If video-porn arcades mounted a Constitutional challenge to BC’s film censorship law, there’s a good chance they’d win, a renowned civil rights lawyer told a censorship panel at the Out On Screen film festival Aug 10.
Joe Arvay says BC’s Motion Pictures Act is probably unconstitutional because it defines obscenity differently than does the Supreme Court of Canada. The provincial act lists categories of action, such as bondage, that it considers unacceptable in a film unless the film is art.
In contrast, the Supreme Court has emphasized a more nuanced approach to defining obscenity, one that emphasizes harm and community standards while avoiding lists of specific behaviours.
The result is an infringement on citizen’s freedom, says Arvay, who told the audience he was not giving an official legal opinion or advice.
He also said that Out On Screen would not likely have been successful if they had sued the BC Film Classification Office last summer. The government agency tried to stop the premiere showing of Little Sister’s vs Big Brother, a film about Canada Customs censorship. And the office also asked to view 13 other films scheduled for the 2002 festival.
After public outcry over the censorship, the government censors backed down. After discussions with Out On Screen, the agency agreed to follow its own act and never again require special permits or prior viewing of films screened by the membership-driven queer film festival.
By backing down, the government censors made it difficult for a successful lawsuit, said Arvay.
“I don’t think Out On Screen or any other festival is going to be bothered any longer,” Arvay said.
But BC’s film censorship act continues to interfere with the ability of average citizens to view movies, including porn movies, of their choosing. And it requires an expensive review of films shown in porn theatres or rented in bookstores and video retailers. Films with SM themes are specifically targeted under the act.
“My view of the act is it’s unconstitutional,” said Arvay, who has repeatedly taken free-speech and gay-rights cases to the Supreme Court of Canada.
Jim Sinclair, executive director of Pacific Cinemathèque noted that “no other media have to seek prior approval” from the government-not newspapers, opera, theatre, book and magazine publishers or symphonies. In the case of all media other than films, obscenity provisions of the Criminal Code are enforced by police after people have had a chance to view the material.
“The law is an anomaly, an anachronism that dates from another time and at this time is absurd.”
Mary-Lou McCausland, who directed the review agency for nearly two decades and helped write the legislation, told the audience that reviewing films is necessary to protect society from portrayals of sexual violence. She included SM in that category.
But Little Sister’s manager Janine Fuller replied, “We’re capable of regulating ourselves. The state and bureaucrats are not able to look out for and respect the ideas and images of our [queer] community.”
Fuller says SM images are important and should not be censored.
“Let our community celebrate who and what we are in all our diversity.” The bookstore has been targeted by the film agency and has had to negotiate to avoid harassment.
Little Sister’s would have a case for challenging the provincial act, says Arvay, except that the gay bookstore has worked out a deal with the government censors in order to reduce red tape and cost.
But the sort of small porn shops along Granville and Davie St that cater to semi-closeted gay men would be ideal for spearheading a legal challenge, says Arvay.
And though he doesn’t advertise for customers, the lawyer says he’d “be happy to represent” a porn-shop owner in a legal challenge.
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