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 Addario, of his client, Yonge St’s Glad Day Bookshop and its owner John Scythes. “Frankly, it’s the right result.”

The case stems from the 2000 seizure of Descent, a gay porn being sold at Glad Day 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 wasn’t entitled to challenge the OFRB because it hadn’t cooperated with the process in the first place. Glad Day appealed that decision.

The Glad Day case has parallels to the legal battle of queer bookstore Little Sister’s in Vancouver and the judge referenced the Little Sister’s decision several times in his statement. Little Sister’s fought Canada Customs all the way to the Supreme Court in 2000, arguing it had been unfairly targeted because it was a queer bookstore.

Glad Day’s lead lawyer Frank Addario challenged the government under Canada’s Charter Of Rights And Freedoms, arguing that the censorship powers of the OFRB violated their right to freedom of expression as laid out in the Charter. Justice Russell Juriansz voiced his support for this position in a 37-page statement.

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 videos in the province.

During the appeal trial, government lawyers argued that censorship is justified in a free society so as to protect society and vulnerable groups from harm. But the judge criticized the current legislation as “overly broad” and was dissatisfied with government arguments to the contrary.

“The requirement for prior approval infringes the rights of all distributors, retailers and exhib-itors, and all members of the viewing public,” Juriansz wrote. “I find that the infringement is not trivial and insubstantial.”

These findings aren’t unique in Canada and not all provinces go the pre-approval, or censorship, 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 contended that 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 provincial 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 with media relations in the Ministry Of The Attorney General. Crawley did allow that counsel from the ministry will be working with staff at 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 – or sooner, should legislators enact new regulations.

* Glad Day is hosting a fundraiser on Fri, Jun 11 at Andy Poolhall. The party, courtesy of the Synchro crew, features DJs Denise Benson, Andrew Allsgood, Will Munroe, Kiki and Violca. Cover is $5 with all proceeds to Glad Day’s legal defence fund.