If the snippers really add value to the process, let them come out of hiding and show it, justice reporter KIRK MAKIN says

By KIRK MAKIN
Monday, February 10, 2003 - Print Edition, Page B12

A painful lesson awaits any lawyer girding for war with a provincial film censor board: You can't slay the dragon if they keep taking your sword away.

The latest to learn this is Craig Martin, an energetic Bay Street lawyer and film buff who was itching to take on the Ontario Film Review Board in a constitutional challenge.

His client's film -- Fat Girl -- was approved for screening more than a year ago in several provinces but was rejected in Ontario because of several nude scenes where actors older than 18 play the part of underage girls.

Mr. Martin was prepared with compelling freedom of speech arguments. He also intended to show that board provisions invade federal criminal law jurisdiction, mimicking those laid down for obscenity prosecutions by the Supreme Court of Canada.

Then, on the proverbial eve of trial, Ontario staged a retreat. Government lawyers conceded that Fat Girl ought to have been approved uncut for distribution.

The client had won -- if being allowed to screen a 15-month-old movie constitutes winning. But there would be no hearing, and no constitutional challenge. Mr. Martin had lost a historic opportunity to cut the film snippers down to size.

The episode highlights a paradox that dominates the fascinating legal niche of censor board litigation. If a client has the money and gumption to go into battle, the province can be relied on to fold its cards at the courtroom door.

"They are in this wonderful position where, if the case could actually be heard on constitutional grounds, they move to concede," Mr. Martin says. "The government clearly didn't want to see this case before the courts. Their provisions are insulated -- certainly in a civil context -- and I can't see being able to get at them."

It's true that Fat Girl's distributors theoretically could have insisted on forging ahead with their case -- but only at great risk. "The court would turn to my clients and whack them with $50,000" in court costs, Mr. Martin says.

There are other odds stacked against censor board challengers. First, not every film lends itself to a test case. Nor can every filmmaker or distributor afford one. Most simply have to make the cuts the censors require.

In the case of Fat Girl, the distributors were fortunate enough to find two law firms preparing to argue the case pro bono. Stikeman Elliott LLP first allowed Mr. Martin to pursue the file. After he moved down the street to Lenczner Slaght LLP, it also gave its blessings to the litigation. They swallowed a total of almost $40,000 in forgone fees and disbursements.

So, how is a lawyer to lay a glove on a censor board?

Criminal lawyer Frank Addario tried a novel approach last year in his unsuccessful defence of Toronto's Glad Day Bookshop on a charge of distributing a film without approval. Mr. Addario argued that board provisions invade criminal law terrain, and that the requirement to submit films for prior approval violates freedom of expression guarantees.

He also showed that the government makes a tidy sum charging fees to small businesses that must submit their films for classification and approval. These prohibitive fees amount to de facto censorship of those catering to niche markets, Mr. Addario argued.

He will have an opportunity to make his arguments again later this year on appeal to the Ontario Superior Court.

This is not to suggest there has never been a victory. As far back as 1973, Manitoba saw the constitutional writing on the wall and abolished its censor board. And in 1983, the Supreme Court of Ontario ruled that the Ontario Censor Board's powers were too broad and unarticulated. Ontario hurriedly added specific criteria, prompting another attack from the film community in 1986. It lost when the government pulled another strategic retreat.

All of which brings us to John Ince, a Vancouver lawyer who may represent the best hope for anti-censorship forces.

Mr. Ince is an advocate in every sense of the word. Besides using his courtroom skills for his cause, he owns a store devoted to sexual material -- Art of Loving -- and has an encyclopedic knowledge of sex education films.

"I have devoted my life to fighting this," Mr. Ince says. "Now that I have my theory very carefully articulated, I'm ready for action."

His record inspires hope. In 1985, he vanquished Canada Customs in the Luscher case, persuading the Federal Court of Appeal that provisions allowing agents to seize "immoral and indecent" material were unconstitutionally vague.

Mr. Ince is putting the final touches on a challenge to the B.C. director of film classification. He is going after the entire regime, which would leave only Criminal Code obscenity provisions to act as a brake on the distribution of harmful images.

"Having a system of prior restraint where every single film has to be screened by a bureaucrat is Stalinesque," Mr. Ince says. "It's all part of a system that equates with racism, a system that generates a toxic attitude surrounding sex."

Mr. Ince intends first to invite the province to withdraw from the censorship arena. Should it refuse, his court battle will focus on the suppression of sex education films.

"We are talking about some of the best-selling sex videos in the U.S.," he says. "We want to look at the stigmatization of normal sexuality in this case. I'll say that there are no rational grounds for having a regime that sets apart material simply because it is sexually explicit."

Sounding like a man who has already written his closing submission, Mr. Ince proceeds to rhyme off the evidence.

"Why is it that video has to jump through these hoops, as opposed to magazines? Why can I walk into an Internet café and see the same movie that I can't sell in my store? Why is it that I can watch Discovery Channel and see a body that has been completely opened and eviscerated -- but a normal, natural loving act of sex requires a bureaucratic act of approval? The criminal law is completely adequate to cover the situation."

Choosing sex ed films as a litigation vehicle is astute. As fact situations go, they promise to be an easier sell than films depicting leering leather boys in bondage.

"People overestimate the conservative tendencies of the courts to a major extent when it comes to sexual material," Mr. Ince argues. "I see the tide overwhelmingly turning against people who advocate film and video censorship."

It is time for a showdown on censorship merits. If the snippers are truly adding something valuable to the process, let them come out of hiding and show it. However, if they are only another needless layer of bureaucracy -- off with their heads.
kmakin@globeandmail.ca