Police Raids/Obscenity Charges

Perhaps a bookseller’s worst nightmare is the dreaded visit from the police, the humiliation of obscenity charges, and the expense of a defence. Recently, retailers have the added fear of prosecution arising from foreign magazines that may contain material subject to a Canadian publication ban.

In many cases, booksellers or their boards of directors go into panic mode when there isn’t much to worry about. This is particularly the case when, as commonly happens, police visit the shop and warn the bookseller about something on the shelf without laying any charges. Sometimes, the retailer has unwittingly displayed something that truly violates the Criminal Code, and the wisest action is to remove it. Many books, however, fall into a grey area or are very unlikely to be found obscene. The courts have to consider constitutional issues, and the Crown has to prove beyond a reasonable doubt that “harm” may flow from exposure to the material.

Quite often, the police visit is merely a routine response to a frivolous complaint from a citizen whose definition of obscene rarely corresponds with that of the courts. Don’t panic, keep a stiff spine and ignore it.

You can’t stop police from dropping by a store, looking around and buying stuff. It’s a public place and they don’t need a search warrant. Don’t try to stop them or you could be charged with under Section 129 of the Criminal Code of Canada. On the other hand, if the police arrive on private premises, such as a home or office not open to the public, you do not have to let them in unless they have a warrant that specifies those premises. Nor do you have to accompany them to a police station unless you have been charged, and indeed doing so is inadvisable.

A warrant to search and seize obscene materials does not have to name specific titles of books, magazines, or other publications, although it should name the offence being investigated. In executing the warrant, police can seize anything that is evidence of the offence named in the warrant, as well as anything they find that they have “reasonable grounds” to believe is evidence of any offence. Also, as long as police officers are lawfully on premises for a certain purpose, they can seize any goods which are in plain view and which they reasonably believes to be evidence of an offence. Usually they just take one or two titles, but if it is a lot, try to make a list of what they take; they have to give you a list later, but not on the spot.

Don’t volunteer or concede anything, or attempt to engage the police in a discourse on civil liberties or literature. Difficult as it may be in the circumstances, keep silent. By debating the merits of the material, you save them the trouble of proving you knew the material was there and obscene – and eliminate the defence that you lacked mens rea (a guilty mind). Remember, it is the Crown’s job to prove their case, not yours.

When the police seize material, they may charge a person with a criminal offence. Another possible outcome is for nobody to be charged, but a forfeiture hearing held to determine whether the material should be returned or forfeited to the state and destroyed. Mere possession of obscene material is not an offence, except child pornography or where the material constitutes the “fruits of illegal activity.” Obscenity offences relate to sale, exhibition, publication, distribution and circulation.

The Crown will have to prove at trial that the material is obscene or child pornography. Remember, there is a very low test for what can be seized but a much higher one for getting a conviction. It is easier to defend a book than a magazine or anthology, because the redeeming qualities of the work as a whole are a consideration.

The police may hold seized items only if they can demonstrate to a justice of the peace that the goods are required for subsequent legal proceedings. The police can detain materials until their investigation is complete or they charge someone, but they can’t hold items longer than three months unless the justice authorizes continued detention, or the Crown brings a prosecution in which the item may be required as evidence. If neither of these happens, the justice may order the materials returned to the person from whom they were seized, so long as possession by that person is lawful.