Obscenity Standards in Canada and the United States: A Comparative Study in Constitutional Law

The purpose of this dissertation is to study the comparative constitutional development of obscenity law in Canada and the United States. The research focuses on analysis of case law with particular emphasis of Supreme Court decisions in the two countries. Obscenity law is not static, but is, rather, an active and on-going area of constitutional law.

The central problem in the legal approach to obscenity has been the development of a definition. The original conceptualization of obscenity for both Canada and the United States came from an English decision in 1868, which dominated the field until the late 1950's. The United States Supreme Court rendered its first obscenity decision in 1957, rejecting the old English rule, and embarking on the development of its own obscenity definition. The Dominion Parliament of Canada in 1959 wrote its definition in statute form which led to the Canadian Supreme Court's first obscenity ruling in 1962. While the English rule was not officially abolished in Canada, its controlling influence was undermined.

The definitions of obscenity in these two countries, although developing from different sources, have been interpreted and applied similarly. One significant difference, however, has developed since the rulings of the United States Supreme Court in June, 1973. While Canada applies a national standard for determining obscenity, the United States now considers the question of obscenity based on state or local community standards.

The trend of the law in Canada and the United States appears to be somewhat different. The Canadian Supreme Court, although rendering only a very few decisions on obscenity, has tended to ease the restrictions which had existed prior to 1959. The United States Supreme Court followed a similar trend until 1973, but since then has tended to move back toward a more restrictive application of obscenity law.