Obscenity (Offence)

Obscenity
	s. 163, 165, 167 and 168 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	2 years incarceration
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to obscenity are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 163 [obscenity]	Hybrid Offence(s)		(* only if Crown proceeds by Indictment)	(under 14 years max)

Offences under s. 163 [obscenity] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 163 [obscenity]

When charged under s. 163 [obscenity] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingerprints and Photos

A peace officer who charges a person under s. 163 [obscenity] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 163(1)(a)

Offences under s. 163(1)(a) are designated offences eligible for wiretap under s. 183.

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Obscene materials

163 (1) Every person commits an offence who makes, prints, publishes, distributes, circulates or has in their possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing.

Idem

(2) Every person commits an offence who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing; or

(b) publicly exhibits a disgusting object or an indecent show.

(c) and (d) [Repealed, 2018, c. 29, s. 11]

Defence of public good

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

Question of law and question of fact

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

Motives irrelevant

(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed, 1993, c. 46, s. 1]
(7) [Repealed, 2018, c. 29, s. 11]
[omitted (8)]
R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1; 2018, c. 29, s. 11.

– CCC (CanLII), (DOJ)

Note up: 163 (1), (2), (3), (4), and (5)

Punishment

169 Every one who commits an offence under section 163 [obscenity], 165 [tied sale], 167 [immoral thetrical performance] or 168 [mailing obscene matters] is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

R.S., 1985, c. C-46, s. 169; 1999, c. 5, s. 3.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 169

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
making, distributing, and possessing obscene thing	163(1)	"... did make, print, publish, distribute, circulate or had in their possession for the purpose of publication or distribution or circulation any obscene written matter, picture, model, phonograph record or any other obscene thing, to wit: [particulars],, contrary to section 163(1) of the Criminal Code."
sell or make public written, audio and image of obscene thing	163(2)(a)	"... knowingly, without lawful justification or excuse, sell, expose to public view or had in their possession for that purpose any obscene written matter, picture, model, phonograph record or any other obscene thing, to wit: [particulars],, contrary to section 163(2)(a) of the Criminal Code."
publicly exhibit a show	163(2)(b)	"... knowingly, without lawful justification or excuse publicly exhibit a disgusting object or an indecent show, to wit: [particulars], contrary to section 163(2)(b) of the Criminal Code."

Proof of the Offence

Proving obscene publishing under s. 162(1)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ The accused "makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation" a thing ☐ the thing is is an "obscene written matter, picture, model, phonograph record or other thing whatever;" Proving crime comic under s. 162(1)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation" a thing ☐ the thing is a "crime comic."	Proving selling to public under s. 162(2)(a) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "sells, exposes to public view or has in his possession for such a purpose any obscene" thing ☐ the thing is an "obscene written matter, picture, model, phonograph record or other thing whatever" ☐ the culprit was aware of the character of the thing Proving Public exhibition under s. 162(2)(b) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "publicly exhibits a disgusting object or an indecent show;" ☐ the culprit was aware of the character of the object or show
Proving distributing means of abortions under s. 162(2)(c) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "offers to sell, advertises or publishes an advertisement of, or has for sale or disposal" of a thing; ☐ the thing is "any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage"; ☐ the culprit was aware of the character of the thing Proving distributing mean of restoring sexual virility under s. 162(2)(d) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "advertises or publishes an advertisement of" a thing ☐ the thing is "any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs." ☐ the culprit was aware of the character of the thing

Interpretation

Circulation

"Circulation" must involve "some public element" and cannot include showing in one's home.^[1]

"Public view" does not include private showings.^[2]

"Obscene"

"Obscene" is defined under s. 163(8) as:

163
[omitted (1), (2), (3), (4), (5), (6) and (7)]

Obscene publication

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1; 2018, c. 29, s. 11.

– CCC (CanLII), (DOJ)

Note up: 163 (8)

The combination of sex and violence "will almost always constitute the undue exploitation of sex."^[3]

"Explicit sex" that is "degrading or dehumanizing may be undue if the risk of harm is substantial."^[4]

The character of the target audience of the materials is not a relevant consideration as to whether the materials are obscene.^[5]

Public Good

The "public good" refers to the "necessary or advantageous to religion or morality to the administration of justice, the pursuit of science, literature or art, or other objects of general interest."^[6]

"Public good" is also used in a defence for child pornography and Distribution of Intimate Images (Offence).

Constitutionality

Section 163(6), now repealed, violates s. 7 of the Charter and is no force or effect.^[7]

↑ R v Rioux, 1969 CanLII 83 (CSC), [1969] SCR 599, per Hall J
↑ Rioux, ibid.
↑ R v Butler, 1992 CanLII 124 (SCC), [1992] 1 SCR 452, per Sopinka J
↑ Butler, ibid.
↑ R v Germain, 1985 CanLII 54 (SCC), [1985] 2 SCR 241, per Dickson CJ and Lamer J
↑ R v American News Company Limited, 1957 CanLII 119 (ON CA), 118 CCC 152, per Laidlaw JA
↑ R v Metro News Ltd, 1986 CanLII 148 (ON CA), 29 CCC (3d) 35, per Martin JA

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 163 [obscenity]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

For general principles on sentence for sexual offences, see Sexual Offences

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 163 [obscenity]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 163 [obscenity]	indictable election	2 years incarceration

Offences under s. 163 [obscenity], 167 [immoral theatrical performance] or 168 [mailing obscene matter] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 163 [obscenity], s. 167 [immoral theatrical performance] or s. 168 [mailing obscene matter]	any

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Obscenity (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

None

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 163 [obscenity] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

Victim Under 18 Years

Convictions under s. 163(1)(a) or 163(2)(a) (in either offence where victim is under the age of 18) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

Prior to December 13, 2018, the offence read as follows:

Corrupting morals

163 (1) Every one commits an offence who

(a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene written matter, picture, model, phonograph record or other thing whatever; or

(b) makes, prints, publishes, distributes, sells or has in his possession for the purpose of publication, distribution or circulation a crime comic.

Idem

(2) Every one commits an offence who knowingly, without lawful justification or excuse,

(a) sells, exposes to public view or has in his possession for such a purpose any obscene written matter, picture, model, phonograph record or other thing whatever;

(b) publicly exhibits a disgusting object or an indecent show;

(c) offers to sell, advertises or publishes an advertisement of, or has for sale or disposal, any means, instructions, medicine, drug or article intended or represented as a method of causing abortion or miscarriage; or

(d) advertises or publishes an advertisement of any means, instructions, medicine, drug or article intended or represented as a method for restoring sexual virility or curing venereal diseases or diseases of the generative organs.

Defence of public good

(3) No person shall be convicted of an offence under this section if the public good was served by the acts that are alleged to constitute the offence and if the acts alleged did not extend beyond what served the public good.

Question of law and question of fact

(4) For the purposes of this section, it is a question of law whether an act served the public good and whether there is evidence that the act alleged went beyond what served the public good, but it is a question of fact whether the acts did or did not extend beyond what served the public good.

Motives irrelevant

(5) For the purposes of this section, the motives of an accused are irrelevant.
(6) [Repealed, 1993, c. 46, s. 1]

Definition of “crime comic”

(7) In this section, “crime comic” means a magazine, periodical or book that exclusively or substantially comprises matter depicting pictorially

(a) the commission of crimes, real or fictitious; or

(b) events connected with the commission of crimes, real or fictitious, whether occurring before or after the commission of the crime.

Obscene publication

(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.
R.S., 1985, c. C-46, s. 163; 1993, c. 46, s. 1.

– CCC (CanLII), (DOJ)