A-1225-83
Tom Luscher (Appellant)
v.
Deputy Minister, Revenue Canada, Customs and
Excise (Respondent)
Court of Appeal, Thurlow C.J., Mahoney and
Hugessen JJ.-Vancouver, March 6 and 7;
Ottawa, March 14, 1985.
Customs and excise - Importation of sexually explicit
magazine for personal use - Importation prohibited as maga
zine classified "immoral" or "indecent" under Customs Tariff
- Tariff item prohibition infringing freedom of expression
guaranteed by Charter s. 2(b) - Prohibition too vague and
uncertain, therefore not reasonable limitation, within Charter
s. 1, on Charter freedom, hence inoperative - Customs Tariff
R.S.C. 1970, c. C-41, s. 14, Schedule C, tariff item 99201-1
- Customs Act, R.S.C. 1970, c. C-40, ss. 47, 48(1) (as am. by
R.S.C. 1970 (2nd Supp.), c. 10, s. 65, Item 12), 50(2) (as am.
by S.C. 1974-75-76, c. 48, s. 25; S.C. 1978-79, c. 11, s. 10)
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 2(b) - Criminal Code, R.S.C. 1970, c. C-34,
s. 158 - Motor Vehicle Act, R.S.B.C. 1979, c. 288, s. 214(2)
(as am. by S.B.C. 1982, c. 36, s. 32).
Constitutional law - Charter of Rights - Freedom of
expression - Importation of sexually explicit magazine for
personal use - Importation prohibited as magazine classified
"immoral" or "indecent" under Customs Tariff - Relevant
tariff item infringing on constitutionally guaranteed freedom
of expression - Limitation not demonstrably justified in free
and democratic society within meaning of Charter s. 1 as too
vague and uncertain, therefore unreasonable - Uncertainty
and vagueness constitutional vices rendering offending provi
sion inoperative - Pre-Charter decisions of little help on
whether limit on Charter-protected right reasonable -
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 1, 2(b) - Customs Tariff R.S.C. 1970, c. C-41,
s. 14, Schedule C, tariff item 99201-1 - Customs Act, R.S.C.
1970, c. C-40, ss. 47, 48(1) (as am. by R.S.C. 1970 (2nd
Supp.), c. 10, s. 65, Item 12), 50(2) (as am. by S.C. 1974-75-
76, c. 48, s. 25; S.C. 1978-79, c. 11, s. 10).
The appellant attempted to import into Canada, for his own
private use, a magazine "completely concerned with the sexual
activity of a man and a woman from foreplay to orgasm". The
Deputy Minister classified it as "immoral" or "indecent" under
tariff item 99201-1, making it a magazine whose importation is
prohibited under section 14 of the Customs Tariff. That clas
sification was confirmed on appeal under section 47 of the
Customs Act. That decision is now being appealed under
subsection 48(1) of that Act on the grounds that, at both levels
below, the determination was wrong and the "community
standard of tolerance" test as established in case law was
wrongly applied. The main argument, though, is that the tariff
item is an unjustified infringement upon the freedoms protected
by paragraph 2(b) of the Charter and, as such, inoperative.
Held, the appeal should be allowed.
The appeal to this Court under subsection 48(1) being
limited to questions of law and the material before the Trial
Judge being more than adequate to support the determination
which he made, his decision that the Deputy Minister properly
interpreted and applied the provisions of the Customs Tariff
should not be interfered with.
It is clear that tariff item 99201-1, read in conjunction with
section 14 of the Customs Tariff, is an infringement on the
freedoms protected by paragraph 2(b) of the Charter. The
question is whether it is a limitation that can be demonstrably
justified in a free and democratic society within the meaning of
section 1 of the Charter. A limit which is vague, uncertain or
subject to discretionary determination is, by that fact alone, an
unreasonable limit. Uncertainty and vagueness are constitution
al vices in the context of the limitation of constitutional rights
and freedoms. Pre-Charter cases are of little help on whether a
limit on a Charter-protected right is reasonable. In this case,
the words "immoral" and "indecent" are nowhere defined in
the legislation. Furthermore, these words are highly subjective
and emotional in their content. They are not even limited to
matters predominantly sexual. And the test of community
standards of tolerance only increases the uncertainty because
the community standards themselves are in -a constant state of
flux and vary widely from place to place across the country. It
is no answer to say that this or that publication is clearly
immoral or indecent. What is significant is the size and impor
tance of the grey area between what is clearly acceptable and
what is clearly unacceptable. In this case, because of its vague
ness and uncertainty, in so far as it prohibits the importation of
matters of immoral or indecent character, tariff item 99201-1 is
not a reasonable limitation upon the freedoms guaranteed by
paragraph 2(b) of the Charter and is of no force or effect.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R.
(2d) 113 (C.A.); Federal Republic of Germany v. Rauca,
[1983] 1 F.C. 525; 145 D.L.R. (3d) 638 (C.A.); The
Sunday Times v. The United Kingdom (1979), 2
E.H.R.R. 245 (Eur. Court H.R.); Miller v. California,
413 U.S. 15 (1972); Ont. Film & Video Appreciation
Soc. v. Ont. Bd. of Censors (1983), 34 C.R. (3d) 73 (Ont.
Div. Ct.); R. v. Robson, judgment dated March 6, 1985,
British Columbia Court of Appeal, Vancouver Registry
No. C.A. 002682, not yet reported; Reg. v. Knuller
(Publishing, Printing and Promotions), [1973] A.C. 435
(H.L.); Priape Enrg. v. Dep. M.N.R. (1979), 24 C.R.
(3d) 66 (Que. S.C.); R. v. Rankine (Doug) Co. Ltd.
(1983), 36 C.R. (3d) 154 (Ont. Co. Ct.).
DISTINGUISHED:
Gordon & Gotch (Canada) Limited v. Deputy Minister of
National Revenue for Customs and Excise, [1978] 2
F.C. 603 (C.A.); R. v. Popert et al. (1981), 58 C.C.C.
(2d) 505 (Ont. C.A.)
REFERRED TO:
Regina v. P. (1968), 3 C.R.N.S. 302 (Man. C.A.).
COUNSEL:
John G. Ince for appellant.
W. B. Scarth, Q.C. and A. G. F. Gilchrist for
respondent.
SOLICITORS:
John G. Ince, Vancouver, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This is an appeal from a decision
of Anderson Co.Ct.J. [(1983), 149 D.L.R. (3d)
243 (B.C. Co. Ct.)] sitting as a "judge" as defined
in section 50 of the Customs Act, R.S.C. 1970,
c. C-40 [as am. by S.C. 1974-75-76, c. 48, s. 25
and by S.C. 1978-79, c. 11, s. 10], on an appeal,
brought under section 47 of that Act, from a
decision of the Deputy Minister classifying a
magazine, Exhibit 1 herein, under tariff item
99201-1 of Schedule C of the Customs Tariff
R.S.C. 1970, c. C-41. Judge Anderson dismissed
the appeal and confirmed the Deputy Minister's
classification of the magazine in question as
"immoral" or "indecent".
On the appeal to us, appellant argued but faint
ly that Judge Anderson and the Deputy Minister
had been wrong in the determination they had
made and in the application of the "community
standard of tolerance" test as established by the
jurisprudence. It would be otiose to recite at length
the cases in which that test was established and
approved and I am quite satisfied that Judge
Anderson correctly instructed himself in law as to
its nature and extent.
The magazine which is the subject matter of the
litigation and the reasons for the appellant having
it in his possession are succinctly and accurately
summarized by the Trial Judge, as follows [at
page 245 D.L.R.]:
The magazine in question is completely concerned with the
sexual activity of a man and a woman from foreplay to orgasm.
There are one or more colour photographs on each of the 40
pages (including the covers) and these photographs are accom
panied by several hundred words of text, in narrative form,
explicitly describing in grossly vulgar language the actions
depicted in the photographs. These actions are in no way
unnatural or unlawful and, indeed, they are a common part of
the lives of Canadian men and women. It is conceded that the
appellant had no intention of circulating or selling the maga
zine. He intended to use it in the privacy of his bedroom as a
means of "fantasy enhancement".
The appeal to this Court under subsection 48(1)
of the Customs Act [as am. by R.S.C. 1970 (2nd
Supp.), c. 10, s. 65, Item 12] being limited to
questions of law and the material before the Trial
Judge being more than adequate to support the
determination which he made, I would not inter
fere with his decision that the Deputy Minister
properly interpreted and applied the provisions of
the Customs Tariff
The principal thrust of the appeal to this Court
is not against the decision of the Deputy Minister,
which was confirmed by Judge Anderson, but
against the legislation under which that decision
was reached. Appellant argues that tariff item
99201-1 is an infringement upon the freedoms
protected by paragraph 2(b) of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] and, as such, inoper
ative as not being saved by the excepting words of
section 1. The appellant does not argue that Par
liament could not prohibit or regulate the importa
tion of material of this sort, commonly described
as "smut", but rather that the prohibition as
drawn in the legislation is invalid. I am in agree
ment with that submission.
Tariff item 99201-1, read in conjunction with
section 14 of the Customs Tariff, prohibits the
importation of:
99201-1 Books, printed paper, drawings, paintings, prints,
photographs or representations of any kind of a treasonable
or seditious, or of an immoral or indecent character ....
Paragraph 2(b) of the Charter enshrines and pro
tects as "fundamental" freedoms:
2....
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
That a prohibition whose first object is "books"
is prima facie an infringement of the freedoms
protected by paragraph 2(b) appears to me to be a
proposition not requiring demonstration.
No freedom, however, can be absolute and those
guaranteed by the Charter are no exception. They
are, by section 1, subject to
1. ... such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society.
That text, in its turn, makes it clear enough that
the task of demonstrating the justification for a
limitation of a protected freedom falls upon
Government.'
In my opinion, one of the first characteristics of
a reasonable limit prescribed by law is that it
should be expressed in terms sufficiently clear to
permit a determination of where and what the
limit is. A limit which is vague, ambiguous, uncer
tain, or subject to discretionary determination is,
by that fact alone, an unreasonable limit. If a
citizen cannot know with tolerable certainty the
extent to which the exercise of a guaranteed free
dom may be restrained, he is likely to be deterred
from conduct which is, in fact, lawful and not
prohibited. Uncertainty and vagueness are consti
tutional vices when they are used to restrain con
' See Re Southam Inc. and The Queen (No. 1) (1983), 41
O.R. (2d) 113 (C.A.); Federal Republic of Germany v. Rauca,
[1983] 1 F.C. 525; 145 D.L.R. (3d) 638 (C.A.).
stitutionally protected rights and freedoms. While
there can never be absolute certainty, a limitation
of a guaranteed right must be such as to allow a
very high degree of predictability of the legal
consequences.
The experience of others is very helpful in this
regard. Article 10 of the European Convention on
Human Rights subjects freedom of expression to
Article 10
2. ... such ... restrictions ... as are prescribed by law and
are necessary in a democratic society ...
It may be noted that the Convention does not in
terms require that the restrictions be "reasonable".
In The Sunday Times v. The United Kingdom
(1979), 2 E.H.R.R. 245, the European Court of
Human Rights said:
In the Court's opinion, the following are two of the require
ments that flow from the expression "prescribed by law". First,
the law must be adequately accessible: the citizen must be able
to have an indication that is adequate in the circumstances of
the legal rules applicable to a given case. Secondly, a norm
cannot be regarded as a "law" unless it is formulated with
sufficient precision to enable the citizen to regulate his conduct:
he must be able—if need be with appropriate advice—to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail. Those conse
quences need not be foreseeable with absolute certainty: experi
ence shows this to be unattainable. Again, whilst certainty is
highly desirable, it may bring in its train excessive rigidity and
the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which,
to a greater or lesser extent, are vague and whose interpretation
and application are questions of practice. (At page 271.)
In the United States, the freedom of speech
protection of the First Amendment is not specifi
cally subject to limitations as in the Charter and
the European Convention and it has fallen to the
courts to define the extent of permissible legisla
tive limits. In Miller v. California, 413 U.S. 15
(1972), the Supreme Court made it clear that
specificity and foreseeability were the first require
ments of any such limits:
This much has been categorically settled by the Court, that
obscene material is unprotected by the First Amend
ment. ...We acknowledge, however, the inherent dangers of
undertaking to regulate any form of expression. State statutes
designed to regulate obscene materials must be carefully lim
ited.... As a result, we now confine the permissible scope of
such regulation to works which depict or describe sexual con
duct. That conduct must be specifically defined by the appli
cable state law, as written or authoritatively construed. A state
offense must also be limited to works which, taken as a whole,
appeal to the prurient interest in sex, which portray sexual
conduct in a patently offensive way, and which, taken as a
whole, do not have serious literary, artistic, political, or scientif
ic value. (At pages 23-24.)
Under the holdings announced today, no one will be subject
to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive
'hard core' sexual conduct specifically defined by the regulating
state law, as written or construed. We are satisfied that these
specific prerequisites will provide fair notice to a dealer in such
materials that his public and commercial activities may bring
prosecution. (At page 27.)
In this country, while experience with the
Charter has necessarily been brief, the courts have
already had occasion to impose minimum stand
ards of certainty and foreseeability as a condition
to a limitation on a protected freedom being shel
tered by section 1. In Ont. Film & Video
Appreciation Soc. v. Ont. Bd. of Censors (1983),
34 C.R. (3d) 73, the Ontario Divisional Court,
dealing with a provincial censorship statute, said:
The next issue is whether the limits placed on the applicant's
freedom of expression by the Board of Censors were "pre-
scribed by law". It is clear that statutory law, regulations and
even common law limitations may be permitted. But the limit,
to be acceptable, must have legal force. This is to ensure that it
has been established democratically through the legislative
process or judicially through the operation of precedent over
the years. This requirement underscores the seriousness with
which courts will view any interference with the fundamental
freedoms.
The Crown has argued that the board's authority to curtail
freedom of expression is prescribed by law in the Theatres Act,
ss. 3, 35 and 38. In our view, although there has certainly been
a legislative grant of power to the board to censor and prohibit
certain films, the reasonable limits placed upon that freedom of
expression of film-makers have not been legislatively author
ized. The Charter requires reasonable limits that are prescribed
by law; it is not enough to authorize a board to censor or
prohibit the exhibition of any film of which it disapproves. That
kind of authority is not legal, for it depends on the discretion of
an administrative tribunal. However dedicated, competent and
well-meaning the board may be, that kind of regulation cannot
be considered as "law". It is accepted that law cannot be vague,
undefined, and totally discretionary; it must be ascertainable
and understandable. Any limits placed on the freedom of
expression cannot be left to the whim of an official; such limits
must be articulated with some precision or they cannot be
considered to be law. (At page 83.)
That decision was approved by the Court of
Appeal in a judgment reported at 7 C.R.R. 129,
where the Court said:
We would go further than the Divisional Court on this issue.
In our view, s. 3(2)(a), rather than being of "no force or
effect", is ultra vires as it stands. The subsection allows for the
complete denial or prohibition of the freedom of expression in
this particular area and sets no limits on the Board of Censors.
It clearly sets no limit, reasonable or otherwise, on which an
argument can be mounted that it falls within the saving words
of s. 1 of the Charter—"subject only to such reasonable limits
prescribed by law". (At page 131.)
More recently still the British Columbia Court
of Appeal struck down subsection 214(2) of that
province's Motor Vehicle Act [R.S.B.C. 1979, c.
288 (as am. by S.B.C. 1982, c. 36, s. 32)], which
permits a peace officer to suspend temporarily a
driver's licence when the officer
... has reason to suspect that the driver ... has consumed
alcohol.
(R. v. Robson, B.C.C.A., March 6, 1985, Vancou-
ver Registry No. C.A. 002682, not yet reported.)
The principal grounds for the decision, as I read it,
were that the provision was, in the words of
Nemetz, C.J.B.C., "riddled with vagueness" and,
in the words of Esson, J.A., "so hopelessly vague
as to be incapable of being a reasonable limit".
Respondent Deputy Minister argues that the
provision of tariff item 99201-1 are not, in fact,
vague and that the words "immoral" and "inde-
cent" have received judicial interpretation over the
years so as to render their meaning reasonably
certain. In this respect, he points to cases such as
Gordon & Gotch (Canada) Limited v. Deputy
Minister of National Revenue for Customs and
Excise, [ 1978] 2 F.C. 603 (C.A.), and R. v. Popert
et al. (1981), 58 C.C.C. (2d) 505 (Ont. C.A.).
In my view, decisions rendered prior to the
coming into force of the Charter are of little help
on the question of whether or not a limit on a
Charter-protected right is reasonable. In pre-
Charter days, courts had no mandate to refuse to
apply a duly enacted statute simply on the grounds
that it was vague or uncertain. Their duty was, as
best they could, to extract a meaning from the
words used by Parliament and to apply it to the
cases before them. That they generally (but not
always) did so without complaining adds nothing
to the debate. What has to be determined today is
whether the words of tariff item 99201-1, together
with any judicial gloss which has been placed on
them, are sufficiently clear to constitute a "reason-
able limit prescribed by law".
The first observation to be made in this regard is
that the words "immoral" and "indecent" are
nowhere defined in the legislation. This at once
serves to distinguish the provisions of tariff item
99201-1 from the obscenity provisions of the
Criminal Code [R.S.C. 1970, c. C-34], which
contains in subsection 159(8) words which might
be thought to give to those provisions sufficient
certainty and particularity.
Secondly, the words "immoral" and "indecent"
are highly subjective and emotional in their con
tent. Opinions honestly held by reasonable people
will vary widely. The current public debate on
' abortion has its eloquent and persuasive adherents
on both sides arguing that their view alone is
moral, that of their opponents, immoral. Standards
of decency also vary even (or perhaps especially)
amongst judges. The case of Regina v. P. (1968), 3
C.R.N.S. 302 (Man. C.A.), provides an interesting
example of a learned and articulate debate be
tween the present chief justices of Canada and
Manitoba respectively, as to whether an act of
heterosexual fellatio performed in private (such as
Exhibit 1 herein depicts, amongst other things)
was grossly indecent. 2
2 The case was, of course, decided prior to the enactment of
the present section 158 of the Criminal Code, by which Parlia
ment legislated an end to the controversy.
While obscenity under the Criminal Code is, by
statutory definition, limited to matters predomi
nantly sexual, there is no such limitation upon the
concepts of immorality or indecency, and this is so
notwithstanding the judicial gloss which has car
ried over into the test for immorality or indecency
the test of community standards of tolerance. As
stated by Lord Reid in Reg. v. Knuller (Publish-
ing, Printing and Promotions), [1973] A.C. 435:
Indecency is not confined to sexual indecency: indeed it is
difficult to find any limit short of saying that it includes
anything which an ordinary decent man or woman would find
to be shocking, disgusting and revolting. (At page 458.)
While it is, of course, true that the judicial
overlay of the community standards of tolerance
test has done something to reduce the inherent
subjectivity of the words "immoral" and "inde-
cent", this has, if anything, had the effect of
increasing their uncertainty. Community stand
ards themselves are in a constant state of flux and
vary widely from place to place within the country.
Yet the courts are obliged to apply a contemporary
and nationwide standard. I need not repeat here
what I had occasion to say in Priape Enrg. v. Dep.
M.N.R. (1979), 24 C.R. (3d) 66 (Que. S.C.). It
finds an eloquent echo, albeit in another context,
in the words of Borins Co.Ct.J., in R. v. Rankine
(Doug) Co. Ltd. (1983), 36 C.R. (3d) 154 (Ont.
Co. Ct.):
In films of this nature it is impossible to define with any
precision where the line is to be drawn. To do so would be to
attempt to define what may be indefinable. (At page 173.)
I would add that it is, of course, no answer to
the argument that a limitation on freedom is so
vague as to be unreasonable to say that this publi
cation or that is so immoral or indecent that it
clearly falls afoul of the prohibition. One might as
well argue that the Tale of Peter Rabbit was
clearly not immoral or indecent and could there
fore be admitted. Even the most defective provi
sion is unlikely to be so vague as not to permit the
placing of some cases on one side of the line or the
other. What is significant is the size and impor-
tance of the grey area between the two extremes.
Vagueness or uncertainty, like unreasonableness,
are not themselves absolutes but tests by which the
courts must measure the acceptability of limits
upon Charter-protected freedoms.
Finally, let it be quite clear that what the Chart
er protects in paragraph 2(b) is not acts or deeds
but thought, expression and depiction. While the
activities shown in the subject magazine are prob
ably, as far as one can determine, legal, it would
make no difference if they were crimes. The depic
tion of murder, real or imagined, is protected by
paragraph 2(b), but that does not mean that the
Charter has declared open season for assassina
tion.
I conclude that, in so far as it prohibits the
importation of matters of immoral or indecent
character, tariff item 99201-1 is not a reasonable
limitation upon the freedoms guaranteed by para
graph 2(b) of the Charter and is of no force or
effect.
In the light of that conclusion, it becomes un
necessary to deal with the appellant's request
made at the hearing that we receive additional
evidence relating to the testimony of the Crown's
expert witness, Dr. Murray, and I would leave the
questions raised by that request for another
occasion.
I would allow the appeal, set aside the decision
of Anderson Co.Ct.J., vacate the decision of the
Deputy Minister made on or about February 16,
1982, and refer the matter back to the Deputy
Minister for redetermination on the basis that
tariff item 99201-1 of Schedule C of the Customs
Tariff is of no force or effect in so far as it
prohibits the importation of matters of immoral or
indecent character. The appellant is entitled to his
costs of the appeal in this Court.
THURLOW C.J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.