Nova Scotia Board of Censors v. McNeil
Encyclopedia
Nova Scotia v. McNeil, [1978] 2 S.C.R. 662 is a famous pre-Charter
decision from the Supreme Court of Canada
on freedom of expression and the criminal law
power under the Constitution Act, 1867
. The film censorship
laws of the province of Nova Scotia
were challenged on the basis that it constituted criminal law which could only be legislated by the federal government. The Court held that though the censorship laws had a moral dimension to it, the laws did not have any prohibition or penalty required in a criminal law.
from being shown in the province. McNeil, a journalist, attempted to challenge the law on the basis that it was a constitutionally invalid law.
The issue before the Supreme Court was whether the regulation of morality alone constitutes a criminal law. In a five to four decision the Court held that the law was concerning property and civil rights under section 92(13) of the B.N.A. Act and not criminal law.
of the Act concerned the "regulation, supervision and control" of film, a form of private property, in the province. Consequently, the law was strictly a matter of Property and Civil Rights, a matter that was in the exclusive jurisdiction of the province. Further, Ritchie applied the definition of Criminal law from the Margarine Reference
case which required that a criminal law must concern the public interest and must consist of a prohibition with a penalty. Ritchie found that there was no clear prohibition because the law did not provide details on what was prohibited, rather, it left it to the discretion of the board.
, in dissent, found that the law had no connection with Property and Civil Rights. Laskin identified the law as colourable. In form it concerned property but in substance it concerned the regulation of "taste". He noted how the province had already unsuccessfully attempted to prosecute the distributor of the film under the obscenity laws of the Criminal Code, and saw this as another attempt at the same goal.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
decision from the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on freedom of expression and the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
power under the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...
. The film censorship
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
laws of the province of Nova Scotia
Nova Scotia
Nova Scotia is one of Canada's three Maritime provinces and is the most populous province in Atlantic Canada. The name of the province is Latin for "New Scotland," but "Nova Scotia" is the recognized, English-language name of the province. The provincial capital is Halifax. Nova Scotia is the...
were challenged on the basis that it constituted criminal law which could only be legislated by the federal government. The Court held that though the censorship laws had a moral dimension to it, the laws did not have any prohibition or penalty required in a criminal law.
Background
The Amusement Regulation Board of Nova Scotia, created under the Theatre and Amusement Act, banned the film Last Tango in ParisLast Tango in Paris
Last Tango in Paris is a 1972 Italian romantic drama film directed by Bernardo Bertolucci which portrays a recent American widower who takes up an anonymous sexual relationship with a young, soon-to-be-married Parisian woman...
from being shown in the province. McNeil, a journalist, attempted to challenge the law on the basis that it was a constitutionally invalid law.
The issue before the Supreme Court was whether the regulation of morality alone constitutes a criminal law. In a five to four decision the Court held that the law was concerning property and civil rights under section 92(13) of the B.N.A. Act and not criminal law.
Reasons of the court
Ritchie J., writing for the majority found that the pith and substancePith and substance
Pith and substance is a legal doctrine in Canadian constitutional interpretation used to determine under which head of power a given piece of legislation falls...
of the Act concerned the "regulation, supervision and control" of film, a form of private property, in the province. Consequently, the law was strictly a matter of Property and Civil Rights, a matter that was in the exclusive jurisdiction of the province. Further, Ritchie applied the definition of Criminal law from the Margarine Reference
Margarine Reference
Reference re Validity of Section 5 of the Dairy Industry Act , also known as the Margarine Reference or as Can. Federation of Agriculture v. A.-G. Que., is a leading opinion of the Supreme Court of Canada on determining if a law is within the authority of the federal government under the...
case which required that a criminal law must concern the public interest and must consist of a prohibition with a penalty. Ritchie found that there was no clear prohibition because the law did not provide details on what was prohibited, rather, it left it to the discretion of the board.
Dissent
Laskin CJ.Bora Laskin
Bora Laskin, PC, CC, FRSC was a Canadian jurist, who served on the Supreme Court of Canada for fourteen years, including a decade as its Chief Justice.-Early life:...
, in dissent, found that the law had no connection with Property and Civil Rights. Laskin identified the law as colourable. In form it concerned property but in substance it concerned the regulation of "taste". He noted how the province had already unsuccessfully attempted to prosecute the distributor of the film under the obscenity laws of the Criminal Code, and saw this as another attempt at the same goal.