Ian McLachlan, Susan Ditta, Al Razutis, David Bierk
The Theatres Act
Provincial Court, Criminal Division
June 22nd to June 25th, 1982
By AL RAZUTIS
On April 28, 1981 charges were laid for the first time in the history of the Ontario Theatres Act in relation to the exhibition of a film. Four people - David Bierk, executive director of Artspace; Susan Ditta, executive director of Canadian Images; Ian McLachlan, board member of Canadian Images and Artspace; and Al Razutis, filmmaker - were charged with exhibiting a film "that had not been approved by the Board of Censors", to wit: A Message From Our Sponsor.
This charge stemmed from a March 13, 1981 screening of the film at the Canadian Images Film Festival. After numerous delays, the case was finally brought to trial on June 22, 1982. During three days of testimony and the appearance of 15 witnesses, the filing of 32 exhibits, and two film screenings, the case generated scant news coverage. In fact, several days prior to the trial, a feature story on Mary Brown, director of the Board of Censors, and the operations of the board had appeared in the Toronto Star.
By June of 1982, it seemed that this war of nerves between the "Peterborough Four" and the Censor Board, as carried out in the media and the courts, was reaching exhaustion, with the Board demonstrating its upper hand in public relations and legal maneuvers.
The circumstances leading up to the trial bordered on the bizarre. A Message From Our Sponsor (henceforth A Message) was a nine-minute section of a longer work in progress, Amerika, and featured an ironic combination of advertising images juxtaposed with a few stock pornographic shots. Within Amerika, A Message functioned as a metalinguistic commercial; its intent was to critique and parody sex ist advertising, with an explicit focus on connotative codes (arising in images and sounds, character and fable) that appear in the construction of sexual role models and stereotypes.
The theme of the film was the com modification of sexuality and the creation of consumer needs as products; the strategy of the film was to situate the viewer as part of the construction of the subject - an ambiguous subject in this case - as part of a discourse that constantly shifted positioning, meaning and terms of reference. A Message was therefore polysemic and unstable - one could construct no single conclusion or point of view from its narrative.
In June, 1980 the film was exhibited as part of the National Gallery Series IV package in Ottawa without incident. It was only when this package was sent to Toronto for a September screening at the Funnel Theatre that it came to the attention of the Censor Board.
The response of the Board was quick and direct: Mary Brown, director of the Board, contacted the Ontario Provincial Police and relayed through them a directive to the National Gal lery curator, Darcy Edgar, that A Message would have to be cut or withdrawn. If the offensive material was not eliminated, the police informed Ms Edgar, she would be liable to arrest and prosecution for distributing pornographic material. Mary Brown went public and asserted (in several news articles) that this film contained material that contravened the Criminal Code of Canada.
While the Gallery administration, over the objections of the curator, was prepared to withdraw the film, a protest was mounted by the participating filmmakers (Patricia Gruben, Rick Hancox et al) threatening to withdraw all the films from the package if A Message was censored. After several months of protest, letter writing and negotiations between filmmakers and Gallery (negotiations by Anna Gronau acting on behalf of the filmmakers), the results amounted to a standoff: the Gallery reinstated the film, but left it up to the provincial censors to decide the fate of each screening, and the filmmakers dropped the proposed boycott.2.0.1
Early in 1981 several exhibition houses (the Funnel, Art Gallery of Ontario) obtained special permits from the Board for one-time screenings of selected "art films": Rameau 's Nephew... and Presents by Michael Snow, and The Art of Worldly Wisdom by Bruce Elder. The Board said filmma kers of "international reputation" with work exhibiting "artistic merit" qualified for special exemptions.
It is not surprising that these exemptions were granted after personal meetings between Elder, Snow and Mary Brown to discuss how to deal with "art films", since it was in the interest of all parties to safeguard their position, whether political or legal.
What is surprising, however, is that these discussions (and I think "secret negotiations" is appropriate) directly contradicted a public stance (especially on the part of Elder) that portrayed a categorical opposition to censorship. These negotiations resulted in privileging a few artists and dividing the anti-censorship movement between those who sought special exemption for the arts and those who sought an end to censorship.
Never before had the anti-censorship movement been so cleverly manipulated by a state apparatus that eventually could cancel all exemptions or redefine its standards when and if it so wished. For what was made clear by the Elder negotiations was that the politics of the avant-garde were still tainted with bourgeois and elitist art values synonymous to those espoused by the Board.
On the west coast, though not because of any regional difference in politics, the issues of censorship were pursued in a different manner: Cine works, then a fledgling organization, organized a national tour of its films (including A Message) and boycotted any exhibition house (the first being the National Film Theatre in Edmon ton) that allowed censorship of the individual films. The Cineworks stance continued the categorical anti-censorship tradition started by the filmmakers of the National Gallery's Series IV.
By spring of 1981, Not a Love Story, with its anti-pornography and pro-censorship stance, joined the short list of films first banned by the Ontario Board of Censors, then granted spe cial permits. The film featured hard core pornographic imagery similar to that of A Message and in length and number that well exceeded the short fragments found in A Message.
Presumably the Board saw in the NFB film a context for pornography that was not only redeeming but also synonymous with the Board's own position on pornography and vio lence. The didactic exposition of Not a Love Story, with its submerged pro-censorship message, proved sufficient reason for the Board to grant the film numerous permits for one-time exhibitions to large audiences. In Not a Love Story the Board had found an ideological ally and a shining example of its "liberal" educational interests in spreading the gospel of restraint and censorship.
Throughout 1982, the one film that remained banned outright was A Message. In the opinion of the Board, this film was "obscene" and represented "undue exploitation of sex". As Douglas Walker (a member of the Board, and the first to recommend the cuts) was later to testify in Peterborough, the only way this film could be shown was "perhaps for a study group... a film study group".
However, Officer Petrozeles of the Ontario Provincial Police "P Squad" felt the film had little film studies merit. Prior to the trial, he candidly remarked to the author that he was convinced the film's analytical material and structure was a smokescreen for the pornography. He further indicated that some (unnamed) academics supported him in these views.
Mary Brown, while concurring with Walker and Petrozeles, added (in a private disclosure to the author during a trial recess) that she believed the film was a rallying point for anarchist attempts to overthrow the authority of the Censor Board.
The various "arrangements" and discussions between the Censor Board, Ontario art exhibitors and the Ontario Arts Council suffered a set back when the film was screened without "permission" at the Canadian Images Film Festival on March 13, 1981.
The collective decision to screen the film was based on discussion and con siderations about what constituted civil and institutional rights to free expression, and was supported by the president of Trent University, which was the festival's main backer. Thus, the screening brought out into the open the ideological differences between a more "fine-arts" (read bourgeois) film practice that sought special exemption and a more socially oriented practice that sought to participate in social and legal change.
A month after the screening, charges were laid under the Theatres Act of Ontario. No charges were ever brought forward under the Criminal Code (the obscenity sections 158-160 cited by Mary Brown), though this consideration was clearly on the mind of Officer Petrozeles in his new role as a member of a federal task force on pornography. (Petrozeles would continue to maintain, in June 1982, that it was a mistake to charge the film only under a provincial statute, and that an indictment under the federal code would have been appropriate.)
3.0.0 Issues Arising From, and Impinging on, the Peterborough Trial
A trial is hardly a public forum for debate and discussion. Often the case is framed within terms and definitions that are highly procedural, technical if not rhetorical. Thus Mary Brown's declaration that this would be a test case was something of a misnomer. Clearly, she felt the Board's authority was challenged, but aside from the main legal arguments concerning the constitutionality of the Board and its place within a new Charter of Rights, many of the other issues were submerged and deflected.
The defendants, as is common in all criminal proceedings, were advised by counsel to remain silent, to avoid discussing the case or circumstances or issues relating to the screening with the media. In retrospect, this was an unfortunate decision: The silence could be seen as advantageous to the Censor Board and its enforcement allies, the Crown and the police.
The technical advantage of "non incrimination" (and how can defendants accurately gauge what is incriminating?) should be measured against what was lost in public protest, debate and publicity concerning censorship.
To be in fear of self- incrimination is to be silent; to be subjected to long waiting periods (the case took over a year to come to trial) is to be subjected to escalating legal costs and difficulty in maintaining an energetic defence. Fortunately, the defendants never broke ranks (accepting "deals" proposed by the Crown) or abandoned their resistance to the charges. Fortunately also, the arts community rallied in support.
In the escalating debates concerning pornography, censorship, the rights of individuals versus the regulatory powers of the state (or to put it in class terms, the rights of the oppressed versus the powers of the oppressors), much division was evident in both avant-garde and feminist circles.
The avant-garde film community was divided between those who viewed art as a special (valued) practice that should exist outside equal application of the law, and those who viewed its politics tied to social change. The commercial sector was content to sit idly and hope for a more liberalizing outcome than the one that required The Tin Drum to submit to three cuts in Ontario.
Feminist cultural politics were fragmented along ideological lines and on pragmatic issues between those in favor of various forms of censorship and those categorically opposed to any form of censorship. Pro-censorship was a mixed bag of moralizing arguments that, in effect, cut through the ideological barriers separating the Left from the Right.
There were arguments, for example, that justified censorship as the only method of stopping "hate" literature directed against women and children (that is, violent pornography). This argument, as an essentialist defence of love and innocence, found support in moral majority circles as well as leftist anti-pornography circles, and was fundamental to the anti-pornography lesbian protest.
It was generally agreed that the perversion of eroticism by violence (the introduction of sadism as a term) had to be stopped. What was not clear was what constituted "erotic" expression. To the moral majority, eroticism must be tied to the values that are accept able within fundamentalist Christian dogma; to pro-censorship lesbian-separatists erotic terms are specifically anti-male and support an idealized "essence" of womanhood. For a bourgeois fine-art interest, eroticism (for example, Elder's use of masturbatory images in The Art of Worldly Wisdom) is a kind of "right to expression", outside of ideology and social discourse.
What unified the pro-censorship exponents was their moralist concep tion that censorship could rid society of "evil" or "hate" and return eros to the status of purity, love and utopian expression. Thus the defence of women and children (a popular reductive slogan) was as important to left-wing pro-censorship interests as it was to Mary Brown and her censorship model (which she testified was based on the example set in England, where "they have a concern for children").
The pro-censorship stance is precisely an essentialist defence of abstractions and idealized conceptions that (by definition) exist outside society, history and ideology. It is also precisely a reactionary form of political activity that suppresses dialogue and dialectics in favor of moral solutions. The alternative is a socialist critique (and action) that situates the protest within a critique of capitalism, commodification and patriarchal norms of language and definition - that is, within the social, economic and psychic forms of exchange that promote and support pornography.
A socialist-feminist critique such as the one proposed by Varda Burstyn provides the clearest example of analysis, politics and resistance to sexist (hetero- and homo-) dogma. Writing in Fuse (February 1983), Burstyn noted the connection between capitalism and sexism when she deliberated on the characteristics of the "vast and intricate sex industry.., commodity fetishism" that converts sexuality into consumer goods in the capitalist enterprise of wealth and power. "This sexuality is increasingly commodified and commodities increasingly sexualized", she added.
In Burstyn's view, violent sexual representations are not the same as the actions they depict, but represent extreme stages of repression and ali enation. The fetishizing of sexuality
through commodity, the setting in motion of denial and compensation (through consumption of surrogate goods), and the place of these fetishiz ing practices in maintaining patriarchy and misogyny are concerns crucial to her thesis (as well as that of A Message).
Burstyn's arguments are more sophisticated than feminist essentialist assertions of a psycho sexuality based on gender difference and cultural conditioning. Her arguments also avoid a reduction to a simple moral equation that situates eroticism in terms of "good" or "bad", "politically correct" or "politically incorrect". " I don't think it's an accident that social doctrines which advocate sexual repression always also express the view that humans are basically nasty" she concludes.
The pro-censorship moralist arguent which acts to specify privilege and virtue to sexual activity (either heterosexual or homosexual) usually includes conceptions of good-bad correct-incorrect binaries situated along gender, class and erotogenic lines. The tradional binary of men (as sadists, voyeurs) versus women (as masochists, exhibitionists) may be satisfactory to a conception that specifies men as rapists and women as victims, but it is precisely this reduction that makes further analysis impossible and any political analysis arising therefrom nonsensical.
The essentialist argument sees nat ure as something to be feared, some thing to be repressed. It sees human nature intrinsically tied to violence and Thanatos rather than to love and Eros. The essentialist sees culture (and its institutions) as necessary to the repression or subjugation of nature by language. It may be precisely this repression itself that breeds violence and sadism, as the German "experiment" of the 30s and 40s possibly illustrated.
Ian McLachlan's views speak of the bridging of politics and art within a mutual dialectic of struggle. In The McGill Daily (April 8, 1983) he was quoted as saying: "The vitality of any art comes fom its resistance to the hierarchies and norms of society... Censorship, on the other hand, is an attempt to suppress such resistance or reinterpretation... Art is always produced as a break from the system."
Clearly, art cannot exist completely outside the system, nor can it act in complicity with dominant social and cultural norms and institutions if it hopes to be an unsettling force of resistance and change. McLachlan's views are generally uncompromising when it comes to activism and resist ance, and it is precisely in this spirit of vitality that the Peterborough arts community acted to resist the Toronto-based Ontario Censor Board.
The coming together of a politicized avant-garde film practice, a politicized arts community of educators and administrators, and the present-day contexts of media, representation and activism characterized the Canadian Images film screening of A Message.
The Toronto-based "high-art" values of Elder had proven to be self-serving and politically counter-productive; the hand of the Censor Board was forced, not by secret negotiations, but by a public action that challenged a form of repression that had succeeded in dominating both the Left and the Right.
4.0.0. Excerpts from the Peterborough Trial Transcript
CENSOR BOARD (1984)
A ruling that could severely limit or end the censoring powers of the Ontario Censor Board is being appealed to the Supreme Court of Canada.
The Ontario Court of Appeal had ruled that the Censor Board violates the Canadian Charter of Rights and Freedoms and is therefore illegal. The decision substantially upheld a Divisional Court ruling last year that sections of the Ontario Theatres Act violate the freedom-of-expression guarantee in the Charter.
That decision was the result of a case which challenged the Censor Board's ruling on four films: A Message From Our Sponsor by Al Razutis, Rameau 's Nephew by Michael Snow, The Art of Worldly Wisdom by Bruce Elder and the NFB's Not a Love Story. The Censor Board had ordered cuts on the first three and would not allow Not a Love Story to be shown in general release.
The Appeal Court ruled that the Theatres Act section permitting the board to censor or cut films is "ultra vires as it stands" - meaning the section goes beyond the power the Censor Board is legally permitted. However, while the judgment is under appeal to the Supreme Court, the Censor Board may continue to legally classify and cut films.
The Ontario Film and Video Appreciation Society brought the case to court and the Ontario government has been ordered to pay part of its legal costs no matter what the outcome of the Supreme Court ruling, expected next spring. The society's lawyer, Lynn King, had argued that the Censor Board's guidelines left a filmmaker with no way of knowing what was permitted under the law.Opsis, Spring 1984
ADDENDUM (added 2011):
The Supreme Court of Canada overturned the conviction and agreed with the defense arguments.
Photo of the 'Peterborough Four' defendants from newspaper (undated) article: