Sometimes it’s the frustration of walking into a British Columbia liquor store and finding that you are “protected’ from buying just about every good French or California wine in existence. Or it’s living in Toronto and finding that you can't see the latest play by Theatre Passe Muraille because police pressured the production out of existence (no charges, just threats). Or it's living in Quebec and trying to find a hospital with an active referral committee for legal abortions. For Gerard McNeil, back in January, 1974, the last straw came when the Nova Scotia Board of Censors banned Last Tango In Paris, presumably on the grounds of “obscenity” (“presumably,” because censors never give reasons for their decisions).
For years, like most Canadians, McNeil had docilely accepted any amount of rigmarole, red tape and strangulating regulations that the provincial and federal governments handed down. This time something snapped: dammit, he raged to himself, I don’t need a bunch of do-gooders telling me what I can see at the movies; doesn’t anybody care about civil liberties in this country? The same board had earlier banned Stanley Kubrick’s A Clockwork Orange. McNeil was furious. He's proud of being a Nova Scotian and, in addition to simply wanting the adult freedom to see movies of his personal choice, he hates anything that reinforces the idea of Nova Scotia as some prudish, unsophisticated hicksville. He was, at the time, editor of the Dartmouth Free Press, and he waged an energetic, but ineffectual, editorial campaign against the board and censorship in general. The board was unmoved. That’s when he decided to do an almost unheard-of thing: without means, or clout, simply as a private citizen, he would challenge the censors.
Initially McNeil had sought to have the board reconsider the banning of a film that many critics and filmgoers regarded as one of the year’s best; a film shown without cuts in all other Canadian provinces and, moreover, already acquitted of obscenity under Canadian law following a trial in Manitoba. The board continued to ignore him. It knew, in the unassailable security of its collective mind, who was the elephant and who was the mosquito. When it did reply to McNeil, in its own sweet time and convoluted way, he was told, in effect, “Buzz off!” Rebuffed and provoked, he moved from appealing the board’s judgment to impaling it in court. It was no longer a question of one film but all films, and of principle; this time he would challenge the constitutionality of the Nova Scotia Board of Censors — and, by direct implication, the legal position of censors in all other provinces.
His argument was simply that there is no constitutional provision for any body or group, other than courts of law, to define or judge obscenity, and there is no other legal basis for regulating the content of films. When a film is cut or banned (Ontario, for example, cut 134 films last year and banned six) by provincial censors it is obvious they find it offensive in some way. But offensiveness is not a crime. A film is either obscene as defined by the Criminal Code, or it is not.
It took McNeil 14 months and cost him $15,000 to win even the right to press his case against the censors in the Nova Scotia courts. Robert Murrant, his young, aggressive lawyer, has had to argue his way through a maze of minor legal technicalities all the way to the Supreme Court of Canada just to establish McNeil’s right as a private citizen to challenge provincial censorship laws. Three other provinces
— Ontario, Saskatchewan and Alberta — sent lawyers to argue before the Supreme Court on Nova Scotia’s behalf, indicating a new respect for the “mosquito.”
On May 21, Chief Justice Bora Laskin, speaking for the full nine-member court, noted that none of the provinces opposing McNeil disputed that he had raised a substantial constitutional issue. The court therefore ruled McNeil had an arguable case, and gave him the right to proceed.
The next round of legal proceedings begins in mid-September in the Supreme Court of Nova Scotia, and McNeil estimates that costs may easily run $15,000 this time. He has virtually no money for this kind of enterprise, though on the night following the Supreme Court decision the National Press Club in Ottawa (where McNeil now works as a Canadian Press reporter) held a $50-a-plate dinner to help him out and raised $4,000. Just over $1,500 has been received through unsolicited donations to a trust account (Censorship Fund, Box 812, Dartmouth, NS). “It’s really the money more than anything that worries me,” McNeil said. “It would take years and years to ever pay off something like $25,000 in legal fees and other costs.”
Which brings up another issue that Canadians should be conjuring with: why should an ordinary citizen such as Gerry McNeil have to bear the cost of fighting an injustice that oppresses all Canadians. This is no crank, no crazy, pushing some frivolous and inconsequential private grudge
— the Supreme Court decision should be proof enough of that. This is a significant constitutional question which the government of Canada should probably be pursuing on its own. But as it now stands, if some day we are free of moralistic paternalism in this country, it will be largely due to the efforts of this one man.
Should McNeil win, and we should know that by October or at the latest next January (depending on whether or not it ends in Nova Scotia or goes to the Supreme Court of Canada on final appeal), the entire process of exhibiting films in Canada will be radically changed. There will be no more provincial snipping and pruning and banning. The courts will rule on what is or is not obscene. The decisions of the courts may be repulsive, especially to those of us who believe adults should be able to see what they want, but at least it would be constitutional. Ideally, of course, there would be no restrictions, and Canadians would do some growing up, which — as every poll on censorship taken in this country shows — they have every willingness to do.
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