Activists in Ontario are scratching their heads over the province’s newly revamped law on movie classification, complaining that lawmakers have done too little to curb the censorial powers of the province’s film board despite a firm ruling from its highest court.

The Ontario Superior Court last year struck down the province’s Theatres Act, finding after a four-year legal battle that it violated freedom of expression under the Charter of Rights and Freedoms. The province was given 12 months to rewrite the law and the result, the Film Classification Act, is expected to go into effect by the end of August.

But Noa Mendelsohn Aviv, director of freedom of expression at the Canadian Civil Liberties Association, says the act ‘misses the point’ of the ruling, noting that the province has not done away with its system of prior restraint.

The court decision said ”Get rid of censorship,” she notes, ‘and lo and behold, there it is in Section seven. Censorship. Prior restraint. Censorship. It’s quite unbelievable.’

Under both the old and new laws, it is illegal to distribute a film in Ontario that has not been classified by the Ontario Film Review Board. Critics have long argued that this prior restraint grants too much power to the board, which can effectively ban a film by refusing to classify it.

Such was the case in 2001 when the OFRB refused to put a label on Catherine Breillat’s sexually graphic Fat Girl, though it later recanted. The board, thought by some to be the strictest in Canada, has also objected to films including Baise-moi, another French import, and Ron Mann’s 1999 documentary Grass.

Prior restraint also started the battle that led to the new law when, in 2000, a gay-aimed book store in Toronto came under legal fire for selling unclassified films. Glad Day Books successfully fought the case with help from the CCLU.

But Jason Okamura, a spokesperson for the Ministry of Government Services, insists that the new law is a significant change – noting that, now, the OFRB can only refuse to classify ‘adult sex films’ that might fall under the Criminal Code’s definition of obscenity.

‘We believe the new act is consistent with the judge’s ruling. The OFRB’s role is limited to classifying films… providing information to the public so they can make informed viewing decisions,’ he explains. The ministry shares film duties with the OFRB by enforcing its decisions.

OFRB chair Janet Robinson says the definition of adult films (‘depictions of graphic sex for the purpose of sexual gratification’) is clear, and not likely to overlap with graphic mainstream movies. Baise-moi would pass easily if reviewed today, she says.

The new act has also raised the maximum fines for violations – up from $25,000 to a maximum of $50,000 or two years in jail for individuals. Corporations may face fines up to $250,000, up from $100,000.

Mendelsohn Aviv says the law should not restrain any films. ‘It’s overbroad and hasn’t been shown to be necessary,’ she says, noting that some provinces rely on just the Criminal Code.

‘You have the Criminal Code if something is going to harm society. They have the same methods of dealing with it in Manitoba, and you know what? No one says they can smell the sulphur rising off the streets in Winnipeg.’

The Film Classification Act got royal assent in June but has not yet gone into effect. It is awaiting last minute fine-tuning and is expected to be proclaimed as law by the end of the month.