The Director appointed to administer the B.C. Motion Pictures Act has the power not only to classify films (sec. 5a), but also to cut them (5b) and to prohibit their showing altogether (5c). We believe that the Director’s duties should be limited strictly to the classification of films and that the Director should no longer have the power to cut or prohibit them.
There is a crucial distinction between the power to classify and the power to cut and prohibit. It is possible to justify a system of classification for the reason that it informs those members of the community who may be offended, for instance, by scenes of nudity or violence. (Here we would interject that the particular system of classification embodied in the B.C. Motion Picture Act displays very good sense and Mr. McDonald[the Director of Classification in 1972]’s use of it to instruct the public about the actual contents of a film is to be congratulated.) A system of this kind, however, leaves the final judgement to the individual members of the community. They may be guided by the warning, or they may choose to disregard it. The decision and the responsibility is theirs. The power to censor and prohibit, on the other hand, is entirely different in nature. It is no longer the individual members of the community who are left free to decide; the decision is taken for them by the Director.
Here lies the crux. A system of classification aims to protect without limiting freedom. The power to prohibit, irrespective of how often or how seldom it is exercised, limits freedom, and it limits freedom of a very special kind. In a democratic self-governing community it is essential that its members not delegate away certain powers which are vital to the performance of their civic roles unless reasons of the most compelling kind force them to do so. Among these powers are the powers to decide for themselves what they shall read, hear or see. The actual worth of what they read, hear or see is not what is at issue. What is at issue is whether the individual members of the community arrive at assessments of worth through the exercise of their own judgement. If it is not thought proper for them to do so, an important principle is compromised and those individuals are weakened for the purpose of carrying out their civic duties. So much, we hope, is clear and obvious.
It immediately follows that restrictions on these vital freedoms, if they are to be accepted at all, can only be accepted on the basis of powerful and conclusive arguments that a greater harm would result from the exercise of these freedoms. No such case as yet exists, and we are therefore opposed to censorship whether it is practised by the federal or by the provincial governments. The most thorough review of the available evidence is in the recently published Report of the United States Commission on Obscenity and Pornography. On the strength of its examination of the evidence, the Report states:
If a case is to be made against “pornography” in 1970, it will have to be made on grounds other than demonstrated effects of a damaging personal or social nature.Empirical evidence designed to clarify the question has found no reliable evidence to date that exposure to explicit sexual materials plays a significant role in the causation of delinquent or criminal sexual behaviour among youth or adults.
In fact, some of the available evidence points the other way. It is a remarkable fact that in Denmark where obscenity laws have been almost completely repealed, the number of sexual offences has declined markedly since repeal. We do not want to press this evidence too strongly except to show that one country at least has adopted the policy we favour and that country, by all reports, is alive and well!
Our basic argument, then, is that while a clear and persuasive case can be made for a law which permits the classification of films as a protection of the public against the offence they might feel at seeing a given film, there exists no parallel argument justifying the cutting of films and the prohibition of their showing. If the fundamental purpose of the law is to protect against offence, this is done well enough by classification. If the purpose of the law lies beyond this, then the case needs to be made showing the nature and the seriousness of the harm caused by films which would justify the imposition of restrictions on the freedom of the members of the community.
This brings us to our second argument. If we are to have censorship—and let us repeat that we would oppose such a measure—then we must have a law which is very different in character from the B.C.Motion Pictures Act. To be more specific, we need a law which is administered by the courts.
Without treading very heavily on the issue of federal and provincial jurisdictions, we are bound to point out that the obscenity provisions of the Criminal Code already cover this area. Apart from the confusion which is necessarily generated by having two legal provisions covering the same area, we believe that the interest of film distributors and of the public are best protected when restrictions on freedom are administered by the courts rather than administrative officials. Not only are the deliberations of the courts much more accessible to public inspection and scrutiny, but their procedures are better adapted for insuring fairness and justice. Even though the B.C. Motion Pictures Act provides for the appointment of a Appeal Board by the Lieutenant Governor, still the methods of the courts, evolved over a considerable period of time, offer better safeguards, for instance, through their rules of evidence, guaranteed opportunities for the use of counsel and for the cross-examination of those presenting opposing evidence. We are prepared to entrust Mr. McDonald and his successors with the powers to classify; but we believe that it is dangerous to entrust the office of the Director with wider powers than these. In any individual case he might use his powers responsibly; but again he may not. It is the procedural guarantees built into the courts which allow us to entrust them with such powers.
There is one further point we would like to draw to the Committee’s attention. It particularly concerns the power to cut films. A hard won principle which has been established in Canadian, British and American courts is that a film or book is to be judged as a whole and not on the basis of its individual parts alone. By this rule particular passages or sequences are to be judged only in the light of their impact on the work as a whole. The power given to the Director to use his scissors to cut is one which easily erodes and threatens this principle. It is an inducement for him to judge each scene on its own and to take on the officer of an editor.
We would emphasize that the Director is given an unusual power over the film distributor, and one which we regard as highly dangerous. If he can cut, he can negotiate and law down conditions. As we have said, he is encouraged to see himself as an editor. What is more, he practises this office outside the public view. The power of the Director’s scissors is like the power of the blue pencil which the Lord Chamberlain once used in England on the manuscripts of plays. This office has been abolished in England and its function has reverted to the criminal law. And rightly so. Far more menacing than the power of post censorship is that of prior censorship (prior, that is, to publication or display) which is not essentially public, which is in the hands of an administrative officer and not the courts, and which encourages that officer to see his desk as that of an editor.
In sum, then, we oppose censorship; but if we are forced to have it, then its proper home is in the criminal law under the jurisdiction of the courts. We suggest that the Special Committee can make the B.C. Motion Pictures Act a better and more coherent one of it recommends that the Director’s powers are limited in the ways we have outlined.