Canadian Customs Laws

Definition: Legislation controlling the importation of foreign goods

Significance: Literature and other works entering Canada are subject to customs approval and may be detained if they are deemed to contain treasonous, seditious, or obscene material, or hate propaganda

Canadian law regulates the importation of material that is of a questionable moral or political nature. Implementation of customs laws has given rise to a continuing legal and ethical discourse. A tariff code governs the prohibition of undesirable objects entering Canada and allows officials to detain material that is deemed to be obscene, hate propaganda, treasonous, or seditious.

When administrative policies relating to tariff code were updated in September, 1994, changes were made in an effort to establish revised guidelines for the classification of material that fell into any of the prohibited categories. It has been argued by violators of the law that such detention and prohibition infringe basic rights to freedom of expression and freedom of the press, and that they therefore effectively constitute censorship. Revenue Canada, the federal ministry governing Canada’s customs, refutes this argument, however, claiming that the code’s prohibition of certain material involves the same enforcement that applies to domestically produced works. These conflicting positions are illustrated by a case involving a bookstore in Vancouver, British Columbia The defendants claimed that review by Canada customs effectively constituted censorship and that because the books in question had to pass customs, they were scrutinized and evaluated more stringently than similar material produced in Canada would have been.

More than half of Canada’s tariff code pertains to the definition of obscene representations in any form. Approximately 40 percent is concerned with the definition of hate propaganda, and less than 10 percent is concerned with treasonous and seditious matter. During the year prior to the code’s 1994 revision, there were some eleven thousand detainment or prohibition cases concerning obscene material or hate propaganda. According to Revenue Canada, there has never been a detainment case concerning either seditious or treasonous material. Clearly, then, the greatest perceived threat to the national cultural fabric lies in the importation of material that is allegedly obscene or that promotes hate against identifiable groups. The definitions of such terms as “obscene,” “hate,” and “identifiable groups” are open to wide and contradictory interpretation, however, leading to ongoing problems in enforcement.

Definitions

The tariff code refers to the criminal code for clarity of intent, but many of the same words are used in both texts, necessitating a reversion to standard dictionary definitions. Since 1868 enforcement has been based on the British Hicklin test, which focuses on the potential “corrupting impact” of the material. Later interpretations of obscenity have rested on a judgment of “undue exploitation of sex” in works being considered. A key case in the application of this clause was the consideration of customs clearance for D. H. Lawrence’s 1928 novel Lady Chatterley’s Lover in 1962.

Other salient phrases such as “disgusting object” and “indecent show” have led to challenges of unconstitutional infringement of freedom of expression as guaranteed by a section of the Canadian Charter of Rights and Freedoms. A rigid interpretation of these phrases led customs officials, in a celebrated case, to detain and charge a Canadian returning from the United States who was wearing a button bearing the message “Fuck Iran”; all charges against him were later dismissed in court. The test applied in determining indecency is that of “the community standard of tolerance.” The relevant consideration is whether a display is inappropriate or an object disgusting according to Canadian standards, given the nature of the audience and the context in which a display takes place.

In Canadian social discourse, the developing openness concerning sex and sexuality, together with a greater sensitivity to freedom of expression, have been reflected in changing judicial opinions. Community standards, as articulated by Justice Freedman in 1964, “are not set by those of lowest taste or interest. Nor are they set exclusively by those of rigid, austere, conservative, or puritan taste and habit of mind. Something approaching a general average of community thinking and feeling has to be discovered.” Community standards obviously are not written in stone, and alterations in such standards are reflected in the influence of the women’s movement of the 1970’s, when feminist objections to various depictions of sexual activity began to have an effect on the definition of obscenity. Furthermore, the term “community standards” is itself problematic. For example, court decisions have held that the intended audience is irrelevant in determining obscenity despite the argument that certain depictions are inoffensive within the gay community.

Obscene Goods

A 1994 interpretation of the tariff code described goods—which may be in the form of books, drawings, paintings, prints, photographs, films, sound recordings, and videotapes—that are prohibited because of their obscene nature. Obscene goods are those that depict sexual acts that appear to degrade or dehumanize any of the participants, including “depictions of sex with violence, submission, coercion, ridicule, degradation, exploitation or humiliation . . . which appear to condone or otherwise endorse such behavior for the purposes of sexual stimulation or pleasure.” A greater part of the act outlines prohibited depictions of sex with violence, including rape, nonconsensual sex or sex achieved by force or deception; bondage or external control in a sexual context; the association of sexual pleasure with pain, suffering, mutilation, or the lack of basic dignity for a human being; sexual gratification gained through physical pain or humiliation, including extreme roughness and spanking; mutilation or killing in the context of sexual arousal; sexual suggestiveness with persons actually or apparently under the age of eighteen; incest; bestiality; and necrophilia.

Hate Propaganda

Goods constituting hate propaganda under the criminal code are those advocating or promoting genocide or promoting hatred against any identifiable group that may be distinguished by color, race, religion, or ethnic origin. In particular, hate propaganda includes goods that blame an identifiable group for serious economic or social problems; that allege a certain group manipulates the media, trade, finance, government or world politics to the detriment of society; that allege that a certain group is racially inferior; or that allege a certain group seriously threatens society. While attempting to assess goods under this provision, Canada customs policy advises that freedom of expression should be recognized and that works should be assessed in their entirety in the context of their overall nature, dominant characteristics, and themes. Such was the process for Salman Rushdie’s 1989 novel The Satanic Verses, which some countries deemed hate literature, but which received Canada customs approval for importation.

Emergent Issues

The evolution of certain technologies, such as broadcasting and the Internet, has effectively circumvented the protective intent of customs regulations, thereby raising several communication issues. These are illustrated by the sensational 1993 murder trial of Karla Homolka. In Canada, a total publication ban had been court-ordered, but the trial was widely reported in the U.S. press, over which the order had no jurisdiction. American reporting of that trial was not prohibited from entry into Canada under customs regulations. Although U.S.-purchased accounts of the trial were not stopped at the border, once inside Canada, they were illegal. Furthermore, while cable-carried trial information was restricted by the Canadian Radio-Television and Telecommunications Commission (CRTTC), the banned information was widely available to many Canadians via the Internet and over-the-air broadcasting from border stations, neither of which media falls under the purview of any Canadian regulatory agency.

Bibliography

Gordon Hawkins and Franklin Zimring’s Pornography in a Free Society (New York: Cambridge University Press, 1988) reviews findings of several commissions on pornography and discusses pornography’s social impact. Martin’s Annual Criminal Code 1994, annotated by Edward L. Greenspan, (Aurora, Ontario: Canada Law Books, 1993) is an annual publication that provides the texts of every act of Canada’s criminal code. Alan W. Mewett and Morris Manning’s Mewett and Manning on Criminal Law (3d ed. Toronto: Butterworths, 1994) discusses the fundamental concepts on which Canadian criminal law is based, paying special attention to constitutionally guaranteed freedoms. James R. Robertson’s Obscenity: The Decision of the Supreme Court of Canada in R. v. Butler (Ottawa: Library of Parliament, 1992) provides a concise synthesis of the underlying issues and the considerations leading to the decision in the Butler case, which became the basis for determining criminal obscenity. Freedom of Expression and The Charter (Scarborough, Ontario: Thomson Professional Publishing Canada, 1991), edited by David Schneiderman, focuses on the implications of Canada’s Charter of Rights and Freedoms.