Nova Scotia Board of Censors v. McNeil
"Nova Scotia Board of Censors v. McNeil" is a significant legal case centered on the intersection of censorship, morality, and freedom of expression in Canada. The case arose when the Nova Scotia Board of Censors banned the film "Last Tango in Paris" due to content deemed immoral, leading Gerald McNeil to challenge the censorship in court. The Supreme Court of Nova Scotia supported McNeil's stance, finding that certain provisions of the province's Theatres and Amusement Act of 1967 overstepped the legislative authority granted to provincial governments, particularly in relation to the exclusive powers of the Canadian Parliament outlined in the British North America Act of 1867.
The Supreme Court of Canada further clarified the distinction between morality and criminality, asserting that the Nova Scotia statutes regulating film exhibition did not equate to criminal law. While the court upheld some of McNeil's objections, stating that parts of the law concerning indecency were indeed beyond provincial jurisdiction, it also maintained that other provisions of the act were valid business regulations. This case highlights the ongoing debate regarding artistic expression versus societal standards of morality, as well as the complexities of legislative authority in Canada.
Nova Scotia Board of Censors v. McNeil
Court: Supreme Court of Canada
Decided: January 19, 1978
Significance: This ruling held that a province could regulate the showing of films within its boundaries, but could not prescribe criminal punishments for showing films that it defines as indecent
After Nova Scotia’s Board of Censors prevented the showing of the film Last Tango in Paris (1972) because it contained—among other things—a scene depicting sodomy, Gerald McNeil objected by filing a lawsuit. The province’s supreme court, upon reviewing his objections, agreed with him and ruled that two elements of that province’s statutes under its Theatres and Amusement Act of 1967 exceeded the powers of a provincial legislature. The court specifically objected to provisions in the Nova Scotia act that denied, on moral grounds, citizens the right to exercise freedom of choosing which films they viewed. This denial was not within the purview of the legislature of Nova Scotia, the court asserted, because it violated a section of the British North America Act of 1867, which gave the Canadian Parliament exclusive power over criminal matters.
The Supreme Court of Canada, however, ruled that “morality and criminality are not coextensive.” The Court said the Nova Scotia statutory provisions regulating—sometimes on purely moral grounds—the exhibition, sale, and exchange of films can be distinguished from criminal codes in two ways. First, the statutes merely regulate a business or trade and do not define a crime. Secondly, the regulations are only preventive whereas criminal laws are penal or punitive.
Another of McNeil’s objections was, however, upheld. Those provincial statutory provisions attempting to define indecency were, according to the Court, effectively identical to the Canadian criminal code provisions on indecency. Consequently, the Court ruled those provisions of Nova Scotia’s law as beyond the powers of a provincial legislature.
McNeil also argued that Nova Scotia’s laws denied fundamental Canadian freedoms, including those of association, assembly, speech, the press, conscience, and religion. Here the Court admitted that because no limitations on the Board of Censors was spelled out in the Theatres and Amusement Act of 1967, it was theoretically possible that the board has been granted broad powers to trample on fundamental Canadian rights. Nevertheless, to place such an extreme construction on the act required impugning the valid intent of the legislators, said the Court. Such an attack, in its view, could be grounded only in pure speculation, not a sufficient basis for overruling an 1878 ruling that all legislation—including provincial statutes—was to be presumed valid unless proven otherwise.
Although the high court ruled the Nova Scotia law’s “indecency” provisions invalid, it said the rest of the 1967 act lay within the powers of the provincial legislature and were therefore a valid regulation of a business.