CHAPTER 3: THE FORGING OF PUBLIC POLICY AND DEVELOPING SOCIAL
3.3 Canadian Perspective
3.3.2 The Influence of Sadomasochistic Material in Canada
77 not acted in a manner of a recognised social purpose,389 or practice, to the policy considerations of the public.
Public policy’s applicability in Welch did not attempt to add consensual sadomasochism that brought actual bodily harm into an exemption category and the court noted that:
‘Although the law must recognize individual freedom and autonomy, when the activity in question involves pursuing sexual gratification by deliberately inflicting pain upon another that gives rise to bodily harm, then the personal interest of the individuals involved must yield to the more compelling societal interests which are challenged by such behaviour.390’
Welch itself instils state paternalism over individual autonomy by promoting that public interest wishes to preserve social order, preventing the spread of violence and injury and forming compelling viewpoints of the public peace.391 The perspective of violence inflicted for sexual gratification was considered as a moral harm within the Canadian public; affecting the sanctity of the human body and sufficient for the Ontario court to utilise public policy as a sledgehammer in eradicating the defence of consent to actual bodily harm from the practice.392 Therefore, the common law authorities and the statutory powers did not permit sadomasochism to elude the reach of the considerations of public policy and sought to eradicate sadistic behaviour within Canada, especially when tied to sexual activity.
78 The facts of the case and the methodology employed by the court in approaching the legal issues are noteworthy, bringing into the fold of legal inquiry the prevalence of the porn industry within Canada, delivering videos that involve sadomasochism and other atypical sexual practices into the public sphere. The fibres of fact emanating from Price questions whether the established ideals of public policy in preventing against moral harm,394 administered from the sexual violence between adults in Canada, still existed as a viable point of entry for a court to effect a prosecution under section 169 of the Criminal Code.395
Mr Randy Price had owned a pornographic studio called ‘Sweet Productions’ that created,396 distributed and circulated a number of pornographic films (referred to as the ‘Eleven Videos’) within the public sphere;397 depicting actors engaging in bondage and discipline, dominance and submission, sadism and masochistic activities.398 Such was alleged by the prosecution as falling into the realm of the obscene material, capable of corrupting the morals of the public399. Once again, the stressing of sadomasochistic practices as being a facilitator of the corruption and impairment of the public’s morals unravels before a Canadian court. Section 163(8) of the Canadian Criminal Code dictates:
‘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.400’
The statute explicitly reflects the perception of the Canadian legislature in outlawing the publication of sexual content within the public sphere depicting, inter alia, violence and cruelty; which ultimately forms the subsistence of a sadomasochistic relationship. However, the Criminal Code was enacted before the advent of the Internet’s boom and the widespread pornographic material from this medium. 401 The court noted that up to seventy-three percent (73%) of Canadians at the time of the Sweet Productions case had access to the internet, a vast number of the populous itself ;402 and that an estimate of at least seventy (70) Internet sites existed which depicted BDSM and sadomasochistic content at that time.403 The court also noted
394 See R v Welch (1995) 25 OR (3d) 665.
395 Section 169 of the Criminal Code of Canada, R.S.C. 1985 C. 46.
396 Regina v Price 2004 BCPC 0103 at para 1.
397 Ibid at para 19.
398 Ibid at para. 4.
399 Section 163(1)(a) of the Criminal Code of Canada, R.S.C. 1985 C. 46.
400 Section 163(8).
401 Ibid.
402 Regina v Price 2004 BCPC 0103 at para 15.
403 Ibid at para 21.
79 that the available websites, that publicised such depictions, portrayed imagery and content that included ‘more extreme’ forms of sadomasochism.404 These submissions by the court, even if bound by the appropriate sections of the Criminal Code,405 illustrate that the exposure of BDSM and sadomasochistic activities had already infiltrated the Canadian public sphere and had grown exponentially by the boom of the Internet-age.
The court was also alive to the growing prevalence of BDSM and sadomasochistic influences within the entertainment industry, as numerous films depicted extreme sexual violence and sexual abuse between adults.406 The current age of societal expansion had brought the advent of BDSM centres within the Canadian public, where individuals could pay to observe or to partake in the consensual sexual activity.407 In a period of fewer than ten years since the judgment in Welch was passed, the court in Price appeared to be synthesised to the developing social recognition within the public sphere to sadomasochism and related activities. Thus, the considerations of public policy in determining whether the ‘Eleven Videos’ constituted obscene material that is capable of prosecution was considered by a string of expert testimonies from variant individuals linked to the legally ambivalent practice.
The experts called upon by the court included police officers, medical practitioners and sadomasochists. Their prior exposure to the practices of BDSM and sadomasochism proved paramount in assessing the nature of the ‘Eleven Videos’ and whether the depictions had deviated from the general norm of accepted sadomasochistic behaviour.408 Expert witness Dr Moser submitted that the depictions had not deviated from normal human sexual behaviour,409 and fell within the general normative values of the BDSM and sadomasochism community (‘The Kink Community’). The court, by effectively allowing an inquest of relevant fact and assessments by experts, arrived at a summit of clarity by submitting that sadomasochism and BDSM were not obscure practices within the current Canadian public.410
The tipping scale of societal assimilation with the practices of sadomasochism and BDSM came from the testimony of Mr McDonald, a retired police officer of the Vancouver Police Department who had endured skirmishes with such activities during his tenure in law
404 Ibid at para 22.
405 Criminal Code of Canada, R.S.C. 1985 C. 46.
406 Regina v Price 2004 BCPC 0103 at para 27.
407 Ibid at para 28.
408 See paras 29-39.
409 Ibid at para 35.
410 Ibid at para 36.
80 enforcement.411 The practice of inflicting violence unto a consenting partner for sexual gratification had evolved within public policy itself and entered the echelons of social acceptance to Mr McDonald.412 This contradicts the stance of the Canadian court in Welch where it was viewed that sadomasochism, and related activities, caused a moral harm to the public as such had not found a footing within the societal sphere.
As noted earlier, dictates of the doctrine of public policy would not desire harm to be administered between individuals for ‘no good reasons’, or endorse a practice that carries no
‘social utility’. The ‘Sweet Productions’ case revolutionises this perspective by broadening the test of what the current public policy tenants should permit within the ever-growing societal sphere of adult interaction.
The alleged sexual obscenity of the ‘Eleven Videos’ was juxtaposed to the tests created under existing Canadian law in determining a footing of such material’s tolerance within public policy of Canada.413 The case of R v Butler confirmed the Canadian parliament’s reach by criminalising both the distribution and sale of obscene material, in line with section 163 of the Criminal Code.414 Butler further entrenched the considerations of public policy to safeguard the morals of the Canadian public at large by limiting the individual autonomy of a group that threatens a moral harm through such obscene publication. The court in Price tactfully made mention to Butler in that alleged obscene material must not only involve a dominant sexual characteristic, but such must be an ‘undue’ exploitation of the sexual depiction itself to be classified as obscene.415 The Canadian approach of determining whether a publication of sexual obscenity satisfies the ‘undue’ characteristic and sufficient to cause harm to the public are:
(1) the Community Standard of Tolerance test;
(2) the Degradation or Dehumanization test;
(3) the Internal Necessities test.416
The community standard of tolerance test proved to be the litmus test of inspection to assess the Eleven Videos. Such attempts to determine what the Canadian public wishes exclusively to the community as a whole, not a minority group. Based on the standards held in Welch, the
411 Ibid at para 29.
412 Ibid at para 37.
413 R v Butler [1992] 1 S.C.R. 452.
414 Ibid.
415 Butler as cited in Regina v Price 2004 BCPC 0103 at para 74.
416 Ibid at para 75.
81 Canadian community has evolved and developed in line with BDSM centres of intrigue and the vast array of internet sites. This proves that the community exists in a contemporary perspective
The court, in attempting to prove beyond a reasonable doubt that the ‘Eleven Videos’
constituted obscene material, sought to ascertain whether the current Canadian public would see the videos as obscene, thus failing the Community Standard of Tolerance test. To the court, expert opinion solidified that the ‘Eleven Videos’ constituted normal sexual behaviour, and in tune with the general modus operandi of a normal sadomasochistic relationship and its variant practices.417 The exposure of the Canadian community to the surge of BDSM centres available to adults and the promotion of such similar content in fictional portrayals inhabited multiple facets of society and proved to be yet another factor that eased public policy considerations toward a tolerance of the extreme and graphic sexual content of the ‘Eleven Videos’.418 The court stressed that the prevalence of the porn industry, along with fictional films depicting adult sexual interactions that existed at a greater extremity than the ‘Eleven Videos’, were sufficient in illustrating that such content had reasonably impregnated the social demographics of the Canadian public at large based on the ease of the material’s accessibility.419
The Provisional Court of British Columbia could not hold the ‘Eleven Videos’ as obscene material, as it was the current public policy of the Canadian society that had embedded similar behaviour in a measure of tolerance within its growing ambit. The nature of the harm that existed within the ‘Eleven Videos’, to the public at large, was not incompatible with the current standards of tolerance within the Canadian social demographic. The court noted that such was condoned based on the avalanche of the community-assessment factors. However, where extreme sexual conduct and violence are portrayed together, contradicting the tests created to assess societal tolerance and other state-protected rights, such material must be deemed immediately harmful to the public. Therefore, from the established tests, any material that depicts sexual practices as being degrading and dehumanising, shall fail the societal tolerance perspective test.
The Price case, as judicially exploratory and substantive for Canadian jurisprudence regarding the applicability of public policy to sadomasochism, did not promise the dissipation of all criminal charges over future sadomasochistic cases where actual, or serious, bodily harm
417 Ibid at para 91.
418 Ibid at para 99.
419 Ibid at para 95.
82 occurs within Canada. The case is, as it should be remembered, a resoundingly positive application of the ever-changing societal norms to a generally scrutinised form of sexual expression.