Freedom of expression/obscenity

(cont'd)

Quick review: three tests for obscenity

1) community standards test (tolerance)

2) degradation and dehumanization

3) internal necessities (artistic defence)

Some comments on D&D test:

a) some things will be degrading and dehumanizing even though the society may be prepared to tolerate them (e.g. some forms of racist pornography)

b) appearance of consent to degrading or dehumanizing activity does not vindicate the material: sometimes consent just makes things worse (e.g.sends the message that women really do want to be raped, hurt, etc.)

Internal necessities test:

Question: is the treatment of sex required by some larger artistic (or scientific) purpose?

*consider: Last Tango in Paris, The Accused, Lady Chatterley's Lover,Not a Love Story, a documentary on rape and murder of women as a political tool in Algeria or Croatia.

*there might be explicit sex, with or without violence, but these works are protected because they serve an important purpose

(note: all of these would probably fail the Hicklin test but...)

Artistic defence is raised only if the material being considered has been deemed obscene.

Relationship between three tests for obscenity

First, court divides pornography into three kinds:

1) explicit sex with violence

2) explicit sex without violence but which subjects people to treatment that is degrading or dehumanizing

3) explicit sex without violence that is neither degrading nor dehumanizing

Court claims categories must be assessed on the basis of the harm they are likely to cause:

1) explicit sex with violence fails both the community standards and D&D tests

2) explicit sex without violence but which is degrading or dehumanizing fails the D&D test and is likely to fail community standards

3) explicit sex that is non-violent and non-degrading is not likely to cause social harm

*At the end of the day, you still have to consider artistic, literary or scientific merit

So, does s.163 of the criminal code violate freedom of expression?

Yes, pornography does have content and meaning, even if we do not happen to like that meaning. Also, section 163 targets content, not just form.

Can section 163 be saved by s.1 of the Charter?

Yes: a long story

First, s.163 is a "reasonable limit prescribed by law": vagueness of statute is filled out by 3 tests for obscenity

Second, is there a significant objective?

Yes, because it seeks to prevent harm to women: does not seek to impose one set of morals on society. (Question: is that true?)

Third, proportionality (rational connection, minimal impairment, proper balance between effects and objective)

Proportionality: the question of purpose

Court's view in Keegstra on the purpose of freedom of expression: (what is it good for?)

a) truth

b) self-fulfilment, individual self-realization

c) political (democratic) activity

Question: what is the situation of pornographic expression with regard to these purposes?

(recall the three categories of pornography: how do they compare on this score?)

Conclusion: pornographic expression is not at the core of freedom of expression

Rational connection?

Sure: banning obscene material effectively prevents the harm foreseen

Minimal impairment?

Yes: what is the alternative? Education? OK, why not, but needs to be done in conjunction with a ban.

Balance between effect and objective?

Yes: not least because pornographic expression is not at the core of the values protected by the Charter Guarantee of freedom of expression.