Charges wouldn't likely stand up in court, Vancouver lawyers say
Chad Skelton - Vancouver Sun - Wednesday, June 11, 2003

Vancouver Police vowed Tuesday to proceed with criminal charges against a Kitsilano theatre group if it goes ahead with plans to stage a play featuring oral sex.

But several prominent defence lawyers told The Vancouver Sun prosecutors would likely be on shaky legal ground if such a case ever got to court.

Police initially said they would not investigate the production of Public Sex, Art and Democracy -- which producers say will include two amateur actors engaging in oral sex -- unless they receive a complaint about it.

But on Tuesday afternoon, the department said that if the performance, which is due to premier June 26, goes ahead as planned, police will recommend charges under Section 167 of the Criminal Code, which prohibits any "immoral, indecent or obscene performance."

"After having consulted with the vice unit, I have been informed that we would proceed with charges," said police spokeswoman Constable Sarah Bloor.

John Ince, co-owner of the Art of Loving store where the play will be performed, said he can't understand why police would target his play, when much more graphic forms of pornography are freely available at movie theatres and video stores.

"The Kitten Theatre on Main Street shows graphic sexual conduct ... [and] there's nobody prosecuting them," Ince said. "Why is it that it's OK in a pornographic context, but in an artistic, wholesome context, they tell me they're going to charge me with a criminal offence? This is irrational."

In the landmark 1992 Butler decision, the Supreme Court of Canada ruled that explicit sexual materials that were violent, degrading or dehumanizing were "obscene" under the Criminal Code, but that simple explicit sex was not -- in effect, making hard-core movies and magazines legal across the country.

However, that decision only applied to Section 163 of the Criminal Code, which deals with publications and movies. The constitutionality of Section 167, which deals with lives performances, is less clear, in large part, legal experts say, because charges under that section are relatively rare.

In other words, as the law stands now, while it may be illegal for the Art of Loving store to show a play containing explicit sex to an audience, it would be perfectly legal for it to film the performance and sell the tapes to customers.

But lawyers contacted Tuesday said there is a strong constitutional case to be made that the definition of obscenity for movies and magazines should apply to live performances as well.

"What's the difference between this [play] and going to see a movie with an explicit sex scene in it?" asked James Sutherland, a Vancouver defence lawyer who has handled several obscenity cases. "And if the courts have already ruled that that's not obscene, then how could this possibly be? It is a different medium, nothing more."

Indeed, the only type of "indecent performance" which the Supreme Court explicitly outlawed, in a 1997 case, is lap-dancing. That decision focused on the sexual contact between dancers and customers.

Victoria lawyer Joseph Arvay said Section 167 is also vulnerable to a constitutional challenge on free speech grounds because -- unlike Section 163 -- it doesn't include a defence based on artistic merit.

"The people putting on the play would certainly have a very good argument that the section is unconstitutional," he said.

Arvay said Section 167 could also be ruled unconstitutional because it outlaws not only those performances which are obscene, but those that are "immoral."

In its decision in Butler, Arvay said, the Supreme Court moved away from criminalizing porn based on morals, and instead focused on the harm caused to women by obscene materials that are violent or degrading.

"The Supreme Court of Canada has moved away from a morality basis to one that is harm-based," Arvay said. "That's what [the Butler decision] is about. And Section 167 on its face, says that something which is immoral ... is, by itself, punishable."

The B.C. Civil Liberties Association said it does not think the police should interfere with the production -- which is open only to those 19 and over, who pay money to see it.

"Quite frankly, we don't see why there should be a criminal prohibition on this," said Murray Mollard, the association's executive director. "It is consensual. The people who are coming to see the performance are freely coming to it. Where's the harm?"

The Vancouver police refused to comment on the likelihood of obtaining a conviction against the play's producers, saying it is only the department's job to enforce the law.

"Ultimately, our responsibility is to follow the rule of law. So we would act in accordance with the Criminal Code of Canada," said Bloor. "It would ultimately be Crown counsel's decision whether to proceed."

© Copyright 2003 Vancouver Sun