Obscenity

Section 163 of the Criminal Code makes it an offence to print, publish or distribute obscene written matter, such as photos, video or audio recordings. It is also a crime to have these items in your possessionHaving knowledge and control of something — not only physically holding it, but also an item kept somewhere else that you know about and control., or to publicly exhibit "a disgusting object or an indecent show." This section of the Code makes it clear that any "undue exploitation of sex, crime, horror, cruelty and violence," shall be deemed to be obscene.

Under Canadian law, for material to qualify as "obscene," the exploitation of sex must not only be a dominant characteristic, but must also be "undue." To judge what is undue, the court recommended two tests: community standards and artistic merit. The first looks at whether the material would be offensive to average citizen and the second is whether the portrayal of sex is essential for an artistic or similar purpose.

The Supreme Court further divided obscenity into three categories:

1. Explicit sex with violence would almost always constitute obscenity.
2. Explicit sex without violence but subjects people to degrading or dehumanizing treatment could be obscene if it exceeds the community tolerance.
3. The community generally tolerates explicit sex without violence that is neither degrading nor dehumanizing and would not qualify as obscene.

Keep in mind that while freedom of expression is a fundamental right given to Canadians under the Charter of Rights and Freedoms, the Charter also allows the government to pass laws that limit free expression so long as the limits are reasonable and can be "justified in a free and democratic society."

Under s. 163(4), whether the material served the public good is a legal question decided by the judge. Whether the acts went further than needed to serve that public good is a factual question for the judge or jury deciding the case.

Obscenity is a hybrid offenceAn offence the Crown can proceed with summarily or by indictment., meaning the Crown can prosecute the charge as an indictable offenceA more serious type of Canadian criminal offence. or by summary convictionLess-serious criminal offences. Being found guilty of an indictable offence carries more severe penalties than a summary conviction. The Crown will consider such factors as the seriousness of the incident and your prior criminal record when deciding how to proceed.

If the charge is treated as an indictable offence the maximum punishment is 2 years in jail, with lesser penalty given if the Crown prosecutes it as a summary conviction.

Obscenity is charged under s. 163 of the Criminal Code, under the offence heading 'corrupting morals.' The penalty is set separately by s. 169.