THERE’S A FAIR CHANCE that the next session of parliament, no matter which party forms the government, may rid Canada of a system of book censorship that is the silliest in the civilized world. If all goes well 1958 will see the repeal of that fatuous sieve-stopper, Article 1201 of the Customs Tariff— the article that makes the Canadian customs officer a censor in spite of himself.
He is. in fact, the only censor Canada has—he and his departmental superiors. The men whose job it is to collect customs and excise duties and prevent smuggling are also the men, and the only men in Canada, who have power to condemn a book without trial. By arbitrary and secret decision they can bar any book published abroad (as most of our books are, including many by Canadian authors) from entry into Canada, if it happens to strike them as indecent. There is an appeal from this judgment, to the Tariff Board, but no prior hearing: the right of appeal to the Tariff Board has not been widely known and was never exercised until a few months ago.
Customs officers do not like this unwelcome task which has been theirs since the first parliament after Confederation. Their views on censorship in general may vary with the individual, but they all agree on one thing: they themselves do not want to be censors. It is something quite out of their line.
They know, for one thing, that Article 1201 is unenforceable. Books are kept out of Canada more by chance
than by any rational method—a customs man happens to sniff at the title, or the cover design, of a new imported book, or (more commonly) some individual citizen complains that a certain imported book is indecent, and thus compels the department to look into it. Dozens of others just as bad come across the border unnoticed.
I hey know too that even if they were one hundred percent successful, they would still fail to suppress indecent literature. They have no power whatever over books printed in Canada. The effect of Article 1201, if it could be enforced, would be to protect a Canadian pornographic industry.
All these facts have been learned by experience for ninety years. But for ninety years one government after another, from John A. Macdonald’s to Louis St. Laurent’s, has feared to touch Article 1201 lest it be accused of pandering to pornography.
Two things now have happened to reduce this danger, or anyway the fear of it. One is the fact that the Tariff Board, for the first time in history, was asked to exercise the function it has had all along, and review a ban imposed by the minister of national revenue.
The book is Peyton Place, a novel of small-town New England. By all accounts it is a rather gamy piece of work. Few critics have been greatly impressed by its literary qualities. However, it is a best seller in the United States, both in hard covers and in a paper-backed cheap edition, and when it was excluded from Canada the publisher appealed.
But officials were astonished to find very little apparent interest in the case. The Tariff Board sat for two days on Peyton Place, but only one witness appeared to testify in favor of the ban. He was the Rev. J. R. Mutchmor of the United Church of Canada, and he was careful to make it clear that he was testifying solely as an individual and not as a spokesman of his church. The publisher introduced three witnesses opposed to the ban, two professors and a radio commentator; that ended the case so far as public testimony was concerned. The whole thing seemed to attract little attention.
However, the Tariff Board hearing was the later and less important of the developments that point toward change. The other was a decision to strengthen those sections of the Criminal Code that deal with obscene literature.
Davie Fulton, the minister of justice, revealed this intention in answer to a question shortly before parliament was dissolved; he said he hoped to introduce the amendments at the next session. Even if the government were defeated Fulton would probably introduce them anyway, and probably have them accepted as he did a few years ago in the case of crime comics. Indications are that the Liberals, or most of them, would support this change.
To the Department of National Revenue this looks like a moment of opportunity. When the real restraints on pornography are being tightened, surely it’s a good time for the pretended and preposterous one to be removed. Now, if
ever, the public would not object too strenuously.
George Nowlan, the minister of national revenue, is quite willing to see Article 1201 repealed. He is more liberal-minded than some of his Liberal predecessors, and he looks on the whole principle of censorship with distaste. Also, he is a lawyer, and he doesn’t like flouting the law by obliging his officials to enforce the unenforceable.
Actually, the first effect of both these changes will probably draw cries of “I told you so” from their respective critics. Repeal of Article 1201, in the opinion of the very officials who most want it repealed, will bring a temporary upsurge in the flow of improper literature from abroad. They are quite confident it will be no more than temporary, if only because any indecent book that turns out to be popular is usually printed in Canada anyway, but they do expect a flood of the stuff at the beginning.
And on the other hand, amendment of the Criminal Code is likely to bring a new flurry of prosecutions, some of which no doubt will be directed against serious books that do not deserve it, but that might be convicted nevertheless. In the end, though, it’s expected that this effect will be as transitory as the other. The fact is that the Criminal Code as it stands is quite strict enough to condemn any book that deserves the name pornography, and many that do not.
About three years ago, in one of
these periodic outbursts of severity, charges were laid against a number of books, including one called Episode. This was a novel that sounded like autobiography, the story of a mental breakdown and recovery. It was not great literature but it did seem an honest and serious work to many readers, including this one. (I was a witness for the defense at its trial.) However, the jury thought otherwise and so did the trial judge—the verdict was guilty and the fine was five thousand dollars.
But the very trial that condemned the book set up one useful bit of jurisprudence for books in general. The crown prosecutor wanted to make his case by having a police sergeant read to the jury certain passages taken out of context as evidence of obscenity; the judge ruled that the jury must read the whole book.
Another point, perhaps more important: Episode had previously been published in a hard-cover edition with a plain, attractive jacket and an accurate, or at least a literate, description of it printed thereon. This edition attracted no official notice, and little of any kind. The one that caught a policeman’s eye was a paper-backed copy adorned with a half-clad female and a set of blurbs designed to convince the prurient reader that this was indeed hot stuff. Even among the defense witnesses there were some who thought the publisher of the paper-back (though not the original publisher) had asked for the treatment he got.
In any event the book had a trial, a fair trial. It was considered innocent until proven guilty to the satisfaction of a jury. Neither book nor man can hope for much better. Whatever is done to “tighten” the Criminal Code, the situation is likely to be much the same: books by serious writers, printed by serious publishers, will probably be left alone. Books offered as pornography— whether fairly or not—may be treated as such, it
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