The appellant was charged with making an obscene publication after a commercial film developer handed over a photograph to the police.
At the preliminary hearing, there was no evidence of an intent to publish.
The committing magistrate committed the appellant for trial, finding the word 'publication' in the indictment to be surplusage.
The Supreme Court of Canada allowed the appeal and quashed the committal.
The Court held that while the statutory test for obscenity applies to all charges whether publication is involved or not, the Crown's inclusion of the word 'publication' in the indictment meant it could not be disregarded as surplusage without prejudicing the accused.
Therefore, evidence of an intent to publish was required.
