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THE QUEBEC MOVING PICTURES ACT
The Quebec Moving Pictures Act:
Some Constitutional Notes
Brahm L. Campbell *
“To subject the press to the restrictive power of a Licenser is to subject all
freedom of sentiment to the prejudices of one man, and make him the arbi-
trary and infallible judge of all controverted points in learning, religion,
and government.”**
The Quebec Moving Pictures Act 1 and the Board of Film Censors
created therein again became the focal point of public attention some
weeks ago, when the Quebec-produced film La Terre & Boire was
refused a permit to be shown in local theatres without certain changes
and excisions. The Censors’ action raised anew the question of the
very constitutionality of the legislation itself at a time when the
products of most of the avant-garde of Europe’s nouvelle vogue pro-
ducers were being given free rein in the Province’s cinemas. The
above quotation, although penned in an age when the art of film-
making was not yet conceived, certainly is most relevant to the
question and principle of censorship itself which is hereinafter dis-
cussed.
Pith and Substance
Lord Watson’s Pith and Substance test 2 for the constitutionality
of any given legislation reveals that the essence of the Moving Pictures
Act is the creation of a Board the principal function of which is to
exercise an arbitrary and unlimited power over virtually all films
exhibited in Quebec. The basis of such thinking was that this new
and potentially dangerous medium of expression and communication
could be properly controlled and channelled. After all, it was reasoned,
radical and indeed downright immoral thoughts and views were
always seeking new methods of propagation. Thus, if the state through
its chosen arbiters could ultimately screen all films before they were
shown, then the very fabric of the society itself would best be pro-
tected.
Of the Bar of Montreal.
* Blackstone, Commentaries, 1769, Vol. IV, pp. 151-152.
1 R.S.Q. 1941, ch. 55.
2 First stated in Union Colliery v. Bryden [1899] A.C. 580.
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Background
The Act in question has been on our statute books since film prod-
uction, distribution, and screening were in their infant stages. A curs-
ory examination of some of the recommendations made to the Board
of Censors by the government of Alexandre Taschereau in 1931 8
clearly reveals the criteria which were supposed to guide its thinking.
It was instructed to forbid all scenes which “amoindre ou abaisse ]a
morale dans l’esprit de ceux qui le voient”. It must guard against any
“claire et explicite” treatment of adultery. All portrayals of infidelity
had to contain moral lessons showing that such unfaithfulness was
evil and was always punished. Sexual perversion, vulgarity, nudity,
all were, without exception, forbidden. Further, the more heinous
portrayals of crime and criminal methods were not to be permitted.
What an idyllic society our Censors were advised to created for us!
The result, however, was that any potential Quebec film industry
could not possibly bloom in such an ominous atmosphere and did not
take root until the new Liberal government appointed a most pro-
gressive and liberal Board (small “I” intended) after it came to
power in June 1960.
Public Rights and Civil Rights
We now have a general picture of the all-embracing powers which
the Board so freely exercised over a number of decades. It is quite
evident, this writer submits, that these powers clearly and unequivoc-
ably trenched upon the realm of public rights.
What are public rights ? Mignault J., in Bddard v. Dawson 4 dealt
at length with Lord Bacon’s definition. It was suggested that public
rights, Jus Publicum, encompassed those which interested the whole
of a free society. Thus the rights of free speech, assembly, religion,
expression were basic to the nation itself and were matters of national
concern to be affected only by national legislation. Such legislation
provided sanctions for violations of the social order or disturbances
to the security of the state, such as libel, obscenity, blasphemy, and
sedition.
Conversely, civil rights or the Jus Privatum were those which an
individual exercised for a monetary consideration when his own per-
sonal rights were transgressed. Thus the defamation of a person’s
character by slanderous speeches gave rise to a civil action in damages.
The society itself had not been harmed, but the individual only has
suffered, and he is provided with the proper recourse.
3 Mmoire du Comit6 Provisoire pour lEtude de Ia Censure du Cin6ma, p. 85.
4 [1923J S.C.R. 681.
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THE QUEBEC MOVING PICTURES ACT
The Criminal Law
The common law, from which our Criminal Code is derived,
implicity recognizes this distinction. Any definition of criminal law,
be it Lord Atkin’s 5 “an act which is prohibited by appropriate
penal provisions under the authority of the state,” or Lord Haldane’s 6
“an act which by its very nature belongs to the domain of criminal
jurisprudence” enunciates this distinction which is apparent through-
out the field of criminal law and in all acts constituted crimes by
the Legislator.
Substantive criminal law has at its base concepts of public good
and public morality the infringements of which are considered to
be of significant danger to the very society itself. This legislation
is designed to protect the public interest. This writer contends that
the pith of the Quebec Moving Pictures Act places it squarely among
those acts designed to protect this broad public interest. When, the
Censors forbade the film Martin Luther King from being exhibited
(it has been shown in post-Duplessis Quebec) they were apparently
sincerely concerned with the protection of the common good and
the thwarting of any danger to an overwhelmingly Catholic body
politic. All well and good, but actions founded on such objectives
are not within the purview of provincial legislative power.
A close examination of our Criminal Code appears to provide a
number of openings for some bright young Crown prosecutor to
successfully charge the producers, distributors and exhibitors of an
allegedly obscene film with the commission of an offence. Part IV
of the Code, especially section 150 concerning obscenity, makes it
an offence for everyone who “publicly exhibits a disgusting object
or an indecent show”. 7 Section 152 states that everyone who is
responsible for the presentation in a theatre of an “immoral, indecent
or obscene performance, entertainment or representation” commits
an offence. “Theatre” is defined in Section 130 (c) as “any place
that is open to the public where entertainments are given, whether
or not any charge is made for admission.”
The citations have been made solely to emphasize the tone and
colour of those Criminal Code provisions dealing with indecent or
immoral exhibitions. It is striking to note the similarities between
these sections and the criteria which the Board was advised to use
in the decisions and which are hereinabove discussed.
5 In Re Proprietary Articles Trade Association [1931] A.C. 310.
6 In Re Board of Commerce Act (1992) 1 A.C. 191.
7150 (2) (b).
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Analogous Legislation
The proponents of provincial legislation which comes under con-
stitutional fire are naturally wont to buttress their case by advancing
various heads of Section 92 under which they allege the Act
squarely falls. The defenders of the Moving Pictures Act often refer
in their arguments to Section 92(13), property and civil rights, and
Section 92 (16), matters of a purely local or private nature. Even Sec-
tion 93, education, has been successfully used to keep an amendment to
the Moving Pictures Act itself on the statute books. In the latter
instance, it was held by the Quebec Court of Appeal 8 that the under-16
amendment passed by the Quebec Legislature after the disastrous
Laurier Palace fire of 1927 was a legitimate exercise of provincial
education powers. What an unusual interpretation of education ! The
fewer films a youngster could see, the more educated he became !
The Supreme Court of Canada has generally been most direct
and quite unequivocal in its decisions concerning provincial attempts
to intrude upon the field of public rights. In Switzman v. Elbling,
more popularly known as the Padlock Law case 9 Lucien Tremblay,
counsel for the Quebec government (now Chief Justice of the Quebec
Court of Appeal) submitted that the Act in question was a neces-
sary limitation on the spread of free speech similar to the ordinary
civil restrictions of slander and libel.
Rand J. disagreed. He reasoned that the ban on the dissemination
from particular premises of so-called “Bolshevist propaganda” was
directed at the very civil liberty of the actor himself, and that “no
civil right was affected nor was any civil remedy created”. Abbott
J. added that any abrogation of free speech by a provincial leg-
islature could only be to protect purely prioate rights. The Supreme
Court in this instance strongly reaffirmed the necessity of preserving
the free expression of opinion, in order to maintain the very freedom
of the society itself. Rand J. further stated that once one accepts
the view that government by the free public opinion of an open
society is government in its best form, then “a virtually unobstructed
access to and diffusion of ideas” is required.
The Supreme Court similarly dealt with the Alberta Accurate
News and Information Act.10
In this instance, legislation was
introduced in Alberta by its fledgling Social Credit Government
compelling newspapers to publish statements issued to them by the
government explaining the allegedly true and exact objects of the
8 Duhamel v. Semple (1928) 66 S.C. 563; (1929) 47 K.B. 17.
9 [1957] S.C.R. 285.
10 Reference Re Alberta Statutes (1938) S.C.R. 100.
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THE QUEBEC MOVING PICTURES ACT
adminiatration’s policies. They could also be obliged to reveal their
sources of information. The sanction for violating these provisions
was outright banning of the transgressing newspaper.
The Supreme Court did not doubt that this legislation was ultra
vires. Cannon J. noted inter alia that the individual’s civil rights
were not dealt with here in the hope of providing recourse for their
infringements. Rather, the Act invaded the field of public rights
and duties which was in the federal sphere. He then enunciated his
theory that a province could not reduce the political rights of its
citizens compared to the enjoyment of similar rights in other prov-
inces. These rights, he felt, had an aura of unity in a free society
which was in fact one of the pillars of the very society itself.
The question of censorship per se has also been closely examined
both by the Quebec Courts and the Supreme Court.
In Saumur v. The City of Quebec 11 appellant, an ardent salesman
of Witnesses of Jehovah tracts, attacked the constitutionality of a
Quebec City by-law empowering the Police Chief to censor the sale
of such journals on the public roads. It was held that the by-law
entered the federal domain of public law and was thus “ultra vires”.
Locke J. contended that the true purpose of the by-law was to “…
impose a censorship on the written expression of religious views and
their dissemination, a constitutional right of all the people of Canada.”
Chief Justice W. B. Scott, as he then was, of Quebec’s Superior
Court, decided in a similar case in 1956 12 that a Montreal by-law
vesting the Police Director with the right to approve all pamphlets
in public places did not in any way
before they were exhibited
concern the maintenance of order on the public roads. He stated
that “in its essence it establishes an aristocratic and unfettered
censorship of the contents of placards, advertisements, prospectuses,
circulars, or papers carried or distributed in, near, or upon the
in its pith and substance by-law 2077 manifestly en-
streets.
croacheo upon and usurps a field reserved exclusively for the author-
ity of Parliament.. . this is a question of criminal lav…”
.
Conclusion
The comparison made above between the basic principles of public
law which are solely reserved to the federal power in Canada and
those which underlie the Qucbcc Moring Pictures Act raise grave
11 (1953) 2 S.C.R. 299.
12 Dame Gabricik Dionne v. The Aiunicipal Court of the City of Montreal and
His Honowr Judge H. Monty (1956) 60 R.P. 299.
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[‘o i. 11
doubts as to the constitutionality of this legislation. It is true, as
has already been pointed out, that the Lesage regime has opened
the door to a relatively unhindered production, distribution, and
exhibition of myriad types of films in our province’s theatres; never-
theless, the experience of La Terre et Boire denotes the sword of
Damocles which is suspended over our cinema organizations and
which represents a distinct threat to the development of a creative
and unhampered film industry in Quebec.
One might express the hope that it will not be necessary to
challenge the Act in our Courts in order to obtain that which any
progressive government would be expected to bestow on its people.
The very principle of censorship itself is repugnant to the loftiest
traditions of the Rule of Law. It is a prior restraint of the worst
kind and only succeeds in stifling the normal development of a free
society. To erase it from the statute books of this province would be
to render a distinct service to the people of Quebec.
