R.+c.+Butler,

Type in the content of your page here. // Butler //// v. the Queen // Majority: Sopinka 2. If s. 163 of the //Criminal Code// of Canada, R.S.C., 1985, c. C-46, violates s. 2(//b//) of the //Canadian Charter of Rights and Freedoms//, can s. 163 of the //Criminal Code// of Canada be demonstrably justified under s. 1 of the //Canadian Charter of Rights and Freedoms// as a reasonable limit prescribed by law?
 * Facts: ** In August, 1987, Butler opened an adult store that sold “hardcore” videotapes and “sexual paraphernalia”. Winnipeg police entered store with search warrant and seized all inventory. Appellant charged with selling obscene material contrary to s. 159(2) of Criminal Code; possessing obscene material with purposes of distribution, contrary to s. 159(1)(a), exposing obscene material to public view, contrary to 159(2) of Criminal Code. Butler re-opened the store in October of 1987; police re-entered; and employee and Butler himself were arrested.
 * History ** : Trial judge convicted appellant on 8 counts based on 8 films. Convictions were entered for 2 counts; fines of $1000 per offense were imposed; acquittals were entered for remaining charges.
 * Issues: ** 1. Does s. 163 (formerly 159) of the //Criminal Code// of Canada, R.S.C., 1985, c. C-46, violate s. 2(//b//) of the //Canadian Charter of Rights and Freedoms//?
 * Holding**: Yes. Yes.

__ Legislative History of s. 163(159) of Criminal Code: __ Parliament has contended with “issue” of criminalizing obscenity since 1892. At the time, the Criminal Code did not provide definition of terms such as “disgusting”, “obscene”, or “indecent”. Defined “obscene” in amendment published in 1959 as “ 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”. *Publications defined liberally [to include objects]. __ b) Tests of Undue Exploitation of Sex __ : i) Community Standard of Tolerance Test: * Idea that “certain standards of decency prevail in the community”; community is to be defined broadly [rather than looking at a narrow segment of the population]. [R v. Close] * As community standards evolve, standards of decency and obscenity should adapt (R vs. Dominion News & Gifts). à Community Standards Test is concerned with what Canadians would **not** tolerate other Canadians being exposed to. ii) Degradation or Dehumanization Test: * Portrayal of violence or cruelty in conjunction with sex (R v. Doug Rankine Co., 1983)  * Amended in later cases [women being placed in positions of servility vis a vis men; portrayed as desiring domination, bondage, etc.]  * Dickson C.J. (Towne Cinema) suggested that the Degradation Test was an indicator of “undueness”, and that the community may tolerate some forms of undue exploitation. [Conflict between the two tests]. Wilson (Towne) : the line between representations of sex and dehumanization is drawn by “undueness” concept. Community serves as arbiter of harm.   iii) Internal Necessities or Artistic Defence Test: Artistic Defence is last step in analysis of whether exploitation of sex is undue. Material that offends will not be treated as “undue” if it is necessary for serious treatment of theme [in art]. Courts should bear in mind artistic purpose, depiction and interplay of characters, etc. before rendering judgment. Legitimacy of depictions when measured against internal necessities of the work. iv) Relationship of tests to each other: Review of jurisprudence shows a failure to relate tests to one another.   à  Pornography can be usefully divided 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 without violence that is neither degrading nor dehumanizing.   *Question of which category/categories cause “harm” to society. The community serves as the arbiter of this question, and courts must determine what a community will/can tolerate.   *Question to ask in applying tests: “I s undue exploitation of sex the main object of the work or is this portrayal of sex essential to a wider artistic, literary, or other similar purpose?”  // Irwin Toy // : majority of Manitoba Court of Appeal erred in judgment here; misinterpreted distinction between purely physical activity and activity having expressive content; à Should be maintained that there is no distinction, for purposes of test, between written works and film. D. **Is s. 163 justified by law?** *Appellant’s submission: s. 163 is so vague that is impossible to apply it. * It is inevitable that terms such as “undue” will escape precise definition. It is within scope of judiciary’s role to interpret these words. b) Objective: Respondent: pressing objective in overriding 2b is prevention of anti-social attitudes [caused by distribution of obscene material]. Appellant: state would be acting as “moral custodian” in monitoring and limiting distribution of materials.   “This Court has thus recognized that the harm caused by the proliferation of materials which seriously offend the values fundamental to our society is a substantial concern which justifies restricting the otherwise full exercise of the freedom of expression. In my view, the harm sought to be avoided in the case of the dissemination of obscene materials is similar. In the words of Nemetz C.J.B.C. in //R. v. Red Hot Video Ltd.// (1985), 45 C.R. (3d) 36 (B.C.C.A.), there is a growing concern that the exploitation of women and children, depicted in publications and films, can, in certain circumstances, lead to "abject and servile victimization" (at pp. 43-44). As Anderson J.A. also noted in that same case, if true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to audiences of certain types of violent and degrading material. Materials portraying women as a class as objects for sexual exploitation and abuse have a negative impact on "the individual's sense of self-worth and acceptance".” c) Proportionality: 1. existence of rational connection between impugned legislation and objective  2. minimal impairment of right/freedom  3. proper balance between effects of limiting measures and legislative objective  ii) Rational Connection: iii) Minimal Impairment: a)  Does not proscribe erotica that is un-violent. b) Publications with artistic or literary merit are not caught by provision  c)  Current, more abstract definition of obscenity allows for contextual analysis in application. d) Court will not extend into private viewing of such materials  *Contrary to submissions that there are “less intrusive” ways of preventing violence toward women, negative attitudes, etc. {rape counseling, shelters for battered women}, this legislation is intended to prevent the engendering of //attitudes// that promote violence against women. [i.e. preventative rather than reactive strategies].
 * Reasoning ** :
 * C. Does s. 163 of Criminal Code violate 2b) of Charter? **
 * “ Meaning sought to be expressed need not be "redeeming" in the eyes of the court to merit the protection of s. 2(//b//), whose purpose is to ensure that thoughts and feelings may be conveyed freely in non-violent ways without fear of censure. In this case, both the purpose and effect of s. 163 are specifically to restrict the communication of certain types of materials based on their content. In my view, there is no doubt that s. 163 seeks to prohibit certain types of expressive activity and thereby infringes s. 2(//b//) of the //Charter//.”
 * It is indefensible, now, to cite ‘morality’ as a legitimate objective; imposition of a certain standard of sexual and public morality is “inimical to the exercise and enjoyment” of individual freedoms. ‘//Legal moralism’//.
 * However, Parliament has the right to legislate on some fundamental conception of morality to safeguard values essential to democratic society.
 * Thus: **“** ** the overriding objective of s. 163 is not moral disapprobation but the avoidance of harm to society.” ** Does prevention of harm with the dissemination of certain obscene materials constitute a sufficiently pressing and substantial concern to warrant restrictions of freedom of expression?
 * Fact that pornography industry is thriving calls for an even more pressing and substantial objective than when legislation was first enacted.
 * Causal link between obscenity and harm to society at large. Exposure to images triggers attitudinal changes that may lead to harm. There exists, thus, a rational link between the criminal sanction [restricting exposure to materials that potential victimize women and engender changes in belief] and the objective.

NB: Hi team. Sorry this is so long: it was a fairly detailed judgement and I didn't want to leave anything out. From Safia