Obscenity and Freedom of Expression: R. v. Butler(1992)

Facts: Donald Butler owns an adult video store which rents and sells "hardcore" material. In 1987 he is charged with a total of 77 counts of selling, possessing for the purpose of sale, and displaying "obscene material".

At trial, the judge finds only eight films to be obscene according to the criminal code:

*pornographic material has meaning and content and so deserves Charter protection

*but obscenity law is a reasonable limit prescribed by law, justified under sec.1

*those films likely to cause social harm will legitimately attract criminal sanction: films associated with violence or dehumanization and degradation.

 

The Crown appealed the acquittals to the Manitoba Court of Appeal (1990).

 

The Appeal Court overturned the acquittals:

*pornographic material is not expression, does not have content, because it is "merely physical activity." (see Irwin Toy)

 

Decision appealed to the Supreme Court

What is at issue:

1) Does section 163 of the Criminal Code violate the Charter guarantee of freedom of expression?

2) If 163 does violate guarantee of freedom of expression, is it a reasonable limit justified under s.1 of the Charter?

 

Criminal Code:

163(1) Everyone commits an offence who,

a) makes, prints, publishes, distributes, circulates, or has in his possession for the purpose of publication, distribution or circulation any obscene matter, picture, model, phonograph record or other thing whatever

163(8) For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.

*major consideration is section 163(8) and its relation to freedom of expression and s.1

*Is this a "reasonable limit prescribed by law"?

*Is the restriction of this obscene material demonstrably justified in a free and democratic society?

 

Tests for obscenity:

The bad test: "Hicklin Test" (1868)

"... I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

 

Question: Why is this bad?

 

Three contemporary tests for obscenity

a) community standards of tolerance

b) degradation and dehumanization

c) internal necessities (artistic defence)

 

a)Brodie v The Queen (D.H.Lawrence's Lady Chatterley's Lover):

* judicial interpretation of definition: appeal to community standards, what is the community willing to tolerate?

* In Towne Cinema v. The Queen we get this:

"The cases all emphasize that it is a standard of tolerance, not taste, that is relevant. What matters is not what Canadians think is right for themselves to see. What matters is what Canadians would not abide other Canadians seeing because it would be beyond the contemporary standard of tolerance to allow them to see it."

Question: why don't we want other Canadians to see this stuff?

 

b) material that is degrading or dehumanizing will fail the community standards test.

What are we talking about? Material that combines sex with violence, degradation, humiliation, torture, cruelty, etc.

Question: Why does this fail the community standards test?

Answer: Not because it offends against morals, but because it is believed to be harmful to society (especially women).

Evidence?

[Court says:

"... the public has concluded that exposure to material which degrades the human dimensions of life to a subhuman or merely physical dimension and thereby contributes to a process of moral desensitization must be harmful in some way." Judge Wilson in Towne Cinema ]
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