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Fissures Open in Censors’ Powers

A B.C. adult shop challenges provincial laws, with help from an Ontario court.

Peter Tupper 3 Feb
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Tucked onto the end of a residential Kitsilano sidestreet is Art of Loving, an upscale adult store and gallery. Tucked into one corner of the well-furnished store, between the tropical-fish-colored sex toys and the lingerie, is a small collection of alternative adult videos and DVDs that don’t have the numbered decal every adult video in British Columbia is required to have under the Motion Picture Act.

Art of Loving co-owner John Ince believes these unapproved films indicate the government may formally change its policy regarding rating adult material.

And if it doesn’t, provincial courts could strip the B.C. office of its tight control on the sale of adult videos, thanks to a 2004 Ontario court ruling that says Ontario Film Review Board rules violate Canadian Charter rights.

In the meantime, Ince claims the B.C. Film Classification office, which rates films for public screening and approves adult films for sale and rent, has agreed to give his store a de facto legal exemption to sell the videos.

Ince argues these videos meet the film office’s standards and are essentially educational, but they don’t sell nearly as well as conventional pornography and as a result the approval fees of several hundred dollars per title are prohibitive.

“We went to them [Film Classification] and said, ‘Look, this is, in effect, a total prohibition system. You would allow this material, it meets all your guidelines in terms of public interest and so on, yet it’s the whole financial process and red tape that’s not working.’

“That’s when they started to look at it and seriously consider it, and came up with this de facto exemption. It’s not a formal exemption. They’ve said they will not take action against us while they are reviewing this whole area, and indeed, reviewing the law, in light of the Ontario decision.”

Officials take high road

The B.C. Film Classification Office, which is overseen by the Ministry of Public Safety and Solicitor General and governed by the Motion Picture Act, would not comment on the issue. In response to an e-mailed interview request, director Elaine Ivancic replied: “It is inappropriate for the Film Classification Office to discuss details specific to any individual or site.”

Gary Martin, an assistant deputy minister under the Solicitor General, and the overseer of film classification, told The Tyee he has discussed film classification with Ince but said there are no plans to change the Motion Picture Act.

The Art of Loving, which Ince co-owns with Vera Zyla, has challenged legal authority before. In 2003, the gallery staged a play called Public Sex, Art and Democracy, which included an act of oral sex. Vancouver police threatened to stop the show, which unsurprisingly sold out, but in the end police took no action.

Last year, Ince and Zyla decided their store should stock adult videos and DVDs, chosen for their appeal to women, educational value, or both.

Porn, but porn with discretion

“We’re not carrying a full panoply of [pornographic] material,” says Ince, an attorney and the author of The Politics of Lust. “We are not carrying traditional porn. We’re carrying only educational material and women-friendly material. You won’t see stuff in ours where there’s ejaculation on women’s faces and someone shouting ‘Bitch!’”

Titles include Nina Hartley’s Guide to Swinging and Enjoying Guilty Pleasures (discussed in detail below). Ince describes them as “obviously meritorious. It’s not like traditional porn, which is sort of icky.”

However, they found it difficult to acquire such material Canada. According to Ince, customer demand, while growing, is small and greatly eclipsed by the audience for traditional porn, so U.S. distributors often just ignore the Canadian market. Then there’s the expense of the approval process in various provinces, each of which has their own standards and fees. In B.C., to have a 90-minute adult motion picture reviewed for distribution to video retailers costs $333, plus another two dollars per copy for approval decals.

Ince argues this means we get only traditional adult videos churned out in vast quantities by major companies, and that alternatives made by boutique companies are effectively barred.

Ontario excess sets precedent

The B.C. Film Classification Office has a progressive reputation, unlike the OntarioFilm Review Board, which has become notorious for several decisions. It has banned such acclaimed art-house fare as The Tin Drum and Pretty Baby, and in 2001 banned, then allowed, feminist film-maker Catherine Breillat’s Fat Girl.

In 2000, Toronto gay bookstore Glad Day Bookshop was charged with one count of distributing an unapproved film, Descent, directed by Steven Scarborough. The adult video includes gay sex, bondage, poetry, Gregorian chanting and Christian imagery.

“The province is treating films like a cash cow,” Glad Day’s lawyer, Frank Addario, said in a subsequent press release. “They charge sellers and distributors for the privilege of having their films reviewed. If you strip away all of the fancy language in the law, this is just a tax on the freedom of expression.”

In the ensuing court case, Glad Day’s lawyers challenged the constitutionality of Ontario’s Theatres Act, saying it infringed on freedom of expression because of the delays and costs imposed on filmmakers, distributors and potential viewers.

Glad Day lost the initial case but won the appeal (R. vs. Glad Day Bookshops Inc. and John Scythes, see closing arguments at In a ruling released last August, Justice Russell Juriansz wrote, “I find that the statutory scheme that requires the [Ontario Film Review] Board’s approval before films can be distributed or exhibited in Ontario violates the Charter’s guarantee of freedom of expression and that the government has not shown the scheme is demonstrably justified in a free and democratic society.”

Juriansz also declared the statutory provisions of Ontario’s Theatres Act to be of “no force or effect” 12 months hence, to allow the government to come up with an alternative scheme of regulation.

“That decision [in Ontario] is probably the most important decision in a generation respecting film censorship,” says Ince.

Charter, technology change the game

Vancouver lawyer Joe Arvay, who has represented Little Sisters gay and lesbian bookstore in its fight against censorship by Canada Customs, said he has considered a similar challenge against the B.C. Film Classification Office.

In his ruling, Juriansz also wrote, “I take judicial note of the ability of Ontario residents to download videos from the Internet, and to view and record films and videos broadcast on cable, pay and digital television channels. Such videos and films are not subject to the Board’s review.”

Just as the VCR made the adult theatre largely obsolete a generation ago, broadband cable and video-on-demand could make the adult video store redundant.

And taken together, technology and new Charter of Rights rulings may strip away much of the British Columbia’s film classification office’s power to censor.


STRICTLY FOR RESEARCH purposes, I recruited a female correspondent to join me in reviewing two of the titles now available for rent and sale at Art of Loving.

Nina Hartley’s Guide to Swinging, produced by Adam & Eve, begins with adult film veteran Hartley cheerfully explaining how to add non-monogamy to a relationship, which is a “very big step.”

The film follows a couple as they talk about venturing outside of monogamy, intercut with Hartley warning of the dangers of setting off people’s insecurities. A female-male-female threesome follows, and later a group scene. The sex scenes are shot in the style of conventional heterosexual porn videos, and adhered to all of the cliches.

As we reviewed the DVD, my fellow reviewer observed, “Women like that, they’re too fake. They [her breasts] are too hard.” She said that the fact that “the guys aren’t at the top of the gene pool” contributed to “the tacky factor.”

The second DVD was Enjoying Guilty Pleasures, produced by the Sinclair Intimacy Institute. The sex scenes, which had better production values and ordinary-looking people, were intercut with interviews with sex experts. There were also infomercial-style titles indicating featured adult products.

My correspondent said she would rather see something with the first DVD’s script and the second’s production values. She most enjoyed a bonus feature on the Sinclair disk, a softcore music video of artistic nudes in black and white set to opera music.

Peter Tupper is a frequent contributor to The Tyee.  [Tyee]

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