Mailing Obscene Matter (s. 168) Charges in Canada: Offences, Defences, Punishments

What is a charge of Mailing Obscene Matter?

Mailing Obscene Matter, Section 168 of the Criminal Code of Canada. It prohibits the use of mail for transporting, transmitting, or delivering anything that is obscene, indecent, immoral, or scurrilous. The concept of “community standards” is applied to section 168 of the Criminal Code.

Mailing obscene matter is a hybrid offence.

Examples

Some examples of a charge of Mailing Obscene Matter may include the following:

• A person sends violent sexual images by way of mail to a recipient
• A person uses mail to send a magazine which contains obscene materials
• A person sending a record of an audio recording which contains obscenity by way of mail.

Defences

The defences available to a charge of Mailing Obscene Matter are entirely dependent on the facts of your case.

However, some defences to a charge of Mailing Obscene Matter may include:

• The accused was wrongly identified as the person who sent the item(s) by mail
• The accused did not intend to send matter by mail they would be considered obscene
• The accused did not know that what they were sending would be considered obscene matter

Punishment

A charge of Mailing Obscene Matter is a hybrid offence, which entails a maximum punishment as follows:

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Overview of the Offence 

According to s. 168 of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a charge of Mailing Obscene Matter under s. 168 is established by proof, beyond a reasonable doubt, of the following:

• The accused distributed or sent obscene material through the mail

The Guilty Mind (Mens Rea)

The mens rea for a charge of Mailing Obscene Matter under s. 168 includes proving, beyond a reasonable doubt, that:

• The accused knew the material they were transmitting or sending by mail was considered obscenity

Defences

How to Beat a Charge of Mailing Obscene Matter

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a charge of Mailing Obscene Matter:

Factual innocence

A strong defence against a Mailing Obscene Matter charge is to maintain that you are factually innocent. If you can show that the facts and the evidence do not support that you mailed or transmitted anything of an obscene matter.

Lack of Intent/Mistake

If you can show that you were never seeking to commit the offence of mailing obscene matter, and were merely sending a magazine without knowledge of its entire contents. For you to be convicted of mailing obscene matter, the crown must prove that you had knowledge that your actions would result in obscenity being transmitted by mail.

Identity

Depending on the circumstances of your case, a possible defence to a mailing obscene matter charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who committed the prohibited acts.

Any applicable Charter defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of imprisonment of no more than 2 years less a day for those convicted of a Mailing Obscene Matter if the crown proceeds by indictment.

Frequently Asked Questions  

What does Mailing Obscene Matter mean?

Mailing obscene matter means sending or transmitting material that has been deemed obscene, that does not pass the community standards test, through the mail. It is intended to safeguard the federal mailing service from use for immoral and obscene purposes.

Is Mailing Obscene Matter an indictable offence?

Yes, Mailing Obscene Matter is a hybrid offence therefore the crown can elect to proceed by indictable offence.

Can you go to jail for Mailing Obscene Matter?

If you are convicted of Mailing Obscene matter, and the crown proceeds by indictment, the maximum punishment is 2 years less a day. Therefore, there is a possibility that you can go to jail if convicted.

Published Decisions

R v. Lambert, 1965 CanLII 735 (BC SC)

The accused was convicted of mailing obscene matter as a result of evidence obtained by the Vancouver Police regarding pornography transmitted by mail from Winnipeg, Manitoba. Specifically, evidence obtained from a Vancouver Police detective during an interview with the accused was held by the courts upon dismissal of the appeal.

You can read the full decision here.

R v. Popert, 1981 CanLII 3382 (ON CA)

The accused’s were employed by a corporate entity which distributed a newspaper to subscribers called “The Body Politic”, which contained an article called “Men Loving Boys Loving Men”, with apparent fictional characters and described acts of gross indecency between men and young boys, which reference that the fictional characters deserved praise and support.

The accused’s were acquitted, which was held by the Ontario Court of Appeal, after amongst several reasons, a community standard of obscenity could not be established.

You can read the full decision here.

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