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| Norman Douglas |
The owner of a hotel had seen their act in Toronto and hired them to come up to the Soo for a weekend gig.
Their material included subjects that some folks found offensive — like incest, mocking cancer victims and songs like I’ve Seen Pubic Hair to the tune of I’ve Been Everywhere.
Tame stuff by today’s standards, if we still have any.
But back then, the Criminal Code’s s. 167 prohibited “immoral, indecent or obscene performances,” and although the legal definition of “obscenity” was open to some interpretation, their act left little doubt that the brothers were deliberately pushing the envelope.
After their first performance, the local police received a complaint from at least one member of the audience.
So the next night, an undercover officer attended and taped their show.
Her report to her superiors led to an arrest and a criminal charge against the brothers, and the owner of the hotel.
I was a young assistant Crown attorney in my hometown of Sault Ste. Marie.
The first I heard of the case was about a week later when my boss greeted me one morning with a chuckle: “Have I got a case for you…”
Little did I know that this seemingly obvious slam dunk and easy-to-prove case (play the tape) would take five years and gain national attention. Or that their lawyer, Clayton Ruby, would make me the target of his accusation that I instigated (nope) and then prosecuted the case (yup) for personal reasons (nope) because I was a religious zealot (his opinion — entitled to it).
On researching the law back then, it quickly dawned on me that the difficulty of proving the case would come from the vague legal definition of “obscenity”:
Section 168(4): “Any publication (or performance under s. 167(1) and (2)), a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of crime, horror, cruelty and violence, shall be deemed to be obscene.”
No, this column is not about the saga of that case, profiled on national TV on CBC’s Fifth Estate in a segment titled, “Douglas for the Crown.” You can do your own research and discover how the trial judge found them guilty, and how the Court of Appeal overturned the finding on an error the judge had apparently made in defining “obscenity” and sent it back for a new trial. They were, after a five-year legal merry-go-round, eventually acquitted.
Let’s fast-forward before you lose interest in a nearly 50-year-old case.
Let’s talk about “obscenity” in 2026. You don’t find that charge in our courtrooms today. So I am using the term in its non-sexual definition:
“Obscene means offensive, disgusting or shocking, typically due to being sexually explicit or indecent, but it can also describe something morally abhorrent, excessively excessive (like ‘obscene wealth’) or violating public decency or strong moral principles.”
I was sick with the flu over Christmas and New Year’s, so I watched more television than I normally do. Primarily sports and news channels.
In those three weeks, I have never been exposed to more obscenity than in all my years in the criminal justice system.
And whatever your definition of obscenity, surely you will agree with me. I believe even Clayton Ruby, if he were alive today, might give me a pass on this one.
So this is what I learned in three weeks:
1) The Taylor Swift and Travis Kelce engagement will generate a billion dollars.
2) Bo Bichette will be paid US$126 million to play baseball in New York for three years.
3) FanDuel and a few other gambling consortiums have taken over sports “entertainment” programming.
4) Consumers in the United States are now a trillion dollars in debt to credit card companies.
5) The U.S. Department of Justice is conducting a full investigation into the church service that was interrupted by anti-ICE protesters, and the Attorney General promises the “full force of the federal law” against those found guilty. That same department has decided that no investigation is necessary in the fatal shootings by an ICE officer of Renee Good and Alex Pretti.
6) Greenland “must” be taken by the U.S.
There was more, but I finally just turned off the television. Now, if Crown attorneys really did tell the police who to charge, and if I were a Crown attorney again, I would get on the phone and set up six more obscenity prosecutions.
This is part one of a two-part series.
Norman Douglas is a retired criminal court judge with 27½ years of experience on the bench. His book, You Be the Judge, was published in December 2023.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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