Citation: R. v.

Price Date: 20040423

2004 BCPC 0103 File No: 141079-3-C2
Registry: Vancouver

2004 BCPC 103 (CanLII)

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
CRIMINAL DIVISION

REGINA

v.

RANDY PRICE

REASONS FOR JUDGMENT

OF THE
HONOURABLE JUDGE R. R. LOW

Counsel for the Crown: M. Mahoney

Counsel for the Defendant: K. Snowsell
Place of Hearing: Vancouver, B.C.
Dates of Hearing: Feb 16-March 19, 2004
Date of Judgment: April 23, 2004

[1] Randy Price (Mr. Price) is charged with making, distributing and circulating nine obscene videos
or alternatively possessing the same nine obscene videos plus two others, (The Eleven Videos) for the
purpose of publication, distribution and circulation. Twenty such offences involving the Eleven Videos are
alleged to have been committed during four overlapping periods of time between August 7 and November
7, 2002.

[2] Of the twenty counts against Mr. Price, Counts 1, 2, 3, 9, 11, 13, 15, 17 and 19 are alternative,
respectively, to counts 4, 5, 6, 10, 12, 14, 16, 18 and 20.

[3] The Crown has proceeded by indictment. Mr. Price has elected trial in Provincial Court. The
maximum sentence for each offence according to S. 169 of the Criminal Code is two years prison.

[4] The Eleven Videos portray bondage and discipline, dominance and submission, sadism and
masochistic activities (BDSM).
[5] The evidence for the Crown consists of the contents of the Eleven Videos and various
admissions.

[6] Although Mr. Price did not testify, he called a number of witnesses including two medical Doctors
who were qualified to give opinions regarding, inter alia, human sexual practices including BDSM. The
Defence also played a number of videos, compact disks (CDs), material from various web sites on the
Internet, and entered various magazines and books.

2004 BCPC 103 (CanLII)

[7] There are a number of technical issues raised by the Defence regarding the case called by the
Crown but the overriding issue is whether the contents of the Eleven Videos are obscene as defined in S.
163(8) of the Criminal Code.

[8] There are no issues concerning the credibility of the various witnesses called, although there are
questions to be resolved with regards to the weight I can give to some of their evidence.

[9] The Crown objected on the grounds of relevance to most of the evidence called by the Defence. I
allowed the Defence evidence on the basis that this issue could best be determined by the weight I might
attribute to the evidence.

FACTS

[10] I have found the evidence called by the parties, proves beyond a reasonable doubt the following
facts.

[11] Since 1995 world wide communication has been fundamentally altered by the development of
people's ability to communicate with each other through their personal computers. There is now an
international network of interconnected computers called the Internet. The Internet enables people to
communicate instantaneously with any number of people at any time, any where in the world using a
variety of communication and information retrieval systems.

[12] All these systems provide a medium, by which people can provide or access material via text,
sound, pictures and moving video images. The World Wide Web is one well known system. Material is
compiled on the World Wide Web at specific locations called Websites.

[13] The only requirements to access material at Websites are:

a) Access to a personal computer which has an operating system

featuring a Web browser and an email program. It is rare for a personal
computer not to have these systems;
b) Access to an Internet Service Provider (ISP) such as Telus.
These ISPs are commonly available in Canada upon payment of a fee.
People access ISPs privately or through means provided by others such
as employers, universities, libraries or internet cafes.
c) Some technical knowledge in the operation of a personal
computer;
d) In some cases the ability to pay a fee to enter a Website. The
fee can most often be paid by credit card or in some cases by posted
personal cheque or by telephone.

[14] Unlike television or radio, access to the Internet requires a person to take a number of affirmative
steps and to have a limited degree of knowledge and skill in the operation of a computer.
[15] Seventy-three percent of adult Canadians have access to the Internet. I take judicial notice of the
fact that Canadians under the age of 19 also have access to the Internet but I have no evidence before
me as to how widespread this access is and whether this access is legally restricted in any Canadian
jurisdiction.

[16] I also take judicial notice that parents have the option to control their children's access to the
Internet either by way of direction or mechanically.

2004 BCPC 103 (CanLII)

[17] The Eleven Videos were made in the City of Vancouver, B.C. under the auspices of Sweet
Productions Inc. (SPI). Mr. Price is the operating mind of SPI.

[18] In addition to making the Eleven Videos, SPI made them available to paying subscribers through
various web sites it controls on the Internet, or similar web sites controlled by others but who have a
contract with SPI to use their videos.

[19] SPI made the Eleven Videos solely for the purpose of making them available to any member of
the public, through the Internet, upon payment of a fee. The ultimate purpose of SPI in collecting this fee
is to make a profit.

[20] Any person with a valid credit card may obtain unlimited access to any material on any website
controlled by SPI.

[21] There are at least seventy websites on the Internet which provide access to portrayals of BDSM
activities, information about BDSM generally, information pertaining to BDSM activities such as parties
and conferences plus where to obtain equipment and supplies for carrying out BDSM activities.

[22] These websites make available a vast amount of material which is at least similar and in many
cases identical to the material portrayed in the Eleven Videos. Some of the material at these websites
portrays even more extreme examples of BDSM activities than shown in the Eleven Videos.

[23] In addition, there is a vast amount of written material such as magazines, periodicals,
newspapers and books plus video tapes or films which contain material which is at least similar and in
many cases identical to the material portrayed in the Eleven Videos. The Canadian public has generous
access to these materials through private vendors or lenders, public libraries, or cinemas.

[24] Various exhibits were entered by the Defence listing a large variety of books, videos and
television programs which are commonly available in the City of Vancouver and throughout Canada.
Excerpts from these materials were provided to the court. The material portrayed scenes similar in nature
to those portrayed in the Eleven Videos. However, most of this material was not as graphic as that
contained in the Eleven Videos.

[25] The Defence also filed a copy of the book American Psycho and played extracts from the movie
adaptation of this book. In addition, the Defence played extracts from movies such as Fetishes and
Mistresses, Sick, I Spit On Your Grave, Henry Portrait of a Serial Killer, Rape Me, Irreversible and a
television show Kink. All of this material is readily available to Canadians either in book stores, libraries,
movie theatres, video rental shops or on cable television.

[26] Fetishes and Mistresses, Sick and Kink can be described as documentary films discussing the
BDSM culture. There is a fair amount of nudity and portrayals of scenes that are similar to the Eleven
Videos. With the exception of Sick none of the portrayals of BDSM scenes or the degree of nudity in the
documentary videos are as extreme or graphic as in the Eleven Videos. There are some very extreme
scenes and graphic nudity in Sick. In particular the principal character at one point is graphically filmed
using a hammer to drive a nail through his penis, thus affixing it to a board.
[27] I Spit On Your Grave, Henry Portrait Of A Serial Killer, Rape Me, American Psycho and
Irreversible are all fictional films depicting extreme sexual violence to women by men. There are
repeated scenes of men raping women and treating them in a savage, barbaric manner. While the
violence is extremely graphic and the sexual scenes explicit, the portrayal of genitalia and other private
areas of the actor's bodies is less graphic than that found in the Eleven Videos.

[28] Most larger urban centres in Canada have facilities where BDSM activities are regularly carried

2004 BCPC 103 (CanLII)

out. Adult members of the public may attend these facilities upon payment of a modest fee. Those who
attend may engage in the BDSM activities or watch others performing these activities.

[29] Mr. MacDonald, a retired thirty year veteran of the Vancouver Police Department, now a licensed
private investigator, starting October, 2003, attended a number of BDSM events in Vancouver and
Victoria, B.C. on the instructions of Mr. Price's counsel. He described the behaviour of those present at
these events, as exemplary. The events attended by Mr. MacDonald were patrolled by Vancouver Police
officers who did not interfere with any of the BDSM activities taking place. The BDSM activities Mr.
MacDonald observed at these events were similar to some of those portrayed in the Eleven Videos. While
nudity of both males and females of varying degrees, including full nudity, was common at these events,
the evidence is not clear whether the genitalia and other private areas of the performer's bodies were
displayed as graphically as in the Eleven Videos.

[30] Ms. Sylvia Schneider, a thirty-year old hobby farmer from the lower mainland of B.C., testified that
she took part in and enjoyed all manifestations of BDSM activities including those portrayed in the Eleven
Videos. She had watched the Eleven Videos and enjoyed watching them. Ms. Schneider impressed me
as an intelligent, well spoken and thoughtful person. She has a teenage daughter who is generally aware
of Ms. Schneider's involvement in the BDSM community. Ms. Schneider did not think it would be
appropriate for her daughter to watch the Eleven Videos due to her daughter's age.

[31] Dr. Moser, who filed an extensive six page curriculum vitae, was qualified to give expert evidence
regarding the practice of BDSM. I have accepted all of the following from his evidence.

[32] According to Doctor Moser pain and pleasure are closely associated factors in the human sexual
experience. Pain giving rise to sexual pleasure is a normal sexual experience and is the basis for
practising BDSM.

[33] Doctor Moser testified there are many different levels of BDSM. For example, a person biting
another person on the neck during love play is an example of a low level of sadomasochism. On the other
hand, the scenes portrayed in the Eleven Videos are portrayals of a high level of sadomasochism. As
another example, a person may gently restrain their partner's wrists with a silk handkerchief while making
love to them which is an example of a low level of bondage. Again, on the other hand, the scenes
portrayed in the Eleven Videos are portrayals of a high level of bondage.

[34] Dr. Moser testified that providing all parties involved, consent, all of this is normal and appropriate
sexual behaviour. Consent is the overriding ingredient of normal and appropriate sexual behaviour. For
instance, the inability of a child to consent is what makes sexual relations with children abnormal and
inappropriate. Although the sections were not specifically put to Dr. Moser, I am satisfied that the form of
consent envisioned by him, met the definitions of consent set out in sections 265 and 273.1 of the
Criminal Code.

[35] Doctor Moser had watched all Eleven Videos. He was of the opinion the procedures portrayed in
the Eleven Videos were part of normal and appropriate human sexual behaviour.

[36] Dr. Moser testified that his best estimate was that about 10 per cent of the North American adult
population "engages in or is aroused by BDSM". (Transcript March 3, 2004, p. 2, l. 28) I agree with the
Crown that little weight can be given to this estimate alone. However, I am satisfied from this estimate
coupled with the other evidence I heard about BDSM events taking place throughout Canada that BDSM
is not an obscure practice.

[37] In particular, Mr. MacDonald, as a result of his investigation had concluded that there were a
significant number of people from a wide cross section of society involved in BDSM. According to Mr.
MacDonald, he was aware during his career as a police officer in Vancouver that the BDSM culture
existed but regarded it as being on the periphery of society. Mr. MacDonald recalled that during the 1960s

2004 BCPC 103 (CanLII)

BDSM was not socially acceptable. As a result of his investigation he had concluded it was now socially
acceptable.

[38] Although Mr. MacDonald's opinion regarding the present social acceptability of BDSM was not
that of an expert, given his experience as a police officer, during which time, as he testified, he "had seen
a lot", I am prepared to give a reasonable amount of weight to his opinion.

[39] According to Dr. Moser, people who engage in BDSM derive cerebral and erotic pleasure from
watching material like that presented in the Eleven Videos. The cerebral pleasure is derived from their
appreciation of the mechanical and artistic skill used by the dominant party in carrying out the various
procedures. For instance, blows by whips are applied in a carefully systematic manner. The welts or
reddening of the skin is done in a particular pattern. Similarly, needles are inserted in particular patterns.
Particular colours are used in specific combinations.

[40] Participants in the BDSM culture derive erotic pleasure from watching the portrayal of BDSM
procedures which are part of the appropriate sexual fantasies experienced by those participating in the
BDSM culture. The subservient parties in the Eleven Videos are portrayed as being under duress to
participate in the procedures. The subservient parties are not portrayed as consenting to the procedures.
According to Dr. Moser, a key element for enjoyment of BDSM videos, by BDSM participants, is the
knowledge that the subservient party, despite what is being portrayed, is actually consenting to the
procedures.(Transcript, March 3, 2004, p. 39, l. 36)

[41] Moreover, according to Dr. Moser, BDSM procedures are not meant to be demeaning to those
taking part. Both the dominant and subservient parties in BDSM procedures derive a "sense of
accomplishment and feeling good and a whole variety of other emotions...." (Transcript March 3, 2004, p.
42, l. 6)

[42] Even the BDSM videos involving one person urinating on another, are not regarded as
demeaning in the BDSM culture. Rather, the subservient party sees themselves as receiving the distillate
of the dominant party's body. (Transcript March 3, 2004, p. 42, l. 42.) Dr. Moser testified that the scenes
portrayed in the Video called Rage, (see paragraph 32 above), were part of the BDSM culture but
acknowledged the video portrayed extreme violence and an uncommon BDSM fantasy.(Transcript March
3, 2004, p. 46, l. 42)

[43] Dr. Moser also pointed out that BDSM has been written about for hundreds of years. Videos
similar to the Eleven Videos were available long before the advent of the Internet.

[44] According to both Dr. Moser and Dr. Fisher there is a growing body of valid scientific evidence
that watching pornography, even violent pornography is not harmful to adults. While Dr. Moser alluded
briefly to this, Dr. Fisher was qualified as an expert on this subject. His credentials, set out in a 36 page
curriculum vitae were impressive. I have accepted the following from his evidence.

[45] Dr. Fisher had also viewed the Eleven Videos.

[46] Dr. Fisher pointed to various studies conducted by his colleagues, of countries such as West
Germany, Sweden and Japan, where all forms of pornography are legally and readily available. This
pornography includes portrayals of unwilling victims who are subjected to sexual and physical violence.
Dr. Fisher testified that these studies concluded "pornography simply was not associated with an increase
in sex crimes." (Transcript, March 9, 2004, p. 15, l. 30)

[47] Dr. Fisher, in a variety of studies, conducted by himself or in conjunction with a variety of his
colleagues, has confirmed the same results in Canada and the United States. These studies were
directed particularly to the proliferation of pornography on the Internet.

2004 BCPC 103 (CanLII)

[48] Dr. Fisher testified that "the Internet has provided anonymous, accessible, unfettered access to
every variant of sexually explicit material from erotic to violent pornographic to what have you, so there's
no question but that there has been a dramatic increase in the last say decade....in availability of all forms
of explicit material on the Internet." (Transcript March 9, 2004, p. 21, l. 39)

[49] Dr. Fisher testified that they "found no impact of increasing levels of exposure to Internet
pornography on any measure of attitudes to women or acceptance of rape or rape myth.... including
attitudes that are regarded as important in respect to acceptance of sexual assault and likelihood of
sexually assaulting women" (Transcript, March 9, 2004, p. 20, l. 21).

[50] Moreover, Dr. Fisher relying on statistics provided by Statistics Canada and the FBI in the United
States has concluded that the proliferation of pornography via the Internet has not resulted in any
increase in sexual assault. In fact, the opposite is true. During the period 1994 to 1999, while the Internet
was "rolled out", the number of reported sexual assaults has declined dramatically. (Transcript March 9,
2004, pages 22-23).

[51] The thrust of Dr. Fisher's opinion was that exposure to diverse forms of pornography does not:

a) cause attitudinal harm;

b) cause anti-social attitudes towards men or women;
c) cause harm to Canadian Society in that it does not cause sexual
aggression;
d) cause people to act in an anti-social manner;
e) cause the mental or physical mistreatment of women or men.

[52] Dr. Fisher testified there had been no research conducted with regards to the effect of
pornography on children. His opinions were limited to adults.

[53] There was no evidence called to contradict any of the opinions of Dr. Moser or Dr. Fisher.

[54] Through cross-examination of Dr. Moser, it was apparent that he was closely affiliated with the
Institute for the Advanced Study of Human Sexuality in California. This institute has a particular view of
basic human sexual rights which Dr. Moser subscribes to. While those rights may be controversial for
some, I do not accept the notion that his acceptance of those rights undermined the objectivity of his
observations and opinions regarding the BDSM culture to the extent that I should have a doubt as to their
reliability.

[55] During cross-examination, Dr. Fisher was directed to statistics provided by the FBI for the years
2001 and 2002 showing an increase in the United States of forcible rape. Dr. Fisher was not aware of
these statistics. While Dr. Fisher agreed that one plausible interpretation of the 2001, 2002 U.S. statistics
might be that pornography had caused an increase in reported sexual assaults he testified there were
other plausible explanations. Significantly, Dr. Fisher did not resile from his opinion because he pointed
out, the 2001, 2002 FBI statistics confirmed there was still an overall decline in reported sexual assaults
in the U.S. since 1994. Dr. Fisher also pointed out that Statistics Canada confirmed that reported sexual
assaults continued to decline in Canada in 2001 and 2002.
[56] Ultimately, I have concluded that Dr. Fisher's opinions regarding the harmfulness of pornography
were not undermined by this cross-examination. His opinion was corroborated by other studies conducted
not only by himself but other researchers in the field and did not rest exclusively on the correlation
between the rise of Internet pornography and the decline of reported sexual assaults. The evidence does
not leave me with a doubt as to the reliability of Dr. Fisher's opinions.

[57] With one exception the Eleven Videos all portrayed similar scenes of BDSM. The one exception

2004 BCPC 103 (CanLII)

was a video called Rage.

[58] The plot of Rage is simple and brutal.

[59] A man suspects his female partner of infidelity. He verbally abuses her and then compels her to
go to the bathroom where she is bent backwards over a toilet with her mouth open. The man urinates into
her mouth. The urine overflows her mouth. The man expresses anger about the resulting mess the urine
has made and to further punish the woman forces her head into the toilet's bowl and uses the woman's
head to scrub it. There is virtually no dialogue other than verbal abuse of the woman by the man. The
woman is obviously not consenting to the activities.

[60] The remaining ten of the Eleven Videos (the Ten Videos) all portray scenes similar to each other.
In two of the Ten Videos the subservient party is male while the dominant party is female. In one of the
Ten Videos the subservient party is female while there are two dominant parties, one male one female. In
the remainder of the Ten Videos the subservient party is female and the dominant party is male. In all of
the Ten Videos the subservient party is totally naked for the majority of the video. The genitalia, anus and
all other private areas of the subservient parties' bodies are closely, fully, and graphically displayed. The
genitalia are either clean or nearly clean shaven. In all of the Ten Videos the dominant parties are clothed
to some degree, although in the case of the dominant women the manner of dress is revealing.

[61] There is very little dialogue in any of the Ten Videos. What little there is consists primarily of
commands and directions to the subservient party. There is enough dialogue to gather that the
subservient party is being punished for not doing their job properly at a brothel where they are employed
to provide sexual services. The subservient party is expected to obey all commands of the dominant party
without question and address the dominant party as Master or Mistress. The subservient parties are
portrayed as being under duress to participate. They are not portrayed in the Ten Videos as consenting to
the procedures.

[62] Each subservient party is punished by the consecutive administration of various procedures.
Some of the procedures are applied in combination. Usually, each subsequent procedure is more severe
than the last. The following list of these procedures is not exhaustive:

a) Confinement to a small cage;

b) Whipping with canes, crops, switches or cat o' nine tails. All
sensitive parts of the subject's bodies including the soles of feet, breasts,
nipples, buttocks, inner thighs and genitals are whipped;
c) The application of hot wax from burning candles to all parts of
the body including the inner thighs, breasts, genitals and buttocks. After
the wax cools, it is whipped off with a cat o' nine tails;
d) The application of clothes pegs, clamps, mousetraps and similar
devises to breasts, nipples and genitals. Weights are suspended from
these devices. When the weights are suspended from clamps attached
to their genitals, the subservient party is required to do deep knee bends
which cause the weight to be relieved and then reapplied. The devices
are ultimately removed.
 e) The use of a device to apply electric shocks to all parts of the
subject's body including breasts, nipples, inner thighs, anus and genitals;
f) The piercing with small gauge needles, of breasts, nipples, and
genitalia including the glans of the penis and the clitoris. In some cases
thread is woven in and around the needles and weights are suspended
from the needles. In most cases the needles are inserted through
folds of subcutaneous skin and in some cases the needles are simply

2004 BCPC 103 (CanLII)

inserted into the skin and flesh below. The needles are ultimately
removed. In some cases the insertion/removal of the needles causes
minor amounts of bleeding. Alcohol as a disinfectant is poured over the
pierced area both before and after the insertion and removal of the
needles;

[63] In one of the Ten Videos, after the application of a combination of a variety of the procedures
described above, the male dominant party urinates into the face of the female subject. Similarly in another
of the Ten Videos a female dominant party urinates into the face of a male dominant party;

[64] Some of the procedures are carried out while the subservient party is standing, seated or lying on
a bench unrestrained. In some cases the subservient party is confined in stocks, strapped to a St.
Christopher's Cross or strapped to benches of varying degrees of complexity. In some cases the
subservient party is strapped by hands and feet into elaborate devices and suspended above the floor. In
some cases the subservient party is hooded and gagged. The subservient party is attached to the
devices with leather straps or rope tied in elaborate knots.

[65] The subservient parties in the Ten Videos respond in varying degrees to the application of these
procedures. Some shriek and writhe continuously. Some merely wince or twitch in discomfort. Some, after
being asked, expressed pleasure. Some subservient parties exhibited reddening of the skin or welts and
some subservient parties bled slightly.

[66] All subservient parties are completely calm while awaiting the next procedure. In some cases the
subservient parties willingly help set up the various devices used.

[67] Except for the video Rage, the relationship between the subservient and dominant parties has
virtually no emotional component. At best I would describe it as mechanical.

[68] The evidence conclusively demonstrates that despite what is portrayed, the subservient parties in
all Eleven Videos consented to the taking part in the procedures before hand and were completely
satisfied with how the procedures were carried out.

[69] Any indication of fear, pain or lack of consent portrayed by the subservient parties in the Eleven
Videos is merely play acting. I accept the evidence of Doctors Fisher and Moser that any pain or injury
caused the subservient parties during the making of the Eleven Videos was minor and completely
transitory.

THE LAW

[70] The exclusive and exhaustive test for obscenity is found in S. 163(8) of the Criminal Code.

[71] S. 163(8) says a publication shall be deemed obscene if it meets one of two criterion:

a) If it is a "publication a dominant characteristic of which is the

undue exploitation of sex" or
 b) it is a "publication a dominant characteristic of which is......sex
and ....violence."

[72] The seminal case of R. v. Butler, [1992] 1 S.C.R. 452 affirmed the right of parliament to
criminalize the sale and distribution of obscene material. Although S. 163 infringes the Charter's
guarantee of freedom of expression, Butler determined that the section was directed at the prevention of
harm and therefore S. 163 was a reasonable limit on this freedom pursuant to S. 1 of the Charter.

2004 BCPC 103 (CanLII)

[73] Butler also directed trial judges on how to correctly interpret and apply S. 163(8). Butler at page
498 states, "S.163 (8) criminalizes the exploitation of sex and sex and violence, when on the basis of the
community test it is undue."

[74] Earlier, Butler at page 475 states, "In order for a work to qualify as 'obscene', the exploitation of
sex must not only be its dominant characteristic, but such exploitation must be 'undue'."

[75] Since the promulgation of S. 163 in 1959, Canadian courts have formulated three tests to
determine undueness:

a) the Community Standard of Tolerance test;

b) the Degradation or Dehumanization test;

a. the Internal Necessities test.

[76] According to Butler, (p. 484-485) the arbiter of these three tests is the community of Canada as a
whole. While explicit sex with violence will almost always constitute the undue exploitation of sex, triers of
fact must still determine "as best they can what the community would tolerate others being exposed to on
the basis of the degree of harm that may flow from such exposure....The stronger the inference of a risk
of harm the lesser the likelihood of tolerance."

[77] The tests in Butler were discussed at length by the Ontario Court of Appeal in R. v. Hawkins, 86
C.C.C. (3d) 246 (leave to appeal to the Supreme Court of Canada refused). At page 263 the Court said
"Under the Butler test, not all material depicting adults engaged in sexually explicit acts which are
degrading or dehumanizing will be found to be obscene. The material must also create a substantial risk
of harm to society....Like any element of a criminal allegation, it must be proved beyond a reasonable
doubt and that proof must be found in the evidence adduced at trial."

[78] I am satisfied from reading Hawkins and Butler that this applies as well to material portraying
sex and violence.

[79] Therefore, portrayals of explicit sex without violence or portrayals of explicit sex without violence
but which subject people to degrading or dehumanizing treatment (two of three types of pornography
identified by Butler) cannot, without more evidence, be assumed to be incompatible with current
Canadian standards of tolerance and substantially harmful. However, where explicit sex and violence are
portrayed together (the third type of pornography identified by Butler), it can be assumed without expert
or other evidence, that the portrayals exceed Canadian standards of tolerance and are substantially
harmful. That is because there is a strong inference of a risk of harm in such portrayals. Nonetheless,
even if sex and violence are portrayed together, it remains open to the Court to find that the evidence
does not establish beyond a reasonable doubt the portrayals exceed Canadian standards of tolerance
and that the harm component has been established.

DISCUSSION
[80] The Crown argues that the Eleven Videos depict graphic sex and violence without any "wider
artistic, literary or other similar purpose." Therefore, the Crown says, as a result of the Butler tests, I must
infer the Eleven Videos carry a risk they will predispose people to act in an anti-social manner. Thus, the
Crown argues, they have proved beyond a reasonable doubt, the Eleven Videos are obscene.

[81] The Crown says the evidence of Dr. Moser that the Eleven Videos depict normal and appropriate
human sexual behaviour, the evidence of Dr. Fisher that there is no potential the Eleven Videos will

2004 BCPC 103 (CanLII)

cause harm and the evidence that other similar material is readily available to the Canadian public in all
manner of venues, is therefore irrelevant.

[82] The Defence argues that even if I do not accept the opinion of Dr. Fisher that viewing violent
pornography does not cause harm, all the evidence taken together, at least raises a doubt that Canadians
would not tolerate other Canadians viewing the Eleven Videos. Since Canadians are the final arbiter of
what will harm other Canadians, such tolerance raises a doubt that the Eleven Videos if viewed would
cause harm and therefore the Crown has not proved beyond a reasonable doubt the Eleven Videos are
obscene.

[83] The Defence urged me in their final submissions to take a bold step and acquit Mr. Price. There is
no need for me to be bold. My only role is to examine the evidence before me against the law and
determine whether I am satisfied that the Crown has proven beyond a reasonable doubt that the Eleven
Videos are obscene.

[84] I agree with the Crown that the Eleven Videos are devoid of any artistic or literary purpose. There
is no plot, it is an understatement to describe the dialogue as marginal and the filming is at best amateur.

[85] I agree with the Crown, that I cannot conclude from Dr. Fisher's evidence that pornography,
including violent pornography is harmless and therefore the Eleven Videos are not obscene. S.163 (8) of
the Criminal Code says that in particular situations violence and explicit sex is obscene. Butler says that
S. 163 is a valid law because Parliament has a reasonable basis for concern that violent sexual
pornography may cause anti-social behaviour. I note that while Dr. Fisher's evidence regarding the
harmlessness of violent pornography was not before the Supreme Court of Canada in Butler, the Court
was alive to the notion that some segments of society, quite validly, took a similar position. In particular
Butler at page 484 discusses the Fraser Report which was endorsed by Dr. Fisher in his evidence.

[86] Therefore, while I have no reason to reject Dr. Fisher's opinions regarding violent pornography,
his opinion that the Eleven Videos will not cause harm as contemplated by S. 163 of the Code, simply
contradict Parliament's reasonably based concerns as found by Butler. Therefore, Dr. Fisher's opinions
do not assist me and I am not prepared to consider them in determining the charges before me.

[87] I agree with the Crown, that the Eleven Videos, although they do not depict any classic sexual
activity such as vaginal or anal intercourse or oral sex, are entirely sexual in nature. This was confirmed
by the evidence of Doctors Moser and Fisher who testified the Eleven Videos portrayed BDSM sexual
fantasies.

[88] I also agree with the Crown, there is strong evidence simply from the content of the Eleven
Videos themselves by which I may infer a risk of harm and that Canadians would have no tolerance for
other Canadians viewing this material. The Eleven Videos portray explicit, graphic sexual activity coupled
with explicit, graphic portrayals of violence. These portrayals are the very nature of BDSM sexual
fantasies. But that is not the end of the matter.

[89] Of the three tests for undueness, considered in Butler, the most important is the community
standard of tolerance test. Butler specifically instructed triers of fact how to apply this test. The trier of
fact must consider what Canadians would tolerate other Canadians viewing. The standards of the
community of Canada as a whole must be considered and not the standards of a small segment of the
Canadian community. Canadian community standards change. Canadian Community standards as to
what is harmful have changed since 1959. The standard therefore must be a contemporary one.(Butler p.
476-477 and p. 496 )

[90] I have considered the following as evidence of what contemporary Canadians would tolerate
other Canadians viewing.

2004 BCPC 103 (CanLII)

[91] First, I accepted Dr. Moser's opinion that consensual BDSM is part of normal and acceptable
adult sexual behaviour and that viewing material similar to the Eleven Videos is a normal and appropriate
part of that sexual behaviour.

[92] Second, I accept Mr. MacDonald's evidence that BDSM practices similar to those portrayed in the
Eleven Videos, are regularly carried on in public venues. These venues are well known to the police who
take no interest in preventing these public activities from taking place. These public venues are easily
accessible by any adult with sufficient financial means to attend an ordinary movie theatre. These public
venues are available through out Canada and are widely advertised in the public domain.

[93] Third, while the Supreme Court of Canada, in 1992, described in Butler at page 498, a
"burgeoning pornography industry" they could not contemplate, the impact, the Internet, since 1995, has
had on this industry and on Canadian society generally. It is an understatement to say there is an
immense amount of BDSM material, on the Internet, readily available to the Canadian public.

[94] Fourth, I agree with the Crown, that there are distinctions to be made between the material in the
Eleven Videos and the additional examples of pornographic material filed by the Defence described in
paragraphs 23-27 above (the Supplementary Materials). I accept that some of the Supplementary
Materials are in some cases less graphic than the Eleven Videos or in some cases, such as the
documentary films described in paragraph 26, provide serious treatment of a theme which is lacking in
the Eleven Videos.

[95] I accept that the films I Spit On Your Grave, Rape Me, Irreversible, American Psycho and
Henry Portrait of a Serial Killer, (the Fictional Material) have a more sophisticated plot than the Eleven
Videos. However, the Fictional Material contains graphic, protracted portrayals of the highest degree of
sexual violence towards women. The book and the subsequent film, American Psycho, contain an
almost unbroken litany of unimaginable gore and savagery, much of which is directed towards women in
a sexual context. While the portrayal of genitalia and other private sexual areas may be less graphic in
the Fictional Materials, the level of violence in the Fictional Materials is higher than that portrayed in the
Eleven Videos.

[96] Other than having a plot, there is little to distinguish the explicit sexual violence portrayed in the
Fictional Materials from the explicit sexual violence portrayed in the Eleven Videos.

[97] All of the Fictional Materials are widely available to the general Canadian public either through
theatres, video stores, well known book stores, public libraries or broadcast by cable television
companies.

[98] It is not my role to determine whether any of the Fictional Materials are obscene.

[99] However, the contents of the Fictional Materials, coupled with their wide spread availability,
satisfies me that Canadians, for better or for worse, tolerate other Canadians viewing explicit sexual
activity coupled with graphic violence which is more or less indistinguishable from the Eleven Videos.

[100] This evidence of tolerance coupled with the evidence I have described in paragraphs 91 to 93
leaves me with a reasonable doubt that the contemporary Canadian community would not tolerate other
Canadians viewing the Eleven Videos on the basis that harm would flow from watching the Eleven
Videos.

[101] I must resolve that doubt in favour Mr. Price. I acquit him of counts one through twenty.

2004 BCPC 103 (CanLII)

_____________________________

The Honourable R. R. Low, P.C.J.