"When it comes to plain vanilla depictions of sexual activity between heterosexuals or homosexuals, I think that Canada is generally more tolerant than large swathes of the United States — for example, the South and the conservative heartland of the country," Piccionelli said. "But when it comes to material that includes depictions of violence against women, I think that Canada is going to end up being less tolerant. I think the most discernible and important difference between American and Canadian obscenity law is that in Canada, what can be obscene can be anything that is considered to be humiliating or degrading to women. If S&M material is said to be degrading to women, I think Canada is going to be a lot less tolerant than the United States."
John Wirenius, legal counsel for the National Coalition for Sexual Freedom, warns adult-oriented entrepreneurs that even if they move to Canada, they still need to be aware of American obscenity laws as long as they're doing business in the United States.
Borderless Laws
"The concept of moving to Canada to escape U.S. obscenity laws is one of those ideas that sounds a lot better than it would play out in the real world, because as long as you're still doing business with American consumers, you are doing business in U.S. jurisdictions," Wirenius said. "Because you're in a different nation physically, that would make it more of a nuisance for the United States government to bring you in; and in that sense, it would make American officials less likely to make you the poster boy for prosecution. But they could. Canada and the United States have an extradition agreement."
Journalist Marc Cromer, who has covered sexual issues extensively for Hustler and others, argues that when all is said and done, adult entertainment providers have a powerful weapon in the U.S. that they don't have in Canada: the First Amendment.
"Canada prides itself, foolishly, I think, on being far more European in its allegedly progressive prerogatives than its big cousin to the south," Cromer said. "The Canadian government pretends to pursue an egalitarian agenda, all the while [demonstrating] that it has no faith in the people to make their own decisions as to what is offensive and what is not."
In Vancouver, Ince created a controversy when he hosted a live sexual performance in an art gallery, during which a couple had sex in front of an audience while an art piece was created based on their performance. Vancouver police wanted to arrest Ince, but prosecutors decided to leave him alone. However, Ince fears that there might have been a different outcome in another part of Canada or in an American city. The Canadian attorney stressed that both the U.S. and Canada still have a long way to go when it comes to sexual freedom.
"It's not like the laws are so tolerant of adult entertainment in Canada compared to the United States that it would make a switch sensible," Ince said. "There may be other benefits in coming to Canada such as cheaper production costs or a ready supply of new talent, but those are purely economic reasons that have nothing to do with the laws. Just on a pure legalistic basis, I can't see a tremendous advantage for an American adult entertainment company to uproot itself and move to Canada."
