NEW CODE HARD TO INTERPRET

‘l can't define obscenity,
but know it when | see it’

HE FEDERAL GOVERNMENT proposes

to make extensive amendments to

the

Criminal Code and most people would think
that at least one of the goals would be to clarify the
law, and not to make it more obscure and more dif-
ficult for the courts to interpret. The proposed new
definition of obscenity is an example.

One of the most difficult
sections of the Criminal Code
to interpret has been the sec-
uuon on obscenity, and the
reason for that is that people
and judges cannot agree on a
common defininon. Here 1s
the current definition of
obscenity in the Criminal
Code:

“For the purposes of this
Act any publication, a domt-
nant characteristic of which
is the undue exploitation of
sex, or of sex and any one or
more of the following sub-
sects, namely, crime, horror,
cruelty and violence, shall be
deemed to be obscene._"’

The problem 1s illustrated
by two cases involying
Playboy Magazine. In ay
of 1962 Playboy was found
to be obscene under this
definituon. In 1968 Playboy
was acquitted under the same
defintuon, even though the
girls in the °68 magazine were
more exposed than the one in
the °62 version.

The courts have been
struggling with this definition
for vears and, although cases

Pan ja ”

By The Law Society of
British Columbia

have gone in all directions, at
least those cases have produc-
ed examples as to what is
obscenity, and what is not.

The new proposed defini-
tion will make this problem
much worse. Here is how it
reads:

“For the purposes of this
Act any matter or thing ts
obscene where a dominant
characteristic of the matter or
thing is the undue exploita-
tion of anv one or more of
the following subjects name-
ly, sex, violence, crime, hor-
ror or cruelty, through
degrading representations of
a male or female person or in
any Other manner."’

There are two significant
changes in the new
definition

One ts that tor a matter to
be obscene, sex need not be
linked with the violence or
horror as 1s required by the
present definition So, if a
judge finds a movie” or
magazine to unduly exploit

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horror or violence alone, he
can declare it obscene.

By that standard, he could
probably convict the evening
news on any station, let alone
horror movies such as The

Godfather.
What concerns many
lawyers is that this new,

broad definition of obscenity
will be impossible to interpret
and apply and, without
clearer guidelines, it will be
years before the courts will be
able to make any sense out of
the section.

The second problem relates
to the phrase, ‘‘through
degrading representations of
a male or female person.’’
How are the courts to inter-
pret the word ‘‘degrading’’?
The Oxford dictionary
defines degrading as ‘‘bring-

ing mto
contempt.”’

The result is that if a movie
Or Magazine has a pre-
dominant characteristic of
horror or cruelty, which br-
ings into dishonour or con-
tempt a male or female per-
son, it 1s obscene. Documen-
taries about the Second
World War and the holocaust
would fall within the
definition.

A famous old American
yudge once said, ‘“‘I can’t
define obscenity, but | sure
know it when | see it.”’

Could anyone say that with
confidence, if the new defin-
ution of obscenity passes?

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A9 - Wednesday, April 11, 1984 - North Shore News

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