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HomeMy WebLinkAboutCD-19-85CORPa.,cATION OF THE TOWN OF NEW~.TLE % ~ I ~G) OFFICE OF THE TOWN CLERK TELEPHONE 62'1-3379 40 TEMPERANCE STREET - BOWMANVILLE, ONTARIO L) C 3A6 REPORT TO THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE MEETING OF MAY 21, 1985. CD-19-85 - file: 10.13.122. SUBJECT: REPORT ON THE ENACTMENT OF A BY-LAW TO REGULATE AND GOVERN THE SALE AND DISPLAY OF CERTAIN BOOKS, MAGAZINES, AND ADULT VIDEOTAPES IN RETAIL STORES. RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. That Clerk's Report CD-19-85 be received for information. BACKGROUND AND COMMENT: On March 11th 1985, Council received a letter dated February 25th 1985, from Mrs. C. McDougall, 72 Martin Road, Bowmanville, L1C 3N3, expressing her concern and objection to the manner in which materials of an "erotic" or "pornographic" nature were displayed in retail stores in the Town of Newcastle and, requesting that Council enact a by-law to controlrathe display of such materials. Council, by Resolution #C-146-85 directed, "That the correspondence received from Mrs. C. McDougall, Re Pornography, be received and referred to staff for review on what legally can be done and report back to Committee." Pursuant to Council's direction, a letter was prepared which asked for "information on the current practice being used to control the display and dissemination of materials of a pornographic nature" and circulated to the following municipalities: Continued .....12 CD-19-85 E - 3 - ` May 21, 1985 ~ _ ~ ~C 8. Metropolitan Toronto Enacted a by-law to regulate the sale of adult books and magazines. The Divisional Court on October 31st 1984, released a judgement which held the provisions of the by-law to be void and of no force and effect. Metro Council has authorized an appeal to the Ontario Court of Appeal from this decision which may be heard in June 1985. REPORT The issue presently before Members of Committee is based upon a request that the municipality enact "the necessary laws which would restrict the display of magazines, videotapes, record album covers, greeting cards, erotic gift items (mugs, playing cards, pens, clothing, posters, etc.) and anything else of a pornographic nature. It is the opinion that Council cannot pass a by-law that would encompass the list detailed in the previous paragraph. Indeed, such a by-law would have no "force or effect" and such a by-law could be successfully challenged on the grounds that: (a) It infringed upon the right to freedom of expression and of the press and was in contravention of the provisions of the Canadian Charter of Rights and Freedoms; (b) The definition of "adult books or magazines" is vague and beyond the ability of a store owner to know whether the books he sold would be covered by such a by-law. The draft by-law attached hereto is provided for information only, and I would recommend that no further action be taken pending the outcome of Metropolitan Toronto's case. Because of the nature of the by-Iaw and the sensitivity of the issue, I forwarded a copy of the draft by-law to the Town's Solicitor on April 29th 1985, with the request that he review the draft by-law and provide me with a written opinion. Mr. Sims, by letter dated May 6th 1985, replied to my letter and suggested, that the Metropolitan Toronto case wtiuld, because of the importance of the issue probably find its way to the Supreme Court of Canada. Continued ...../4 . o ~~ fHE CORPORATION OF THE TOWN OF NEWCASTLEI. BY-LAN 85- being a by-law to regulate and govern the sale and display of certain books, magazines, adult videotapes D RAF T - ~ CC) WHEREAS the Corporation of the Town of Newcastle desires to enact a by-law, pursuant to the provisions of Section 222 of The Municipal Act, R.S.0. 1980, Chapter 302 and amendments thereto: NON THEREFORE THE COUNCIL OF THE CORP~211TION OF THE TOWN OF NEWCASTLE HEREBY ENACTS AS FOLLOWS: DEFINITIONS (a) "Adult book, magazine, picture or adult videotape", means any book, magazine, picture or adult videotape; (i) of which the principal feature or characteristic is the portrayal or depiction, by means of photographs, drawings or otherwise, of one or more of the specified body areas of any person or persons; and~~ (ii) which appeals to or is designed to appeal to erotic or sexual appetites or inclinations; {b) "Specified body areas" means: (i) in the case of a female person, her breasts; and (ii) in the case of all persons, the pubic, peri neat and perianal areas and the buttocks. (c) "Adult Videotape" means any videotape: (i) of which a principal feature or characteristic is the portrayal or depiction of one or more of the specified body areas of any person or persons. 1. No person shall sell, offer to sell, or display for sale, by retail or otherwise, (a) books, magazines, pictures or adult videotapes and such other goods designed to appeal to erotic or sexual appetites or inclinations, Except in accordance with the following: nrnu at~nuc (i) such books, magazines or pictures shall be placed Dehind an opaque barrier of a size and nature which shall ensure that the cover of such books, magazines or pictures, save only the names thereof, may not be seen by the public; (ii) such books, magazines or pictures shall not 6e displayed at a height of less than 1.5 metres (5 feet) above floor level, unless such book magazine or picture is in a part of the premises to which the public is not permitted physical access; (iii) adult videotapes shall not be displayed at a height of less than 1.5 metres (5 feet) above floor level, unless such adult videotape is in a part of the premises to which the public is not permitted physical access; (iv) all such other goods designed to appeal to erotic or sexual appetites or inclinations shall not be displayed at a height of less than 1.5 metres l5 fleet) above floor level, unless such goods are in a part of the premises to which the public is not permitted physical access.