Spanking Butts, is it Really Obscene?Edit
Jorgensen was selling pornographic videos in his adult film store that were deemed to be "obscene" by undercover police who viewed them. Specifically of interest were "Bung Ho Babes", "Made in Hollywood", and "Dr. Butts", all of which featured women's buttocks being spanked. Jorgensen was charged with "knowingly selling obscene material" under s.163(2)(a). He was convicted at trial and the conviction was upheld on appeal.
- Does s.163(2)(a) of the Code require that the retailer have knowledge of the specific acts that make the material obscene in law, or is it sufficient to show that they had a general knowledge that the materials dealt with the exploitation of sex?
Sopinka, writing for the majority, goes into the definition of "knowingly", and determines that it means that the retailer must have specific knowledge of the acts that are lawfully deemed to be "obscene" in order to satisfy the mens rea requirements of the offence. It does not matter if the retailer thinks the contents of the film are obscene, as long as he has knowledge of the specific instances that are legally "obscene". This was not present in the case at bar. However, this restriction does not apply to the producers of the film, as they are presumed to know what is in the films.
He also dismisses the notion of willful blindness, stating that it only applies when a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance. This is not the case here, as the retailer cannot be said to actually know the contents of the movies – he rented lots of movies and did not know what they all portrayed. He knew that they were generally sexually exploitative videos, but these are generally not "obscene", they only become so when they are violent, etc. The retailer had no knowledge of their contents of this nature.
Finally, Sopinka says that the fact that Jorgensen knew that the movies had been approved by a film review board, although not conclusive evidence of his innocence, helps his case.
Lamer, in a concurring judgment, sets out a specific test to determine if ignorance of the law will count as an excuse. He calls this exception "Officially Induced Error of Law" and states that it functions only as an excuse and not as a full defence. It can only be raised after the Crown has proven all of the necessary elements of the offences, and, if successful, does not result in an acquittal but only a stay in proceedings. To be successful, the accused must show:
- the error was in fact an error of law, or mixed law and fact, and not simply an error of fact;
- the accused considered the legal consequences of his or her actions before proceeding;
- the advice obtained considering the legality of the actions must have come from an appropriate official - generally, government officials involved in the administration of law will suffice;
- the advice must have been reasonable in the circumstances - generally, proving that an appropriate official gave the advice will satisfy this step;
- the advice must have been erroneous, but the accused does not need to prove this; and
- the accused must have relied upon the advice when doing the action(s).
- In general "knowingly" means that one must have knowledge of the specific contents that violate the law; anything less than this will not suffice.
- Willful blindness can only apply where a party is suspicious, and intentionally refuses to investigate further; it is more substantial than recklessness, and is equivalent to knowledge.
- Officially induced error of law works as an excuse, but not a full defence – it only creates a stay of proceedings; it can only be raised after the Crown has proven all of the necessary elements of the offence.
- In order to be excused, the accused must prove:
- the error was an error of law, or mixed law and fact;
- they considered the legal consequences before proceeding;
- the advice obtained came from an appropriate official;
- the advice was reasonable;
- the advice was erroneous; and
- they relied upon the advice when doing the action(s).