Educational Excerpts: On the Current State of Viewer Discretion Jurisprudence

Kevin Schoenfeldt (2L)

In this column, we provide excerpts from current legal research by leading academics across Canada. Today, we are featuring Professor Sheffield S. Steinfeld, an administrative law professor from UBC. In this fascinating excerpt, Prof. Steinfeld discusses how the Supreme Court of Canada has treated viewer discretion and whether their recent decisions provide useful guidelines for scholars and practitioners moving forward. The full article can be found in the Definitely Real Journal of Actual Law, vol 237(3), (2017). Footnotes have been omitted.

Ever since the case of Temor v Herself (1988) (or, in popular parlance, the Scared Woman case), the Supreme Court of Canada has, in the words of noted scholar Professor Hooper, “made an absolute argle-bargle of the whole thing.” In that case, Ms. Temor watched a television broadcast of Poltergeist despite the content warning preceding it. That warning advised viewers that there were scenes of supernatural terror and spooky objects moving on their own, and viewers should use their discretion in deciding whether to view the film or not. Ms. Temor, of course, was famously so afraid that she would be sucked into her TV after watching the film that she removed her television from the house and sued herself for abuse of her viewer discretion.

In its decision, the Court said it would not lightly interfere where discretion is in play. In obiter, the Court said, “Perhaps if the warning had been in the imperative, saying something like, ‘You shall not watch this if you are easily scared,’ Ms. Temor would have a stronger case.” According to the Court, Ms. Temor already knew she did not handle scary movies very well, having not been in the ocean since she watched Jaws while on vacation on the coast of Massachusetts. Famously, the Court ended their judgement saying, “Besides, if the worst thing that happens is Ms. Temor no longer keeps a television in the house, things are not really all that bad for her. We could all benefit from a little less TV.”

However, only two years later, the Court decided in favour of a man who sued his girlfriend after she made him watch A Nightmare on Elmstreet 3: Dream Warriors, even though it was established evidence that the man had already proven himself to be, to use a term of art, a fraidy-cat. This stemmed from an incident wherein the two watched Gremlins and he subsequently refused to eat after midnight for years. Many feminist scholars believe the decision was rooted in the Court’s willingness to believe that this good, strong man had been victimized by a demented woman, but that is not within the parameters of this paper.

In the following years, the Court handed down many such contradictory decisions, leaving the state of viewer discretion completely unpredictable. Many were hoping that the Court would finally clarify their position with M.T. v D.T. and V.T. (2017). Yet, when the decision was released at the beginning of this month, it became clear that it was only going to add to the confusion. Some commentators went as far as to suggest the Court had completely abdicated its responsibility to judicially review decisions of viewer discretion.

The facts are simple: M.T., a fifteen year old, sat down to watch a movie with her parents at their invitation. (The name of the film was sealed to prevent further embarrassment to M.T.) The movie had begun a few minutes earlier, so she had not seen the content warning citing nudity and sexual content, but her parents had. Two hours later, M.T. was, in her words, “Mortified. Embarrassed. I couldn’t look at either of them.” In their defence, D.T., her father, said “I don’t know what she’s so bothered about, it was just a little bit of skin and a bit of moaning here and there. It’s perfectly natural.” M.T. testified that she would never have watched the movie with her parents if she had known what was coming, and claimed her parents did not properly exercise their discretion in allowing her to watch it with them.

In an extremely short decision, a unanimous Court held, “Look, we don’t want to talk about this. We don’t think anyone should have to talk about this. Just pretend it didn’t happen, okay?” The state of deference to viewer discretion remains, as ever, uncertain.