May 1, 2021
Censor board's power to judge films quashed
Ontario review board's 'extremely broad' powers violate Charter, court decides
Ontario government is reviewing a landmark decision, released yesterday,
that struck down a requirement that all films and videos in Ontario be
submitted to the province's censor board for approval before they are
distributed and shown.
The decision, by Mr. Justice Russell Juriansz of Ontario Superior Court, said the requirement in the provincial Theatres Act for approval by the Ontario Film Review Board violates freedom-of-expression guarantees in the Charter of Rights and Freedoms.
Dalton McGuinty's government now has 30 days to decide whether to appeal the decision to the Ontario Court of Appeal or draft new regulations. Yesterday, Frank Addario, lawyer for the Ontario bookstore that successfully challenged the review board's jurisdiction, said he wants to see some version of the latter.
"I'm hoping that the Attorney-General [Michael Bryant], who is a reform-minded guy, will decide we don't need an appeal. What we need is a new system of classifications."
Mr. Addario said Ontario should consider a review regime similar to that of Manitoba, where the government hasn't had the power to censor films since 1972, just to classify them. The province relies on "subsequent prosecution" to deal with objectionable images in movies. "I don't think the behaviour of Manitobans has run amok since then," Mr. Addario said.
The Ontario imbroglio started in 2000 when a provincial government agent went into Toronto's Glad Day Bookstore and bought a gay adult film titled Descent that had been imported from the United States. The movie had not been submitted to the review board for classification -- a violation, according to the Crown, of the Theatres Act, which forbids anyone to distribute, sell or rent films without consent of the board.
Lawyers for Glad Day challenged the constitutionality of this statute in Ontario Court in the spring of 2001. The Canadian Civil Liberties Association was granted intervenor status and presented arguments in defence of Glad Day.
While the lawyers did not contest the board's right to classify films, they objected to its ability to censor films, to the fees it charged for assessing foreign (as opposed to Canadian-made) movies, and to its presumption of enforcing criminal law, which is in federal jurisdiction. The board was created in 1993.
This challenge was quashed on Jan. 21, 2002, raising the prospect that Glad Day's owner, John Scythes, would have to pay as much as $25,000 in fines and spend up to six months in jail for violating the Theatres Act. The bookstore itself faced fines of up to $100,000. On Jan. 29, Mr. Addario announced he would appeal the decision to Superior Court.
Judge Jurianz rejected two of Glad Day's three grounds for appeal. He said the $4.20 per minute the board has been charging to screen English- or French-language films made outside Canada was not discrimination in favour of Canadian films (they're charged nothing) nor an impediment to interprovincial commerce. He also rejected the argument that the censorship scheme of the Theatres Act gave the provincial review board authority over the obscenity provisions of the federal Criminal Code.
But he did accept the argument that Ontario's film review board infringes on Charter rights, criticizing the apparent arbitrariness and "extremely broad" nature of the board's powers. He noted that the criteria or guidelines by which the board judges films neither have statutory authority in the Theatres Act nor are approved or reviewed by the provincial government.
Yet these guidelines, until yesterday, could be used to force distributors to make cuts to their movies if they wanted to secure a particular rating for a film or simply to have it made available in Ontario. After the trims were made, no notice was provided to tell the public about the cuts, "and so the viewing public [could regard] the film as the product of its creators without knowledge that a government board had altered the expression intended by its creators."
At the same time, the judge noted that the board has granted exemptions from the Theatres Act to movies shown at film festivals, art galleries and libraries, arguing that the audiences at these venues are "more sophisticated" than the general public.
Judge Juriansz said the government failed to provide any evidence the "general public is any less sophisticated" than, say, people who attend the Toronto International Film Festival. It had offered "no satisfactory explanation why prior approval of films to be shown to the public at large was required" when no such scheme was required for arbitrarily defined "limited audiences."
"If pure prior restraint of films is reasonably necessary to prevent harm to society in Ontario," he said, "then one would expect that it would be reasonably necessary at film festivals, art galleries and public libraries as well."
The judge derided the
"ineffectiveness" of the "system of prior restraint"
adopted by the Ontario government and its arms-length review board. For
instance, the board's power to ban films or order cuts "is almost
always exercised in relation to adult sex videos." Indeed, of the 152
films the board refused to approve in 2000, 146, or 96 per cent, were
adult sex movies. Yet, he observed, the board doesn't review, classify or
approve videos "that an Ontario resident purchases directly from a
foreign retailer," or can download on the Internet.
Film board powers cut by ruling on censorship
Judge cites violation of Charter Case involved store on Yonge St.Judge cites Charter violation Case involved store on Yonge St.
The Ontario Film Review Board's sweeping censorship powers are unconstitutional, a judge has ruled, effectively putting the nearly 100-year-old screening body out of the business of deciding what movies people can watch.
In a long-awaited ruling on a major constitutional challenge, Mr. Justice Russell Juriansz said yesterday that a scheme requiring the board to approve films before they are distributed or shown in Ontario violates guarantees of freedom of expression under the Charter of Rights and cannot be justified.
He suspended his ruling for 12 months in order to give the government time to change the law, but legal experts say for all practical purposes, the board has lost authority to censor films or require they be screened.
"I think the board will have to respect the judgment," said criminal lawyer Frank Addario, who attacked the board's powers on behalf of his client, Toronto's Glad Day Bookshops Inc. and owner, John Scythes.
Addario's clients faced up to a year in jail and fines of up to $25,000 after being charged with distributing a film without board approval. On Aug. 16, 2000, a provincial inspector walked into the Yonge St. shop and purchased a film called Descent. The judge dismissed those charges yesterday.
The censorship scheme set out in the province's Theatres Act and its regulations subject films to a system of "prior restraint," for which the government has offered no justification, Juriansz said.
It is ineffective, secretive, bans material far beyond what would be considered obscene under the Criminal Code, and creates a double standard between films and other media, he added.
"The Ontario government has not created boards that must approve books, plays, art exhibitions, concerts or other forms of performance before the public may have access to them."
The board's censorship powers also create a double standard between films intended for the general public, which must be approved, and those shown at film festivals, art galleries and libraries, which can be exempt from review, he said.
"The government submits that these audiences are more sophisticated. Without evidence, I do not accept that the general public is any less sophisticated," Juriansz said, adding that if pre-approving films "is reasonably necessary to prevent harm to society in Ontario, then one would expect that it would be reasonably necessary at film festivals, art galleries and public libraries as well."
Generally, the public has no way of knowing if a film has been edited and the board provides no annual reports, he said, adding although it says just 3 per cent — or 550 — of the 18,452 films screened in the last five years have been banned, that's more than 100 films a year.
The system's usefulness must also be questioned because "Ontario residents who wish to view an adult sex video of which the board has disapproved may simply purchase it from a foreign distributor and have it delivered directly," Juriansz said.
Short of appealing, yesterday's ruling effectively leaves the government with two options. One is to scrap the board's censorship powers, policing films only after they're in the public domain. Such a system has been in place in Manitoba since 1972. The board could also restrict the list of images that can be censored, bringing it in line with material considered obscene under the Criminal Code.
Reached in Vancouver, board chair Bill Moody referred questions to a spokesperson for the consumer services ministry, who said the government is studying the ruling.
"We always thought there was something particularly Neanderthal about having a system of prior restraint for movies," said Alan Borovoy, general counsel to the Canadian Civil Liberties Association, which intervened in the case. "The most sensitive defence secrets can be published without approval beforehand, but where sex is concerned, you have to pre-clear it. The only conclusion you can reach is that sex is considered more dangerous to society than a breach of national security."
In 1984, the absence of censorship standards led the Ontario Court of Appeal to strike down the board's censoring powers, but the province responded with the criteria ruled unconstitutional in yesterday's Superior Court of Justice ruling.
Banned material could include depictions of people nude or partially nude in a sexually suggestive context, graphic scenes of violence or crime and, in some cases, drug use. The government argued any infringement of freedom of expression was minimal and justified in order to protect society and vulnerable groups from harm.
But the board's requirements meant even an animated children's film, Scruffy the Tugboat, must be reviewed, the court said.