Her Majesty The Queen, and
Mark Carl Laliberté
 O.J. No. 1346
Ontario Court of Justice - Provincial Division
Nosanchuk Prov. Div. J.
May 29, 1992
Criminal law -- Public morals -- Obscenity -- Using mail to transmit obscene materials -- Sale of obscene materials -- Possession of obscene materials for purpose of sale
The accused was charged with using the mail for the purpose of transmitting obscene materials, selling obscene materials, and possession of obscene materials for the purpose of sale. The accused was interested in comic books. The material depicted was somewhat bizarre. There was conflicting expert evidence as to what the illustrations depicted.
Held: The charges were dismissed. The publications were essentially literary and artistic ventures. The evidence fell short of demonstrating any undue exploitation of sex and it was inconceivable that any of the material would have predisposed persons to act in an anti-social manner, which was the standard required to be met before a finding of obscenity could be made.
Statues, Regulations, and Rules Cited:
NOSANCHUK PROV. DIV. J. :--
Charges Against the Accused:
Criminal Code Sections
- The accused, Mark Carl Laliberté, is charged that between the 24th day of May, 1990 and the 1st day of June, 1990 at the City of Windsor, in the County of Essex, did knowingly and without lawful justification did make use of the mails for the purpose of transmitting or delivering obscene material, namely, "Head Trip Vol. 1, No. 2 Spring 1990." contrary to Section 168 of the Criminal Code and further that,
- Mark Carl Laliberté, between the 24th day of May, 1990 and the 1st day of June, 1990 at the City of Windsor, did knowingly and without lawful justification or excuse did sell obscene written matter, namely "Head Trip Vol. 1, No. 2 Spring 1990", contrary to Section 163, subsection (2)(a) of the Criminal Code - and further that -
- Mark Carl Laliberté, on or about the 26th day of June, 1990, at the City of Windsor did have in his possession for the purpose of sale, obscene written matter to wit: (1) Head Trip, Vol. 1, No. 1; (2) Head Trip Vol. 1, No. 2; (3) Head Trip, Vol. 1 No. 3; and (4) Trampled Fetus; contrary to Section 163(2)(a) of the Criminal Code - and further that -
- Mark Carl Laliberté, between the 1st day of September, 1989, and the 1st day of June, 1990 at the City of Windsor, did make obscene written matter, namely, Head Trip Vol. 1, No. 2, Spring 1990", contrary to Section 163, subsection 1(a) of the Criminal Code - and further that -
- Mark Carl Laliberté, on or about the 26th day of June, 1990, at the City of Windsor unlawfully did have in his possession for the purpose of publication or distribution obscene written matter, to wit: (1) Boiled Angel, No. 2: (2) Boiled Angel No. 3; (3) Boiled Angel, No 4; and (4) Trampled Fetus, contrary to Section 163, subsection (1)(a) of the Criminal Code.
At the outset the defence attacked the constitutionality of the legislation under which the accused was prosecuted.
The defence submitted that Sections 163(1)(a), 163(2)(a), 163(3), 163(4), 163(8) and 168 of the Criminal Code violated and are inconsistent with the rights and freedoms guaranteed by Section 2(b) and 11(d) of the Charter.
The defence further submitted that the violations and inconsistencies could not be justified by a resort to Section 1 of the Charter.
The defence therefore contended that the foregoing Sections of the Criminal Code ought to be declared of no force and effect.
Background of the Case
On April 19, 1990, a complaint was received by the Windsor Police with respect to a magazine called Head Trip published and distributed by the accused, Mark Laliberté. A father complained that his teen age son was dressing differently, listening to different music and on one occasion was found associating with a group of skinheads. He attributed these changes to influences from Head Trip magazine and alleged that the publication was obscene. The matter was referred to Constable Robert Cowper of the Special Investigation Branch of the Windsor Police. For Detective Cowper, an 18 year veteran of the Windsor Police, this was his first occasion of investigating an obscenity complaint. The following day, on April 20th, 1990 Detective Cowper prepared a report stating, "These publications appear to be material directed to the teenage anti-establishment crowd; i.e., skinheads, punk rockers, ghoulies (kids dressed in black) and satanists". This opinion, he said, he gained from the views of the complainant. He agreed with those views after reviewing the publications. He subsequently went to a music store in Windsor which sold "music review-type magazines, local entertainment papers and such" and purchased a copy of Head Trip, Vol. 1, No. 2. He then went to Canada Post to acquire a postal address in a vacant lot of a subdivision. Using that address, Detective Cowper, under an alias of "Bobby Cooper" wrote to the accused Mark Laliberté asking to be provided with copies of Head Trip and other magazines and sent a money order in payment. Laliberté sent him a copy of Head Trip Vol. 1, No. 1; Vol. 1, No. 2 and a copy of another fanzine, Arcane, Nos. 1, 2, 3 and 4 as well as a flyer for an upcoming dance in Windsor. These were received on June 1st, 1990. A search warrant was obtained and on the 26th of June, 1990, Detective Cowper with three other police officers accompanied by another detective who attended to videotape the search, entered Laliberté's residence and searched his bedroom, seizing a copy of Head Trip, Vol. 1. No. 3, as well as a collection of loose papers in a manila envelope with a title page of Trampled Fetus, and issues of Boiled Angel, Nos. 2, 3, and 4, as well as miscellaneous correspondence, writings and drawings. On July 27th, 1990, charges and summonses were prepared and served on Mr. Laliberté, at which time, those documents not required for the case were returned to him.
The "Headtrip" publications at issue in this case are know as fanzines or zines. A fanzine is an amateur publication focusing on special themes of interest to the publisher or editor usually in an experimental way. Fanzines constitute a class of literature that is part of an alternative lifestyles movement or subculture and has a world-wide circulation. Fanzines are usually published using photocopy machines or home computers in a run of a few hundred copies or less for a small, select readership. The fanzines at issue consisted of 15 to 20 pages stapled together selling for from 50 cents to 1.25 depending on whether they are sold directly, through music stores or by post. Fanzine publishers are part of a world-wide network in which their publications are reviewed, advertised, sold or exchanged through notices in information publications such as "Factsheet Five" which every few months lists and reviews an extensive number of fanzines, magazines and periodicals and provides the names and addresses of the publishers for further correspondence from interested persons.
Mark Laliberté became interested in comic books when he was about 12 years old and over the years became more involved. In 1985 he joined the Windsor Essex County comic collectors Club which met at the Windsor Public Library. He began to contribute art work to a fanzine of the club. In 1989, the club began a comic fanzine called Arcane which was under the editorship of the art teacher at Catholic Central High School in Windsor. Mark Laliberté became the art director and helped with the lay out and printing which was done, with the permission of the principal, at Catholic Central High School. In 1989, according to Laliberté, "I decided to make my own magazine based on music, and I wanted to do a magazine of a lot of my interests, and I couldn't do that with Arcane just because - it was a strictly comic book fanzine, and so I just decided to do Head Trip, based on Arcane. The set up is similar but it was outside of the club."
In February, 1990, 100 copies of Head Trip Vol. 1, No. 1 were produced at a printing cost of about $50.00 with a cover selling price of 50 cents each. In the spring of 1990, Head Trip Vol. 1, No. 2, which led to the police complaint, was also published.
In May, 1990, just before Head Trip, Vol. 1, No. 3 was published, Laliberté received a telephone call from a woman who refused to identify herself saying she had found a copy of Head Trip in her son's room and she did not like anything about it. Laliberté said in response "Well, you have to be more specific than that." You can't just say that - that does nothing to tell me what you're objecting to. So the caller then said "Well, you're not listening. Let me talk to your mother.... The mother of the accused told the caller, "well, I've looked through it and I don't see anything wrong. Then the caller said to the accused "Well, let me talk to your father, then as the accused was calling his father the caller said "well forget it" and she hung up on the accused and apparently called the Windsor Police. A few days later, Laliberté was called into the office of the Brennan High School principal who had also received a call from the woman. The principal requested Laliberté not to sell Head Trip at school and he complied immediately with her request. The prosecution of these charges against Mark Laliberté proceeded in any event.
The issues to be determined are the following:
It was conceded by the prosecution that there was no obscene matter in Headtrip Vol. 1 No. 3.
- Is Head Trip Volume 1 No 1 an obscene publication within the meaning of Section 163(8) of the Criminal Code?
- Is Head Trip Volume 1, No. 2 an obscene publication within the meaning of Section 163(8) of the Criminal Code?
- Did the accused have Trampled Fetus in his possession for the purpose of sale, publication or distribution?
- Assuming that the answer to Question 3 is in the affirmative is the publication Trampled Fetus obscene?
- Did the accused have the publication Boiled Angel No.2, Boiled Angel No.3, and Boiled Angel No.4 in his possession for the purpose of publication or distribution?
- If the answer to Question 5, is in the affirmative then is the publication Boiled Angel obscene?
Evidence of Obscenity
There are also advertisements for band performances and notices of other fanzines contained within the publication.
Two of the impugned items in this publication are a black and white drawing on Page 4, and a black and white drawing on Page 5. The artist in each case was Mike Dianna who has been referred to by Mark Laliberté as a contributor to his publication and also a creator of fanzines. The other impugned item in Head Trip Volume 1 No. 1 is a two page black and white comic strip entitled Peenutz. There is no suggestion by the prosecution that any other subject matter in the Headtrip Vol. 1 No. 1 offended the obscenity laws.
The drawing on Page 4 occupies about one-quarter of the page. It is not the drawing of a recognizable human being. It depicts a figure with protruding eyes with a dog bone labelled milk bone in a horizontal position below the eyes going from one side of the head to the other. The figure does not have ears or a nose. There are about one dozen teeth which are pyramid shaped. The neck appears to be melting and there is a blurb on the left hand side of the cartoon that says "Time Ta Melt". The figure has a right arm and the stub of a left arm. That stub appears to be melting away. The right arm has octopus like tentacles for fingers, and those tentacles are wrapped around the handle of a dagger. The figure appears to be sticking the dagger through the centre of its chest and at the point of the dagger, there appears to be a darkened large drop which one could interpret as blood. The right leg appears to be melting. There are no toes on the feet on either the right or left leg. The feet are somewhat disfigured. In the genital area of this creature, is a dark blot which is darkened in the manner that the drop of blood at the point of the dagger was darkened.
The head of the figure is about twice the size of the body. Just above the darkened spot in the genital area are two curved lines appearing to depict male testicles. The solid black substance which is coming from the area of the testicles appears to be blood since it is similar in texture to the drop at the end of the dagger.
In support of the prosecution's contention that the publications referred to in Counts 1, 2, 3, 4 and 5 were obscene, the prosecution relied on the expert evidence of Dr. James Check who was qualified as an expert witness on Canadian Community Standards. Dr. Check has testified for the prosecution as an expert witness in a number of obscenity cases in canada over the past six years. In 1985 he conducted a survey of Canadians' attitudes regarding sexual content in the media.
With reference to the impugned drawing on Page 4 of Headtrip Vol. 1 No. 1 containing the "Milkbone", Dr. Check referred to it as a horror type illustration which he described as depicting a male stabbing himself with a very large knife while flesh is melting off of him. Dr. Check viewed the illustration as showing blood flowing from the genitals of the figure. Dr. Check was of the opinion that the scene shown in the illustration was sexually violent and to him Canadians would be unwilling to tolerate the distribution of the illustration. The accused, on the other hand, describes the "Milkbone" illustration on Page Four as a doodle, something that the creator, Mike Dianna would do in his spare time. The accused did not see any hidden symbolism in the illustration. He thought Mike Dianna might have been bored and simply did a drawing. The accused also said that he did not see anything sexual in the illustration.
The defence called as an expert witness on the issue of community standards Mr. Mark Askwith. Mr. Askwith is an associate producer of the TV Ontario Programme called Prisoners of Gravity, a weekly half hour television show in which writers, artists and people involved in popular culture including science fiction writers and comic book artists are interviewed. The programme has been running since 1989.
From 1983 to 1987 Mr. Askwith was the Manager of a Book Store in Toronto called "The Silver Snail Comic Book Shop". It was one of the largest comic bookstores of its kind in North America.
In the course of his extensive experience, reading, buying, and selling comics, and in his work as a producer, Mr. Askwith discussed the subject of censorship with various levels of the community, including editors, publishers and distributors of comic books.
The Court held that by virtue of his experience Mr. Askwith had acquired a special knowledge of the subject of comics and popular culture. The Court also recognized that Mr. Askwith had extensive contact with a wide range of persons at various levels of the industry and that he had also been in touch extensively by correspondence with consumers.
The court held that despite the fact that Mr. Askwith had not conducted a survey such as that conducted by Dr. Check he was nevertheless qualified to give an expert opinion on the Canadian standard of tolerance because of his special knowledge on the subject.
With reference to Head Trip 1 Volume No. 1 Mr. Askwith was of the opinion that the Milkbone illustration could be described as self mutilation done in a very over dramatized style. While Mr. Askwith agreed that the illustration depicted horror, in his opinion the image was about anger. He did not agree with the prosecution's suggestion that the image would fall below the standard of what the Canadian community would tolerate. He said it could go either way.
The impugned illustration on Page five occupies about one-quarter of the page at the upper right hand corner. It depicts two creatures joined together as if they were siamese twins. The creature to the viewer's right is a muscular creature appearing to be wearing a pair of jockey shorts.
That creature has a saw in its right hand and is sawing away the flesh that joins the two figures. The area around the saw appears to be blood. The creature has on the viewer's right what looks like a hairy armpit, two breasts, two claws as in the place of fingers on the left hand, eyes in the shape of tubes protruding from the head, a dog bone in the place where the nose would be and a tongue hanging out. The feet are like the feet of reptiles.
The figure on the viewer's left is a very distorted figure with one breast, an arm with a bone protruding instead of a hand, a bone protruding from one ear and what appears to be two large testicles hanging down from the genital area. The creature has one leg and a stump of the other leg. It does not have regular feet. There is a fly buzzing around the head of the figure. The figure has one open eye, some small object coming out of the other eye. It appears to have a ring through its nostril, and a row of front teeth.
For the Prosecution Dr. Check testified that the illustration on Page Five was a horror type drawing depicting two mutilated figures apparently joined by flesh. According to Dr. Check one of the figures is a bare breasted woman who is throwing herself free from the other person who is apparently male, evidenced by the hanging mutilated testicles.
Dr. Check was of the opinion that the scene depicted sex and horror, and sex and violence. He testified that the illustration would be intolerable to the average Canadian in the sense that they would not want to allow anyone to see it.
Mark Laliberté described the illustration on Page Five as a "spontaneous drawing or as a doodle". He did not consider that the features in the doodle looked human but were rather exaggerated and distorted images. He did not believe the illustrations were offensive although he said that "if there were just strict photographs of things they might be more offensive". There expert witness for the Defence, Mark Askwith agreed that the illustration on Page Five depicted horror but he said that it was more about rage. He testified that it was quite difficult to know what was going on in the picture. He was unable to tell if the figure on the right was a male or female and observed that it was quite disfigured. While the style was to provoke and was trying to be aggressive, Mr. Askwith did not find it to be really offensive. He did not agree that the image fell below the standard that the Canadian community would tolerate. He said that the Community would probably be baffled. He rejected the suggestion that the Canadian community would not tolerate disfigurement in the context of a zine.
The next impugned material in Headtrip Vol. 1 No. 1 is a comic Strip entitled "Peenutz" on Pages eight and nine. It is a black and white comic and appears to be a take off on the famous comic appearing daily in newspapers across North America called Peanuts written by Charles Schultz. Characters are drawn similarly to the "Snoopy" "Linus" and "Sally" characters in the "Peanuts" cartoon, but are named "Snoopie" a dog, "Lynus" a young boy and "Sallie" a young girl in the "Peenutz" cartoon. In this cartoon Snoopie is looking up at a castle where a voice is saying "why have you forsaken me", Lynus is in a room saying "have I upset you, I am so sorry, I'll do anything to make it up to you now, yes, anything." Snoopie is standing next to Sallie. They both ascend some stairs that are presumably in the castle. As they are ascending the stairs Snoopie is looking at the rear of Sallie, saying "Boy o Boy, look at that mmm-mmm." Sallie then has a shocked look on her face because she observes that Lynus has hung himself and is hanging from the ceiling with his tongue stuck out. Snoopie is in the background saying "tsk, tsk ... what a shame!", and as Sallie hugs Lynus around the waist as he is hanging from the ceiling Snoopie says "poor Sallie... Poor Sallie". Snoopie then stands behind Sallie with his trousers down to his feet and asks her to bend over saying to her that "Snoopie is going to make it all better". At the same time he is holding her with both hands just below the waist. Snoopie's sexual organ is not exposed. The next frame shows Sallie saying "Oh Snoopie" followed by the caption that indicates that the moans of pleasure "are followed by Snoopie's climactic howl". For the prosecution Dr. Check described the Snoopie character as following the child character Sallie up a flight of stairs with his tongue hanging out and his eyes wide with excitement because he is looking up the dress of Sallie who is just ahead of him. Sallie is crying because her friend Lynus has hung himself. Snoopie says to Sallie "bend over, Snoopie is going to make it better". As Snoopie says this he grabs Sallie from behind pulls up her dress while his trousers are down. According to Dr. Check although it is not explicitly depicted, Snoopie is obviously having intercourse with Sallie from the rear with an angry or evil look on his face". Dr. Check notes that the text goes on to state "Sallie's moans of pleasure are followed by Snoopie's climactic howl", Dr. Check testified that the Peenutz comic depicted bestiality and child sexual abuse that exceeded the contemporary Canadian Standard of tolerance.
Dealing with the Peenutz cartoon Mr. Askwith viewed this cartoon as a satire in many ways of the themes that Charles Schultz, the author dealt with in his Peanuts comic cartoon. The themes were childhood and definitely not horror. According to Mr. Askwith, Laliberté was using the images from the Peenutz cartoon to flip or invert the reader's expectation.
Mr. Askwith testified that the sexual content could be inferred but was not the overriding focus of the comic strip for him. To him the sexual depiction was very indirect. He stated that the cartoon titillates the reader when Snoopie says bend over because the reader would think that "Snoopie would never do that". It is completely out of character for Snoopie according to Mr. Askwith in considering the suggestion of Dr. Check that the cartoon presented and depicted the image of an animal having sex with a child. He questioned whether Snoopie was even an animal because for many people who read Peanuts, Snoopy in that cartoon is a human being who has dreams of fighting the red baron. Mr. Askwith asked rhetorically whether the story was an anthropomorphic story such as would be seen in Beatrix Potter or in a fairy tale. In his opinion the cartoon did not depend on Lucy having sex with a Beagle. Mr. Askwith asserted that he did not read the comic as depicting bestiality or child abuse. Such a view of the depiction would involved a real stretch of the imagination that would have to be made by someone who had never read a Peanuts cartoon. Since the material was contained in a Zine it is assumed that the reader would know something about popular culture and about the Peanuts cartoon in respect of which the comic is a dark take-off. The cartoon was really about comics and not bestiality according to Mr. Askwith.
Mr. Askwith expressed the opinion that the content of Head Trip Volume 1 No. I did not breach the Canadian contemporary community standard of tolerance. In his opinion the illustrators did not incite lustful thoughts but what was going on was more of an expression of adolescent rage. Mr. Askwith explained that the creators of the Zine were persons trying to find a voice. He pointed out that it was a misconception to consider comics as juvenile literature since research showed that by and large the audience was over 18. Mr. Askwith was of the opinion that the dominant theme of Head Trip No. 1 was anger. He saw in the work a lot of images from dungeons and dragons and a lot of things very reflective of musical icons, musical popular culture and music. He perceived what he described as a "punk" attitude in a lot of the images. To Mr. Askwith the messages were "I am made a shell and I am not going to take it anymore. There are a lot of these things going on and in the same way I have been provoked by them".
All the images are about angry adolescent energy according to Mr. Askwith. The energy of the magazine is saying "I am an individual and I have a voice". What was being experimented with here was an effort to "get a handle on rage". Mr. Askwith was inviting the Court to find that similar experimentation was seen in punk music and in fashion. It was quite representative of a culture that was happening in high school, grades 12 and 13 and first year University. He described the experimentation as having an adolescent culture base. There was a "sense of getting back to the basics, stripping away all of the consumerism and getting back to the core and let's see the raw stuff". The message conveyed is "I'm different, I'm unique. It is for people who are into getting space. It aggressively wants to stake out some turf. Mr. Askwith said "while this is not my cup of tea, certainly this type of energy is very very important". Mr. Askwith agreed that there would be more tolerance in the community given to the work because of the fact that the work was the product of an adolescent.
The magazine contained interview with rock group stars, record reviews, prose and poetry, film review, pages of reviews of live performances as well as advertisements. One page called Zine O File is devoted to a list of Zines giving a brief indication of the nature of the content and the address for subscription purposes. Interspersed throughout Headtrip Volume 1 No. 2 are illustrations in black and white that have a somewhat bizarre quality about them. The sole impugned portion of Head Trip 1 Volume 2 is a three page black and white comic strip called Blood and Salt. The figures in the comic strip are not clearly recognizable as human but are more like figures from outer space. The cartoon involved a brother and sister. It begins with two frames showing the sister apparently lying in pain. She then described how she went for a job and sweated like "a 600 pound mule in heat". She described her little brother as a salt fanatic. Her brother had a pet salt rock which his late father had procured at the salt mine where he had worked before he died. In the course of doing exercises called leg twisters the sister accidentally stepped on her brother's salt rock crushing it to tiny bits. Her brother was exceedingly angry and in retribution chained his sister to her bed while she was sleeping, sliced her leg with a razor and poured salt on the open wound. The last frame shows the sister lying on her back saying "all I can do is pray to Jesus, Joe and Mary on the salt stick", while her little brother stands over her with a box of moron salt in his right hand and a razor blade with blood on it in his left hand saying "when you bleed it pore, sis, hee, hee".
The prosecution called Dr. Check to give expert evidences to community standards. Dr. Check referred to the blood and salt comic as a particularly gruesome illustrated story. On reviewing the story Dr. Check refers to the fact that the brother is having "a fit with the result that his arms are spread out, his eyes are wide, feces are coming out of his anus and a liquid coming out of his penis presumably sperm". To Dr. Check the last frame shows the sister's body decomposed with little flesh left except that her breasts and pubic hair were still displayed. Dr. Check was of the opinion that the story portrayed sex and violence, sex and horror, sex and crime, and sex and cruelty. He described it as within the definition of what he called a sexually violent portrayal. He also referred to the frame where the sister is chained with her breasts sticking out. According to Dr. Check the average Canadian would "characterize the whole thing basically as a cartoon that is sexually violent". He adds that they might "use stronger words than that".
In Dr. Check's opinion the average Canadian would be unwilling to tolerate the distribution of the material. He went on to state that "I don't know whether that means it falls above the standard or below the standard but they would be unwilling to tolerate it based upon our survey evidence because of its sexually violent nature".
In cross-examination Dr. Check stated that he did not seem to get a particular theme or message out of the cartoon. To him the purpose was just to be gross and outrageous. Dr. Check did not think that the average person would find the comic to be sexually arousing because they would find it to be quite repulsive, sexually violent and gruesome.
For the Defence Mark Laliberté testified that the comic depicted horror but disagreed that it depicted sex.
Mr. Askwith testified for the defence. He disagreed with the prosecutor's suggestion to him that Blood and Salt involved sex and horror, sex and violence, and sex and cruelty. He stated that the Blood and Salt comic was about rage, anger and guilt. To Mr. Askwith the sexual content was nil. In his opinion the material did not exceed the community standard of tolerance.
Possession for the Purpose of Sale, Publication, and Distribution of TRAMPLED FETUS
Did the accused have obscene written matter namely, Trampled Fetus in his possession for the purpose of sale as alleged in Count 3 of the information or for the purpose of publication or distribution as alleged in Count 5 ?
The initial determination to be made is whether Trampled Fetus was in the possession of the accused for the purpose of sale as alleged in Count 3. If it was not in his possession for the purpose of sale then it is not necessary for the court to consider whether it is obscene. Simple possession of obscene written matter is not an offence under the Criminal Code.
With respect to Count 5 the initial determination to be made is whether Trampled Fetus was in the possession of the accused for the purpose of publication or distribution. If it was not in his possession for the purpose of publication or distribution then it is not necessary for the court to consider whether it is obscene.
Again simple possession of obscene written matter is not an offence.
On examining Trampled Fetus one can observe that the material is loosely contained in a white folder. The folder has the title "Trampled Fetus No. 1, a guide to the underworld" in prominent letters on the upper portion of the front outside cover. There is no other written material on either the outside or inside covers. There are no illustrations or reference to contents on either the outside or inside covers. There is no reference to volume number in contrast to the printed material on the covers of Headtrip Volume 1, No. 1, 2 and 3.
There are 11 illustration on separate sheets of paper, two photographs, a 3 page black and white comic and a one page black and white comic. There are six pages of writing. Four of the pages have the titles. The Fetal Zone. The Art of Misanthropy, Subculture Literature, and a Fear of Fliers. Two of the pages are untitled. In a small plastic envelope there are a scraps of printed paper, a number of them appear to be clipped from newspaper magazines and single words such as buns, breast, mega muffin, hot sliced or shaved, slick and On a Planet Far Away, On Earth 17 years later.... There is also a piece of paper with Trampled Fetus written on it in bold letters and another slip of paper with printing as follows: "Trampled Fetus No. 1, Summer, 1990, contents are copyright. There is a 3" x 6" frame border approximately one half inch wide containing certain illustrations. The illustrations depict breasts on the female body, a face of a female, and a face of a male. The 11 illustrations are pen and ink drawings on blank white paper. One illustration is on lined three ring loose leaf paper. The illustrations deal with an assortment of subjects that appear to be unconnected.
Mark Laliberté testified that Trampled Fetus constituted an idea that was far from being crystallized. He described a number of illustrations as being undone. A lot of them were in pencil and a lot of them were just sketches. The process that takes place before publication involves first a pencil sketch, then ink, then photocopying. After that the sketch is glued down. A decision was yet to be made on what to use and what to delete. The photographs were not intended for Trampled Fetus. The article titled Subculture Literature was for the Student Voice Newspaper. Fear of Flies was an English Story from a school course called Writer's Craft. Mark Laliberté said that it was just thrown into the file. In answer to the suggestion that he fully intended to publish a magazine by the title of Trampled Fetus, Mark Laliberté said that some time in the future it may have come out or it may not have come out. He agreed that in Headtrip Volume 1, No. 3 he described the Trampled Fetus Magazine as coming out in August. He admitted that he wrote a letter to Bobby Cooper telling him that he was starting a third Zine called "Trampled Fetus".
Laliberté testified that he wrote for submissions by people not knowing what he would use and he didn't know what he was going to put in the magazine.
Possession for the Purpose of Publication of BOILED ANGEL No. 2, 3, and 4
The next issue is whether the prosecution has established beyond a reasonable doubt that the accused had obscene written matter namely the publications Boiled Angel No. 2, 3 and 4 in the bedroom of the accused. The accused testified that he had only one copy of each of the foregoing publications and that he had received them from Mike Dianna, the artist who was previously referred to as a creator of fanzines. Mark Laliberté said that he had put them in a box with his other fanzines in the closet. They formed part of his library. He did not intend to distribute Boiled Angel in collaboration with Mike Dianna or on any other basis. The accused denied the suggestion by the prosecution that if he saw something in a Boiled Angel publication that was appropriate for Headtrip or Trampled Fetus that he would have lifted it out of Boiled Angel and put it in his own zine. He stated that he had never reprinted anything from any other magazine and made it part of his magazine.
Constitutionality of Section 163 of the Criminal Code
In R. v. Butler a decision of the Supreme Court of Canada released on February 27, 1992 unreported as of this date the Supreme Court of Canada unanimously held that Section 163 of the Criminal Code infringed paragraph 2(b) of the Charter of Rights and Freedoms. The Court stated at Page 20 that the purpose of paragraph 2(b) of the Charter was to:
"ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure".And further at Page 20 that:
"there is no doubt that Section 163 seeks to prohibit certain types of expressive activity and thereby infringes paragraph 2(b) of the charter".At the same time that Court held while Section 163 infringed on paragraph 2(b) of the Charter of Rights and Freedoms, nevertheless, it constituted a reasonable limit prescribed by law that was demonstrably justified in a free and democratic society and was therefore saved by virtue of the provisions of Section 1 of the Charter.
In finding Section 163 of the Criminal Code to be constitutionally valid legislation, the Supreme Court of Canada observed that the objective of the jurisprudence and legislation before the passing of Section 163 was to advance a conception of morality which posited that explicit sexual depictions particularly outside the sanctioned contexts of marriage and procreation threatened the morals of society. Any deviation from such morality was considered to be inherently undesirable independently of any harm to society.
Sopinka J. referred to the foregoing objective in delivering the Judgment of the Court and concluded at Page 22 that:
"this particular objective is no longer defenceable in view of the Charter". "To impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community, it inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract".......And continuing at Page 22
"the prevention of "dirt for dirt sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter".At Page 22 Sopinka J. further sates that:
"in my view however, the overriding objective of section 163 is not moral disapprobation but the avoidance of harm to society".Sopinka J. then refers with approval to the decision of Towne Cinema Theatres Ltd. vs. the Queen, 1985 (1) SCR 494) where Dickson C.J. stated at Page 507 that:
It is harm to society from undue exploitation that is aimed at by the section, not simply lapses in propriety or good taste.According to Sopinka J. Section 163 was passed to address harms linked to certain types of obscene matter that attempt to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable.
This prohibition was based on the belief that such materials had a detrimental impact on individuals exposed to them and consequently on society as a whole.
In conclusion the Court held that the restriction on freedom of expression did not outweigh the importance of the legislative objective and the legislation was accordingly found to be constitutionally valid. It is therefore unnecessary for this Court to further address the constitutional arguments that were raised in this case.
Law as to Obscenity
In R. v. Butler, the Supreme Court of Canada held that the exclusive test of whether printed or written matter is obscene is provided by Section 163(8) of the Criminal Code which provides that:
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.Prior to the Butler decision the test to determine whether material constituted an undue exploitation of sex was the community standards test. That test was set down in the case of Towne Cinema Theatres Ltd. vs. the Queen, 1985 1 SCR 494 where Dickson C.J. at Pages 508 - 509 stated that:
The cases all emphasize that it is a standard of tolerance, not taste that is relevant. What matters is not what Canadians think is right for themselves to see. What matter is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary Canadian standard of tolerance to allow them to see it.Additionally the Court in Towne Cinema Theatres Ltd. vs. the Queen considered what has been called the degradation or dehumanization test at Page 524 where Wilson J. stated:
"the most that can be said, I think, is that the public has concluded that exposure to material that degrades the human dimensions of life to a subhuman or merely physical dimension and thereby contributes to a process of moral desensitization must be harmful in some way".Also at Page 17 of the Butler decision Sopinka J. referred to what was called the internal necessities test or artistic defence test and observed that:
"even material which by itself offends community standards will not be considered "undue" if it is required for the serious treatment of a theme".He further observed that "the internal necessities test" or "artistic defence test" previously had been interpreted to assess whether the exploitation of sex had a justifiable role in advancing the plot or the theme and in considering the work as a whole did not really merely represent "dirt for dirt sake" but had a legitimate role when measure by the internal necessities of the work itself.
At Page 17 of the Butler decision the court stated that the community standards test needed to be reinterpreted in light of the passing of the Charter of Rights and Freedoms.
Again at Page 17 of the Butler decision it was pointed out that Wilson J. in the Towne Cinema case foresaw that necessity to do so when she stated at Page 525:
The test of the community standard is helpful to the extent that it provides a norm against which it impugned material may be assessed but it does little to elucidate the underlying question as to why some exploitation of sex falls on the permitted side of the line under section 159 paragraph 8 and some on the prohibited line. No doubt this question will have to be addressed when the validity of the obscenity provisions of the code is subjected to attack as an infringement on freedom of speech and the infringement is sought to be justified as reasonable.Immediately following his reference to this statement of Wilson J., Sopinka J. at Page 18 articulated the following definition of pornography.
"Pornography can be usefully divided into three categories:In R. v. Butler the Court concluded that there was a hiatus in the jurisprudence leaving the obscenity legislation open to attack on the ground of vagueness and uncertainty. For the purpose of addressing the vagueness and uncertainty Sopinka J. restated at Page 18 the test for obscenity as follows:
- Explicit sex with violence.
- Explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing.
- Explicit sex without violence that is neither degrading or dehumanizing. Violence in this context includes both actual physical violence and threats of physical violence."
"Relating these categories to the terms of subsection 163 paragraph 8 of the code, the first, explicit sex coupled with crime, horror or cruelty will sometimes involve violence. Cruelty for instance will usually do so. But even in the absence of violence, sex coupled with crime, horror or cruelty may fall within the second category. As for category three, subject to the exception referred to below, it is not covered.
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) Volume 1 at Page 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.In making the determination as to community standards with respect to the three categories of pornography referred to above Sopinka J. states as follows at Page 18:
The Courts must determine as best they can what the community would tolerate others as being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or what is perhaps debatable, the reverse.
Anti-social conduct for this purpose is 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".
"the 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 that 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".And went on to state at Page 18 that:
"if material is not obscene under this framework it does not become so by reason of the person to whom it is or may be shown or exposed, nor by reason of the place or manner in which it is shown.And considering the internal necessities test Sopinka J. states further at Page 18 as follows:
The availability of sexually explicit materials in theatres and other public places is subject to regulation by competent provincial legislation. Typically such legislation imposes restrictions on the materials available to children. See Nova Scotia Board of Censors v. McNeil 1978 2 SCR 662. The foregoing deals with the interrelationship of the "community standards test" and "degrading or dehumanizing test".
How does the "internal necessities" test fit into this scheme? The need to apply this test only arises if a work were to contain sexually explicit material that by itself would constitute the undue exploitation of sex. The portrayal of sex must then be viewed in context to determine whether that is the dominant theme of the work as a whole. To put it another way, is undue exploitation of sex the main object of the work or is this portrayal of sex essential to a wider, artistic literary or similar purpose?"What the Supreme Court appears to be indicating in the Butler decision is that pornography at the very minimum must consist of explicit sex. Where sex is not explicit, there can be no proper finding of obscenity. It is not enough that a sexual context may be established by innuendo, suggestion or implication or other indirect means. An impugned publication where the sexual context or content is not explicit, clear and certain will not, except in very unusual circumstances, be prohibited as obscene. This observation is directly related to the case before the Court.
As stated earlier Sopinka J. at Page 18 indicated clearly that:
"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".It also must be observed that the objective of the obscenity legislation is not to suggest or enforce or prohibit a particular type of sexual behaviour or to impose a publicly acceptable standard of sexual morality. Indeed, to the contrary the Court made it clear at Page 22 that:
"to impose a certain standard of public and sexual morality, solely because it reflects the conventions of a given community it is inimical to the exercise and enjoyment of individual freedoms, which form the basis of our social contract..... the prevention of "dirt of dirt's sake" is not a legitimate objective which would justify the violation of one of the most fundamental freedoms enshrined in the Charter".According to the Butler decision to be prohibited as undue exploitation of sex a publication must predispose persons to act in an anti-social manner".
Anti-social is defined in the Butler decision as "conduct which society formally recognizes as incompatible with its proper functioning".
This standard is relevant to the case before this Court since anti-social as interpreted by the Butler decision does not mean simply dressing differently, listening to different music or associating with alternative cultural groups. All these are protected forms of freedom of expression.
What the Supreme Court has indicated is that where there is violence and explicit sex, there is a greater likelihood of being able to show that such material would predispose a person to act in an anti-social manner. The burden of demonstrating harm would rest on the prosecution. In order to determine whether explicit sex which is degrading and dehumanizing is undue, it is also necessary for the prosecution to establish as set out in R. v. Butler at Page 18 that: "the risk of harm is substantial".
Substantial means "actually existing; real; not seeming or imaginary, not illusive; solid; true; verifiable"; (Black's Law Dictionary Revised 4th Edition 1978 Page 1597). It has also been defined as "Based upon solid substratum; firmly or solidly established; not easily disturbed or damaged; of solid worth or value weighty, sound. (Oxford English Dictionary 1971).
Another aspect of harm which must be established by the prosecution is that of immediacy. As Sopinka J. stated in R. vs. Butler at Page 25:
"the determination of when such exploitation is undue is directly related to the immediacy of a risk of harm to society which is reasonably perceived as arising from its dissemination."In discussing the link between Section 163 and the objective of Parliament, Sopinka J. at Pg 26 notes that:
"accordingly the rational link between Section 163 and the objective of Parliament relates to the actual causal relationship between obscenity and the risk of harm to society at large".It now appears clear therefore, that in order to find a publication obscene, the prosecution will be obliged to adduce evidence relating to the degree of harm that is likely to flow from exposure to the material. It must show how the material is likely to predispose persons to commit anti-social conduct incompatible with the proper functioning of society and it should further show that the harm alleged would be substantial, immediate, and causal.
With reference to the internal necessities test or artistic defence R. v. Butler has now established as stated at Page 19 that:
"the portrayal of sex must be viewed in context to determine whether that is the dominant theme of the work as a whole. The court must determine whether the sexually explicit material when viewed in the context of the whole work would be tolerated by community as a whole."Prior to the Butler decision there was a division of authority as to whether the publication alleged to be obscene must be evaluated as a whole or whether a publication which was otherwise of artistic, literary or scientific expression could be prohibited if one illustration therein were adjudged to be obscene. One body of opinion was of the view that a publication need not be taken as a whole and that an obscene advertisement, for example, could condemn the entire publication as obscene. Another body of opinion held the reverse view and insisted that the publication must be evaluated as a whole.
It is the latter position which has been upheld by the Supreme Court in R. v. Butler.
While the artistic expression or internal necessities test normally applies only "if it were to contain sexually explicit material that by itself would constitute the undue exploitation of sex as set out in R. vs. Butler at Page 18 it could also be useful test even in the first instance for determining whether a prosecution ought to be commenced. Where the work in question is likely to have an artistic, literary or scientific objective, according to Butler decision, the Courts are now bound to give a liberal interpretation to freedom of expression. As Sopinka J. stated at Page 19
"artistic expression rests at the heart of freedom of expression values and any doubt in this regard must be resolved in favour of freedom of expression."
"what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure."The Court also must take into consideration the definition of pornography set out on Page 18 of R. v Butler which refers to:
It now seems clear that, except for the rarest cases or those involving children in production, that explicit sex material without violence that is neither degrading or dehumanizing will not be prohibited by law. It also seems clear that in the case of materials containing explicit sex with violence, or which is degrading or dehumanizing, that the prosecution must indicate the harm that may flow form such exposure and should also show that such harm is "substantial", that it is "directly related to the immediacy of a risk or harm" and that there is "an actual causal relationship between the obscenity and the risk of harm", causing persons to act in a anti-social manner by committing conduct which "society formally recognizes as incompatible with its proper functioning."
- Explicit sex with violence.
- Explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing.
- Explicit sex without violence that is neither degrading or he humanizing.
Measured against any of those standards, even at the most minimal level, the Court has concluded that the prosecution has failed to establish that this publication could in any way be viewed as an undue exploitation of sex.
In the first place, there is no explicit sex in any of the impugned illustrations in Head Trip Vol. 1, No. 1. It is significant that none of the experts were able to describe the drawings with any degree of accuracy or certainty. The figures were in many cases not even recognizable as human. The context is clearly not sexual context. The only aspect of the Milkbone drawing on Page 4 that could remotely be related to sexuality is the fact that there appears to be blood flowing from the genital area.
The same general observations apply to the illustration on Page Five of the two figures joined together. They are entirely devoid of explicit sex. There is no sexual contact at all. There may be some aspects of the drawing which to some may appear repulsive or offensive but that it a long way from any reasonable basis for suggesting that there is an undue exploitation of sex. There is not even exploitation of sex, far less could it be undue.
The Peenutz cartoon had to be blown out of all proportion, taken out of context, distorted, with the viewer pretending that animals are humans and cartoon characters are real persons in order to consider the suggestion that it depicted sex and violence, bestiality and child abuse as suggested by Dr. Check, the prosecution expert witness. The court finds such a conclusion entirely untenable and categorically rejects the characterization of the Peenutz cartoon made by Dr. Check. There is no evidence of explicit sex in the entire cartoon and even if there were, there is certainly no explicit sex with violence or the depiction of sex in which any person is degraded or humiliated.
It is impossible to conclude that any harm could flow to anyone from an exposure to this comic or any of the material in Head Trip Vol. 1 No. 1. The drawings impugned could not and would not predispose any person to engage in anti-social conduct which society would "formally recognize and incompatible with its proper functioning", within the meaning of the decision of R. v. Butler.
In any case it was clear at the outset that the publication Headtrip Vol. 1, No. 1 was an artistic venture. This was so from, that fact that the publication taken as a whole was clearly directed towards an audience interested in music which is an obvious art form. Indeed, the police in obtaining a copy of the publication went to a music store not an adult book store to make the purchase. That too, should have suggested that the publication was in the category of artistic expression. When in addition a perusal of the contents disclosed poetry, prose, drawings, and an editorial emphasis on the artistic expression, that should have strongly indicated to the police authorities that such a publication was likely to be protected by the Charter and not prohibited under the legislation.
If consideration had been given to the literary and artistic background and focus of the author, Mark Laliberté, it would have been clear that even if certain pages in the publications contained obscene material the defence of artistic expression or internal necessities would very likely have resolved the case in favour of freedom of expression.
For all the above reasons the Court therefore finds that the Headtrip Vol. 1 No. 1 is not obscene.
There is no explicit sex in the comic. It deals with revenge by a brother upon a sister for stepping on her brother's salt rock. The brother then inflicts pain on the sister as retribution. The material is entirely devoid of sexual content. It does not even remotely involve the undue exploitation of sex. Again there is no explicit sex in the entire cartoon and there is no explicit sex with violence or any depiction of sex in which any person is degraded or humiliated.
Again it is impossible to conclude that any harm could flow to anyone from exposure to this comic or any of the material in Headtrip Vol. 1 No. 2. The drawings would not predispose persons to act in "an anti-social manner which could involve the physical or mental mistreatment of women by men or the reverse" as contemplated by the Butler decision.
The artistic considerations referred to in discussing Headtrip Volume 1 No. 1 also apply to Headtrip Volume 1 No. 2 is not obscene.
The court has determined that the prosecution has not established beyond a reasonable doubt that Trampled Fetus was in the possession of Mark Carl Laliberté for the purpose of either sale, publication or distribution. It was simply an assortment of sketches and photographs and other items, some of which would have been used in a future publication and others which would not have been. It was not an intact publication. In light of this finding it is not necessary for the Court to consider whether the trampled fetus material is obscene.
The publications in this case were not created for a profit. There was no element of exploitation. Images that were portrayed were tame and trivial as measured against the brutality, blood and gore readily observable on television and videos that are easily accessible in this society to consumers.
The evidence fell woefully short of demonstrating any undue exploitation of sex in any of the publications that were the subject matter of criminal charges before the court and it is inconceivable that any of the material would have predisposed persons to act in an anti-social manner which is now the standard required to be met before a finding of obscenity can be made as determined by the decision of R. v. Butler.
For the foregoing reasons all of the charges against the accused are dismissed.
NOSANCHUK PROV. DIV. J.