* note: The deletion of subsection 6.(a)(8) below is the only change made
* to D9-1-1 since the June 12, 1991 version. This change was made
* just 11 days before the Little Sister's case went before the courts.
----------------------------------------------------------------------------
Revenue Canada - Customs, Excise, and Taxation
Communications Branch - Media and Ministerial Relations
telephone: (613) 957-3504
fax: (613) 941-9430
----------------------------------------------------------------------------
Revenue Canada
Customs, Excise & Taxation
MEMORANDUM D9-1-1
SUBJECT: Interpretive Policy and Procedure
for the Administration of Tarriff Code 9956
----------------------------------------------------------------------------
Ottawa, September 29, 1994
This Memorandum outlines and explains the interpretation of tariff code 9956
of Schedule VII to the _Customs_Tarriff_ and provides procedures to be
followed in this regard.
* Legislation *
Tariff Code 9956 reads:
"Books, printed paper, drawings, paintings, prints, photographs
or representations of any kind that
(a) are deemed to be obscene under subsection
163(8) of the Criminal Code.
(b) constitute hate propaganda within the meaning of subsection
320(8) of the Criminal Code.
(c) are of a treasonable character within the meaning of section
46 of the Criminal Code; or
(d) are of a seditious character within the meaning of sections
59 and 60 of the Criminal Code.
----------------------------------------------------------------------------
GUIDELINES AND GENERAL INFORMATION
1. This tariff code covers books, printed paper, drawings, paintings,
prints, photographs, movie film, phonograph records, videotapes, audiotapes
and representations of any kind.
2. Goods which are of a treasonable character are, for example,
goods which advocate the use of force or violence to overthrow the
Government of Canada or a province or, which communicate or make available,
without lawful authority, to an agent of a state other than Canada,
military or scientific information that may be used by that state
for a purpose prejudicial to the safety or defence of Canada.
3. Goods which are of a seditious character are, for example,
goods which advocate the use, without the authority of law, of force
as a means of accomplishing governmental change within Canada.
4. Goods which constitute hate propaganda under the Criminal Code
are those which advocate or promote genocide or promote hatred against
an identifiable group distinguished by colour, race, religion or ethnic
origin. In particular, the following goods should be prohibited as
hate propaganda:
(a) goods that advocate or promote the destruction, in whole or
in part, of any identifiable group by advocating or promoting:
(1) killing members of the group, or
(2) deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction.
5. Goods which are deemed to be obscene under the Criminal Code are
those of, 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.
6. The following goods, in so far as they are deemed to be obscene
or hate propaganda within the meanings of the terms as set forth above,
are to be classified under Tarriff Code 9956 and their importation into
Canada *prohibited*:
(a) goods which depict or describe sexual acts that appear to
degrade or dehumanize any of the participants, including:
(1) depictions or descriptions of sex with violence, submission,
coercion, ridicule, degradation, exploitation or humiliation
of any human being, whether sexually explicit or not, and
which appear to condone or otherwise endorse such behaviour
for the purposes of sexual stimulation or pleasure;
(2) depictions or descriptions of sexual assault (previously rape).
Any goods that depict or describe a sexual activity between
male/female, male/male, or female/female which appears to be
without his/her consent and which appears to be achieved
chiefly by force or deception;
(3) depictions or descriptions of bondage, involuntary servitude
and the state of human beings subjected to external control,
in a sexual context;
(4) depictions or descriptions which appear to be associating
sexual pleasure or gratification with pain and suffering, and
with the mutilation of or letting of blood from any part of
the human body, involving violence, coercion and lack of
basic dignity and respect for a human being;
(5) depictions or descriptions of sexual gratification gained
through causing physical pain or humiliation, or the getting
of sexual pleasure from dominating, mistreating or hurting
a human being. This includes depictions and descriptions of
physical force which appear to be used so as to injure,
damage or destroy; of extreme roughness of action; of unjust
or callous use of force or power; of spanking, beating or
violent shoving in a sexual context;
(6) depictions or descriptions of mutilation or removal of any
part of the human body or of the taking of human life,
real or implied, for the purpose of sexual arousal;
(7) depictions or descriptions of menstrual blood, fecal matter,
urine or the inducement of feces through enemas as part of
sexual arousal; and
[begin DELETED provision]
(8) depictions or descriptions of anal penetration, including
depictions or descriptions involving implements of all kinds;
[end DELETED provision]
(b) goods depicting or describing sexual acts involving children
or juveniles, and depictions or descriptions of children or
juveniles in total or partial undress, alone or in the presence
of other persons, and in which the context is even slightly
sexually suggestive. Children and juveniles are persons actually
or apparently under the age of 18;
(c) goods depicting or describing sexual acts between members of the
same family, other than between husband and wife. This includes
depictions or descriptions of any sexual activity among members of
the family, whether or not they are genetically related (incest),
except a husband and wife, which generally appear to condone or
otherwise endorse this behaviour for the purpose of sexual
stimulation or pleasure;
(d) goods depicting or describing sexual acts between human beings and
animals (bestiality). This includes depictions or descriptions of
bestiality, whether there is actual copulation with an animal or
the animal is merely present and copulation is implied.
(e) goods depicting or describing sexual acts between live persons
and dead persons or dead animals (necrophilia); and
(f) goods with some or all of the following characteristics may be
subject to prohibition under Tariff Code 9956 as hate propaganda:
(1) goods that blame an identifiable group for serious economic
or social problems;
(2) goods alleging that an identifiable group is manipulating
media, trade and finance, government or world politics to the
detriment of society as a whole;
(3) goods alleging that an identifiable group is racially inferior
and/or weakens other segments of society to the detriment of
society as a whole; and
(4) goods alleging that an identifiable group seriously threatens
society as a whole.
7. It should be noted that goods which may constitute hate propaganda,
based on the above criteria, should be detained and forwarded to Headquarters
for review.
8. It should be emphasized that a book, film, video cassette, etc., is
to be assessed in its entirety. It is to be considered as a whole and its
overall nature and dominant characteristics must be assessed. A section
containing subjects outlined in the Memorandum must be assessed as an integral
part of the entire work and in the context of its theme. However, goods which
in their essence are made up of many individual elements are not to be treated
as a whole and may be prohibited on the basis of any one of their elements
which fall within the prohibitory provisions of Tariff Code 9956. Similarly,
a magazine or newspaper is to be considered on a segment-by-segment basis.
9. Goods not classified under Tariff Code 9956 include the following:
(a) for the purpose of section 22(3) and 464 of the Criminal Code,
goods which counsel, procure or incite persons to commit criminal
offenses are not to be classified under Tariff Code 9956, unless
they are determined to be obscene or constitute hate propaganda
or are of a seditious or treasonable character;
(b) goods which are intended primarily to provide advice on how the
risk of AIDS or other sexually transmitted infections can be
minimized are not to be prohibited, solely by reason of their
containing incidental but necessary references to anal penetration;
(c) goods which communicate in a rational and unsensational manner
information about a sexual activity that is not unlawful and in
which the illustrations are not prurient in nature are not to be
prohibited. For example, goods which communicate in such a manner
information about anal penetration committed in private between a
husband and wife or between two consenting adults will be released;
(d) sex aids and sex toys are not to be deemed obscene and, therefore,
are not to be classified under Tariff Code 9956; goods are not to
be prohibited solely on the basis of advertisements which simply
promote the sale of various sex toys or sex aids, including
implements specified as "anal" or specific products such as
"Anal Lube". Further, advertisements which contain only a
passing reference to the word "anal" are not considered of and
by themselves, to form a valid basis for the prohibition of a
magazine. However, explicit textual descriptions or visual
depictions in the advertisements themselves of acts considered
obscene will be prohibited.
(e) pictures which merely suggest that anal penetration is being
performed are not to be prohibited. Explicit depictions or
descriptions of anal penetration are to be prohibited; and
(f) in assessing goods under Tariff Code 9956, full recognition should
be given to freedom of expression. In particular, with respect to
goods which may constitute hate propaganda, classification under
Tariff Code 9956 will not be made if there is a possibility that
the goods may:
(1) communicate statements that are established to be true;
(2) predominantly express, in good faith, an opinion upon a
religious subject;
(3) be relevant to any subject of public interest, the discussion
of which is for the public benefit and, on reasonable grounds,
believed to be true; and
(4) be intended, in good faith, to point out, for the purpose of
removal, matters producing or tending to produce feelings of
hatred towards an identifiable group in Canada.
Advance Reviews
10. For the importer or publisher who encounters difficulties in
determining whether or not his goods are in compliance with the above-noted
guidelines, the "Prohibited Importations Unit" in Ottawa reviews advance
samples of goods, prior to commercial importation, suspected of falling within
the provisions of Tariff Code 9956 and provides the importer or publisher with
an opinion regarding its admissibility into Canada. The Unit also provides
advice and guidance for those unfamiliar with Customs' guidelines and practices
concerning the administration of this Tariff Code. These services are designed
to encourage and promote voluntary compliance with legislation in this area.
Importers or publishers who wish to obtain additional information about these
procedures may contact the Manager, Prohibited Importations Unit,
Tariff Programs, in Ottawa at (613) 954-7048.
11. For the purpose of the prohibitory provisions of Tariff Code 9956,
goods which are made (manufactured, printed, purchased, etc.) in Canada and
exported are considered to constitute an importation of their return to Canada.
12. The decision to detain and classify goods under Tariff Code 9956 is
to be communicated to the prospective importer or owner by means of a
"Notice of Detention/Determination", form K27. The prospective importer or
owner is also to be advised in writing of his/her statutory right to request
a re-determination and to appeal to the courts the tariff classification of
the goods under sections 60, 63, 67 and 71 of the Customs Act.
13. A request for re-determination or re-appraisal by a "Tariff and Values
Administrator" (TVA) (who is a designated officer) must be made on form B2
and filed with 90 days of the date of the written notice of classification
(Part B of the Tariff Code 9956 form K27) to the prospective consignee.
If the prospective consignee is not satisfied with the TVA's decision, he/she
may request a further re-determination or re-appraisal by the Deputy Minister
of National Revenue, Customs, Excise and Taxation, by filing a second form B2
withing 90 days of the date of the TVA's decision. It should be noted that
the Minister may, under paragraphs 60(1)(b) and 63(1)(b), extend the 90 days
time period to two years where he deems it advisable. It these instances,
the goods would have to be stored in a secure environment for the two year
period. Given the nature of the goods and the administrative problems in
ensuring their security, only under exceptional circumstances will the
importer be given the right to file a request withing the two year time period.
14. Requests should be filed at the respective Customs office or regional
office where the goods were reported.
15. The decision of the Deputy Minister classifying goods under
Tariff Code 9956 may be appealed to the relevant court pursuant to
section 67 (as modified by section 71) of the Customs Act.
16. When an importer attempts to import into Canada goods identical to
those previously imported and prohibited at the Deputy Minister level,
a decision pursuant to subsection 64(a) of the Customs Act may be rendered,
thereby allowing the importer to appeal directly to the court.
17. When importation of goods into Canada is prohibited, the importer is
to be asked how they are to be disposed of (either exported or abandoned
to the Crown).
18. Abandoned goods are to be handled as follows: A general receipt,
form K21, will be completed; the original copy will be signed and given to
the importer, which will include: the name and address of the importer and a
statement to the effect that the goods described thereunder are classified
under the prohibitory provisions of Tariff Code 9956 and are herewith
abandoned to the Crown.
19. Goods may be exported by means other than through the mails (since
mailing obscene matter constitutes an offence), providing this is done under
Customs supervision and at the importer's expense.
20. The importer must notify Customs of arrangements for export of goods.
If exportation is:
(a) to be handled personally, the importer must present form E15
completed in accordance with Memorandum D6-2-3, "Identification
of Goods Exported or Destroyed", Form E15, and be escorted by
Customs to the airline baggage check-in or departure area, or
(b) by commercial conveyance (i.e, a Canada Customs bonded carrier),
the exporting carrier must physically retrieve the goods and
present completed form E15 and the manifest or waybill.
21. Should the importer fail to effect release, or fail to abandon or to
export his/her goods within the prescribed period, the goods are to be deemed
to be unclaimed and are to be handled in accordance with Memorandum D4-1-6,
"Disposal of Abandoned and Forfeited Goods".
22. Further particulars may be obtained by contacting the Manager of
Tariff Programs and Appraisal at any regional Customs office.
----------------------------------------------------------------------------
REFERENCES
Issuing Office -
Tariff Programs
Legislatve References -
Customs Tariff, section 114 and Schedule VII, tariff code 9956
Customs Act, sections 60, 63, 64(a), 67, and 71
Criminial Code, sections 22(3), 46, 59, 60, 163(8), 320(8), and 464.
Headquarters File -
4545-1
Superseded Memoranda "D" -
D9-1-1, June 12, 1991
Other References -
D4-1-6, D6-2-3