ARGUMENT

A BARRISTER says: Don’t blame the law for the arts’ troubles with censorship — blame the ignorance of “expert” witnesses

KENNETH SMOOKLER April 2 1966

ARGUMENT

A BARRISTER says: Don’t blame the law for the arts’ troubles with censorship — blame the ignorance of “expert” witnesses

KENNETH SMOOKLER April 2 1966

ARGUMENT

A BARRISTER says: Don’t blame the law for the arts’ troubles with censorship — blame the ignorance of “expert” witnesses

WALK INTO ANY bookstore or variety store from Moncton to Medicine Hat and check the shelves. You will usually find, side by side, such books as Oscar Wilde's The Picture of Dorian Gray, Treasure Island, Lady Chatterley’s Lover, Fanny Hill, Lust Passion and Savage Sex. Morality is relative to the age in which we live. The Picture of Dorian Gray was considered immoral 70 years ago; Lady Chatterley’s Lover was still banned even 10 years ago; and, who knows. Savage Sex may become the classic of the 1990s. But right now in the 1960s most people would agree that there is a distinction between Savage Sex and D. H. Lawrence's much-litigated masterpiece. I think one is trash and the other is art and their incongruous presence on the same bookstall graphically illustrates our present confusion about what is and is not obscene.

What is responsible for this confusion? In my opinion the fault lies with the critics, writers, artists and others who testify as experts in obscenity trials and whose evidence is frequently off the target. In almost every such case in this century the same approach has been used. Both sides call “expert'' witnesses to the literary or artistic merit of the book, movie or work of art that is really on trial. These experts have almost uniformly failed themselves and their public.

What is this crime, obscenity? The dictionary and the Criminal Code make clear that its definition is related to personal reactions. Many of us can remember when the depiction of a lady's cotton-clad knee was obscene. These days every issue of Playboy shows the knee without the stocking and the lady herself, in the words of an old joke, barefoot all over. This reinforces the notion that the public's morals and taste change from generation to generation. Hence experts called in any obscenity case would be able to offer magistrates and judges opinions not only about the formal artistic merit of the work but also about how the subject matter relates to the current moral climate.

A striking example of this failure on the part of the experts to link testimony in artistic terms with the legal side of the problem came up during last November’s trial and conviction of Toronto gallery - owner Dorothy Cameron on seven counts of exhibiting obscene paintings. Miss Cameron’s exhibition, called Eros 65. involved work from various Toronto studios depicting directly or indirectly the act of love. In subject matter the exhibits were frankly sexy. But were

they obscene? The experts called to testify in Miss Cameron’s defence carefully skirted this problem and talked instead of aesthetic values. For instance William Withrow, director of the Art Gallery of Toronto, testified he was “attracted by the patterns of dark and light and the flame-like figures as they flicker across the surface ...”

But why avoid the obvious? There is nothing wrong in law in depicting the act of love — even if, as in one of the paintings in the Cameron case, the act involves Lesbians. The Criminal Code says that only the undue exploitation of sex, not sex itself, is obscene. The Bible illustrates this perfectly. It certainly refers to sex (“And Judah said unto Onan: Go in unto thy brother's wife, and perform the duty of a brother-in-law to her. and raise up seed to thy brother.” — Gen. XXXVIII, 8) but who would say that the revised version of the Bible unduly exploits sex?

What guide do the courts have in deciding whether sex was unduly exploited? In the Lady Chatterlcy case the Supreme Court of Canada said of the book: “It has none of the characteristics that are often described in judgments dealing with obscenity — dirt for dirt’s sake, the leer of the sensualist, depravity in the mind of an author with an obsession for dirt, pornography, and appeal to a prurient interest ...” and then went on to find that "measured by the internal necessities of the novel itself, there is no undue exploitation” (my emphasis). It was artistically necessary for Lawrence to deal with sex as he did.

But. in our legal system, a judge or magistrate can only work with the facts he is given; he cannot supply any himself which are not “open and notorious knowledge in the community” (Christmas is December 25th; traffic in Toronto is much heavier at rush hour than at 3.00 a.m.). Since we know that one of the “facts” must be the artistic merit of the “publication,” and since this is not his field but that of the expert witnesses, they are the ones who shape his ultimate decision — the magistrate or judge must begin with a consideration of “the internal necessities of the novel” (or painting, or movie).

Are the experts then to become lawyers? No, but thorough and specific preparation is their responsibility. Many experts in obscenity trials just enter the witness box and deliver lectures on art of literature illustrated by the work in question. This helps the Court to read the obscenity section of the Criminal Code (S.#150) and discuss it with a lawyer. If the lawyer who is preparing the case fails to perform this duty, the witness should talk to his own lawyer or even find a specialist in the field of criminal law and discuss it with him. Any one intending to give expert evidence has an obligation to prepare himself in this way. His own profession is endangered by a failure to do so.

But even this pre-trial education for the witness is only a short-term solution. In my opinion all publishers, gallery-owners and producers concerned with artistic or commercial distribution would be wise to provide a training course for those who may become expert witnesses, and educate them in the legalities of obscenity. Such a course should, at the very least, cover Section 150 of the Criminal Code as it has been interpreted by the provincial Courts of Appeal and the Supreme Court of Canada. Besides producing more authoritative witnesses the training would also help them to understand what they can and cannot do in their own fields.

Such a program would be worth far

more, in the long run, to any of the “publishing” media than it could cost; for that matter a Canada Council grant might be provided for this purpose. The best lawyers in Canada, the judges who have dealt with the subject, magistrates who have considered obscenity, even the Crown Attorneys who must prosecute obscenity cases should be persuaded to teach; they all have an interest in the best possible evidence being given in any trial.

As a result of the untutored vagueness of the “experts” we lack a critical legal standard for books, movies, and paintings. Without it any attempts to purge the bookstands of their trashier contents results in screams of “censorship” and “destruction of freedom of expression.” The cultural leaders of Canada must evolve reasonable standards by which Lady Chatterley’s Lover and Ulysses can be legally distinguished from Lady of Lust and Youthful Sin, which segregate Robert Markle and stag movies, which, in short, will permit the Courts to assist those of us who care about Canada's cultural future to make it unprofitable to sell what is currently considered dirt without, at the same time, stigmatizing art. If they fail to do this how can they expect magistrates and judges and even Parliament to do anything except perpetuate the present chaotic situation?

Canada is a country in the great tradition of English common law. Precedent dominates Canadian law and every decided case carries its weight in the consideration of every subsequent case in the same area. Whenever an expert testifies he should consider that his evidence will have a decisive effect on the law as it relates to his own field: that he is, in effect, making the law by which he may, himself, be restricted in the near future. KENNETH SMOOKLER