LEGAL BRIEFS

Cybernet Expo here in Montreal back in late May marked my very first adult tradeshow – a totally energizing and exhausting four days! The various seminars I had the good fortune of sitting in on left me with tons of information and a great deal to digest.LEGAL BRIEFS

Cybernet Expo here in Montreal back in late May marked my very first adult tradeshow – a totally energizing and exhausting four days! The various seminars I had the good fortune of sitting in on left me with tons of information and a great deal to digest. Being local, it was the legal seminar on doing business in the Great White North that piqued my interest. The next thing I knew my newly found pal, LAJ, had published an excellent recap of the seminar’s main points in, “Doing Business in Canada: The Legal Issues” – giving me the perfect opportunity to sit down and think about what was and wasn’t sitting right with me. The seminar did a fantastic job of highlighting the positive aspects of running an adult business in Canada, however, I was left feeling that some of the more negative consequences for Canadian adult companies were lost in the discussion – that law in theory and law in application are often very different.

From a legal standpoint, the seminar plugged several aspects, which make Canada a desirable country in which to run an adult business. Each of the main points really warrant their own discussion – so I figured I would offer one Canuck’s perspective on the first – the strong degree of uniformity, in terms of laws and morals, that exists throughout the country (due to a federal criminal code that’s founded in common law) – and would leave the others for another day.

The Canadian Criminal Code does offer a “national standard” for determining what is considered obscene and illegal pornographic material (Section 163) – at least from a legal standpoint. The Canadian government’s position has been that “community standards” tests used by censorship boards that review adult content in print and video suffice in determining what is considered obscene for the Internet. Based on these facts, it’s easy to assume that there exists a uniform “community standard” in terms of adult content despite the medium. However, in practice, the application of these laws has not always been uniform and what cases have shown us is that there is no one unifying “community standard” (other than for child pornography), in terms of what adult materials are considered obscene, that exists in all cities or provinces.

For example, Little Sister’s began as one of the first gay/lesbian bookstores in Vancouver, B.C. in 1983. In 1985, Canadian Customs officials began to search and confiscate much of the store’s material claiming that these were considered “obscene.” Help from the B.C. Civil Liberties Association was solicited and the case finally reached the courts in 1994 (how’s that for due process!). For six years, Little Sister’s had to contend with the mental and financial strains of an initial trial (they won), an appeal (they lost), before finally having their case heard by the Supreme Court of Canada in 2000. During these years, materials destined for the bookstore were continuously seized and prohibited. In a 6-3 decision, the Supreme Court ruled in favour of the bookstore. Three important issues were clarified in this decision: (1) the “reverse onus” placed on store owners (to prove that their materials are not obscene) is unconstitutional; (2) Customs has a fundamental responsibility to prove that materials they wish to prohibit are obscene; and (3) importers of adult materials have the right to seek punitive restitution from Customs for damages inflicted by unwarranted seizures.

Despite this victory, the Little Sister’s saga continues. In July 2001, Customs seized copies of a comic book series (Meatman) headed for the bookstore. Little Sister’s appealed to Customs outlining the artistic merits of the work (they feature the artwork of several talented gay male artists). However, Customs has maintained that the work is obscene and should remain prohibited. In March 2002, Little Sister’s appealed to the courts demanding release of the books on the basis that Customs has not proved them to be “obscene.” They await a trial date.

As a country, Canada is comprised of varying nationalities, ethnicities, religious affiliations, and socio-economic classes. These often reflect marked differences in terms of political alignments, culture, and moral standards depending on city/region. What we find is that the determination and application of “community standards” in determining what is “obscene” differs as well. For instance, Montreal is generally considered liberal in its social and sexual values – not only with respect to heterosexual identity and practices, but also towards “alternative lifestyles” like homosexuality, swinging, and fetishism. Many of us that live and work in this industry take for granted just how much these elements contribute to the ease of “doing adult business” in this city.

There are a whole host of things that make me love being Canadian… more precisely, a Montreal-er. It’s truly an amazing city to live and work in, and I would like nothing more than to say pack the parkas and touques… and follow the signs that say “North!” However, if you’re planning on doing adult business in Canada then take the time to do your research to find the type of city or “community” that will feel just like home.

Lisa is the Manager of Marketing & Project Development with Cashpartner and can be reached at lisa@cashpartner.com. All statements made in the above article are based on the author’s opinion/experience only, and should not be considered legal advice. Please consult an attorney for any legal matters.

LEGAL BRIEFS

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