Big win for Glad Day

Once again, queers have helped to reshape laws in Ontario, this time by challenging the constitutionality of government censors.

On Apr 30, an Ontario superior court judge threw out the portions of the provincial Theatres Act that required movies to be approved by the Ontario Film Review Board (OFRB) before being shown or sold in the province.

“They’ve fought a long time for this result,” says Frank Addario of his client, Toronto’s Glad Day Bookshop. “Frankly, it’s the right result.”

The case stems from the 2000 seizure of Descent, a gay porn movie Glad Day was selling without OFRB approval for distribution. That seizure, four years ago, led to a court case in 2001 that Glad Day lost on the grounds that it was not entitled to challenge the censor board because it hadn’t cooperated with the process in the first place. Glad Day appealed the decision; last month it won.

Addario argued that the OFRB’s censorship powers violated Glad Day’s Charter-based right to freedom of expression. Justice Russell Juriansz agreed.

Though Glad Day’s case surrounded the seizure of a single unapproved sex film, Juriansz’s decision will impact the distribution of all movies and films in the province.

During the appeal trial, government lawyers argued that some censorship is justified in a free and democratic society so as to protect society and vulnerable groups from harm.

But the judge criticized the current legislation as “overly broad” and said he was dissatisfied with government arguments to the contrary.

“The requirement for prior approval infringes the rights of all distributors, retailers and exhibitors, and all members of the viewing public,” Juriansz wrote in his 37-page decision.

“I find that the infringement is not trivial and insubstantial.”

These findings aren’t unique in Canada. Many provinces already shun the pre-approval route. Manitoba’s government has been out of the censorship business since 1972; in that province it is up to the police to deal with obscene material.

Would an increased police presence in the film industry worry Addario? “No. If it’s not obscene, the police won’t have anything to do with it,” he says. “The censor board interfered with things that were less than obscene and more than Bambi.”

Juriansz noted that movies shown at film festivals, public libraries and art galleries are already exempt from the pre-approval rules. The judge also called attention to the many other forms of media that don’t have to be approved by a government authority, pointing out the lack of boards “that must approve books, plays, art exhibitions, concerts or other forms of performance before the public may have access to them.”

In arguing the case, Addario didn’t attack the OFRB’s role in classifying films, but rather its ability to reject or censor films prior to distribution. He also challenged the province’s jurisdiction in enforcing the regulation, on the grounds that it overlapped with the existing federal criminal code.

In addition, Addario said the fee scale for screening films-$4.20 per minute for all films not wholly made within Canada-discriminates against foreign films and overlaps with federal commerce jurisdiction.

Juriansz rejected the two latter arguments, but Addario is pleased that the critical argument won out.

So are the folks at Glad Day. “We’re really happy with the results,” says Toshiya Kuwabara, manager of the Yonge St store.

The Ontario government now has 30 days to review and respond to the ruling, either by enacting legislation in keeping with the decision or by challenging it. In the meantime, government spokespeople are keeping quiet about their reaction.

“Because we are in the midst of that review we can’t make any further comment,” says Brendan Crawley, senior coordinator of media relations for Ontario’s attorney general. Crawley did say that lawyers from his ministry will be working with staff from the Ministry of Consumer and Business Services in determining their course of action.

If the government chooses not to appeal the decision, it will automatically take effect in 12 months.