BP-289E

TABLE OF CONTENTS

INTRODUCTION

BACKGROUND

REASONS OF MR. JUSTICE SOPINKA

REASONS OF MR. JUSTICE GONTHIER

CONCLUSIONS

OBSCENITY: THE 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 issue.

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 obscene.

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 judgements.

On a further appeal to the Supreme Court of Canada, two constitutional questions were raised:

1. Does section 163 of the Criminal Code violate section 2(b) of the Canadian Charter of Rights and Freedoms?

2. 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?

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 women.

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:

…[T]he portrayal 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 for judgment)

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 Canada’s 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 democratic society?

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 Canada’s international obligations, and was found to be compatible with the Canadian Bill of Rights.

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 community’s 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 Parliament’s 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 said:

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.

Justices L’Heureux-Dubé and Gonthier agreed generally with Mr. Justice Sopinka’s 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 Sopinka’s 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 Sopinka’s 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 Gonthier’s 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 Sopinka’s 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 Parliament’s 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 "Parliament’s past abortive attempts to replace the definition with one that is more explicit."

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 Court’s 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, women’s groups, and others have applauded the Court’s 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 message.

The decision also provides guidance for the application of the obscenity provisions. Mr. Justice Sopinka’s 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.