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APPEAL OF SEIZURE:

P.I.U. File No. 3730-2/64T-2980

 

 

Material detained on Monday April 7, 2003.
Material seized on Monday April 14, 2003.
Material seized by Compliance Verification Officer (CVO) # 19336.
Appeal filed on Monday July 7, 2003.
Appeal judgement issued on Wednesday August 6, 2003.

 

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Reference: P.I.U. File No. 3730-2/64T-2980 (Red Hot Wife)
Reference: P.I.U. File No. 3730-2/64T-2980 (The Fist & L’école du fist)

 

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." The national community is the "arbiter in determining what amounts to an undue exploitation of sex.") 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 January 1, 2003, the population of:

  • Canada was approximately 31 499 560;
  • Ontario was approximately 12 109 514;
  • Québec was approximately 7 467 626;
  • British Columbia was approximately 4 155 779.

 

3) Based on the preceding 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.

 

4) 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.

 

5) The Ontario Film Review Board censors motion pictures 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 motion pictures 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 motion pictures that exceed what it perceives to be the ‘British Columbia community standard of tolerance’, by either ordering cuts to be made to them, or banning them outright.

 

6) 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.

 

7) 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 provincial censor 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.

 

8) Given the above, it is unlikely that a motion picture – let alone an entire motion picture 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.

 

9) The Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office generally approve motion pictures that contain scenes which explicitly depict one or more consenting adults engaging in an act commonly referred to as "vaginal fisting". Vaginal fisting entails the insertion of a hand into a female’s introitus (vaginal orifice)/vagina, for the purpose of sexual stimulation/gratification. The hand must be inserted past its bridge, and at least the tip of its thumb must be inserted (the ‘rule of thumb’) – true fisting requires a hand with a thumb. (Naturally, two identical insertions for identical purposes either both constitute fisting, or neither do.)

 

10) The Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office generally approve motion pictures that contain scenes which explicitly depict one or more consenting adults engaging in an act sometimes referred to as "vaginal footing". (As one might expect, it is also sometimes punningly referred to as "pussyfooting".) Vaginal footing entails the insertion of a foot into a female’s introitus (vaginal orifice)/vagina, for the purpose of sexual stimulation/gratification.

 

11) The Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office don’t classify the insertion of a hand into a male or female’s anus/anal canal, for the purpose of sexual stimulation/gratification, as being a form of degradation/dehumanization. Although they no longer generally approve motion pictures that contain scenes which explicitly depict one or more consenting adults engaging in this act – which is commonly referred to as "anal fisting" – their stated reason for not doing so is that such depictions may predispose viewers to engage in potentially medically harmful sexual acts. (It should be noted that the de facto provincial obscenity laws which these boards censor motion pictures under are wider in scope than s. 163 of the Code; hence their refusal to approve a motion picture or motion picture subcategory doesn’t necessarily constitute evidence that it is obscene under s. 163. Moreover, these boards’ censorship powers are no more constrained by s. 2(b) of the Canadian Charter of Rights and Freedoms than they are by s. 91(27) of the Constitution Act, 1867.) The Prohibited Importations Unit (P.I.U.) rightly doesn’t seize material for explicitly depicting/describing such acts – which include such high-risk ones as "unprotected" (i.e., condomless) penile-anal sex with a stranger – as it is highly doubtful that they are amongst the "anti-social" ones whose public explicit depiction/description the Supreme Court held, in Butler, are prescribed under s. 163. (It should also be noted that, given that the aforementioned boards don’t censor explicit depictions of such high-risk sexual acts as unprotected penile-anal sex with a stranger, their stated reason for censoring explicit depictions of anal fisting appears to be a pretext. With regard to Québec’s Régie du cinéma, this is notwithstanding its unjustified limitation of its censorship of explicit depictions of potentially medically harmful sexual acts to such acts that it deems constitute an intentional or unintentional "atteinte à l'intégrité physique". With regard to British Columbia’s Film Classification Office, under its so-called definition of "violence" it can censor the explicit depiction of any sexual act that has the "potential for harm" – regardless of whether the harm that may occur is intended or unintended.)

 

12) The Ontario Film Review Board approved the version of Red Hot Wife in question. Its certificate number is 2000007150.

 

13) [deleted]

 

14) The Ontario Film Review Board approved the version of The Fist in question. Its certificate number is 2000000576.

 

15) Québec’s Régie du cinéma approved a longer version of The Fist. Its film number is 154159; its certificate number is 818996.

 

16) The Ontario Film Review Board approved the version of L’école du fist in question. Its certificate number is 2000019246.

 

17) Québec’s Régie du cinéma approved the version of L’école du fist in question. Its film number is 176330; its certificate number is 855803.

 

18) I don’t know whether any of the three motion pictures in question were submitted to British Columbia’s Film Classification Office; it apparently doesn’t provide free long-distance access to such information.

 

19) I don’t know whether any of the three motion pictures in question were submitted to Alberta’s Film Classification and Arts Education; it apparently doesn’t provide free long-distance access to such information.

 

20) Nova Scotia’s Maritime Film Classification Board approved versions of The Fist and L’école du fist; however, the running times of these versions aren’t specified on its official website (http://www.gov.ns.ca/aga/filmclassification.asp). Red Hot Wife apparently has never been submitted to the Board.

 

21) Alberta’s Film Classification and Arts Education classifies and censors motion pictures on behalf of the Northwest Territories and Nunavut.

 

22) British Columbia’s Film Classification Office classifies and censors motion pictures on behalf of Saskatchewan and the Yukon.

 

23) Nova Scotia’s Maritime Film Classification Board classifies and censors motion pictures on behalf of New Brunswick and Prince Edward Island.

 

24) The Manitoba Film Classification Board classifies motion pictures; it doesn’t censor them.

 

25) Newfoundland doesn’t classify or censor motion pictures, nor does it officially have another province’s motion picture classification/censor board do this for it.

 

26) [deleted]

 

27) [deleted]

 

28) [deleted]

 

29) [deleted]

 

30) [deleted]

 

31) [deleted]

 

32) The P.I.U. alleges that pornographic material which explicitly depicts one or more consenting adults engaging in gomorrahy violates the national community standard of tolerance. According to the P.I.U., how little tolerance must the national community have for a given type of pornographic material in order for that material to be "intolerable" to it? (How high/low the national community’s threshold of tolerance is determines what combinations of perceived probability and degree of "harm" exceed it.)

 

33) According to the P.I.U., what combinations of perceived probability and degree of "harm" are "intolerable" to the national community? (Again, this is determined by how high/low the national community’s threshold of tolerance is.)

 

34) The P.I.U. alleges (see, for example, Form K27) that gomorrahy constitutes "sex with degradation". Is the P.I.U. thereby necessarily alleging that the national community believes this, or does it hold that, insofar as it believes a sexual act to be degrading but the national community doesn’t, its opinion takes precedence? If the latter, does the P.I.U. believe gomorrahy to be degrading? If so, how is gomorrahy degrading, according to it?

 

35) The P.I.U. alleges that pornographic material which explicitly depicts one or more consenting adults engaging in gomorrahy violates the national community standard of tolerance; however, it doesn’t make the same allegation regarding pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a phallic dildo that has/phallic dildos that together have a circumference greater than that of the average adult human:

  • hand at its widest point;
  • foot at its widest point;
  • wrist; or
  • ankle.

Approximately what percentage of Canadians does the P.I.U. believe the latter material is "tolerable" to, but the former material is "intolerable" to?

 

36) If, with regard to pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a phallic dildo that has/phallic dildos that together have a circumference greater than that of the average adult human wrist, the P.I.U. now alleges that it violates the national community standard of tolerance, then according to the P.I.U., in order for pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a phallic dildo/phallic dildos not to violate the national community standard of tolerance, how small must the (combined) circumference of the dildo/dildos be?

 

37) The P.I.U. alleges that pornographic material which explicitly depicts one or more consenting adults engaging in gomorrahy violates the national community standard of tolerance; however, it doesn’t make the same allegation regarding pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a dildo that is the size and shape of the average adult human hand or foot. Approximately what percentage of Canadians does the P.I.U. believe the latter material is "tolerable" to, but the former material is "intolerable" to?

 

38) If, with regard to pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a dildo that is the size and shape of the average adult human hand or foot, the P.I.U. now alleges that it violates the national community standard of tolerance, what of pornographic material which explicitly depicts one or more consenting adults being vaginally or anally penetrated by a dildo that is shape of the average adult human hand or foot, but is half the size of said?

 

39) Accompanying this document are three evidential NTSC VHS videocassettes. These videocassettes contain motion pictures which were reproduced strictly for use in my P.I.U. File No. 3730-2/64T-2980 appeal. Given the purpose of the reproductions, they constitute "fair use" of copyrighted material. I would like to make clear that 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, or similar such proceedings.

 

40) The first evidential videocassette contains the motion pictures The Fist and Candy Apples: Busted at 742. The second evidential videocassette contains the motion pictures L’école du fist and Amputee Gomorrahy. The third evidential videocassette contains the motion pictures Perverted Stories 30 and On the Rag.

 

41) The version of The Fist contained on the first evidential videocassette was approved by the Ontario Film Review Board; its certificate number – as noted in s. 14 of this document – is 2000000576. (The band number of the source copy is 20003289352.) It constitutes evidence that the seized version of The Fist is the same one that was approved by the Board.

 

42) The version of Candy Apples: Busted at 742 contained on the first evidential videocassette was approved by the Ontario Film Review Board; its certificate number is 0002000660. It has been included on the videocassette in order to graphically pose the following question with regard to pornographic motion pictures that explicitly depict gomorrahy: Are they really "intolerable" to the national community, given that pornographic motion pictures that explicitly depict "gang-bangs" (i.e., large groups having sex with individuals) aren’t?

 

43) The version of L’école du fist contained on the second evidential videocassette was approved by the Ontario Film Review Board; its certificate number – as noted in s. 16 of this document – is 2000019246. (The band number of the source copy is 20002028018.) It constitutes evidence that the seized version of L’école du fist is the same one that was approved by the Board.

 

44) Although, to the best of my knowledge, Amputee Gomorrahy has never been submitted to the Ontario Film Review Board, it has been included on the second evidential videocassette so that for discussion of (explicit depictions of) vaginal or anal stumping, there is a common visual reference.

 

45) The version of Perverted Stories 30 contained on the third evidential videocassette was approved by the Ontario Film Review Board; its certificate number is 2000018942. It was deemed admissible into Canada by the P.I.U. on Monday April 14, 2003; hence it constitutes evidence of claims made by me against the P.I.U. in ss. 35 and 37 of this document. It has also been included on the videocassette in order to graphically pose the following question with regard to pornographic motion pictures that explicitly depict gomorrahy: Are they really "intolerable" to the national community, given that pornographic motion pictures that explicitly depict vaginal or anal penetration by large-circumference dildos – most notably, ones that are the size and shape of the average adult human hand or foot – aren’t?

 

46) The version of On the Rag contained on the third evidential videocassette was approved by the Ontario Film Review Board; its certificate number is 2000007106. It was deemed admissible into Canada by the P.I.U. on Monday April 14, 2003. It has been included on the videocassette in order to graphically pose the following question with regard to pornographic motion pictures that explicitly depict gomorrahy: Are they really "intolerable" to the national community, given that pornographic motion pictures that explicitly depict women menstruating, urinating, and engaging in sexual acts with fruits/vegetables aren’t?

 

47) If, for any reason, Customs Disputes doesn’t view the contents of the evidential videocassettes, I 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 (videocassette) seizure by the P.I.U., I demand that I promptly be informed, in writing, as to what the reason(s) is/are for this policy.

 

48) Regardless of whether Customs Disputes views the contents of the evidential videocassettes, it is already aware of the fact that The Fist and L’école du fist are pornographic motion pictures which contain explicit depictions of gomorrahy. Given this, if it is the opinion of Customs Disputes that such motion pictures are obscene, as defined under the Code, I demand that it promptly contact the appropriate law enforcement agency (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 videocassettes as evidence in a Customs appeal; and
  • in the cases of Perverted Stories 30 and On the Rag, relied on both the expert advice of the Ontario Film Review Board, and the non-expert advice of the P.I.U., that these motion pictures aren’t obscene under the Code (the Board doesn’t approve material, and the P.I.U. doesn’t admit material into Canada, that they consider to be such); and
  • in the case of Candy Apples: Busted at 742, relied on the expert advice of the Ontario Film Review Board that this motion picture isn’t obscene under the Code; and
  • in the cases of The Fist, L’école du fist, and Amputee Gomorrahy, relied on the opinion of the majority in Butler 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", together with the expert advice of the Ontario Film Review Board, Québec’s Régie du cinéma, and British Columbia’s Film Classification Office that explicit depictions of gomorrahy aren’t degrading/dehumanizing;

this doesn’t preclude my being prosecuted under obscenity provisions of the Code. Moreover, assuming that (some of) the contents of one or more of the videocassettes are obscene, as defined under the Code, then whether my reason for submitting the videocassettes constitutes a "lawful justification or excuse" for having violated obscenity provisions of the Code is a matter for the courts to determine.

 

49) If, as a result of my having sent it the evidential videocassettes, Customs Disputes fails to promptly contact the appropriate law enforcement agency (in Ontario) regarding my having distributed (allegedly) obscene material within Canada, then should it uphold (in part or in whole) the P.I.U.’s decision to seize Red Hot Wife and The Fist & L’école du fist, or should it uphold (virtually) any future decision by the P.I.U. to seize pornographic material being sent to me because the material contains explicit depictions/descriptions of gomorrahy, this failure will be used against it by me in court, as evidence that it itself recognizes that such depictions/descriptions aren’t obscene, as defined under the Code.

 

50) At the end of this document are four appendices. The first appendix is a copy of two of the pages of the Form K27 for P.I.U. File No. 3730-2/64T-2980. The second appendix is a copy of the most recent edition of the Ontario Film Review Board’s Detailed Adult Sex Guidelines (four pages). The third appendix is a copy of the most recent edition of the (Québec) Régie du cinéma’s Motifs de refus de classement des films dits de sexploitation à la Régie du Cinéma du Québec (seven pages). The fourth appendix is a copy of the most recent edition of the (British Columbia) Film Classification Office’s Adult Video Editor’s Guide (nine pages).


 

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