Kirk Makin

Porn-film charge generates constitutional challenge

TORONTO — A gay bookstore in Toronto is launching a constitutional challenge to slay what many in the arts community view as a repressive dragon come back to life: the provincial film-censor board.

Supporters of the Glad Day Bookshop say the defunct Ontario Censor Board has been quietly reconstituted and permitted to charge distributors for not paying the board a tidy sum to approve and classify their films.

"It is still alive and well and killing movies," said Brenda Cossman, a University of Toronto law professor. "A constitutional challenge is long overdue."

The bookstore plans to argue that its constitutional free expression has been violated by a charge of illegally distributing a gay adult film entitled Descent.

"Quite simply, we are fighting for our survival" said Glad Day store manager Toshiya Kuwabara. "Adult-video revenue represents a significant part of our income. To have it taken away would impair the store's existence."

The Ontario Film Review Board was created in 1993 from the ashes of the much-maligned Ontario Censor Board.

Mr. Kuwabara said the new board is just the old board under a different name. "In no way has the dragon been slain," he said. "Their ability to censor and ban still exists."

According to Rob Dowler, director of marketplace standards for the Ontario Ministry of Consumer and Commercial Relations, inspectors carry out about 2,220 inspections per year. They typically ban about 100 adult films each year as unsuitable.

The court challenge will specifically target the fact that board censorship criteria depart from what the Supreme Court of Canada laid down several years ago in a landmark ruling known as Butler.

In Butler, the court said that obscenity is confined to sex combined with violence, and to sex which is depicted in a degrading or dehumanizing manner. It said explicit sex is not in itself obscene.

The challenge will also dispute the fees the board levies against distributors in return for reviewing and classifying their films.

Frank Addario, a lawyer representing the bookstore, said he is not seeking to strike down the power of the board to classify films or place stickers.

"What we are challenging is their power to charge prohibitive fees and withhold approval for films that are not obscene," he said. "It allows the government to control what Canadians can watch in the privacy of their own homes."

Distributors are obliged to pay $4.20 per minute of film to review any French or English video from the United States or abroad. Since foreign films are a mainstay of the video-rental industry, annual revenues to the review board amount to about $2-million.

Mr. Kuwabara said the fees "are pretty crippling," making it nearly impossible for small outlets to afford niche films that are unlikely to gain broad distribution.

Mr. Addario said the result is a form of censorship that keeps whole genres of film from being brought into the country.

The charge against Glad Day was laid in April. Mr. Kuwabara said the maximum penalty is a $100,000 fine and a year in prison.

The case is scheduled for trial on May 29, 2001.