Last week Quebec filmmaker Rémy Couture's trial was scheduled for December 10, more than three years after his arrest for "corrupting morals" by distributing an "obscene" combination of sex and violence. The prosecution is unusual (unique, in fact, according to his lawyers) because it involves horror films—shorts chronicling the crimes of a fictional serial killer, which Couture posted on the website InnerDepravity.com—rather than pornography. Under Canadian law, it is a crime to produce or distribute material "a dominant characteristic of which is the undue exploitation of sex," by itself or together with "crime, horror, cruelty [or] violence." The upshot is that films deemed obscene in Canada would not necessarily be deemed obscene in the United States. (Lest you feel too superior, note that Couture faces up to two years in prison, while sex alone, provided it is disgusting enough, can earn a pornographer up to five years per count under U.S. law.) Here is how a 2007 summary prepared for the Canadian Parliament explains the current legal definition of obscenity:
Whether there is "undue" exploitation is almost invariably determined by reference to community standards, i.e., if a dominant characteristic is the exploitation of sex or of sex and any other enumerated quality, the trier of fact must determine the community standard of tolerance. Would the community tolerate the presentation, publication or distribution of the material as presented or published? If not, the material is deemed obscene. As the Supreme Court of Canada pointed out in the Butler case, the community standards test is concerned not with what Canadians would not tolerate being exposed to themselves, but with what they would not tolerate other Canadians being exposed to.
In other words, if you think it is intolerable, it is! This sounds like a variation on "I know it when I see it." Except for the fact that violence can make a work featuring sex obscene when it otherwise would have been legal, the Canadian standard seems similar in practice to the American definition, which hinges on whether "the average person, applying contemporary community standards," would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes sexual conduct in a "patently offensive" way; and whether the work "lacks serious literary, artistic, political, or scientific value." Indeed, Couture's main defense (like Ira Isaacs') will be to argue that his films have serious artistic value. His freedom depends on a jury's utterly subjective evaluation of that claim.
For more about the case, see the website created by Couture's supporters, which warns that "THE WHOLE ARTISTIC INDUSTRY AND COMMUNITY WILL BE AFFECTED" by the outcome. Previous Reason coverage here.
The provision under which Couture was charged also bans publication or distribution of "crime comics," defined as books or periodicals that consist "exclusively or substantially" of "matter depicting pictorially…the commission of crimes, real or fictitious." In March I noted another weird wrinkle in Canadian censorship: Depictions of fictional minors, including comic books, can be deemed child pornography.
[Thanks to Charles Montpetit for the tip.]
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