R. v. Metro News Ltd., (1986) 16 O.A.C. 319 (CA)

• Judge: Martin, Robins and Tarnopolsky, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 04, 1986
• Jurisdiction: Ontario
• Citations: (1986), 16 O.A.C. 319 (CA)

R. v. Metro News Ltd. (1986), 16 O.A.C. 319 (CA)

MLB headnote and full text

R. v. Metro News Limited

Indexed As: R. v. Metro News Ltd.

Ontario Court of Appeal

Martin, Robins and Tarnopolsky, JJ.A.

September 4, 1986.

Summary:

The accused corporation was convicted of distributing obscene publications, namely, the December 1984 issue of Penthouse magazine, contrary to s. 159(1)(a) of the Criminal Code of Canada. The accused appealed from conviction.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 4946

Presumption of innocence - Evidence - Proof - Prima facie case - The Ontario Court of Appeal held that on a charge of distributing obscene material, the act of distributing material which is in fact obscene prima facie imports the offence, but the accused may avoid criminal liability by raising a reasonable doubt that he had the necessary guilty mind because he acted under an honest and reasonable mistake of fact - The court held that the creation of such a strict liability offence or a "true crime" did not contravene the presumption of innocence in s. 11(d) of the Canadian Charter of Rights and Freedoms - See paragraphs 62 to 72.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - S. 159(6) of the Criminal Code of Canada provided that where an accused was charged with distribution of obscene material, ignorance of the nature or presence of the offending material was not a defence - The Ontario Court of Appeal held that s. 159(6) was inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms to the extent that it infringed the rights of publishers, distributors etc., and was not a reasonable limitation under s. 1 - See paragraphs 29 to 36.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - S. 159 (6) of the Criminal Code of Canada provided that where an accused was charged with distribution of obscene material, ignorance of the nature or presence of the offending material was not a defence - The Ontario Court of Appeal held that s. 159(6) was inconsistent with s. 7 of the Charter (right to life, liberty and security of the person), because it had the effect of creating an offence of absolute liability with imprisonment as a potential penalty - The court held that s. 159(6) was constitutionally invalid both with respect to human persons and corporations - See paragraphs 20 to 28 - The court held that s. 159(6) could not be saved under s. 1 - See paragraphs 29 to 36.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - The Ontario Court of Appeal held that on a charge of distributing obscene material, the act of distributing material which is in fact obscene prima facie imports the offence, but the accused may avoid criminal liability by raising a reasonable doubt that he had the necessary guilty mind because he acted under an honest and reasonable mistake of fact - The court held that the creation of such a strict liability offence or a "true crime" did not contravene any fundamental principle of penal liability or the rights in s. 7 of the Charter - See paragraphs 62 to 72.

Criminal Law - Topic 30

Mens rea or intention - General principles - The Ontario Court of Appeal generally discussed the concept of mens rea - See paragraph 41.

Criminal Law - Topic 253

Abuse of process - What constitutes - The accused was charged with distributing obscene material, namely, the December 1984 issue of Penthouse magazine, in particular a series of photographs in the magazine - The accused contended that the prosecution was an abuse of process because (1) publication was approved by Canada Customs (2) the same photos had appeared in another publication without objection six months earlier (3) publication was approved by a committee established with the approval of the Attorney General etc. and (4) the Crown could have proceeded in rem under s. 160 of the Criminal Code to determine whether the publication was obscene - The Ontario Court of Appeal disagreed - See paragraphs 110 to 117.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Intention or mens rea - The Ontario Court of Appeal held that on a charge of distributing obscene material knowledge that the material exceeded the community standards of tolerance was not an element of mens rea - Accordingly, the court held that the Crown was not required to prove mens rea or knowledge, i.e., that an accused who was aware of the presence and nature of the material also knew that it was obscene - See paragraphs 47 to 48, 55.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Defences - S. 159(6) of the Criminal Code of Canada provided that where an accused was charged with distribution of obscene material contrary to s. 159(1), ignorance of the nature or presence of the offending material was not a defence - The Ontario Court of Appeal held that s. 159(6) was inconsistent with s. 7 of the Charter (right to life, liberty and security of the person), because it had the effect of creating an offence of absolute liability with imprisonment as a potential penalty - The court held that s. 159(6) was constitutionally invalid both with respect to human persons and corporations - See paragraphs 20 to 28 - The court held that s. 159(6) could not be saved by s. 1 - See paragraphs 29 to 36.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Defences - Mistake of fact - The Ontario Court of Appeal held that on a charge of distributing obscene material, the act of distributing material which is in fact obscene prima facie imports the offence, but the accused may avoid criminal liability by raising a reasonable doubt that he had the necessary guilty mind because he acted under an honest and reasonable mistake of fact - The court held that the creation of such a strict liability offence or a "true crime" did not contravene any fundamental principle of penal liability or the presumption of innocence contrary to ss. 7 or 11(d) of the Charter - See paragraphs 62 to 72.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Defences - Mistake of fact - The accused was charged with distributing obscene material - He contended that an honest but mistaken belief that the publication did not exceed community standards of tolerance was a defence - The Ontario Court of Appeal held that whether the material exceeded the community standard of tolerance was a "value-judgment" to which the doctrine of mistake of fact was inapplicable - The court held that the accused's belief, even if based on reasonable grounds, would not afford a defence, where the court has found that the material in fact breached the community standard of tolerance - See paragraphs 73 to 87, 89.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Defences - Due diligence - An accused was charged with distributing obscene material - The accused contended that it took all reasonable measures to comply with the law and therefore was entitled to invoke the defence of due diligence - The Ontario Court of Appeal held that the defence of due diligence was unavailable - See paragraphs 77, 88 to 89.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Jury charge - The accused was charged with distributing obscene material - The Ontario Court of Appeal examined the judge's jury charge and approved it - The court held that although desirable for trial judges to explain to the jury the meaning of the community standard of tolerance test as per Dickson, C.J.C., in R. v. Towne Cinema Theatres Ltd. (1985), 59 N.R. 101; 18 C.C.C.(3d) 193 (S.C.C.), the failure to do so did not constitute a misdirection - See paragraphs 91 to 100.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Jury charge - The accused was charged with distributing obscene material - The Ontario Court of Appeal approved the trial judge's jury charge - The court held that the charge on reasonable doubt was sufficient and that a failure to charge the jury that in borderline cases tolerance was preferable to proscription did not constitute misdirection - See paragraphs 101 to 103.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Jury charge - An accused was charged with distributing obscene material, namely, a series of photographs in the December 1984 issue of Penthouse - The accused alleged that the trial judge failed to adequately instruct the jury as to the use of expert evidence respecting the artistic merit of the photographs - The Ontario Court of Appeal held that the charge was proper respecting the relevance of the expert evidence as to the photos being works of art - The court held that the accused was not prejudiced by the trial judge's failure to relate the relevance of the artistic merits of the photos to the element of "undueness" - See paragraphs 104 to 109.

Criminal Law - Topic 575

Public morals - Obscenity - Distribution of obscene materials - Evidence - Proof - The accused was charged with distributing obscene material - Specifically the charge alleged that the "December 1984 issue of Penthouse magazine" was obscene - The prosecution focused only on a particular series of photographs - The Ontario Court of Appeal held that the Crown was not required to prove that the entire magazine was obscene - Similarly, if the photographs, by themselves, were obscene, they could not be saved by other parts of the magazine - See paragraphs 118 to 120.

Statutes - Topic 1450

Interpretation - Aids or methods to determine meaning - Legislative history - Reference to prior versions or amendments - The Ontario Court of Appeal referred to the legislative history of s. 159 of the Criminal Code of Canada - See paragraphs 42 to 43.

Cases Noticed:

Reference Re S. 94(2) of The Motor Vehicle Act (1986), 63 N.R. 266; 23 C.C.C.(3d) 289 (S.C.C.), appld. [para. 20].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; [1985] 3 W.W.R. 481, consd. [para. 24].

R. v. Noble, 16 C.C.C.(3d) 146, refd to. [para. 27].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 27 B.L.R. 297; 33 Alta. L.R.(2d) 193; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 2 C.P.R.(3d) 1; [1984] 6 W.W.R. 577; 41 C.R.(3d) 97; 84 D.T.C. 6467, consd. [para. 28].

R. v. Bryant (1985), 6 O.A.C. 118; 42 C.R.(3d) 312 (C.A.), refd to. [para. 32].

R. v. Oakes (1985), 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321 (S.C.C.), refd to. [para. 32].

Ontario Film and Video Appreciation Society and Ontario Board of Censors, Re (1983), 41 O.R.(2d) 583 (Div. Ct.), affd. (1984), 2 O.A.C. 388; 45 O.R.(2d) 80 (C.A.), refd to. [para. 37].

R. v. Videoflicks Ltd. et al. (1984), 5 O.A.C. 1; 48 O.R.(2d) 395 (C.A.), refd to. [para. 37].

Smith v. California (1959), 361 U.S. 147, consd. [para. 38].

Miskin v. New York (1966), 383 U.S. 502, refd to. [para. 38].

Ginsberg v. New York (1968), 390 U.S. 629, refd to. [para. 38].

Hamling v. U.S. (1974), 418 U.S. 87, refd to. [para. 38].

New York v. Ferber (1982), 458 U.S. 747, refd to. [para. 38].

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299; 21 N.R. 295; 85 D.L.R.(3d) 161; 3 C.R.(3d) 30; 40 C.C.C.(2d) 353, consd. [para. 41].

R. v. Britnell (1912), 20 C.C.C. 85 (Ont. C.A.), consd. [para. 44].

R. v. Dorosz (1971), 4 C.C.C.(2d) 203 (Ont. C.A.), consd. [para. 45].

R. v. Cameron, [1966] 4 C.C.C. 273 (Ont. C.A.), leave to appeal refused [1967] 2 C.C.C. 195 (S.C.C.), consd. [para. 48].

R. v. Kiverago (1973), 11 C.C.C.(2d) 463 (Ont. C.A.), consd. [para. 49].

R. v. McFall et al. (1975), 26 C.C.C.(2d) 181 (B.C.C.A.), consd. [para. 50].

Hamling v. U.S. (1974), 418 U.S. 87, consd. [para. 52].

R. v. Sudbury News Service Limited (1978), 39 C.C.C.(2d) 1 (Ont. C.A.), consd. [para. 53].

R. v. Spot Supermarket Inc. (1979), 50 C.C.C.(2d) 239 (Que. C.A.), consd. [para. 57].

Proudman v. Dayman (1941), 67 C.L.R. 536, refd to. [para. 60].

R. v. Prue; R. v. Baril (1979), 26 N.R. 470; 46 C.C.C.(2d) 257 (S.C.C.), refd to. [para. 64].

R. v. Ewart (1905), 25 N.Z.L.R. 709, consd. [para. 69].

R. v. Hicklin (1868), L.R. 3 Q.B. 360, refd to. [para. 74].

R. v. Towne Cinema Theatres Ltd. (1985), 59 N.R. 101; 18 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 74].

R. v. Germain (1985), 62 N.R. 87; 21 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 74].

Weidman v. Shragge (1912), 46 S.C.R. 1, refd to. [para. 80].

R. v. Container Materials Ltd. (1941), 76 C.C.C. 18 (Ont. C.A.), affd. (1942), 77 C.C.C. 129 (S.C.C.), refd to. [para. 80].

R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C.(2d) 251 (Man. C.A.), consd. [para. 84]; refd to. [para. 93].

R. v. Molis (1980), 33 N.R. 411; 55 C.C.C.(2d) 558 (S.C.C.), refd to. [para. 88].

R. v. Penthouse International Ltd. et al. (1979), 46 C.C.C.(2d) 111 (Ont. C.A.), leave to appeal refused [1979] 1 S.C.R. xi; 27 N.R. 180, refd to. [para. 93].

R. v. Dominion News and Gifts (1962) Ltd., [1963] 2 C.C.C. 103, revd. [1964] S.C.R. 251, refd to. [para. 102].

R. v. Brodie, Dansky and Rubin, [1962] S.C.R. 681, refd to. [para. 106].

R. v. Young (1984), 3 O.A.C. 254; 13 C.C.C.(3d) 1 (C.A.), refd to. [para. 114].

R. v. Jewitt (1985), 61 N.R. 159; 21 C.C.C.(3d) 7 (S.C.C.), refd to. [para. 115].

R. v. Popert (1981), 58 C.C.C.(2d) 505 (Ont. C.A.), refd to. [para. 119].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 159 [paras. 19, 42-43]; sect. 159(1) [paras. 19, 30, 33, 47, 55, 59, 62, 64, 110, 112]; sect. 159(2) [paras. 48, 51, 54-55]; sect. 159(6) [paras. 19, 21-22, 26-30, 32-33, 35-37, 39, 47, 62]; sect. 159(8) [paras. 73-74, 82]; sect. 160 [para. 113]; sect. 165 [paras. 19, 22]; sect. 254 [paras. 67-68]; sect. 722(1) [para. 22].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 19, 28, 31-32, 36, 39]; sect. 2 [para. 19]; sect. 7 [paras. 19-22, 31, 35, 39, 67]; sect. 11(d) [para. 67].

Obscene Publications Act 1959 (Imp.), sect. 2(5) [para. 83].

Obscene Publications Act 1964 (Imp.), sect. 1(3)(a) [para. 83].

Authors and Works Noticed:

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), pp. 141 [para. 82]; 142 [para. 20]; 451 [para. 79].

Smith and Hogan, Criminal Law (5th Ed.), pp. 71 [para. 78]; 676 [para. 83].

Webster's New World Dictionary (2nd College Ed.) [para. 97].

Shorter Oxford English Dictionary [para. 98].

Counsel:

Aubrey E. Golden, Q.C., and Marc Rosenberg, for the accused/appellant;

Ian A. MacDonnell, for the Crown/respondent.

This appeal was heard before Martin, Robins and Tarnopolsky, JJ.A., of the Ontario Court of Appeal on January 20 and 21, 1986. The decision of the Court of Appeal was delivered by Martin, J.A., and released on September 4, 1986.