April 27, 2009

Adult Sex Guidelines not Law

Filed under: 1 — ruleswatch @ 6:35 am

Hardy new news, but the decision of the Ontario Superior Court in R. v. Glad Day Bookshops Inc.[2004] O.J. No. 1766 90, an appeal from a provincial court conviction in the censorship of home videos, gives a handy review of when “policy” is not “law” for the purposes of s. 1 of the charter (“…reasonable limit prescribed by law…”).  Juriansz, J., (as he then was) noted transparency, the authority of maker or guidelines, accessibility of guidelines, and the procedural casualness with which they could be changed to scotch any argument the government could use the guidelines to mount a s. 1 defence to a freedom of expression challenge:

[90] The government also seeks to rely on the “Adult Sex Guidelines” developed by the Board, which it submits provides additional guidance about the meaning of the criteria set out in s. 14 of Reg. 1031. These Guidelines set out the criteria to guide the Board’s discretion in greater detail than s. 14(2) of the Regulation provides. However, there is no statutory authority for the Guidelines in either the Act or the regulations and the Guidelines are not reviewed or approved by Cabinet. The Guidelines lack the status of law. The current Guidelines were prepared in 1998, disclosed to the “industry” in 2000, but remained unavailable to the general public. The copy of the Guidelines that were made an exhibit at trial were labeled “Confidential”. The Board may change the content of the Guidelines when and as it chooses. I find that government may not rely upon the Guidelines as limits prescribed by law.


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