OBSCENITY: THE DECISION
SUPREME COURT OF CANADA IN R. v. BUTLER
James R. Robertson
Law and Government Division
OF MR. JUSTICE SOPINKA
OF MR. JUSTICE GONTHIER
DECISION OF THE
SUPREME COURT OF CANADA IN R. v. BUTLER
On 27 February 1992, the
Supreme Court of Canada handed down its decision in the case of R.
v. Butler.(1) This case
concerned the constitutionality of the obscenity provisions of the Criminal
code. The Court held that the prohibition against pornography contravened
the freedom of expression guarantee in section 2(b) of the Canadian
Charter of Rights and Freedoms, but went on to hold that the section
could be demonstrably justified under section 1 of the Charter as a reasonable
limit prescribed by law. In the result, the provisions were upheld.
In the Butler case,
the Supreme Court of Canada has provided a fair amount of guidance on
how the issue of obscenity is to be dealt with by the courts. The case
is important in its recognition of the harm that pornography can cause,
both to society generally and to women in particular. The Court accepted
that the means to control such harm may be imperfect, but maintained that
Parliament was justified in passing such a law. Mr. Justice Sopinka, writing
on behalf of the Court, said that, while a direct link between obscenity
and harm to society may not be conclusively established, there was nevertheless
sufficient evidence that depictions of degrading and dehumanizing sex
do harm society, and in particular, adversely affect attitudes towards
women. He held that the overriding objective of the law was not moral
approbation but the avoidance of harm to society, and that the threat
to equality resulting from exposure to certain types of violent and degrading
material cannot be ignored.
Pornography, or obscenity,
is an extremely complex and difficult moral and legal issue.(2)
Recent legislative attempts to reform the law have been unsuccessful.
Feminists and civil libertarians put forward starkly different arguments;
many traditional allies tend to find themselves on opposite sides of this
The Butler case arose
in Winnipeg when the accused opened a shop that sold and rented "hard
core" videotapes and magazines as well as sexual paraphernalia. He
was charged with 250 counts of selling obscene material, possessing obscene
material for the purpose of distribution or sale, and exposing obscene
material to public view, contrary to section 159 (now 163) of the Criminal
Code. Section 163(8) of the Code provides that any publication of
which a dominant characteristic is the undue exploitation of sex, or sex
together with crime, horror, cruelty or violence, shall be deemed to be
The trail judge(3)
concluded that the obscene material was protected by the guarantee of
the freedom of expression in section 2(b) of the Canadian Charter of
Rights and Freedoms. He also held that prima facie only those materials
that contained scenes involving violence or cruelty intermingled with
sexual activity, or that depicted lack of consent to sexual contact or
that could otherwise be said to dehumanize men or women in a sexual context
were legitimately proscribed under section 1 of the Charter. He convicted
the accused on eight counts relating to eight films and entered acquittals
on the remaining charges.
The Crown appealed the acquittals,
and the Manitoba Court of Appeal, in a three-to-two decision,(4)
allowed the appeal and entered convictions with respect to all counts.
The majority of the Court of Appeal concluded that the materials in question
fell outside the protection of the Charter since they constituted purely
physical activity and involved the undue exploitation of sex and the degradation
of human sexuality. Two justices of the Court of Appeal wrote dissenting
On a further appeal to the
Supreme Court of Canada, two constitutional questions were raised:
163 of the Criminal Code violate section 2(b) of the Canadian
Charter of Rights and Freedoms?
If it does
violate section 2(b), can section 163 of the Criminal Code
be demonstrably justified under section 1 of the Canadian Charter
of Rights and Freedoms as a reasonable limit prescribed by law?
OF MR. JUSTICE SOPINKA
Mr. Justice Sopinka, writing
on behalf of the Court, noted that other subsections of section 163 raise
substantial Charter issues, but that this case was confined to an examination
of the constitutional validity of section 163(8) alone.
He traced the legislative
history of the obscenity provisions of the Criminal Code, and also
reviewed the judicial interpretation of section 163(8). The caselaw has
established that the statutory definition in the section is an exhaustive
test of obscenity with respect to "publications," a term which
has been held to encompass sex devices and other objects that have the
exploitation of sex as a dominant characteristic.
In order for a work or object
to qualify as "obscene," exploitation of sex must not only be
its dominant characteristic, but must also be "undue." In determining
when the exploitation of sex will be considered "undue," the
courts have attempted to formulate workable tests, the most important
of which is the "community standard of tolerance" test, which
has been the subject of extensive judicial analysis. The community standards
test is concerned not with what Canadians would not tolerate being exposed
to themselves, but with what they would not tolerate other Canadian being
exposed to. The test must necessarily respond to changing mores.
There has been a growing
recognition in recent cases that material that may be said to exploit
sex in a "degrading or dehumanizing" manner will necessarily
fail the community standards test, even in the absence of cruelty or violence.
This is because such material is perceived as harmful to society, particularly
At the same time, the last
step in the analysis of whether the exploitation of sex is undue is the
"internal necessities test," or "artistic defence."
If, after considering the work as a whole, it can be concluded that there
is a serious artistic purpose, and that the exploitation has a justifiable
role in advancing the plot or theme, then the exploitation of sex can
be deemed to have a legitimate role when measured against the internal
necessities of the work itself.
As Mr. Justice Sopinka pointed
out, the review of jurisprudence fails to specify the relationship of
the tests one to another. This hiatus in the jurisprudence has left the
legislation open to attack on the ground of vagueness or uncertainty,
and "this lacuna in the interpretation of the legislation must, if
possible, be filled before subjecting the legislation to Charter scrutiny"
(p. 30 of his reasons for judgment).
Mr. Justice Sopinka divided
pornography into three categories: (1) explicit sex with violence;
(2) explicit sex without violence but which subjects people to treatment
that is degrading or dehumanizing; and (3) explicit sex that is without
violence and is neither degrading or dehumanizing. The courts, he went
on, have to determine, as best they can, to what the community will tolerate
others being exposed, on the basis of the degree of harm that may flow
from such exposure, that is, the degree to which it predisposes persons
to act in an anti-social manner for example, to engage in the physical
or mental mistreatment of women. The stronger the risk of harm, the lesser
the likelihood of tolerance. Mr. Justice Sopinka then returned to the
three categories of pornography that he had posited:
of sex coupled with violence will almost always constitute the undue
exploitation of sex. Explicit sex which is degrading or dehumanizing
may be undue if the risk of harm is substantial. Finally, explicit sex
that is not violent and neither degrading nor dehumanizing is generally
tolerated in our society and will not qualify as the undue exploitation
of sex unless it employs children in its production. (p. 32 of his reasons
The need to apply the "internal
necessities" test arises only if a work contains sexually explicit
material that by itself would constitute the undue exploitation of sex.
The issue then becomes whether this portrayal of sex is the main object
of the work or whether it is essential to a wider artistic, literary,
or other similar purpose. Artistic expression rests at the heart of freedom
of expression values, and Mr. Justice Sopinka felt that any doubt in this
regard must be resolved in favour of freedom of expression.
Mr. Justice Sopinka turned
next to the question of whether section 163(8) violates the freedom of
expression guarantee in section 2(b) of the Charter. He rejected the view
of the majority of the Manitoba Court of Appeal, that the materials in
the case lacked expressive content, and that vehicles of expression fell
outside the protected sphere of activity. He also rejected the argument
that a distinction could be made between films and written works.
In light of the Supreme
Court of Canadas ruling in R. v. Keegstra, a generous
approach is to be given to the protection afforded by section 2(b) of
the Charter. Both the purpose and effect of section 163 is specifically
to restrict the communication of certain types of materials on the basis
of their content. By seeking to prohibit certain types of expressive activity,
the section thereby infringes section 2(b) of the Charter.
Having thus found that the
Charter of Rights and Freedoms has been infringed, the analysis
proceeds to section 1: does section 163(8) constitute such a reasonable
limit prescribed by law as can be demonstrably justified in a free and
It was argued that section
163 is so vague that it is impossible to apply. Is it "so obscure
as to be incapable of interpretation with any degree of precision using
the ordinary tools?" Mr. Justice Sopinka looked at the manner in
which the provision has been judicially interpreted. The fact that a particular
term is open to varying interpretations by the courts is not fatal; flexibility
and vagueness are not synonymous. Standards that escape precise technical
definition, such as "undue," are an inevitable part of the law.
He concluded that the interpretation of section 163(8) in previous judgments
provides an "intelligible standard."
It was also argued that
there are several pressing substantial objectives that justify overriding
the freedom to distribute obscene materials, including the avoidance of
harm resulting from anti-social attitudinal changes brought about by exposure
to obscene material, and the public interest in maintaining a "decent
society." Against this, it was argued that the objective of section
163 is to have the state act as "moral custodian" in sexual
matters and to impose subjective standards of morality.
While Parliament cannot
impose a certain standard of public and sexual morality, in light of the
Charter it does have the right to legislate on the basis of some fundamental
conception of morality in order to safeguard the values integral to a
free and democratic society. Much of the criminal law is based on moral
conceptions of right and wrong, and the mere fact that a law is grounded
in morality does not automatically render it illegitimate. In the view
of Mr. Justice Sopinka, the overriding objective of section 163 is not
moral disapprobation but the avoidance of harm to society.
Mr. Justice Sopinka considered
whether the prevention of harm likely to be caused by the dissemination
of certain obscene materials constitutes a sufficiently pressing and substantial
concern to warrant a restriction of freedom of expression. He noted that
there is a growing concern that depicting the exploitation of women and
children in publications and films can, in certain circumstances, lead
to "abject and servile victimization." If true equality between
male and female persons is to be achieved, we cannot ignore the threat
to equality resulting from exposing audiences to certain types of violent
and degrading material. He thus concluded that legislation proscribing
obscenity has a valid objective that justifies some encroachment of the
right to freedom of expression. Such legislation can be found in most
free and democratic societies, and the advent of the Charter did not have
the effect of dramatically depriving Parliament of a power which it had
historically enjoyed. The provision is consistent with Canadas international
obligations, and was found to be compatible with the Canadian Bill
Mr. Justice Sopinka continued:
[T]he burgeoning pornography
industry renders the concern even more pressing and substantial than
when the impugned sections were first enacted. I would therefore conclude
that the objective of avoiding the harm associated with the dissemination
of pornography in this case is sufficiently pressing and substantial
to warrant some restriction on full exercise of the right to freedom
of expression (p. 48 of his reasons for judgment).
On the question of proportionality,
there are three aspects: the existence of a rational connection between
the impugned measures and the objective, minimal impairment of the right
or freedom, and a proper balance between the effects of the limited measures
and the legislative objective. Mr. Justice Sopinka noted that in assessing
whether the proportionality test is met, it is important to keep in mind
the nature of the expression which has been infringed. The values which
underlie the protection of freedom of expression relate to the search
for truth, participation in the political process, and individual self-fulfilment.
The objective of the impugned provision is not to inhibit the celebration
of human sexuality. Mr. Justice Sopinka said: "In my view, the kind
of expression which is sought to be advanced does not stand on equal footing
with other kinds of expression which directly engage the "core"
of the freedom of expression values" (p. 51 of his reasons for judgment).
This conclusion, he stated, is further buttressed by the fact that the
targeted material is expression which is motivated, in the overwhelming
majority of cases, by economic profit, and thus restrictions may be easier
to justify than in the case of other infringements.
The rational link between
section 163 and the objective of Parliament relates to the actual causal
relationship between obscenity and the risk of harm to society at large.
While a direct link between obscenity and harm to society may be difficult,
if not impossible, to establish, it is reasonable to presume that exposure
to images can cause changes in attitudes and beliefs. The question is
not whether there is conclusive proof of a causative link but whether
Parliament had a reasonable basis for acting. Mr. Justice Sopinka felt
that Parliament was entitled to have "reasoned apprehension of harm"
resulting from desensitization of individuals through their exposure to
materials depicting violence, cruelty and dehumanization in sexual relations:
"Accordingly, I am of the view that there is a sufficiently rational
link between the criminal sanction, which demonstrates our communitys
disapproval of the dissemination of materials which potentially victimize
women and which restricts the negative influence which such materials
have on changes in attitudes and behaviour, and the objective" (p.
55-56 of his reasons for judgment).
Mr. Justice Sopinka also
pointed out that it is not necessary that the legislative scheme be the
"perfect" scheme, but rather that it be appropriately tailored
in the context of the infringed right. There are several factors that
contribute to the finding that the provision minimally impairs the infringed
freedom. First, it does not proscribe sexually explicit erotica that is
without violence and is not degrading or dehumanizing. It is designed
to catch material that creates a risk of harm to society; actual proof
of harm is not required, so long as there is a reasonable basis for concluding
that harm will result. Second, materials that have scientific, artistic
or literary merit are not captured by the provision. Third, it is legitimate
for the Court to take into account Parliaments past abortive attempts
to replace the definition with one that is more explicit. Fourth, the
Court has held that the impugned section does not extend its reach to
private use of viewing of obscene materials: only the public distribution
and exhibition of obscene materials is in issue.
As for the argument that
alternative, less intrusive measures could be adopted, Mr. Justice Sopinka
Once it has been established
that the objective is the avoidance of harm caused by the degradation
which many women feel as "victims" of the message of obscenity,
and the negative impact exposure to such material has on perceptions
and attitudes toward women, it is untenable to argue that these harms
could be avoided by placing restrictions on access to such materials.
Making the materials more difficult to obtain by increasing their cost
and reducing their availability does not achieve the same objective.
(p. 60 of his reasons for judgment)
Moreover, alternatives such
as education, shelter and assistance to battered women and so forth are
responses to the harm resulting from negative attitudes to women. The
obscenity provisions, on the other hand, are designed to control the dissemination
of the very images that contribute to such attitudes. "[G]iven the
gravity of the harm, and the threat to the values at stake, I do not believe
that the measure chosen by Parliament is equalled by the alternatives
which have been suggested." (p. 61 of his reasons for judgment) Education
can be used to combat negative attitudes to women, but cannot be relied
on alone. "Serious social problems such as violence against women
require multi-pronged approaches by government. Education and legislation
are not alternatives but complements in addressing such problems."
(p 61 of his reasons for judgment)
Mr. Justice Sopinka also
felt that the restriction on freedom of expression does not outweigh the
importance of the legislative object. It is aimed at avoiding harm, and
thus seeks to enhance respect for all members of society, and to promote
non-violence and equality in their relations with each other.
In conclusion, Mr. Justice
Sopinka said that while section 163(8) infringes section 2(b) of the Charter
(freedom of expression), it constitutes a reasonable limit and is thus
saved by virtue of the provisions of section 1. He allowed the appeal,
and directed a new trial on all charges.
OF MR. JUSTICE GONTHIER
and Gonthier agreed generally with Mr. Justice Sopinkas reasons,
but added a few comments of their own. As Mr. Justice Gonthier explained,
it is the combination of representation and content of obscene
materials that attracts criminal liability. Obscenity is not limited to
sexual acts prohibited in the Criminal Code. Parliament ascribes
a broader content to obscenity because it involves representation: acts
that if carried out between consenting adults might be legal become obscene
when they are represented.
The combination of representation
and content that constitutes obscenity leads to many ills. Obscene materials
create a distorted view of human sexuality, and can induce attitudinal
and behavioural changes that may lead to abuse and harm.
Through section 163 of the
Criminal Code, Parliament only prohibits, and does not regulate,
the circulation of obscene materials. The audience to which the materials
are shown or made available is not relevant. Obscenity is concerned with
materials for which the mere fact of availability to the public at large
is sufficient to warrant criminal prohibition, irrespective of into whose
hands they actually fall.
With respect to Mr. Justice
Sopinkas three-part classification of pornography, Mr. Justice Gonthier
differed only with respect to the third category of materials, in that
he was not prepared to affirm as boldly as his colleague that it escapes
the application of section 163(8). Mr. Justice Sopinkas classification
focused only on content, and ignored the representation. It is conceivable
that representation may cause harm, even if its actual content may not
be seen as harmful. As Mr. Justice Gonthier expressed it, "even if
the content is not as such objectionable
the manner in which the
material is presented may turn it from innocuous to socially harmful.
After all, it is the element of representation that gives this material
its power of suggestion, and it seems quite conceivable that this power
may cause harm despite the apparent neutrality of the content." (p.
10 of his reasons for judgment)
Differences between the
various media, in Mr. Justice Gonthiers view, are not sufficiently
acknowledged in opinions dealing with section 163 of the Criminal Code.
The likelihood of harm, and the tolerance of the community, may vary according
to the medium of representation, even if the content remains the same,
or is not objectionable. Thus, materials falling within Mr. Justice Sopinkas
third category explicit sex with neither violence nor degradation
or dehumanization while generally less likely to cause harm may
nevertheless come within the definition obscenity in section 163(8) if
their content (for example, child pornography) or their representational
element (the manner of representation) is found to be conducive to harm.
Mr. Justice Gonthier also
discussed the concepts of tolerance and harm. The assessment of the risk
of harm depends on the tolerance of the community. Tolerance means not
only tolerance of the materials, but also tolerance of the harm that they
may bring about, which is fully in accordance with the emphasis the Court
put on harm as the central element in the interpretation of section 163.
If the community cannot tolerate the risk of harm, then even materials
with non-violent, non-degrading, non-dehumanizing content can constitute
undue exploitation of sex.
Mr. Justice Gonthier agreed
with Mr. Justice Sopinka with respect to the constitutional aspects of
the case, and added some comments of his own. He agreed that Parliament
can legislate to protect "fundamental conceptions of morality,"
although not all moral claims must be grounded, and must involve concrete
problems rather than differences of opinion or taste. Moreover, a consensus
must exist among the population on these claims. He agreed that the prevention
of harm is a moral objective that is valid under section 1 of the Charter.
R. v. Butler
is a very important decision for a number of reasons. It lays to rest
for the time being any doubts about the constitutionality of the obscenity
provisions in the Criminal Code. There are many problems and concerns
with these sections, but they are at least known. When the Canadian
Charter of Rights and Freedoms was introduced, one of the concerns
was that it would be used to strike down many laws. Recent cases involving
abortion, mental incapacity, the "rape shield" law, and others
seemed to bear out these concerns. In addition to giving rise to concerns
that the courts might substitute their judgment for that of politicians,
these cases also led to uncertainty and chaos. In Butler, however, the
Court has upheld Parliaments approach to obscenity.
Recent attempts, in 1986
and 1988, to reform the law relating to obscenity were unsuccessful, and
were strongly opposed by certain groups. It would have been difficult
to enact any new law, had the existing provisions been struck down; moreover,
it generally takes a great deal of time and energy to pass such a law.
In any event, it is possible that it would be very difficult to achieve
any consensus on what should replace the existing provisions. It is interesting
that in deciding whether the provision minimally impairs the freedom of
expression, Mr. Justice Sopinka took into account "Parliaments
past abortive attempts to replace the definition with one that is more
The Butler decision
is also extremely important in its recognition of the harm to society
generally and to women in particular that is associated with demeaning
and dehumanizing depictions of sex. According to a U.S. expert, the Courts
decision has made Canada the first country in the world to recognize in
its law a link between hard-core pornography and violence against women.
Feminists, womens groups, and others have applauded the Courts
decision. The fact that the decision was unanimous although two
of the nine Supreme Court Justices would have gone further is particularly
important in this regard. The decision sends a very strong and unequivocal
The decision also provides
guidance for the application of the obscenity provisions. Mr. Justice
Sopinkas analysis of the tests to determine what constitutes "undue
exploitation" the community standards test, the degradation
or dehumanization test, and the internal necessities test or artistic
defence is very clear and helpful. His categorization of pornography
is also useful, despite the disagreement among the Supreme Court justices
on his third category.
File No. 22191 unreported at the time this paper was prepared.
See Pornography, Library of Parliament,
Current Issue Review 84-3.
(1989), 60 Man. R. (2d) 82, 50 C.C.C. (3d) 97,  6 W.W.R. 35, 72
C.R. (3d) 18, 46 C.R.R. 124 (Manitoba Queens Bench).
(1990), 60 C.C.C. (3d) 219,  1 W.W.R. 97, 1 C.R. (4th) 309 (Man.