HOME

 

APPEAL OF SEIZURE:

P.I.U. File No. 3730-2/64T-1741

 

 

Material detained on Tuesday April 10, 2001.
Material seized on Friday May 4, 2001.
Material seized by Compliance Verification Officer (CVO) # 8368.
Appeal filed on Tuesday July 31, 2001.
Appeal judgement issued on Wednesday August 22, 2001.

 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *


Reference: P.I.U. File No. 3730-2/64T-1741 (Female Market)

 

GROUNDS FOR APPEAL

 

1) In R. v. Butler [1992] 1 S.C.R. 452, the Supreme Court of Canada ruled that, under the Criminal Code, material is obscene if the exploitation of sex is "its dominant characteristic", and such exploitation is "undue" – meaning that it violates both the "[national] community standard of tolerance" test and the "internal necessities"/artistic defence one. (With regard to my insertion of the word "national" into the phrase "community standard of tolerance", to quote from Butler, "the standard to be applied is a national one" – cf. Towne Cinema Theatres Ltd. v. The Queen [1985] 1 S.C.R. 494.) The ‘national community’ is, quite simply, the majority of Canadians; hence the ‘national community standard of tolerance’ is the "standard of tolerance" of the majority of Canadians.

 

2) Statistics Canada estimates that as of July 1, 2000, the population of:

  • Canada was approximately 30 750 100;
  • Ontario was approximately 11 669 300;
  • Québec was approximately 7 372 400;
  • British Columbia was approximately 4 063 800.

Based on these estimates:

  • the population of Ontario comprises approximately 38% of that of Canada;
  • the population of Québec comprises approximately 24% of that of Canada;
  • the population of British Columbia comprises approximately 13% of that of Canada;
  • the combined populations of Ontario and Québec comprise approximately 62% of the population of Canada;
  • the combined populations of Ontario, Québec, and British Columbia comprise approximately 75% of the population of Canada.

 

3) Given that the combined populations of Ontario, Québec, and British Columbia comprise approximately 75% of the population of Canada, it is highly improbable that material that is within the "standard of tolerance" of the majority of Ontarians, Québecers, and British Columbians exceeds the "standard of tolerance" of the majority of Canadians.

 

4) The Ontario Film Review Board censors films that exceed what it perceives to be the ‘Ontario community standard of tolerance’, by either ordering cuts to be made to them, or banning them outright. Québec’s Régie du cinéma censors films that exceed what it perceives to be the ‘Québec community standard of tolerance’, by either ordering cuts to be made to them, or banning them outright. British Columbia’s Film Classification Office censors films that exceed what it perceives to be the ‘British Columbian community standard of tolerance’, by either ordering cuts to be made to them, or banning them outright.

 

5) In her concurring opinion in Towne Cinema Theatres Ltd. v. The Queen [1985] 1 S.C.R. 494, Madam Justice Bertha Wilson wrote the following with regard to provincial censor boards:

Since the business of these 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. Moreover, in this case at least, the boards' assessments disclose a remarkable degree of uniformity.

In his opinion, dissenting in part, in Little Sisters Book and Art Emporium v. Canada (Minister of Justice) [2000] 2 S.C.R. 1120, Mr. Justice Frank Iacobucci wrote the following, pertaining to such boards:

Second, I believe that Parliament should give consideration to the establishment of a specialized administrative tribunal to expeditiously review obscenity determinations made by front-line Customs officers. The animating principles in establishing such a tribunal should be independence and effectiveness. A model could be the boards that currently review and classify all films that are publicly displayed in each province. …

On the other hand, he wrote the following with regard to Tariff and Values Administrators (TVAs):

… While TVAs have more training than Customs Inspectors or Commodity Specialists, they can hardly be called experts. As Frank Lorito, a former TVA, testified, his obscenity training consisted of five to ten hours with his predecessor going over materials, and one day spent at the Prohibited Importations Directorate. Moreover, reviewing allegedly obscene material accounts for only a small percentage of a TVA's workload.

 

6) Given the above, it is unlikely that a film – let alone an entire film subcategory – that has been approved by the Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office exceeds the ‘national community standard of tolerance’.

 

7) With regard to a film that the ‘national community’ is more tolerant of than one that has been approved by the Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office, there is even less of a possibility that it exceeds the ‘national community standard of tolerance’.

 

8) Although I haven’t seen Female Market, I have little doubt that the ‘national community’ is more tolerant of this film than it is of numerous ones – and even of entire film subcategories – that have been approved by the Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office. This belief is based in part on the fact that Female Market doesn’t contain any hard-core pornographic scenes (keep in mind that a hard-core pornographic scene necessarily is more sexually explicit than a soft-core one), and it doesn’t contain any scenes in which genitalia and/or anal regions (as distinguished from buttocks) are shown. The relevance of said is that the degree of sexual explicitness is a factor in determining whether a violent, degrading, and/or dehumanizing sexually exploitative film is legally obscene. In fact, the Supreme Court of Canada ruled in R. v. Butler [1992] 1 S.C.R. 452 that the sex must, at the very least, meet the legal standard of "explicit" in this context.

 

9) Accompanying this document is an NTSC VHS videocassette that contains footage from nine feature-length "adult sex films" that have been approved by the Ontario Film Review Board (OFRB). These films, and/or films containing similar footage, have also been approved by Québec’s Régie du cinéma and British Columbia’s Film Classification Office – both of which (but especially the Régie du cinéma) judge films against more liberal ‘standards of tolerance’ than the OFRB does. (Note: These films, and/or films containing similar footage, may or may not have been approved by Alberta’s Film Classification and Arts Education, and Nova Scotia’s Maritime Film Classification Board. British Columbia’s Film Classification Office classifies and censors films on behalf of the Province of Saskatchewan. Nova Scotia’s Maritime Film Classification Board classifies and censors films on behalf of the Provinces of New Brunswick and Prince Edward Island. Manitoba’s Film Classification Board only classifies films; it does not censor them. The Province of Newfoundland does not classify or censor films, nor does it officially have another province’s film review board do this for it.) The opening and closing credits – including title and, in most cases, distributor sequences – of the films that the footage in question are from have been included with the footage. The titles of these films are also listed on "Documentation for A Tribute to Mary Brown Evidential Videocassette" (attached), which in addition provides the OFRB ‘approval sticker’ information for the films, and states, in a few words, what aspects of the footage may well be regarded by Canada Customs as exceeding the ‘national community standard of tolerance’. (Note: Only a few minutes of each film was reproduced, and this was done strictly for use in Customs appeals; hence the reproductions constitute "fair use" of copyrighted material. The films were all rented, in NTSC VHS videocassette format, at one or more Toronto videostores. I have no intention of distributing hard-core pornography in the future, other than possibly as part of Customs appeals, legal challenges to Customs seizures, and similar such proceedings.)

 

10) If, for any reason, Customs Disputes does not view the contents of the aforementioned videocassette, I hereby demand that I promptly be informed, in writing, as to what that reason is/those reasons are. If it is a policy of Customs Disputes not to consider (certain types of) visual evidence submitted by an appellant as part of his/her appeal (of a decision by the Prohibited Importations Unit to seize a videocassette), I hereby demand that I promptly be informed, in writing, as to what the reason(s) is/are for this policy.

 

11) Regardless of whether Customs Disputes views the contents of the aforementioned videocassette, it has been made aware of the specific contents of said by "Documentation for A Tribute to Mary Brown Evidential Videocassette". Given this, if it is the opinion of Customs Disputes that any of the contents of that videocassette are obscene, as defined under the Criminal Code, then I demand that it promptly contact the appropriate law enforcement agents (in Ontario) regarding my having distributed (allegedly) obscene material within Canada – an offence under s. 163 of the Code. Please note that, although I have submitted the videocassette as evidence in a Customs appeal, and have relied on the expert advice (re #5) of the relatively conservative (re #9) Ontario Film Review Board (OFRB) that it is legal to distribute the material contained thereon in Ontario (the OFRB doesn’t approve material that it considers to be obscene under the Code), this does not preclude my being prosecuted under obscenity provisions of the Code. Moreover, assuming that (some of) the contents of the videocassette are obscene, as defined under the Code, then whether my reason for submitting the videocassette constitutes a "lawful justification or excuse" for having violated obscenity provisions of the Code is a matter for the courts to determine.

 

12) If, as a result of my having sent it the aforementioned videocassette, Customs Disputes fails to promptly contact the appropriate law enforcement agents (in Ontario) regarding my having distributed (allegedly) obscene material within Canada, then should it uphold the decision by Compliance Verification Officer (CVO) #8368 to seize Female Market, or should it uphold (virtually) any future decision by a CVO to seize – on the same or similar grounds – material being sent to me, this failure will be used against it by me in court, as evidence that it itself recognizes that none of the material contained thereon is obscene, as defined under the Criminal Code. (With regard to my inclusion, in parentheses, of the word "virtually" in the preceding sentence, I would like to note that I will not knowingly import material into Canada that I believe – based on the "criteria for refusal to approve" used by the relatively conservative (re #9) Ontario Film Review Board – that the ‘national community’ is less tolerant of than it is of the footage on the aforementioned videocassette.)

 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *


Reference: P.I.U. File No. 3730-2/64T-1741 (Female Market)

 

DOCUMENTATION FOR A TRIBUTE TO MARY BROWN
EVIDENTIAL VIDEOCASSETTE

 

#01

L’homme dresse
Mile High Video
2000017854
Adult Sex Film
0000014947
20001947111-VID

  • ‘Mr. A’ performs cunnilingus on ‘Ms. A’ while wearing a ball gag w/ slave collar and leash
  • ‘Mr. A’ sodomizes ‘Ms. A’ while she’s wearing a ball gag w/ slave collar and leash
  • ‘Mr. B’ performs cunnilingus on ‘Ms. B’ while wearing a ball gag w/ slave collar and leash

 

#02

Erotica
Kaytel Video
2000016165
Adult Sex Film
0000014438
20001736193-VID

  • ‘Ms. A’, wearing a slave collar w/ leash, laps milk from a bowl
  • ‘Mr. A’ ejaculates into the aforementioned bowl; ‘Ms. A’, wearing a slave collar w/ leash, then laps the mixture of semen and milk from it
  • ‘Ms. B’ crawls on her hands and knees towards ‘Mr. B’, undressing in the process
  • ‘Mr. B’ aggressively slaps ‘Ms. B’ on her buttocks
  • ‘Mr. C’ ejaculates into the mouth of ‘Ms. C’, then puts a ball gag in her mouth

 

#03

Alice in Fetishland
Mile High Video
2000004730
Adult Sex Film
0000014947
20000825828-VID

  • ‘Ms. A’ is imprisoned in a cage against her will
  • ‘Ms. A’ watches from the cage as ‘Ms. B’ performs fellatio on ‘Mr. A’, whose visible arm is bound/restrained

 

#04

Hard Ride Bordell
Kaytel Video
2000016168
Adult Sex Film
0000014438
20001750664-VID

  • ‘Ms. A’ vaginally fists/gomorrahizes ‘Ms. B’
  • ‘Ms. A’ vaginally fists/gomorrahizes ‘Ms. C’
  • ‘Ms. B’ vaginally fists/gomorrahizes ‘Ms. C’

 

#05

Love Hurts
Jade Distribution
2000017633
Adult Sex Film
0000021370
20001906306-VID

  • ‘Ms. A’ urinates onto the floor; ‘Ms. B’ then masturbates
  • ‘Mr. A’ binds/restrains ‘Ms. C’

 

#06

Fist Anal Gyneco 2
Mile High Video
2000017855
Adult Sex Film
0000014947
20001892408-VID

  • ‘Mr. A’ vaginally fists/gomorrahizes ‘Ms. A’
  • ‘Mr. B’ vaginally fists/gomorrahizes ‘Ms. B’
  • ‘Ms. B’ anally fists/gomorrahizes herself
  • ‘Mr. B’ anally fists/gomorrahizes ‘Ms. B’
  • ‘Mr. C’ inserts a speculum into the anus/rectum of ‘Ms. B’, then expands it
  • ‘Mr. C’ inserts, via the speculum, the stem of a large sunflower into the rectum of ‘Ms. B’
  • ‘Mr. B’ inserts the speculum into the vagina of ‘Ms. B’, then expands it
  • ‘Mr. C’ vaginally fists/gomorrahizes ‘Ms. C’
  • ‘Mr. C’ inserts a speculum into the anus/rectum of ‘Ms. C’, then expands it

 

#07

(Ben Dover’s) The Booty Bandit
Valentine Video
9903986
Adult Sex Film
16467
RX-10257315-VID

  • ‘Mr. A’ sodomizes ‘Ms. A’, which clearly causes her a significant amount of pain

 

#08

Sweet Loads 4
Jade Distribution
2000771
Adult Sex Film
21370
RX-20276030-VID

  • ‘Mr. A’ sodomizes ‘Ms. A’, which clearly causes her a significant amount of pain
  • ‘Mr. A’ sodomizes ‘Ms. B’, which clearly causes her a significant amount of pain

 

#09

Lesbian Piss Party
Jade Distribution
2000012263
Adult Sex Film
0000021370
20001399769-VID

  • ‘Ms. A’ urinates into a toilet
  • ‘Ms. B’ urinates into a glass vase
  • ‘Ms. A’ urinates into a plastic bowl
  • ‘Ms. A’ and ‘Ms. C’ urinate into a plastic bowl
  • ‘Ms. D’, who’s in a floor cage, watches as ‘Ms. A’, who’s tethered to a post via a waist leash, urinates into a glass jar; ‘Ms. D’ then grabs the jar, and moves it into the cage
  • ‘Ms. E’ urinates through her bikini bottom onto a plant
  • ‘Ms. E’ urinates onto the floor
  • ‘Ms. F’ urinates into her panties, which have been pulled slightly down her legs
  • ‘Ms. G’ urinates through her panties onto the floor
  • ‘Ms. H’ urinates into a bath-tub
  • ‘Ms. I’ urinates into a glass


 

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *


TOP

 

E-MAIL

THE
GOMORRAHIZER