies and chose to err on the side of caution and censorship.
Provincial Judge Newton described the videos in the following general terms:
There was a semblance of plot in most of the videos. However, it was, in essence, the vehicle to expose the explicit sexual scenes of every conceivable variety which followed. Male and female genitalia were graphically, prominently and repeatedly depicted. The tasteless vignettes portrayed had little, if any, nexus to one another. The minimal dialogue which existed was pedestrian, crude and vulgar.She accepted that although OFRB approval is indicative of the community standards of tolerance, such approval "while lawful and clearly relevant to the issue of community standards of tolerance, does not amount to a `lawful justification or excuse' ". It is the function of the court to determine if material is obscene. With respect to the mens rea requirement of the offence, she held that there only need be evidence that the appellants knew the content of the videotape in a general sense. She was satisfied that the appellants "had knowledge that the dominant characteristic of the material was the exploitation of sex".
Three of the videos were found to be obscene because they depicted the portrayal of sex coupled with violence and thus constituted an undue exploitation of sex within s.163(8). Factually, the film "Bung Ho Babes" contains a scene in which a prison warden orders three women to disrobe and orders one of the women to spank another woman. The woman complies causing reddening of the buttocks area. Various sexual acts follow in close proximity and in the presence of the warden. The trial judge stated that while she appreciated that "this is play acting, there is a clear equation of sex and punishment in the context of a position of subordination". The film entitled "Made in Hollywood" contains a scene in which a male orders two women, one of whom appears distressed, to perform various sexual acts. In this context, the male slaps the other woman, with whom he is in the process of having intercourse, on multiple occasions on the buttocks sufficiently hard to produce observable red marks. Finally, the video entitled "Dr. Butts" contains a scene where the husband and wife are in the bedroom discussing her current job prospects. The husband makes anal intercourse a prerequisite to the pursuit of her movie career. Ultimately, she agrees. He slaps her buttocks repeatedly, producing visible red marks. During anal intercourse, she appears to be grimacing in pain. Her remarks in the course of the activity leave no pretence of an appearance of consent. She was in a position of subordination and was coerced into engaging in sexual relations against her will. The trial judge was of the view that the film potentially legitimizes violence in sexual activity.
The six other videos -- "Fatliners", "Bi and Beyond", "A Trip Down Mammary Lane", "Conflict", "She's a Boy" and "Licking Lesbians" -- contain little but continuous scenes of explicit sexual activity, including various positions of sexual intercourse, fellatio, lesbianism, cunnilingus, group sex, male ejaculation, masturbation, the utilization of sexual aids and group sex. However, unlike the three just described, these videos contain no similar acts of violence. Her Honour was not satisfied that the depiction of sex in these videos, as explicit and as varied as she found it to be, was degrading or dehumanizing. Nor was she satisfied that these videos resulted in a substantial risk of societal harm in the sense contemplated by Butler. Accordingly, the charges relating to these videos were dismissed. The Crown has not appealed those acquittals.
(5) R. v. Robert Smeenk and Crystal Palace Inc.
The appellants appeal from the judgment of Killeen D.C.J. dated February 24, 1989, dismissing their appeal from their conviction by Guthrie Prov. Div. J. on October 6, 1988, on charges of exposing obscene pictures to public view and permitting obscene entertainment, contrary to the present ss. 163(2)(a) and 167 of the Code.
The decisions at trial and in the summary conviction appeal court were rendered before the judgment of the Supreme Court of Canada in Butler. The appeal to this court was adjourned to await the Butler decision since the same Charter argument had been raised in this case. That issue now having been determined, the appellants pursue their appeal on the basis that the trial judge and the summary conviction appeal court judge, in light of Butler, applied an incorrect test of obscenity to the facts of this case.
The appellant Robert Smeenk is the president of Crystal Palace Inc., which owns and operates "Forest City Forum", a tavern and adult entertainment parlour in London. The entertainment in issue consists of movies that were obtained by a satellite dish, taped, and shown on a large television screen in the tavern for a period of three to four months ending July 12, 1986. The movies were not screened by the OFRB and did not have the board's approval.
A detailed summary of the tapes was prepared and used in the courts below. The summary discloses that, among numerous other sexually explicit acts, the films contain scenes portraying such things as a male engaging in necrophilia with a female lying in a coffin; implicit violence in which bite marks and blood are viewed on a woman's breast; a male biting a female's vagina; blood smeared on a female's neck after a male has performed cunnilingus and has had intercourse with her; two women zombies rising from coffins with rats crawling on one who then performs fellatio and has intercourse with a male; and a male dressed as a vampire who places a female, who is in a washroom on the toilet, under a spell and bares her breasts which later show bite marks and blood from being bitten by his fangs, and the woman apparently dead.
Provincial Judge Guthrie described the films as being "entirely concerned with sexual activity. If any plot can be found in any of these videos it is only to facilitate the depiction of various sexual acts. The acts include male/female masturbation, oral, anal, vaginal intercourse, the use of vibrators, scenes of group sex and any combination of the above." He held that, although one of the videos was not obscene, the rest were because of their explicit nature. He went on to note that in holding that the videos were obscene, he did not rely on any depiction of crime, horror or violence but based his conclusion on the "undue exploitation of sex and the definition as enunciated by the Supreme Court of Canada" in R. v. Towne Cinema Theatres Ltd.,  1 S.C.R. 494, 18 C.C.C. (3d) 193. His focus was on the fact that the videos contained explicit sexual activity and "nothing . . . of any artistic merit".
On appeal, Killeen D.C.J. upheld the conviction. In his view the films "can only be described as disgusting and degrading of human beings". "[T]he materials portrayed here", he said, "are of such a degrading nature and absent even a scintilla of social value, that they must be considered as clearly falling beyond the pale, beyond the line where the national standard of tolerance will permit such materials to be shown to other Canadians".
These films graphically portray throughout most of their running time a wide variety of sexually explicit acts. None combines sex with crime, horror, cruelty or violence, involves children, or indicates a lack of consent on the part of any of the participants. The sexual activity is performed in a context devoid of any loving or affectionate relationship or any plot of meaningful value. Indeed, it is not suggested that the internal necessities test or, as it is sometimes called, the "artistic defence", can be invoked in any of these cases. The portrayal of explicit sex in these films, if obscene, patently cannot be justified as serving some wider artistic, literary or other similar purpose. The essential question is whether the sort of explicit sex depicted in this genre of videotape film can properly be characterized as "degrading or dehumanizing" and, if so, whether the depiction creates the substantial societal risk of harm required by Butler to constitute it obscene.
The Supreme Court of Canada in Butler did not define "degradation or dehumanization". Recognizing the vagueness of the terms and the range of opinion that exists as to what is degrading and dehumanizing, the court made "the community as a whole" the norm by which to determine whether material is degrading or dehumanizing and whether a substantial risk of harm is created by such material, saying at p.484 S.C.R., p.150 C.C.C.:
Some segments of society would consider that all three categories of pornography cause harm to society because they tend to undermine its moral fibre. Others would contend that none of the categories cause harm. Furthermore there is a range of opinion as to what is degrading or dehumanizing: see Pornography and Prostitution in Canada: Report of the Special Committee on Pornography and Prostitution (1985) (the Fraser Report), vol. 1, at p.51. Because this is not a matter that is susceptible of proof in the traditional way and because we do not wish to leave it to the individual tastes of judges, we must have a norm that will serve as an arbiter in determining what amounts to an undue exploitation of sex. That arbiter is the community as a whole.(Emphasis added)
To decide if the exploitation of sex is undue, the courts are told to determine "as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure". The definition of criminal obscenity is limited so as to capture only material that creates a substantial risk of harm. Harm is a component of the offence. In this context, harm means (p.485 S.C.R., p.150 C.C.C.) that "it predisposes persons to act in an antisocial manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse". Antisocial conduct is defined (p.485 S.C.R., p.151 C.C.C.) as "conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance. The inference may be drawn from the material itself or from the material and other evidence. Similarly evidence as to the community standards is desirable but not essential". In making this determination with respect to the three categories into which pornography is to be divided, Butler, as stated earlier, concludes at p.485 S.C.R., p.151 C.C.C., that:
[T]he portrayal of sex coupled with violence will almost always constitute the undue exploitation of sex. Explicit sex which is degrading or dehumanizing may be undue if the risk of harm is substantial. Finally, explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production.(Emphasis added)
The position taken by the Crown is common to all of the appeals. Briefly stated, the Crown contends that in determining whether a work is degrading or dehumanizing the focus must be on the manner in which sex is treated in the context of the work in question. Degradation may be found in sexually explicit material where, for instance, people are depicted as sexual playthings existing solely for the sexual satisfaction of others, or in subordinate roles in their sexual relationship with others, or in engaging in sexual practices that would, to most people, be considered humiliating. While degrading or dehumanizing pornography differs from violent material in that there is no overt exertion of force, there are other forms of abuse, such as verbal abuse or the portrayal of people as having animal characteristics, that can render material degrading or dehumanizing. This kind of material, the Crown argues, differs from "explicit erotica" where positive and affectionate human sexual interaction between consenting individuals participating on a basis of equality is portrayed.
In the Crown's submission, once sexually explicit material is found to be degrading or dehumanizing, the substantial risk of harm to society required by Butler can be inferred or assumed. By reducing sexual activity to the "merely physical dimension" these films cause "attitudinal harm" in the sense that, among other things, they encourage unrealistic and damaging expectations, "contribute to a process of moral desensitization", and reinforce the view that a primary value of human life is sensual stimulation to the detriment of the values of individual dignity and responsibility.
The Crown's position, in sum, is that videotape films containing explicit non-violent sex between consenting adults as effectively their complete substance are by definition degrading or dehumanizing and fall into the second Butler category. That being so, the argument concludes, it can be inferred that films of this genre create a substantial risk of societal harm. No further evidence is needed to prove the harm. The films therefore unduly exploit sex within the meaning of s.163(8) as interpreted in Butler, and are obscene. In the Crown's submission, the dismissals of the obscenity charges in Hawkins and Ronish, against which it appeals, were grounded on a misconception of the facts and a misinterpretation of the law as it was laid down in Butler.
The Hawkins and Ronish Appeals
I turn then to the Crown appeals in Hawkins and Ronish. With deference to the very able argument of counsel for the Crown, I am unable to agree that the decisions in these cases were based on an erroneous application of the Butler test. In my opinion, the judges fully appreciated the evidence before them, considered it in the legal framework of Butler, and properly applied the law as enunciated therein to the facts as found by them. I can find no basis for interfering with their conclusions that the Crown had not satisfied the burden of proving that the videotape films in issue were criminally obscene.
In Hawkins, the trial judge found that the film, which was admittedly representative of all of the films in issue, was neither degrading nor dehumanizing nor carried a risk of harm to "the peace, order and well-being of society". His findings in this respect are supported by the evidence, and in particular the evidence of the Ontario Film Review Board's general approval of films of this nature. While the board's approval of video films depicting explicit sexual activity between consenting adults without violence, bestiality, necrophilia and the like clearly cannot be determinative of the criminal law of obscenity, or preclude a court from ruling otherwise, it is plainly relevant to the question of community standards of tolerance, and supportive of the trial judge's conclusion. In commenting on this type of evidence, Wilson J. observed in Towne Cinema Theatres, supra, at p.530 S.C.R., p.222 C.C.C.:
Since the business of these boards [film review boards] is to assess films on an ongoing basis for the very purpose of determining their acceptability for viewing by the community as a whole or a segment of the community depending upon classification, they must be regarded as tribunals with expertise at least on the community standard within their own province. It is hard to think that a judge, or even a jury, sitting in or drawn from a local area, would be better informed as to what was acceptable to Canadians across the country.What is or is not degrading or dehumanizing and what is or is not harmful are matters to be determined by the standards of the community as a whole. These are not matters to be determined by the tastes of individual judges. The fact that a provincial board, composed of a cross-section of citizens, and acting pursuant to a regulatory mandate, does not now consider films of this kind to be either degrading or dehumanizing and, since 1990, has approved such films for exhibition and distribution is clearly evidence of contemporary Canadian standards of tolerance that a trial judge must weigh in objectively deciding whether, on all the evidence, such films are so out of keeping with prevailing societal mores that Canadians, regardless of how distasteful they personally may find the films, would not allow other Canadians to see them.
The depiction of persons engaged in purely sexual activity through the medium of videotape films has been recognized by the Supreme Court of Canada as a form of expression whose freedom is guaranteed by s.2(b) of the Charter. As s.163 was interpreted in Butler, harm is an essential component of the definition of obscenity. The objective of the section is not moral disapprobation but, rather, the protection of society from the harmful antisocial conduct that may result from exposure to material that unduly exploits sex. "The prevention of `dirt for dirt's sake' ", the court said at pp.492-93 S.C.R., p.156 C.C.C., "is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter".
Under the Butler test, not all material depicting adults engaged in sexually explicit acts which are degrading or dehumanizing will be found to be obscene. The material must also create a substantial risk of harm to society. That risk is now an element of obscenity-based crimes. Like any element of a criminal allegation, it must be proved beyond a reasonable doubt and that proof must be found in the evidence adduced at trial.
In determining whether such a risk of harm has been proved, an important distinction should be borne in mind. It is one thing, in my opinion, to find, in considering whether a limitation on this form of expression is justified under s.1 of the Charter, that Parliament had a reasonable basis for concluding that harm will result from exposure to material which unduly exploits sex without demonstrating a causal link between the perceived harm and the material sought to be proscribed, and without actual proof of the harm. It is, however, quite another thing to find that the exercise of this constitutionally protected freedom creates the substantial risk of societal harm that is now an essential component of the offence when a person is on trial and subject to the full force of the law. The latter finding must be specific to the individual case and must be made in the context of the evidence adduced at trial and by the application of the accepted criminal law standard of proof to that evidence.
Contrary to the Crown's submission, I cannot accept that Butler compels the conclusion that once the portrayal of sexually explicit acts is found to be degrading or dehumanizing, it necessarily follows that the films are harmful and therefore obscene. In my opinion, it remains open to the court to find that the harm component of the offence has not been established. Just as there is a range of opinion as to what is degrading or dehumanizing, there is a range of opinion as to whether such material causes social harm or the risk of such harm. In some cases, as, for example, in films portraying necrophilia, bondage or bestiality, or sex associated with crime, horror, cruelty, coercion or children, it may be concluded from the contents of the films themselves, without expert or other evidence, that they may predispose persons to act in the antisocial manner contemplated by Butler. In other cases, as, for example, in films in which the participants appear as fully willing participants occupying substantially equal roles in a setting devoid of violence or the other kinds of conducts just noted, the risk of societal harm may not be evident. Further evidence may be required to prove that exposure to the impugned material will create a substantial risk of an identifiable harm that may cause persons to act in a manner inimical to the proper functioning of society. The question is essentially one of degree, one of where the line is to be drawn. It remains, however, for the Crown, in every case, to prove that the material or type of material in question is such as to cause the harmful effects that constitute an integral element of the offence. As Chief Justice Dickson noted in Towne Cinema Theatres, supra, at pp.517-18 S.C.R., p.212 C.C.C.:
It must also be kept in mind that the Crown must prove its case beyond a reasonable doubt. If at the end of the case the trial judge, whether on the basis of the defence evidence or otherwise, has a reasonable doubt that the material falls below community standards, he must acquit. There is no onus on the accused to show that community standards have been met.In my opinion, the trial judges in Hawkins and Ronish cannot be said to have erred, as the Crown contends, in failing to infer, from the content of the films themselves, that they were harmful to society. In Hawkins, the Crown adduced no evidence to establish the harmful effects which it argues in this appeal can flow from exposure to films of the type in issue. In Ronish, the evidence adduced did not prove to the satisfaction of the judge that social harm could result from exposure to the films. In both cases, the OFRB evidence was that the videos did not constitute a risk of harm to society. This evidence, particularly when unrebutted, can be taken as a significant indication of the community's perception that films of this genre are not incompatible with current standards of tolerance in this country, and, moreover, are not substantially harmful.
I think it pertinent to add that the Supreme Court of Canada, per Cory J., in a very recent post-Butler decision -- R. v. Tremblay, delivered September 2, 1993 [now reported  2 S.C.R. 932, 23 C.R. (4th) 98] -- quoted with approval (as had Wilson J. in Towne Cinema Theatres, supra, at p.523 S.C.R., p.216 C.C.C.) the assessment of community standards of tolerance in relation to sexual video films of the kind under consideration made by Borins Co. Ct. J. in R. v. Doug Rankine Co. (1983), 36 C.R. (3d) 154 at p.173, 9 C.C.C. (3d) 53 (Ont. Co. Ct.):
In my opinion, contemporary community standards would tolerate the distribution of films which consist substantially of scenes of people engaged in sexual intercourse. Contemporary community standards would also tolerate the distribution of films which consist of scenes of group sex, lesbianism, fellatio, cunnilingus, and anal sex. However, films which consist substantially or partially of scenes which portray violence and cruelty in conjunction with sex, particularly where the performance of indignities degrades and dehumanizes the people upon whom they are performed, exceed the level of community tolerance.The further argument is made in Ronish that the trial judge dealt with the nature of the proof required to establish the harm in such a way as to require the Crown to prove a direct causal link between a specifically discernible societal harm and the films referred to in the indictment. I would agree that such proof is not required. It is sufficient for the Crown to prove the requisite harm by reference to films of the same genre. However, on my reading of his reasons, I do not think that the trial judge imposed such a burden on the Crown or misdirected himself in this regard. He proceeded on the basis that even if the films could be classified as being degrading or dehumanizing, the social harm component of the Butler test for obscenity could not be assumed and had not been proven. His finding that the Crown had failed to establish this element of the offence was one he was entitled to make on the evidence before him, and there is no basis for this court's intervention.
The Jorgensen-Scarborough Appeal
It will be recalled that in the Jorgensen-Scarborough case the trial judge convicted the appellants on three counts of selling obscene material without lawful justification or excuse contrary to s.163(2)(a) of the Code on the ground that the films referred to in those counts, which I described earlier, contain scenes of violence and subordination or coercion. The appellants argue that these films were approved by the OFRB and involve merely explicit portrayals of sex between consenting adults. They are, the appellants contend, therefore not obscene under contemporary Canadian law, and the trial judge erred in so holding.
This argument cannot succeed. As I have already stated, the board's approval of the films may be evidence of what the contemporary community will tolerate. However, the board's approval is not binding on a court or determinative of whether the films are criminally obscene. The trial judge properly treated this evidence as indicative of community standards of tolerance, and fully recognized that due weight must be given to it. Nonetheless, for reasons she carefully explained, she was not persuaded that it raised a reasonable doubt as to the appellants' guilt. Her review of the films led her to conclude that their contents, which are outlined above, included the portrayal of sex coupled with violence and coercion or subordination and created the requisite risk of harm. She accordingly found that the films unduly exploited sex and were obscene within the Butler test. The trial judge was entitled to reach this conclusion on the evidence before her and made no error in law in so doing.
It is noteworthy that the trial judge reached the opposite conclusion with respect to the balance of the charges tried by her. These charges relate to video films virtually identical in their portrayal of explicit sex to those in all of the other appeals now before the court save Smeenk. Notwithstanding that the plot was at most a vehicle to expose explicit sex "of every conceivable variety", Her Honour concluded, applying the Butler test, that the portrayal of sex in these films was not violent and was not degrading or dehumanizing. On her view of the evidence, the films did not result in a substantial risk of harm and would be tolerated in our society. The Crown has not appealed the dismissals of these charges.
The appellants make two further submissions. The same submissions are made in the Jorgensen-Hamilton appeal. First, the appellants submit that the trial judge erred in failing to find that the OFRB approval of the films amounted to a "lawful justification or excuse" the absence of which is required by the offence charged. I do not agree with this submission. The approval of material by a body charged with considering whether the material is suitable for purposes other than the criminal law cannot constitute a lawful justification or excuse within the meaning of s.163(2)(a). Such approval may, as I have said, be relevant in determining whether the material is in fact "obscene" as that term is now defined for the purposes of s.163. It cannot, however, constitute a "lawful justification or excuse" as contemplated by the authorities. The appellant's argument, if accepted, would produce the patently untenable result of effectively placing the determination of whether material is criminally obscene in the hands of a provincial board. Reference on this point may be made to R. v. McFall (1975), 26 C.C.C. (2d) 181 (B.C.C.A.) at pp.201-16; R. v. Prairie Schooner News Ltd. (1970), 1 C.C.C. (2d) 251 at pp.260-61, 75 W.W.R. 585 (Man. C.A.); and R. v. Metro News Ltd. (1986), 56 O.R. (2d) 321 (C.A.) at p.354, 29 C.C.C. (3d) 35 at p.68. It may be added that the appellants, in both Jorgensen-Scarborough and Jorgensen-Hamilton, were aware that the OFRB approval offered them no protection against prosecution or conviction.
Second, the appellants submit that the OFRB approval negates any possibility of a finding that they acted "knowingly" in selling obscene films, as required by s.163(2). In my opinion, the board's decision that the films did not exceed the community's standard of tolerance and should therefore be approved for restricted viewing is irrelevant to the question of whether the appellants can be fixed with sufficient knowledge of their contents to be found to have "knowingly" sold obscene films. The Crown is not required to prove that they had specific knowledge of those parts of the film which were determinative in the trial judge's assessment of whether they were obscene. The appellants were aware of the videos and the nature of their subject matter. The fact that they may not have known that the films were obscene in the legal sense, or that the board's approval may have led them to believe that the films were not obscene, may be mitigating factors on the question of sentence, but are immaterial to the issue of whether the appellants acted "knowingly". In my opinion, the trial judge correctly concluded that the knowledge requirements of s.163(2)(a) had been established. Her approach to the issue was in accordance with that taken in R. v. McFall, supra, at p.194 and approved by this court in R. v. Metro News, supra, at p.343 O.R., pp.57-58 C.C.C.
The Jorgensen-Hamilton Appeal
In Jorgensen-Hamilton, the appellant was convicted of selling and possessing for the purposes of sale videotape films which to all intents and purposes are identical to those with respect to which the accused were acquitted in Hawkins, Ronish, and Jorgensen-Scarborough. The films in this case were held to be degrading or dehumanizing because the interaction between the participants was said to be solely physical, devoid of mutual affection, and lacking in any human or personal relationship. The effect of this, according to the trial judge, would be such that "the risk of harm is substantial and would be so perceived by the majority of the members of the contemporary community society and the Canadian community standard test".
This view was not accepted in the other cases in appeal and, indeed, was expressly rejected in Ronish. Notwithstanding that the films in each of these cases depicted sexual activity without love or affection, the courts did not accept the Crown's contention that the portrayal of sex in this non-romantic context is necessarily degrading or dehumanizing, or that the risk of harm is manifest. The same conclusion was reached in two other post-Butler cases to which we were referred, both involving acquittals relating to films of the same genre as those in issue here, and similarly approved by the OFRB: R. v. 934204 Ontario Ltd., a decision of R.D. Clarke Prov. Div. J. dated January 19, 1993; and R. v. Cook, a decision of Shamai Prov. Div. J. dated August 10, 1992.
In my opinion, the record in this case contains no evidence from which it can be concluded, as the trial judge in effect held, that community standards require that sexual activity take place within the context of love, affection, commitment, or emotional involvement. Nor can it be concluded that the depiction of sex outside that context would be perceived by most members of the community as substantially harmful. Indeed, the evidence is quite to the contrary. Apart from the tapes, the testimony of the chair of the OFRB was the only evidence before the court. His testimony, in essence, is that the explicit depiction of human sexuality in a context devoid of any meaningful relationship does not exceed contemporary national community standards of tolerance and, furthermore, is not harmful. Those standards are breached only if the depiction includes violence, subordination or humiliation of men or women, involves the exploitation of children, or is combined with such acts as bondage, sadism, bestiality or necrophilia.
It appears from his reasons that the trial judge failed to direct his mind to this evidence. In deciding whether the video films which formed the basis of the charges exceeded community standards of tolerance, he, erroneously, neither considered nor assessed the weight to be given to the board's approval of them. While, as I stated earlier, the approval is not binding on the court and does not preclude a conviction, its significance must be judicially assessed and weighed. As matters stand, the trial judge, for no stated reasons, rejected the unrebutted evidence before him and relied on his own perception of what is tolerable and what is harmful. In this respect, Chief Justice Dickson, in considering the treatment afforded the evidence of the chairman of a censor board which, as in this case, had been led by the defence for the purpose of showing that a film did not fall below contemporary community standards, said in Towne Cinema Theatres, supra, at p.517 S.C.R., pp.211-12 C.C.C.:
The law is clear that a trier of fact does not have to accept testimony, whether expert or otherwise. He can reject it, in whole or in part. He cannot, however, reject it without good reason. In this case, it was incumbent on the trial judge to consider and assess the weight, if any, to be given to the evidence, indicative of community standards of tolerance, afforded by the approval of the film by censor boards or classification boards . . .The Smeenk Appeal
. . . . .
[T]he trial judge should certainly not have rejected the evidence before him without explanation.
The decisions of the trial judge and the summary conviction appeal court judge, as noted earlier, were both rendered prior to Butler. In my opinion, they each correctly applied the law applicable at the time of their decisions. The argument advanced on this appeal is that, on the Butler test, degrading or dehumanizing material may still be tolerated by the community where no substantial risk of societal harm is shown. Since this issue was not specifically addressed in the courts below the appellants contend that they should be acquitted or a new trial ordered.
The pertinent facts of this case are detailed above and need not be repeated. The violence, vampirism, and necrophilia shown in these films, which, as noted earlier, did not have OFRB approval, are patently such as to bring the films within the second of the Butler categories. I think it manifest that these explicit depictions of indignities to the human body render the material degrading or dehumanizing and create the risk of harm contemplated by Butler. While the judges below did not have the benefit of the Supreme Court of Canada's most recent interpretation of s.163(8), they implicitly dealt with all of the factors applicable to the Butler test, including the social harm element. Had the approach articulated in Butler been followed the result would inevitably have been the same. I see no basis for disturbing the conviction.