OBSCENE LITERATURE AND THE LEGAL PROCESS IN CANADA

Abstract

When Chief Justice Cockburn expounded his definition of obscenity in 1868, one wonders if he imagined that it would become the standard test for application in obscenity cases in England and throughout the Commonwealth. Indeed, the Hicklin test was the only test of obscenity applied by Canadian courts until 1959 when D.E. Fulton, Minister of Justice, provided Canadians with their first statutory definition of obscenity. Up until that time, and especially during the 1950s, the test oscillated between liberal application in favour of artistic and individual freedoms and dour, often anachronistic, pronouncements. Mr. Fulton was optimistic that his new and simple obscenity test would put an end to all that. It didn’t. So what has happened since? W.H. Charles attempts to answer this question by reviewing the manner in which Canadian courts have dealt with obscene literature, particularly in the Fulton paradigm. The author explores the relationship between the legislature and the courts, making extensive use of legislative history to glean its intent, which he compares with the praxis of judicial interpretation which has tended, of late, to foster and protect free speech and literary expression.