'A Complex Piece of Writing'

• Author: Michael Plaxton
• Pages: 267-308

[ 267 ]

cha pter 7

“A COMPLEX PIECE OF

WRITING”

A. INTRODUCTION

In Chapter , I considered the interpretive diculties posed by a

provision of the Criminal Code that applies to two dierent oences

with two quite dierent animating aims. Those diculties, we saw,

drove members of the Supreme Court to claim that Parliament had

intended to give the judiciary the power to decide at common law

what it should and would mean to engage in “fraud.” That claim

should not be taken at face value. But it is simple enough to under-

stand why the Court might have felt pressure to resort to common

law reasoning. Faced with an interpretive knot, it reached for the

common law by way of cutting it. One should not infer, moreover,

that this was an easy decision. On the contrary, even when the com-

mon law was invoked, the Court was at pains to suggest that Parlia-

ment had preserved it and intended judges to develop it in the future.

Statutory interpretation and common law authority were messily

intertwined. This underscores the Court’s deep discomfort, particu-

larly post-Jobidon, at the idea of claiming an independent authority to

set social policy on behalf of unelected judges.

In this chapter, I consider another provision of the Code that is,

if anything, even more impervious to standard methods of statutory

 RSC , c C- [Criminal Code].

[ 268 ], ,  

interpretation: section (). It states: “For the purposes of this Act,

any publication a dominant characteristic of which is the undue exploit-

ation of sex . . . shall be deemed to be obscene.” Here too, the Supreme

Court has relied — sometimes implicitly, sometimes explicitly — on

its authority under the common law to give content to the provision.

For the most part, though, it has done so on the basis that, properly

construed, section () has a meaning that shis and changes over

time. Thus, the Court rested its use of the common law on a legislative

grant of authority. To this extent, one can draw striking parallels to the

reasoning in Jobidon and Cuerrier.

This is not, however, a straightforward story of the Supreme Court

simply ignoring separation-of-powers considerations or section  of

the Criminal Code, in pursuit of its own policy preferences. The story

is far more complicated than that. The interpretive diculties sur-

rounding section () in large part stem from the manner in which it

was draed. In particular, Parliament failed to express its intention to

retain the common law denition of obscenity alongside the statutory

test. Faced with a Code provision that appeared to oust the common law

denition, the Court refused to treat the two as co-existing. This was

precisely because of (what is now) section  of the Code, and the dicul-

ties that having a Code provision in the foreground and a common law

denition subsumed in the background would pose for guidance. But

jettisoning the common law denition le the Court with intractable

interpretive problems with respect to section (), for the very reason

that Parliament did not intend it to function on its own. The decision

nally to use common law reasoning to give content to the statutory

denition, then, should be understood less as an enthusiastic power

grab than a desperate attempt to resolve an impossible interpretive

problem that began with weak draing.

 R v Jobidon, []  SCR .

 R v Cuerrier, []  SCR  [Cuerrier]

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“A Complex Piece of Writing”

B. “VAGUE, IMPERFECT AND INDEFINITE”

Until the enactment of Bill C-, in July , there was no statu-

tory denition of “obscenity,” though oences pertaining to the pub-

lication and sale of obscene materials could be found in the 

Criminal Code. This was not an oversight. The  Code was largely

modelled on the English Dra Code, and the Commissioners had

expressly decided not to include a denition of obscenity, arguing

that it was not “desirable to attempt to dene obscene libel other

than that conveyed by the expression itself.” In the absence of a

statutory denition, Canadian judges relied upon the denition set

out (in obiter) by Lord Cockburn in Hicklin: “I think the test of obscen-

ity is thus, whether the tendency of the matter charged as obscenity is

to deprave and corrupt those whose minds are open to such immoral

inuences, and into whose hands a publication of this sort may fall.”

The Hicklin denition, articulated in , had been subjected to

considerable criticism around the common law world. In particular,

it struck judges and commentators as a highly subjective test. More-

over, by focusing on “those whose minds are open to . . . immoral

inuences, and into whose hands a [the publication in question] may

fall,” the Hicklin test appeared to “impose an unduly restrictive stan-

dard of censorship upon creative literary eorts and upon freedom

of speech and expression.” A sophisticated, mature, or intellectually

engaged audience might nd considerable scientic, artistic, or liter-

ary value in a work, but that was entirely beside the point: the question

was whether an intellectually or emotionally immature or psycho-

logically vulnerable individual could plausibly see something in that

same work that would tend to “corrupt or deprave”him. Thus, there

 SC , c .

 UK, HC, Report of the Royal Commission Appointed to Consider the Law Relating to

Indictable Oences (London: HMSO, ) at .

 R v Hicklin (),  QBD  at  [Hicklin].

 See, for example, Norman St John-Stevas, Obscenity and the Law (London: Secker &

Warburg, ) ch ; Georey Robertson, Obscenity: An Account of Censorship Laws

and Their Enforcement in England and Wales (London: Weidenfeld and Nicolson, )

ch .

 WH Charles, “Obscene Literature and the Legal Process in Canada” ()  Cana-

dian Bar Review  at .