A-562-77, A-563-77, A-564-77, A-565-77, A-566-77
Gordon & Gotch (Canada) Limited (Appellant)
v.
Deputy Minister of National Revenue for Customs
and Excise (Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, January 10, 1978.
Customs and excise — Appeal from county court's uphold
ing respondent's classification of imports — Whether or not
decision invalid for (I) error for lack of evidence as to indecen
cy of material, (2) tariff item vague of definition and so
inapplicable, and infringing freedoms of speech and of press
and (3) failure to observe principles of natural justice —
Customs Act, R.S.C. 1970, c. C-40, ss. 46 to 48 — Customs
Tariff R.S.C. 1970, c. C-41, Schedule C, Item 99201-1 —
Canadian Bill of Rights, S.C. 1960, c. 44 (R.S.C. 1970,
Appendix III), s. 1(a),(d),(f).
These matters are appeals, under section 48 of the Customs
Act, from orders of a county court Judge dismissing appellant's
appeals from respondent's decisions under section 46 of that
Act. Those decisions relate to the prohibition from importation
of seven different magazines on the basis that each of the
magazines was classified as immoral or indecent. Appellant
makes three basic arguments: (1) that the county court Judge
erred in finding the material indecent in the absence of any
evidence adduced as to the standards of decency or morality,
(2) that the Tariff Item, although vague and impossible of
definition or application, is to be applied so as not to infringe
the freedoms of speech or of the press (3) that the Judge erred
in failing to construe the statutory provisions so as not to
infringe the rights of the Canadian Bill of Rights and so as not
to deprive the person of this right to a fair hearing pursuant to
the rules of natural justice.
Held, the appeal is dismissed. Sections 46 to 48 of the
Customs Act establish appeal provisions open to an importer
wishing to contest a tariff classification. Both the maxim audi
alteram partem and paragraph 2(e) of the Canadian Bill of
Rights have reference to decisions which are final in nature and
not to decisions like these which are subject to further review.
The words used in the Tariff Item are not vague and impossible
of definition: there are dictionary definitions to be considered.
In reaching his conclusions, the county court Judge has correct
ly stated and applied the relevant jurisprudence, and has given
the words in question their usual and ordinary meaning. Such
conclusions were open to him on all the material contained in
the seven magazines under review. No compelling reasons have
been advanced that would justify the Court in "denying sub
stantive effect" to the Tariff Item—"a substantive measure
duly enacted by a Parliament constitutionally competent to do
so". The county court Judge reached his conclusion after a
clear and exhaustive study of the contents of the seven maga
zines, which he measured against his view of contemporary
standards of tolerance. He committed no error in law in so
doing.
Curr v. The Queen [1972] S.C.R. 889, applied. Re North
American News and Deputy Minister of National Revenue
for Customs and Excise [1974] 1 O.R. (2nd) 200, applied.
APPEAL.
COUNSEL:
M. Brown for appellant.
G. R. Garton for respondent.
SOLICITORS:
M. Brown, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: These matters are appeals under
section 48 of the Cu s toms Act, R.S.C. 1970, c.
C-40, from the orders of His Honour Judge
George Ferguson, a Judge of the County Court of
the Judicial District of York, made on June 16,
1977 wherein the said learned county court Judge
dismissed appellant's appeals from the respond
ent's decisions under section 46 of the Customs
Act with respect to tariff classifications confirmed
by the respondent. By the provisions of section 48,
the appeals to this Court are restricted to appeals
"upon any question of law". The decisions of the
respondent here under review relate to the prohibi
tion from importation of 7 different magazines on
the basis that each of the magazines was classified
as immoral or indecent within the meaning of Item
99201-1 of Schedule C of the Customs Tariff
R.S.C. 1970, c. C-41. Item 99201-1 reads as
follows:
Books, printed paper, drawings, paintings, prints, photographs
or representations of any kind of a treasonable or seditious,
or of an immoral or indecent character. [Emphasis added.]
In its notices of appeal and in the argument
before us, the appellant's counsel relied on the
following grounds of appeal:
(a) The learned county court Judge erred in
finding the various publications to be indecent
or immoral within the meaning of Tariff Item
99201-1 in the absence of any evidence whatso
ever adduced before him of the standards of
decency or morality of the Canadian community
by reference to which the qualities of the publi
cations could be assessed.
(b) Said Tariff Item is "vague and impossible
of definition or application" and is to be con
strued and applied so as not to abrogate,
abridge, or infringe, or authorize the abrogation,
abridgment or infringement of the human rights
of freedom of speech and freedom of the press
recognized or declared in section 1 of the
Canadian Bill of Rights.
(c) The learned county court Judge erred in
failing to so construe and apply the statutory
provisions of the Customs Act so as not to
abrogate, abridge or infringe or authorize the
abrogation, abridgment or infringement of the
human rights or freedoms recognized and
declared in the Canadian Bill of Rights or so as
not to deprive a person of the right to a fair
hearing in accordance with the principles of
fundamental justice for the determination of his
rights and obligations.
(d) The learned county court Judge erred in
failing to give effect to section 2(e) of the
Canadian Bill of Rights and should have found
that the decision of the respondent was made
without notice to the appellant and without
affording to the appellant the opportunity of a
fair hearing in accordance with the principles of
fundamental justice for the determination of its
rights and obligations.
I will deal with grounds (c) and (d) together,
since they represent essentially the same com
plaint. In my opinion, this complaint is without
substance. An analysis of sections 46 to 48 of the
Customs Act establishes that the following appeal
provisions are open to an importer who wishes to
contest the original determination of a tariff
classification.
(1) An appeal to a Dominion customs appraiser
(section 46(1)).
(2) An appeal therefrom to the Deputy Minis
ter (section 46(3)).
(3) An appeal therefrom to the Tariff Board
(section 47(1))—excepting in the case of pro
hibited goods under Item 99201-1—in such
cases, in the case of Ontario, the appeal is to a
county court Judge—see section 50(1) and (2)
of the Customs Act.
(4) An appeal therefrom to this Court upon any
question of law (section 48(1)).
From the above, it will be seen that the appel
lant was given the right by the statute to appeal
the decisions of the Deputy Minister to a county
court Judge which right was exercised in these
cases.
The statute also gave to this appellant the fur
ther right to appeal those decisions to this Court
on any question of law which right this appellant
also exercised. Both the maxim audi alteram
partem and paragraph 2(e) of the Canadian Bill
of Rights have reference, generally speaking, to
decisions which are final in their nature and not to
decisions like those here before us, which are
subject to further review.' Accordingly, I would
reject grounds (c) and (d) as set out in the notices
of appeal.
Turning now to ground (b) as set out in the
notices of appeal, the appellant's complaint is that
subject Tariff Item is "vague and impossible of
definition or application". For the purposes of
these appeals, the determining words in the Tariff
Item are "books, etc. ... of an immoral or inde
cent character". I cannot agree that those words as
used in the Tariff Item are "vague and impossible
of definition". "Indecent" is defined, inter alia, in
The Shorter Oxford English Dictionary as fol
lows: "suggesting or tending to obscenity". In the
Webster Dictionary it is defined inter alia as "vul-
gar" and "offensive to modesty and good taste".
"Immoral" is defined, inter alia, as "morally evil
or impure".
The learned county court Judge, in a carefully
reasoned judgment (Appeal Book pages 29 to 53),
' Compare The Queen v. Randolph [1966] S.C.R. 260 at pp.
265 and 266.
examined in considerable detail, each of the publi
cations in question and, after doing so, reviewed a
number of Canadian authorities dealing with inde
cency, immorality and obscenity. He then conclud
ed as follows:
I have no hesitation in finding that all the publications before
me are indecent or immoral. I find that each one is morally
offensive, grossly vulgar and lewd, having no overall artistic or
literary merit. To me each publication as a whole, can only
appeal to those interested in distorted forms of nudity or the
promotion and exploitation of abnormal sexual behaviour. The
emphasis on artless nudity makes these publications patently
offensive, indecent and immoral. 2
After perusing the detailed summary of the
contents of subject seven magazines as set out in
the reasons of the learned county court Judge and
after examining the publications themselves, I
have no hesitation in saying that I agree with his
conclusions as above set out. In reaching those
conclusions, he has, in my view, correctly stated
and applied the relevant jurisprudence, and has
given to the words in question their usual and
ordinary meaning. In my view, such conclusions
were certainly open to him on all the material
contained in the seven magazines under review.
The second branch of the appellant's complaint
under ground (b) alleges that Tariff Item 99201-1
is to be construed and applied so as not to infringe
the rights of freedom of speech and freedom of the
press as declared in section 1(d) and (f) of the
Canadian Bill of Rights. In this regard, I would
adopt the words of Laskin J. (as he then was) in
the case of Curr v. The Queen 3 where he was
considering the extent to which the Supreme Court
of Canada might, under section 1(a) of the
Canadian Bill of Rights (the due process provi
sion) have power to control substantive federal
legislation. He said, assuming the existence of such
power:
... compelling reasons ought to be advanced to justify the
Court in this case to employ a statutory (as contrasted with a
constitutional) jurisdiction to deny operative effect to a sub
stantive measure duly enacted by a Parliament constitutionally
competent to do so, and exercising its powers in accordance
with the tenets of responsible government, which underlie the
2 See Appeal Book, page 50.
3 [1972] S.C.R. 889 at p. 899.
discharge of legislative authority under the British North
America Act.
It is my opinion that the above statement applies
equally to section 1(d) and (f) of the Canadian
Bill of Rights. It is also my view that no compel
ling reasons have been advanced in this case which
would justify the Court in "denying substantive
effect" to Tariff Item 99201-1, clearly "a substan
tive measure duly enacted by a Parliament consti
tutionally competent to do so ..." .
In this regard, I would agree with the view
expressed by Grossberg C.C.J. in the case of Re
North American News and Deputy Minister of
National Revenue for Customs and Excise [ 1974]
1 O.R. (2d) 200 where he said [at page 205]:
Parliament is entitled to intervene in the public interest against
a trafficker who attempts to dump into Canada for crass
commercial gain the publications in question.
With respect to freedom of the press and freedom of speech,
the right of free press and free speech does not include the right
to distribute lewd, obscene, immoral and indecent publications:
Roth v. United States (1957), 354 U.S. 476; James v. Com
monwealth of Australia, [1936] A.C. 578... .
For these reasons, I am not prepared to give
effect to the complaint of the appellant under the
second part of ground (b) detailed supra.
The appellant's final complaint as set out in
paragraph (a) of the notices of appeal relates to
the absence of any evidence before the learned
county court Judge as to the standards of decency
or morality of the Canadian community by refer
ence to which the qualities of subject publications
could be assessed.
A similar submission was made in the case of
Provincial News Co. v. The Queen and rejected by
the majority judgment of the Supreme Court of
Canada. 4 While it is true that the Provincial News
case was a case under the obscenity provisions of
the Criminal Code, the rationale for rejecting the
submission applies, in my opinion, with equal force
to a factual situation under Tariff Item 99201-1
involving indecency or immorality. In his discus
sion in the Provincial News case on this point, Mr.
4 [1976] 1 S.C.R. 89 at pp. 98 and 99, per Martland J.
Justice Martland referred to the Dominion News'
case wherein the Supreme Court of Canada agreed
with the reasons of Freedman J.A. (as he then
was) who had dissented in the Court of Appeal for
Manitoba. In that case the Crown had relied on
the contents of the publications themselves while
the defence had called one witness to testify as to
community standards of morality. There was no
suggestion that, in law, the Crown was required to
adduce evidence of that kind. It is clear that in
determining the issue, whether it be obscenity or
indecency or immorality, contemporary standards
of tolerance should be applied but that does not
necessarily require evidence on the point. In the
case at bar, it is clear that the learned county court
Judge reached his conclusions after a careful and
exhaustive study of the contents of all seven maga
zines, which he measured against his view of con
temporary standards of tolerance. In so doing, in
my view, he committed no error in law. It is
likewise evident that in the Dominion News case,
Freedman J.A., in reaching his conclusion on the
issue of obscenity, based it, not upon the defence
evidence, but upon his own consideration of the
contents of the publication.
It is also clear that it was open to this appellant
and to this respondent to adduce evidence on this
point and on any other relevant matters at the
hearing before the learned county court Judge and
that neither availed themselves of this opportunity.
The jurisprudence above referred to establishes
that a failure to do so by either party does not, per
se, render the proceedings defective.
For the foregoing reasons, I would dismiss all of
the appeals herein, the appellant to pay one set of
costs to the respondent.
* * *
URIE J.: I agree.
* * *
KELLY D.J.: I agree.
' Dominion News and Gifts (1962) Ltd. v. The Queen [1964]
S.C.R. 251.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.